I acknowledge before You, my God and the God of my fathers … that my cure is in Your hand and my death is in Your hand…. And if my appointed time to die has arrived You are righteous in all that befalls me.
CONFESSION OF THE DYING
A man of serious conscience means to say in raising urgent ethical questions that there may be some things that men should never do that, now or in the future, they could do. The good things that men do are made complete only by the things they refuse to do. It would perhaps be better not to raise the ethical issues of medical practice in an age when public policy and research requirements threaten to be overriding than not to raise them in earnest. (Paul Ramsey, New England Journal of Medicine, April 1, 1971)
The task of defining death is not a trivial exercise to be relegated to the purview of the lexicographer. It is perhaps the most pressing concern in a newly developing field of inquiry which has come to be known as bioethics. The formulation of such a definition involves an attempt to arrive at an understanding of the very essence of human life and an endeavor to identify the nature of the ephemeral substance which is lost at the time of death.
The loss of that elusive component which transforms the human organism into a living being effects a change in the moral and legal status of the individual. The traditional view is that death occurs upon the separation of the soul from the body. Of course, the occurrence of this phenomenon does not lend itself to direct empirical observation. Accordingly, traditional definitions of death have focused upon cessation of circulatory and respiratory functions as criteria of the ebbing of life. Black's Law Dictionary (4th ed., 1951), in recording the accepted legal definition, describes death as "… total stoppage of the circulation of the blood and a cessation of the animal and vital functions consequent thereupon, such as respiration, pulsation, etc."
Contemporary medical science has developed highly sophisticated techniques for determining the presence or absence of vital bodily functions. Moreover, improvements in resuscitatory and supportive measures now at times make it possible to restore life as judged by the traditional standards of persistent respiration and continuing heart beat. This can be the case even when there is little likelihood of an individual recovering consciousness following massive brain damage. These new medical realia have led to a reassessment of traditional definitions of death. Some members of the scientific community now advocate that previously accepted criteria of death be set aside and have formulated several proposals for a redefinition of the phenomenon of death.
Chief among these is the now popular concept frequently, though inaccurately, referred to as brain death. According to this view, death is equated with the complete loss of the body's integrating capacities as signified by the activity of the central nervous system and is determined by the absence of brain waves as recorded by an electroencephalogram over a period of time. It is most interesting to note that reports have appeared, both in the popular press and in scholarly publications, of a significant number of instances in which patients have made either partial or complete recoveries despite previous electroencephalogram readings over an extended period of time which registered no brain activity.1Jerusalem Post, November 14, 1968; Hirntod (Stuttgart, 1969), pp. 63, 66, 98, and 106. See Jacob Levy, “Mavet Mohi,” Ha-Ma‘ayan, Nisan 5732, p. 25; J. B. Brierly, J. H. Adams, D. I. Graham, et al., “Neocortical Death after Cardiac Arrest,” Lancet 2:560–65, 1971; Hadassah Gillon, “Defining Death Anew,” Science News 95 (January 11, 1969), p. 50; Harold L. Hirsch, Case and Comment, September–October 1974; Rochester Democrat and Chronicle, March 19, 1975, p. 19. Cf. also Henry K. Beecher, “Definitions of ‘Life’ and ‘Death’ for Medical Science and Practice,” Annals of the New York Academy of Sciences, vol. 169, art. 2 (January 21, 1971), pp. 471–472; E. Bental and U. Leibowitz, “Flat Electroencephalograms During 28 Days in Case of ‘Encephalitis,’ ” Electroenceph. Clin. Neurophysiology, XIII (1961), 457–460; R. G. Bickford, B. Dawson and H. Takeshita, “EEG Evidence of Neurologic Death,” Electroenceph. Clin. Neurophysiology, XVIII (1965), 513–514; T. D. Bird and F. Plum, “Recovery from Barbiturate Overdose Coma with Prolonged Isoelectric Electroencephalogram,” Neurology, XVIII (1968), 456–460; R. L. Tentler et al., “Electroencephalographic Evidence of Cortical ‘Death’ Followed by Full Recovery: Protective Action of Hypothermia,” Journal of the American Medical Association, CLXIV (1957), 1667-1670; P. Braunstein, J. Korein et al., “A Simple Bedside Evaluation of Cerebral Blood Flow in the Study of Cerebral Death,” The American Journal of Roentgenology Radium Therapy and Nuclear Medecine, CXVIII (1973), 758; and P. Braunstein, I. Kricheff, et al., “Cerebral Death: A Rapid and Reliable Diagnostic Adjunct Using Radiosotopes,” Journal of Nuclear Medecine, XIV (1973), 122.
Several years ago the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death was established. The published report of this committee2“A Definition of Irreversible Coma,” Journal of the American Medical Association, vol. 205, no. 6 (August 5, 1968), pp. 337–40. states that its primary purpose was to "define irreversible coma as a new criterion of death." In order to arrive at a clinical definition of irreversible coma, the Ad Hoc Committee recommends establishment of operational criteria for the determination of the characteristics of a permanently nonfunctioning brain. The three recommended criteria are: (1) lack of response to external stimuli or to internal need; (2) absence of movement or breathing as observed by physicians over a period of at least one hour; (3) absence of elicitable reflexes ("except in some cases through the spinal cord").3This modification appears in Beecher, Annals, p. 471. A fourth criterion, a flat, or isoelectric, electroencephalogram, is recommended as being "of great confirmatory value" but not of absolute necessity. Subsequently, Dr. Henry K. Beecher, the chairman of the Ad Hoc Committee, noted, "Almost everybody else has required the use of the electroencephalogram. We think it adds helpful confirmatory evidence, but we do not think that it is necessary by itself." 4Loc. cit. The procedure advocated by the Ad Hoc Committee calls for repetition of the relevant tests following a lapse of twenty-four hours. Repeated examinations over a period of twenty-four hours or longer are required in order to obtain evidence of the irreversible nature of the coma.
Most revealing is the quite candid statement of the committee chairman: "Only a very bold man, I think, would attempt to define death…. I was chairman of a recent ad hoc committee at Harvard composed of members of five faculties in the university who tried to define irreversible coma. We felt we could not define death. I suppose you will say that by implication we have defined it as brain death, but we do not make a point of that." 5Loc. cit.
More recently, the adequacy of even this notion of brain death has been challenged in some quarters. Proponents of a broader definition ask, "Why is it that one must identify the entire brain with death; is it not possible that we are really interested only in man's consciousness: in his ability to think, reason, feel, interact with others and control his body functions consciously?" 6Robert M. Veatch, “Brain Death: Welcome Definition or Dangerous Judgment?” Hastings Center Report, II, no. 5 (November 1972), p. 11. According to this latter view, death is to be equated with irreversible loss of consciousness. If this definition were to gain acceptance, the effect would be that in cases where the lower brain function is intact while the cortex, which controls consciousness, is destroyed, the patient would be pronounced dead.
Much of the debate concerning the definition of death misses the mark. A definition of death cannot be derived from medical facts or scientific investigation alone. The physician can only describe the physiological state which he observes; whether the patient meeting that description is alive or dead, whether the human organism in that physiological state is to be treated as a living person or as a corpse, is an ethical and legal question. The determination of the time of death, insofar as it is more than a mere exercise in semantics, is essentially a theological and moral problem, not a medical or scientific one.
For Jews, questions of this nature can be answered only within the framework of Halakhah. The great strides made in the life sciences in the past number of years have reopened a host of medico-halakhic problems. With the invention and refinement of life-saving apparatus, the life of a terminally ill patient may, in some instances, be prolonged for a significant period of time. As a result, a precise definition of death becomes of crucial importance because only the presence of the criteria of death which are recognized by Halakhah relieves the physician of his obligation to use all available means in order to preserve the life of the patient. The most breathtaking of recent scientific breakthroughs is no doubt the development of the techniques for successful heart transplantation. While discouraging results have resulted in virtual suspension of such transplants, there is reason to anticipate that with further research the difficulties which have been encountered will be overcome. From the perspective of Jewish law, there are a number of halakhic and ethical questions which must be analyzed before a definite position can be formulated regarding the permissibility of this or similar procedures. Chief among these problems is the halakhic definition of death, since for medical reasons the donor's heart must be removed without delay if the operative procedure is to be successful.
The surgeon is faced with a dilemma. In order to save the life of his patient, he must remove the donor's heart at the earliest possible moment consistent with the latter's claim to life. When may he proceed? Certainly, all to whom human life is sacred would answer: the instant death occurs. But this answer merely begs the crucial question: when does death occur? The sanctity of human life is a cardinal principle of Judaism. It is self-evident that every measure must be taken to preserve the life of every human being. By the same token, the slightest action which might hasten the death of another is proscribed. Hence the extreme importance of determining with exactitude the halakhic definition of death.
In view of the far-ranging significance of this problem, a detailed analysis of the sources from which such a definition must be derived is in order. Moreover, as will be shown, there exists a crucial conceptual difficulty which requires careful analysis; namely, do the hallmarks of death as given by Jewish law constitute a definition of death per se, i.e., is the physiological state described by such signs synonymous with death in the eyes of Halakhah, or are such signs merely symptomatic of death, the state of death itself, from the point of view of Halakhah, being beyond analytic definition in empirical terms? This problem requires careful elucidation and examination since it is a question which is not explicitly formulated in responsa literature.
I
It is axiomatic, according to Halakhah, that death coincides with cessation of respiration. The primary source of this definition is to be found in Yoma 85a in connection with suspension of Sabbath regulations for the sake of the preservation of human life. The case in point concerns an individual trapped under a fallen building. Since desecration of the Sabbath is mandated even on the mere chance that a human life may be preserved, the debris of a collapsed building must be cleared away even if it is doubtful that the person under the rubble is still alive. However, once it has been determined with certainty that the person has expired, no further violation of the Sabbath regulations may be sanctioned. The question which then arises is how much of the body must be uncovered in order to ascertain conclusively that death has in fact occurred? The first opinion cited by the Gemara maintains that the nose must be uncovered and the victim of the accident be pronounced dead only if no sign of respiration is found. A second opinion maintains that death may be determined by examination of the chest for the absence of a heartbeat. It is evident that both opinions regard respiration as the crucial factor indicating the existence of life; the second opinion simply adds that the absence of a heartbeat is also to be deemed sufficient evidence that respiration has ceased and that death has actually occurred. This is evident from the statement quoted by the Gemara in the name of R. Papa in clarification of this controversy. R. Papa states that there is no disagreement in instances in which the body is uncovered "from the top down." In such cases the absence of respiration is regarded by all as being conclusive. The dispute, declares R. Papa, is limited to situations in which the body is uncovered "from the bottom up" and thus the heart is uncovered first. The controversy in such cases is whether the absence of a heartbeat is sufficient evidence to establish death in and of itself, or whether further evidence is required, i.e., uncovering of the nostrils. The necessity for examination of the nostrils is based upon the assumption that it is possible for life to exist even though such life may be undetectable by means of an examination for the presence of a heartbeat—as Rashi succinctly puts it, "For at times life is not evident at the heart but is evident at the nose."7There is no opinion recorded in the Babylonian Talmud—majority or minority—which requires examination of the heart. See, however, Palestinian Talmud, Yoma 8:5, where the correct textual reading is the subject of dispute. According to the version of Korban ha-Edah, one Amora requires examination of the heart. Pnei Mosheh, in accepting a variant reading, rejects this contention. In demonstration of the principle that respiration is the determining factor, the Gemara cites the verse "… all in whose nostrils is the breath of the spirit of life" (Gen. 7:22). Both Maimonides8Mishneh Torah, Hilkhot Shabbat 2:19. and Shulḥan Arukh9Oraḥ Ḥayyim 329:4. cite the first opinion as authoritative. Hence in terms of normative Halakhah, regardless of whether the head or the feet are uncovered first, death can be established only by examination of the nostrils and determination of the absence of signs of respiratory activity at that site.
However, even according to the accepted view, namely, that determination of death is contingent upon lack of respiration, absence of cardiac activity is a relevant factor. Cessation of respiration constitutes the operative definition of death only because lack of respiration is also indicative of prior cessation of cardiac activity. This may be inferred from Rashi's choice of language. The phrase, "At times life is not evident at the heart but is evident at the nose," would indicate that, hypothetically, if confronted by a situation in which "life" is not evident at the nose for whatever reason, but is evident at the heart, cardiac activity would itself be sufficient to negate any other presumptive symptom of death.10See R. Eliezer Waldenberg, Ẓiẓ. Eli‘ezer, X, no. 25, chap. 4, sec. 7. Cf. also Ẓiẓ Eli‘ezer, IX, no. 46, sec. 5, who cites medieval writers on physiology—among them Sha‘ar ha-Shamayim, a work which is attributed to the father of Gersonides—who declare that life is dependent upon nasal respiration because warm air from the heart is expelled through the nose and cold air, which cools the heart, enters through the nose. It was thus clearly recognized that respiration without cardiac activity is an impossibility. This view is clearly expressed by R. Ẓevi Ashkenazi, Teshuvot ḥakham Ẓvi, no. 77. Hakham Ẓvi notes that in some cases a heartbeat may be imperceptible even though the individual is still alive. A weak beat may not be audible or otherwise perceivable since the ribcage and layers of muscle intervene between the heart itself and the outer skin. Respiration is more readily detectable and hence the insistence upon an examination of the nostrils. However, concludes Hakham Ẓvi, "It is most clear that there can be no respiration unless there is life in the heart, for respiration is from the heart and for its benefit." Similarly, R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 338, states that absence of respiration is conclusive only if the patient "lies as an inanimate stone and there is no pulse whatsoever."11However, according to the previously cited reading and interpretation of Korban ha-Edah, there is one opinion in the Palestinian Talmud which requires examination for presence of a heartbeat to the exclusion of examination for respiration. The most plausible explanation of this ruling is that it is based upon the empirical belief that the presence of a heartbeat is more readily detectable than respiration and hence absence of a heartbeat is deemed to be a more reliable clinical symptom of respiratory stoppage than absence of perceived respiration.
These sources indicate clearly that death occurs only upon the cessation of both cardiac and respiratory functions. The absence of other vital signs is not, insofar as Halakhah is concerned, a criterion of death.
II
Although, in theory, the cessation of respiration is the determining criterion in establishing that death has occurred, in practice this principle is considerably modified so that the absence of respiratory activity in itself is not sufficient to establish that death has occurred. Halakhah provides that the Sabbath may be violated in order to save the life of an unborn fetus. Therefore Shulḥan Arukh12Oraḥ Ḥayyim 330:5. states that if a woman dies in childbirth on the Sabbath a knife may be brought through a public domain in order to make an incision into the uterus for the purpose of removing the fetus. However, R. Moses Isserles, commonly known as Rema, in a gloss to this ruling, indicates that this provision, while theoretically valid, is nevertheless inoperative in practice. Rema declares that, quite apart from the question of desecration of the Sabbath, it is forbidden to perform a postmortem Caesarean in order to save the fetus, on weekdays as well as on the Sabbath, because we are not competent to determine the moment of maternal death with exactitude.
Since it is forbidden to as much as move a limb of a moribund person lest this hasten his death,13Yoreh De‘ah 339:1. there can be no question of an incision into the womb until death has been established with absolute certainty. In view of the fact that by the time the death of the mother can be conclusively determined the fetus is no longer viable, this procedure would be purposeless and consequently would constitute an unwarranted violation of the corpse.
The principle enunciated by Rema14Koret ha-Brit, no. 330, sec. 15, infers from the phraseology adopted by Rema that the latter does not at all disagree with the Shulḥan Arukh but simply endeavors to provide the rationale underlying the prevalent custom. See Ẓiẓ Eli‘ezer, X, no. 25, chap. 4, sec. 4. is that what may appear to be cessation of respiratory activity cannot be accepted as an absolute criterion of death. Our lack of competence is due to an inability to distinguish between death and a fainting spell or swoon. In the latter cases respiratory activity does occur, although respiration may be so minimal that it cannot be perceived.
In stating that we are incompetent to determine the moment of death with precision and cannot apply the criterion of respiration with reliability, Rema does not spell out clinical signs which may be accepted as conclusive. Nor does he indicate how much time must elapse following apparent cessation of respiration before the patient may be pronounced dead. There is some discrepancy in the writings of later authors with regard to establishing such a time-period. A contemporary authority, Rabbi Yechiel Michal Tucatzinsky, Gesher ha-Hayyim, I chap. 3, p. 48, records that the practice in Jerusalem is not to remove the body from the deathbed for a period of twenty minutes following the presumed time of death. Earlier, Rabbi Shalom Gagin, Teshuvot Yismaḥ Lev, Yoreh De'ah, no. 9, stated that the custom in Jerusalem is to wait a period of one half-hour. Rabbi Gagin further noted that our incompetence to determine time of death with precision should not necessitate a delay of "more than half an hour or at the most an hour" for final pronouncement of death.15A waiting period of “at least one full hour” before moving the deceased is also cited by Hyman Goldin, Ha-Madrikh, p. 111, in the name of Derekh ha-Ḥayyim. Although there are several works bearing this title which discuss laws of mourning and related topics, none of them appears to contain a source for this citation.
It is interesting to note that the previously cited report of the Ad Hoc Committee of the Harvard Medical School requires “observations covering a period of at least one hour by physicians” to satisfy the criteria of no spontaneous muscular movements or spontaneous respiration as one of the characteristics of irreversible coma.
Writing in the Tammuz 5731 issue of Ha-Ma'ayan, Dr. Jacob Levy, an Israeli physician and frequent contributor to halakhic journals, argues that, in light of the clinical aids now available to the physician, the considerations which previously necessitated this waiting period are no longer operative. Rema's declaration that the ruling of the Shulḥan Arukh is not followed in practice is based upon the fear that a fainting spell or swoon may be misdiagnosed as death. Dr. Levy points out that in many cases the possibility of such errors can be eliminated by use of a sphygmomanometer to determine that no blood pressure can be detected, in conjunction with an electrocardiagram to ascertain that all cardiac activity has ceased. Accordingly, Dr. Levy strongly recommends that rabbinic authorities declare that the original ruling of the Shulḥan Arukh now be followed in practice.
Dr. Levy adds that this proposal should not be construed as an abrogation of Rema's ruling, since many authorities recognize that Rema's statement is based upon empirical considerations and admits to exceptions. For example, R. Ya'akov Reischer, Shevut Ya'akov, I, no. 13, in discussing the bizarre case of a pregnant woman who was decapitated on the Sabbath, states unequivocally that the physician who had the presence of mind to incise the abdomen immediately in order to remove the fetus need have no pangs of conscience, since in this instance the mother's prior death is established beyond cavil.15aSee also R. Ephraim Oshry, She’elot u-Teshuvot mi-Ma‘amakim, II, no. 10. Similarly, concludes Dr. Levy, Rema's statement should not be viewed as normative under changed circumstances which enable medical science to determine that death has already occurred. This argument is cogent in view of the fact that Rema himself remarks that it had become necessary to disregard the earlier authoritative decision of the Shulḥan Arukh solely because of a lack of medical expertise.15bAlso, the phraseology used by Rema is different from that which is usually employed by Rema in disagreeing with a ruling of Shulḥan Arukh. See numerous sources cited by R. Shlomoh Schneider, Ha-Ma’or, Kislev-Tevet 5735.
Granted that with the use of clinical aids one can establish conclusively that all cardiac activity has ceased, Dr. Levy's contention that no further waiting period is needed is borne out by Hakham Ẓvi's previously cited statement, "There can be no respiration unless there is life in the heart."
Hakham Ẓvi's original ruling elicited the sharp disagreement of R. Yonatan Eibeschutz and sparked a controversy which has become classic in the annals of Halakhah. The dispute centered around a chicken which, upon evisceration, proved to have no discernible heart. The chicken was brought to Hakham Ẓvi for a determination as to whether the fowl was to be considered tereifah because of the missing heart. Hakham Ẓvi ruled that it is empirically impossible for a chicken to lack a heart because there can be no life whatsoever without a heart. The chicken clearly lived and matured; hence it must have had a heart which somehow became separated from the other internal organs upon the opening of the chicken and was inadvertently lost. The impossibility of life without a heart, in the opinion of Hakham Ẓvi, is so obvious a verity that he declares that even the testimony of witnesses attesting to the absence of the heart and the impossibility of error is to be dismissed as blatant perjury. R. Yonatan Eibeschutz, in a scathing dissenting opinion, argues that such a possibility cannot be dismissed out of hand. In his commentary to Yoreh De'ah, Kereti u-Pleti 40:4, R. Yonatan Eibeschutz contends that the functions of the heart, including the pumping of blood, might well be performed by an organ whose external form is quite unlike that of a normal heart and which may even be located in some other part of the body. This organ might be indistinguishable from other, more usual tissue, and hence the observer might have concluded that the animal or fowl lacked a "heart."
There is nothing in this opinion which contradicts the point made on the basis of Hakham Ẓvi's responsum with regard to determination of the time of death. R. Yonatan Eibeschutz concedes that life cannot be sustained in the absence of some organ to perform cardiac functions. R. Yonatan Eibeschutz argues only that, in the apparent absence of a recognizable heart, cardiac functions may possibly be performed by some other organ; he does not at all assert that life may continue following cessation of the functions normally performed by the heart.
However, at least one authority indicates that life can continue, at least theoretically, after the heart has been removed. Specifically rejecting the opinion of authorities who have concluded that "it is impossible to exist even for a moment" without a functioning heart, Mishkanot Ya'akov, Yoreh De'ah, no. 10, declares that such a contingency is a distinct possibility. According to this opinion it may perhaps be the case that a waiting period of some duration, as demanded by Rema, cannot be waived even when heart stoppage is confirmed by clinical apparatus, since cessation of cardiac activity does not, in and of itself, indicate that death has occurred. Acceptance of Dr. Levy's thesis would quite probably involve rejection of the opinion of Mishkanot Ya'akov in favor of the view expressed by Hakham Ẓvi.
III
There is, as previously noted, one fundamental problem with regard to a clear analysis of the halakhic position which views time of death as being simultaneous with cessation of respiration. Is cessation of respiration to be equated with death itself, or is it merely a physiological symptom enabling us to ascertain the time of death? Couched in different terminology, are respiration and life itself one and the same, so that the absence of respiratory activity, by definition, constitutes the state of death? Or is life some ephemeral and indefinable state or activity which cannot be empirically perceived but of which absence of respiration is a reliable indication?
There is some prima facie evidence indicating that lack of respiration and the state of death are, by definition, synonymous. The Sages inform us that the soul departs through the nostrils, thereby causing respiration to cease and death to occur. The Yalkut Shim'oni, Lekh Lekha, no. 77, observes that after sneezing one should give thanks for having been privileged to remain alive.16Cf. R. Baruch ha-Levi Epstein, Torah Temimah, Gen. 7:22. The Yalkut, noting that the first mention of sickness in Scripture occurs in Genesis 48:1, remarks that prior to the time of Jacob sickness was unknown. It is the view of the Sages that illness became part of man's destiny in answer to Jacob's plea for prior indication of impending death in order that he might make a testament before dying. Before the days of Jacob, according to the Yalkut, an individual simply sneezed and expired without any indication whatsoever that death was about to overtake him. The Yalkut can readily be understood on the basis of the verse "… and He blew into his nostrils the soul of life" (Gen. 2:6). In the narrative concerning the creation of Adam, the soul is described as having entered through the nostrils. According to the Yalkut, the soul departs through the same aperture through which it entered; hence terminal sneezing is associated with the soul's departure from the body. Apparently, then, respiration and life both cease with the departure of the soul.
Likewise, we find that the nose is deemed to be the site of the soul's departure from the body with regard to the provisions surrounding the eglah arufah (the broken-necked heifer). Biblical law (Deut. 21:1–9) provides that if homicide is committed outside a city and the identity of the murderer is unknown it becomes incumbent upon the elders of the city closest to the site where the corpse is found to perform the ritual of breaking the neck of a calf in expiation of the untraced murder. In the event that the body be found in a spot virtually equidistant between two cities, the Mishnah, Sotah 45b, cites the opinion of R. Akiva who states that the distance to the neighboring cities is to be measured from the nose in order to determine which is closest. In explaining R. Akiva's opinion, which in this case is authoritative, the Gemara states that his view is predicated upon the premise that "primary life—ikar ḥiyuta—is in the nose." This would seem to indicate that death and cessation of respiration are synonymous.
There is, however, evidence from the Talmud itself that at least in rare instances individuals have lived despite previous cessation of respiration. Semaḥot, chap. 8, records that in times when burial was made in cavernous crypts, it was customary to visit the crypt during the first three days following interment in order to examine the burial site for signs of life.17It should be noted that both Ḥatam Sofer and Rabbi Gagin in his previously cited responsum, Yismaḥ Lev, Yoreh De‘ah, no. 9, state that this procedure was by no means obligatory; the practice was merely sanctioned as not constituting darkei ha-Emori, a forbidden pagan practice. It is recorded that on one occasion a person so buried was later found to be alive. Moreover he is reported to have sired a number of children before his ultimate death some twenty-five years later.18Indeed, Moses Mendelssohn sought to use this source as a basis for permitting delayed burial in contravention of the halakhic requirement of immediate burial. Mendelssohn contended that such delay is necessary in order to ascertain that death has actually occurred. See Ha-Me’assef (1785), pp. 152–55, 169–74, and 178–87. This material was reprinted in Bikkurei ha-Ittim (1824), p. 219–24 and 229–38. Mendelssohn’s advocacy of delayed burial and the ensuing controversy are discussed in detail by Alexander Altmann, Moses Mendelssohn: A Biographical Study (University, Ala., 1973), pp. 288–93. See also Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 338.
In any event, if life may at times continue after respiration has ceased, it would then appear that absence of respiration is at best a sign that death may be presumed to have occurred but is not, in itself, one and the same as death. This is indeed the conclusion drawn by R. Shalom Mordecai Schwadron, the author of Teshuvot Maharsham. In vol. VI, no. 124 of his responsa, this authority states that the dictum "primary life is in the nose" indicates that in ordinary situations, where there is no evidence to the contrary, one may rely upon examination of the nostrils, since in virtually all instances life has completely ebbed prior to cessation of respiration. Instances where this is not the case are so extremely rare that such contingencies need not be considered. Yet, maintains Maharsham, if any sign of life is observed in other limbs, examination of the nose may not be accepted as conclusive. In the case presented for his consideration, he indicates that a noise apparently emanating from the body after breathing had ceased would necessitate further delay in order to determine with certainty that death had indeed occurred.
Maimonides, Guide for the Perplexed, Book 1, chap 42, describes the occurrence of such a phenomenon in support of his contention that the term mavet is a homonym and that in biblical usage this term in certain places means "severe illness" rather than "death." In the narrative concerning Nabal's demise Scripture reports, "…and his heart died within him and he became hard as stone" (I Sam. 25:37), and then goes on to state, "And it came to pass after ten days and the Lord smote Nabal and he died" (I Sam. 25:38). Maimonides cites Andalusian authors who interpret the phrase "and his heart died within him" of the earlier passage as meaning "that his breath was suspended, so that no breathing could be perceived at all, as sometimes an invalid is seized with a fainting fit and attacks of asphyxia, and it cannot be discovered whether he is alive or dead, and in this condition the patient may remain one day or two."19This exposition of Maimonides’ position follows the interpretation advanced by Abarbanel in the latter’s commentary on the text of the Guide and appears to be the most facile analysis of Maimonides’ comments. Cf., however, Shem Tov, who sees the Andalusians as denying the miraculous resurrection of the son of the woman of Zarephath (I Kings 17:17) and claims that Maimonides himself accepted the position of the Andalusians. Narboni and Ibn Caspi also ascribe such views to Maimonides. Ibn Caspi attempts to show that Maimonides was herein following the talmudic interpretation of this narrative. According to Ibn Caspi, the talmudic exposition does not consider the described phenomenon to be a case of resurrection. Maimonides was severely (and, according to Abarbanel, erroneously) attacked by others for denying that the son of the woman of Zarephath was resurrected since these authorities view Maimonides’ position as being contradictory to the rabbinic interpretation of the relevant passages. Cf. the letter of R. Judah ibn Alfacha to R. David Kimchi in Koveẓ Teshuvot ha-Rambam (Lichtenberg, Leipzig, 1859), p. 29, and Teshuvot Rivash, no. 45. Cf. also Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 338, who interprets Maimonides as accepting the resurrection of the son of the woman of Zarephath literally but denying Elisha’s resurrection of the son of the Shunamite. (II Kings 4:34–35).
It would appear that a divergent view is espoused by Hatam Sofer, who indicates that death is synonymous with cessation of respiration. Teshuvot Hatam Sofer, Yoreh De'ah, no. 338, states that the commandment "And if a man have committed a sin worthy of death, and he be put to death … his body shall not remain all night upon the tree, but thou shalt surely bury him the same day …" (Deut. 21:23) implies a clearly defined definition of death. Halakhah deems cessation of respiratory activity to constitute such a definition. This tradition, according to Hatam Sofer, was either (1) received from the scientists of antiquity, even though it has been "forgotten" by contemporary physicians, or (2) received by Moses on Mt. Sinai, or (3) derived from the verse "all which has the breath of the spirit of life in his nostrils" (Gen. 2:6). "This necessarily is the shi'ur [the term shi'ur should in this context be understood as meaning "clinical symptom of death"] received by us with regard to all corpses from the time that the congregation of the Lord became a holy nation." Hatam Sofer, while not spelling out the issue at stake, quite obviously views cessation of respiration as itself constituting death rather than as being merely symptomatic of death. However, in developing this thesis, Hatam Sofer appears to broaden his definition of death by requiring the presence of yet another necessary condition. Hatam Sofer cites the previously mentioned phenomenon described by the Andalusians and accounts for the situation described by them by stating that although in the incident described respiration had ceased, nevertheless the pulse was still detectable either at the temples or at the neck. Without making an explicit statement to this effect, Hatam Sofer here seems nevertheless to amend his definition of death and now appears to state that death occurs only if both pulse beat and respiration have ceased.20Rabbi Moshe Sternbuch, Ba‘ayot ha-Zeman be-Hashkafat ha-Torah, I, 10, asserts that according to Ḥatam Sofer, absence of respiration is sufficient to establish death unless the peron is in a swoon. However, in a state of swoon it is possible for the person to be alive and yet not to breathe. Hence the possibility of a swoon must be ruled out before lack of respiration may be accepted as conclusive evidence that death has occurred. Rabbi Sternbuch evidently interprets Ḥatam Sofer as believing that lack of respiration is merely symptomatic of death rather than constituting death in and of itself. This definition of death is thus compatible with the previously cited view supported by Yoma 85a that death is to be identified with absence of respiration coupled with prior cessation of cardiac activity. Although death occurs only upon the conjunction of both physiological occurrences, cessation of respiration is accepted as the sole operational definition because, in the vast majority of cases, it is indicative of prior cardiac arrest. Hatam Sofer summarizes his position in the statement, "But in any case, once he lies like an inanimate stone, there being no pulse whatsoever, and if subsequently breathing ceases, we have only the words of our holy Torah that he is dead." Accordingly, concludes Hatam Sofer, the corpse must be buried without delay and a kohen dare not defile himself by touching the corpse after these signs of death are in evidence. Cases such as those described in Semaḥot 8 are extremely unusual, to say the least, and are dismissed by Hatam Sofer as being comparable to the celebrated story of Choni the Circle-Drawer (Ta'anit 23a), who slept for seventy years. Oddities such as these occur with such great rarity that Halakhah need not take cognizance of such contingencies.21Rabbi I. J. Unterman, “Ba‘ayot Hashtalat ha-Lev le-Or ha-Halakhah,” Torah She-be-‘al Peh (5729), p. 13 and No‘am, XIII (5730), p. 3, points out that Ḥatam Sofer is speaking specifically of a patient suffering from a lingering illness and whose condition has steadily deteriorated. These symptoms, declares R. Unterman, cannot be regarded as definitive signs of death with regard to one who has experienced a sudden seizure. In such cases, all resources of medical science must be employed to save human life. Although he does not elaborate, R. Unterman presumably means that we may not accept our inability to detect these signs of life as conclusive evidence of their absence. R. Waldenberg, Ẓiẓ. Eli‘ezer, X, no. 25, chap. 4, no. 5, quite obviously disagrees with this view. Ẓiẓ Eli‘ezer cites the symptoms advanced by Ḥatam Sofer as reliable criteria of death in all instances. R. Waldenberg explains the numerous cases in which the patient has been restored to life following cessation of respiration as instances wherein respiration was indeed present but not perceived. The physician may, nevertheless, rely upon his determination that respiration has ceased in pronouncing death. Nevertheless, “if it is possible for him to conduct further tests in the anticipation that he may perhaps find life, certainly it is incumbent upon him to do so; however, as to the primary determining factor, with regard to this we have only the words of our Torah and the tradition of our fathers …” In the same vein, R. Chaim Yosef David Azulai, Teshuvot Hayyim Sha'al, II, no. 25, declares that when the statutory signs of death are present, it is incumbent upon us to execute burial without delay, "and if in one of many tens of thousands of cases it happens that he is alive, there does not [devolve] upon us the slightest transgression, for so has it been decreed upon us … and if we err in these signs [of death], such was His decree, may He be blessed."
IV
Currently, in an age of medical progress, the paramount question is not simply whether burial should be delayed on the chance that life may yet exist, but rather to what extent it is mandatory to engage in attempts at resuscitation. In terms of definitive Halakhah, there is no question whatsoever that the physician is obligated to utilize all means available to him in order to revive the patient. This may be established in several ways. It goes without saying that according to the authorities who deem the cessation of respiration to be merely symptomatic of the absence of life, there obviously exists such an obligation as long as there is any prospect of resuscitation, no matter how remote the chances of success may be. Such an obligation most certainly exists if any other clinical signs of life, such as brain activity as recorded by an electroencephalogram, are in evidence. Secondly, in light of Rema's ruling that we are incompetent to apply the criterion of respiration, there exists a safek, or doubt, as to the presence of death during the twenty, thirty or sixty minutes following what appears to us to be cessation of respiration. There obviously devolves upon the physician a definite obligation to resuscitate the patient within this period even if this involves violation of the Sabbath laws or of other biblical prohibitions. The question, then, requires analysis only with regard to the position of those authorities who maintain that death is to be defined as the cessation of both respiration and cardiac activity. In light of Rema's ruling, the question becomes actual only after the requisite period of time has elapsed following the cessation of respiratory activity so that death may be established with certainty. Despite these considerations, it may be argued that if any clinical signs of life are present the patient may not be presumed to have actually died. A contemporary authority, Rabbi Eliezer Waldenberg, Ẓiz, Eli'ezer, X, no. 25, chap. 4, sec. 5, asserts that inherent in Hatam Sofer's position is the assumption that whenever other clinical signs of life are evident, respiration is indeed taking place, albeit unperceived by us. Accordingly, the physician is obligated to use all available means to preserve life, even in the absence of perceivable respiration. In a similar vein, Rabbi Moshe Sternbuch, in a recently published booklet, Ba'ayot ha-Zeman be-Hashkafat ha-Torah, I, 9, states that the talmudic source (Yoma 85a) advisedly employs the example of a person crushed under a heap of rubble as a paradigm case because in situations where artificial respiration or similar measures are possible the person cannot be considered to be dead simply because breathing has ceased. Nevertheless, adds Rabbi Sternbuch, when such measures are of no avail, the time of death must be retroactively established as coinciding with cessation of respiration.22This is also the position of R. Shlomoh Zalman Auerbach. See R. Gavriel Krauss, Ha-Ma‘ayan, Tishri 5729, p. 20.
The question thus becomes purely theoretical. As noted, Hatam Sofer maintains that death is to be defined as the total absence of respiration and cardiac activity to the exclusion of other clinical signs. It follows from this position that if it could be determined with absolute certainty that these activities had indeed ceased—and it must be borne in mind that the previously cited authorities maintain that such a determination is impossible—subsequent resuscitation, if accomplished, would, in fact, constitute a form of "resurrection" of the dead. Is there any obligation upon the physician to restore life to the dead, or are his obligations limited to healing the living? If it could be conclusively determined that the patient has already expired, may Sabbath laws and other halakhic proscriptions be set aside in order to effect resuscitation?
This question in one of its guises is raised by Tosafot, Baba Mezi'a 114b, who questions the permissibility of Elijah's resuscitation of the son of the widow of Zarephath. The talmudic view is that Elijah and Phineas were one and the same person. Since Phineas was a priest, he was forbidden to defile himself by physical contact with the dead. How, then, was he permitted to revive the son of the widow of Zarephath?
Several commentaries, by virtue of their answers to the query presented by Tosafot, indicate that, in their opinion, there is no obligation whatsoever to resurrect the dead. The Shitah Mekubezet parallels the previously cited view of Maimonides in stating that the child was not dead but merely in a swoon. Rosh,23Quoted by Shitah Mekubeḥet, Baba Meẓi‘a 114b. Radbaz,24Vol. V, no. 2203. and Abarbanel25Commentary on the Guide, I, 42. Puzzling is the parallel cited by Abarbanel concerning the slaying of Zimri and Cozbi by Phineas (Num. 25:6–8), a deed which necessarily involved the latter’s defilement. The rabbinic view is that since Phineas was born before the consecration of Eliezer, he was not a priest by virtue of genealogical descent and, accordingly, required personal consecration to achieve priestly status. Rabbinic tradition views the verse “Behold I give him my covenant of peace” (Num. 26:12) as recording that this status was accorded him as a reward for his zeal in the matter of Zimri. Thus, at the time of the slaying, Phineas had not yet attained the status of a priest and was not bound by the priestly prohibition regarding defilement (See Zevaḥim 101b). all state that Elijah's act was a form of hora'at sha'ah—an action having express divine sanction limited to the specific case at hand—and from which no normative halakhic practice can be deduced.
Tosafot answers that since Elijah was certain of the success of his endeavor, violation of the priestly code was permissible for the sake of preservation of human life. Hemdat Yisra'el,26R. Meir Dan Plocki, Ḥemdat Yisra’el, Mafteḥot ve-Hosafot, p. 33. This position is also stated emphatically by R. Moses Feinstein, Iggrot Mosheh, Yoreh De‘ah, II, no. 174. Rabbi Feinstein suggests that the preservation of life referred to by Tosafot is either the life of the child’s grief-stricken mother or perhaps that of Elijah himself. in quoting Tosafot's line of reasoning, points out that we do not find any source indicating an obligation to resurrect the dead; the obligation to preserve human life extends only to those yet living, not to those already deceased. Furthermore, if the halakhic category of preservation of life encompasses resurrection of the dead, then the obligation should logically extend even to cases of doubtful success, no matter how remote such chances may be, as is the rule with regard to preservation of the life of those living. Accordingly, all halakhic restrictions should be suspended even in cases of doubt. If so, Tosafof's insertion of the words "since he was certain of being able to resurrect life" is incomprehensible. It has been suggested27See R. Yechiel Ya‘akov Weinberg, No‘am IX, (5726), p. 214, reprinted in Seridei Esh, III, no. 127, p. 350. Rabbi Weinberg cites this exposition as that of Ḥemdat Yisra’el and after disagreeing substitutes his own interpretation. However, an examination of Ḥemdat Yisra’el, loc. cit., shows that R. Plocki offers an interpretation similar to that advanced by R. Weinberg himself. that there is an obligation to resuscitate or "resurrect" the dead, but that this obligation is not encompassed within the general obligation to preserve life. Rather, according to this interpretation, the obligation to restore life to one who has already died is based upon the rationale adduced by the Gemara, Yoma 85b, "Better to desecrate one Sabbath on his behalf in order that he may observe many Sabbaths." The concern then is to enhance the total number of miḥvot performed. Since this is the sole halakhic consideration mandating resuscitation of one already dead, Tosafot reasons that no halakhic prohibition may be violated in the process unless there is absolute certainty with regard to the success of such efforts.28A similar view is expressed by R. Naftali Zevi Yehudah Berlin, Ha‘amek She’elah, no. 166, sec. 17. R. Berlin asserts that the ruling of Ba‘al Halakhot Gedolot permitting desecration of the Sabbath on behalf of an embryo even within the first forty days of gestation applies only to cases where the medical efficacy of the therapeutic technique is a known certainty. The argument is that such activity can be sanctioned within the first forty days of gestation only upon application of the principle “Better to desecrate a single Sabbath on his behalf so he may observe many Sabbaths,” which is operative only if there exists positive knowledge of the capacity for such future observance, rather than upon the general obligation to preserve human life which would mandate suspension of Sabbath laws even if the outcome is doubtful.
In sharp disagreement with this interpretation of Tosafot, R. Yechiel Ya'akov Weinberg asserts that Tosafot does not mean to invoke the commandment regarding preservation of human life; rather, asserts R. Weinberg, Tosafot regards resuscitation as a form of "honor of the deceased" since there can be no greater honor than resuscitation. Halakhah stipulates that a priest may defile himself in order to accord the honor of burial to a corpse which would otherwise remain uninterred (a met miḥvah). According to this interpretation, Tosafot reasons that priestly defilement is also permissible under the same conditions in order to accord the deceased the "honor" of resurrection. Since Elijah alone was capable of reviving the dead child, Elijah was permitted to defile himself for this purpose. However, such defilement is permitted only if success is assured since defilement is sanctioned only when resultant honor to the deceased is a certainty. Thus, according to Rabbi Weinberg's analysis of Tosafot, other commandments may not be violated even if success could be predicted with certainty, since only the prohibition against priestly defilement may be set aside in order to honor the dead; whereas, according to Hemdat Yisra'el, all prohibitions, e.g., desecration of the Sabbath, are suspended under such circumstances.
It should be reiterated that the foregoing discussion is purely theoretical. In terms of practical Halakhah, both Rabbi Waldenberg and Rabbi Sternbuch stress that the exact moment of death cannot be determined with precision. Accordingly, when there is a possibility of resuscitation, everything possible must be done to restore the patient to life.
V
It must be emphasized that in all these questions involving the very heart of a physician's obligations with regard to the preservation of human life, halakhic Judaism demands of him that he govern himself by the norms of Jewish law whether or not these determinations coincide with the mores of contemporary society. Brain death and irreversible coma are not acceptable definitions of death insofar as Halakhah is concerned. The sole criterion of death accepted by Halakhah is total cessation of both cardiac and respiratory activity. Even when these indications are present, there is a definite obligation to resuscitate the patient, if at all feasible. Jewish law recognizes the malformed, the crippled, the terminally ill and the mentally retarded as human beings in the full sense of the term. Hence the physician's obligation with regard to medical treatment and resuscitation is in no way diminished by the fact that the resuscitated patient may be a victim of brain damage or other debilitating injury.
Of late, there has been increased discussion of a patient's right to "die with dignity" and a general urging that physicians not overly prolong the lives of comatose patients who are incurably ill. It is exceedingly difficult to argue against an individual's right to "die with dignity." This phrase, so pregnant with approbation, bespeaks a concept which is rapidly joining motherhood, the Fourth of July and apple pie as one of the great American values.
Certainly one has a right to dignity both in life and in death. But is death, properly speaking, a right? Suicide is forbidden both by religious and temporal law. It is proscribed because Western culture has long recognized that man's life is not his own to dispose of at will. This fundamental concept is expressed most cogently by Plato in his Phaedo. Socrates, in a farewell conversation with his students prior to his execution, speaks of the afterlife with eager anticipation. Thereupon one of his disciples queries, if death is so much preferable to life, why did not Socrates long ago take his own life? In a very apt simile, Socrates responds that an ox does not have the right to take its own life because it thereby deprives its master of the enjoyment of his property.29In halakhic literature this concept is developed by Radbaz in his commentary on Rambam, Hilkhot Sanhedrin 18:6. It is a basic halakhic principle that, while a defendant’s testimony is accorded absolute credibility with regard to establishing financial liability, a confession of guilt is never accepted as evidence of criminal culpability. Citing the verse “Behold, all souls are Mine” (Ezek. 18:4), Radbaz explains that while material goods belong to man and may be disposed of at will, the human body is the possession of God and may be punished only by Him. See also Rambam, Hilkhot Roẓeaḥ 1:4 and Shulḥan Arukh ha-Rav, VI, Hilkhot Nizkei Guf 4. Man is the chattel of the gods, says Socrates. Just as "bovicide" on the part of the ox is a violation of the proprietor-property relationship, so suicide on the part of man constitutes a violation of the Creator-creature relationship.
Man does not possess absolute title to his life or to his body. He is but the steward of the life which he has been privileged to receive. Man is charged with preserving, dignifying, and hallowing that life. He is obliged to seek food and sustenance in order to safeguard the life he has been granted; when falling victim to illness and disease he is obligated to seek a cure in order to sustain life. Never is he called upon to determine whether life is worth living—this is a question over which God remains sole arbiter.
Surely, even on the basis of humanistic assumptions, one must recognize that human life must remain inviolate. As long as life is indeed present, the decision to terminate such life is beyond the competence of man. In pragmatic terms, a decision not to prolong life means precluding the application of some new advance in therapeutics that would secure a remission or cure for that patient should a breakthrough occur. But, more fundamentally, man lacks the right to assess the quality of any human life and to determine that it is beneficial for that life to be terminated; all human life is of inestimable value. If the comatose may be caused to "die with dignity," what of the mentally deranged and the feeble-minded incapable of "meaningful" human activity? Withdrawal of treatment leads directly to overt acts of euthanasia; from there it may be but a short step to selective elimination of those whose life is deemed a burden upon society at large.
Undoubtedly, caring for a patient in extremis places a heavy burden upon the family, the medical practitioner and hospital facilities. It is natural for us, both individually and collectively, to harbor feelings of resentment because of the toll exacted from us. But we must recognize that preservation of any value demands sacrifices. Above all, we must be on guard against self-interest cloaked in altruism, against allowing self-serving motives to find expression in the language of idealism.
Attempts have been made in the past to make the right to life subservient to other values. The results have been tragic. Hannah Arendt and others have pointed out that in the scale of values accepted in Germany during the World War II era obedience to law took priority over the sanctity of human life. Yet we have refused to accept this argument as a valid line of defense, because we believe it to be self-evident that the right to life is a right which has been endowed upon all men by their Creator. A person's right to life, as long as it does not conflict with another's right to life, is inviolate. And the right to life precludes the right to hasten death either overtly or covertly. The teachings of Judaism in this regard are nowhere expressed more eloquently than in the Siddur:
My God, the soul which You have placed within me is pure. You have created it; You have fashioned it; You have breathed it into me and You preserve it within me; and You will at some time take it from me and return it to me in the time to come. As long as the soul is within me I will give thanks unto You …