Israel finally, after many years of trying passed an organ donation law late yesterday. This is no small achievement. Why?
The Knesset approved a law yesterday intended to regulate organ donations in compliance with Jewish law. The bill was passed with the support of the ultra-Orthodox Shas party.
The new law on brain and respiratory death was introduced by MK Otniel Schneller (Kadima), and it was accompanied by an exceptional process of discussion between rabbis and doctors. The bill enjoyed the support of senior rabbis from the Sephardic ultra-Orthodox community as well as from the National Religious camp, including the Shas spiritual leader Rabbi Ovadia Yosef and Sephardi Chief Rabbi Shlomo Amar. Ashkenazi interpreters of halakah, however, were in disagreement on the bill.
Politicians say the real test of the new law will be the publication of calls by rabbis for organ donation, defining it as a religious obligation. Ultimately, success will be determined by the rabbis' ability to convince the religious and traditional public to support organ donations.
The law determines, among other things, that brokering sales of organs, whether in Israel or overseas, is a criminal offense punishable by up to three years in prison.
According to Tamar Ashkenazi, who heads the National Transplant Center, 55 percent of the families asked to donate the organs of a family member refuse, and the number of potential donors is quite small to begin with. Donors are mostly accident victims, rather than those who die of disease. Such potential donors must have organs in good condition and must still be alive when they arrive at the hospital.
Out of the 145 families asked to permit organ donations in 2007, only 61 agreed. The organs from these 61 donors were transplanted into 231 people. This means every donor saved about four others.
According to Ashkenazi, half of those families that refused said they did so for religious reasons, with some saying they wanted to preserve the wholeness of the body. In practice, it is very difficult to differentiate between the two explanations.
The new law is expected to add dozens of donors a year, and could save the lives of another 100 to 200 people every year.…
Why do Ashkenazi haredi rabbis disagree with the law? Confusion about what constitutes death:
Brain death usually precedes cardiac death. Most of the internal organs used for transplants - hearts, lungs and livers - need to be removed during the brain-death stage, since once the heart stops beating, they will no longer be fit for transplantation.
The Orthodox and ultra-Orthodox publics have almost completely refrained from donating organs until now. In the case of the ultra-Orthodox, their rabbis had not recognized the status of brain death, and therefore viewed the extraction of such organs as equivalent to murder.…
Before going on it is important to realize that brain stem dead patients do not recover. Without a respirator they will die within a few minutes, because the brain does not have the ability to tell the body to breathe at a level to support life.
To understand the problem, let's go back 100 years or so and see how death was defined by halakha.
When a person was thought to have passed away, a member of the Chevra Kadisha or the town's rabbi placed a feather near the nose of the body and watched intently to see if their was any breathing. If there was not, the person was declared dead.
Rarely, this method failed and an unconscious person whose breathing was very shallow and sporadic was misdiagnosed as dead. This accounts for the rare cases of "dead" bodies who "woke up alive" in their coffins.
Modern medical technology is far more advanced than the feather.
The halakha always was cessation of breathing determined death.
Today, because of respirators and other medical equipment, a person unable to breathe on his own can be kept alive. So how should halakha view this?
In two ways.
First, if the patient can breathe on his own, although that breathing is not really adequate to support life and the patient will eventually – in a few hours or days – die from lack of oxygen-profused blood and its related problems, that person should most always be kept alive. (There may be exceptions due to other serious issues like end stage cancer or the like.)
If a person cannot spontaneously breathe, and this is due to an irreversible brain injury that has caused brain stem death, that person may be disconnected from life support (carefully, under controlled circumstances and rabbinic direction). His organs may be taken for transplant.
This is the view of Rabbi Moshe Feinstein, of the RCA's committee, of most National Religious and Modern Orthodox rabbis, and, it now seems, of Rabbi Ovadia Yosef and other leading Sefardic rabbis. (Here is a video of Rabbi Moshe Dovid Tendler explaining brain stem death. He also explains the process for determining brain stem death and the difference between brain stem death and a deep coma.)
Despite overwhelming medical and halakic proof that brain death is halakhic death, Israeli haredi rabbis like Rabbi Yosef Shalom Elyahiv disagree. They view the harvesting of organs as possible murder. It may be interfering with a gosses, a person in his death throes. And halakha, they are quick to point out, forbids us to touch a gosses or to hasten his death. They do, however, accept the possibility brain death is death.
Confused by the issues of life support and artificial respiration, they want to use cardiac death as the gold standard for halakhic death, even though cardiac death was never the halakhic standard.
To clear this up, years ago Rabbi Moshe Dovid Tendler, Rabbi Steinberg and and others arranged and experiment. Rabbi Tendler had told Rabbi Shlomo Zalman Auerbach about a brain dead woman who was kept alive for almost two months until her child was developed enough to be born by c-section. Rabbi Auerbach argued based on a Gemara, that a fetus will die before its mother, because the fetus is weaker. He refused to believe the woman was brain dead. So here is what Rabbi Tendler, Rabbi Steinberg and others did.
A sheep was put on a ventilator and then decapitated. Its heart was kept beating for four hours afterward. (it could have been kept beating for days, but the cost of doing so was astronomical.) Rabbi Tendler showed that brain stem death was not much different than decapitation – remove the respirator and the patient will not spontaneously breathe. Even so, his heart will continue to beat while the respirator is attached.. (Rabbi Tendler explains this experiment toward the end of this video.)
Rabbi Tendler says Rabbi Auerubach accepted this as proof that brain stem death is halakhic death. But Rabbi Auerbach did not publish a responsa on this before his death.
Other Israeli haredi rabbis rejected this argument, first on the grounds of touching a gosses to determine brain death. Rabbi Tendler and others made short shrift of the argument by simply pointing out the dye needed to measure brain function would be injected into the patients I.V. line – following their protocol, the patient would not be directly touched.
Israeli haredi rabbis then shifted the argument, claiming cardiac death, not cessation of breathing, was the halakic standard for determining death.
And so things sat for more than 20 years.
It should therefore follow that haredim who are followers of Rabbi Elyashiv, the Gerrer Rebbe, Rabbi Steinman, other hasidic rebbes, etc., would consider organ donation to be possible murder would refrain from taking donated organs. After all, what right would these Jews have to benefit from "murder"?
Further, because haredim do not donate organs, one would think they should not ethically benefit from the scarce organs that are available. Other Jews who do donate should get first crack, right?
Haredim, while they will not donate organs, will take organs others donate, "murder" or not. Further, they often take places in line ahead of other Jews who are registered organ donors.
While Rabbi Elyashiv and other may see this a leniency, a kula, allowing haredim to have a chance for life where otherwise they would die.
The problem is, that chance at life comes at the expense of others who are denied that chance by Rabbi Elyashiv's actions.
Pirke Avot 5:13 notes:
There are four types among men:
He who says, "What is mine is mine and what is yours is yours"--this is the common type, though some say that this is the type of Sodom.
He who says, "What is mine is yours and what is yours is mine"--he is an ignorant man.
He who says, "What is mine is yours and what is yours is thine own"--he is a saintly man.
And he who says, "What is yours is mine, and what is mine is mine"--he is a wicked man.
Within the national religious community, there was a serious crisis of faith vis-a-vis the medical establishment, which led to a lack of agreement on determining the moment of death.
Schneller led a process intended to overcome this problem. According to the bill that was passed, a committee will be established to follow the situation and reach agreement. The committee will include rabbis, doctors and ethicists. It will also authorize doctors who will be responsible for determining brain death.
The doctors will determine brain death by using a series of different tests that will verify complete cessation of [spontaneous] breathing and brain activity. The family can object to organ transplantation, even if a patient is brain dead. [All this was the practice before the law was passed, although there were problems sensitizing doctors to the needs of Orthodox families, largely because the state had not passed a law to do so and had no real apparatus in place to set standards. And it lacked this for several reasons, one of which was haredi opposition.]
MK Chaim Amsellem (Shas) explained yesterday that the great advances in medical instrumentation of recent years are what enabled yesterday's breakthrough. "For the first time, there is a clear and final statement of rabbis that the end of brain activity is death. The minute a person is declared dead, it is clear that the donation is life-saving and a religious commandment," explained Amsellem. [This same "first time" happened in America more than 20 years ago, based on basically the same medical technology.]
The United Torah Judaism (UTJ) party objected to the law. Its leaders, led by Rabbi Yosef Shalom Elyashiv, insist that religious law does not recognize brain death as death. MK Moshe Gafni (UTJ) told the Knesset plenum yesterday: "A brain-dead person is a living being." Such opinions are expected to make the promotion of organ donations difficult.
The law passed yesterday by a vote of 38 to 17.
Until now, the rules governing transplants were ordinances set by the director general of the Health Ministry. The courts have ruled a number of times that there was a need to legislate the matter in law. One of the results of a lack of a legal basis was the inability to prosecute organ brokers, said Ashkenazi. Instead, such cases usually were prosecuted on the basis of peripheral issues, such as tax evasion.
What was controversial was the acceptance of two amendments proposed by Finance Minister Roni Bar-On, which cancelled budgets intended to encourage donations. The main funding was to be for educational and promotional activites, at a cost of NIS 5 million a year.
Israeli take far more organs worldwide than they donate, so much so that Israelis have been banned from international transplant waiting lists everywhere but the United States.
As Rabbi Moshe Dovid Tendler noted years ago, Jews cannot be seen as people who take donated organs (thereby excluding others from receiving them) but who themselves do not donate. (Video.)
Soon, Rabbi Tendler said, all Orthodox Jews will be banned from receiving donated organs because of the actions of these rabbis.
Israel was forced to act.Still, beacuse of haredi opposition, that action took years.
This new bill may stave off the crisis for a time. But if secular Israelis and their black-robed counterparts don't start giving if, God forbid, they are put into a position to do so, the day may really come when Jews die because transplant lists are closed to them.
And you'll be able to thank Rabbi Yosef Shalom Elyashiv, the Gerrer Rebbe and many other so-called gedolim for that.
UPDATE: Part 2.