Criteria for Determining Death

[This teshuvah is addressed to Dr. Elliot Bondi, grandson of that great Rav, the Gaon Rav Yosef Breuer, of blessed memory.]

My grandson, Rav Mordechai Tendler, has spoken to me at length about many of the doubts and concerns you have raised because of the New York State appellate court's ruling that brain-stem death should be regarded as an alternative criterion for determining death. [Pulmonary and cardiac criteria of death, when the heart ceases to beat and the patient is no longer breathing, have always been recognized.] The need for a ruling concerning neurological criteria of death arises because of the advent of the ventilator, a machine that allows for a patient to be perfused with oxygen even after brain-stem death has occurred—in other words, when the brain is no longer able to function because of the loss of oxygen to the brain and the subsequent destruction of critical brain cells involved in respiration. My son-in-law, Rav Moshe David Tendler, שליט"א, has explained to me that the judges of the secular court accept the so-called Harvard criteria for determining irreversible coma. In my opinion, these criteria are in agreement with the halachah. When they are met, it is as if the patient had been decapitated, for his brain shows actual destruction or lysis. When a patient is neurologically unresponsive to all stimuli and, in addition, has lost the ability to breathe on his own, he is unquestionably dead, as I explain in my responsum in Iggeros Moshe, Yoreh De'ah III:132. Under the Harvard criteria, however, it may occur that individual hospitals, or even the country as a whole, will begin to consider as dead individuals who are still alive according to halachic standards. I refer to persons who have suffered cerebral destruction, i.e., destruction of the upper brain, but are responsive to the stimuli involved in the breathing process and, therefore, must be provided with all medical care. If you should be legally required to cease treatment of such a patient, including removing the ventilator, do not personally do anything to hasten the patient's death. This applies even if [abandoning the patient] is inevitable because others will comply with the order if you refuse. Resign from the case if the hospital's regulations require you to remove the ventilator from such a patient.¹ The hospital's administrators can then assign the patient to someone else if they so desire.

footnotes: ¹ In keeping with the legal opinion expressed in the Cruzan case in 1990.

We cannot impose our laws on others, and therefore [decisions of this kind pertaining to] non-Jewish patients may be governed by their own laws. With a Jewish patient, however, the obligation to refrain from hastening death affects not only the physician but the entire Jewish community. They must do everything in their power to prevent the hospital from hastening the patient's death. Even a goses, i.e., a patient in extremis and whose death is uneqivocally imminent, is still halachically alive, and the laws [prohibiting] murder apply to him. I am aware that caring for a patient in a hospital involves significant expense. Nevertheless, even if treatment is futile, a patient must not be subjected to any procedure that would hasten his death. Similarly, any change in treatment that might cause death is prohibited. If you sense that providing greater care to a Jewish patient would be understood as favoritism to the Jew and neglect of the non-Jew, the same rules apply to the non-Jew as well. It is only our reluctance to impose our standards on adherents of another religion that allows us to differentiate between Jew and non-Jew. I end this responsum with my fervent prayers that we shall soon see the fulfillment of the promise of Hashem, "I am the Lord thy healer," upon the advent of Moshiach.