After recently publishing a highly controversial study that reversed a long-time
policy of accepting brain-stem death as halachic death so as to facilitate organ
donations, the Rabbinical Council of America on Friday issued a clarification
that in effect shied away from taking a position on the topic, instead allowing
each rabbi to determine his stance “in this extraordinarily difficult and
important area of Jewish law.”
A few months ago, the RCA disseminated a
110-page study penned by its Halacha Committee (Va’ad Halacha) which dealt with
“the halachic and medical issues relating to organ transplantation... and the
determination of death in Halacha.”
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The team of rabbis, led by Rabbi
Asher Bush, attempted to disprove the scientific and halachic grounds for the
RCA’s stance on those issues, as developed for the organization in the early
1990s by Rabbi Dr.
Moshe D. Tendler, a biology professor and Jewish
medical ethics expert at Yeshiva University, and rosh yeshiva at its Rabbi Isaac
Elchanan Theological Seminary.
Based on his scientific expertise and the
halachic rulings of leading rabbis, including that of his father-in-law, Rabbi
Moshe Feinstein, one of the greatest adjudicators of the 20th century, Tendler
determined that brain-stem death constituted halachic death.
This is also
the stance of Israel’s Chief Rabbinate, as it ruled in 1986.
In its
Friday announcement signed by Rabbi Moshe Kletenik, president and Rabbi Shmuel
Goldin, first vice president, the RCA explained its “unusual step” of issuing
clarifications due to the “strong reactions from many quarters” the recent
release of the Va’ad Halacha’s study engendered.
“The RCA takes no
official position as an organization on the issue of whether or not brain stem
death meets the halachic criteria of death,” the announcement read. “The study
disseminated by the Va’ad Halacha was the product of many years of exploration
by that committee and was meant to serve as an informational guide to our
membership.”
The announcement states that “many halachic authorities of
our day, including Rav Hershel Schachter, Rav Mordechai Willig, Rav J. David
Bleich and others maintain that brain stem death does not satisfy the halachic
criteria for the determination of death. It is also true, however, that many
other halachic authorities, including Rav Gedalia Schwartz, Rav Moshe Tendler,
and the Chief Rabbinate of Israel maintain that brain-stem death does qualify
for the determination of death in Jewish law.”
Hence, the “RCA maintains
that its membership is best served by allowing each Rabbi to determine for
himself, based upon his own study, consultation with halachic authorities and
his own conscience, which halachic position he will adopt in this
extraordinarily difficult and important area of Jewish law.”
The RCA
clarification, however, was far from satisfying the critics of its recent Va’ad
Halacha paper, and stems from the fact that for unknown reasons, the
organization, which serves nearly 1,000 Orthodox rabbis, primarily in North
America, “went ahead and let individuals who are not knowledgeable about the
topic” write the new report, Tendler told The Jerusalem Post on
Sunday.
The newfound direction of the RCA “had to be some kind of
decision,” Tendler said, noting that the inaccuracies in the recent Va’ad
Halacha paper had to be intentional, “since it is not possible to make those
errors.”
“In the text itself, they referred to those who correctly
support brain stem death as a halachically approved indicia of death in
derogatory terms,” he said of the report’s authors.
“Their attempt to
restate opinions of the supporters, such as Feinstein and the [Israeli] Chief
Rabbinate can only have been an intentional effort to retract what was the
standard of the RCA ... and a violation of what has always been the RCA policy
of supporting the Chief Rabbinate,” he continued.
The mystery of why the
RCA sought to change its stance on brain-stem death remains unsolved, Tendler
said.
“What is needed is not a clarification of the RCA position, but a
simple apology,” he said.
Tendler reiterated the danger to human lives
such a stance could pose, as it would prevent Jews from donating life-saving
organs. He mentioned the recent case of soccer star Avi Cohen, whose family
decided to not donate his organs even though he had signed an ADI organ donor
card, reportedly due to comments made to the late man’s son by a former soccer
player who turned haredi and his rabbi – that they would be murdering his father
if they donated his organs.
“The sense of tragedy on Avi Cohen is that an
individual,” Tendler said of the unidentified rabbi, “decided that he could be
an adjudicator on the lives of seven-eight people,” who might have been able to
receive Cohen’s organs, “and decided that they can die, because he wanted to
support a minority opinion on this issue.”
Cohen’s wife and son denied
that they had refused to donate the organs because of pressures from any rabbi,
but sources in the know insist that the family had planned to donate the organs
before their encounter with the religious elements.
Robert Berman of the
Halachic Organ Donor Society also slammed the recent RCA paper that “contains
medical mistakes, citation errors, historical distortions of piskei halacha, and
morally reprehensible halachic positions,” and in a Friday statement said that
the new clarification was not enough.
“The RCA needs to retract the
document, fix its flaws, and reissue it. That would be the right thing to do,”
he said.
In related news, the Chief Rabbi of the UK Lord Jonathan Sacks
and the London Beth Din recently issued a statement rejecting brain-stem death
as meeting the halachic definition of death.
“There is a view that
brainstem death is an acceptable Halachic criterion in the determination of
death. This is the view of some Poskim,” they wrote. “However it is the
considered opinion of the London Beth Din, in line with most Poskim, worldwide,
that in Halacha cardio-respiratory death is definitive.
“Hence, in view of
this, and of the significant Halachic issues relating to the procedure of the
donation process itself, we believe that it is imperative that a competent
Halachic authority should be consulted by families who find themselves involved
in such discussions,” the statement reads.
Sacks and the Beth Din note
that they “are already in consultation with the UK medical profession about the
possibility of devising a method whereby the number of organs donated by Jews
can be increased in accordance with Halacha...
“At this point, however,
since the National Registry system is not set up to accommodate Halachic
requirements, donor cards (even those purporting to be Halachic) are
unacceptable.”
Berman slammed Sacks’s “declaration that encourages Jews
not to donate organs upon brain death but not forbid Jews from taking organs
from gentiles who are brain dead” as being “morally reprehensible.”
“Are
the lives of gentiles in the UK worth less than those of Jews? If Rabbi Sacks
thinks a Jew who is brain dead is alive, is not a gentile who is brain dead
similarly alive?,” he demanded on Friday.
“It is curious that Rabbi Sacks
discourages people from getting organ-donor cards that ‘purport’ to be halachic
when Rabbi Nachum Rabinovitch, the person who gave Rabbi Sacks his smicha
[rabbinic ordination], has just such a card from the Halachic Organ Donor
Society,” Berman noted.
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