Ancient answers to modern questions: death, dying, and organ transplants - a Jewish law perspective.

AuthorWerber, Stephen J.
  1. INTRODUCTION III. DEFINING DEATH III. ORGAN TRANSPLANTS IV. "CHOOSE LIFE"--MEDICAL DIRECTIVES, EUTHANASIA, SUICIDE

    1. Suicide

    2. The DNR Conundrum

    3. Euthanasia

    4. Assisted Suicide V. CONCLUSION

  2. INTRODUCTION

    Medical advances have made it possible to extend life or defy death as it was known for centuries and have also compelled ethicists and health professionals to rethink our definition of death. Moral issues surrounding application of medical advances upon issues of death and dying have assumed a preeminent position among societal concerns. These moral issues relate to a matrix of other complex issues: the extent to which we should consider the psychological effects of extended long term illness upon the victim and his or her family; defining quality of life and how it bears upon the decision-making process; and placing the financial aspects of the dying process into perspective when we know that a substantial portion of all medical expenditures for a given person are made in that person's final year of life. Although only the most callous would allow financial elements to determine life issues, their ramifications upon the lives of those who survive can be too serious to ignore.(2)

    When is it proper to terminate lifesaving efforts? When is it proper for a family member to assist in bringing about an earlier death? Does the answer change if the assistance is provided by a medical professional? Does Jewish Law provide guidance and aid us in drawing lines that are practical while supporting the emotional needs of all concerned? Does Jewish Law permit a modern definition of death (brain death), or must more traditional, ancient definitions apply to foreclose organ transplant procedures which would save or enhance life?(3) Is one view or the other the more moral or correct?

    No one can answer these questions for any but himself. No hospital ethics committee can impose its values and norms upon all patients and rest assured that its collective wisdom leads to the right decision. No religion can pretend to provide God's answer or the only resolution.(4) Nevertheless, the wisdom of the sages can provide elements of a value system, logic, and guidance which can ease the anxiety and uncertainty of the decision-making process and remove the edge of guilt which may arise from that process.(5)

    Many have dealt with these issues on a personal level. When I was twenty-four the question was put to me: "Should we let her go or should we operate and buy a few days, maybe more?" I had no foundation upon which to base a decision other than my instincts. Despite the passage of over thirty years that decision remains a part of my life. Today, I am aware of sources that would have provided guidance for, and eased the burden of, my decision. These sources are found in the laws of Torah and their interpretations over a period exceeding two thousand years. This article seeks to provide the reader with an introduction to these sources and to suggest some answers found within them.(6) To better appreciate the significance of the laws discussed below a short digression into history and nomenclature may be of assistance.

    The Torah is the bedrock source of Jewish Law. It is often referred to as the Five Books of Moses, the Pentateuch, the Tannach, or even the Bible. To Christians it is usually referenced as the Old Testament which includes the books of Genesis, Exodus, Leviticus, Numbers, and Deuteronomy The Torah was developed from approximately the fifth century B.C.E. and became a recognized sacred text circa 400 B.C.E.(7)

    The Hebrew word Torah literally means instruction though to some it is considered revelation. The Torah itself is a sacred object. Torah is the original source of how one's life should be led and its laws are directed to this concept. It is erroneous to consider Torah as synonymous with "law" rather than a means of instruction, revelation, and scripture whose commandments will, if followed, provide a complete way of life. For these reasons, in both the liturgy and in song, the Torah is sometimes referenced as "the tree of life."

    According to Jewish tradition the Torah contains 613 Mitzvot, commandments or laws, which are to be followed. Many of these 613 are religious in nature, but a substantial number, known as the Halachah, address what we now describe as civil law and criminal justice.(8) The Torah, of course, required interpretation and application.(9) This process began with the "oral law" or Mishnah developed by a group of Rabbis known as the Tannaim and culminating in its redaction by Rabbi Yehuda HaNasi. This process took place from the 4th century B.C.E. to approximately 200 C.E. The terse interpretations, laws, and principles of the Mishnah were more fully explained in the "written law" or Gemara which was created by a second group of Rabbis known as Amoraim from approximately 220 - 500 C.E. Their work is now known as the Talmud(10) and is seen in two versions: the Babylonian and the Palestinian.(11) In addition, interpretation and commentary upon the Torah was developed in the Midrash. A key difference between Mishnah and Midrash is that the latter includes direct quotation of Torah/scripture.(12) Of course, collected works of law and interpretation that are more than 1,500 years old need further explication if they are to be applied to modern problems. This explication is found in "Responsa" literature. Responsa were initially the work product of Rabbinical scholars at Torah Academies in Babylonia from 500 - 1,000 C.E. These scholars would discuss the answers to questions sent to them from throughout the world and respond with a collective and authoritative force. This tradition is carried on to the present day through various Rabbinical organizations.(13)

    To understand the application of Jewish Law to issues of death and the dying process one must first be aware of the importance of life, and saving life (pikuach nefesh), in Jewish thought. Judaism "attribut[es] ... infinite value to human life. Infinity being indivisible, any fraction of life, however limited its expectancy or its health, remains equally infinite in value."(14) The Mishnah teaches that creation began with a single human being to "teach you that to destroy a single human soul is equivalent to destroying an entire world; and that to sustain a single human soul is equivalent to sustaining an entire world."(15) This core value of the Jewish tradition, combined with the traditional belief that God decrees the time of death for each person on earth,(16) has led a modern English Rabbi to conclude that: "On the whole, in the Jewish tradition, we don't die well. We rage and we storm. None of us needs that verse, `Do not go gentle into that good night'(Dylan Thomas). For us, life, chayyim, is the great blessing."(17)

    To save a life, including one's own, any religious law can be violated. Even the Sabbath can be broken to save a life.(18) Every life is precious and every life is equal(19) as none can say that another's blood is redder.(20) This does not mean, however, that heroic measures must be taken to extend life where death is near. How Jewish law defines death, and how and when it permits steps that allow death or save life, are the focus of this article.(21)

  3. DEFINING DEATH

    The need to define death arises primarily as a result of advances in the area of organ transplant procedures. An insightful analysis of the conflict between a classical, religious based definition of death and a modern, science based definition suggests that:

    Our traditional understanding of death, defined by the cessation of

    both breathing and heartbeat, is as old as human history. It is a

    definition which is both highly intuitive and easy to accept The

    definition of brain death, on the other hand, is based on science, and

    counter-intuitive. Thus, it may be more problematic to those who,

    through religiosity, have embraced the sacred in lieu of the profane.(22)

    For Jews

    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 preserve life.

    ... From the perspective of Jewish law, there are a number of halakhic

    and ethical questions which can be formulated regarding the

    permissibility of this [heart transplant procedure] or similar

    procedures. Chief among these 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.(23)

    Unless brain death can be viewed as death under the halachic definition, any doctor who performs a heart transplant could be viewed as in violation of his obligation to save life. In addition, highly regarded authority perceives a definition based on brain death as one which has substantial moral overtones in that it rejects the value of the life of a person who is permanently comatose.(24) The combination of Jewish legal and moral analyses has led to substantial conflict among scholars.

    This conflict emerges in a wide variety of circumstances. A recent case in Israel has put many of the issues into an emotional crucible and fascinating perspective. The question before the court was whether a caesarean section could be performed on a brain dead woman in order to deliver the baby. The ultimate decision, in accord with the wishes of the husband, was in the negative. However, the case appears to have spawned substantial debate among halachic authorities.(25)

    Until the 1980s the primary Jewish thought was that a heartbeat or respiration, not brain death, governed the determination. Various authorities assert that under Talmudic law breathing was taken as the primary definer of life and its cessation marked the moment of death.(26) The classical definition is predicated on a Talmudic discussion which indicates that the law of the Sabbath can be broken to preserve a human life.(27) The illustration is that of...

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