Rabbi Lord Immanuel Jakobovits (1921-1999) was largely responsible for founding Jewish Medical Ethics, now an established academic field. The phrase “Jewish Medical Ethics” first appeared as the title of Rabbi Lord Immanuel Jakobovits’ doctoral thesis submitted to London University in 1955. Jakobovits built medical ethics as a form of ethics, not as a legal concern, rather in the sense in which what it is understood in Roman Catholic moral philosophy. Jakobovits’ main focus was moral problems raised by medicine and medical practice as opposed to those raised by Jewish law. “Judaism considers that the great moral principles are profoundly enough rooted in the religious conscience of the nation to make it possible to tolerate exceptional cases… It acts thus in conformity with its general spirit which is to be strict in its principles, but human and clement in its application as it concerns the individual person. Or in sum, “it is the human factor of the ethical code which will complete the lacunae of the law.
An underreported side story was his connections to Christiaan Barnard, the South African surgeon who performed the first heart transplant in 1967. It seems that the Chief Rabbi and the surgeon exchanged formal letters on medical ethics and spoke both by phone and in person. These conversations seem to have created a common language even when the two differed. They appeared in public together and presented themselves as completely opposite opinions on when to allow passive euthanasia, the doctor would refuse the patient even basics such as food and the rabbi distinguished between basics and extra-ordinary procedures. But on many other issues they seem to frame their discussions in similar terms. Barnard wrote Good Life Good Death: A Doctor’s Case for Euthanasia and Suicide (Englewood Cliffs: Prentice-Hall, 1980). In the book and in several prior articles the doctor discussed his conversations with the Chief Rabbi.
Barnard writes that immediately after the first heart transplant on 26 December 1967, was performed in South Africa, he wrote to Rabbi Jakobovits asking for his opinion. The Rabbi’s reply, in part, was the following:
An organ may never be removed for transplantation from a donor until death has been eventually established. The prohibition of nivul hameth would then be suspended by overriding consideration of pikuach nephesh. Hence, I can see no objection in Jewish law to the heart operations recently carried out, provided the donors were definitely deceased at the time the organ was removed from them.
In his book, Barnard was a vigorous advocacy of passive euthanasia based not on vital signs, but on a quality of “being alive.”
And by living I do not mean simply exhibiting one or two vital signs, such as respiration or the registration of heartbeat. I mean rather the whole conglomeration of sensual experiences that the patient calls “being alive”—the experiences that by their very complexity and subtlety are not amendable to measurement or statistical analysis and are usually known only to the patient, his closest associates, and his doctor.
Today’s sophisticated medical technology can lead to situations in which few of the rules apply. For example, it is possible to have a heart beating for many hours in a body that is dead, and conversely, a patient can be very much alive even though the heart’s beat has stopped for hours.
Barnard turned for religious guidance to determine life and death. He found that the modern issues was first broached “in 1957 when, at the international Congress of Anesthesiologists in Rome, Pope Pius XII was asked, “When does death occur?” Barnard was satisfied with the Pope’s reply that “human life continues for as long as its vital functions, distinguished from the simple life of the organs, manifest themselves spontaneously without the help of artificial processes.” What is important in this Papal definition is the insertion of the word “spontaneously” and without “artificial processes” to determine life. The Pope added that, “The task of determining the exact instant of death” was that of the physician.” This definition was given even before the widespread use of heart/lung machines or the ability to perform organ transplants. Barnard adopted this definition as his own:
A person will be considered medically and legally dead if, in the opinion of a physician based on ordinary standards of medical practice, there is an absence of spontaneous brain function; and if based on ordinary standards of medical practice, during reasonable attempts to either maintain or restore spontaneous circulatory or respiratory function in the absence of aforesaid brain function, it appears that further attempts at resuscitation or supportive maintenance will not succeed, death will have occurred at the time when these conditions coincide. Death is to be pronounced before artificial means of supporting respiratory and circulatory function are terminated and before any vital organ is removed for purpose of transplantation.
This definition of spontaneous breathing and irreversible condition will be adapted by Jakobovits and, through him, to later authors. In one of his earlier writings, Fred Rosner, writes of an oral communication he had with Jakobovits about irreversible conditions. “A similar conclusion is expressed by Rabbi Immanuel Jakobovits, who states, in part, that ‘the classic definition of death as given in the Talmud and Codes is acceptable today and correct. However, this would be set aside in cases where competent medical opinion deems any prospects of resuscitation, however remote, at all feasible.” (August 1968)
The phrase “spontaneous respiration” originated in 1880s and was used through World War I to refer to resuscitation of a person. It declined in usage between 1915-1969; it resurfaced in terminology during the 1970s and was more concerned with acute pulmonary failure. The adjectives such as “irreversible” and “spontaneous” became the assumed terms for respiration. It seems that it was Jakobovits was the first brought to bring it into Halakhic discourse. The Talmud, not accounting for ventilators or CPR, assumes solely that no breath equates to no life.
Barnard declares that, “most doctors know deep in their hearts that euthanasia is the right form of treatment for some terminally ill patients.” Barnard further muses that he“[W]ould have expected, for example, that those most opposed to it [passive euthanasia] would be Orthodox Jews.” However, he found out when he “conferred with Rabbi Immanuel Jakobovits” and “read his book on medical ethics” and concluded that “the Orthodox Jewish view accepts the legality of expediting the death of an incurably ill patient in acute agony by withholding such medicaments as would sustain his continued existence by ‘unnatural means.’” For Orthodoxy, “there is nothing opposed to passive euthanasia, merely agreement that no special treatment should be used to continue a life that is already at an end.” Barnard concludes that he is “struck by the fact… that euthanasia is more in keeping with religious teachings than it is with medical teaching.
Jakobovits recounts how on a visit to Cape Town, he had a fascinating discussion with Christiaan Bernard. The two were at loggerheads over the definition of death. Barnard was willing to condone almost any form of euthanasia. To which Jakobovits juxtaposes his own view:
The rule remains firmly fixed firmly to the extent that Jewish law cannot accept the concept of “clinical death”. So long as any spontaneous life action by the heart or lungs persists, even “irreversible brain damage” or a flat electro-encephalogram (EEG) reading does not legally establish death. Any action, even at that stage, which would precipitate the patient’s final demise is to be regarded as homicide and strictly condemned.
In principle Jakobovits accepts breathing and heart as the criteria for life, but he does not think that we should prolong artificially a life especially when there is great pain. For Jacobovits, goses means non-spontaneous and irrevocable so in such cases he allows passive euthanasia. In those cases, we let nature take its course.
So long as the heart still functions and the blood circulates, death has not yet set in. But this does not mean that a lingering life, especially when experiencing great pain, must be prolonged at all costs and in all circumstances. While one may not actively cause or hasten the onset of death, and no one may therefore never withhold normal and natural means to sustain life—such as food, drink, blood, or oxygen (or air)—one need not artificially prolong life…by administering antibiotics…to suppress infection. Thus, one may allow nature to take its course by withholding such treatment… There was, however, limitation of care to allow the heart to stop beating as soon as possible within the limits proposed by Jewish law. Invasive and non-invasive monitoring were stopped and antibiotic treatment was withdrawn. There was to be no resuscitation in the event of an arrhythmia, no endotracheal suction, and no renal support.
Such patients must be treated as live persons, though one need not apply artificial methods in hopeless cases at the terminal stage. In such cases, it may indeed be wrong to prolong the suffering by artificially maintaining lingering life. If resuscitation fails, the patient is considered as retroactively dead from the time breathing ceased.
So is this like Christiaan Barnard? Where are the similarities and differences beyond the obvious? I am not asking the halakhic debates of 2012, or am I asking about those rabbis who differ with Jakobovits. I am asking how similar or different are these two 1960’s authors? Thoughts? I have more and longer passages of Barnard available if it will help you pin down comparisons and contrasts.
It is difficult to address the question specifically, given how aware we are now of the internal contradictions contained in some of these statements and the presence of terms that require specific definition. For example, RIJ states that heart transplants are theoretically ok if the donor is dead. However, he then defines death in a way that, followed precisely, would make heart transplants impossible. He states “So long as the heart still functions and the blood circulates, death has not yet set in”. So you can’t remove a functioning heart. And then there is “this would be set aside in cases where competent medical opinion deems any prospects of resuscitation, however remote, at all”- so if the heart stopped and there is a possibility of restarting it, the patient is also not dead. So there is no circumstance where it is permissible to remove a heart that has the potential to function in another chest.
CB’s definition of death lacks precise definitions and also does not give a basis for his choices.
All that being said, CB adopts a position that today would be labelled ‘brain death’- making ‘spontaneous brain function’ the defining characteristic of human life. RIJ, similar to many poskim at the time(and some current ones), is vague as to the defining characteristic of human life. He lists breathing and circulation as (what appear to be incontravertible) signs that life is present, and in fact expands on the talmudic sources to include reversible situations as consistent with life. (It is sometimes useful to consider definitions of death as three parts: a statement of what is the definiing characteristic of human life, biological criteria for when that characteristic is absent, and tests that, when fulfilled, accurately classify the patient as being in the state identified in the second part- this was first described by James Bernat in 1981). So, while he rejects neurological function as the key characteristic of human life, he does not suggest an alternative.
I think one of the main differences in the approach to euthanasia is that RIJ’s justification for withholding care is to prevent further pain to the patient, it is patient centered. The calculation is benefit to the patient versus harm to the patient. CB focuses more on whether the life is worth preserving- not clear if it is from the patient’s point of view or the societal point of view, but there is a signficant utiltarian overlay that is absent from RIJ’s analysis. His question is: is this a life worth saving or spending resources on? So even though both allow withholding care under some circumstances, and maybe sometimes similar circumstances, the underlying values and concepts under consideration are very dissimilar.
(Robert Truog and Frank Miller have a very thought provoking discussion regarding whether moral justifications really have any impact on the appropriateness of actions- I can probably dig up the reference if anyone is interested)
I think that this is the article by Troug and Miller to which you refer.
To use your terminology of vagueness, RIJ was vague enough to be able to combine a reliance of Dayan Weiss (to whom RIJ turned for halakhic guidance) who rejected brain death with allowing passive euthanasia by only considering spontaneous respiration.
I read Barnard less as utilitarian and more as quality of life- similar to Ronald M Green. I also think that he would be, and was in practice, even more lenient than brain death.
Update- [a 2006 account of the surgery based on the testimony of Marius Barnard (the brother of head surgeon Christiaan Barnard and one of only three witnesses to the excision of donor Denise Darvall’s heart) reveals that the surgical team debated whether or not to wait for the Darvall’s heart to stop beating of its own accord (they did not), but suggests that they were not similarly concerned by Darvall’s continued “labored breathing”; see Donald McRae, Every Second Counts: The Race to Transplant the First Human Heart (New York: G. P. Putnam’s Sons, 2006), pp. 191-2. See also the account of Olivia Rose-Innes, daughter of Dr. Peter Rose-Innes, the neurosurgeon charged with diagnosing Darvall’s condition, who does not mention cessation of respiration as a necessary criterion for establishing brain death]
I agree that in his practice CB was not stringent in his criteria for death and was a quality of life person(see description of the second heart transplant by Raymond Hoffenberg in BMJ 2001 1478-80).
RIJ allows care to be withheld in patients who are alive according to all opinions. I am not sure what support he obtains or needs from Rav Weiss on this point.
To be more precise, there are at least two types of ‘vagueness’ that frequently appear in many definitions of death. One is illustrated by the quotes from RIJ’s position, where a specific characteristic of life is not clearly identified. The second type is where a clear and unequivocal statement is made, but the ramifications of the statement are not systemstically addressed- and therefore there is uncertainty in the application. For example, circulation is identified as the vital characteristic of human life, but the role of artificial hearts or transplants are not addressed.
I read “this would be set aside in cases where competent medical opinion deems any prospects of resuscitation, however remote, at all” not as referring to the heart, but to the “living person” as defined by Barnard (i.e. the brain). So yes, if you can’t transplant a heart that has stopped beating, heart transplants would not be an option in Judaism. But I may just be reading it all wrong.
Does Jewish tradition really consider it murder when you try to save someone’s life in a risky procedure but end up hastening his death???
If the first type of vagueness is due to a difficulty in the ostensive meaning.Your second form, in this case, is due to the lacuna of the text or the gap between the Talmud and current medicine.
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This was REALLY interesting! Thanks for finding it and posting it. Do you know if Rabbi Tendler made any statements about the first heart transplant in 1967 (he was certainly teaching at YU at the time).
Rabbi Tendler wrote in 1968 (Tradition, Vol.9, No. 4), accusing Dr. Christian Barnard of committing double murder.
In 1990, he explained his reasoning as due to the fact that at the time “Barnard was not only performing an experimental operation which hastened the death of his recipients, but also because he was dealing with donors who were cerebrally dead as opposed to brain dead. Cerebral death is not death according to Jewish law.”
Michael, What makes this interesting? And do you think it changes the time of death debate in any way?
I think what makes it interesting is that some of the same issues that were being debated more than 40 years ago are still being debated now. The big difference, in my opinion, is that today we have much more sophisticated medical equipment and tests to accurately determine brain stem function and respiration, and that if RIJ were alive today he would (like Rabbi Tendler) believe that this information conclusively prove that brain stem death is halachic death. I think RIJ wanted to believe this at the time, but the medical sophistication about brain stem death simply did not exist — and prevented him from articulating this position clearly.
Or you can say that this looks too much like Barnard and not enough like Yoma to count. Also RIJ was trying to produce an ethic not a halakhah. In addition, his guidance from Dayan Weiss was more about not prolonging a life and avoiding organ transplants.
Rav Tendler is echoing the position of Rav Moshe Feinstein at the time, who also described it as double murder. However, Dr. Fred Rosner, writing in 1970, stated that he had a personal interview with Rav Moshe and that if the donor was “absolutely and positively dead by all medical and Jewish legal criteria, then no murder of the donor would be involved and the removal of his heart or other organ to save another human life would be permitted.” Furthermore, “when medical science will have progressed to the point where cardiac transplantation becomes an accepted therapeutic procedure..then the recipient would no longer be considered murdered.” This also accords with Rav Daniel Reifman’s reading of Rav Moshe’s teshuvot(available on the RCA blog).
I think that the context of the opinions is very important. For over 10 years the medical literature had been describing patients with an absent neurological exam, absent blood flow to the brain, and silent EEG’s(prior to CT and MRI, these were the main options for obtaining data on brain function and anatomy while the patient was alive). In addition, pathology reports on these patients were reporting widespread liquifactive necrosis(brains turning to mush). These patients could be considered dead on two counts- loss of neurological function, and loss of circulation to the only organ that counted- the brain. In addition, patients in this situation did not survive for very long(hours to days). So if they weren’t totally dead they were irreversibly very close to dead(this inevitability was used by some as being the same as dead). This was the mindset that CB and the medical establishment were coming from.
RIJ’s starting point was the classic halachic definition of death(and the classic definition in society as well)- cessation of respiration and circulation(Rav Yehuda Aryeh d’Modena’s shita not being a commonly cited starting point). He recognizes that they have to be modified to some extent to cover modern medical achievements(stating that if the person can be resuscitated then the classic definitions dont apply), but it seems to me that the halachic sources had not been developed to fully address all that technology could offer. Similar to the secular medicolegal world, it took time and thinking to develop the basis for recognizing brain death as a halachically valid definition of death (and I would note that R. JD Bleich’s concept of vital motion was similarly absent early in the conversation until he introduced it.). (Dr. Rosner reviews a number of opinions from the 1960’s and it seems that they are all trying to find precedents to apply- similar to RIJ). It is to his credit that RIJ acknolwedged that modifications were necessary. I think Michael’s point is that if RIJ was familiar with the current discussions and scientific data, he would concur with R. Tendler or R. Steinberg.
I apologize for being lengthy but one note regarding the vagueness. The inability to be specific can cast doubt on the unequivocal statement. For example, one can state that death is the cessation of vital motion. However, if one cannot give an exact definition of vital motion, nor give specifics as to how it’s presence or absence can be ascertained, the adequacy of the definition can be questioned.
I don’t want to get back into the debates I’ve had on the topic. Instead it is worth pointing out that from the perspective of day-to-day medical practice/clinical bioethics/pastoral counseling the issues of futility, refusal and withdrawal of care is paramount, while the definition of death is a much rarer concern.
So while everyone seems to be aware of the major positions on brain death and organ donation, people are at a loss when it comes to the decisions that most of us will need to face at one time or another for ourselves or family members. It’s not as sexy as brain death and organ donation, but it is much more relevant. As is the case in society generally, what is sorely lacking is a Jewish discourse on the “good death” and its implications for end of life care.
AS- so how do you read this closeness of terms between RIJ and Barnard?
I imagine it has something to do with personal experience. Barnard as a doctor seeing many dying patients, and RIJ performing pastoral duties during his stints as a communal rabbi.