[Avodah] "Brain death" as a halachic criterion for death

[Saul Mashbaum]

In a previous posting, I wrote about an article on the subject of "brain
death" as a criterion
for halachic death:
 >>>
This long essay mentions that almost all poskim who oppose "brain death" as
a halachic criterion nevertheless say that it is permissible to accept an
organ which was harvested  on the basis of "brain death". One halachic
justification for this position, cited in the name of R Ahron Soloveitchik
is that the prohibition of being machzik ydei ovrei avera is nidche by
pikuach nefesh, based on Nedarim 22. See page 70 of the cited essay, note
192.
 >>

I would like to expand on the above proof from Nedarim 22.
The amora Ula was accompanied by two people  when travelling from Bavel To
EY.
At some point, one of them slashed the throat of the other! The murderer
then asked Ulla if this was okay with him. Ulla, apparently fearing for his
life, said yes, and even suggested that the murderer increase the incision
he made. When Ulla arrived in EY and related this incident to R. Yochanan,
expressing his fear that he acted improperly in expressing his approval for
a murder, R. Yochanan said his action was justifiable, since his life was in
danger.

This incident indicates that abetting a murder is permissible in a case
where not doing so puts one's life in danger. This is the essential position
taken by those who consider harvesting organs after "brain death" alone
murder, but permit use of such organs ex post facto.

There is a dispute among the rishonim at what point exactly Ulla expressed
his approval for what was done. The Meiri says it was after the attacked
person had died. The Rosh and the Ran, however, say that at the point when
Ulla suggested expanding the excision, the attacked person was still alive;
his death was deemed inevitable, however, and  expanding the incision would
merely hasten it.

According to the Meiri, it was precisely because the attacked person was
already dead that it was permissible for Ulla to acquiesce to the murder;
possibly, before the murder, expressing approval for a future murder would
be avizrayhu d'r'tzicha, which is *not* doche pikuach nefesh.
OTOH, the Rosh and Ran's position indicated that  expressing approval even
for a future murder is permissible, if not doing so puts one's life in
danger. The implications of this dispute for the case of organ removal and
transplant is obvious.

The permissibility of accepting organs from a "brain dead" donor is not
obvious. The article in question states:

>>

Rav Auerbach originally ruled so strongly against reliance on brain death
that he even prohibited receiving an organ from a brain dead patient, even
though the prospective recipient would die and there were other patients
ready and able to accept this organ in his place

>>

Saul Mashbaum
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.aishdas.org/pipermail/avodah-aishdas.org/attachments/20101117/090f8edc/attachment.htm>