SURVEY OF RECENT HALAI(HIC PERIODICAL LITERATURE · 2016-04-11 · the nature of risk which is halakhic- .. ally acceptable. There is an obvious tension be-tween the pertinent Talmudic

J. David Bleich

SURVEY OF RECENT HALAI(HIC

PERIODICAL LITERATURE

SMOKING

A pronouncement by the Seph-ardic Chief Rabbi of Tel Aviv, Rab-bi David Halevy, declaring cigar-ette smoking to be a violation ofJewish Law has received much pub-licity in the press and was reportedin the JTA Daily News Bulletin,November 28, 1976, and The NewYork Times, December 11, 1976,page 2. Rabbi Halevy is reportedto have ruled that the risk posed

by cigarette smoking renders this.act a violation of Deuteronomy4: 15 which bids man to preserve

his health and that offering a cig-arette to a friend is tantamount to"placing a stumbling block before

the blind" (Leviticus 19: 14). The

same opinion was expressed a num-ber of years ago by Rabbi MosesAberbach, "Smoking and the Ha-lakhah," TRADITION, Spring,1969, and by Dr. Fred Rosner in

"Cigarette Smoking and JewishLaw," included in his book, ModernMedicine and Jewish Law (NewYork, 1972). A similar view wasadvanced by Rabbi Nathan Drazin,"Halakhic Attitudes and Conclu-sions to the Drug Problem and itsRelationship to Cigarette Smok-

ing," Judaism and Drugs, ed. LeoLandman (New York, 1973).

In the opinion of this writer, itis not possible to sustain the argu-

ment that smoking, in addition tobeing foolhardy and dangerous, in-

volves an infraction of Halakhah

as well.

Halakhic strictures against pla-cing oneself in danger are not ap-plicable to the case at hand for tworeasons. The first argument is stat-ed by Rabbi MoseS" Feinstein, Ig-grot Mosheh, Y oreh De'ah, II, no.49. In a responsum which is but

seven and a half lines in length,Rabbi Feinstein peremptorily dis-misses the contention that smokingconstitutes a violation of Jewish

law. The answer serves to delineatethe nature of risk which is halakhic- ..ally acceptable.

There is an obvious tension be-

tween the pertinent Talmudic dictabearing upon actions which pose

a hazard to life or health. Shabbat32b declares, "A man should notplace himself in a place of danger."

Yet elsewhere, (Shabbat 129b andNiddah 31a as well as otherplaces), the Talmud cites the verse"The Lord preserves the simple"(Psalms 116:6) as granting sanc-tion to man to place his trust inDivine providence and to ignorepossible danger. The Gemara itselfdispels what would otherwise be anobvious contradiction by statingthat certain actions which containan element of danger are permittedsince "the multitude has trodden

thereupon."The concept embodied in this

dictum is not diffcult to fathom.

Wilfully to commit a daredevil act

121

TRADITION: A Journal of Orthodox Thought

while relying upon God's mercy inorder to be preserved from mis-fortune is an act of hubris. It issheer audacity for man to call uponGod to preserve him from calamitywhich man can himself avoid.Therefore, one may not place one-self in a position of recognizeddanger even if one deems oneselfto be a worthy and deserving bene-

ficiary of Divine guardianship. Nev-ertheless, it is universally recog-

nized that life is fraught with dan-ger. Crossing the street, riding in anautomobile, or even in a horse-drawn carriage for that matter, allinvolve a statistically significantdanger. It is, of course, inconceiv-

able that such ordinary activitiesbe denied to man. Such actions areindeed permissible since "the multi-tude has trodden thereupon," i.e.,since the attendant dangers are ac-

cepted with equanimity by societyat large. Since society is quite wil-ing to accept the element of riskinvolved, any individual is granted

dispensation to rely upon God who"preserves the simple." Under suchcircumstances the person who ig-nores the risk is not deemed to bepresumptuous in demanding an in-ordinate degree of Divine protec-

tion; on the contrary, he acts in themanner of the "simple" who poseno questions. An act which is notostentatious, which does not flauntsocietally accepted norms of be-havior and does not draw attentionto itself, is not regarded by Halak-hah as an unseemly demand forDivine protection. The risk in-volved may be assumed with im-punity, if the individual desires to

do so. Rabbi Feinstein states sim-ply that cigarette smoking falls

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within the category of permissible

activity. There is little doubt thatalthough the road is fraught withdanger it is-at least for the pre-

sent-indeed a path well trodden

by the multitude.

In the opinion of this writer, an-other argument permitting cigar-ette smoking in terms of Jewish lawmay be drawn from the discussionof R. Ya'akov Etlnger, BinyanZion, no, 137. Jewish law provides

that those who return safely froma sea journey or from a trip acrossthe desert must offer a korban (0-dah, a thanksgiving sacrifice. Thisoffering is brought in gratitude forhaving been delivered from danger.In our day, in the absence of the

sacrificial order, this deliverance isacknowledged in the public recita-tion of birkat ha-gomel which is abirkat hoda' ah, or blessing ofthanksgiving. In light of the recog-

nized danger inherent in such trav-el, Binyan Zion questions the per-missibilty of taking such journeys

in the first place. He responds bydrawing a distinction between animmediate danger and a potentialor future danger. Immediate dangermust be eschewed under all circum-stances; future danger may be as-sumed if, in the majority of cases,no harm wil occur. One who em-barks upon a sea voyage or caravanjourney is in no immediate danger,although at some point in his traveldanger may arise. Since, in the ma-jority of cases, no harm wil befallthe traveler, the risk of future dan-ger may be hazarded. It is for thisreason, asserts Binyan Zion, thatthe sages, invoking the verse. "The

Lord preserves the simple" rulethat a woman whose life may be

Survey of Recent Halakhic Periodical Literature

endangered by pregnancy is permit-ted to engage in normal coital re-lations without any restrictionswhatsoever. Justification for assum-ing the risks involved follows an,

identical line of reasoning: Inter-course itself poses no hazard. Thejeopardies of pregnancy lie in thefuture and may be assumed since,in the majority of cases posing suchrisks, no harm wil actually result.Cigarette smoking would appear tobe analogous to the cases ruledupon by Binyan Zion. No dangeris present at the time the act isperformed. The health hazardsposed by smoking lie in the future.To be sure, certain physiologicalchanges Occur immediately uponinhalation of cigarette smoke, butsuch changes assume clinical sig-nificance only when they developinto symptoms of smoking relatedilnesses. Since even in light of pre-sently available evidence it appearsthat the majority of smokers donot compromise their health anddo not face premature death as a

result of cigarette smoking there is,according to Binyan Zion's thesis,no halakhic reason to ban this ac-tivity.

To be sure, no one can conceiv-ably argue that smoking is a mitz-vah or worthy of encouragementon any other ground. In earlierperiods of Jewish history, the Sages

promulgated decrees against speci-fic hazardous actions which theydid not regard as biblically pro-scribed. For example, Tosafot,Beitzah 6a, describes the prohibi-tion against drinking uncoveredwater lest a snake had previously

partaken of the water andand deposited p'oisonous ven.

om therein as a davar she-he-min-yan, a specific rabbinic promulga-

tion. The hazards of cigarette smok-ing are quite probably greater thanthose of drinking uncovered water.

Had tobacco been known and hadsmoking been prevalent in daysgone by, the Sages of the Talmudmight well have deemed it wise toban smoking. In the absence ofbiblical grounds and in the absenceof such a rabbinical decree, eitherin the past or in the present, itcannot be maintained that smokingconstitutes a violation of Halakhah.Despite the technical inability ofcontemporary rabbinic authoritiesto promulgate formal takannot,binding in nature upon all of Israel,the extensive rabbinic powers ofmoral persuasion and exhortationmight well be harnessed in urging

the eradication of this pernicious

and damaging habit.

INDUCED LABOR

Sha'arei Halakhot, no. 9 (Adar5736), published by Yeshiva Bet

She'arim, contains an item dealing

with the propriety of induced laborcontributed by that institution'sRosh Yeshiva, Rabbi MenasheKlein.

Iii recent years it has become in-creasingly frequent for some ob-stetricians to recommend that laborbe induced by chemical means latein the ninth month of pregnancy.

The major advantage of inducedlabor is that it enables the physicianto plan in advance and to arrange

his schedule in order to be available

when needed. Delivery may beplanned to occur during hourswhich are convenient without dis-

123


rupting sleep or. recreation. Day-light delivery is also deemed to bemedically desirable because expertstaffs are available and are able towork at peak effciency. Moreover,should an emergency occur, otherspecialists and support personnelare more likely to be available dur-ing normal working hours than atother times. Rabbi Klein reportsthat some persons have advanced

a uniquely halakhic consideration

arguing for this practice; viz., a de-sire to obviate the occurrence of

childbirth on Shabbat, and the at-tendant violation of Sabbath regu-lations.

Rabbi Klein argues stronglyagainst this practice. His major con-tention is that Jewish law constrainsa person from placing his life injeopardy. Childbirth is viewed byHalakhah as posing an intrinsic riskto the life of the mother. This is

evidenced by provisions of Jewishlaw which mandate the suspensionof various ritual laws during thepost-partum period. Although thepregnant woman wil ultimately ex-perience the selfsame dangers of

childbirth upon the conclusion ofthe nine-month period of gestation,Rabbi Klein argues that the prohi-bition against placïng one's life indanger includes a constraint againstpreponing even an otherwise un-avoidable hazard. Moreover, thereis no obligation to intervene in

natural processes in an artificialmanner in order to avoid violationof Shabbat laws following child-birth. Rabbi Klein also marshalls

aggadic and kabbalistic sources in-dicating that the entire nine-monthperiod spent by the fetus in themother's womb is beneficial to the

124

subsequent physical and mental de-velopment of the child. The Ge-mara, N iddah 30b, teaches that thechild is taught the Torah in its en-tirety while in the mother's wombbut is caused by an angel to forgetwhat it has learned before parturi-tion. Foreshortening this experi-

ence, argues Rabbi Klein, is cer-tainly not to the benefit of the

child.There is, indeed, medical evi-

dence indicating that induced laborposes hazards for the child. The

drugs administered in inducing la-bor can lead to an increase in fetalmorbidity during labor and afterdelivery. Then, too, there is theeverpresent possibilty of an error

in the dating of gestation which

may result in a premature birthleading to death or irreparable dam-age in the neonatal period. Themedical journal, Lancet, November16, 1974, pp. 1183-84, featured an

editorial severely critical of induc-tion of labor for reasons of con-

venience and labelled such proced-ure a pernicious practice. The med-ical argument for daylight deliveryis also challenged in this editoriaL.Evidence is cited which demon-strates that, oddly, fetal complica-

tions, as judged by the need for in-cubation or oxygen administration,may be more còmmon during theday than during the night.

These considerations apply a for-tiori to delivery by Caesarian sec-tion when not indicated on medicalgrounds. Recent reports indicatethat in some South American coun-tries this procedure is preferred

over natural childbl1th Hl. cetainstata of society simply on the basisof cosmetic considerations since


pregnancy terminated by Caesarian

section leaves virtually no effectupon the feminine figure. From thehalakhic point of view, such frivo-lous considerations certainly do notjustify the increased risk associated

with this surgical procedure. More-over, the surgical incision, when nottherapeutically indicated, consti-

tutes an assault upon the body andis forbidden as an act of "wound-

ing" (chavalah).

It is, however, perfectly clear

that when medically indicated thereis no restriction upon either inducedlabor or performance of a Caesar-

ian section. The assumption of therisks involved in these procedures

is clearly warranted in order toavoid other risks which are greaterin nature. Labor may therefore beinduced or speeded if noninterven-tion would result in greater risk.

ENTEBBE

The phenomenal rescue by Is-raeli commandos of hostages heldby terrorists at the Entebbe airportwas greeted by waves of joy andexuberance. The operation waswidely heralded as a meticulously

planned and miraculously executed

tactical feat. Jews, in particular,

saw in the success of the operationthe handiwork of Divine provi-dence.

Yet, in some limited circles, theEntebbe operation was seen in acompletely different light. Somepersons influenced by N eturei Kar-ta ideology denied that soldiers ofa secularist Jewish state could pos-sibly be agents of Divine provi-dence. The Central Conference ofOrthodox Rabbis, known as the

Hitachdut ha-Rabbanim, issued aformal declaration dated 15 Ab5736 expressing criticism of the op-eration and of the acclaim show-

ered upon the Israeli forces. Thisstatement has been widely, although

probably erroneously, understood

as implying that in this and similarsituations it is forbidden to organ-ize rescue missions which utilzethe services of those who denyProvidence but rather proclaim thattheir success is achieved by virtue

of their own prowess through "myown power and the strength of myhand." The text of this statementwas published in the weekly news-

paper which serves as the organ ofthe Satmar community, Der Yid,Aug. 20, 1976.

In response Rabbi MenachemMendel Schneerson, the Lubavitch-er Rebbe, pointed out that, if un-derstood in this manner, this psak

would lead to the absurd conclusionthat it is forbidden to avail oneself

of the medical ministration of a

physician who is a non-believer.

Rabbi Schneerson, noting that fur-ther hijackings remain a distinctpossibilty, issued a call to all rab-binic authorities to state their posi.tion with regard to this matter so

that the Torah community mightknow how to react in the future.Subsequently, the Yiddish-reading

public was treated to the bizarre

spectacle of rabbinic piskei din ap-

pearing, apparently as paid adver-

tisements, in successive issues of

Der Allgemeiner Journal dated No-vember 5, November 12 and No-vember 26, 1976.

The ideological aspects of thismatter are beyond the scope of thisDepartment. The rabbinic opinions

125


which have appeared do, however,

raise one issue which involves apurely technic'al question of Ha-lakhah, having nothing at all to dowith the theological question of

whether or not secularists may beemployed as agents through whomprovidential guardianship is exer-

cised. Each of the published rabbinicopinions not only confirms Rabbi

Schneerson's position but states thatin the event that any of the rescuedhostages should ever return to theEntebbe airport where the rescue

occurred that person is obligated

to pronounce the benediction"Blessed is He who performed amiracle on my behalf at this place."A similar blessing, "Blessed is Hewho performed a miracle, on behalfof my father in this place," mustalso be recited by children of thosehostages who visit the site of theirparents' deliverance. It appears to

this writer that the question of thenecessity and, indeed, the permissi-

bilty, of pronouncing such a bene-

diction is far from a setted issue.

The formula of the blessing "whohas performed a miracle on my be-half" indicates that only an event

which is miraculous in nature oc-casions such a benediction. A bless-ing pronounced other than in thecontext decreed by Jewish law con-

stitutes a brachah le-vatalah-animpermissible invocation of the Di-

vine Name. Providential deliver-ance from danger does occasion abirkat ha-gomel, a blessing ofthanksgiving upon such deliverance.The blessing "who has bestowedupon me all manner of benefi-cence," is pronounced on a singleoccasion following deliverance fromdanger, but is not associated with

126

the site of deliverance and is not

repeated each time one visits thesite of former danger. It is only amiraculous deliverance which occa-sions repeated blessings at the timeof each subsequent return to thesite of the miracle.

The crucial question is this: Howis the term "miracle" to be defined?The notion of a miracle, in so faras halakhic ramifications of such

phenomena are concerned, is dis-cussed by Rabbi Zvi Hirsch Chajes

in his Darkei Mosheh, published inKol Sifrei Maharitz Chajes (Jeru-salem 57 i 8), I, 460-461. In this

work, Rabbi Chajes is concerned

with the conditions requiring the

promulgation of the recitation ofhallel as a commemoration of Di-vine beneficence. Rabbi Chajes de-clares that hallel which is ordainedfor this purpose must commemoratea miracle performed on behalf ofthe entire community of Israel andfurther defines a miracle as an actinvolving the suspension of causal

laws governing the natural order.Events that occur in accordancewith the laws of nature, no matter

how fortuitous they may be, arenot miraculous; a miracle, by defini-tion, involves a change in "the orderof creation."

As evidence that hallel is or-dained to commemorate only a mir-aculous beneficence, Rabbi Chajescites the discussion recounted in theGemara, Shabbat 22b, concerningthe hallel of Chanukah. The Ge-mara queries, "What is Chanukah?"and proceeds to narrate the histor-ical miracle of the cruse of oiL.The narrative concludes with thestatement that the eight-day period

of Chanukah was subsequently or-


dained as a period of hallel andthanksgiving in commemoration ofthis wonder. Conspicuously absentin this discussion is any reference

to the glorious miltary victory of

the Hasmoneans over the Greekforces which vastly outnumberedthem. Rashi, obviously seeking toexplain this glaring omission, com-ments that the query, "What isChanukah?" must be understood asmeaning "LIn commemoration J ofwhich miracle was it ordained?"

The ensuing discussion must thenbe understood as establishing a ha-lakhic justification for the recitationof hallel. It is thus apparent fromthe discussion that it is the miracleof the oil which justifies commemo-rative recitation of hallel, whereasthe miracle of the miltary victorydoes not. The reason, explains M a-haritz Chajes, is that the miltary

victory, amazing as it was, wasachieved entirely in accordance withthe laws of nature and did not inany way involve a suspension of the"order of creation." In contradis-

tinction, the miracle of the cruse ofoil clearly did involve a suspensionof the natural order.

The implication of this thesiswith regard to the question of reci-tation of hallel on Yom ha-A tz-

ma'ut is obvious. Rabbi Moshe ZviNeriah, in an article which ap-

peared in Ha-Torah ve-ha-Medinah,V, 228-240, and was reprinted byNachum Rokover, HilkhotYomha-Atzma'ut ve-Yom Yerushalayim,pp. 182-197, while stating that, be-cause of other considerations, hallelshould not he reciten on Y nm. ha-

Atzma'ut, nevertheless argues thatthe definition of the term "miracle"advanced by Maharitz Chajes is too

restrictive, particularly in so far asthe recitation of hallel is concerned.Among the questions which heraises is the propriety of the recita-tion on Purim of the blessing "whohas performed miracles for ourfathers in those days at this season."The events recorded in the Book ofEsther, argues Rabbi Neriah, whileundoubtedly the product of Divine

guardianship and deliverance ratherthan fortuitous coincidence, never-

theless do not reflect a suspension

of natural law.

In point of fact, this question wasraised many centuries ago by Avud-raham. In his resolution of thisproblem, A vudraham appears tostate that Ahasuerus did not exer-cise free wil in complying with therequests of Esther and that thepopulace, in not fulfillng the de-cree to which the royal seal hadbeen affed ordering them to riseagainst the Jews, were similarlydeprived of the abilty to exercise

freedom of wil. Deprivation of freewil is viewed by A vudraham as anact of intervention in the natural

order and as tantamount to suspen-

sion of a fundamental law of na.ture. (See Rambam, ShemonahPerakim, chapter 8, Mishneh Tor-ah, Hilkhot Teshuvah 6:3.J Thevery fact that A vudraham posesthis question demonstrates that hedefined the term "miracle" in muchthe same manner as does M aharitzChajes.

Insofar as the blessing "whohas performed a miracle on my be-

half" is concerned, ShulchanArukh, Ol'((ch Cha)'yim 218:9, re-cords. two conflicting opinions. Thefirst view asserts that this blessing isto be pronounced only in the event

127


of a miracle which is "yotzei me-

minhag ha-olam," Le., an eventwhich cannot possibly be regardedas "natural." Lest this term be mis-understood, Mishneh Berurah de-fines the phrase by means of instan-tiation and cites the Gemara's ex-

ample of a person lost in a desertwho is saved from death by miracu-lous gushing of water from thesand. Bi'ur Halakhah defines theterm even more explicitly as anevent which "transcends the way ofnature such as the miracles (whichbefell) our forefathers." A second,differing view is cited by ShulchanA rukh and rejected. The latter viewdoes not require that the event in-volve the suspension of naturallaw. Magen Avraham 218: 12, com-menting on this dissenting view,questions its source and states thathe could find no authority who ad-vances such a position. He furtherremarks with amazement, "Certain.ly with regard to (that which oc-

curs in accordance with) the cus-

tom of the world and its nature onecannot recite the blessing 'who has

performed miracles on my behalf'!"Rabbi Elijah of Vilna, Bi'ur ha-Gra, ad locum, refutes this posi-tion by means of a reductio ad ab-surdum: It would follow that, ac-cording to this opinion, every wom-an who has experienced childbirthshould recite this blessing upon vis-iting the site at which her child

was delivered and that a similarblessing should be recited by herprogeny throughout all subsequentgenerl'tions! These. l'iithoriti~s l'11agree that providential events oc-

curring through the medium ofnatural phenomena do not occasionthe blessings associated with "mir-

128

acles."It is astonishing that, with a

single exception, the various piskeidin published in Der Allgemeiner

Journal make no mention of thedefinitive ruling of Shulchan Arukhor of later authorities regarding thedefinition of a miracle. Allusion tothis question is made in only onestatement, that issued by the ven-erable Rabbi Shlomo Y osef Zevinand his colleagues within the Cha-

bad movement in IsraeL. It is, to besure, unthinkable that this renownedencyclopedist would have over-looked this point. Rabbi Zevin's

psak din contains a statement inparentheses indicating that it is

signed by persons who accept asbinding the opinions codified in theShulchan Arukh ha-Rav, and re-fers specifically to the ruling whichappears in an appendix to the firstvolume of the Shulchan Arukh ha-Rav, "Seder Birkat ha-Nehenin,"

chap. 13. (Shulchan Arukh ha-Ravis a halakhic compendium authoredby R. Shneur Zalman of Liadi, thefounder of the Lubavitch dynasty.)

This authority rules in accordance

with the second opinion recorded

in Shulchan Arukh, namely, theview which deems an extraordinaryor fortuitous dèliverance from im-pending disaster as constituting a"miracle." However, as noted earli-er, this view is rejected by the Shul-chan A rukh and by other later au-thorities.

With Rabbi Zevin's elucidationthe matter may be placed in properperspective. Any follower of theChabad movement, Or one whoconsistently follows the opinions ofShulchan Arukh ha-Rav, who mayhave been among the hostages in


Entebbe, or whose parent or grand-parent may have been among thehostages, may, of course, follow theruling of Shulchan Arukh ha-Ravin this matter as well. Others wouldfind it diffcult to follow an opinionspecifically rejected by the authorof Shulchan Arukh and by the vastmajority of later authorities includ-ing Magen Avraham, Rabbi Elijahof Vilna and Mishneh Berurah.

There is no question that thosereleased from Entebbe are obli-gated to pronounce birkat ha-gomelas an expression of thanksgiving fortheir deliverance. Among those re-quired to recite this blessing are

those who have been imprisonedand threatened with execution. Thereleased hostages are clearly in thatcategory.

Rabbi Ovadiah Yosef, the Seph-ardic Chief Rabbi of Israel, in acontribution which appears in theElul 5736 issue of Or Torah, ques-

tions whether a similar blessingmay be pronounced by relativesand close friends of the hostages.

Bet Yosef, Orach Chayyim 219,cites the 'Opinion of Rashba whomaintains that the blessing may bepronounced vicariously only by astudent (or son) upon the deliver-ance of his master (or parent) fromdanger, but not by other relativesor friends. Rema, Orach Chayyim219: 4, disagrees, as apparently doesShulchan Arukh, and rules that thisblessing may be recited by any in-dividual who genuinely shares inthe feeling of exhilaration andthanksgiving.

The late Brisker Rav found sup-port for this opinion in the utter-ance of Jethro, "Blessed be the

Lord, who has delivered you out of

the hands of the Egyptians and outof the hands of Pharaoh, and has

delivered the people from underthe hand of the Egyptians" (Exo~dus 18: 10). This declaration, re-marked the Brisker Rav was tanta-mount to the birkat ha-gomel andwas pronounced by Jethro upon thedeliverance of Israel, a deliverance

in which he himself did not per-sonally share. Scripture carefullyrecords, "And Jethro rejoiced forall the goodness which the Lord haddone to Israel" (Exodus 18: 9), in-dicating that the blessing can bepronounced by others not personal-ly affected by the event only if theblessing is occasioned by genuinejubilation as demanded by Remaand as explained by T az, Orach

Chayyim 219:3.However, in light .of the contro-

versy beiween Bet Yosef and Rema,Rabbi Ovadiah Y osef invokes thehalakhic principle which provides

that in the presence of doubt ablessing is not to be recited and

rules against pronouncement of theblessing by relatives and friends ofthe hostages. This is also the decis-ion of Mishneh Berurah 219: 18.

Nevertheless, Rabbi Y osef opines

that friends and relatives may re-cite the shehechiyanu blessing if

they have not seen the hostage for

a period of thirty days. Indeed,

Shulchan Arukh provides that thisblessing may be recited by any per-son who is overjoyed at seeing afriend or relative following an ab-sence of thirty days. Birkei Y osef

225: 3 indicates that this usagc haslargely lapsed in an age of rapid andeffcient communications. Undersuch conditions "no news is goodnews" and the joy of being reunited

129


after an absence is not as great asit was in earlier times. However,

argues Rabbi Yosef, absence underconditions of danger such as ex-

perienced by the hostages in Enteb-

be certainly warrants recitation ofthe shehechiyanu by those who sin-cerely rejoice at being reunited withtheir loved ones.

May the Redeemer of Israel everpreserve His people from tyranny

and oppression and may He hastenthe ultmate Redemption speedily

in our days.

TIME OF DEATH LEGISLA nON

Various states have enacted legis-lation supplanting the classical defi-nition of death with more flexiblecriteria. The new statutes are de~signed to establish "brain death"

as the legal criterion of the termina-tion of life. In particular, the 1975-1976 legislative session saw at-tempts to pass a law in the State

of New York establishing a newlegal definition of death embodyingthe criteria of "brain death." Al-though the bil was not passed dur-

ing the 1976 session of the legisla-ture due to the hectic atmosphere

of the closing days of the legis~

tive session, the bil was reintro-duced in 1977 and wil undoubted-ly be reintroduced in future ses-

sions. This activity has led to thereopening of discussion concerning

a precise definition of the time ofdeath according to Jewish law.Some sectors of the Jewish com-munity are particularly alarmed be-cause of the possible violation ofthe religious and civil liberties ofJews who deem action compatiblewith the provisions of the proposed

130

legislation to be tantamount tohomicide according to Jewish law.

In the spring of 1976, a short

statement authored by Rabbi MosesFeinstein, dated 5 Iyar 5736, deal-ing with criteria of death accordingto Jewish law was circulated by theRephael Society, the medical sec-tion of the Association of OrthodoxJewish Scientists. Accompanyingthis document was a statement byRabbi Moses Tendler going some-what beyond the position of RabbiFeinstein. An article by this review-er espousing a view at variance withthat expressed in those statements

appears in the Tevet 5737 issue ofHa-Pardes. A position similar inits essential points to that of thiswriter was presented by Rabbi Aar-on Soloveitchik in the course of a

public lecture, the second annualHarold Rosenbaum Memorial Lec-ture, held at Yeshiva University onNovember 18, 1973, under thesponsorship of the Rephael Society

of the Association of Orthodox Jew-ish Scientists. Regrettably, a trans-cript of the lecture has as yet notbeen published; the discourse is,however available on cassettes.,

Rabbi Feinstein points to the factthat the traditionally accepted cri-

terion of death is the total absence

of respiration. The crucial questionis whether a patient maintained ona respirator may be deemed deadeven though other vital signs maybe present. Rabbi Feinstein opines

that total irreversible cessation of

independent respiratory activity issuffcient to establish that death

has occurred. The practical problemis that of determining that total

cessation of independent respira-tion has indeed occurred. Even


though the patient is maintained onan articial respirator, it is quitepossible that at least minimal res-

piration would be possible without

the aid of a respirator. If the pa-tient is capable of even minimal

breathing, Rabbi Feinstein declaresthat it is mandatory to provide

every possible mechanical assist-ance and it is, accordingly, forbid-den to remc"';¡e the respirator. Inusual medical practice it is not un-common to remove or turn off therespirator in order to determine

whether or not the patient retainsany respiratory potentiaL. RabbiFeinstein refuses to sanction thispractice since it may cause the de-mise of a weakened patient capableof some minimal respiration but re-quiring the assistance of a mechan-ical respirator in order to sustain

life.Rabbi Feinstein states, however,

that once the respirator has been

turned off for any reason, the res-pirator may be withheld and thepatient monitored for signs ofbreathing. If the patient is carefullyobserved for a period of approxi-

mately fifteen minutes during whichtime absolutely no breathing motionis manifest, the patient, in Rabbi

Feinstein's opinion, may be pro-nounced dead. If, however, anysigns of independent breathing, no

matter how feeble, are perceived,the respirator must be reactivated.(The basis for establishing a fifteen-minute monitoring period is notreadily apparent. Support for a peri-od of twenty minutes, thirty min-utes Or une huur may be found inearlier sources. See "Establishing

Criteria of Death," TRADITION,Winter, 1973, p. 97 and p. 111,

n. 15.)

Rabbi Feinstein adds that thisprocedure may be followed only inthe case of a patient suffering froma lingering and debiltating ilness.Absence of respiration may not beaccepted as conclusive evidence ofdeath in cases of accident or trau-

matic injury or in cases of drug-

induced coma since in such casescessation of respiration may be re~versible. Accordingly, in such casesthe respirator must be immediatelyrestored even if it becomes discon-nected. In the case of a traumatic

injury, Rabbi Feinstein states thattotal. cessation of independent res-piration may be relied upon as anindication that death has occurred

only if it can also be determined

by means of radioisotope scanningtechniques that cessation of circula-tion of blood has taken place. If,however, it is found that bloodcontinues to flow to the brain, thepatient should be considered to be

alive despite the absence of othervital signs. In the case of patients

who have ingested toxic substancessuch as sleeping tablets or otherdrugs no determination of deathcan be made on the basis of absenceof spontaneous respiration untiblood tests reveal that toxic sub-

stances have been eliminated fromthe body.

Rabbi Feinstein's position pre-sents a number of diffculties:

1) His statement appears to con~

tradict his previously held opinion

as expressed in Iggrot Mosheh, Yo-reh De'ah, II, no. 146. The Mish-

nah, Yevamot 121a, records an in-cident related by R. Meir concern~

ing an individual who fell into awell and emerged some three days

131


later. In explaining this phenomen-on, Rashi comments, "R. .Meir isof the opinion that a person may

live and remain in water for oneor two days." Although his explana-tion is at variance with commonlyaccepted scientific postulates, Rab-bi Feinstein understands this inci-dent as demonstrating that in somerare instances a person may survivefor at least a limited period of

time even without breathing. In thesame responsum he asserts that lifemay be present even in the absenceof both perceivable respiratory and

cardiac activity and, accordingly, a

patient should not be pronounceddead if there are clinical indicationsof the presence of any vital forces.

2) Rabbi Feinstein states that al-though a patient incapable of spon-taneous respiratory activity neednot be placed on the respirator, thepatient may not be removed fromthe respirator for purposes of de-

termining that he indeed cannot

breathe spontaneously. Rabbi Fein-stein gives no reason for this dis-tinction. Rabbi Tendler, however,indicates that removal of the res-pirator may induce physiologicalstress of a nature which can readilyhasten the demise of a respiratorpatient. If this is indeed the reason-ing underlying Rabbi Feinstein'sstatement, it is diffcult to under-

stand why the patient who has beensubjected to such stress in discon-necting him from the respirator forpurposes of suction, or for purposesof servicing the respirator, should

not be immediately replaced on the

respirator. The physiological stress

which may hasten death is the re-sult of human action; the personperforming the action is certainly

132

obligated to do everything possible

to mitigate the potentially fatal re-sult of the action for which he bearsresponsibilty. To cite a parallel inanother area of Jewish law, cook-

ing on Shabbat is a culpable offenseonly if the food is heated to a spe-

cified temperature. A person whoplaces a pot of water on the stove

on Shabbat is surely obligated toremove the pot before it cooks inorder to absolve himself of culp-

abilty. It would appear that the

person disconnecting the respirator-even if he does so for the benefitof the patient or for purposes of

servicing the respirator-is likewise

obligated to rectify as far as pos-

sible any physiological stress causedthe patient through his action.

One other point should be noted.Although the opinion is far fromunanimous, Rabbi Feinstein, IggrotMosheh, Yoreh De'ah, II, no. 174,has ruled that according to Rema,

Yoreh De'ah 339: 1, it is not neces-sary to prolong the life of a goses.Nevertheless, overt intervention forthe purpose of hastening death isstrictly forbidden. A distinction isdrawn between passive noninterven-tion and active intervention. Re-

moval of a respirator is regarded asan overt act by most contemporaryauthorities whereas not returningthe patient to the respirator is pass-

ive in nature. If not only medica-

ments but also oxygen need not be

administered to a goses, it would

follow that a goses need not be at-tached to a respirator. This con-sideration is, however, germane on-ly in the case of a patient actually

in a state of gesisah.

3) Rabbi Feinstein, in this state-ment, as opposed to his responsum


in Iggrot M osheh, does not take

cognizance of spontaneous cardiacactivity as an indication of life.This appears to be contradicted by

Chatam Soler, Y oreh De'ah, no.338, and Chakham Zevi, no, 77.This point wil be developed more

fully in the ensuing discussion.

Rabbi Feinstein is firm in hisopinion that the irreversible cessa-tion of spontaneous respiration ishalakhically both a necessary and

suffcient condition of death. Radio-isotope scanning in. cases of trau~matic accident is required by himonly as confirmatory evidence ofthe irreversible nature of respira-

tory cessation. In oral communica-tions Rabbi Feinstein has repeated-

ly stated that he, in no way, is pre-pared to accept any form of "brain

death" as compatible with the pro-visions of Halakhah, a positionwhich is formulated explicitly andunequivocally in Iggrot Mosheh,Yoreh De'ah, II, no. 146.

Moreover, it should be noted thatthe practical effects of Rabbi Fein-stein's position, as expressed in thisstatement, are extremely limited.Modern-day respirators are notprone to malfunctions and neednot be disconnected for servicing.While respirators are indeed fre-quently turned off for short inter-vals, this is done not as a inatterof medical or mechanical necessitybut to determine whether or notthe patient is capable of independ-ent respiration or in order to facil-tate suctioning. The latter mayreadily be accomplished without

turning off the respirator. Scrupu-

lous observance of the injunctionagainst unnecessarily disconnecting

the respirator would, to a very

large extent, preclude utilization ofRabbi Feinstein's criterion of death.

Rabbi Tendler is prepared, atleast hypothetically, to accept addi-tional criteria as well. Rabbi Tend-ler states, ". . . if blood flow studiesare refined suffciently to give fullconfidence in their results, evidencethat the region of, the medulla. is

not being profused would in myopinion be a fully valid indicationthat death had occurred." In the

absence of reliable blood flow tests,Rabbi Tendler endorses the criteriaset forth by the Ad Hoc Committeeof the Harvard Medical SchooL. TheHarvard Committee seeks to defineirreversible coma as a criterion ofdeath. The Harvard recommenda-tions serve to establish operational

criteria for determination of thecharacteristics of a permanentlynon-functional brain, or what is re-ferred to coloquially as "braindeath." The recommended criteriaare: 1) lack of response to exter-

nal stimuli or internal need; 2) ab-sence of movement or breathingas observed by physicians over aperiod of at least one hour; 3) ab-

sence of elicitable reflexes. A fourthcriterion, a flat or isoelectric elec-

troencephalogram is recommendedas being "of great confirmatory

value" but not of absolute necessity.

The procedure. advocated by theHarvard Committee calls for repe-tition of the relevant tests following.

a lapse of twenty-four hours.

This writer, Ha-Pardes, Tevet5737, addresses himself to the clari-fication of two questions uponwhich are contingent the accept-abilty of currently proposed èri-

teria: 1 ) Is there any form of"brain death" which conforms to

133


halakhic criteria of death? 2) Is theabsence of spontaneous respirationa suffcient criterion of death in thepresence of ongoing cardiac activ-ity?

1) A discussion of the compatibil-ity of the criterion of brain death

with the provisions of Jewish Lawwas first presented in the Tishri5731 issue of Ha-Darom by RabbiGedalIa Rabinowitz and Dr. M.Koenigsberg. The authors predi-cated their argument upon theMishnah, Oholot 1: 6: "And like-wise cattle and wild beasts . . . iftheir heads have. been severed, theyare unclean (as carcasses) even ifthey move convulsively like the tailof a newt (or lizard) that twitches

spasmodically (after being cut off).Rabbi Rabinowitz and Dr. Koenigs-

berg argue that "brain death" is tobe equated with decapitation whichthe Mishnah accepts as synony-mous with death. This position wassharply opposed by Dr. Ya'akovLevy, an Israeli physician who haswritten extensively on topics ofmedical Halakhah, in a letter whichappeared in the Nisan 5731 issueof Ha-Darom as well as in articlesin the Tishri 5730 and Nisan 5732issues of H a-M a' ayan.

This writer, Ha-Pardes, Tevet5737, has argued that. the currently

proposed criteria difer significant-ly from decapitation as described

in the Mishnah. Decapitation in'-volves destruction of the entirebrain. It might be argued with co-gency that total cessation of circu-lation of blood to the brain wilresult in destruction of brain tissue.Total destruction of the brain mightthen be equated with decapitation,and the patient pronounced dead

134

after total destruction has occurred.(Cellular decay or destruction oftissue is indeed viewed as tanta-mount to excision and removal byRabbi Chaim of Volozin, Chut ha-Meshulash, no. 11, section 3; BetEphraim, Even ha-Ezer, no. 2, p.

10; Chatam Sofer, Even ha-Ezer,nos. 17 and 19; Rabbi YitzchakElchanan Specktor, Ein yitzchak,Even ha-Ezer, no. 9, sections 15-17; and Shem Aryeh, no. 6. Theseauthorities base thtmselves uponYam she1 Sh1omoh, Yevamot 8: 9,who develops this thesis in inter-preting the position of Rambam,Isurei Bi'ah 16:9. Cf. also Ram-barn, H ilchot Schechitah 7: 15, andDagul me-Revavah Tinyana, Y orehDe'ah, 48:5. This view is; however,dispUTed by Rabbi Yeruchem Yehu-dah Perilman, Or G ado 1, no. 3, p.32a, who dismisses Maharshal's po.sition and the position of those whofollow him as a sevarat ha-keres,an unsubstantiated visceral hypothe-sis devoid of basis in rabbinicsources. Total lysis, involving liqui-fication of the brain tissue may,

however, be tantamount to decapi-tation even according to Or Gadol.). However, in point of fact, there

is at present no clinical method ofdetermining that total destruction

of brain tissue has occurred. Radio-isotope techniques, when and if suf-ficiently refined, may be employedonly to determine that profusion

of the brain has ceased. Cellular

decay of the brain does indeed com-mence upon cessation of blood flowbut requires an indeterminate peri.od of. time to become complete.

Cessation of circulation to the braincannot, in itself, be equated withtotal cellular destruction of the


brain.Moreover, radioisotope scanning

techniques cannot, in their currentstate of refinement, be utilized inorder to determine that even pro-

fusion of the brain has totallyceased. Investigators responsible forthe development of these techniquesclaim only that such methods maybe used to indicate cessation ofcirculation to the cerebrum, whichis the seat of the so-called "higher

functions" of the human organismand are careful to describe the phe-nomena which they report as "cere-bral death" rather than as "brain

death." (See P. Braunstein et al.,"A Simple Bedside Evaluation forCerebral Blood Flow in the Studyof Cerebral Death," The AmericanJournal of Roentegenology, Radi-

um Therapy and Nuclear Medicine,VoL. CXVIII, no. 4, August 1973,

pp. 757-767 and Julius Kolrein etal., "Radioisotopes Bolus Techniqueas a Test to Detect Circulatory Defi-cit Associated with CerebralDeath," Circulation, Vol. 51, May1975, pp. 924-939.) These phenom-ena are entirely compatible withcontinued circulation and profu-sion of the medulla and the brain

stem. In fact, radioisotope tech-

niques do not even demonstratetotal cessation of circulation to thecerebrum, but only that effectivecirculation has decreased below thelevel necessary to maintain its in-tegrity. Even if scanning methodscurrently used are accurate, they

do not indicate that all circulationto even a part of the brain, i.e., thecerebrum, has been interrupted, butonly that the rate of flow is belowthat necessary to maintain viabilty.Thus, in a sumniary or findings

which forms part of a recènt study,these techniques are described as

"indicative of significant circula-tory deficit to the cerebrum" (Kor-ein, p. 924).

The Harvard criteria are evenless satisfactory than blood flowtests as halakhic criteria for estab-

lishing that cellular decay óf thebrain has taken place. The Harvardcriteria serve to establish only thedysfunction of a limited part of thebrain; they do not constitute evi-dence that even a portion of thebrain has been destroyed. Oholot

1 : 6 can be cited only to substanti~ate an argument that destructionof the entire brain is tantamount

to death.

2) This writer's article contains acitation of sources which demon-strate that the absence of spon-

taneous respiration cannot beviewed as a criterion of death inthe presence of spontaneous cardiacactivity. Chatam Sofer, YorehDe'ah, no. 338, states that a pa-tient may be pronounced dead onlyif three criteria are manifest: 1 )the patient lies as an "inanimate

stone"; 2) no pulse beat is discern-ible; and 3) respiration has ceased.Chatam Soter adds the forcefulstatement: "These are three clinicalsymptoms of death which have beentransmitted to us from the time thatthe nation of God became a holypeople. All the forces in the uni-

verse wil not cause us to deviate

from the position of our HolyTorah."

It is clear that Chatam Sofer re-fuses to accept absence of spontan-eous respiration as an indication ofdeath unless accompanied by bothtotal absence of movement and ab-

135


sence of heartbeat as evidenced bypulsation. Chatam Sofer's positionis readily deducible from the com-ments of Rashi, Y oma 85a, who,in his comments upon the stated,requirement for an examination of

the nostrils in order to determine

that cessation of respiration has oc-curred, remarks that such examina-

tion is to be made if the person is"like a corpse which does not moveits limbs." The clear implication

of this statement is that, in the

presence of such movement, ab-sence of respiration is not a deter-

mining criterion of death.Rashi's position may, in turn, be

inferred from the Mishnah, Oholot1: 6. Were it to be the case thatabsence of respiration is, in allcases, in and of itself, a fully reli-able criterion of death the clarifi-catory clause, "even if they moveconvulsively like the tail of a newtthat twitches spasmodically" whichserves to establish a novel halakhiccategory, viz., pirkus or convulsivemovement, would be totally super-fluous. It is manifestly evident thatfollowing decapitation there can beno respiration. At the very most theMishnah need but have stated "evenif they move convulsively they areunclean (as carcasses J because res-piration has ceased." It is evident

that the Mishnah seeks to differen-tiate between two types of move-ment; movement which is devoidof vital significance, and movementwhich is indicative of life. The re-sidual movement of a decapitatedperson or animal is described as amere spasm and hence not indica-tive of life; the inference being thatother forms of movement are in-deed indicative that life is stili pre-

136

sent. Since muscular movement is,under ordinary circumstances, an

indication of life, it follows a forti-ori that spontaneous cardiac activ-ity is an absolute criterion of life.The beating of the heart in addi-tion to being a form of muscular

movement in the literal sense is cer.tainly a more significant vital signthan ordinary forms of muscular

movement.It may be inferred from yet an-

other statement of Rashi that deathmay be deemed to have occurredonly upon cessation of cardiac ac-tivity. In commenting upon the re-quirement that the nostrils be ex-amined for signs of breathing, Ra-shi state that this is necessary "forat times life is not perceivable at

the heart, but is perceivable at the

nose." In these comments Rashitakes pains to explain that absence

of a perceivable heartbeat is not,

in itself, evidence of death, not be-cause the heartbeat is irrelevant,but because nonperception of aheartbeat is, in itself, inconclusive.Respiration is more readily perceiv-able than a heartbeat and hence thenegative finding of an examinationfor respiration is a more reliableindicator. It is quite understandablethat a faint heartbeat may not bedetected (particularly without theaid of a stethoscope) because of theintervening rib cage, muscle tissueand fat, whereas even faint respira-tion can be perceived by placing a

feather or straw to the nose of apatient. Conversely, in the absenceof mechanical assistance, there canbe no heartbeat after respiration hasceased. Thus, the absence of per-ceived respiration is an indicatornot only of the cessation of respira-

Survey of Recent HaZakhic Periodical Literature

tory activity but of the cessation ofcardiac activity as well. Indeed,

Chakham Zevi, no. 77, citing thesecomments of Rashi, states unequiv-ocally that respiration, in itself, isnot the criterion of life, but is sim-ply an indication that the heart isyet beating. It then certainly fol-lows that the patient cannot be pro-nounced dead other than upon theirreversible cessation of both cardi-ac and respiratory activity. Thepresence of a heartbeat is thus aconclusive indication of life even

in the absence of brain function

or spontaneous respiration.Rabbi Aaron Soloveitchik in an

as yet unpublished but nevertheless

widely circulated responsum, drawsattention to a statement of RabbenuBachya in which this authority. un.equivocally declares that cardiac ac-tivity and not respiration Is the pri~

mary criterion of life. In his com-mentary on Deuteronomy 6: 5 Rab.benu Bachya states, ". . . and be-cause (the heart) is the first organin the creation of man and the lastamong the organs of the body todie therefore (Scripture) states'with all your heart,' i.e., until thelast moment of death."

One further point germane tothe clarification of acceptable cri-teria of death is raised by RabbiAaron Soloveitchik. On the basisof these sources it would appear

that, in the absence of other bodilymovement, the patient may be pro-nounced dead immediately upon theirreversible cessation of both cardi-ac and respiratory activity and thatno further indicators are necessary.

One must be mindful that Rema,Orach Chayyim 330:5, states thatwe are not competent to determine

with precision that respiration has

indeed ceased. (Cf. "EstablishingCriteria of Death," TRADITION,Winter, 1973, pp. 96-100). Rabbi

Aaron Soloveitchik has, however,taken the more extreme positionthat if brain function, as recorded

by an electroencephalogram, con-

tinues to be manifest, the patient

must be considered to be alive evenif no other vital signs are present.

This position is, in terms of halak-hic import, compatible with that

of Mishkenot Ya'akov, Yoreh De'.

ah, no. 10, who asserts that someresidual life may be present evenafter the heart is removed or ceasesto function. Rabbi Soloveitchik,

however, bases his argument on thecontention that brain waves whichcan be recorded on an electroen-cephalogram constitute "move-ment." Since "movement" is pre-sent, the patient cannot be consid-

ered to be as an "inanimate stone"

and hence one of the necessary cri-teria of death as enumerated by

Chatam Sofer is absent.It is, however, not clear that sub-

visual motion is considered "move-ment" from the point of view ofHalakhah. In other areas of rituallaw it is well-established that Halak-hah concerns itself only with read-ily perceivable phenomena. (SeeTiferet Yisra'el Avodah Zarah 2:6and A rukh ha-Shulchan, Y orehDe'ah 83: 15 and 84:36.) It may

be the case that brain. waves are tooephemeral to be considered "move-ment" in the eyes of Halakhah.

Rabbi Feinstein, Iggrot M osheh,

Yoreh De'ah, II, no. 146, discussesthe diferent but related case of a

patient who manifests no perceiv-able heartbeat but evidences cardiac

137


activity as recorded by an electro-cardiogram. Rabbi Feinstein (in thisresponsum) declares that the pa-tient must be considered to be alive,not because he manifests "move-

ment" as recorded by an electro-cardiogram, but because life maybe present even in the absence of

both perceivable respiration andcardiac activity. Semachot 8: 1 re-ports the bizarre incident of a per-

son who was interred in a cryptafter having been pronounced deadon the basis of accepted criteria ofdeath, but was subsequently found

to be alive on the third day follow-ing interment. The individual is . re-ported to have enjoyed anothertwenty-five years of life and to havesired children. Rabbi Feinstein un-derstands this source as demonstrat-ing that life may be present even inthe absence of observable cardiac

or respiratory activity. He explainsthat ordinarily this possibility neednot be taken into considerationsince the likelihood of this occur-

ring is extremely remote. However,he maintains, if residual vital forcesare in any way manifest, e.g., car-diac activity as evidenced by meansof an electrocardiogram (or, argu-

ably, brain waves as recorded by anelectroencephalogram), the patientmust be deemed to be alive. Thisline of reasoning appears to be sim-ilar to that of Mishkenot Ya'akov.

In terms of practical application,the matter is entirely academic in-

sofar as electroencephalographic

findings are concerned since, inpoint of facL, brain waves cease tobe discernible almost immediately

following ct:ssRfion of cardiac ac-tivity. The theoretical point is, ofcourse, of paramount significance

138

with regard to the question at hand.The consideration of factors suchas brain waves as criteria of lifecan be entertained only because ab-

sence of respiration does not, in it-self, always establish conclusively

that death has occurred.In his written responsum, Rabbi

Soloveitchik presents a somewhatdifferent argument which serves toestablish the same point. RabbiSoloveitchik cites Rambam's com.mentary on Oholot 1: 6 to demon-strate that even cessation of bothcardiac and respiratory activity isnot in itself an absolute sign that

death has occurred. In commentingon the phrase "even if they moveconvulsively like the tail of a newt,"Rambam comments that such con-vulsive movements are not indica-tive of life because this "power oflocomotion is not difused amongaU the organs from a single root orsource." Rabbi Soloveitchik infersfrom this comment that as long asthere is present any vital activitywhich is not local in nature the pa-tient is alive. Movement directed bythe central nervous system is in thenature of locomotion which is "dif-fused among aU the organs." Thepatient must therefore be consid-

ered to be alive on the basis of

brain activity alone even if no res-piration or pulsation is present.

Thus, concludes Rabbi Soloveit-chik, the patient maybe considereddead only in the absence of all threevital activities, i.e., only after res-piratory, cardiac and neurological

acLiviLy have completely and irre-versibly ceased.

. It is unlikely that Jewish opinionwil succeed in stemming the legis-lative tide indefinitely. It is also un-


realistic to believe that time ofdeath statutes wil accurately reflecteven the most liberal of halakhicopinions. Moreover, no responsiblerabbinic authority would want hisview to prevail on the basis of thecoercive power of the secular state.There is, moreover, one point overwhich all can agreeJ viz., that noperson should be compelled to act,or to be the object of an act, whichis to him. morally odious. It is tothis end that spokesmen represent-

ing various sectors of the Jewish

community have vigorously advo-

cated that such legislation, if enact.ed, contain a provision allowing forexemption from newly legislated le-gal definitions of death for reasonsof conscience, a provision strongly

endorsed in a statement issued by

Rabbi Feinstein on 8 Shevat 5737..

If passed, the newly enacted cri.teria would not apply in determin-

ing the time of death in face of theannounced opposition of the pa-tient or of his next of kin. Thus,

civil and religious liberties would bepreserved for al.

139

Documents

SURVEY OF RECENT HALAI(HIC PERIODICAL LITERATURE · 2016-04-11 · the nature of risk which is halakhic- .. ally acceptable. There is an obvious tension be-tween the pertinent Talmudic