Celebrating the Siyum on Sotah: Managing Brain Dead Patients by Rabbi Shalom C. Spira

 Shulchan Arukh Orach Chaim 328:2 rules that one who delays in treating a dangerously ill patient on the Sabbath is virtually considered to be shedding blood. Mishnah Berurah, se'if katan 6, adds that – for this reason – a talmid chakham must proactively publicize the laws of piku'ach nefesh, so that the community will respond with alacrity on the Sabbath when a lifesaving opportunity arises. Accordingly, I will take this opportunity to argue in favour of medically treating brain dead patients on the Sabbath, and show how this question interfaces with Sotah, whose siyum is being celebrated today in the Daf Yomi. 

      The halakhic sources which include a brain dead patient within the ambit of safek piku'ach nefesh [such that his/her medical treatment necessarily overrides the Sabbath] are elucidated in my online essay at <https://www.scribd.com/document/375175373/Halakhic-Bioethic> . However, in a recent addition to its website, the Rabbinical Council of America – through its affiliate organization Ematai – counter-claims that everyone should agree that medically treating the brain dead patient represents an act of "futility." [See <https://www.ematai.org/learn/organ-donation/time-of-death-and-posthumous-organ-donation/>, section entitled "Orthodox Jewish approaches to respiratory-brain death," italicized note after paragraph 2.] Presumably, then, the RCA would forbid doing any melakhah on the Sabbath on behalf of a brain dead patient. 

      Apparently, one of the sources for the RCA's conclusion is R. Hershel Schachter, Be-Ikvei ha-Tzon, no. 36. [I hypothesize so because another page on the Ematai website acknowledges that Rabbi Schachter reviewed the text of that organization's policy. See endnote to <https://www.ematai.org/learn/end-of-life-care/jewish-principles-end-of-life-care/>]. While Rabbi Schachter considers a brain dead patient to be doubtfully alive [such that he forbids harvesting organs], he interprets the Gemara, Sotah 46b [regarding the senior citizens of Luz – a city which was immune from the Angel of Death – leaving the urban precincts when those residents became tired of life] as grounds to engage in passive euthanasia. Namely, Rabbi Schachter believes that – like the golden agers of Luz – no brain dead patient would relish continuing to exist in a comatose state, and so it is appropriate to passively withdraw medical care. 

      However, I can respond to Rabbi Schachter (be-mechilat Kevod Torato) by pointing to R. Eliezer Yehudah Waldenberg, Teshuvot Tzitz Eliezer 18:48, sec. 3, who raises three alternate possibilities how to interpret Sotah 46b: (1) perhaps the senior residents of Luz did not voluntarily leave the city, but were rather miraculously expelled [analogous to the residents of Kushta described in Sanhedrin 97a]; (2) perhaps Luz was not a real city but was rather a metaphysical concept; (3) perhaps the residents of Luz were not Jewish and were not following Halakhah. According to any of these three possibilities, there could still be a mitzvah of safek piku'ach nefesh to treat brain dead patients. 

      To the latter effect, it is important to appreciate the full context of Sotah 46b. The Gemara is reporting that the Angel of Death was denied entry into Luz in reward for the mitzvah of levayah [accompanying strangers on the road] that was fulfilled by the founder of that locale. And the reason this is being discussed in the context of eglah arufah [the subject of the final chapter of Sotah] is because the Mishnah on the previous page (Sotah 45b) declares that if the elders of a city [who are obligated to bring an eglah arufah] would have failed to provide levayah, then those elders would be virtually guilty of bloodshed. R. Shlomo Yosef Zevin, Ha-Mo'adim ba-Halakhah, chapter on Aseret ha-Dibberot, envisages this Mishnah as a source for the principle that even passive euthanasia constitutes murder. [While not mentioned by Rabbi Zevin, this would then serve as a support for the aforementioned Shulchan Arukh Orach Chaim 328:2, as well as a parallel codification in Shulchan Arukh Yoreh De‘ah 336:1.] Arguably, then, the Mishnah in Sotah 45b actually teaches that we may not practice passive euthanasia on any patient, brain dead or otherwise. 

      R. Moshe Feinstein, while never invoking Sotah 46b by explicit reference, writes as follows in Iggerot Mosheh, Choshen Mishpat 2:75, sec. 7:  

 

 

 

"Regarding an exceedingly senior patient who becomes ill, for sure we are           obligated to heal him as much as is possible, just as with a juvenile patient.            And [this holds true] even if the senior patient does not want, saying he is             disgusted with his life. And it is forbidden to even raise as a consideration             these matters, even if its exponent is a great physician. And even with respect          to triage priority, it is logical to assume that one should not calculate this." 

 

      Seemingly, Rabbi Feinstein [or whoever wrote this responsum on his behalf, given the outstanding debate that surrounds the provenance of that seventh volume of Iggerot Mosheh] – with his comment about "senior disgust for life" co-existing in harmony with the mitzvah obligation of piku'ach nefesh – interprets Sotah 46b like Tzitz Eliezer. 

      Thus, it is not surprising that R. J. David Bleich [Bioethical Dilemmas, Vol. 1, chs. 3-4; Be-Netivot ha-Halakhah, Vol. 3, pp. 161-178] does indeed demand medically treating a brain dead patient at all times, including on the Sabbath, in order to comply with Leviticus 19:16. To that effect, at a 2021 conference of Agudath Israel of America [in a rare speech by a lady], Mrs. Leah Horowitz (care navigator for the Chayim Aruchim affiliate of AIA) describes how – when a patient is pronounced brain dead and the attending medical staff wishes to terminate treatment – she will work urgently to find another hospital to which the brain dead patient can be transferred for medical care [on the Sabbath no less so than on weekdays]. The latter speech is available online at <https://agudah.org/watch-agudah-convention-2021-the-murder-of-alta-fixsler-coming-to-the-u-s/>, commencing at 32:40 into the recording. 

      Let us hope that this halakhic dialectic – which underscores the preciousness of human life [as per the Mishnah, Avot 3:14] – will be noticed by Russian President Putin [whom I have already addressed at <http://daattorah.blogspot.com/2023/03/an-appeal-to-president-vladimir-putin.html>], and he will appreciate the moral benefit of withdrawing his army from Ukraine, so that world Jewry can embark upon the next tractate of Daf Yomi in an atmosphere of tranquility. 

Rabbi Spira works as the Editor of Manuscripts and Grants at the Lady Davis Institute for Medical Research [a Pavillion of the Jewish General Hospital] in Montreal, Canada.