Cardiac Circumcision vs. Cardiac Transplant: A Rejoinder to R. Aharon Lichtenstein by Rav Shalom C. Spira

   In this week's parashah we read: "And Ha-Shem, Your G-d, will circumcise your heart and the heart of your seed" (Deut. 30:6). Mishnah Berurah, Orach Chaim 581, intro, observes that the Hebrew words et levavkha ve-et levav spell by way of acronym "Elul," the current month that is devoted to cardiac circumcision (a metaphor for repentance).

    As I have previously written at Halakhic Bioethic | PDF | Talmud | Judaism, such cardiac circumcision requires abjuring cardiac transplantation. Since a brain dead patient is potentially alive according to Torah law, the obligatory mitzvah of piku'ach nefesh requires us to rescue the comatose patient and a fortiori to avoid harvesting organs from him/her. I am especially proud that one of the sources I incorporated into this essay is a statement I heard from R. Aharon Lichtenstein during the summer of 5760 (corresponding to 2000 on the secular calendar) publicly declaring that the words of Me'iri must be followed le-chumra [and not le-kula]; see text accompanying footnote 92.

    Yet, earlier this week, Tradition 58:3 (Summer 2026) released an essay posthumously ascribed to the very same R. Aharon Lichtenstein [reportedly authored in 2013], which allows the family of a brain dead patient to choose to donate the patient's organs. [Available here: Tears of the Afflicted: Reflections on a Current Proposal Regarding Organ Donation | Tradition Online] When read back-to-back with my own essay, this would mean that Rabbi Lichtenstein reversed course in the period between 2000 and 2013. Indeed, in footnote 4, the editors of Rabbi Lichtenstein's posthumous essay acknowledge "we believe it is probable that R. Lichtenstein's position on this topic evolved over the years." [The editors then refer to a YouTube video whose link is unfortunately broken and hence cannot be accessed for verification.]

    As a matter of practical Halakhah, this essay posthumously ascribed to Rabbi Lichtenstein cannot justify donating organs, due to the following seven considerations:

1. On pp. 8-9, the author claims he is inclined to allow donating organs from the brain dead patient because it is estimated that 100 patients in Eretz Yisrael die annually of organ failure, not to speak of countless parallel cases in the Diaspora. Alas, this is an inappropriate appeal to human emotions to attempt to override Torah law. Rambam, Hilkhot Yesodei ha-Torah 5:5 , followed by Rema to Shulchan Arukh Yoreh De'ah 157:1, clearly rule that we cannot sacrifice one innocent life even to save an entire community. [For further discussion, see SURVEY OF RECENT HALAKHIC LITERATURE: Rescue Dilemmas | Tradition Online.] Moreover, well known in yeshivah circles is the inference drawn from Rambam, Hilkhot Yesodei ha-Torah 5:1 ("The entire House of Israel is commanded regarding sanctification of this Great Name") that even if the entire Jewish People would be (Heaven forbid) in danger, it still is forbidden to sacrifice one innocent life in order to rescue the entire Jewish People.
2. On p. 10, the author critiques the RCA Vaad Halacha study on brain death [released by R. Asher Bush in 5770, and which argues in favour of considering the brain dead patient to be alive] for assigning primacy "to the parameters which limit life-saving rather than to measures which enhance its prospects." Alas, that accusation overlooks the argument [of R. J. David Bleich, Bioethical Dilemmas Vol. 1, ch. 4] that the life of a comatose patient also has philosophical value. Rabbi Bleich compares humanity to a musical orchestra where every player contributes to the visual magnificence of the performance. Some musicians have to be silent to fulfill their role, but they are still accomplishing their purpose even when they are quiescent. [Likewise, the comatose patient silently contributes to the perceived Majesty of the Creator, simply by the comatose patient existing in his/her hospital bed.] Ergo, from the perspective of the comatose patient, the RCA Vaad Halacha is indeed enhancing the prospects of life-saving.
   [Parenthetically, the RCA link to the Vaad Halacha study, cited in footnote 1 of my essay, has been recently disabled by the RCA for unspecified reasons. The interested reader can nevertheless find a facsimile of it on the HODS website at Vaad Halacha Teshuvah on Brain Death and Organ Transplantation: Consolidated. I will take the present opportunity to congratulate HODS for offering the public this service, a meaningful gesture of cardiac circumcision given the reality that HODS is the target of the RCA Vaad Halacha study's attack.]
3. On pp. 10-11, the author claims that failing to transplant an organ into a patient who needs the organ to survive is an act of overt murder, based on the Gemara, Sanhedrin 76b-77b regarding metzamtzem. Hence, for the author, the only way to avoid the charge of overt murder is to advocate donating organs from brain dead patients. Alas, this is a misreading of Sanhedrin 76b-77b. The Gemara refers to tying down a person trying to escape mortal danger. By contradistinction, mere passive failure to provide medical care for a patient in organ failure [while assuredly a serious transgression of Leviticus 19:16] is certainly not an overt act of murder.
   Now, it is true that in a somewhat related context, viz. Daas Torah - Issues of Jewish Identity: Celebrating the Siyum on Sotah: Managing Brain Dead Patients by Rabbi Shalom C. Spira, I did cite R. Shlomo Yosef Zevin as inferring from Sotah 45b that passive euthanasia is tantamount to murder. However, "tantamount" is not the same as legal equivalence. To that effect, Rabbi Zevin is condemning passive euthanasia where the bystander could have accomplished more but refused and thereby violated Leviticus 19:16. Here, by contradistinction, in the case of organ donation, the bystander cannot actually accomplish anymore without risking the prospect of active murder. Hence, the bystander would be shielded from violation of Leviticus 19:16 by virtue of the principle anoose Rachamana patreih (Nedarim 27a).
4. On p. 12, the author rebukes the RCA Vaad Halacha study by exclaiming "have we subliminally forgotten that we are, possibly, signing death warrants seriatim [since the recipient will not receive the organ required to save his life]!" Alas, this rebuke is a non sequitur. By the author of the posthumous essay encouraging organ donation, he is also possibly signing death warrants seriatim, since comatose patients will now be potentially murdered.
   Let us also not forget that, as cited in footnote 268d of my essay, some physicians prefer anesthetizing brain dead patients before organ harvest, on the fear that brain death has been misdiagnosed and it would be a crime against humanity to inflict pain on the donor during the organ harvest process. [This is the subject of debate in medical journals.] So now I would encourage Rabbi Lichtenstein to consider the following counter-exclamation: "even with anaesthesia resolving the nociception problem, have we subliminally forgotten that [by encouraging organ donation] we are possibly murdering the donor [according to any and every halakhic opinion] if brain death has actually been misdiagnosed?"
5. On p. 13, the author claims that the doubt regarding brain death is subjective and therefore every posek can rule as he sits fit. Alas, as R. Chaim Zimmerman explains in his introduction to Agan ha-Sahar [regarding the international dateline], Orthodox Judaism believes that Torah law is objective and not subjective. [Available here: אגן הסהר - צימרמן, אהרן חיים (page 2 of 508)]. The same point is reiterated by R. Joseph Ber Soloveitchik in his 1975 "Gerus and Mesorah" lecture repudiating R. Emanuel Rackman who fraudulently advocated "rescuing" agunot by allowing them to plead kiddushei ta'ut. [Available here: YUTorah Online] And the same point is further reinforced by R. J. David Bleich in his introduction to Contemporary Halakhic Problems Vol. 4.
6. On p. 18, the author focuses on the controversy that erupted in 1986 when the Israeli Chief Rabbinate allowed harvesting organs from brain dead patients. The posthumous essay claims that the RCA Vaad Halacha study [of R. Asher Bush] contends that the 1986 controversy was based on the allegation that the Israeli Chief Rabbinate was relying on a forged responsum of R. Moshe Feinstein. To this allegation, the posthumous essay remonstrates with a cri de coeur: "Yet, do the authors of the study truly expect the average observant family to stake the life of a child or a spouse on the result of a debate regarding the possible fabrication of this teshuvah? And how would we respond if the family wanted to know whether the teshuvah was directed to a particular concrete case, and its anguish effectively discounted, or had been composed as an abstract directive?"
   Alas, the posthumous essay is confused here, and clarity should optimally be restored by a careful review of the facts, as follows: (a) The allegation of forgery raised by Rabbi Bush (on p. 55 of the study) specifically relates to the Bondi letter, which was only first published in 1992, several years after the Israeli Chief Rabbinate already issued its 1986 verdict. [The Bondi letter was then republished in the posthumously published eighth volume of Iggerot Mosheh, which thereby ensured that the eighth volume of Iggerot Mosheh was surrounded by polemic.] By contradistinction, the Israeli Chief Rabbinate verdict of 1986 was based [not on the Bondi letter, but rather] on a disputed interpretation of Iggerot Mosheh, Yoreh De'ah, III, no. 132 [published in 1982 when R. Moshe Feinstein was already ill and not available to clarify his words to the public], and it is this disputed interpretation which caused some poskim to protest against the Israeli Chief Rabbinate. See Rabbi Bleich's 1989 survey of this [when the Bondi letter had not yet been published and so was yet unknown] at Of Cerebral, Respiratory and Cardiac Death | Tradition Online. (b) Although Rabbi Bush never himself raises a claim of forgery regarding Iggerot Mosheh, III, Yoreh De'ah no. 132, it is indeed the case that two other scholars [as distinct from Rabbi Bush] have accused the sixth volume of Iggerot Mosheh [which contains YD 3:132] of being marred by forgery. Specifically, as reported by R. Yonatan Roseman, Petichat ha-Iggerot, p. 489 and again on p. 664, R. David Feinstein (son of Reb Moshe) alleges that YD 3:48 was never written by Reb Moshe. [Available here: פתיחת האגרות - יונתן רוזמן (page 543 of 854) and פתיחת האגרות - יונתן רוזמן (page 726 of 854)]. And R. Menasheh Klein, Teshuvot Mishneh Halakhot, XII, no. 214, has accused YD 3:114 of being forged. However, Rabbi Klein subsequently retracts that accusation in Teshuvot Mishneh Halakhot, XVI, no. 102. (c) Regarding the seventh volume of Iggerot Mosheh, published in 1985 when Reb Moshe was incapacitated, there are indeed those who accuse it of forgery [perhaps greater in number and stature than those who attacked the sixth volume], as documented in footnote 239 of Halakhic Bioethic | PDF | Talmud | Judaism. However, such an accusation was never levelled by Rabbi Bush himself [and, ironically, levelling such an accusation would have the effect of cancelling one of the arguments to consider brain dead patients as being alive, as elucidated in the aforementioned footnote 239]. (d) R. Moshe Feinstein, first volume of Iggerot Mosheh (which is certainly authentic), introduction (final two paragraphs) asks the reader not to rely on any of his responsa unless the reader independently investigates and concurs with the conclusion. Thus, to respond to the cri de coeur of [the posthumous essay ascribed to] Rabbi Lichtenstein, we certainly will never "stake the life of a child or a spouse" on a responsum within Iggerot Mosheh (whether authentic or forged) before independently investigating  it using proper methods of the Oral Torah, as Reb Moshe himself demanded of us. And my essay has endeavoured to accomplish that [be-ezrat Ha-Shem Yitbarakh], concluding that the brain dead patient is potentially alive. On this I would claim with a clean conscience that it is indeed worthy to stake the life of a child or a spouse.
7. Rabbi Lichtenstein is not the sole Israeli decisor whose responsum on brain death has been posthumously published. In Chut Shani on the Days of Awe (Bnei Brak, 5781), p. 544, letters posthumously ascribed to R. Shmuel ha-Levi Wosner, R. Nissim Karelitz and R. Joseph Shalom Eliashiv appear in response to the question of the secular Knesset legislating recognition of brain death. All three of them announce that a brain dead patient is alive and that organs may never be harvested from him/her. [Available at חוט שני - ראש השנה, יום כיפור, סוכות, חנוכה, פורים, תשובה, תוכחה, לשון הרע - קרליץ, שמריהו יוסף נסים בן נחום מאיר ("הגאב"ד") 1926-2019 - הוכמן, חיים אריה הלוי (עורך) (page 548 of 572) ] In the case of these three decisors, their posthumous decision is fully consistent with what they already announced during their lifetime [unlike the situation of Rabbi Lichtenstein, where his view changed from what was announced during his lifetime to what was announced posthumously, as noted earlier]. This can further assuage our conscience that it is halakhically correct to treat the brain dead patient as alive.

    

                            [End of seven considerations]

    At the same time, a different halakhic issue is raised by the posthumous essay attributed to Rabbi Lichtenstein, and here the evidence supports him. Namely, the posthumous essay (pp. 15-16) decries the asymmetrical ethic of forbidding organ donation but allowing organ reception. And on this, the posthumous essay is vindicated by footnote 309 of Halakhic Bioethic | PDF | Talmud | Judaism. Indeed, my own father zatza"l [who was in heart failure for 10.5 years] heroically gave his life al Kiddush Ha-Shem rather than accept a cardiac transplant [which he was repeatedly offered, yet he refused as a matter of conscience because he realized one cannot murder one patient in order to rescue a different patient], as explained in my eulogy for him at Daas Torah - Issues of Jewish Identity:  A Eulogy for my Father   by Rav Shalom C. Spira. Even here, though, I do not feel that the healthcare profession should caricaturize Jews for discrimination. Organ failure and brain death are not phenomena that were engineered by Jews. Rather, all human beings are commanded by the Noahide Code to refrain from murder, and so no human being should ever be willing to orchestrate an organ harvest on a brain dead patient, even for so noble a purpose as rescuing another patient from organ failure. 

    As Rosh ha-Shanah approaches, I wish all readers of the Daas Torah website that we should be blessed with much "brain life" and indeed be inscribed in the Book of Life.

    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.