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Volume 25: Number 336

Sun, 21 Sep 2008

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Subjects Discussed In This Issue:
Message: 1
From: Zev Sero <z...@sero.name>
Date: Fri, 19 Sep 2008 15:57:51 -0400
Re: [Avodah] strange story

Eli Turkel wrote:
> I belivee it was Yaavetz

His father, the Chacham Tzvi.

> who argued that you can't have a live chicken without a heart even
> though it is not on the list of terefot.

Not quite.  He argued that the chicken found without a heart was kosher,
because it's impossible for the heart to actually have been absent while
the chicken was alive; it must have disappeared after the shechita.

Zev Sero               Something has gone seriously awry with this Court's
z...@sero.name          interpretation of the Constitution.
                                                  - Clarence Thomas

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Message: 2
From: Cantor Wolberg <cantorwolb...@cox.net>
Date: Sat, 20 Sep 2008 21:51:25 -0400

Rabbi Yosef Gavriel Bechhofer

In light of the recent endorsement by the Rabbinical Council of America
of brain-stem death as a valid Halachic criterion of the death of a  
it is timely for us to explore the biological and halachic background of
this issue.

The two main parts of the brain are the upper brain, which controls the
conscious activity of the individual; and the brain stem, which  
the upper brain's "directions" to the rest of the body and controls  
body functions, including respiration and cardiac activity. Therefore,  
if a person's upper brain ceases to function (as would be indicated by a
flat E.E.G.), a person would still be capable of autonomous bodily
functions, which are controlled by the brain stem. Such a person is in  
irreversible coma - what is commonly known as a "vegetable".

When the brain stem ceases to function, most autonomous bodily functions
also cease - including respiration. If supplied with oxygen (via a
respirator) and nutrients, the heart, however, may continue to beat for
several days. This is because the heart, besides being regulated by the
brain stem, possesses an independent natural pacemaker which regulates  

All Halachic authorities agree that it is not necessary, indeed
prohibited, to put a corpse on a respirator in order to simulate  
This is desecration of the dead, a serious violation of Torah law. On  
other hand, all authorities agree that a polio victim who is dependent  
an iron lung, but whose brain is fully functional, is very much alive. A
doctor who "pulled the plug" on such an individual is a shofech damim.  
question involved in the RCA resolution concerns an individual whose  
stem is clinically dead, but whose heart is still beating because he is
being maintained on life support systems. Is such a person considered
Halachically dead or alive? The primary practical ramification of this
question is organ transplantation. Most organs cannot be successfully
transplanted if harvested from a donor who has undergone cardiac death,
i.e. whose heart has stopped beating. Therefore, if we accept brain stem
death as a legitimate Halachic criterion, we may allow harvestation of
organs from such a donor. If, however, we conclude that cardiac death  
constitutes Halachic death, the possibility of harvesting organs for
transplantation al pi halacha is practically nil.

It is important to clarify that this discussion only relates to whether
the donor via a proxy, or his or her relatives, may authorize  
and to whether a physician who is shomer mitzvos may harvest organs from
such a donor. If, as is most often the case, the organ is harvested  
from a "willing" donor by a willing physician, there may be no issur to
receive the donated organ. Much ado has been made over the fact that
although in a teshuva written in 1970 (Igros Moshe Yoreh De'ah 2:146)
HaGaon HaRav Moshe Feinstein zt"l called heart transplants "double
murders", he nonetheless later advised certain critically ill  
to undergo this procedure, and receive a new heart. In fact this ruling
only reflects that a procedure that was originally extraordinarily
questionable, resulting invariably in the recipient body rejection of  
new heart - thus in fact hastening that person's death - thanks to  
in the use of rejection-preventing drugs is now normally successful at
prolonging the recipient's life.

The Halachic definition of death is discussed in Mesechta Yuma 85a. The
Gemara there concerns persons trapped beneath a collapsed building on
Shabbos. Obviously if there is a possibility that these persons are  
one is required to be mechalel Shabbos in order to save them. The  
however, one ascertains that a person trapped under debris is definitely
dead, one must cease desecrating the Sabbath and wait until nightfall
before continuing the process of removing the body. How does one  
if the person is dead? According to Rav Pappa's summation, if one began
checking the body for signs of life from the feet there is a  
if one checks up to the heart or continues to check up to the  
nostrils. If,
however, one begins checking from the head down, all agree that if one
checked the nostrils and found no breath, one need not go on to check  
heart. The Gemara, and the classical poskim (Rambam, Hilchos Shabbos  
Shulchan Aruch Orach Chayim 329:4) only mention the criterion of
respiration as a criterion of death. The proponents of the brain stem  
criterion argue that by virtue of its omission, the Gemara and the  
clearly are indicating that cardiac death is not a necessary criterion  
death. The Gemara's reliance on cessation of autonomous respiration as  
indicative of death clearly indicates that the death of the brain death
which controls that activity is a sufficient determinant of death.

The proponents of the brain stem death criterion also cite the Mishna in
Ohalos 1:6 as proof of their position. The Mishna there discusses the  
in time at which a corpse begins to emit tumas mes (the degree of  
associated with death). The body of a person who has been decapitated is
metameh immediately after the head has been severed from the body. The
Rambam there points out that this is true even if the body is still  
as these movements are similar to the tail of a lizard which writhes  
after being severed from its body - since this movement is not  
by the source of control in the brain, it is not regarded as  
indicative of
any residual life (this ruling is codified by the Rambam in Hilchos  
Mes 1:15). The proponents of brain stem death as the definition of death
regard brain stem death as "physiological decapitation", i.e. the  
brain has
been severed de facto by virtue of its clinical death from the body. Any
remaining heartbeat must therefore be regarded as equivalent to the
movements of the headless torso of the decapitated body, and thus not
indicative of any residual life.

The proponents of cardiac death as the determinant of death obviously
reject these two proofs. To begin with, they differ in the  
of Rash i in Yuma. Rashi there explains that the situation in which we
found the person in question which requires us to check his breath is:  
domeh l'mes, she'eno meziz aivarav. The brain stem death school holds  
this phrase refers to a lack of external movement, i.e. brain and brain
stem controlled movement. The cardiac death school of thought holds that
this phrase refers also to lack of internal movement, i.e. lack of
heartbeat. They sustain this position further by citing the Teshuvos  
Sofer Yoreh De'ah 338 who defines death as: kol she'achar she'mutal  
domem v'ain bo shum defika v'im achar kach batel haneshima, ain lanu ela
divrei Toraseinu hakedosha shehu mes. The Chasam Sofer clearly  
the element of defika - pulse - into the equation of death. He defines
death as the presence of three criteria: 1) lack of movement; 2) lack of
pulse; 3) lack of respiration. It would seem that the absence of any  
one of
these three indicators would prevent us from pronouncing such a person
definitely dead. HaGaon HaRav Shaul Yisraeli shlita, who wrote the  
basis for the ps ak of the Chief Rabbinate of Israel (Ass ia, 11:2-3)
offers a different interpretation of this passage in the Chasam Sofer,  
the true criterion of death is the absence of spontaneous respiration;
therefore, even if there is no movement nor pulse, one must still  
the absence of respiration before pronouncing death.We shall leave this
dispute unresolved, as there is no consensus on it among the poskim (see
the ruling of HaGaon HaRav Shmuel HaLevi Vosner shlita ibid., and  
Tzitz Eliezer 9:46 and 10:25,4). One must bear in mind that in a case of
doubt as to the meaning of a ruling in hilchos shfichas damim it is far
better to err on the side of safety and refrain from possibly  
hastening a
death. The proponents of the cardiac death criterion also cite the  
Maharsham 6:124 who states that even if respiration has ceased, so  
long as
some sign of life remains in any of the other organs of the body, we  
do not
regard a person as definitely dead.

As to the proof from Mesechta Ohalos, the cardiac death school maintains
that we have no right to extrapolate from the case of physical  
to a case of physiological decapitation. In this vein, HaGaon HaRav  
Zalman Auerbach shlita (quoted in Dr. Abraham S. Abraham's Nishmas  
339:2) writes that it is difficult for him to believe that it would be
possible to maintain respiration in a clinically brain stem dead  
person if
his brain was in fact completely dead. Medical technology is constantly
evolving. In 1971 the authors of an essay in HaDarom (no. 32) proposed  
Halachic death be determined on the basis of a flat E.E.G., i.e. upper
brain death - which even the medical sector now rejects as inaccurate.  
is possible that several years from now some function will be detected  
what is now regarded as a clinically dead brain stem, thus  
invalidating the
current definition of death even from a scientific perspective. Again,  
matters of life and death one must be certain beyond a shadow of a doubt
before acting.

The RCA resolution quote three sources as its basis. One is HaGaon HaRav
Yoshe Ber Soloveitchik shlita (yirapehu Hashem). Any possibly extant
teshuva from Reb Yoshe Ber is not in the public domain, and therefore  
available for analysis (parenthetically, it should be noted that the
publisher of the Midwest Jewish Week, Robert Gibber, related to me that
HaGaon HaRav Aharon Soloveitchik shlita told him that in fact this is  
his brother's position). A second is the ruling of the Chief Rabbinate  
Israel, written by Rav Yisraeli, mentioned above. This ruling relies
primarily on the third source, HaGaon HaRav Moshe Feinstein zt"l. In  
to clarify Reb Moshe's position it is important to examine his second
teshuva on the determination of death, written in 1976 (Igros Moshe  
De'ah 3:132). Reb Moshe discusses there cases of individuals who are
incapable of autonomous respiration, but are on life support systems.  
Moshe rules that persons who have reached this state as a result of a
debilitating disease may not be disconnected from their respirator. If,
however, the system went off on its own, one is not required under  
conditions to reactivate it. Reb Moshe then draws a distinction between
this case and the case of a person who has been wounded in an automobile
accident or a similar incident. In these cases, says Reb Moshe, the
cessation of respiration is due to the contraction if certain nerves.
Therefore it is possible that after some time on a respirator the nerves
will again expand and work autonomously. Hence, even if no vital signs  
readily apparent, it is possible that these people are not yet dead  
(as Dr.
Abraham points out, in understanding Reb Moshe's psak it does not  
matter if
his perception of the clinical reality was correct, but rather only what
his perception was - only once that is clarified may we extrapolate to
other cases). Therefore, says Reb Moshe:

V'kaivan she'ata omer she'ata ika nisayon she'rofim gedolim yecholin
l'barer ... laida she'nifsak hakesher sheyesh liha'moach im kol  
haguf ...
v'gam she'kvar nirkav ha'moach ligamrai v'havai k'hutaz harosh b'koach,
she'im kain yesh lanu l'hachmir b'ailu ... v'af she'aino noshem klal blo
ha'michona shelo yachlitu shehu mes ad sheya'asu bedika zu, she'im yiru
sheyesh kesher liha'moach im haguf af she'aino noshem yitnu hamichona  
af zman gadol, v'rak k'sheyiru al yidai habedika she'ain kesher  
im haguf yachlitu al yidai zeh she'aino noshem limes.

[Free Translation] "And since you say that now there is a test that  
doctors can thereby ascertain that the connection of the brain to the
entire body has been severed, and also that the brain has rotted
altogether, rendering the victim as if he was decapitated, we should
therefore be stringent in thes cases and even if one cannot breathe at  
without a respirator he should not be pronounced dead until this test is
performed, that if they shall discern a connection between the brain and
the body - even if the victim is not breathing at all - they should  
put him
on a respirator, even for extended periods of time, and only when they  
by this test that there is no connection between the brain and the  
body may
they pronounce this victim that is not breathing dead."

Some poskim derive from Reb Moshe's usage of the concept of  
decapitation that Reb Moshe here condoned the acceptance of brain stem
death as a suffice int criterion of death. Dr. Abraham (ibid.) points  
that this is definitely not the case. Reb Moshe clearly makes use of  
death only as a chumra, an additional factor to be taken into account in
addition to and beyond the previously accepted criteria (which he  
in the earlier teshuva explicitly as contingent on cardiac death).
Furthermore, Reb Moshe understood that the tests employed in determining
brain stem death actually indicate that the physical state of the  
brain has
decayed and rotted into "mush" (which in fact the tests do not measure -
the test approved by the Chief Rabbinate measures "auditory nerve-brain
stem evoked response"; see Assia ibid.). Even so, Reb Moshe did not  
rely on
this criterion l'kula. There is no evidence in the public domain that
indicates that Reb Moshe ever issued any psak overturning this teshuva.

In the final analysis, although there exist sevaros likan ulikan, such  
issue is of the gravest Halachic severity, touching as it does on the
subject of shfichus damim. Rulings in these areas must stem from  
of the foremost gedolei hador which are available to talmidei  
chachamim di
b'chol asar v'asar to analyze and consider le'asukei shmatta aliba
d'hilchasa. The RCA is probably the most widely respected and and  
Rabbinical organization in the world. It is out of a sense of chibas
hakodesh that we raise these points for consideration in order to  
the clarification of this matter, u'mal'a ha'aretz de'ah es Hashem.
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Message: 3
From: JoshH...@aol.com
Date: Sat, 20 Sep 2008 22:26:38 EDT
Re: [Avodah] bo bayom

In a message dated 9/20/2008 9:12:14 P.M. Eastern Daylight Time,  
avodah-requ...@lists.aishdas.org writes:

"Your  birthday is the day that Hashem decided that the world couldn't
: go on  without you".

I hadn't heard it besheim RYBS. And I'm surprised  that he would say
it, it doesn't sound like RYBS's style. Too far from  straight Brisk,
even for him, to speak in terms of what Hashem did rather  than how we
should respond.

At my nephew's bar mitzvah, my father  handed out small posters with a
*similar* sentiment by RAYK. (Did I mention  this was in Lakewood?)

RYBS,in Al HaTeshuvah IIRC,  quoted the idea from Rav Kook  in Olat Rayah, on 
the tefillah of' 'Elokai ad shelo notzart ieini  kedai.'

**************Looking for simple solutions to your real-life financial 
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Message: 4
From: "Eli Turkel" <elitur...@gmail.com>
Date: Sun, 21 Sep 2008 08:34:27 +0300
[Avodah] trends in psak

Among some Posekim[1], there is an attitude of "yiqov hadin es hahar".
The posek analyses the sources and rules based on his own understanding
of them. Even if his predecessors ruled differently or understood the
sources differently - ein ladayin els mah she'einav ro'os and halakhah
kebasra'i as explained by the Rema [2] (CM 25). This school considers
the autonomy of the Posek to be central whereas precedent is only
important insofar as it helps the Posek clarify the sources but carries
no weight on its own.>>

Only in ashkenazi circles in sefardi circles it is all about quoting psak.
When in Vancouver I read a local collection of articles one by a local
sefardi rabbi on the question of standing for Asseret HaDibrot. The
whole article was a list of (sefardi) poskim who had dicussed the
issue beginning with Teshuvat HaRambam (though he didnt quote ROY).
Basically each quoted quoted the previous generations with exactly 1
contemporary posek claiming things had changed since the Rambam.

Nothing equivalent to RYBS's comments on changes due to taam elyon and
taam tachton

Eli Turkel

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Message: 5
From: "Saul Mashbaum" <saul.mashb...@gmail.com>
Date: Sun, 21 Sep 2008 22:10:25 +0300
Re: [Avodah] bat mitzva "bo bayom"


: My daughters always like to say the following quote (attributed to Rav
: Soloveitchik):

: "Your birthday is the day that Hashem decided that the world couldn't
: go on without you".


I hadn't heard it besheim RYBS. And I'm surprised that he would say
it, it doesn't sound like RYBS's style


FWIW, I saw the above in the name of R. Nachman of Braslov, which to
me intuitively more plausible. However, the source in which I saw this
attribution was not one I would deem reliable.

I once sent the above quotation, attributed to RNachman, to a teenager
in an email birtday card. It was well received.

Like RMB, I question whether indeed one can know what exactly Hashem
decided, or when. But indeed the sentiment can convey a powerful
message that ones existence is of great importance and meaning, and
one can have a significant impact on the world. It's a little like the
idea that one should act as if  the scales judging the world are
perfectly balanced, and it is in ones power to tip the scale in one
direction or another. I think that everyone is aware that this is not
literally the case, but this can serve as a powerful motivation for
doing good. Like many inspirational messages, its value is not
dependent on its literal accuracy.

Saul Mashbaum

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Message: 6
From: "kennethgmil...@juno.com" <kennethgmil...@juno.com>
Date: Sun, 21 Sep 2008 03:09:07 GMT
Re: [Avodah] strange story

R' Eli Turkel wrote:
> I vaguely recall a similar discussion about a man
> undergoing a heart transplant. There is a short time
> that a man has no heart. Some wanted to rule that a
> man without a heart (?) is considered halachic dead
> and so after the operation is wife is an almanah
> bechaye baala ... I thought there is a teshuva of the
> Tzitz Eliezer on the question but I am abroad without
> my seforim

Indeed, the Tzitz Eliezer wrote about these things, and so did many others,
including Be'er Hetev, Birkei Yosef, RSZ Auerbach, Rav Kanievsky, and
Chazon Ish. If I'm reading it correctly, all those agree that the couple
remains married (though some others seem to disagree).

I get this information from the English version of Nishmat Avraham, vol 3,
pp 85-86, which I'd be happy to scan and send to whoever wants it. For
those who have the Hebrew version, I suggest looking at the beginning of
Even Haezer 17. The references to Tzitz Eliezer cite Vol 16, Simanim 24 and
64, and an article in Assia issue #38, Elul 5744 pg 10.

Akiva Miller

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