Non-Heart-Beating Donation from Brain Dead Patients: Rav Ahron Soloveichik’s Solution
From “Halakhic Realities,” pp. 253-261
I. THE POSITION OF RABBI AHRON SOLOVEICHIK
Rabbi Ahron Soloveichik is generally seen as a great opponent of using brain death to define the end of life. Both the recent study of the Vaad Halacha of the Rabbinical Council of America (RCA) and rabbis such as Rabbi Yitzchak Breitowitz understand Rabbi Soloveichik to require cessation of both heartbeat and breathing as well as brain death. Rabbi Soloveichik believes this is the pesaq of Rashi, Rambam, and both Rabbi Joseph Karo and Rabbi Moshe Isserles in the Shulchan Arukh.
For decades, Rabbi Soloveichik argued against defining death merely on the basis of cessation of brain activity, and it seemed that his pesaq would not allow for the donation of organs such as the liver and kidneys, which must still be functioning in order to be transferred to another, living body.
The past fifteen years have seen the emergence of a new form of donation: non-heart-beating donation (NHBD), also known as donation after cardiac death (DCD). At first glance, NHBD seems even more controversial than brain death, and it is certainly treated so by the RCA S Vaad Halacha. However, NHBD might actually bring together opponents and proponents of brain death within the Orthodox community, and allow the harvesting of organs only after meeting Rabbi Soloveichiks stringent death criteria. Moreover, it mirrors, with some important modifications, the decisions of Rabbi Shlomo Zalman Auerbach in dealing with a brain dead patient.
II. THE NHBD PROCESS
Protocols for NHBD developed by the University of Pittsburgh Medical Center (1992) generally work in the following way: The patient agrees in advance to a Do Not Resuscitate order (DNR), organ donation, and the withdrawal of life support if it is determined that he or she will not recover. Once the physicians make this determination, they prepare for organ retrieval, even bringing the patient to the operating room.
Now comes the controversial element. Life support – respirator and/ or ventilator – is removed, and the doctors await the cessation of cardiac function. If the heart stops, they wait two to five minutes, not resuscitating, and then declare the patient dead. The first team of doctors then leaves the room, and the transplant team enters and immediately begins removing whatever organs remain viable. In some cases, this team will even resuscitate the heart in order to be able to harvest it, and to keep the other organs fresh.
Even in the medical community, which generally accepts brain death as death, NHBD is controversial, mainly because it doesn’t rely on brain death. The respirator is removed before the patient is brain dead, and the heart is not resuscitated when it stops, even though it almost certainly could be.
Thus, some see NHBD as “standing by” while a person is dying. Though the heart and lungs may have stopped functioning, the brain remains alive as the physicians watch the patient die. This is because the patient is declared dead based on cardiopulmonary criteria, which define death as the moment the heart cannot naturally resume functioning on its own.
Halakhically, however, removing life support may not be as controversial as it seems. If the patient relinquishes in advance all rights to a respirator and/ or ventilator if and when diagnosed as brain dead, or upon some other medical condition, disconnecting the patient from life support would involve only an abstention from the mitzva of saving a life , rather than active (or even passive) murder.
Furthermore, I would argue that if NHBD is practiced only on brain dead patients, it could become the method of choice according to all opinions  and even allow organ donations according to the strict view of Rabbi Soloveichik. Indeed Rabbi Breitowitz implies as much in discussing the position of Rabbi Auerbach, who did allow the removal of the respirator tube from a brain dead patient. 
III. RIGHTS TO THE RESPIRATOR
Rabbi Moshe Feinstein
A number of posqim allow for disconnecting the respirator, because they see this act as simply removing an impediment to the dying person’s natural death, not as actively hastening it. However, Rabbi Moshe Feinstein prohibited such a move.
I would like to suggest that Rabbi Feinstein might have allowed the removal of the respirator if the patient, through an advance directive, specifically transfers all rights of use of the respirator to the medical team upon reaching a certain medical marker – brain death or otherwise. Once that transfer occurs, the only obligation to maintain respiration would be the commandment of saving life.
Once the halakhic force becomes this positive commandment rather than the prohibition of murder, we can prioritize other patients who may need the respirator as well, and remove it from the brain dead or otherwise compromised patient. Perhaps we should also take into account the suffering of the patient whose life is unduly lengthened by the respirator. The obligation not to murder is clear and unbendable, but the obligation of saving a life is complex, and triage can be applied.
Rabbi Feinstein prohibited the removal of the respirator before NHBD existed, so he had no way of adding the saving of other lives to the equation. Perhaps if the respirator would be used for another patient, and the NHBD organs would save yet another, Rabbi Feinstein would have allowed the removal of this device.
Two People in a Desert: Rabbi Soloveichik’s Deduction
In determining if disconnecting a respirator is murder or just a failure to save life, the importance of who owns – or has rights to – this equipment reflects the thinking of Rabbi Soloveichik as well. His analysis is based on the famous ruling of Rabbi Akiva in b. Bava Metzia 62a:
Two people are traveling, and one has a jug of water. If they both drink, they’ll both die. If one drinks, he’ll arrive safely at the next inhabited area. Ben Petora taught: “Better that both drink, and let not the one see the death of his fellow:” But when Rabbi Akiva arrived, he taught: “‘And your fellow shall live with you’ (Lev. 25:36) – your life takes precedence over your fellow’s.”
Rabbi Akiva reasons that since giving one’s fellow water is “only” saving a life – a case of “do not stand idly by” if ever there were one – this commandment is pushed off in order to save one’s own life. One need not give up one’s own life to fulfill the mitzva of saving life.
Clearly, if there were any question of murder in such a case, one would not be permitted to put his life ahead of another’s. He would be required to at least share the water, if not let the other person drink it all. However, since the water is his, his drinking it doesn’t constitute the murder of his fellow.
Rabbi Soloveichik pointed out that if the fellow took the water from its owner – even to save his own life – that would be murder. However, the owner was permitted to drink all the water to save his own life. As I understand it, this is because, with regard to the fellow, there was only an obligation to save life, which could be obviated by the water owner’s need to save his own life.
Therefore, in our case, if the patient no longer has rights to the respirator, because he has transferred them to the hospital in advance, a doctor’s assigning the machine to someone else is only an avoidance of the obligation of saving life. Such an act is offset by the need to save someone else. It is akin to taking the water away from the fellow; it is not murder.
Removing the Respirator as Strangulation
Some have claimed that removing the respirator and/ or ventilator is akin to actively suffocating the patient, one of the descriptions of murder listed in Rambam’s Mishneh Torah (Laws of Murder 2:1). Yet this difficulty can be alleviated by placing an oxygen mask on the patient after the respirator is removed, to demonstrate that no oxygen is denied him.
Furthermore, it seems to me, Rambam sees air as the God-given property and right of every human. No one may deny anyone else air. However, a machine that pumps air into a person may be owned by individuals – it is not the shared property of mankind. Rather, it is akin to the bottle of water in the desert.
IV. HALAKHIC NHBD
The removal of the respirator, then, as is done with NHBD, would be allowed as long as the patient has forfeited all rights to the machine. However, the patient cannot be declared dead, according to Rabbi Soloveichik, until the cessation of the vital bodily systems, i.e., until cardiopulmonary death and brain death. Therefore, halakhic NHBD a la Rabbi Soloveichik would allow the harvesting of organs only after the patient is diagnosed as dead based both upon cardiopulmonary and neurological criteria.
According to this logic, if a patient is declared dead based on neurological criteria, then halakhic NHBD can be used to create consensus among halakhic authorities. Upon removal of the respirator – as requested in advance by the patient, such that this act is not murder – the patient will be not only brain dead, but dead based on cardiopulmonary criteria as well.
Once the person is brain dead and the respirator is removed, we need wait only for breathing to stop – as should happen immediately if the person is brain dead – and then for the heart to stop soon afterward (for merely thirty seconds, as Rabbi Auerbach writes). Then, since all three systems – cardiac, respiratory, and neural – have stopped, that person should be considered dead according to almost all major positions, including Rabbi Soloveichik’s; the body is just a body, no longer a living human being. Even if the hospital can restart the heart – as some claim – the person is still dead. The person has died, and now the body and organs are merely pieces of equipment – precious equipment, but not living. Any movement, including heartbeat, is equivalent to pirkus be-alma,  random movement.
Rabbi Ahron Soloveichik’s definition of death – combined with viewing removal of a respirator as a lack of saving the patient, rather than murder – allows for an almost universally acceptable halakhic ruling along with the practical and ethical ability to donate and receive almost every organ in the body that would have been harvested through the halakhically controversial brain death definition of death. Patients must, however, issue an advance directive regarding when they relinquish respirator rights. Moreover, while there is some debate over how many organs can be harvested by NHBD (especially after brain death is declared), as medicine advances, no doubt many more organs will become available. Most important, halakhic NHBD may permit organ harvesting even according to those who oppose relying on brain death and/ or removing respirators from patients who have rights to them.
- Regarding this procedure and the ethical concerns it entails, see Dr. Kenneth Prager’s essay in this volume.
- We’ll return to this point in the last section.
- See Raymond J. Devettere, Practical Decision Making in Health Care Ethics (Washington, DC: Georgetown University Press, 2010), 139.
- “Do not stand idly by the blood of your fellow” (Lev. 19:16).
- Although admittedly, NHBD would limit the amount of organs that can be used, since during the few minutes that the person is without heartbeat, some begin to degrade.
- Rabbi Yitzchak Breitowitz, response to letter regarding his article “The Brain Death Controversy in Jewish Law” (Jewish Action 521 no. 2 [spring 1992]), Jewish Action 531 no. 3 (summer 1992), 80 n. 3.
- See note 4 earlier in this essay.
- See b. Hullin 21a.