Below are a series of articles by a popular author who frequently lectures in Orthodox shuls

and institutions

Why I Signed Up To Be An Organ Donor

I am normally loath to publicize my opinion on topics that I have not thoroughly researched.
And I have not thoroughly researched the topic of organ donation. But there is no "shev v'al
taaseh" on this topic, since lives are potentially at stake. And although I have not thoroughly
researched the topic, I do think that the basis for my decision to sign up with the Halachic
Organ Donation Society has weight.

First, I should disclose that I have personal experience with the loss of an immediate family
member (my father) which involved difficult end-of-life decisions, as well as a friend whose life
was saved via receiving a liver donation. While some might argue that this means I am
emotionally biased towards saving lives, I think that it means that I have a better
understanding of the value of life than someone who has never experienced real life-and-death
scenarios.

My reasons for considering that those advocating for the halachic permissibility (indeed,
preferability) of organ donation are correct, are as follows:

Those who claim that organ donation is halachically prohibited are basing themselves on the
idea that a brain-dead person is not truly dead (and thus his organs cannot be recovered),
which in turn is based on various inferences from the Gemara that only cardiac death is
considered true death. But based on my research, it is abundantly clear to me that Chazal,
consistent with standard belief in the ancient world, mistakenly believed that the mind and
soul are housed in the heart and kidneys, not in the brain. It is for this reason that Chazal
considered the status of the heart to determine whether one is alive or not. Now, ordinarily, I
follow the approach of those who say that halachos canonized by Chazal are binding even if
based on mistaken beliefs about the natural world. Being an Orthodox Jew means subscribing
to the halachic authority of Chazal. But I would not adopt that approach in this case, since (a)
it is a matter of saving lives, and (b) it was never formally canonized that cardiac death rather
than brain death defines true death.* (My impression is that those who do not accept brain
death will not declare that Chazal and Rishonim had a mistaken understanding of physiology in
this area; I would be very interested if someone can demonstrate otherwise.)

Another reason why it seems to me that one should be an organ-donor is that it is a case where
fundamental Torah values take precedence over technical halachic discussion. I recall learning
somewhere (perhaps someone can recall the source) that if one is stranded on a desert island,
and the choice is to eat crabs or one's dead co-travelers, then even though from a strictly
halachic perspective there are less prohibitions involved in eating a dead human being,
nevertheless fundamental Torah values dictate that one should eat crab instead. Similarly
here; when we are talking about saving multiple lives at the "cost" of someone who is
effectively dead, I think that fundamental Torah values cry out to save those lives - and I think
that if Chazal were alive today, they would certainly agree.

Finally, someone that I know and respect greatly has written on this topic at Rationalist
Medical Halachah. His analysis appears sound; I know him to be scientifically knowledgeable
(he is a physician) as well as a talmid chacham; I trust his honesty; and we share the same
epistemology, i.e. the rationalist approach.

You can learn more about being an organ donor, and sign up, at www.hods.org.
* Note that the Gemara speaks about cessation of brain function such as breathing, and not
about the brain per se.

With all your Heart, With all your Soul

Continuing with my elaboration of my reasons for signing up as an organ donor, here is a

discussion of the first part of the first of my two reasons. (About a year ago, I noted that when
people give two reasons for something, it's usually the second reason which is the real reason,
and the first one is a smokescreen. That is not the case here!)

As noted, I have not extensively studied the topic of organ donation - which is why I am explicit
about not giving a thoroughly-researched conclusion on the matter. But I have extensively
studied the topic of Chazal's knowledge of science in general, and Chazal's view of the kidneys
in particular (and I plan to e-publish a monograph on this specific topic in the near future). And
this gives two critical insights on the matter, both relating to the fact that the very act of
analyzing different passages in the Gemara in order to determine whether Chazal considered
life to fundamentally depend upon respiratory, circulatory, or neurological activity, misses the
point entirely.

First of all (and this was a point that only occurred to me yesterday, so I am not yet certain of
this), as Rabbi Breitowitz notes, in the ancient world there was no practical situation in which
there was a differentiation between brain death and cardiac death. All vital systems -
respiratory, circulatory, and neurological - would fail at approximately the same time, and
there was no way of keeping one system going while another had failed. Thus, the failure of
any one of them would be a satisfactory indicator of death. As such, any argument that the
Gemara demonstrates Chazal to have conditioned death on a particular one of these systems is
in error.

Second, after studying the matter very carefully in Chazal, the Rishonim, and Acharonim, it is
abundantly clear to me that that Chazal, consistent with standard belief in the ancient world,
mistakenly believed that the mind and free will are housed in the heart (assisted by the
kidneys), not in the brain. There was no concept of organ transplants back then, but if there
would have been, Chazal would definitely have held that the person's identity and soul is
transplanted with the heart and kidneys, not the brain. We today, on the other hand, say that
a heart transplant has no religious significance, whereas if a brain transplant would be
possible, it would mean a person's mind and soul are being transferred. So even if it can be
argued that Chazal considered a person's life to reside in the heart, this is irrelevant, since
Chazal were mistaken as to which bodily organ houses a person's mind and soul.

Is there any Posek who agrees that Chazal were mistaken as to which bodily organ houses a
person's mind and soul, but says that nevertheless they considered cardiac death to be actual
death and were correct to do so? If so, I would like to know about it, because it would
challenge my reasoning. But as far as I am aware, no Posek who does not accept brain death as
actual death says such a thing. As such, the significance of my following this particular aspect
of the topic is not so much that I agree with the reasoning of those Poskim who accept brain
death, but more that I disagree with the reasoning of those who do not accept it, as I believe
that they are fundamentally in error regarding Chazal's beliefs.

I am convinced that if Chazal would have understood the true nature of the heart and brain,
and would have lived in a world where one could distinguish brain death from cardiac death,
and where it was possible to save lives by using the organs of someone who is brain dead, they
would have urged us to do so.

Talmudic Authority and Canonization

Continuing the discussion regarding organ donation: Previously, I explained that Chazal
believed the heart (and kidneys) to be the seat of the mind and soul. As such, the approach of
figuring out how to define death based on Chazal's statements about physiology is
fundamentally mistaken. But if Chazal did believe that life resides in the heart, would we have
to follow them anyway, even if they were mistaken?

In the final chapter of my book Sacred Monsters, I discussed the topic of halachos in the
Gemara that are based on mistaken views about the natural world. I favored the approach of
Rav Herzog and others, which is that the halachos still hold true, for reasons that I explained in
the book. But in this case, there are two crucial differences.

First is that in cases where lives are at stake, nobody follows the Gemara. The classic example
of this is that the Gemara says that whereas a baby born in the seventh month of pregnancy
can be viable, a baby born in the eighth month is not, and thus one may not violate Shabbos to
save its life. Now, people come up with all kinds of explanation as to why the Gemara is not
binding - nishtaneh hateva of babies, nishtaneh hateva of medicine - but the bottom line is,
pikuach nefesh trumps everything. Nobody is going to let an eight-month old fetus die just
because Chazal said it's not viable. So if it is the case that a person's soul is seated in his brain
rather than his heart - and I think that is clearly so - then there is no essential halachic
problem of killing him, and the pikuach nefesh of saving all the people that can be saved with
his organs would supersede the importance of upholding Chazal's authority.

The second difference is that it's not as though the Gemara said "A brain-dead person is still
halachically alive." Instead, those who do not hold of brain-death infer this position from
various halachos in the Gemara dealing with different aspects of life and death, such
determining whether people in a collapsed building are alive. Now, the halachos themselves
are perfectly valid, given the medical realities of the period. It is only the inferences, which
depend upon Chazal's (and Rashi's) understanding of physiology, which are problematic. Thus,
even if the inferences are correct from the point of view of analyzing Chazal, but one ignores
them because Chazal had a mistaken view of physiology, one is not contravening any actual
halachos in the Gemara.

Torah Values Vs. Halachah

Continuing, and hopefully wrapping up, the topic of organ donation, here is a discussion of my
second reason for becoming an organ donor. I would like to reiterate (because people ignored
it the first time) that I am NOT issuing a "psak," nor have I even studied the matter thoroughly.
But since we all decide whether to sign up as organ donors or not, I am explaining why, until I
thoroughly research the topic and reach a final conclusion, in the meanwhile I am signed up.

Although it is not true to say that "where there is a rabbinic will, there is a halachic way," it is
true to say that sometimes fundamental Torah values either override halachah or dictate its
direction. Now, this is a principle that certainly is and has been open to abuse. For example,
although homosexuality is a very difficult topic, one can't simply say that because there are
fundamental Torah values of freedom (or whatever) then it should be permissible -- since there
is a contrary and explicit Torah value that homosexuality is forbidden. Likewise, to say that
because there is a fundamental Torah value of compassion for the downtrodden, therefore it
should be halachically permissible to engage in policy X for the Palestinians, may ignore the
fact that there are contrary halachic principles regarding Eretz Yisrael and/or Jewish welfare.
So if there was a clear and unequivocal position in Judaism that brain death is not death and
organ donation is prohibited, one could not use the idea of fundamental Torah values to
override it.

But we do see that there is a concept of the spirit of the law that is not always in accord with
the letter of the law - a perfect example is naval b'reshus haTorah. And we also see that
Poskim will in some cases have a clear direction in which they direct their halachic conclusion -
for example, with certain question of niddah or agunah. Furthermore, while I don't think it is
even necessary to invoke it for this case, there have been authorities who have explicitly said
that there are Torah values that are even more fundamental than halachah and override it.
Ironically, this occurred with the first Charedim! R. Yisrael David Margaliyot-Jaffe Schlesinger,
a disciple of Chassam Sofer, made this argument in order to justify issuing rulings that were not
founded in halachah; see Michael Silber, "The Emergence of Ultra-Orthodoxy: The Invention of
a Tradition," p. 54 (although this did meet with opposition!) Dr. Marc Shapiro discussed how R.
Moshe Shmuel Glasner considered certain values to be more fundamental than halachah and
thus override it, and how even Rav Soloveitchik - the Halachic Man - wrote that "the halakhic
inquiry, like any other cognitive theoretical performance, does not start out from the point of
absolute zero as to sentimental attitudes and value judgments. There always exists in the mind
of the researcher an ethico-axiological background against which the contours of the subject
matter in question stand out more clearly."

So, getting back to the topic of organ donation, and incorporating the "common-sense
principle" discussed by Rabbi Dr. RMH, here's how I would apply it:

1. It is a fundamental Torah value to save lives. Lo ta'amod al dam reyecha. And several lives
can be saved by organ donation from a brain-dead person.

2. It is established beyond reasonable doubt that all thoughts, feelings, etc., occur in the
brain, and not anywhere else in the body.

3. It is established beyond reasonable doubt that someone who is brain-dead is not coming
back. Ever. Forget about all the medical miracle stories - it's not happening in this case.

4. The halachic status of brain-death cannot be clearly derived from Chazal; there are disputes
as to which inferences to make from their words, and in any case they had a fundamentally
different medical reality as well as conception of physiology.

So you have someone who is certainly effectively dead, who is dead by virtually every measure,
who left instructions with HODS that he himself wants to be considered dead in such
circumstances, and who even from a halachic perspective can well be argued to be dead. By
doing so, several lives - real lives, of people who can feel and think and speak and act and who
do mitzvos and who want to live and who have families who want them to live - will be saved.
That is the final, tremendous act of chessed that the departed wanted to do - making his
unavoidable death save the lives of others. Surely that is clearly what Hashem wants, what
Chazal would have wanted, and the direction that the halachah should take.

You can learn more about being an organ donor, and sign up, at www.hods.org.

Quiet Revolutions

Someone by the name of Aryeh Gregor wrote an excellent, insightful comment on the previous
post which requires discussion:

I think you miss a lot of subtleties here.

Yes, the final authorities on all issues are contemporary posekim. This
is how it's supposed to be: each community must follow its own leaders
in its own generation. This is what we learn from Parshas Shofetim,
where the Torah says "‫ואל השפט אשר יהיה בימים ובאת אל הכהנים הלוים‬
‫"ההם‬. As Rashi explains ad loc., the Torah says "in those days" to
teach us that we must follow the leaders in our generation even if
they're lesser than previous generations.

In the time of the Sanhedrin, this was explicit. As with modern

legislatures, the ruling of a later Sanhedrin superseded any previous
ones. Although the earlier ones were presumably greater -- the members
of some were nevi'im -- the later ones had more authority, because they
were expected to take into account the earlier rulings and only
overturn them for good reason.

This is the key point. Judaism does not operate according to a purely
traditional model in which nothing can ever change. But neither does it
give complete authority to each generation to do as it will. Each
generation's leaders must decide for themselves how to rule, but only
as far as they pay great respect to past rulers.

So the correct summary would be that the current posekim are the final
authorities. But they must give very great weight to the rulings of the
Acharonim, who must give very great weight to the rulings of the
Rishonim, etc. In most cases, if the Gemara decides an issue the
Rishonim will not overrule it; if a clear majority of Rishonim agree on
an issue the Acharonim will not overrule it; and so on.

Now, in every generation you can find plenty of places where earlier
generations are actually overruled. But this is part of the system, as
long as it's done with great respect and in limited doses. Almost any
major posek will overturn at least a few significant precedents. This
is true for the modern/rationalist world just as much as for the
chareidi world, or probably more so.

An unwritten rule is that when overturning an established ruling,

posekim must try to explain how the earlier ruling wasn't really wrong.
This can range from saying it wasn't really talking about our
situation, to saying it was a copyist's error or forgery or "don't ask
questions". The explanation can be elaborate or implausible, but it
should be there.

This rule is unwritten, of course, because to write it down clearly

would be to admit that you're being a bit dishonest. But it's clearly
present in the Gemara already -- ‫ ?הכא במאי עסקינן‬That phrase and those
like it are the sign that an illogical, contradictory, or otherwise
problematic Mishna or Beraisa is being reinterpreted. Out of respect,
the Gemara maintains the fiction that the Tanna'im meant something that
they clearly did not. Subsequent posekim follow in their footsteps.

(This is why your essay on the kezayis was "disrespectful". Normally we

take pains to pretend we don't think earlier posekim were wrong even if
we're overruling them. You demonstrated at great length that they were
wrong, without even the reason of needing to overrule them.)

Since each generation pretends to agree completely (not just almost

completely) with all the earlier ones, someone who doesn't think about
it much might be fooled into thinking the agreement is real. This isn't
a bad thing -- it lends legitimacy to the religion. "We've always
followed the same halacha" is much easier to teach and accept than "We
generally follow the same halacha, except when particularly influential
rabbonim change it." Most people will not cope well with sophisticated
or subtle theology.

Anyone with much learning is not going to really be fooled, though. No

one who knows anything can claim that the Amora'im would have agreed
with all the halachos in the Shulchan Aruch. For the more
sophisticated, we have principles like ‫היא לא בשמים‬, and the story of
the tannur shel Achnai and others in that vein. These emphasize that
the accepted halacha is correct even if it's not exactly what earlier
generations accepted.

But this isn't what's emphasized publicly, because it appears to

undermine traditionalism. Talking about it undercuts respect for
earlier generations.

As far as the gedolim not having the freedom to rule as they please --
this is inevitable until we once again have a central religious
authority that can rule by fiat. The general population must choose
whom to listen to somehow, if they're given a choice. It would make
little sense to suggest that they should choose one posek according to
their whim and then follow him forever no matter what, without ever
considering a change to a different posek. Whatever guided their
original choice can also guide subsequent choices.

Rabbonim always have to tailor their messages so that their flock will
listen to them, whether that means supporting the political-religious
ideology du jour, not mentioning halachos that their congregation
doesn't want to hear about, or anything else. Rabbonim are not supposed
to just mechanically produce halachos, they have to get people to
follow them, and thereby follow Judaism. This will always involve
political decisions.

I think nothing I've said here and nothing you've said in this blog
post is specific to charedim or anti-rationalists. The only difference
is perception and presentation. Modern and rationalist posekim overrule
old decisions too, while also not claiming to be as great as the ones
they're overruling. They're only somewhat more honest (i.e., less
respectful) about what they do. The big difference is that they less
often deny the validity of alternative positions, not that they have a
different idea of how to arrive at halachic conclusions.

I would basically agree with everything that Aryeh said (except for his comments on my kezayis
essay!). In fact, I have long studied and taught similar such ideas myself. Menachem Fisch, in
"Rational Rabbis," argues that this is basically the purpose of the Gemara; to show how to
change the rulings of previous eras without making it look as though that is what one is doing.
Traditional societies are based on the idea of the authority of previous generations, and thus
revolutions cannot be presented that way. Concepts like nishtaneh hateva are sometimes
invoked even when those invoking them know full well that this is not the case, but by
describing the situation in this way, they can change the halachah without undermining the
authority of the earlier decisors.

Was not my previous post then seriously flawed in its focus? Was it not a criticism of the
standard halachic process rather than a particular group of anti-rationalists?
It's true that the standard halachic process does involve quite a lot of this effective overruling
of earlier authorities under the guise of doing no such thing. And this is something that is often
bothersome to me, as much as I appreciate the necessity for it. And I do recognize that some of
my writings undermine the values behind this process (I justify it on the grounds that people
today are more knowledgeable and benefit from being filled in more). So, the basic approach
that I criticized in the previous post is really a fundamental part of Judaism. Nevertheless, with
the rationalist approach, it is significantly less troubling, for several reasons.

With the rationalist approach, it is understood that the authority of rabbinic decisors from
previous eras is institutional. It does not stem from their being of superhuman intelligence or
possessing divine inspiration, but rather from their unique historical situation and the
consequent canonization of their rulings by those of subsequent eras. Since their authority is
institutional, changing their rulings via halachic sleight-of-hand does not really undermine this
authority. Furthermore, it is understood that any changes in halachah or theology do not
reflect negatively on the earlier figures. People think differently in different times and places,
and we are able to benefit from the advances of earlier generations, but we still respect the
accomplishments of earlier figures and understand how they reached their conclusions even as
we quietly diverge from them.

In contrast to this are the anti-rationalists, who will loudly insist that everyone acknowledge
that the earlier generations were infinitely more intelligent and knowledgeable and holy, and
yet toss their views out of the window and declare them a perversion of Judaism whenever it
suits them. Deep down, they don't really respect the Rishonim at all; they just capitalize on
certain mantras such as Rishonim k'Malachim in order to boost their own authority. Moreover,
they attempt to suppress the right of others to still respect these earlier authorities and follow
their approach, and they engage in large-scale revisionism of history in order to delegitimize
those who follow the earlier approach. Now, I do understand their reasons for this -
maintaining a certain way of life in face of the threats of modernity - but the aggression with
which they impose this on others is jarring.

Furthermore, when there really are very good reasons to quietly diverge from earlier
authorities - such as with organ donation - it is never done. Whereas in the past, this sort of
divergence from earlier positions was done for pressing public benefit, today it only seems to
be done in order to advance anti-rationalist agendas. The people ultimately wielding the power
in determining the direction that these revolutions take appear to be the less-than-savory
kanna'im and askanim rather than rabbinic leaders with wisdom and sensitivity to the needs of
the generation.

It is true that the anti-rationalists are following a traditional approach of engineering

revolutions that are deemed necessary (and I do appreciate the reasons why they see it as
necessary) by effectively rewriting history. But the extreme nature of this revolution, in
conjunction with the intolerance for those who really do want to follow the Rishonim for
excellent reasons, the selectivity with which this approach is applied, and the nature of the
people driving these revolutions, is what I personally find extremely disturbing.

All above articles were written by:

Rabbi Natan Slifkin
(Author of numerous books and articles
on the interplay between Science and Torah)
All articles taken from his popular blog:
Rationalist Judaism
http://www.rationalistjudaism.com/
December 2010