End-Of-Life Issues

Difficult Conversations

October, 2019

Last week we shared a story about end-of-life issues and the need to have frum doctors as well as knowledgeable rabbanim with whom to advise. This week, we will continue on this theme while touching upon another end-of-life issue that we can and should deal with post-haste.

The July 21, 2006 issue of the Wall Street Journal ran a column titled “How Faith Saved the Atheist”. In it, the writer tells the story of how when her father lay dying in a New York City hospital every doctor sought to convince them to let him “Die with dignity” and not seek to extend his time further. The writer, an unaffiliated Jew, came up with a ruse: she told the doctors that her father was an Orthodox Jew (he was not). According to her telling, this finally caused, in her words, “an invisible fence” to go up around their family, where no longer were the doctors and nurses asserting or hinting to a swifter demise. The writer remarks: “Though my father was born to an Orthodox Jewish family, he is an avowed atheist who long ago had rejected his parents’ ways. As I sat in the ICU, blips on the various screens the only proof that my father was alive, the irony struck me: My father, who had long ago rejected Orthodox Judaism, was now under its protection.”

But such holy protection can come with complexity.

Several years ago I was called down to a hospital. The elderly woman lay unconscious in her bed and her husband of over sixty years looked sad, tired and worn.

“Rabbi, I am glad that you are here. There are so many decisions that need to be made, and I have no idea what is wrong or right, what is moral or amoral. My wife knew that I would not be able to handle such momentous choices, and so a few years back she put you down as her health care proxy.”

A ‘Health Care Proxy’ is a document that names an individual who would have the power over all medical decisions should one, Rachmanah l’tzlan, be incapacitated.  The Health Care Proxy is distinct from a ‘Living Will’. A Living Will’s job is to pick up where the health care proxy left off by explaining in it as much detail as is desired in regards to specific directives to the proxy such as which rabbanim to ask shailos to (more than one should be offered as not always can a rav be contacted), and what the patient would want in any number of scenarios.

The man then said something to me that stopped me cold in my tracks. “She was so happy to put you down as her health care proxy because she knew how you believe in the halachic concept of ‘brain-death’”

However, nothing could be further from the truth. Although I am certainly not near being a bar plugta in such devarim sh’omdim b’romo shel olam, I certainly follow the mainstream view –as articulate clearly by the major poskim of the last generation, and their students – that ‘brain death’ (defined as such only in specific scenarios and criteria) should not be deemed halachic death.

While this is not the place to go into the details, certain matters are important for readers to know, so as to be aware how doctors think and so that the proper paperwork is filled in.

In the the 1960’s doctors began to succeed in transplantation of major organs. But there was a paradox. On the one hand, one can not murder someone, yet on the other hand, for some transplantations they would need a ‘live’ organ. Let us quote from the National Center of Biotechnology:

“This, in turn, generated demand for increasing numbers of organs, especially from dead individuals, producing a paradox: “the need for both a living body and a dead donor.” The groundwork required to resolve this paradox had been laid in 1968 by Henry Beecher and the Harvard Ad Hoc Committee’s proposal that a person could be diagnosed as dead when there was irreversible cessation of the function of the entire brain”.

This became known as “The Harvard Criteria”, (and is not referring to a vegetative state). It was largely dismissed by the major poskim, with Rav Elyashiv and others signing a letter against our acceptance of such a protocol not found in chazal.

Yet there are some rabbis and vocal figures (including Dr. Steinberg, the editor of the ongoing Encylopidia Talmudis) who, although a minority, support certain types of brain death in halacha based on their personal communication with some of the great sages who in the past publicly rejected it.

I share this with the reader because it is crucial information, and choices can be made on one’s behalf. Everyone should make sure to compose a health care proxy and a living will. One can easily find the Agudah’s version of a living will to be appended to one’s will. And, one should meet with their morah horah to discuss these issues so that they know what to do in case the worst happen, challila.

Here I was in a hospital having to decide between what I believed to be daas Torah, and what this patient had articulated to her husband. Of course, I knew what I felt was right, but I was in a situation where I would have to either reject involvement or explain to the husband why I was not able to follow his wife’s clear ratzon. With clear planning, this could have been avoided.

In 1772 the Duke of Mecklenburg demanded that all bodies remain unburied for three days to assure death actually took place. Some scholars, including the maskilim, supported this decree while the Chasam Sofer (Yoreh Deah 338) and major poskim did not, demanding instead that we rely on halacha and mesorah and not fear or personal whims. This is true whether it is about pronouncing death earlier than culture would, or later.

This story is highly illustrative, for while many believe that halacha is always stringent when it comes to these issues the truth is that the only concern in hashkofos haTorah is for Tores Emes to be reached, whether its a leniency or stringency.

Write a Living Will, talk to your rav, and in the zechus it should never be needed.