Rabbi Breitowitz Provides Halachic Overview of Children’s Hospital Case

Posted on November 20, 2008 In Blog

The Washington Post – “The emotional legal battle over whether to keep a 12-year-old New York boy on life support at Children’s National Medical Center ended early Saturday after the boy’s heart stopped beating, an attorney for the boy’s family said [on Sunday].

Motl Brody, who had been at the hospital in Northwest Washington with brain cancer since June 1, was buried near his home in Brooklyn yesterday after a funeral, said the family’s attorney, Jeffrey I. Zuckerman.”

To read this article in its entirety, please click here.

Following the unfortunate passing of Motl Brody, Rabbi Yitzchak Breitowitz – a noted halachic authority on medical ethics – distributed a halachic overview on this complicated case. We contacted Rabbi Breitowitz and he provided us with a revised version of this discussion for OU distribution. We thank Rabbi Breitowitz and appreciate his perspective. Rabbi Breitowitz’s discussion can be found below:

“Many people have been concerned about the issues surrounding Motl Brody, the young patient at Children’s Hospital who was declared brain-dead. I did not want to talk about this publicly while the matter was in litigation since I did not want to say anything that could be used to hurt the Brody family. I have gotten word that Motl, a”h, has passed away after a long and courageous struggle. May he find blessing and joy in the Olom Haemes and may his parents be comforted with the mourners of Tzion and Yerushalayim. At this point, I am able to at least outline the basic halachic concepts in summary fashion:

(1) The patient was diagnosed as clinically brain-dead. This is not the same as a coma, persistent vegetative state, or Terry Schiavo. A person in a coma lacks higher mental functioning but the brain stem still controls breathing, reflexes and the like. Such a person is unquestionably alive. By contrast, a brain-death diagnosis is supposed to mean that no part of the brain functions. Breathing, however, is entirely mechanical though and so because of oxygen, the heart can continue to pump. A number of poskim – the Chief Rabbinate of Israel, Rabbi Moshe Tendler, and the present official position of the Rabbinical Council of America (with many, many dissenters in their ranks) consider the child to be halachically dead. As such, life support can certainly be terminated and indeed organs can be harvested from brain-dead patients whose heartbeat is maintained via oxygen supplied by respirators.

(2) Many other poskim, however, rule that brain-death (i.e. total brain-death) is not sufficient to establish death. Some rule this way because they maintain that heartbeat and circulation are the primary criteria of life. Others admit that total destruction of brain function could in theory establish death but feel that the diagnostic tests are not necessarily accurate and cannot establish death beyond a reasonable doubt. Still others point to possible activity in the hypothalamus. The family of this child obviously followed the anti-brain-death rule.

(3) According to Rabbi Shlomo Zalman Auerbach, z”l, even if one rejects brain-death and treats the patient as fully alive and would not be allowed to kill the patient, one does not have to prolong the patient’s life by medications and artificial respirators. Not only would you not have to put the patient on a respirator, you could even turn it off once the patient is on one. Termination of artificial respiration is not regarded as active killing but rather the cessation of intervention. Thus, Rabbi Auerbach, z”l, would not permit harvesting of organs from a brain-dead patient because that is an act of homicide. However pulling the plug is only the removal of an artificial device prolonging life. Please note, that in the absence of brain-death one would not be allowed to withdraw life support even in a passive way, unless the patient was suffering great pain or the like. Rabbi Auerbach’s ruling only applies to clinically brain-dead patients.

(4) Still, there are those who argue with this point as well. They might agree that there is no obligation to put a brain-dead patient on a respirator because that is a passive withholding of life sustaining treatment, but once the patient is on a respirator, shutting it off is tantamount to murder. Thus, they do differentiate between not putting the patient on and pulling the plug.

(5) Ultimately, then, there are two different reasons why halacha might permit the removal of the respirator. (A) Brain-death is death; or (B) Even if it is not death, the obligation to artificially sustain life is inapplicable to such an extreme condition. At the same time, those who reject brain-death criteria and consider removal of a respirator an active intervention to terminate life could not accept such a dispensation. As such, regardless of how an individual Rav or posek would rule had they been asked, if parents have a psak-halacha that their child should remain on life support, the Jewish community as a whole should support that decision because it does in fact have a reasonable halachic basis.

(6) The issue of pain is not relevant here since brain-dead patients feel no pain. It is true that halacha may and does allow the withdrawal of life support in cases of terminal illness where there is excruciating pain and suffering. A living will that so provides will be halachically recognized… But in the absence of acute suffering, halacha may not permit a blanket declaration that “I do not want to be kept alive by artificial means”. Let me also note that food and water must always be provided even artificially since starving the patient is tantamount to murder. (Under no circumstances does halacha allow active euthanasia. Whether pulling the plug is active or passive is the same machlokes. I alluded to this above with Rabbi Auerbach maintaining that it is passive).

(7) Both the Orthodox Union and Agudath Israel of America have prepared halachic living wills that you can access from the Internet. The forms, however, do proceed on differing halachic assumptions.

(8) Finally, let me note that brain-death is the legal definition of death in Washington, DC and most of the United States including Maryland. From the perspective of the hospital, the child was already dead (again not to be confused with Terry Schiavo). New York State, which also has a brain-death definition, does have an exception for religious belief but other states and Washington, DC do not. As such, legally there was very little the family could do to stop the hospital’s action if the hospital was determined to remove the patient from life support. Nevertheless, it is very rare for hospitals NOT to accommodate family wishes. The allegation that beds were needed in the ICU appears to be untrue. It is also important to note that brain-dead patients generally do experience cardiac arrest, i.e. total death, within days and certainly months of the brain-death diagnosis. As this very case shows, Motl, a”h, did not linger in this condition for long – and that was very much predictable. Why the hospital was so aggressive here is a bit of a mystery though insurance reimbursement MAY – and this is speculation – have something to do with it.

I hope this offers some clarification of a complex matter.

-Rabbi Yitzchak Breitowitz