Is Someone Living on a Heart & Lung Machine Considered Alive?

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LIFE SUPPORTBy Rabbi Micha Cohn

Q: Is a person whose heart is not beating and is living on a heart and lung machine halachically considered alive?

A: When heart transplantation was in its early stages with very low success rates, there was much halachic discussion about the permissibility of these procedures not only from the perspective of the donor, (as discussed in a previous post) but from the perspective of the recipient as well. These discussions raised a fundamental modern halachic problem. If a stopped or missing heart is halachically viewed as death, how could a recipient allow his heart to be removed? Is it permitted to ‘die’ in order to live? The discussion begins with a classic dispute between two great 17th century authorities in the laws of treifos.

  1. The Shulchan Aruch in the laws of treifos (an animal with a mortal condition) writes that an animal missing its heart has the status of a treifa and is not kosher (YD 40:5).
  2. The Kesef Mishnah (Shechita 10:9), written by Rabbi Yosef Kairo, explains why the Rambam does not mention a missing heart when he lists the various ailments that render an animal a treifa. He writes “the Rambam only mentions maladies of organs that if missing or damaged the animal could still live for a short amount of time. However, organs that if missing or removed the animal could not survive even for a short amount of time, the Rambam did not list because these would be considered a neveila – already dead. Likewise, an organ that an animal could not be born without, like a brain, heart, esophagus or trachea, he did not mention because they do not occur”.
  3.  As mentioned in last weeks’ post, the Chacham Tzvi (1600s) was asked about a slaughtered chicken which was opened and no heart was found. Curiously, although as the Shulchan Aruch writes that an animal missing a heart is a treifa, the Chacham Tzvi (#74) ruled otherwise. He argued since as the Kesef Mishnah wrote it is impossible for the chicken to have been living without a heart, the heart must have fallen out and was eaten by an eager house cat. Even though the Chacham Tzvi was challenged about his ruling, he maintained that even if witnesses testify that there was no heart we should consider them to be lying rather than accept the impossibility of a heartless living chicken. The Chacham Tzvi(#77) cited additional proof from the Zohar, Moreh Nivuchim, and Rav Saddia Goan, that the source of life is in the heart and therefore it is preposterous to maintain that the chicken could be living without a heart.
  4. The Kraisi U’Plaisi, written by Rabbi Yehonasan Eybeshitz, took issue with the Chacham Tzvi‘s position. Rabbi Eybeshitz agreed that in the original case of the heartless chicken it is most probable that there was a heart and it was snatched by the hungry house cat. However, to uphold this position and render the chicken kosher even against the words of two competent witnesses is taking this argument too far. Rabbi Eybeshitz points out that the Rambam only omitted this case but did not go so far as to say it is a nevaila – a dead carcass, because he did not want to completely rely on his own logical conclusion that it is an impossibility. Therefore the safer approach would be to consider the chicken not kosher. Interestingly, the Kraisi Uplaisi cited a report from physicians of his time that perhaps other organs could compensate for the heart. [It is also possible that the chicken had a heart but was malformed] The classic late 1800s compendiums on Yoreh De’ah, the Darkai Teshuva and Daas Torah, discuss these differing points of view at length.
  5. In contemporary times the divergent views of the Chacham Tzvi and Kraisi Uplaisi became a focal point in the discussion about the permissibility of receiving a heart transplant. According to the Chacham Tzvi, immediately upon the removal of the recipient’s heart the patient is halachically dead, and the subsequent ‘revival’ after the new heart is implanted could be viewed as a ‘resurrection’! If this is correct, it would be highly questionable if a patient is permitted to ‘die’ in order to live a longer life. While the objection of the Igros Moshe (YD 2:174, CM 2:72) in the letters from 1968 and 1978 considering heart transplantation as “murder of two souls” was because of the very poor outcomes, the Minchas Yitzchok (5:7) and Tzitz Eliezer (10:25.5-6, 17:66.1-2) raised this issue more earnestly.
  6. Rabbi Menachem Kasher in Dirvei Menachem (Shu”t I:27) pointed out that the implications of applying the logic of the Chacham Tzvi to heart transplantation are very far reaching. If a husband undergoing the surgery is considered halachically dead during the surgery, his wife would then be a widow, and after he becomes ‘resurrected’ with his new heart he will have to remarry his own wife! Furthermore, in Rabbi Yisroel Meir Lau’s discussion of this halachic problem (Yachel Yisroel 2:84) he points out that there is no real difference between a heart transplant or a patient undergoing open heart surgery where the regular beating of the heart is interrupted, and yet no one has prohibited such procedures on these grounds.
  7. While there may be various solutions to this halachic problem based on the comments of the Birkai Yosef in Even Haezer (siman 1) and a broader definition of pikuach nefesh and chayei shaah (see Divrei Menachem and Yachel Yisroel for further discussion), I would like to propose a solution of my own.
  8. The son of the Chacham Tzvi, Rabbi Yaakov Emden, sought to alleviate some of the criticism of his father’s position on the chicken missing a heart. He explains (Sheilas Yaavetz 1:121) that his father asserted that the witnesses are not believed not because it is a total impossibility, but because it would be considered maaseh nissim, a miraculous occurrence. As we find in other areas of halacha, while we believe miracles can happen, the remoteness of the possibility would just make it more probable that the witness are lying.
  9.  According to Rabbi Emden’s understanding of his father’s position, he is conceding that a heartless chicken is not fundamentally dead, just a rare and miraculous occurrence. Accordingly, a missing heart is different than other forms of certain death, like decapitation. From a halchic standpoint even if a headless body could miraculously walk and function, it is still not considered alive (!). Based on this new understanding of the Chacham Tzvi, a person attached to a heart and lung machine could still be considered living, just it may be considered an outright miracle. It would also seem that according to Rabbi Emden, his father’s reference to the Zohar and other sources that life is in the heart is a general idea but subject to exception.
  10.  Going further, we can assert that a person living on a heart and lung machine does not need to be viewed as maseh nissim at all but a new reality. There is an interesting discussion among contemporary poskim about whether an infant conceived via artificial insemination can be circumcised on Shabbos. The basic discussion revolves around the comments of Rabbeinu Chananel who wrote that if a woman conceives artificially by being inseminated through sitting in a bath, then Shabbos cannot be desecrated to perform the circumcision because it is maaseh nissim, miraculous. Rabbi Shlomo Zalman Aurbach deliberated over the possible application to today’s artificial reproductive technologies. However, Rabbi Shmuel Wosner (Shevet HaLevi 9:209), strongly dismissed the notion of considering these common place proceduresmaaseh nissim miraculous and maintained that the bris could be performed on Shabbos. Rabbi Wosner explained that we cannot compare artificial reproductive technologies to a crude bath house pregnancy. Rabbeinu Chananel‘s case was a rare and miraculous occurrence very different than the highly developed reproductive technologies of today and are not miraculous but a new reality.
  11. In a similar vein, Rabbi Moshe Feinstein maintains that the definition of treifos in the laws of kashrus is fixed on the mortality of these maladies at the time of the giving of the Torah on Sinai. However, the definition of treifos for criminal punishment depends on the mortality rate in contemporary times (Igros Moshe EH 2:3.2, YD 3:33, CM 73.4). To arrive at the conclusion that the definition of treifah for kashrus cannot follow contemporary conditions, he asserts that the sages recognized that nature changes and these occurrences of survival cannot be dismissed as maaseh nissim, miraculous. Therefore, the definition of treifa for kashrus must be fixed, based on the conditions at the time of the giving of the Torah. In his discussion he writes (Igros Moshe EH 2:3.2); “today this surgery has been done to millions {of people and animals, and they lived} and certainly it cannot be considered a miracle or a minority”. [The Chazon Ish arrived at the same conclusion.] Rabbi Feinstein’s comments about maaseh nissim in respect to treifos fits very well with Rabbi Wosner’s assertion that artificial reproductive technologies cannot be considered miraculous.
  12. Based on these sources we could arrive at the following conclusion. Despite the fact that the Kesef Mishnah and Chacham Tzvi viewed a heartless chicken as dead, they were referring to a chicken living without a heart at all. However, as qualified by Rabbi Emden, the Chacham Tzvi never considered an animal or person without a heart who is seemingly alive to be fundamentally dead, rather highly improbable and miraculous.  The new phenomena of a human being living on a heart and lung machine during an open heart surgery or transplantation (and the heart subsequently being successfully restarted) is yet different than Rabbi Emden’s discussion of the heartless chicken. The very fact that these procedures are commonplace with high success rates forces us to recognize these situations as a new reality, just as Rabbi Wosner recognized artificial insemination as different than Rabbeinu Chananel’s bath house pregnancy. Therefore, although many sources point to the heart as the home of the soul, that is only as a general rule when the heart is removed and there is no heart and lung machine. However, under these unique conditions we can consider the patient to be living, albeit without a heart. Additionally, it could be argued that the machine can be viewed as part of the patient’s body and therefore they are not completely without a heart.  As such, we can consider a patient without a heartbeat on a heart and lung machine to be very much alive and married


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