Dilemmas in Matters of Human Life – Lesson 9

Table of Contents

• Two conclusions: consequential reasoning and the value of temporary life
• Indirect causation, confinement, and the law of the pursuer versus liability for death
• “Kam lei bid’rabba minei” according to the type of transgression, not according to the actual punishment
• The definition of temporary life and the analogy of the vessel and the arrow
• Dangerous surgery: losing temporary life versus a chance for full life
• “One is not treated by them” and “we are not concerned for temporary life”: the Talmudic text, Tosafot, Maimonides, and the Shulchan Arukh
• Achiezer and Mishnat Chachamim: a Jewish doctor, a terminally wounded person, and the question of formalism
• Siamese twins and the image of jumping from the roof of a burning house
• Organ donation: brain death versus cardiac death, and a proposed alternative framing
• Consent, ownership of the body, and the limits of coercion
• The burden of proof, doubt, and “passive omission” as pricing damages

Summary

General Overview

The speaker sharpens two conclusions from the discussion: in life-and-death dilemmas, the central consideration is a consequential one—how many lives will be saved versus how many will be lost—not a formal consideration based on definitions like indirect causation, abnormal action, or liability for death; and at the same time, the infinite value of human life means that “temporary life” does not enter the calculation when full life is at stake. He illustrates this through topics such as handing a person over to gentiles, the law of the pursuer, dangerous surgery, and he concludes with a renewed claim regarding organ donation that tries to bypass the dispute over brain death versus cardiac death by using a concept of functional “value of life,” while raising the question of the burden of proof and understanding “passive omission” in consequential terms.

Two Conclusions: Consequential Reasoning and the Value of Temporary Life

The speaker states that in dilemmas involving capital law, the considerations are not formal but consequential, and therefore the ruling is measured by the question of how many lives will be lost and how many will be saved. He argues that in the case of handing a person over to gentiles in the Jerusalem Talmud in Terumot, even though the one who hands him over is not a murderer in the formal halakhic sense because the killers are responsible agents and the act is at most indirect causation, the halakhic calculation relates to the factual result that the person was handed over to death. He adds that in that same Jerusalem Talmud, they do not include the temporary life of the many who will be killed if they do not hand over one person, and from this he concludes that when full life is on the line, temporary life is not a factor in the decision-making calculation, even though temporary life still counts as “life” for other purposes, such as violating the Sabbath in order to save it.

Indirect Causation, Confinement, and the Law of the Pursuer Versus Liability for Death

The speaker explains that handing a person over to people who are going to kill him is different from throwing a person into a fire, because human beings make a decision and practical responsibility rests on the killer, similar to the principle of “the words of the master and the words of the student.” He cites a dispute among the medieval authorities (Rishonim) regarding the law of someone who kindles a fire and the fire goes in a normal wind toward a bound person, and he presents the Minchat Chinukh, who innovates that the exemption from the law of a murderer according to Maimonides and Tosafot can be reconciled with the liabilities in the passage through the law of the pursuer and through an understanding of “kam lei bid’rabba minei.” He rejects presenting this as some great novelty and argues that the law of the pursuer does not depend on the formal question of whether the act creates liability for death as a murderer, because the very fact that he stands ready to kill is what is relevant, and he sees in this another expression of the fact that Jewish law in capital matters responds to a consequential calculation rather than a technical classification of forms of action.

“Kam Lei Bid’Rabba Minei” According to the Type of Transgression, Not According to the Actual Punishment

The speaker explains that “kam lei bid’rabba minei” is determined by the type of transgression a person committed, not by the punishment he will actually receive, and therefore even a pursuer who is not “liable for death” in a religious court is exempt from monetary payment simply by virtue of being in a death-liable status at that moment. He gives the example of “those liable for death unwittingly” in Bava Kamma and emphasizes that the punishment is an indication of the transgression, not the other way around. He uses this to establish the possibility of reconciling passages about damages and murder even where there is no liability for death as a murderer, without turning the discussion into a formal question of definitions.

The Definition of Temporary Life and the Analogy of the Vessel and the Arrow

The speaker connects the essence of temporary life not to the duration of time but to the fact that the mechanism of death is already “inside you,” meaning a situation in which the end is lacking only time. He illustrates this through Tosafot, which distinguishes between a vessel thrown from the top of a roof, which is considered broken already from the moment it leaves, and a vessel at which an arrow has been shot, which is not considered broken until the impact, and he applies this to the difference between ordinary life, in which “an arrow is advancing,” and temporary life, in which the person is already on a final course. He raises a theoretical possibility of early genetic identification of a short life expectancy and wonders whether that would count as a pathology of the kind called temporary life, or as natural variation.

Dangerous Surgery: Losing Temporary Life Versus a Chance for Full Life

The speaker presents a dilemma involving a dangerously ill patient who, without surgery, will die after a limited time, while the surgery may save him but may also kill him immediately and deprive him of the temporary life he still has left. He states that one may enter such a risk because temporary life is not weighed against full life, and he even suggests that many halakhic decisors permit this even when the chances of success are very low, if this is the only possibility for full life. He emphasizes that the question is not whether the doctor is formally a “murderer,” but whether the action is consequentially life-saving, and therefore failure of the surgery does not turn the doctor into a murderer but into someone who performed a life-saving act that did not succeed.

“One Is Not Treated by Them” and “We Are Not Concerned for Temporary Life”: the Talmudic Text, Tosafot, Maimonides, and the Shulchan Arukh

The speaker brings the passage in Avodah Zarah 27: “If he may be alive or may be dead, one is not treated by them”—by idolaters—out of concern for bloodshed; but by contrast, if he is “certainly going to die, one is treated by them,” because “we are not concerned for temporary life.” He explains that the Talmudic text itself asks, “If he is dead, is there such a thing as temporary life?” and answers that the consideration of temporary life is not decisive when there is a chance to save full life, and it adds a source from the four lepers—”If we say, we will enter the city…”—to establish the principle. He cites Tosafot, which reconciles this with Yoma, where one violates the Sabbath for temporary life, and formulates a distinction: sometimes we are concerned for temporary life when there is no alternative of full life, but where inaction leads to certain death and action creates a chance for full life, we do not prefer the certainty of temporary life over the possibility of full life. He notes that this is how the law is ruled by Maimonides and in the Shulchan Arukh, with the qualification of an “expert known to the public,” which reduces the concern for murder on the part of a gentile doctor.

Achiezer and Mishnat Chachamim: a Jewish Doctor, a Terminally Wounded Person, and the Question of Formalism

The speaker cites a responsum of the Achiezer about a patient who, according to doctors, would not live more than six months without surgery, and with surgery there is a possibility of being saved, but “the surgery is very dangerous and it is more likely that he will die quickly.” The Achiezer permits it even when the rescue is only “in a remote way,” on the basis of the principle from Avodah Zarah. He brings the uncertainty of Mishnat Chachamim, which limits the permission to the case of a gentile doctor on the grounds that one is not concerned about a gentile violating the prohibition of murder, and he raises a possibility to be lenient regarding a Jewish doctor if the patient has the status of a terminally wounded person, since in the laws of murder one who kills such a person is exempt—while also noting that Maimonides is stringent regarding descendants of Noah who kill a terminally wounded person. He concludes that the Achiezer rejects all these limitations and rules that there is no difference between a Jewish doctor and a gentile one, because “since we are not concerned for temporary life,” this is not an act of murder at all but a doubtful life-saving case that overrides temporary life, and he presents this as further proof that Jewish law here operates consequentially rather than formalistically.

Siamese Twins and the Image of Jumping from the Roof of a Burning House

The speaker applies the same logic to the separation of Siamese twins and argues that the surgery is justified because it saves the full life of one where otherwise both will die after temporary life if they are not operated on. He describes the ruling as a kind of lottery that gives each twin a 50% chance at full life versus a 50% chance of losing temporary life, and he compares this to a person standing on the roof of a burning house, who is permitted to jump even though there is danger in the jump, because refraining leads to certain death. He notes opposition from halakhic decisors through reports of conversations and halakhic surveys, but argues that no reasoned objection was heard against him beyond the claim that “all the decisors disagree.”

Organ Donation: Brain Death Versus Cardiac Death, and a Proposed Alternative Framing

The speaker presents the usual halakhic debate about organ donation in the state between brain death and cardiac death, where removal of the heart and lungs is possible only before cardiac death, and the permissibility is seen as depending on the question whether brain death is the halakhic moment of death. He criticizes medical-public arguments that prove brain death from the fact that it is irreversible, and says this begs the question, since birth too leads with certainty to death in the future and yet does not make a person “dead” in the present. He argues that there is no need to decide the dispute about the moment of death, because even if brain death is not halakhic death, this is still life of such low functional value that it amounts to “zero life value,” and he proposes that a person in such a condition may give over his life or his organs in order to save the full life of another, provided there is consent. He grounds the concept of value of life in a halakhic approach that measures the value of life also according to the capacity to fulfill commandments, and he cites the Meiri, who raises the consideration of “violate one Sabbath for him so that he may keep many Sabbaths,” and explains that other commandments as well justify violating the Sabbath to save temporary life, using this as an illustration of a direction of thought in which the quality of one’s commandment-performing function affects the evaluation.

Consent, Ownership of the Body, and the Limits of Coercion

The speaker emphasizes that there is no place for taking organs “without consent,” and explains this by saying that life and the body belong to the person and the decision is entrusted to him, just as one cannot save a person with someone else’s money without permission, even though life is more important than money. He mentions a discussion about forcibly taking a kidney in order to save a life and presents the claim that although saving life overrides prohibitions, ownership and authority over the decision cannot be bypassed by force. He notes a difficult question regarding a minor and wonders whether parental consent would suffice, or whether a religious court would be required to determine an assessment that a reasonable person would have agreed, and he leaves this open.

The Burden of Proof, Doubt, and “Passive Omission” as Pricing Damages

The speaker argues that the dispute between a formal consideration and a consequential consideration also affects the question of the burden of proof in a situation of doubt, and he places the burden of proof on those who prohibit organ donation because, in his view, their position results in the effective death of those waiting for a transplant. He interprets “passive omission” not as physically refraining from action but as choosing the path with the “minimal cost,” and he argues that in the case of organ donation, the minimal cost is דווקא action that saves full life. He distinguishes between a claim of an “even doubt” and the assertion that even in such a doubt, the default should be examined according to the result and not according to whether the act is formally defined as “positive action” or “passive omission.”

I want to open with two conclusions that emerged from the discussion up to this point, which I didn’t sharpen enough. I said them, I hinted at them at the beginning of the series, but now I want to sharpen them because now we’re really getting to the point where we’ll use them. We spoke about separating Siamese twins, and about that Jerusalem Talmudic text regarding “Give us one of you, otherwise we’ll kill all of you,” and you have to pay attention to two points there. One point is that there’s some consideration there of temporary life. In the Jerusalem Talmud, say that we hand over the person to those who are besieging us—in any case, meaning when we hand the person over to those besieging us, I’m not talking about temporary life; I’m talking about the consequentialist consideration. Meaning, there are really two points here. One point is that the calculation we’re making is a consequentialist calculation. About that I spoke a bit at the beginning. The second point is the value of temporary life. As for the consequentialist calculation: when we hand a person over to those besieging us outside the city, basically you could say that we are not performing an act of murder. We give him to them, they kill him, we are indirect causation. Exactly how to define it in the terms of indirect causation—confining, or all kinds of things of that sort. Simply speaking, it’s not confining; it’s indirect causation at most, because in the end there is a human being with awareness who kills him, meaning there’s a person at the end of the process. It’s not that I throw him into a fire and the fire burns him—when I throw someone into a fire, it’s obvious that’s direct murder. But if I hand him over to people and those people decide to kill him, then I’m only indirect causation. Now, I know they’re going to kill him. Putting him before a lion. What? Before a lion. Tying him up before a lion—that’s the topic of confining. Before a lion, before the sun, right. But it’s not similar. These are human beings, and human beings make decisions. Now, I know they’re going to do it, but if you ask who is guilty, it’s the person who decides to do it; the guilt is on him. Like “the words of the master and the words of the student.” Meaning, the one who ultimately does the forbidden act is the one responsible for it. True, I know this is going to happen, so obviously I’m indirect causation, but in terms of the laws of murder you can’t see me as a murderer. And nevertheless, the whole calculation made there all the time is as though we’re dealing with murder. Because it’s handing someone over. Yes. Meaning, what do I want to emphasize here? That the considerations in life-and-death dilemmas, and I stood on this at the beginning of the series, are not formal considerations. They are not considerations like: I’ll do an act of murder indirectly, unusually, I’ll solve the formal problem. For us, what matters is how many lives will be lost versus how many lives will be saved. Meaning, the consideration is a consequentialist one. And here and there there are exceptions—we’ll see one today—where people somehow try to insert this into a formal consideration. In my opinion that’s incorrect; it doesn’t stand up to either the sources or common sense. Just yesterday I saw and learned a different topic—I saw a Minchat Chinukh who wants to innovate: what happens if I light a fire and the fire spreads with a normal wind, and there’s a bound slave there. A topic in tractate Bava Kamma. A person—it doesn’t matter—a bound person, and the fire kills him. So the question is whether I’m called a direct murderer. That’s a dispute among the medieval authorities (Rishonim). There is “his fire is considered like his arrows,” and we rule in Jewish law like Rabbi Yohanan, that his fire is considered like his arrows, meaning to send fire with a normal wind is like shooting an arrow. But the view of Maimonides and one view in Tosafot—there’s a dispute between two opinions in Tosafot in tractate Sanhedrin—say that this is not called murder when you light the fire here and it goes with a normal wind toward a bound person. You would not be liable to death as a murderer, even though regarding damages we view it like an arrow. So how do they explain the Talmud? It’s an explicit Talmudic text; the Talmud says you are liable to death and therefore “he is exempt due to the greater liability.” About that the Minchat Chinukh says: there is “he is exempt due to the greater liability” because of the law of a pursuer, not because you’re liable to death. After all, even a pursuer who broke vessels is exempt for the vessels. Now, someone who lit the fire and the fire is going with a normal wind to burn a bound person is not liable to death according to Maimonides and Tosafot—meaning he isn’t a murderer. But clearly he is a pursuer, because he’s going to kill someone. Therefore, for example, if I can kill him to stop him from lighting that fire, then I have to kill him even though he isn’t liable to death under the law of murder, and he also won’t become liable to death afterward once he dies. But the law of a pursuer exists here. How does that work chronologically? What do you mean, how does it work chronologically? After all, when is he a pursuer? When he lights it. When he lights it. Now after he lights it, you can no longer kill him. The damage he causes happens after he lit it. No—“his fire is considered like his arrows.” The moment his fire is considered like his arrows, then every moment that the fire continues to burn is by force of the first lighting, and therefore it is as though simultaneous. There is the Nimukei Yosef in the second chapter of tractate Bava Kamma; he asks: how is it permitted to light Sabbath candles? After all, you light Sabbath candles, and if his fire is considered like his arrows, then you light Sabbath candles on Friday, but the fire all the time as it continues burning is by your power, so it comes out that you are violating the prohibition of kindling on the Sabbath. And therefore it’s permitted… No, he asks that because the conception is not that at every moment you are considered to be kindling, and then he discusses there why nevertheless it is permitted. The conception is that at every moment you are kindling; that is called “his fire is considered like his arrows.” Yes, but you can’t kill him… No, because it won’t help to kill the… because it won’t help save the pursued person. You are forbidden to kill a pursuer if that won’t save the pursued person, even if he really is a pursuer. You may kill a pursuer only where you need it in order to save the pursued person. So when is he under the law of a pursuer? When he’s on his way to light it. When he’s on his way to light it. When he’s on his way to light it, I kill him so that he won’t light it. Okay? Or I kill him in order to extinguish the fire with his body, I don’t know what… I’m bringing this Minchat Chinukh because he says this is a very big innovation, that’s what he claims: that there is a law of pursuer here even though the one who lit the fire is not liable to death. Behind his words stands the Rashi we saw, who says that the law of pursuer is “save him with his life”—save him with his life, not the pursued person, save the pursuer with his life, save him from the prohibition of murder. And then if he isn’t liable to death here, there isn’t really a prohibition of murder here, so what is the permission to kill this pursuer? To me it seems completely obvious—there’s no innovation here at all. It’s completely obvious that he is a pursuer. Someone who is about to kill another person is a pursuer; it has nothing to do with the formalism of whether you will violate the prohibition of murder or not violate the prohibition of murder. That’s a completely different question, and again this is an expression of that point: when we are in dilemmas involving capital matters, our considerations are not formal ones—do it with the left hand, do it unusually, do it indirectly. The question is whether lives will be saved or lives will be lost; in other words, the question is a consequentialist one. And therefore also in handing over the person there in the Jerusalem Talmud in tractate Terumot and in the examples I brought there—when we hand the person over to the gentiles, we are not considered murderers, but the calculation being made as to whether it is permitted or forbidden to do so is treated as though we are performing an act of murder. It makes no difference at all that someone who does such a thing would not be liable to death as a murderer; rather, exactly as the Minchat Chinukh said, simply: you are handing a person over to death, and in fact he will end up dying. Meaning, the consequentialist consideration there is that the person will die, and then we have to discuss whether that is permitted or forbidden and under what circumstances. There is no question here of whether you are liable to death, whether you violated “do not murder” or not. It does not work on the regular halakhic plane we’re used to in other halakhic contexts. That is one point. Sorry, and how does this point fit? So I said: it’s “he is exempt due to the greater liability” because of pursuer, not because of death liability. Because he is a pursuer. After all, just as a pursuer who broke vessels does not have to pay for the vessels he broke. Why? After all, the pursuer is not liable to death. They kill him to save the pursued person, but the one who kills him is not a religious court. He is not liable to death as long as he has not actually murdered. So how is there “he is exempt due to the greater liability”? Since he is liable to death at that very moment—meaning by any person—that itself exempts him under the rule of “he is exempt due to the greater liability.” So the Minchat Chinukh wants to claim that even in one who lights a fire, although he isn’t liable to death, as a pursuer he certainly is a pursuer, after all he is about to kill the bound person, so that itself exempts him under “he is exempt due to the greater liability.” And indeed there is no death liability in such a case. Is the exempt pursuer exempt for the vessels even if he wasn’t killed? Obviously—from the very fact that he is liable to death. By the way, this is true also in ordinary death liability—look at Hizkiyah in tractate Bava Kamma 35 there: unintentional cases of capital liability. Meaning, someone who committed a capital offense unintentionally is not put to death, since it was unintentional, but if you violated an offense whose liability is in principle death, you are exempt under “he is exempt due to the greater liability.” Meaning, that rule is determined by the type of offense you committed, not by the type of punishment you receive. The punishment is an indication of what kind of offense it is. So that’s one comment. A second comment is the question of temporary life. Meaning, when we hand the person over to the gentiles who were there—basically, say that if we had not handed him over, if we had not handed him over then all of us would have died, right? That’s what they say, that they’ll kill everyone if we don’t hand anyone over. But we would still have lived some temporary life. It would take them some time to kill us, like there was that pious man—the one who swore to eat and get fat so that when the Cossacks burned him, the fire would be a big fire, meaning everyone would see it until the end of the world. So here too, when the gentiles kill all the Jews living in that city, it will take some time—the siege and the war and in the end they’ll get there. Meaning, there is some kind of temporary life here for everyone. No one puts those calculations of temporary life into the equation. It is not a consideration at all. And the conclusion I want to draw from here is that when we speak about dilemmas involving capital law, human life, human life has infinite value, as I’ve said several times in the past. And because of that, considerations of temporary life do not enter the calculation. Meaning, if you pay in the currency of temporary life in order to save life, then that’s nothing. Temporary life is like any other prohibition. Obviously it is forbidden to kill even someone who has only temporary life, and we even clear rubble from him on the Sabbath. Meaning, the Talmud says we violate the Sabbath to save temporary life. Meaning, there is significance to life. And still, relatively speaking, temporary life versus full life is not in the calculation. In other words, full life wipes out all the other things. It is such a dominant value that the others do not enter the calculation at all. That’s how I usually put it. There are here and there decisors who do include it, but those are very exceptional opinions. Now we’ll see two examples of this type of consideration. One example is surgery for a dangerously ill patient. The dilemma is this: there is a patient, and according to the doctors the patient is about to die, and they perform surgery that may save his life and may not, depending on whether the surgery succeeds or fails. If it does not save his life, then the patient dies—dies on the operating table. Meaning, we lost his temporary life. Because otherwise he would still have lived with the disease for some amount of time. Although Rabbi Moshe Feinstein, in this very topic, does discuss the question of what is called temporary life. Is there some specific amount of time that is called temporary life? Is it a month? A day? What exactly is temporary life? Fine, there’s no clear source for this. And what is “an hour,” yes. It seems to me the point is—it isn’t a sharp definition, but it seems to me the point is that once the factor that is already killing you is inside you, that is called temporary life. I don’t think it depends on time. Meaning, it could be that you’ll live a year, or two months, or something like that, but you already—meaning, the thing that is ultimately going to finish the matter is already here. Right, so I’m saying: it isn’t inside us; there is no factor inside us. Yes, we always say that all of us live temporary life. And that’s exactly the difference. You know the Purim Tosafot—the one about someone who shoots an arrow at a vessel and someone who throws a vessel from the top of a roof? The Talmud says that someone who throws a vessel from the top of a roof, and another person comes and breaks it a moment before it hits the ground, then both are exempt. The second—he broke something already broken, and the first—he didn’t break it. Meaning, then both are exempt. Whoever wants to damage someone else, that’s the trick. In any case, Tosafot says there that the vessel—the Talmud says the vessel is considered broken from the moment it left the roof. The moment I threw it. Now Tosafot says: but what happens if I shoot an arrow at the vessel? If I shoot an arrow at the vessel, and the vessel is standing here and I shoot an arrow, then there he says the vessel is not broken from the moment I shot the arrow until it is actually broken. What is the difference? So they explain there—there are a few explanations, it isn’t entirely clear—but that’s what Tosafot says. They explain there that when you throw the vessel from the top of the roof, the vessel is already inside the state that will ultimately destroy it. Now it is only lacking time. But if you shoot an arrow, the vessel itself is still a whole vessel. In the end something is moving toward it and will kill it, but that thing is not yet inside the vessel. There is no change at all in the vessel. Therefore in such a case we do not view the vessel as already broken. That’s the famous Purim joke; I assume at least some of you know it. The guy who jumps from the sixth floor and from the third floor says, “So far everything’s fine.” Exactly. The yeshiva version of that joke is that it says Haman was pushed toward his house mourning and with his head covered. So Rashi brings there the midrash, that his daughter had washed the house or something, there was some chamber pot, and she poured it down, and exactly then Haman passed underneath. She saw that she was going to hit her father, jumped off the roof, and killed herself. So in yeshivot they ask, the world asks: why “mourning and with his head covered”? It should be “with his head covered and mourning.” First it hit him, and then she saw what happened, she jumped, and then he was mourning after his head was covered. Why first mourning and afterward his head covered? So they say there that if she threw the water from above—yes—if she threw the water from above, she saw that it was about to hit… Now she goes, she sees that this is going to happen, she jumps. As far as she is concerned, she died already the moment she jumped; it’s like a vessel thrown downward, and therefore he was first mourning and afterward with his head covered. So in this context too I say that temporary life is exactly the state that is not like shooting an arrow. Our ordinary lives are when there is an arrow moving toward us. After 120 years the arrow arrives. Meaning, none of us will live forever, apparently. But temporary life is not a case like that. Temporary life is a situation in which the mechanism that will destroy you is already inside you; the illness that will ultimately end your life is already there. It is not shooting an arrow at the vessel, but throwing the vessel from the top of the roof. So the vessel is already considered broken from the moment it is already in that state. Today maybe you can see a gene or something in someone and know for sure that in his twentieth year he’ll die. I don’t know, good question. It may be; we’d have to check now how to relate to that, I can’t say. The question is whether you can see that as an illness, or whether there are just different life expectancies among people, so one genome gives a longer life, another gives a shorter life, but that isn’t an illness, that isn’t a pathology. A certain pathology means some kind of illness that will ultimately destroy you, but I don’t know, it’s definitely worth thinking about. In any case, it seems to me there isn’t a better definition of temporary life than this, unlike what Feinstein discusses there and eventually determines with some such months or others, I don’t remember exactly. In my opinion that’s just some arbitrary determination. Don’t we talk about a fatally wounded animal where there’s a dispute? Twelve months. Yes—whether it’s twelve months, or whether there too there’s a matter of time, how long it will take until he dies. Yes, but in the end we conclude it’s twelve months regarding a fatally wounded animal. The question is whether a fatally wounded person is simply called temporary life. Meaning, we know he’ll die within twelve months. Yes, I suppose so. Why don’t we say in situations of full life that full life overrides temporary life? What? No, we do say that—that’s where I’m headed. So now we have some dilemma, yes? So I’m returning to our case. There is a person who is ill and needs surgery to give him a chance to be saved. Of course the surgery can fail, and then the person dies. If the person dies, then he loses the temporary life that he could have still lived a bit longer. Right? Because he’ll die on the operating table. But if the surgery succeeds, then he gains full life. The question is whether a person is allowed to enter such a situation. Are you allowed to lose temporary life by your own hand for the sake of a chance of gaining full life—to possibly lose temporary life in order to possibly gain full life? It’s a bit like a possible positive commandment overriding a possible prohibition. There is a discussion among the decisors about that. So here too: maybe you lose temporary life versus maybe you gain full life. So yes, obviously it is permitted. And the source for this—maybe there are pages here if you want to look, there are a few copies. So I see there aren’t enough, so maybe look in twos or threes. No, obviously probability matters too, but again there is no clear line of at what percentage it becomes permitted; I don’t know. What’s the law there? If we’re talking about 80%? What’s the line? I don’t know how to set the line. Obviously where the chance is negligible, that’s another discussion. What’s the problem? Although, even with a negligible chance, many decisors write that if you’re prepared to take the risk, take it. Because that’s your only way to save your full life, so you have one percent or two percent, but that’s what there is. Otherwise you’re gone. True, you’re losing temporary life. That may be a good example. Where the chance of success of the surgery is only one percent or a few percent, ordinarily you’re not allowed to take such risks. But here, since this is the only way that enables you to gain full life—otherwise you die—even though the alternative is that you still have temporary life. And basically it turns out that you’re losing temporary life almost certainly in order to gain a very slim chance of full life. Many decisors write that even so, you are permitted to have the surgery. But that is assuming that if I do not have the surgery, I will certainly die. But die after temporary life. Meaning, you still have a bit of temporary life left. The question is whether inside that too there is some small chance that I’ll survive. If it isn’t definite temporary life but maybe full life and maybe temporary life. There are people ill with a disease where one in a thousand survives. I can’t tell you. Meaning, there’s no clear answer on that. I can tell you what my reasoning says—that you can still do it—but my reasoning is worth the same as any of yours. Isn’t it a matter of balancing probabilities? Obviously that’s true. Obviously if the probability of coming out of surgery alive is lower than the probability of staying as you are, then don’t do it. That’s not the question. Obviously we are talking about a case where the probability does improve. Is there some consideration for the doctor, that if he performs it he is a murderer? Exactly—for that very reason I’m bringing this here, because here you actually see both considerations. One consideration—I already anticipated it. One consideration says: you are basically sacrificing temporary life, or possible temporary life, in order to gain possible full life. The consideration of temporary life does not enter the equation. When full life is in play, I make the calculation of how I can save the full life. I also spoke about the Siamese twins. In Siamese twins we perform separation surgery; one of them we send to death. Now, he could have remained alive for some temporary life if we had not done the surgery. But we want to save the second twin. The full life of the second one. Yes, the full life of the second one. So therefore again, we are sacrificing temporary life—and here it is certainly the temporary life of one of them. Meaning, each one draws lots to see who loses, but certainly the temporary life of one will be lost in order to give the other full life instead of his temporary life. And as I said before, that is permitted. Why? Because we are making a consequentialist calculation. It doesn’t matter that we are performing an act of murder; we are making a consequentialist calculation and in the end we gain life. In other words, one remains alive instead of both dying after the stage of temporary life. And also the doctor’s calculation, what you asked earlier—the doctor who performs the surgery would seemingly violate the prohibition of murder. But no, he doesn’t violate the prohibition of murder, because if the consequentialist calculation is one that it is permitted to do—and even a commandment to do such a thing because you are saving life—then we do not make the calculation of “so then it isn’t murder”; rather, this is saving life. So now we’ll see it here, because the decisors write this explicitly. So I said, the first consideration is temporary life; the second consideration is that these are not formal considerations, but consequentialist ones. Rava said in the name of Rabbi Yohanan—and some say Rav Hisda said in the name of Rabbi Yohanan—if one is possibly alive and possibly dying, one may not be healed by them. By idol worshippers: if you go to be healed, he may kill you. You know, there’s the famous riddle: what two things are forbidden separately but together are permitted? In Jewish law. It’s forbidden to look in a mirror, right? That’s a woman’s utensil on a man, meaning it’s forbidden. And it’s forbidden to get a haircut from a gentile, because he’ll kill you from behind with the knife. But if you go to get a haircut from a gentile and there’s a mirror so you can see what he’s doing behind you, then it’s permitted. Okay, so that is brought in Jewish law. A very optimistic picture of the gentile. In any case, the Talmud says one may not be healed by them. One may not be healed by them because there is concern that they will kill me, basically. So if one is possibly alive and possibly dying, one may not be healed by them. Why? Because maybe he will kill me, and as things stand I’m only possibly alive and possibly dying, so why go to the gentile? Now, I don’t assume the intention is that he will definitely kill me, but there’s probably a decent chance he’ll kill you, and here too you’d have to start thinking: what is the chance the gentile will kill me versus how much chance is there that I’ll die on my own? And if there’s a gap between those two things, that’s again a question. But if one is definitely dying, one may be healed by them. Why? Because there’s a chance there’s some gentile who won’t kill you, right? It can happen on rare occasions. What? This one dies and that one dies. Yes, exactly. So you see that even when you go to the gentile, it’s not certain he’ll kill you. If it were certain, then what difference does it make if you are definitely dying? You still would gain your temporary life—why go be healed by him? It’s obvious that even when you go to the gentile, the assumption is not definitely that he will kill you, but there is apparently some not-insignificant chance that he will kill you, and therefore you make the probabilistic calculation. The Talmud asks: but the dying person still has temporary life! How can you make that calculation? Why are you going to the gentile when you are definitely going to die—after all, you still lose your temporary life! The Talmud answers: we do not take temporary life into account. This is really the Talmud itself. The Talmud here explicitly states the principle I spoke about earlier: where we make a life-saving calculation, temporary life does not enter the equation. Again, we violate the Sabbath to save temporary life. But it’s not that temporary life has no value as life; rather, where what stands on the scales is a dilemma touching the value of life, full life, temporary life does not come onto the scales. In other words, it doesn’t enter the calculation. The Talmud asks: and from where do you say that we do not take temporary life into account? As it is written: “If we say, ‘Let us enter the city,’ then the famine is in the city and we will die there”—but there is temporary life there! Rather, is it not that we do not take temporary life into account? It could be that they would die in the city, those four lepers there, and therefore they debated whether to go into the city, and there was a chance they would die immediately, but on the other hand if they didn’t go into the city they would die of hunger because they had nothing to eat. So therefore they go anyway, and from there we learn that we do not take temporary life into account. So Tosafot says there that “we do not take temporary life into account,” but on the contrary, in tractate Yoma we say: we clear rubble from him on the Sabbath out of concern for temporary life. So evidently we do take temporary life into account! Yes, as I said, we violate the Sabbath to save a person’s temporary life. So we see that temporary life does indeed have the value of life; we do take temporary life into account. That’s when it’s not against full life. Exactly. So he says: there, and here too, we act for his benefit. There, if you do not care for him he will die; and here, if you do care and he is not healed by the idol worshipper, he will certainly die. Here and there it’s the same. We leave the certainty and act on the possibility. So in the end it’s obvious that where full life is on the line, you are not concerned for temporary life. But if it isn’t—if it isn’t a dilemma of temporary life versus full life—there is temporary life, that’s what I have, there isn’t more. For that too we violate the Sabbath. But that isn’t… those are two different things. Now, and this appears in Jewish law in Maimonides too, as you see here, and likewise in the Shulchan Arukh: any wound or illness involving danger, for which one violates the Sabbath, one does not seek healing from a gentile who is not publicly recognized as an expert, because we are concerned about bloodshed. By the way, if he is publicly recognized as an expert, then it’s okay because he won’t ruin his own standing, meaning he doesn’t want to lose his professional prestige—like the reliability given to gentile courts. He won’t lie because he would lose his credibility. So therefore one can rely on them. We are concerned about bloodshed, and even if he is possibly alive and possibly dying, one may not be healed by him, but if he is definitely dying, one may be healed by him, because we do not take temporary life into account. Meaning, it is ruled in Jewish law that we are not concerned with temporary life when full life is at issue. Now here there is the responsum of the Ahiezer; there is also a long responsum by Rabbi Moshe Feinstein on this, but I won’t get into it—that’s about what I was saying regarding temporary life and how much is temporary life and so on. But here in the Ahiezer there is an interesting point. Concerning the matter about which Your Honor asked, regarding a patient, where the expert doctors say that without an operation he will not live more than six months, and through surgery it is possible that he will live, but the surgery is very dangerous and it is more likely that he will die quickly. You see, here it’s no longer an even doubt: the surgery is dangerous, meaning most likely he will die from the surgery, but on the other hand the alternative is temporary life. So there is a strong chance that I lose the temporary life and do not gain full life. But there is some chance to save my full life. The question is whether I am permitted to sacrifice an eighty-percent chance of temporary life in order to get a twenty-percent chance of full life. Seemingly, from tractate Avodah Zarah 27, where one who is definitely dying may be healed because we do not take temporary life into account where it is possible that he may be healed, even in a remote way. So he already interprets the Talmud in tractate Avodah Zarah as meaning that even where healing is only a remote possibility, not only where the doubt is evenly balanced—even where healing is only a remote possibility, even then you do not take temporary life into account. Meaning, this is already a bigger innovation. The claim is that where we are debating regarding full life, even if it is a slim chance and temporary life has a very high chance of being lost, it doesn’t matter. Once full life is in the game, temporary life is not a factor. It doesn’t matter what the probabilities are and… And in a case where I know with certainty that if we do nothing he will die? Yes. That’s what we discussed earlier, right? That’s what we discussed here—doubt, doubt, certainty… Yes, there is never certainty; what is certainty? Certainly not in their times. Even today there isn’t certainty, though medicine is more advanced, but yes, that’s the assessment. But today there’s… it’s different, because today maybe in the meantime they’ll find a cure for the disease. True, maybe. A doubt does not remove a certainty. Again, I saw that this is also in the Shevut Yaakov section 75, and it comes in Pitchei Teshuvah Yoreh De’ah, and in the glosses of the Rashash, and likewise in the responsum Binyan Tziyon and in Tiferet Yisrael on tractate Yoma. And the reasoning is simple: there is no difference between temporary life of a short period like a day or two or some months. This is exactly the dilemma: what is temporary life? A day or two, months? What about years? Where does the line pass? After all, all of us are in temporary life, as we said earlier. Therefore, in my humble opinion, temporary life is not a question of duration at all. Rabbi Moshe Feinstein did not end up with that conclusion, but it seems to me that is the more correct definition. Temporary life is not about duration; it is a question of whether the arrow is aimed at the vessel or the vessel has already been thrown downward. And now—look at this passage. And in the book Mishnat Chachamim in the laws of idol worship, he was uncertain whether with a Jewish doctor it is permitted. For when we say that we do not take temporary life into account, that is specifically to be healed by a gentile doctor. His claim is that the Talmud in tractate Avodah Zarah speaks of a gentile doctor not only because with a gentile doctor there is some chance he’ll kill me, but because I don’t care if a gentile doctor violates the prohibition of murder. But with a Jewish doctor, whom you approach to do such surgery, you are causing him to stumble in the prohibition of murder. Therefore the Mishnat Chachamim is in doubt whether this is also permitted with a Jewish doctor or only with a gentile doctor. And that offsets the lower chance that he’ll kill me? What? There are two considerations here. On the one hand, say you go to an expert gentile. Fine? An expert, meaning there’s no chance he’ll kill you. So go to an expert—but not to a Jew. If the doctor is a murderer, then the patient is committing suicide. What? If the doctor is a murderer, then the patient is committing suicide. That’s before indirect causation. He handed himself over to the doctor. No—yes—he wanted to be healed, he wasn’t committing suicide, so here I don’t think that’s called… If he’s a murderer… No, he’s a murderer if he kills him. And if he dies, then that means he placed himself… No, he took a risk in order to save life, but if the person performs an act because of which I end up dying, then it turns out he is a murderer—again, not intentionally, but bottom line he violated the prohibition of murder—and the question is whether I can do such a thing. That’s what the Mishnat Chachamim says. Again, I’m saying: this is a far-fetched idea… no decisor agrees with this reasoning, and that’s why I brought it. And seemingly one may say that with an internal wound, where he is in the category of a fatally wounded person, and if they do not perform the surgery he will certainly die, as Maimonides wrote in chapter 2 of the laws of murder, and one who kills a fatally wounded person is exempt if it is known for certain that he is fatally wounded. And the doctors say that this wound has no remedy in a person, meaning he cannot recover from it, and from this he will die if something else doesn’t kill him first. If so, there is no law of murder regarding a fatally wounded person. Meaning, if this is a fatally wounded person, and there is a difference between that and other forms of temporary life, then there is no prohibition of murder regarding a fatally wounded person. There you can even go to a Jewish doctor, because if he is saving you from the state of being fatally wounded, then he does not violate a prohibition; and even if he does not save you, he does not violate the prohibition of murder, because at worst he killed a fatally wounded person. And according to this one may say that regarding a Jew it is more lenient, for Maimonides wrote in chapter 9 of the laws of kings that a descendant of Noah is liable for killing a fatally wounded person. However, as to the essence of the matter, it seems that since we do not take temporary life into account where there is a doubt of saving life and a doubt of mortal danger, temporary life is overridden, and therefore there is no difference between a Jewish doctor and a gentile one. This is what the Ahiezer himself writes, Rabbi Moshe Feinstein writes it as obvious, and so do all the decisors. This Mishnat Chachamim is baffling. Meaning, all the decisors say there is no such thing—and exactly this is the point. Because the consideration we make is a consequentialist one. I don’t care whether I’m doing an instruction to a gentile here, or doing it sideways with my left hand, unusually, indirectly—I don’t know exactly all the handing over stuff; for example, instructing a gentile is also some kind of circumvention. In the end I have to decide whether such an act is a proper act or not. That decision I make according to the consequentialist consideration. If it is permitted to do this act because I can gain full life even though there is also some chance I’ll lose temporary life, then it is permitted to do so, and a doctor who performed the surgery and in the end did not succeed—he killed me. That is not called murder. He performed an act of saving life that in the end did not succeed. So there is no reason at all, and no preference at all, for going to a gentile doctor rather than a Jewish doctor. By the way, with a gentile doctor too there is “do not place a stumbling block”—the Talmud says that applies to a gentile too, meaning if you cause a gentile to sin. Why isn’t he considered a negligent murderer? What? Yes, obviously—and that is a prohibition of murder. Why in a fatally wounded person is there no temporary life? What? Why in a fatally wounded person is there no temporary life? A derivation from somewhere… No, not that there is no temporary life in a fatally wounded person—there is temporary life—but with a fatally wounded person there are certain defined states in which there is no prohibition of murder. Someone who kills a fatally wounded person did not violate “do not murder,” because he is like a broken vessel, meaning he killed a dead person. Now, not every temporary life is a fatally wounded case. Every fatally wounded person is temporary life, but not every temporary life is a fatally wounded person. There are definitions of fatal wounds, exactly what… Is there temporary life even in a fatally wounded person? Yes, but not every temporary life is a fatally wounded person. Can a person choose not to have this surgery? That’s what Rabbi Moshe Feinstein discusses. Rabbi Moshe Feinstein goes on at length about all those aspects—what temporary life is, and whether it is permitted… I heard that according to him, he isn’t obligated. Right—Rabbi Moshe Feinstein, in the end, I think says that yes, one is obligated, and if the person doesn’t want to do it then we don’t force him, but we should persuade him that he is violating a prohibition. Meaning, he is obligated to do it. I think that’s his conclusion, if I remember correctly; we’d need to look again inside, but I think that’s his conclusion. Meaning, he is really violating a prohibition; you really have to do it. That is indeed more far-reaching. In the book Mishnat Chachamim he is uncertain, and concludes there that there must be an evenly balanced doubt that he will live, against the doubt that he will die immediately. However, from the fact that we do not take temporary life into account, it sounds like there is no distinction in the matter. Yes—that’s exactly what the Ahiezer said above, that it need not be an evenly balanced doubt; even if there is only a small chance to gain full life, I am permitted to sacrifice a high chance of losing temporary life in order to save that. Why? Because where full life is involved, the consideration of temporary life does not play a role. And that is the claim. Fine, that’s the story. When did he live—the Ahiezer? The Ahiezer is early twentieth century. He died in ’35, I think—or maybe a little later, ’38—right before the Holocaust. Ahiezer is Rabbi Chaim Ozer Grodzinski. He was in Vilna, where they had not had a rabbi for many years; since the Vilna Gaon they had not appointed a rabbi in the city of Vilna, and he was appointed rabbi of Vilna at age 23, I think. Wow. Meaning he was apparently a genius with a diploma. There are talented Torah scholars, all true, but this was apparently an actual pathology. Stories say he wrote two responsa in parallel while talking to someone at the same time. Meaning, he wrote… and he was a very busy person. Meaning, everything he wrote there—he really didn’t… he dealt with the whole world; all the problems from all over the world came to him. Meaning, he really was a leader of the whole public, in Europe and maybe not only in Europe. Okay, in any case, that’s regarding dangerous surgery. What I want to do now is move to organ donation. Organ donation is again another example. Maybe I’ll just sharpen the point here—what I wanted to show here are two things, those same two things I opened with. What? Donation when? One second, I’ll explain. But let me just summarize what we saw here regarding the surgery. We saw two things there, and this is an important point to take further too, and it just strengthens what I said in previous sessions as well. First: temporary life does not play a role where full life is on the line, even if the chance is small, as that Ahiezer says, and that is agreed by almost all decisors. Second: the calculation we made was a consequentialist one, not a formal one—whether I violate the prohibition of murder or not, whether it is confining, indirect causation, or whatever. That doesn’t matter. The question is ultimately how you save the maximum number of lives. If I just remind you that I spoke about separating Siamese twins, then my claim there was exactly against those who argued with me—my claim was exactly that there is no point talking here about the prohibition of murder. They say, what do you mean? You’re committing murder, you’re killing one of these twins, at least his temporary life. What suddenly? You are saving the full life of the other one. Like a person standing on the roof of… I brought this… like the person standing on the roof of a burning house. So they tell him: don’t jump, because if you jump you could die. Fine—and if he stands on the roof of the burning house he’ll certainly die too. So what, is he forbidden to jump because he might die when he jumps? Is jumping an act of suicide? Of course not. That jump is what gives him any chance at all to live—either he’ll succeed or he won’t. Now what happens with Siamese twins is that each of them individually is standing on the roof of a burning house. Why? Because if I offer them a lottery, then what does that lottery basically say? If we don’t do the lottery, both of you die within a few months. If we do the lottery, then it gives you a 50% chance of staying alive, and that is exactly equivalent to all the examples we brought here: a 50% chance to save full life and the other 50% chance to lose your temporary life. Here, of course, one of them in any case will lose his temporary life, but each one individually makes the same calculation as the man standing on the roof of a burning house. Each one individually, from his point of view, entering the lottery gives him a 50% chance to gain life and a 50% chance to lose his temporary life. And the same for the other one. But here, because both of them are in the game together, one of them will certainly lose temporary life and the other will certainly gain full life. But statistically, for each one individually, it is still those same 50% against 50%; it’s just that because there are two of them, in the end one turns out this way and one that way. And why didn’t they agree with you? What? You said at the beginning on this topic that you went to decisors… Yes, I didn’t go to them; I spoke with Mordechai Halperin. He went to decisors; that’s what he does, all kinds of surveys among decisors. And they didn’t agree with you because… He had no answer to tell me, but he said all the decisors disagree—that was the answer he had. I didn’t hear anything more convincing from him. What about a ninety-year-old patient? What’s the difference between temporary life and full life? No, that’s not… a ninety-year-old patient is not temporary life; that’s full life. What I’m saying is: the fact that your life expectancy is shorter than in your current condition does not turn it into temporary life. Temporary life has to be something where, if he is already ill—not connected to age at all—but if he is already ill with the illness that will ultimately bring his end, that is temporary life. It’s not a matter of duration on either side. It could be that a year is full life and ten years is temporary life. The question is whether you are already on the track that is going to destroy him. If it’s what they call terminal? Yes, but the question is what kind of terminal, yes—in principle, yes. Yes, as they say, life is a terminal illness. Fine. In any case, regarding organ donation. What happens here is something very similar; I’ll try to finish this today. The usual dilemma is—yes, around the organ donation law that passed in the Knesset a few years ago, which also stirred all kinds of disputes among decisors. The dispute essentially rests on the question—or let me first formulate the situation. We’re talking here about organ donation in the period between brain death and cardiac death. Meaning, there are certain organs that can be harvested—that’s what they call it in that context, although the terminology bothers me—but yes, harvested only at the stage between… that is, before cardiac death. After cardiac death, you can no longer remove a heart, you can’t remove lungs, and therefore you have to do it in between. Now of course you could also do it before brain death—you can take a living person and harvest from him. Why not, really? You can’t… and who says your blood is redder? You’re killing one to save the other. But suppose someone had an accident and his body is cut in half. He’ll die in another hour. But meanwhile… According to your consequentialist reasoning too… We’ll see in a moment, we’ll see. So the claim is that there are certain organs that need to be taken before cardiac death. Now what happens before brain death? The chronological order… the chronological order is that there is brain death and afterward cardiac death. Fine? Cardiac death is the end of the road. Brain death is a kind of non-functioning of the brain, but the autonomic muscles still work, there is something in the brain stem that still activates the autonomic muscles, and there, because the organs are still functioning, there are organs you can still take—they are still alive, you can transfer them to a patient. So as I said, before brain death there’s nothing to discuss because then you’re killing one to save another—that’s out of the question. The dispute is whether you can take them between brain death and cardiac death. What does it depend on? It depends on the question whether the moment of death according to Jewish law is brain death. Then basically you are not killing one person to save the other because he is already dead. After brain death, he is dead. So you can take those organs because from a halakhic point of view he is considered dead. And whoever says that cardiac death is the halakhic moment of death, then brain death is not death—he is still alive, and you cannot kill one to save the other. And therefore it is forbidden. So it is accepted among all the decisors that the big dispute is about the question: when is the moment of death from a halakhic standpoint? Is it brain death or cardiac death? What about the consideration of a fatally wounded person here? One second, we’ll get there. Now of course—what? A legal question. Obviously, obviously. I’m saying, the dispute among the decisors was a halakhic dispute, but of course these disputes also exist in non-halakhic contexts. The question is how such a thing is decided. I saw all kinds of articles by doctors and such people; it’s just a collection of logical nonsense, the whole discussion around this question. It’s really unbelievable—a collection of circular reasoning and begging the question that is really astonishing. All kinds of people say that no one has ever come back, for example there’s one—not important, I won’t say his name because that would be slander—he heads an important medical unit. He wrote some article that… Say, what he said would be slander? No, to say who said it? No, if he didn’t say it… He did say it, but you’d say it’s public knowledge, it’s already written, it’s already been said—I don’t understand what slander there is. The claim is that no one has ever returned to life after brain death. And you can debate whether that’s brain death, what exact moment, what the moment of death is—brain death or cardiac death—but as a fact, no one has ever returned to life after brain death. Meaning, it’s a one-way ticket process; in the end you arrive at cardiac death, and therefore obviously brain death is the moment… he’s already dead, the person is already dead after the moment of brain death. And of course that is complete nonsense. By the way, this man is in charge of transplants; he is one of the main spokesmen in this field. Why is it nonsense? Because even when I’m born, I’m definitely going to die. No one has ever come back from that either. So then you can also say that birth means I’m already dead. I think you’re getting caught in his wording. Why? So what excuse would you offer me? Because when I’m born I will die, but meanwhile I’ll live. Right—and in brain death you’d say that meanwhile you’ll live, until the moment of cardiac death. What is he claiming? He says: you say that brain death is not death, the person is alive—but after all he’s going to die in the end in cardiac death. True, but meanwhile he’s alive. He defines life as—he defines life as a person whose brain is not functioning. No, if you say that, then leave it—what do I care whether he returns to life or not? Just say: if he isn’t functioning now, then he’s dead. No, if he could return to life then he isn’t dead. No—if he won’t return, he says that that fact, that he won’t return to life, is his criterion for saying he’s dead. That is the argument because of which he is dead, not because he doesn’t function. You’d have to read it—I’m saying, that’s what he writes. Now this is ridiculous. It’s begging the question. You can claim that brain death is called death, that the moment of brain death is the moment of death, because you think that a person after brain death is not a person. Fine. That’s a claim; you can debate it, you can accept it. But that it’s irreversible—what kind of argument is that? Birth is irreversible too. We said earlier that life is a terminal illness. So the dispute is basically about the question of which is the moment of death—brain death or cardiac death—and the issue depends on that. And, by now you know me: usually when there’s a dispute, both sides are wrong. Meaning, in this case too both sides are wrong, because I think we don’t need to get into the question of what the moment of death is. In any case you can take the organs. And the reason is exactly—so now I’m closing the circle at the end just so you can see the move. Yes, I claim that basically, let’s say brain death is not the moment of death, so the person is considered alive from a halakhic standpoint. But he is considered alive in a very limited sense—not just temporary life, much worse than temporary life. Temporary life itself is already disputed—by the way, even on that there is a dispute among decisors, whether one may hand over the temporary life of one person to save the full life of another. That is not a simple question. The Siamese twins—you heard exactly that. Yes, the Siamese twins are to save their own lives, not somebody else’s. The twins entered the lottery so that I would live. Right, that if the lottery falls on him, he’ll live. That’s adding… What? Okay, never mind. But I’m saying: can you take the temporary life of one in order to save the full life of another—the full life of someone else? That’s not a simple question; the decisors debate it. But here it is much worse. After all, if indeed there are people—decisors, philosophers, doctors, or whoever you want—who say that someone with brain death is considered dead, then even if I do not accept that and he is not considered dead, one thing is clear: he is not… this is life of a far lower value than temporary life. He can do nothing. Temporary life, you know, one of the central criteria in Jewish law for the value of life is the number of commandments you can perform in that life. I spoke about this at the beginning of the series: violate one Sabbath for him so that he may keep many Sabbaths. Meaning, even in the laws of precedence in tractate Horayot—whom do you save first? Women, men, priests, all sorts—the whole thing is determined by the question of how many commandments you are obligated in. Meaning, that is some measure of the value of your life. Now a person—and here the Meiri now: the Biur Halakhah brings the Meiri, who wonders whether one may violate the Sabbath in order to save someone’s temporary life, if it is temporary life of someone who will not make it to the next Sabbath. Why? Because then it isn’t “violate one Sabbath for him so that he may keep many Sabbaths.” He won’t keep many Sabbaths. And to that he answers: it’s permitted. Why? Because it isn’t specifically for Sabbath observance; it is for commandments. So he’ll pray and study Torah on Sunday—that too is commandments. It doesn’t have to be specifically Sabbath observance. Okay—but from that itself what do you see in the Meiri’s words? That the yardstick measuring the value of life is the number of commandments you can perform. Whether Sabbath or not Sabbath doesn’t matter. Okay. Now as far as I’m concerned… Rabbi, that doesn’t prove it. As far as I’m concerned it’s enough to demonstrate it, but it doesn’t necessarily prove it. What do you mean? When the Meiri claims that, it’s enough for him to permit it. That doesn’t mean that without this it would be forbidden. It’s simply enough for him to permit it. You can’t infer from that that without any commandments it would be forbidden to save him. No, it doesn’t prove it. Who said it would be forbidden to save him? I’m not claiming it’s forbidden to save him. No, you said… I’m claiming that it is permitted to hand him over in order to save the life of someone else, not that it is forbidden to save him. Those are two different things. So no, this is not a proof; it’s an illustration of a mode of thinking. You can reject the Meiri and disagree with this whole thing, but I’m showing that this direction of thought exists. So what I really want to say is that a person who has undergone brain death is not a living person in the functional sense. You can debate formally whether this is called life or not, when exactly the moment of death falls and when it doesn’t. But the fact is that there are decisors and thinkers and all kinds of people who say he is dead. Now even if you think he is alive in the formal sense, in terms of the value of his life—can you not hand over a person with such a degraded value of life in order to save the full life of someone else? I claim you can, with his consent, by the way—only with his consent. And therefore, even if the moment of death is cardiac death—meaning that in brain death the person is not dead, he is alive. Fine, he is alive, but he is alive with a value of life such that he may hand over his organ, or really his life, whatever life he has, in order to save the full life of someone else. And therefore we can spare ourselves the debate about when the moment of death is—a debate that never ends and can’t be decided. They derive it from the Talmud, but I don’t know exactly how much the Talmud can really serve as an indicator here in these ancient medical matters, that… Again, this is not a medical determination of when a person is alive and when a person is dead. We already talked about this; it has nothing to do with doctors. This kind of temporary-life state—when is it in brain death? Of the patient? From the outset. He signs an organ donor card. What happens if his temporary life is functioning normally, but he is certain to die in an hour? That’s what I’m saying. In regular temporary life where he is definitely going to die in an hour, I said there is a dispute among the decisors. But here I think there is room to say that even those decisors who forbid in regular temporary life—that’s because in regular temporary life you have however many days, months, I don’t know, of ordinary life. But here—even there, by the way, there are decisors who permit. Now again, not to take his life by force in order to save someone else, but if he agrees. He is permitted to agree, and maybe even commanded to agree. Why does he need to agree? He doesn’t need to, but if he doesn’t agree… Ah, you’re asking why take his non-consent into account? Because you can’t harm another person in order to save a third person. But you defined him as having a very, very low value of life. Value of life, yes, but it’s his right—it’s his life. He can decide about it. It’s like what we said about Rashi, who says it is forbidden to save a person with another person’s property. What do you mean? That isn’t because property is equal to life; obviously not. But the property is mine, and I make decisions about my property. It may be that I make a bad decision if I don’t agree to give it, but that’s my decision. You can’t just take it by force. Like what we discussed there, what happens if medically I need a kidney? I need a kidney transplant. Now I can’t find a donor, so I’ll jump somebody and take a kidney from him. What’s the problem? You can live with one kidney. So it’s bodily injury, and danger to life overrides the prohibition of bodily injury. What’s the problem? So he claimed that really this should be possible. Yes, there’s room for that? Yes. So I said about that—and it isn’t completely crazy. Why is it not completely crazy? Because it’s what we discussed with that Rashi there about property, and the claim that clearly—I don’t mean to compare the value of the two things. True, life is worth more than a kidney. Than a kidney, yes—not that the kidney is the life. But the claim is that that kidney is my property, and therefore you can’t take it from me even if it isn’t equal in value to life. You can’t take it from me without my permission. Only I make that decision. And it’s exactly the same conception. It has nothing to do with the question of the comparison between the two alternatives, who is worth more and who is worth less. The question is who is supposed to make the decision. And therefore I say that here too, it seems to me at least—again, this is reasoning—but it seems to me simple reasoning. Obviously we are not speaking of doing it without consent. There is no such thing as without consent. The question is whether with consent it is permitted. Why? Because there are glosses on Maimonides that bring a Jerusalem Talmud in chapter 1 of the laws of murder. I’m doing this a bit quickly because I want to finish the issue. He says that in the Jerusalem Talmud it says that a person is obligated to risk his life in order to save someone else’s life. The Kesef Mishneh also brings this in his name. But most decisors reject this and do not rule like him. If he is obligated, that doesn’t mean I am allowed to force him; those are two different things. Obviously. But I’m saying: he is obligated to take that risk, and most decisors reject it. But the question is whether what the Jerusalem Talmud says is that it is permitted or that it is obligatory. Why? Because whoever disagrees with the Jerusalem Talmud—does he say it is forbidden, or does he say it is permitted? If the Jerusalem Talmud says it is obligatory, and whoever disagrees says: not obligatory but permitted. But if the Jerusalem Talmud says it is permitted and they disagree with it, then that would mean forbidden. Okay? Rabbi Kook speaks about the responsum concerning two people walking in the desert and one of them has a flask of water. The question is—clearly your life takes precedence according to Jewish law, so I may drink my water even if the other dies. But can I volunteer and give him the water anyway? I want to volunteer. Am I allowed to or forbidden? Obviously he may not take it, and the Hazon Ish also discusses it: he may not take it. Here too, after all, what’s the problem? The prohibition of theft is overridden by danger to life. So why can’t I take his flask of water? So the Hazon Ish says: that’s not theft, that’s murder. When you take his water, he will die, so in essence that is murder and not theft. And again it’s the same calculation—you see once more that the consideration is a consequentialist one. It isn’t a formal issue of theft, and indirectly I want to save life with someone else’s property. In the Hazon Ish’s responsum, does he say one may save life if it were only theft and not murder? Say, the Rashi we discussed, right? And most decisors opposed that point—we discussed it—at least in practical Jewish law. There are some who agree with his mode of thought, but for practical law they all oppose it. This principle changes according to the number of people. Meaning… Yes—ah, what do you mean? It could be. The Tzitz Eliezer discusses this. There are the martyrs of Lod, of whom it is said that no creature can stand in their place—Pappus and Lulianus—who gave themselves over to die in order to save the Jewish people. By the way, they themselves weren’t even Jews, if I understand correctly. And they gave themselves over to die in order to save the Jewish people—apparently they said something or confessed to some crime, and the government was looking for the guilty party and threatened to kill everyone, and they handed themselves over to die. From there there are decisors who infer that where you give yourself over in order to save many people, that is permitted. Although I think the Tzitz Eliezer claims that this is forbidden unless you are saving a community—not just many people, not a numerical issue, but the question is whether you are saving a community. Why is there a difference? Because if you are saving a community, you are also part of the community, and then the community itself is handing over one of its limbs in order to save the rest of the body—just as I might hand over a limb to save the rest of the body. So that, yes. But if you hand over your life to save three others while you are just one, he says no. According to most decisors, I think that is forbidden. And what I mentioned about Roi Klein—before Tzvika here stones me to death—I mentioned Roi Klein in this context too, because in his case too, seemingly, it would have been forbidden. The whole time during the class I ask myself how dangerous it is to be your neighbor when I see that you’d jump on a grenade to save me. Okay, maybe in the end we’ll find you a tent in our yard. Fine. In any case, my claim regarding organ donation is that there is no need to determine whether the moment of death is brain death or cardiac death. In the end, even if it is cardiac death, after brain death the person has zero value of life. He is alive, but with zero value of life. And once the value of life is zero, it is very reasonable—and again I say, this is reasoning for which I don’t know how to bring unequivocal proofs—but it is very reasonable that if regarding temporary life there are decisors who permit handing over temporary life in order to save full life, then with temporary life worth nothing—meaning it isn’t only the duration, the value of these lives is worth nothing—then that surely may be handed over in order to save full life. And if so, then this whole debate never gets off the ground, the whole debate around which everyone is fighting: whether the moment of death is brain death or cardiac death. And again, why? Because otherwise you think there is an act of murder here. I am killing a person who from a halakhic standpoint is considered alive. But my claim is that the calculations here are not formal calculations; it’s not a question of whether I perform an act of murder. The question is a consequentialist one—how do I preserve life. That is what determines it. And if in the end I preserve life, or full life, at the expense of the life of someone who is brain-dead, then the result justifies it and therefore it is not an act of murder at all. As we saw in the Ahiezer, who says there is no point handing this over to a gentile; it changes nothing. Once the act is a permitted act, nobody sees it as a forbidden act that you need to do unusually. But there are those who would say that you should do this surgery with your left hand. Why? So that if you are murdering, you should murder unusually. But it’s not just that no. What? It isn’t. Obviously. And exactly—on the side that says… I’m saying, I claim: on the side that says brain death is not death, then the person is considered alive from a halakhic standpoint. That is exactly the claim. Therefore killing him would be… I don’t know exactly whether you’d be liable to death; the question is how this relates to a fatally wounded person. But yes, certainly it is a prohibition, a complete prohibition, to kill him. But does that stand against the full life of someone else? So here is the claim. Say the life expectancy of this half-dead person is no shorter than that of the one who would receive his transplanted heart. That changes nothing. He isn’t in temporary life at all. No—that’s why I’m saying this isn’t about temporary life. It’s qualitative temporary life, not quantitative. The life is worth nothing. The concept of “temporary life” really… Commandments. The temporary life here… You have low-value life not because of its duration but because of its quality. Where did this concept come from? That’s my claim, from reasoning. No, but… I just want one last sentence, and maybe this really touches your question. Very often the question comes up here: fine, you raise such reasoning and such reasoning, but where we are comparing, can we act? You have one argument, another argument—can you rely on that in matters of life and death? So I ask those who ask me: can one rely on your reasoning? After all, the question is—upon whom is the burden of proof? The claim of those who argue with me—therefore what I said earlier, that the formal calculation is not important but the consequentialist one, radiates in two ways. First, on the question of what is right to do; and second, on the question of who bears the burden of proof in a doubtful situation. Why? Because if there is a doubtful situation, I claim that the burden of proof is on the one who says organ donation is forbidden. Because you are basically decreeing death on someone. Now, your arguments decree death on someone? He looks at the formal act: I am performing an act of murder—what is the justification? Bring me proof that there is justification for doing an act of murder. And I say: but the consideration is consequentialist, not formal. So now the burden of proof is on you. You are basically saying we should leave the person to lose his full life—that he should die. Why? Do you have proof for that? The claim that the burden of proof is on the one who permits in these situations itself assumes that my arguments are incorrect. In other words, it begs the question. It assumes that the consideration is a formal one and not a consequentialist one—but that itself is the subject of the dispute. After all, I claim that the relevant consideration is consequentialist and not formal, and therefore from this too it follows that the burden of proof is on you. Not only that I’m right. Meaning, because in the end you are decreeing death—consequentially, you are decreeing death on a person. Doesn’t passive omission apply here? If the doubt were evenly balanced, then passive omission would be preferable. But I claim the doubt is not evenly balanced. And also the question is what passive omission means. By the way, I discussed this in that article. What is passive omission? We often think it means to refrain and do nothing. But passive omission means choose the solution with the minimal cost. When you do nothing, that’s a private case of choosing the solution with the minimal cost. But here I claim that the minimal cost is precisely to do the organ donation. True, physically that’s positive action—I’m doing something here. But passive omission in the essential sense is not about whether I physically do an act or don’t do an act, but rather: choose the course of action with the minimal cost. The course of action with the minimal cost, if you look consequentially and not at the act, is the one in which you preserve life. Why do you say the doubt isn’t evenly balanced? Because on one side you have life… No, I’m not saying the doubt isn’t evenly balanced. Even if the doubt is evenly balanced, I claim the burden of proof is on the one who forbids. Since he is basically trying to decree death on a person, to lose full life. I want to lose temporary life and save full life. Now I ask: say we don’t know who is right. Then which is preferable? There are no proofs either way. I claim that I am preferable even as the default, even if you don’t accept my argument, even if we are in doubt. And why, again? Because in my view the relevant consideration is the consequentialist one and not the action itself. If you take organs from him, you take his life out of him. Right. And if he is a minor? If this is a stage where he is a minor? Good question. I don’t know whether parental consent would help here. Unless a religious court decides that there is a presumption that a reasonable person in such a condition would agree. Then somehow we could make decisions in place of the minor. But that’s a hard question; I don’t know how to answer it. What happens if the person is in a… And what happens if the person is in a coma? Vegetative state. He could stay that way for a year, and there’s no chance that he… A respirator? To put him on a respirator? Or maybe that’s the same negligence. We don’t connect him to a respirator. Why? In the end, functionally speaking, I mean—I don’t understand, that isn’t mine, it’s not a medical definition.