On Knowing How to Learn, Part III

Or: Why serious halachic questions should be decided by gedolei haposkim using sevara yashara, not museum curators using a search engine

PLEASE NOTE: Nothing in this essay should be construed as a halachic statement on these weighty topics. All practical questions of this nature should be referred to qualified halachic counsel. Our purpose here is specifically to demonstrate why amateur contributions to the debate should be ignored.

Introduction

Your shul’s rav, quite likely, does not rule on dinei nefashos. Nor do many otherwise fully qualified poskim – knowledgeable, wise, and experienced though they may be. Some questions, some areas of psak, are hallowed ground; issues that touch upon the most excruciating of conflicts – the doctor’s calling to save and to heal, the awesome sanctity of human life, the awful prospect of committing murder – are passed up the chain. Such is the yiras hahora’ah that is emblematic of those who take life, death, and ratzon Hashem seriously.

Contrast this humility and sense of gravitas to the flippancy with which a populist author spins up a halachic treatise about terminating a brain dead patient for the sake of his organs¹. The conclusion was never in doubt – organ donation must be ok because it feels so ethical – the only question was how to construct the halachic basis. Unfortunately, the author – who has been known for his rather, eh, unconventional statements about ‘knowing how to learn’² – simply demonstrates once again why it’s a good idea to make sure you do before you publish.

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The standard argument is that a brain dead person is not considered alive, so all restrictions are off. This designation is a matter of strident debate amongst serious scholars, so for those uncomfortable with choosing sides, Dr. Natan Slifkin goes another route³: even if the patient in this case is considered alive, it is a life that may be legitimately sacrificed for the sake of another, more significant, life.

His presentation boils down to four arguments:

1.      Chayei olam trumps chayei sha’ah

A da’as yachid suggestion of the Tiferes Yisroel allows for the sacrifice of someone who is in the process of dying for the sake of someone who may live longer. Other sources allow the same when the victim in question is a treifa. While acknowledging that this is a far out view, specifically rejected by the halachic consensus, our writer asserts that it should become relevant in the case of brain death which is “much less of a human life than that of a chayei sha’ah, a treifa, or even a goses”.

The problem with this reasoning is that it isn’t one. The halachic consensus which rejects the Tiferes Yisroel’s view does so for a very specific reason: they consider the taking of human life – murder – to be an inviolable, uncrossable line⁴. Being that the premise of this treatise was that brain death is still considered halachic life, their reasoning remains exactly as potent and relevant here as by any other sort of chayei sha’ah. The argument of “yes it is a life but it is not such a life that terminating it constitutes retzicha” is a meaningless logical cul-de-sac.

2.      He can’t even do anything worthwhile

Next, the good Doctor tries his hand at milsa b’taima (‘the idea according to its reasoning’) analysis: “The reason usually advanced [for rejecting the Tiferes Yisroel’s view]”, he informs his readers, is that “a single moment of repentance and good deeds in this world is worth more than all the life in the World to Come”. But, as a brain dead person cannot do any teshuva or good deeds, “his life is certainly worth less than the lives of those waiting for his organs, by any measure”.

This would be a good loophole in the rationale – if this rationale would actually exist. Unfortunately, it does not; by all indications Dr. Slifkin simply made it up in order to plug in his exception⁵. The real reason murder is not allowed is because murder is not allowed. The question is only, as stated above, whether the termination of a brain dead patient constitutes murder; if it does it would be a cardinal sin regardless of whether the victim is in any state to do good deeds.

One good reason why Slifkin’s invented rationale is not provided is because it doesn’t make any sense. “Yafa sha’ah achas” stresses the value of even one minute of earthly existence over life in the next world. It most definitely does not imply that one minute of life in this world is better than thirty years of life in this world. So even if the patient can do teshuva and good deeds, his life would “certainly be worth less than the lives of those waiting for his organs”, by Dr. Slifkin’s measure. And even so this exchange would be unthinkable, because the sin of murder does not go away no matter how much or little value you and I choose to place on the life being taken⁶.    

3.      Voluntary self-sacrifice is different

Moving along, Dr. Slifkin adduces support from a position of R. Chaim ben Attar⁷ and the Seridei Aish⁸ regarding the proverbial case of two travelers in the desert with only one flask of water. These authorities maintain that while one is not required to give up his flask for his fellow traveler, he may unilaterally choose to do so, in essence sacrificing himself for another. Those who ascribe to this, says Slifkin, “would surely also permit someone to donate his organs in order to save lives in the eventuality of his suffering brain death”.

Surely indeed. But then the obvious question becomes what does brain death have to do with it. By the exact same rationale a completely healthy person, in a fit of noble altruism and perhaps suffering from depressive tendencies, can voluntarily instruct his doctor to kill him and distribute his organs to those in need⁹. Does Slifkin believe that Rav ben Attar would halachically condone such a practice? Quite a complicated animal isn’t it, this whole bioethics thing.

The answer is that our dear scholar has once again blown the analysis. Because in the desert traveler case, the inevitable death is a passive one, nobody is being murdered, and nobody is committing retzicha. The question is simply if one is obligated to save himself at the expense of watching his friend die, or can he voluntarily give up his own resources to ensure his friend’s survival. 

Slifkin confuses matters further by interjecting the story of Papus and Lulianus who falsely confessed to having killed the emperor’s daughter in order to save the city of Lod from annihilation. He therefore concludes that we have a degree of autonomy over our own lives and “a person voluntarily signing an organ donor card indicating his or her desire to donate organs upon brain death would be similarly praiseworthy”. Once again, the slipped in modifier “upon brain death” is entirely arbitrary given the logic.

Rav ben Attar does not mention this story as part of his analysis, and for good reason – Papus and Lulianis sacrificed themselves to save a tzibbur; their experience is entirely immaterial to our discussion. This distinction is clear in the Rashi that introduces us to the episode¹⁰, and is emphasized by both the Igros Moshe as well as the Seridei Aish elsewhere in the very responsa subsequently cited by Dr. Slifkin¹¹. Our academic researcher apparently missed the nuance, and the Seridei Aish’s exposition of it, in his learned Googling of key phrases to cut and paste. 

4.      Some people are just more important

He commits a similar oversight in applying the opinion of R. Yehuda Hachasid to our discussion. Sefer Chasidim¹² declares it praiseworthy for an am ha’aretz to give up his life to save a Torah scholar that is needed by the community. Thus we find that “to sacrifice oneself in order to save the lives of others is encouraged… where the other person’s life is more valuable”, with obvious implications for brain dead organ donation.

Stop a moment. If someone were to order a Talmid Chacham to murder an am ha’aretz under threat of being killed himself, would the Talmid Chacham be allowed to pull the trigger? What about if the simpleton gives his consent?

Of course not, and nobody from R. Yehuda Hachasid on down would dream to suggest otherwise. The case there is where a gentile is vowing to kill one of the two, and there R. Yehuda Hachasid finds it praiseworthy for the am ha’aretz to offer himself as the sacrifice. A chiddush, no doubt¹³. But a chiddush that has no bearing on the questions of shefichas damim inherent to the organ donation discussion. Alas, internal havanah and fine distinctions do matter.    

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Conclusion

Those with enough exposure already know, long before this most recent offering, that Dr. Slifkin’s halachic and hashkafic contributions are not to be taken as anything other than intellectually frivolous thinly veiled social agitation¹⁴. But occasionally he still manages to provoke, even to shock. It’s one thing to shoot off your mouth and get in your jabs about army service, kollel study, memorial sirens, and Lag B’Omer. But to be pulling the same shtick with some of the most delicate halachic conundrums that exist, literally matters of life and death, simply blows the mind. Good Lord, the greatest of halachic minds, men who spend decades b’kedusha v’tahara in intense unceasing toil to understand the Torah on its own terms, shudder to issue such rulings. And this intellectual featherweight, this child who wandered into the study hall with no discernable ability to recognize implications and trace ramifications of the sources he regurgitates, happily clatters away at his keyboard, slapping meaningless syllogism on top of irrelevant tzu shtel in order to impress his pathetic admirers (are there any left?) with his self-assured authoritative declarations.

Shomu Shamayim.

1. Dr. Natan Slifkin, “Rationalism vs Mysticism”, excerpted online at Rationalist Judaism.

2. See here. For some other demonstrations of what ‘knowing how to learn’ means to Dr. Slifkin and his intellectual heroes, see our previous posts On Knowing How to Learn Part II and Evolved Extinction.

3. Slifkin himself has no such compunction, as he observes that all poskim who believe that heart function alone constitutes halachic life are “steeped in a non-rationalist worldview” and can thus be safely ignored. But in a burst of open-mindedness, he takes the time to provide the blighted with a path toward organ donation on their own terms.

4. See for example Igros Moshe YD II, 174:4, Nodeh b’Yehuda tinyana, CM 59, and Tzitz Eliezer volume 17, 72.

5. He provides no citation for this alleged reasoning, and when asked to reveal his sources he ignored the request.

If anyone has ever quoted the Mishna of yafa sha’ah achas in connection to these discussions it is simply to stress the gravity of the matter, or to provide a measure of solace to those dealing with the heartrending end of life challenges of their loved ones, or for similar peripheral purposes (see below, fn. 6). To interpret that as if it is the actual reason that murder is forbidden reveals an ignorance so profound that it alone should cure us of any inclination to pay the slightest attention to this imposter’s analyses.

6. It’s impossible to say for sure, because he does not reveal his source, but I would venture to speculate that some of Dr. Slifkin’s confusion stems from a misreading of Tzitz Eliezer XVII, 72. After quoting the opinion of Minchas Chinuch that a treifa may be given over to bandits in order to save the rest of the group, Rav Waldenberg disagrees. He bases himself, amongst other arguments, on a Radvaz that limits the extent of physical sacrifice one is required to give up in order to save another (for example, there’s no obligation to lose a limb in order to save someone else’s life). The author applies this to a treifa as well, ruling that he is not either required to give up a portion of his actual life to save another: yafa sha’ah achas, a moment of life is also too big a personal sacrifice to be demanded. Dr. Slifkin may have seen this and assumed it relevant for his construct.

If so, what he apparently missed is that nobody suggests yafa sha’ah achas as a reason that terminating a nefesh is forbidden, in the sense that were it not applicable we can unilaterally choose which nefesh we consider more significant, G-d forbid. At this point in the teshuva, Rav Waldenberg was operating within the Minchas Chinuch’s premise that a treifa is not a nefesh and can be sacrificed to save others; the author then posits that even so the choice should be forbidden on other grounds. In the case of an actual halachic nefesh - which the poskim consider a brain dead patient to be, and which is supposedly the premise of Slifkin’s discussion - yafa sha’ah achas is irrelevant. Murder is murder.

At any rate, the Minchas Chinuch himself says his chiddush specifically with regard to a treifa, which occupies its own halachic category. Rav Waldenberg stresses that Minchas Chinuch agrees that even the slightest chayei sha’ah of a non treifa is a halachic life, the tampering with which would be full-fledged murder.

And perhaps most importantly, the discussion there is not about retzicha b’yadayim, which would be forbidden in any case, even according to the Minchas Chinuch, even by a treifa.

7. Rishon Letzion YD 247:1.

8. Shu”t Volume II, YD 34, comments 12 and 17.

9. The rationale is in fact far stronger in this instance, because the consent is actually being given in real time and under known circumstances. In the case of the brain dead person, it’s hard to imagine that a signature scrawled years ago at the DMV constitutes a full sound-minded voluntary consent at the moment when the actual termination is taking place.  

10. Pesachim 50a, Taanis 18b, Bava Basra 10b.

11. Comment 15.

12. Ironically enough, in paragraph 698.

13. And, it must be noted, a chiddush that specifically does not justify Slifkin’s preposterous formulation. The Sefer Chasidim’s stated rationale is not that the scholar’s life is more important, but rather that “rabim tzrichim lo” – the public needs him. This is most likely analogous to the Papus and Lulianis case as explained by the meforshim – at times an individual may sacrifice himself for the tzibbur, not for a one to one tradeoff.

14. As such, I feel rather foolish working through the treatise so thoroughly – most of us don’t need it, and those who do are incapable of understanding it. The far more appropriate response is what my honored colleague Dr. HappyGoLucky posted earlier this week – silly agenda laced pseudo-scholarship begets merry well placed letzanus.

In my defense I can only offer that (a) it’s been a slow news week, and (b) I do think there’s some to’eles in occasionally looking closer just to remind ourselves that there’s nothing to see beneath the pomposity.