Jewish Law Responds to American Law 149
This has not muted the basic conflict of ideologies. Among Jewish scholars and ethicists there is a continuing controversy with regard to what should be the acceptable modern definition of death. Reacting to Anglo-American law which describes irreversible cessation of total brain function as a criterion for death,’ some Orthodox Jewish scholars following the conclusions of M. D. Tendler, a rabbi and bacteriologist, accept only destruction of the entire brain as a Biblical definition of death.!® Tendler describes physiological decapitation as“complete destruction of the brain with loss of integrative, regulatory and other functions.” Thus, he concludes,“total and irreversible cessation of brain stem function equals destruction of the brain.”’>® Another noted Orthodox authority, Rabbi Joseph Soloveichik, Director of the Department of Law at the Hebrew Theological College, categorically denies that only loss of brain function equals death.
Jewish law recognizes the presence of any vital function, including heart action, as indicative of at least residual life. Termination of such life by means of“pulling the plug” or otherwise constitutes an act of homicide. Moreover, a sharp distinction must be drawn between partial and total destruction of the brain. The authors’ state that the Harvard criteria signify that“when the criteria have been fulfilled, there is widespread destruction of the brain” and that“time must often elapse before morphologic evidence of cellular destruction can be detected.” This cannot be equated at all with the state of capitation. Jewish law cannot be cited in support of brain death legislation presently before the legislatures of various states. Jewish law cannot condone the removal of life support systems from any patient in whom any vital sign is present.'”’
To date the conflict between the standards and procedures for the declarations of death based upon the commonly accepted Harvard criteria and those of differing religious traditions, including that of Jewish law, has been addressed by only one state. New Jersey recognizes death as the modern neurological evidence of irreversible cessation of all functions of the entire brain, including the brain stem.1!5 Equally, New Jersey Rpts an exemption to individuals who reject the definition of deat derived from the brain death standard and maintain that death shall be defined on the basis of cardiorespiratory criteria if dorie SO on the basis of a conscientious objection predicated on reli