“Dead Donor Rule”

Judaism supports posthumous organ donation. But before a family or hospital staff can discuss organ donation, we must first confirm that the patient has died.  Ethicists around the world call this the “Dead Donor Rule”:  Patients must be declared dead according to established legal criteria and medical standards prior to procurement of vital organs for transplantation. 

Defining the criterion for death

The majority of countries around the world, including Israel, have accepted a neurological criteria for establishing death. This means death is declared based on a series of tests that indicate the irreversible cessation of the brain-stem, the part of the brain that controls respiration. (The brain-stem also plays a role in many other functions, including human consciousness.)  Patients are declared dead if they are totally non-responsive to outside stimuli and have been diagnosed with complete and irreversible cessation of spontaneous respiration.  If one can’t respond at all to their environment and can never breathe again on their own, they are no longer alive.  

Respiratory Brain-Death is not a coma or vegetative state

While the criteria is popularly called “brain death,” it is most accurate to use the term “brain-stem death” or “respiratory brain death.”  Brain death is very different from a coma or persistent vegetative state. In the latter cases, a patient may be responsive to outside stimuli and sometimes wakes up and recovers. In contrast, no one has ever ‘woken up’ after being properly tested for respiratory brain death. 

If a person is dead, how can their organs still function? 

When a patient in a hospital is declared dead by neurological criteria, their body may still receive air through a mechanical ventilator. (Sometimes medication is also administered to maintain their blood pressure). This allows for the heart to continue beating and supply other organs (but not the brain) with blood flow, keeping those organs animated. The heart and other organs may continue to function for several hours, sometimes a few days, and occasionally longer, but will ultimately stop functioning as well, in spite of the mechanical ventilator and medications. 

Most bioethicists, scientists, and legislatures around the world have concluded that the irreversible cessation of autonomous breathing is the criteria for death. The heart continues to beat for now because of powerful machines like artificial ventilators. This mechanical support doesn’t change the fact that their body has suffered irreversible damage which defines death. “Respiratory brain-death” is death.    

When is organ donation possible?

In the vast majority of deaths, a person’s heart and other organs lose vitality at about the same time as their brain-stem irreversibly ceases to function, making organ donation impossible. At other times, the deceased person’s organs are not suitable for donation because of the circumstances of the death or previous health conditions.

 In limited circumstances, a person’s brain-stem irreversibly ceases to function in a hospital setting while their organs continue to receive support from mechanical ventilation.  These moments present a unique opportunity when the person has died but their organs retain vitality. This relatively rare occasion allows for the deceased to grant the gift of life to someone who will otherwise die without a new organ. 

Jews around the world, of all stripes, have donated organs or received organs, taking part in the modern miracle of organ donation. 

Orthodox Jewish approaches to respiratory brain-death

Within Orthodox Judaism, there remains an ongoing discussion whether respiratory brain-death fulfills the Jewish legal criterion of death. 

The debate can be summarized by five representative positions found amongst leading rabbinic figures:

1. Respiratory brain-death does not meet the legal criterion of death and the person remains legally alive until their heart stops beating (“cardiac death”). Following the dead donor rule, the organs of a “brain-stem death” patient cannot be retrieved.   

2. Respiratory brain-death may or may not constitute death. Given this uncertainty, we should not retrieve organs from a Jewish patient.

Note: The above two positions also recognize the futility of continued medical interventions after respiratory brain-death, but assert that the patient has not or may not have fulfilled the Jewish legal criteria of death, thereby prohibiting organ retrieval. Some limited donation opportunities may still be available after “cardiac death.” See the end of our page on organ donation registration for more details.

3. Respiratory brain-death may or may not constitute death. Given that a) this may be death and there is an opportunity to save lives, and b) that all segments of society have agreed to receive organ transplants in accordance with respiratory brain-death, we must grant patients or their families the choice to donate organs in such a situation as well. 

4. Respiratory brain-death is the Jewish legal criterion of death. We recommend for a person to declare their wishes to be an organ donor and families are encouraged to donate organs under rabbinic supervision. It is a great mitzvah to make this life-saving choice. 

5. Respiratory brain-death is the Jewish legal criterion of death and it is obligatory for organs to be donated when there are lives that can be saved.

Note: The above three positions facilitate one person being able to donate up to eight life-saving organs as well as cornea, skin, and tissues. See here for more details. 

Ematai’s Policy

Given the religious, legal, and societal ramifications, Ematai promotes a policy of religious liberty, informed choice, and emotional support.  Our policy asserts:

• Religious liberty: Countries should respect the full range of opinions regarding the neurological criteria of death and recognize that some religious traditions and ethical perspectives will not permit organ retrieval after respiratory brain-death has been determined. 

• Cultural sensitivity: Health organizations should undertake initiatives to educate about organ donation and provide transparency regarding the organ retrieval process. Ematai works with many organ procurement organizations around the world to ensure cultural-sensitivity regarding Jewish perspectives on death and organ donation.  
• Emotional support: Jews who have lost their loved ones, frequently suddenly and unexpectedly, should be embraced by the community and provided with full emotional support regarding any decisions made on organ donation. 

• Choice: Jews may choose to donate organs in consonance with their views regarding respiratory brain-death.  From our twenty years of experience, we have found that many Jews (or their proxies and families), in consultation with their rabbis and healthcare providers, choose to donate for one or more of the following reasons:

1. They accept, as Jews, the respiratory brain-death criteria found throughout the world.
2. They believe that if they would be in need of a life-saving organ, they would hope someone would donate to them. Now that they have the opportunity to donate and save lives, they wish to help prevent the unnecessary deaths of fellow members of society, in the spirit of beneficence, solidarity, and reciprocity. 
3. It is a source of great pride and comfort for families to know that life somehow emerged from the tragedy of their loved one’s death.
4. They see organ donation as one final mitzvah that will serve as a great merit (zechut) for the deceased.  

However, some Jews, like other members of society, elect not to donate, for a variety of emotional, religious, and cultural reasons. Their wishes must be respectfully accommodated.

Ematai policies are inspired by the positions of leading religious bodies, including the Israeli Chief Rabbinate (see here and here), the Bet Din of Sydney (led by senior Chabad rabbis), the Johannesburg Beth Din, and the Office of the Chief Rabbi of the British Commonwealth.

We encourage Jews to learn more about this topic from their rabbi and other parts of our website.

Registration: For practical steps regarding organ donation, click here. 

Realtime Consultation: Ematai provides educational resources regarding organ donation and serves as real-time consultants and supervisors of the organ donation process.  To reach us in a case of emergency, please click on our Realtime Consult page.

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