Defining Death in Jewish Law

Traditional sources point to the cessation of breathing as the moment of death.

By Abraham Steinberg

Reprinted with permission from Medicine and Jewish Law, edited by Fred Rosner and published by Jason Aronson Publishers.

 

The main talmudic text dealing with the question of the determination of the moment of death is the following: “If a building collapses on a person [on the Sabbath]…they [may] dig to remove the rubble from him [to try to save his life]…but if he is dead, they leave him there [until after the Sabbath because it is forbidden to dig on the Sabbath]. How far does one check [to determine whether or not he is dead]? Until his nostrils; and some say, until his heart” (Tractate Yoma 85a). This ruling to check the nostrils to determine life or death is codified in Jewish law. The Talmud continues: “Rabbi Pappa said that the disagreement is when one examines from below to above, but [when] from above to below—since he examined him until his nostrils—he need [examine] no more” (Yoma 85a). This ruling is explicitly stated by Rabbi Joseph Karo in his Shulchan Aruch (a foundational Jewish legal code).

 

Maimonides states: “And when one comes to his nos­trils and does not find any breath in him, then one may not dig any more, since he is undoubtedly dead.” Rabbi Shlomo ben Yitzchak, known as Rashi, similarly writes: “And if there is no vitality in his nostrils in that one does not find any wind [i.e., breath], he is undoubtedly dead, and [if it is on the Sabbath] one leaves him.” Rashi and Maimonides take pains to stress that in the absence of breathing the person is undoubtedly dead; one must leave him, and it is prohibited to dig any further on the Sabbath, even though any doubt regarding the saving of life overrides the Sabbath. Neither Rashi nor Maimonides, while interpreting the opinion that considers the sign of absent respiration from the nostrils as halakhically valid (i.e., valid according to Jewish law), mentions the heart as a criterion for determining death.

 

The talmudic text thus contains a disagreement as to which organ’s cessation determines the fact of death. According to one opinion, death is determined by observing the nostrils (i.e., respiration), and according to the other, by listening for the heartbeat. This latter version, however, is cited by only a very few talmudic commentators. However, the Jerusalem Talmud (Yerushalmi Yoma 8e) and most early talmudic commentators (rishonim) substitute the word navel for heart. Rabbi Moses ben Simon Margoliot, known as Penei Moshe, explains that even the rabbis who adopt the textual reading of “navel” are of the opinion that breathing is the decisive sign, and that the navel provides a sign similar to that of the nostrils. The examination of the navel refers to diaphragmatic breathing, which is perceived near the navel. Nonetheless, even the version “until his heart” is not in accordance with the final halakhic ruling, which is “until his nostrils.” Furthermore, according to the opinion of Rav Pappa, and to halakha, there is no disagreement over what is to be done when the rescuer first encounters the victim’s head in the rubble of the collapsed building; he is to remove the rubble until the victim’s nostrils are visible. If the heart is decisive in determining the moment of death, why did the talmudic sages not obligate the rescuer to remove rubble until the heart? And how did Maimonides determine that if there is no breath in the nostrils, he is “undoubtedly” dead?

 

The literal reading of the key talmudic text and the comments of the rishonim (early commentators) clearly imply that the vital sign distinguishing between life and death is breathing, and not the beating of the heart. Rabbi Moshe Schreiber similarly writes: “For everything is dependent upon the breath of the nose, as is explained in Yoma 85a; and in the ruling in Maimonides and the Tur Shulchan Aruch.” Rabbi Moshe Feinstein also states: “It is explicitly stated in the Gemara, Yoma 85a,…and similarly there is a ruling in Maimonides…and in the Shulchan Aruch …that [the ruling that] if they did not sense any vitality, he is legally dead, refers to the examination of breathing…and if they see that he is not breathing, this is the sign of death upon which we can rely, and there is no need to ponder this; see the [writings of] the Chatam Sofer…”

 

These rabbinic decisors (poskim) make no mention of the heart in reference to the text in Yoma nor do they mention pulses in the arteries or temples, as some authorities suggest in their interpretations of this talmudic text. Thus, the heart has no halakhic status in the definition of the moment of death, and it is wrong to append to the text in Yoma any conditions, casuistry, and hairsplitting that are not there. Some contemporary rabbis posit that a distinction should be made between the case in Yoma, which speaks of a person covered by debris, and regular death, in which case the heart must be checked. This approach was rejected by the Chatam Sofer, who wondered how such a distinction could be made, since the biblical expression “breath of the spirit of life” (Genesis 7:22) does not refer to debris.

 

The emphasis of the Talmud in Yoma that, regarding the saving of life, the main sign of vitality is in the nose clearly implies that the definition of life and death on the basis of breathing is an essential matter of principle, and not a mere “technical” matter. Furthermore, there are cases in which a person’s heart continues to beat, but the person nevertheless is halachically regarded as dead. Maimonides rules: “If his neck is broken, and most of the flesh with it, or he is torn like a fish from his back, or his head was cut off, or he is divided into two parts in his stomach—this situation imparts impurity [as a corpse], even though one of his limbs still flutters.” Although the heart still beats, this mortally wounded person is regarded as having died immediately. Thus, the activity of the heart per se does not necessarily constitute a sign of life. Indeed, there is no allusion in the entire Talmud to the heart as an essential factor in the determination of the moment of death, except for the aforementioned version by a minority of rishonim. This opinion, however, does not constitute the final halacha. On the contrary, throughout Jewish writings, breathing is discussed as the determinant of the transition from life to death: “And He breathed into his nostrils the breath of life” (Genesis 2:7). Similarly, the words neshimah (breathing) and neshamah (soul or life) share a common root.

 

The talmudic sages did not intend to imply that the nostrils determine life, for the nostrils are not an organ upon which human life depends. The teaching of the sages is that breathing is a sign of life, and that absence of breathing is a sign of death. It is incumbent upon us to identify the organ that controls breathing. The current state of scientific knowledge indicates that it is the brain, and not the heart, that controls breathing.

 

It follows from the text in Yoma and the commentaries thereon that death occurs when breathing totally and irreversibly ceases. The talmudic and post‑talmudic sources do not require the cessation of the heartbeat for the determination of the moment of death. Under normal conditions, the time between the cessation of breathing and the cessation of the heartbeat is minimal—a matter of minutes. If there is any possibility of reversing the cessation of respiration and reestablishing independent breathing, one is obligated to attempt to do so by all medical means possible. Under extreme conditions, however, when it is clear that independent breathing can never return because of the irreversible death of the brainstem, the patient can be regarded as dead from the moment that brainstem death is established, even if the patient’s heart is still beating.

 

Abraham Steinberg is a pediatric neurologist at Shaare Zedek Hospital in Israel and head of the medical ethics department of the Hebrew University-Hadassah School of Medicine. He is a recipient of the prestigious Israel Prize.