Is “Vital Motion” a Halakhic Concept?

Touro Law Review Volume 36 Number 1 Article 4 2020 Is “Vital Motion” a Halakhic Concept? Ira Bedzow New York Medical College Noam Stadlan Pritzker School of Medicine, University of Chicago John Loike Touro College and University Systems Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Bioethics and Medical Ethics Commons, Jewish Studies Commons, and the Law Commons Recommended Citation Bedzow, Ira; Stadlan, Noam; and Loike, John (2020) "Is “Vital Motion” a Halakhic Concept?," Touro Law Review: Vol. 36 : No. 1 , Article 4. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol36/iss1/4 This Article is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact . Bedzow et al.: Is “Vital Motion” a Halakhic Concept? IS “VITAL MOTION” A HALAKHIC CONCEPT? Ira Bedzow, Noam Stadlan, John Loike * Abstract: In this article, the authors analyze the Talmudic and halakhic sources upon which the concept of “vital motion” is based so as to evaluate whether the sources support the concept. Through this analysis, the authors present the view that vital and non-vital motion are not distinct halakhic categories. Rather, physical or physiological activity is understood in context as either meaningful or not, depending on whether it is assumed that the person or animal will continue living or not. I. INTRODUCTION In the Jewish tradition, the main definition of life is ensoulment or possessing the spirit of life (nishmat ruach). 1 Death, therefore, is defined as occurring when the soul or life force (nefesh) leaves the body. Examples of this definition being used even in a juridical sense can be found in two different passages in the Mishna. In the first passage, the Mishna states, “He who closes the eyes of a yetziat nefesh [a person whose soul is departing] is a spiller of blood.” 2 In the second passage, the Mishna states, “A person does not defile [as a corpse] until his soul departs.” 3 However, because a person’s soul or life force is a spiritual entity, its departure cannot be empirically observed or * Ira Bedzow is an associate professor of medicine, the director of the Biomedical Ethics and Humanities Program, and head of the UNESCO Chair in Bioethics at New York Medical College. Noam Stadlan is Vice-Chairman of the Department of Neurosurgery at NorthShore University Healthcare system, and Assistant Professor, Division of Neurosurgery at the Pritzker School of Medicine, University of Chicago. He has recently completed a Masters of Science in Bioethics at New York Medical College. John D. Loike is a professor of biology at Touro College and University Systems and writes a regular column on bioethics for The Scientist. 1 See Genesis 7:22, BT Yoma 85a. 2 Mishna Shabbat 23:5. 3 Mishna Ohalot 1:6. 3 Published by Digital Commons @ Touro Law Center, 2020 1 Touro Law Review, Vol. 36, No. 1 [2020], Art. 4 4 TOURO LAW REVIEW Vol. 36 clinically assessed. 4 Therefore, halakhic decisors had to determine how they might be able to draw the demarcation line between life and death based on physical and/or physiological conditions, 5 since “a judge has only what his eyes see.” 6 The difficulty with relying on physical conditions to determine metaphysical events is demonstrated in the following Talmudic example: The Mishna states, “If a zav, a zava, a niddah, or a woman after childbirth has died, they still impart impurity to objects on which they are lying or upon which they are riding until their flesh has decayed.” 7 The Talmud expands on this Mishna to explain the impurity to which the Mishna refers is not the impurity of a corpse. Rather, it is the ritual impurity, unique to a zav(a) and a menstruating woman, where if they sit on an item, even one that cannot become ritually impure, and beneath that item is a vessel, the vessel becomes ritually impure through their sitting on the item above it. The implication is that, for the sake of this form of ritual impurity, these three types of people are considered to still be alive until their flesh decays. The reason for this is due to the fear that the person might simply have fainted, and be mistakenly taken for dead. 8 Yet, if the person’s flesh has started to decay, then it is clear that they are in fact dead. 9 Rabbi Moshe Sofer explains that the sages instituted this decree because the sages understood that people can only recognize that death has occurred given their expertise in identifying signs that a person’s physical constitution has changed. For those who are inexperienced in detecting signs of life, physical decomposition was the best indication they had to recognize that the person had died. For those who are more experienced, other signs could be relied upon, such as a heartbeat and respiration. 4 See Bleich, J. David, Establishing Criteria of Death, in TRADITION: A JOURNAL OF ORTHODOX JEWISH THOUGHT 90-113 (vol. 13.3) (1973) (“The traditional view is that death occurs upon the separation of the soul from the body. Of course, the occurrence of this phenomenon does not lend itself to direct empirical observation.”). 5 The terms, physical and physiological, both refer to bodies; however, physical refers to the body itself while physiological refers to the body’s functions. 6 BT Bava Batra 131a. 7 Mishna Niddah 10:4. 8 Id. See the alternative position of Rabbi Eliezer in the Talmud, who states that these people impart ritual impurity only until the belly of the corpse bursts. The former position only applies in cases where the corpse resembles a person who has fainted. In other words, once the corpse is clearly no longer alive, it no longer imparts this type of ritual impurity. 9 Resp. Hatam Sofer, YD, no. 338. https://digitalcommons.tourolaw.edu/lawreview/vol36/iss1/4 2 Bedzow et al.: Is “Vital Motion” a Halakhic Concept? 2020 IS “VITAL MOTION” A HALAKHIC CONCEPT? 5 Currently, debate among halakhic decisors regarding what signifies death based on physical and/or physiological conditions has become entrenched between two main positions. One position holds that irreversible termination of respiration is a definitive signifier that a person has died, and this can be determined by neurological criteria. 10 The other position holds that irreversible termination of cardiac activity, or irreversible cessation of vital motion, is the definitive signifier that a person has died. 11 In this article, we will examine the Talmudic and halakhic sources upon which the concept of “vital motion” is based so as to evaluate whether the sources support this concept. This evaluation does not appraise the scientific or philosophical notion of vital motion; rather, it only tests whether it has juridical warrant according to the authoritative sources of Jewish law. Through this analysis, we intend to s (...truncated)