When is "dead" really "dead?" Part II -by David Shabtai

(please see the original "When is 'dead' really 'dead'" post for more on this). The question was: Dr. Avraham therefore asks (Nishmat Avraham 5, 99 [my translation]): "Nowadays we attempt to revive clinically dead patients [no spontaneous respiration, heartbeat or movement] through cardiac massage, electric shock, artificial respiration, etc., even on Shabbat and I have never heard that this is not considered to be a great mitzvah nor not to do so on Shabbat!" (He continues to equate this ruling with that of treating a ben shemonah that was considered by Hazal to be considered dead – ve'akmal.) He leaves his question unanswered.

Before attempting to answer this question, it is important to understand how the moment of death is understood in Halakhah. The Shulhan Arukh (OH 330:5) writes: "If a woman dies in labor [on Shabbat] – we bring a scalpel, even through a reshut ha-rabim to attempt to remove the child, since there is a chance that he may be alive." The Rama comments however, that we do not follow this practice even during the week since "de-ein beki'in be-mitat ha-eim kol kakh she-efshar la-velad li-heyot – we are no sufficiently proficient in determining the time of death ..." Magen Avraham (330:11) explains that we are concerned "shema nitalfah – perhaps she has fainted" and we must wait a certain amount of time after we think she has died to ensure that she has not indeed fainted; once a sufficient amount of time has passed, we can be certain that she is dead. However, once that time has passed, there is no chance that the fetus is still alive and as such, we are not permitted to violate Shabbat in attempting to remove it. This same idea of hashash iluf (concern with the possibility of fainting) is also found in the Rambam (Hilkhot Avel 4:5) where he writes that one is forbidden from closing the eyes of someone who has just died since even touching such a person may hasten his death. Rather, a person should wait a while, shema nit'alef and only then close the eyes and prepare for burial. This view is codified by Shulhan Arukh YD (339:1).

R. Moshe Feinstein (Iggerot Moshe YD 2:174:2) writes that the halakhic signs of death (loss of respiration, cardiac function and movement) are seen due to death itself, or alternatively, in a patient whose disease has taken over so much that he can no longer perform these vital functions independently. Such a person cannot live much longer, but is nonetheless still considered fully alive. R. Shelomoh Zalman Auerbach (Shulhan Shelomoh 2, 35) writes that nowadays we can treat many conditions that were thought to be fatal in the times of Hazal. Even once the halakhic signs of death have been observed, there are [perhaps many] instances where it is possible to heal the patient and allow him to live a full life afterwards. R. Auerbach therefore explained that the time allotted to hashash iluf should be longer today that it was during the times of Hazal – and should correlate with the medical chances of effectively treating such a patient. The time of hashash iluf should extend until such time where there is absolutely no hope of returning the patient to life.

Therefore, when a patient immediately experiences cardiac arrest – we are concerned with hashash iluf and therefore treat the patient as potentially alive. One is obligated to treat even questionable cases of pikuah nefesh on Shabbat and this is no different. There is therefore a "great mitzvah" indeed in treating such a patient and attempting to bring him back to life, despite the halakhic signs of death having set in.

In the case of hutaz rosho (the case R. Feinstein described) however, there is no concern of hashash iluf – since it is absolutely clear that the patient has not fainted – their head has been removed! Since there is no hashash iluf, we can be absolutely sure that the patient is dead and as such there is no permission granted to violate Shabbat in attempting to resuscitate this patient. The Shevut Ya'akov (1:13) even writes that if a woman in labor is beheaded – we do violate Shabbat in an attempt to save and remove the child. The Rama (above) was concerned with determining the moment of death – in this case it is certain and therefore the ruling reverts to that of the Shulhan Arukh.