Rabbi Slifkin writes:
Ramban is of the view that a man who lacks a nefesh hamaskeles (such as Adam before he was given a rational soul, and a golem) is no different from an animal, and may be killed just like an animal.
Even if this statement was theoretically true, it does not support the notion that brain death is a valid halachic marker for death. Once a life form adopts the status of a human being, he retains it until Chazal say so. The reason R’ Zeira felt justified in retiring the golem is because it was never human in the first place. Surely R’ Zeira would not feel justified in killing a mute person simply because he can’t speak!?
Would Ramban consider a brain-dead person - someone who lacks even the brain activity necessary to regulate breathing, let alone any more complicated mental activity - to lack a nefesh hamaskeles?
Irrelevant. Until a human being’s pulse and respiration cease irreversibly he is not considered dead.
Ramchal explains that man, as opposed to every other creature in the universe, is composed of two opposing forces, the guf (material) and the neshama (spiritual). If anything, this is the statement which most appropriately defines man. Once the neshama and the guf are bound together, no one knows Hashem’s cheshbonos! Perhaps this person’s neshama needs to be bound to this guf for a while longer despite the fact that the brain does not function!
- Based on his argument from the golem, it seems that Ramban considers that one can assess whether someone has a nefesh hamaskeles via observing if they have the capacity for communication/ intelligence.
It doesn’t seem that way at all. A golem has the capacity of intelligence (Rava dispatched the golem on a trip to appear before R’ Zeira) but not speech. Ditto for a mute person. And yet, the former can be retired whereas the latter may not. Why? Because the former is not, and never was, human whereas the latter, notwithstanding his speech impediment, is fully human and retains that status until he dies.
All bodily functions - sufficient to produce a man who can function to the same degree as an animal - are controlled by the nefesh habehemah. There is no function in the body, in terms of breathing, eating, moving, etc., for which the nefesh hamaskeles is required. So the fact that a brain-dead person is breathing and has blood flowing through his veins is no indication whatsoever that a rational soul is present.
Perhaps. But this is irrelevant. The question here is whether he is considered halachically dead or not.