Organ Donation

The following responsum is reprinted from Tomeikh KaHalakhah volume 3.  Tomeikh KaHalakhah is UTJ’s series of volumes of responsa (teshuvot) promulgated by the Union For Traditional Judaism’s Panel of Halakhic Inquiry.

 

The following is the text of the uniform donor card used by the New York Regional Transplant Program, Inc.:

In the hope that I may help others, I hereby make this anatomical gift, if medically acceptable, to take effect upon my death. The words and marks below indicate my desires.

I give: (a) __ any needed organs/tissues

            (b) __ only the following organs/tissues:

                 ___________________________________________

                 Specify the organ(s)/tissue(s)

or

for the purposes of transplantation, therapy, medical research or education:

           (c) __ my body for anatomical study if needed.

Limitations or special wishes, if any: _____________________________

The reverse side of the card is to be signed by the donor and by two witnesses in the presence of each other. It notes that the card is a legal document under the Uniform Anatomical Gift Act or similar laws. Finally, two lines ask for next of kin and their telephone number.

In the Mishneh Torah, Laws of the Sabbath 2:3, Maimonides states: “When such things have to be done [to violate the Sabbath to treat a dangerously ill person], they should not be left to heathens, minors, slaves, or women, lest these should come to regard Sabbath observance as a trivial matter. They should rather be done by adult and scholarly Israelites. Furthermore, it is forbidden to delay such violation of the Sabbath for the sake of a person who is dangerously ill, for Scripture says, ‘Which if a man do, he shall live by them’ [the mitzvot] (Lev. 18:5), that is to say, he shall not die by them [the mitzvot]. Hence you learn that the ordinances of the Torah were meant to bring upon the world not vengeance, but mercy, lovingkindness, and peace.” Maimonides’ classic formulation of the importance of piku’ah nefesh (saving of a life), which overrides such central rituals as the Sabbath, also reminds us that in carrying out such mandated violations of Jewish law to save lives, it is the most Jewishly knowledgeable who must carry out the actions. If Jewish tradition so rules in times of emergency, it would seem a reasonable corollary that rabbis should make known their views in issues where lives might be at stake, in the hope that a reasoned presentation of the words of Torah can influence people to act in accordance with the best of our tradition (see, similarly, Mishnah Berurah, ch. 334, #74).

The advances achieved by medical science in the field of organ transplantation offer a new lease on life for thousands of sufferers who, only decades ago, would have had almost no hope of recovery from their illnesses. At first glance, then, organ donation and transplantation would seem to fit within the category of life-saving actions so lauded by Jewish tradition, and hence theoretically our inclination should be to encourage organ donation and thus promote the mitzvah of saving life. Several other possibly conflicting ethical-halakhic values, however, must be taken into consideration, such as respect for the dead, following the wishes of the deceased, and more general communal interests. The extreme sensitivity of many Jews on the question of honorable burial of the remains of deceased loved ones certainly stems from traditional Jewish values. The tragic events of our times, where both in life and in death millions of Jews suffered the most ghastly forms of disrespect and degradation, have heightened this already existing sensitivity. Present-day outrages such as the desecration of the Jewish cemetery in Carpentras, France, remind us that the journey of a Jew to his or her final resting place may not always be accompanied by peace and tranquility. Jewish insistence on proper and honorable burial in such an atmosphere may express conscious and unconscious sentiments on the part of the Jewish people that in this post-Holocaust, post-Carpentras era, dignity in life and also in death is something that must be struggled for, and is far from assumed. In addition, many observers have expressed fears of a “slippery slope,” where overly liberal policies regarding organ donations and transplantation could lead to situations in which the corpses of the deceased might become “organ farms” for future transplantation, the horrors of which have been popularized in the novels of Robin Cook and satirized in the film “Monty Python’s ‘The Meaning of Life’.” Halakhic literature has long connected the question of organ donations with the long-standing debates over autopsies and the definition of death. In short, the question of organ donation in general and the specific issue of organ donor cards is one of great sensitivity, where a large number of concerns come into play.

The subject of organ transplants and donations has received much attention in halakhic literature. For a summary and guide to relevant material see Avraham Steinberg, Entsiklopedia Hilkhatit-Refuit (Jerusalem, 1991), vol. 2, cols. 221ff.; Abraham S. Abraham, The Comprehensive Guide to Medical Halachah (Jerusalem/New York: Feldheim, 1990), pp. 172-173; Idem., Sefer Nishmat Avraham, vol. Yoreh De’ah (Jerusalem, 5745), pp. 259-264; David M. Feldman and Fred Rosner, eds., Compendium on Medical Ethics (6th edition; Federation of Jewish Philanthropies of New York, 1984), pp. 67-71. For popular accounts on medical and ethical issues surrounding this topic, see Felice Maranz, “Playing God?,” The Jerusalem Report, July 18, 1991, pp. 10-15; Lance Morrow, “When One Body Can Save Another,” Time, June 17, 1991, pp. 34-38. Related subjects, such as donation of organs by a live donor and the halakhic permissibility of transplant surgery for the recipient, where the surgery is experimental and unproved clinically, are beyond the purview of this present responsum, but have been dealt with in the literature.

Study of the halakhic literature on organ donors reveals that authorities focus on four main concerns in reaching their decisions: the general overriding notion of saving a life (piku’ah nefesh); the prohibition of desecrating the dead (nivul ha-met); the prohibition of deriving benefit from the dead; and the obligation to bury the dead and the prohibition against leaving the dead unburied. We should mention in passing that several of the authors of responsa on the topic note that their analysis is to be regarded as theoretical only and not practical Halakhah.

Piku’ah Nefesh—While acknowledging that piku’ah nefesh overrides all mitzvot with the exception of murder, idolatry, and forbidden sexual relations, those rabbis who forbid taking organs from cadavers, even if the deceased while still alive had expressed wishes that this be done, base their reasoning on the principle that “the dead are free of the mitzvoth” (ha-met hofshi min ha-mitzvot). The deceased is thus not obligated to do anything, and neither the deceased nor his or her family can relinquish the respect due to the dead (see, e.g., Responsa Minhat Yitzhak, vol. 5 #8). The extreme negative view on organ donation was expressed succinctly by Rabbi Eliezer Waldenberg (Responsa Tzitz Eliezer vol. 14 #84): “Even where the deceased had consented before his death, or the family consented, and even if the transplant is for a dangerously ill person, and even if the removal of the organ will be performed in a way which will not hasten the death of the donor, nevertheless several of the greatest decisors (posekim) forbid the matter for a Jewish donor, since as it is written the dead are “free” and they are not obligated to save a life or the like, and anyway it is impossible for them to give up on the prohibition against their desecration or non-burial, since they were created in the image of God, and there is a divine command on them to return to the earth in their entirety as they came into the world, without any purposeful diminution…” The most that Rabbi Waldenberg would permit is the use of organs from non-Jews, or after the fact to permit Jewish doctors to use organs donated by Jews that happen to be available. See also Responsa Shevet Halevi, Yoreh De’ah, vol. 1 #211, which cites the same arguments, but in connection with donating eyes from the deceased to an “eye bank” invokes the “slippery slope” argument, expressing the fear that harvesting eyes from the deceased might be performed on every person who dies.

A large number of contemporary rabbis, however, believe that piku’ah nefesh is indeed relevant in this case. In taking this position, they align themselves with a two-century-old precedent set by Rabbi Ezekiel Landau of Prague. Rabbi Landau argued (Responsa Noda Bi-Yehuda, Mahadura Tinyana, Yoreh De’ah #210) that the prohibition against desecrating the dead by performing a post-mortem could be overridden in the case in which another person suffering from the same disease was in the same vicinity and knowledge gained from the post-mortem could help save that person. He would not permit autopsies just for the sake of general advancement of knowledge. Interestingly enough, this pioneering eighteenth-century responsum already expressed the fear of the “slippery slope,” lest undue liberality in permitting autopsies lead to routine post-mortem examinations of all the dead. Rabbi Landau’s view sets several crucial conditions for overriding the honor due to the deceased, namely those of immediacy, a critically ill person “before us” to be saved, and consent of the deceased or of his or her kin. Later decisors might widen or slightly reinterpret these conditions, but Rabbi Landau’s responsum fairly well determined the direction of subsequent halakhic discourse until our day. One can readily see how the consensus is indebted to this precedent.

Our commitment to piku’ah nefesh must not and may not come at the expense of the potential donor. Feldman and Rosner (Compendium, p. 67) sum up the concerns of the Halakhah: “[T]he protection of the rights and integrity of the donor is an overriding consideration. Under Jewish Law, imminence of death in no way compromises the inviolable rights and privileges of the donor…shortening his life by one second is an act of murder….It is therefore categorically prohibited to prepare a critically ill donor for transplantation surgery if this preparation in any way hastens his death. Donation of an organ is proper only for either a healthy, living patient who has, after careful deliberation with medical and religious authorities, decided to donate a non vital organ, or from a donor who has already died…” Insistence on maintaining strict standards relating to organ donors can serve to protect from the “slippery slope” mentioned by Rabbi Waldenberg and others.

The rules of piku’ah nefesh, where the laws of the Torah are suspended, technically apply only to a fellow member of the covenant community (Yoma 83a; Avodah Zarah 26a). However, on the issue of piku’ah nefesh for non-Jews, there is a long-standing, if sometimes grudging, precedent for granting permission to Jewish health professionals to violate the Sabbath for the treatment of critically ill non-Jewish patients (see Responsa Divrei Hayyim part 2, Orah Hayyim #25, which attributes the permission to an enactment [takkanah] of the Council of the Four Lands, the autonomous super-kehillah of Polish Jewry; see also the lengthy and enlightening discussion of this subject by Rabbi Waldenberg in Responsa Tzitz Eliezer vol. 8 #15; Rabbi Neuwirth, Shemirat Shabbat Ke-hilkhata, ch. 40, par. 14, p. 525). The subject under discussion here, however, involves potential Jewish organ donors, and not health professionals (except, of course, Jewish doctors who may be directly involved with transplantation surgery). Rabbi Hayyim David Halevi of Tel Aviv (Responsa Aseh Lekha Rav, vol. 6 #90, p. 374) remarks in a terse responsum that setting a specific condition limiting one’s organ donation to Jewish recipients might arouse great resentment against Jews, since people would say how would Jews feel if Christians would make a similar condition? Long ago the rabbis permitted certain things because of “the ways of peace” (see Gittin 59a ff.), and this too might be one such case. Rabbi Halevi finishes his laconic reply by saying that the matter needs detailed further study.

We would suggest that the halakhic literature on organ donation suggests another way out of this ethical-halakhic impasse. As we noted above, one of the major halakhic obstacles to permitting organ transplants is the prohibition against desecrating the dead. While it is true that most posekim invoke piku’ah nefesh as the way to override the prohibition and thus permit post-mortems or transplants, precedent exists to allow such procedures not just for piku’ah nefesh, but wherever there is some great need (tzorekh gadol). Indeed, the two Talmudic sources that relate to post-mortem examination (Baba Batra 154a, Hullin 11a) allow at least the theoretical permission for post-mortems for other reasons (recovering money in one case, and in the other case even to prove that a man should be executed!). In both instances the Talmud says the post-mortem should not be done, but only because the needed evidence could not be obtained in those particular instances. Where the post-mortem could help in solving some pressing need, then, there are rabbis who would allow it (see Responsa Sho’el u-Meshiv vol. 1, part 1 #231, cited by Rabbi Ovadiah Yosef, Responsa Yabi’a Omer, vol. 3, Yoreh De’ah #23, who allowed exhuming a body in order to possibly identify a missing deceased husband and thus free his widow from being an agunah; Rabbi Ben-Zion Firer in No’am 4 (1961), p. 201, says that “when there is some real need [tzorekh shel mamash] before us, it may be that even without piku’ah nefesh it [desecrating the dead] is permitted”). While the classical halakhic criteria of piku’ah nefesh permit violating the law only for fellow Jews, we would submit that for a host of reasons—social, communal, ethical, and others—allowing such organ donations for any recipient comes within the definition of a “great need” or “real need,” and hence should be allowed under Halakhah.

It might be objected that our approach here relies on minority precedents. We would respond that where lives are involved, we take as our watchword the statements of Rabbi H.D. Halevi (Responsa Aseh Lekha Rav vol. 4 #64, p. 324; Assia 4 (1983), p. 258) that “it is worthwhile to enter into forced arguments to permit things [heterim dehukim] in order to bring relief and healing to the suffering who so need these organs.”

The prohibition of desecrating the dead (nivul ha-met)—As we have already discussed at length, saving a life overrides the prohibition of desecration of the dead. Furthermore, if the person had so agreed while still alive, then this is of course showing honor to the deceased and to his or her wishes. When the organ removal is done under surgical conditions, as is the case in a transplant operation, then one may be fairly certain that the proper dignity will be shown to the deceased. Rabbi Halevi adds (Responsa Aseh Lekha Rav vol. 4 #64, p. 324) that “just as any person while alive would be happy to bring benefit to others, there is no doubt that his soul after death is even more pleased to help others.”

The prohibition of deriving benefit from the dead; the obligation to bury the dead and the prohibition to leave the dead unburied—On these two issues, we cite the opinion of the late chief rabbi of Israel, Rabbi Issar Yehudah Unterman (Responsa Shevet Mi-Yehudah, Jerusalem, 1955, vol. 1, pp. 313-322), who maintains that these prohibitions apply only to the dead. Organs that are attached to another person’s body and are thus “resurrected” no longer come under these prohibitions. Rabbi Unterman cites the Talmud (Niddah 69b and 70b), which relates that the sages of Alexandria asked Rabbi Yehoshua ben Hanania twelve things: three matters of wisdom, three matters of aggadah, three matters of foolishness, and three matters of derekh eretz (proper behavior). Among the “things of foolishness” was the question whether the (revived) son of the Shunnamite woman (see 2 Kings 4:8- 37) transmitted impurity. Rabbi Yehoshua responded to them that the dead transmit impurity and not the living. It was not possible for him to transmit the impurity that comes from a dead body since he was obviously alive. Similarly, Rabbi Unterman argues, in the case of an organ transplanted into another person’s body, none of the prohibitions relating to the dead apply to it, since it is obviously alive. Additional arguments advanced by Rabbi Unterman and other rabbis include the claim that the prohibition against deriving benefit from the dead applies only when the benefit is in the “usual manner” (ke-derekh ha-na’atan), while here the benefit is in another manner (cf. the view of Rabbi Moshe Feinstein in Responsa Iggerot Moshe, Yoreh De’ah vol. 1 #229). The prohibition against preventing burial does not apply here, since the organ is now revived, and eventually will be buried with the recipient at some time in the future. In the case of donating skin or corneas, several rabbis cite the opinion of Tosafot (Niddah 55a s.v. shema ya’aseh shetihin), who maintain that the prohibition of deriving benefit from the dead does not apply to skin. On this basis, several rabbis have expressed more lenient opinions regarding the donation of skin to organ banks for future use.

While we have maintained throughout that the expressed wish of the deceased to donate his or her organs plays an important role in allowing organ donation, Halakhah does place some limits. Specifically, if one commands his kin not to bury him, then his wishes are to be ignored (Shulhan Arukh, Yoreh De’ah 348:3), since this is also a disgrace for the living (Siftei Kohen ad loc.). For this reason, “donating one’s body to science” would appear to be forbidden, since it is unlikely that, under normal medical school conditions, all the body parts would be kept separate and eventually brought to Jewish burial. Thus such a bequest is tantamount to saying “do not bury me” and should not be honored. Piku’ah nefesh does not enter here, for since the time of Rabbi Landau (mentioned above), the established precedent has been that piku’ah nefesh applies only in a case of fairly immediate aid to a specific individual, not to some vague advancement of science, or to the training of someone who eventually will be engaged in saving lives. Thus, we find an interesting responsum (Responsa Iggerot Moshe Yoreh De’ah vol. 3 #140) in which Rabbi Moshe Feinstein responds to a query by Rabbi Moshe Sherer, President of Agudath Israel of America, who had been approached by the Office of the President of the United States regarding the use of organs for medical research. In a brief response, Rabbi Feinstein prohibits the use of any part or organ of the body for research, regardless of whether permission had been obtained from the deceased prior to death or from the deceased’s children or relatives.

Rabbi Steinberg (Entsiklopedia Hilkhatit-Refu’it, col. 222) sums up the conditions under which the widest consensus of halakhic opinion would permit taking organs from a deceased Jew: the sick person needing the transplant is at hand; the medical condition of the ill person is defined as piku’ah nefesh; and the donor had agreed while still alive to allow transplantation of his or her organs after death. Halakhic problems increase when one of these conditions is lacking. Also we note that even for those rabbis who permit organ donation in general, controversy remains regarding certain organs, especially the heart, since classical Jewish criteria for definition of death relate to heartbeat and respiration (Yoma 85a) rather than brain function. In his responsa Aseh Lekha Rav, vol. 5, #113, pp. 398-399, Rabbi H.D. Halevi refers explicitly to donor cards, the use of which he permits with the condition of excluding the heart from the organs to be donated. Recently, however, the halakhic consensus has swung toward a more permissive attitude on heart transplants (see Steinberg, Entsiklopedia Hilkhatit, cols. 224-225). We refer the reader to the growing literature on the halakhic issue of determination of death.

On the basis of the above analysis, we find that traditional Jews should be encouraged to help save lives through the donation of organs after death. The card submitted and similar cards may be used, but under the following conditions: that the donor specify that the organs are to be used exclusively for transplantation, preferably immediate transplantation, or for therapy (e.g., skin grafts) for critically ill patients; that any tissues not used in the transplant be given over for burial; and that the transplantation operation be carried out with proper respect for the deceased. The card should be so marked in line with these conditions. Donations of organs for research or for anatomical study are not permitted under Halakhah. It is preferable, however, to use an advance directive over a donor card. In an advance directive, a potential donor, in conjunction with his or her rabbi, can detail the type of donations that are halakhically permissible, and thus avoids the impractical task of listing, in the small space provided on a donor card, all of the exclusions required by Halakhah. In all cases, the family should be informed in advance about potential donation of organs in order to avoid unpleasant surprises at the time of one’s demise. It would be advisable to inform one’s rabbi and one’s attorney about this “gift of life,” so that they might counsel the family at the time of need.

May the words of Torah inspire us to save the lives of the unfortunate through our gift of life, until the day when, in the words of the prophet Isaiah (25:8), “He will destroy death forever. My Lord God will wipe the tears away from all faces.”