Organ Transplants: Responsa
Organ Transplants: Responsa
Rabbi Shaul Israeli
Introduction
Organs from a Cadaver: the Status of the Deceased and of his Family Reply
A person has possession and ownership of his body while he is still alive,[22] but his rights are limited by certain bans determined by the Torah, namely: deliberate suicide,[23] self-inflicted injury,[24] en- dangering oneself [25] and similar things.
A person is not forbidden to donate an organ from his body to save someone else’s life,[26] or to donate blood to cure even a patient whose life is not at risk,[27] as he is doing this for an important reason where the ban on self-injury does not apply.[28]
It appears that a person has the same right to give permission to donate from his body even after his death for the purpose of rescue.[29] If he has clearly expressed his wish to do so, no member of the family has any right to object to it.[30] If there is good reason to suppose that were he asked he would agree, that is sufficient.[31] On the other hand, if he expressed his clear objection to it, his wish must be respected.[32]
One who asks advice on whether or not to grant permission for his organs to be used posthumously for saving life should be encouraged, in that it is a mitzvah (a worthy deed) which, although he is not duty bound to perform after death, will stand to his credit on the Day of Judgment.[33]
However, one who asks advice should not be advised to sign an authorisation or to carry a donor’s card since this is meaningless except in the case of sudden death such as in an accident. It is not desirable for a person to express the possibility of some such occurrence, which he prays and hopes will never happen to him. The rabbis have already warned against this in their dictum: “A person should never open his mouth to Satan.”[34]
Question 4:
Consent of Donor’s Family
What is the status of the family of a deceased person in respect of consenting or refusing to donate organs?
Reply
Whenever someone suffers shame, disgrace or humiliation, this affects his family who in turn suffer hurt, upset and humiliation.[35] In particular, they feel humiliated by the humiliation of the dead.[36] At the same time it is the duty of near relatives to deal with his burial.[37]
Consequently, when it comes to taking organs or parts of the body from a corpse for a transplant to save a Jew’s life, the family does have a status.[38] They have status as interested parties and may prevent the use of the organs of the deceased if he had expressed clear opposition to this during his lifetime.[39]
However, where the deceased had agreed to donating an organ or where there is good reason to suppose that were he asked he would have agreed, their opposition may be disregarded since the saving of life is of such great importance.[40]
Likewise, if the wish of the deceased is unknown, the family is obliged to give their consent. This duty overrides the duty imposed on them to bury the dead, as far as the relevant organs are concerned,[41] but they should bury the remainder of the body in a suitably dignified manner.
We pray for and look forward to an era in which God will bless his people with good health so that such questions are no longer relevant, and with the Temple rebuilt may God bless his people with peace.
Source: ASSIA – Jewish Medical Ethics,
Vol. III, No. 1, January 1997, pp. 14-17
1. Deuteronomy 22:2.
2. Sanhedrin 73a, and Rashi there.
3. Leviticus 19:16.
4. Rashi, loc.cit.
5. Baraita, loc. cit.
6. The Talmud’s explanation of the need for two verses.
7. Rabbi David ben Zimra (Radbaz), a contemporary of Rabbi Joseph Karo, author of Shulchan Aruch, in his Responsum 1052, points out that each of the examples quoted in the Talmud involves the rescuer risking his own life and raises two questions. To what extent is the rescuer obliged to risk his own life (i.e., what degree of risk is he obliged to take)? And to what extent is he even allowed to risk his own life?
From the law that nobody may save his own life at the expense of someone else’s (since nobody knows whose life is worth more in God’s eyes), Radbaz deduces the converse, that nobody is obliged (and possibly nobody is even allowed) to give his own life to save that of someone else. Radbaz assumes therefore that the examples given in the Talmud apply to circumstances where the risk is only slight and calls this a “possible danger”, term which he uses frequently.
8. The Talmud in respect of a different matter points out that a worker often risks his life in order to earn a living by doing dangerous jobs (Talmud Bava Metsia 112a). However, Radbaz maintains that a person will not normally take a risk where the chances of his survival are fifty-fifty, and certainly not where the risk is greater than this.
The author in Mishpat Kohen §143 makes a similar point.
9. Even if the purpose is to save a life and there is a 50% chance or more that the rescuer will lose his own life in the process, he is certainly not obliged and not even advised to take such a chance. Radbaz calls such a person a well intentioned fool (chasid shoteh) but emphasises that though it is well-intentioned stupidity, it is not forbidden.
10. Radbaz deals separately with the question of someone saving another person’s life at the cost (not just risk) of losing one of his own limbs or an organ of his body and states clearly that there is no obligation in such a case. Clearly Radbaz is not referring to the loss of the organ endangering the rescuer’s life because he had already dealt with that. In other words, there is absolutely no obligation for a person to give an organ to save someone else’s life, even if the risk to his own life is extremely small.
This could also be understood from the fact that the rescue is like restoring lost property: the obligation is to restore to the owner what is his (i.e., the safety of his body), but not to give him what is yours. There is no limit to the trouble that must be taken, the effort to be made, or the expense to be incurred, but Radbaz stresses that there is no legal or moral obligation to donate of oneself, or even to undergo pain and suffering, though one who is able and willing to do all this (midat chasidut) is to be praised.
This is relevant to our case of donating a kidney for transplant to save another’s life. A person who has two kidneys can live to the age of 120 on just one and undergoes no immediate risk in donating one; yet there remains the small risk that should the donor later contract some illness, he may be in need of that second kidney. No obligation can be placed on a possible donor, even though the risk is small.
11. If he has the strength and volunteers, we should even encourage him. A comment by Sifetei Kohen on Shulchan Aruch, Yoreh De’ah 157:3 which appears inconsistent with this, is in fact dealing with a different type of case, a man’s obligation to himself, which in the circumstances is less limited than his obligation to another.
12. A kidney is an organ which will not regenerate, but even giving blood, which does not involve a risk, merely discomfort for a period and which regenerates, is not obligatory to save a person’s life, since nothing that was previously his is being restored to the person in danger. It appears from the words of Radbaz that there is no legal obligation where the rescuer’s body is affected.
13. A moral obligation (lifnim mi-shurat ha-din, which is the opposite of midat sedom) is more than a mere praiseworthy action (middat chasidut). In the latter case, a volun- teer should be encouraged; in the former, one should be encouraged to volunteer.
14. Bechorot 29a.
15. Bava Metsia 30b.
16. Sanhedrin 73a.
17. Maimonides, Laws of Assault and Battery, chapter 1. Also Shulchan Aruch, Choshen Mishpat 420.
18. Bava Kama 93a; Maimonides 5:11; Choshen Mishpat 421:12.
19. Shulchan Aruch, Choshen Mishpat 264:7, with comments of Isserles and Gaon of Vilna, and Netivot Hamishpat §8.
20. See note 12 above.
21. Talmud Bava Kama 93a.
22. See the author’s Amud Hayyemini 16:16 ff. where he expresses this opinion in disagreement with Rabbi Zevin (see Le’Or Halacha on “The Shylock Case”).
23. Maimonides Laws of Homicide 2:3.
24. Maimonides Laws of Battery and Assault 5:1; See also Talmud Bava Kama 93a.
25. Maimonides Laws of Homicide 12:6.
26. As explained earlier on the basis of the words of Radbaz, who calls this “praise- worthy”.
27. Iggerot Moshe, Choshen Mishpat part 1, §103.
28. Radbaz Responsa 1052 cited above, note 7.
29. This is deduced from a case discussed in Bava Batra 154b, where a corpse has to be inspected, where the implication is that a person’s rights over his body continue after death. See also Sanhedrin 46b, Tosefot s.v. kevurah.
30. See Bava Kama 91b “A person has the right to put himself to shame, even though this to some extent harms his family” and ibid. 86b “Disgrace of members of the family.”
31. Pesachim 4b “A person is pleased to perform a duty (mitzvah) with his body… with his money.” See also comment of Rabbenu Asher no.26 on Chullin 88.
32. Notwithstanding the importance of the duty to save life, since a person who is dead is exempt from all duties (mitsvot), he cannot be made liable during his lifetime where the performance of the duty takes place essentially after his death. Nor do we have any rights over his body, since, as shown above, a person’s rights over his body remain his even after his death.
33. Megillah 12:2: A person is judged according to his own standards.
34. Berachot 19a.
35. Bava Kama 86b “put someone to shame while he was asleep and then he died”; ibid. 93a “on account of the stain on the family”; and see Sanhedrin 75a “on account of the stain on the family.”
36. Sanhedrin 46b, Tosefot s.v. kevurah.
37. Sanhedrin loc. cit. Also Talmud Berachot 283, and Shulchan Aruch, Yoreh De’ah 348. It is shown that although if there is an inheritance the costs of the funeral fall entirely on the heirs, the duty to deal with burying the deceased falls on the relatives.
38. See Mishneh Lamelekh, end of Laws of Mourning, and Gesher Hachayyim 1:16b regarding the duty to bury even a small part of a corpse. See also Amud Hayyemini pp. 330 ff.
39. See note 32.
40. See notes 30,31.
41. Iggerot Moshe, Yoreh De’ah, part 2, end of §174. See also note 38.