An Introduction to Organ Transplantation
Dr. Fred Rosner
Director, Dept. of Medicine Queens Hospital Center, N.Y.
An Introduction to Organ Transplantation
The program for this afternoon calls for an intensive discussion of organ transplantation. It is the responsibility of the moderator to introduce this topic appropriately, and since this is a conference on ethics and halacha, let me pose a few questions to you to set the stage.
We will not discuss here the theological problems relating to organ transplantion, and I will distinguish theological from halachic. If God ordained that a person should die from kidney failure at 35 years of age, who are we as doctors to give this person a new kidney, so he can live another 5, 10 or even 20 years? Are we interfering with the Divine Will? That is a theological issue which is not up for discussion this afternoon. Another area that relates to organ transplants which we will not be discussing is: who lives, who dies, who chooses, who selects, who can afford transplants, who cannot afford a transplant? In Stanford, California, if one wants a heart transplant by Dr. Shumway's team, one must pay in advance $125,000 to be registered as a patient. Even then, one may or may not get a heart transplant. That is a social issue of the allocation of scarce resources, namely money and organs, both of which are scarce – an issue which we will not be discussing this afternoon.
Finally, there are philosophical issues relating to organ transplants, especially heart transplants. Rene Descartes, the famous French philosopher, said: "Je pense, donc je suis." (I think, therefore I am.) If I have someone else's heart in me, who am I? Am I myself or am I the other person who donated the heart? These questions we will leave for the philosophers.
We will concentrate on the halachic and moral aspects of organ transplants, primarily heart and kidney transplants. Let me pose a few questions to set the stage for the distinguished panel of speakers, from whom you will hear in a few moments. Let us begin with heart transplants. In order to perform a heart transplant, one has to remove the old heart before putting in the new one. There is not enough room in the chest for two hearts. So what does one do with the old heart? Does one throw it away? Should one burn it or incinerate it or bury it? There is a whole chapter in Yoreh Deah that deals with what kind of organs require burial and which do not. This is one halachic question.
A second question is: What happens after the organ transplant recipient dies? He received a new kidney, a new heart, a new liver, and ten years later the person dies. Does one have to remove that organ and give it back to the donor? What donor? One may not remember who the donor was. He was buried years ago. In other words: what about ownership rights? Who has property rights over that organ? Does it become an integral part of the recipient or does it still belong to the donor?
Still another halachic question involves the priorities in choosing a recipient. There are thousands of people waiting for a kidney transplant. When one kidney becomes available, who gets it? How does one decide? Who does the deciding? How does the halacha approach this question? There are many more halachic issues in organ transplantation. A person who is dying of organ failure is very ill, yet wounding oneself is prohibited in Jewish law. How is a person allowed to put himself or herself in the great danger of undergoing a heart or a liver transplant? The patient may not survive the surgery. What are the halachic guidelines?
What is the status of a patient undergoing a heart transplant after the old heart is taken out and the new one not yet put in? Is he dead or alive? During that time the patient has no heart, and one cannot live without a heart. In other words, is that person a treifah (non viable) or is he technically like a n'veilah (a corpse)? Such patients are on a heart-lung machine. So obviously they are being perfused. But what is their halachic status? If they are considered as a corpse, then the wife of such a man can get remarried while the patient is without a heart. When he has received the new heart, the woman has two husbands, and we have a problem. All these are halachic questions revolving around the recipient.
There are also many halachic issues revolving around the donor. There is the issue of nivul hamet (desecration of the dead). How can one desecrate someone to take their organs? This is a Biblical prohibition. There is also issur hana'ah min hamet ("thou shalt not derive benefit from the dead"), and the recipient is certainly deriving benefit from the dead when he/she receives a new organ. There is also the problem of kvurat hamet (burial of the dead). We Jews bury our dear one’s promptly, but, in order to carry out an organ transplant, one has to postpone the burial by at least hours, if not days, to prepare the operating room, the surgical team, etc. There is even a question one rabbi raised: How about the family beginning avelut (mourning)? Mourning begins at the time of the kvurah (burial of the deceased), but that may be true only when the whole body is buried. If the heart or the kidneys or the lungs of the deceased are now functioning, alive and well in somebody else, maybe the family cannot begin the observe the seven day mourning period (shivah). But when do they start sitting shivah?
Further halachic questions about organ transplants: Does one need permission from the deceased or the family in order to transplant an organ? In American law, that is Anglo-Saxon jurisprudence, of course one needs written informed consent. But halachically, since we are not masters over our own bodies, is permission required? Perhaps there is in Judaism not only an individual obligation to save someone else's life ("hamatsil nefesh achat miyisra'el ke'ilu matsil olam maleh"), but a communal obligation which may require that in order to save lives, we may take organs from anybody who dies without their permission, because pikuach nefesh (danger to life) requires all laws (except three) to be waived.
In our session today we shall not discuss the issue of brain transplants. This is no longer science fiction. In several centers in Mexico and South America, fetal brain and fetal adrenal tissue is now being transplanted into the brains of patients with Parkinson's and Alzheimer diseases with claims of some success. In the United States little or no success has so far been demonstrated. One rabbi has written an article on this very subject and asked, for example, what would be the halacha regarding a man who received the brain of a woman, or a woman who received the brain of a man. Would this woman be required to put on tefillin (phylacteries) every morning? What would happen if one transplanted the brain of a child into an adult? This adult might now be patur mikol hamitsvot (absolved of all commandments) because he is like a child. The topic of transplanting sex organs is also not science fiction; this has already been done. A teshuvah (responsum) by Rabbi Kamelhar, dated about 1879, deals with an ovarian transplant. A woman was infertile for 10 years, and rather than having to undergo a divorce from her husband, she underwent an ovarian transplant, and one year later had a child. They brought this case to Rav Kamelhar and asked him: Who does this baby belong to? Does it belong to the donor of the ovary, or does it belong to the woman who gave birth to that child? A very serious question! He answered brilliantly, with Solomonic wisdom, that it belongs to the woman who gave birth to the child, because even though for ten years she was barren, it is possible that her own ovary produced the egg in the eleventh year of her marriage, and therefore it is her own child. I do not want to go into the ramifications of that case at this time.
About two years ago Dr. Silber, a urologist, transplanted a testicle from one identical twin to the other. Twin A was sterile, twin B fertile. Twin B donated a testicle to his brother, twin A, and twin A then had a son. Who does that son belong to? Genetic material is identical between the two twins. Who is responsible for the brit milah (circumcision)? And who for the pidyon ha-ben (redemption of the firstborn)? Whose firstborn is it? And if twin B later has his own son, does he have to do a pidyon ha-ben too? But he already has a firstborn! Or does the whole matter of pidyon ha-ben apply only to the mother? These are very difficult issues.
Our first speaker is Professor Arye Durst, a native of Poland who immigrated to Israel two years before the State was founded and graduated from the Hebrew University Medical School. His postdoctoral specialty training in surgery and organ transplantation was carried out in Colorado under Dr. Thomas Starzl, probably the most famous name in organ transplantation in the world. Professor Durst is currently the Chairman of the Department of Surgery at the Hadassah Medical Center and Professor of Surgery at the Hebrew University Medical School. He has received numerous honors, is past president of the Israel Surgical Society and past governor of the American College of Surgeons.
The next speaker is Professor Shimon Glick. He is a native of New Jersey, graduated from the Downstate Medical Center in New York, and received his specialty training in Internal Medicine at Yale University in New Haven, CT, and the Mount Sinai Hospital in New York. He subsequently did a research fellowship in endocrinology and metabolism in the laboratory of Drs. Berson and Yalow, where he and Dr. Jesse Roth developed the immunoassay, for which Professor Yalow was awarded the Nobel prize. Before he immigrated to Israel in l974, he was the Director of the Department of Medicine at the Coney Island Hospital in New York. He came to Ben-Gurion University as one of the founders of its new method of medical instruction, training general doctors, not specialists. He headed the University's Faculty of Health Sciences and was subsequently appointed dean of the Medical School. He now heads the Center for Medical Education at Ben-Gurion University.
Our distinguished guest and posek, the senior member of the Chief Rabbinate Council of Israel, Rabbi Saul Israeli שליט"א [ז”ל] will present us with the halachic answers to the specific questions concerning organ transplantation.
1. Rosner, F. Modern Medicine and Jewish Ethics Ktav and Yeshiva University Press, 1991, 2nd edition pp. 279-299.