Organ Transplantation

There is also a warning: “You are not to stand alongside the blood of your fellow”[3] which means that you are not to stand by and do nothing, but must take all steps to prevent your fellow's blood being spilt.”[4] The Talmud gives examples: if you see someone drowning, or being attacked by a wild animal or by robbers, it is your duty to rescue him by all possible means.[5]

The first law, the duty to “restore the [safe] body to its owner,” merely imposes on the observer the duty to rescue the one in danger if he can.5 The second law, the warning not to stand idly by, imposes additional duties which do not apply to the restoration of ordinary lost property. These include the duty to call others to help, and if necessary even to hire people at one's own expense, in order to rescue someone who is in danger.[6] Beyond that, it imposes the duty even if it involves the rescuer putting himself in danger.

To what extent are you required to endanger your own life in order to rescue another? One of the leading authorities[7] explains that the obligation only applies if the risk to the rescuer is relatively small. It must be a risk that a person would normally be willing to take in order to earn a living, certainly not more than fifty per cent.[8] But if the risk is fifty-fifty, and certainly if the balance of probability is that you yourself will be attacked, you are not obliged to risk your life. Furthermore, to take such a risk is not even considered as a noble deed worthy of praise (midat chasidut), but as an act of well-intentioned foolishness (chasid shoteh).[9]

Furthermore, the examples given imply that the rescuer is obliged to take all necessary trouble, including any physical effort, and even a certain risk of danger, but is under no obligation to undergo pain and suffering, or to donate from his body any organ or tissue, such as a kidney, which does not regenerate in the body of the donor, even though the danger is, it is claimed, not great.[10] To make such a donation in order to save someone’s life would indeed be a noble deed worthy of praise, “and happy is the one who can stand this,” [11] but there is no obligation.

Even if what is required to save a life is donation of blood or bone marrow, or something similar which the body regenerates and restores to its previous state, it seems that there is no halachic obligation,[12] though this should be encouraged as there is a moral obligation.[13]

We have a general principle that any duty imposed by the Torah to do something for someone else must be done without any payment.[14] For this reason, one who finds and restores lost property, regardless of how much trouble is involved in restoring it, may not take payment for his trouble, except where this necessitates his abandoning other work on which he is engaged, in which case he may receive compensation for loss of earnings.[15] It follows that payment may not be received for anything done to rescue another from death or even from illness, which is defined as returning “loss of [safety of] body.” [16]

We have explained that donating an organ or tissue for a transplant is not an obligation, and therefore the donor may take payment.

The halacha defines five types of payment that can be claimed as a result of injury by another: damage, pain, medical (including surgical) fees, unemployment benefit, and humiliation, and there is a set method for calculating the amount of the claim.[17]

The halacha further states that this duty of payment applies even when the injured party allows the other one to injure him, whether by a bruise or by the loss or destruction of an organ. Even if he explicitly tells him that he will be exempt from payment, there is no valid exemption since in law a person cannot waive his rights to an organ or parts of his body.[18]

There is therefore no reason whatever to ban one who donates a part of his body from requesting and receiving payment for this. The amount of payment can be stipulated in advance and agreed between the donor and a member of the family of the recipient of the transplant.[19]

The same applies to donation of blood, even when it is required to save life, since there is no obligation involved.[20]

Such payment, provided that it is within reasonable limits, need not be seen as unethical, since the donor undergoes physical and at times mental suffering, and as stated a person does not waive his rights to his organs.[21]

At the same time, it must be pointed out that only the donor himself is allowed to receive payment for his donation. Any intermediary acting between the donor and the family of the recipient, whether an individual or an organisation that undertakes to deal with the matter, must act strictly within the halacha, which regards this is as trouble that everyone is obliged to take, “restoring the [safe] body” to its owner. They are therefore forbidden to accept any payment other than compensation for abandoning other work, as explained above regarding restoring lost property. This should certainly be embodied in statutory law, to save us from the danger of a trade in human organs developing.

Is a person obliged, or even allowed, to consent during his lifetime to the donation of organs after his death?

Is a person obliged, or even allowed, to sign a form of consent and to carry a donor's card?

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] endangering 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 Judgement.[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]

What is the status of the family of a deceased person in respect of consenting or refusing to donate organs?

Whenever someone suffers shame, disgrace or humiliation, this affects his family which in turn suffers 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, they do have a status.[38] They may appear as interested parties to prevent the use of the organs of the deceased if he has expressed clear opposition to this during his lifetime.[39]

However, where he has agreed to it, or there is good reason to suppose that were he asked he would have agreed, since the saving of life is of such great importance their opposition may be disregarded.[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 bring the remainder of the body to a suitably dignified burial.

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.

[1]. Deuteronomy 22:2.

[2]. Talmud 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, for the same reason. Radbaz assumes therefore that the examples given here 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, if 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 where someone can save another person's life at 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 where losing the organ endangers the rescuer's life, because he has 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 is to be praised (midat chasidut).

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 contract some illness later, 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 Sifetey Kohen on Shulchan Aruch Yoreh Deah 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, as here, 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 mishurat haddin, which is the opposite of midat sedom) is more than a mere praiseworthy action (midat chasidut). In the latter case, a volunteer should be encouraged; in the former, one should be encouraged to volunteer.

[14]. Talmud Bechorot 29a.

[15]. Talmud Bava Metsia 30b.

[16]. Talmud Sanhedrin 73a.

[17]. Maimonides, Laws of Assault and Battery, chapter 1. Also Shulchan Aruch Choshen Mishpat 420.

[18]. Talmud 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 “praiseworthy.”

[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 the Talmud 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 Talmud Sanhedrin 46b, Tosefot s.v. kevurah.

[30]. See Talmud 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]. Talmud 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 Talmud 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]. Talmud Megillah 12:2: A person is judged according to his own standards.

[34]. Talmud Brachot 19a.

[35]. Talmud 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]. Talmud Sanhedrin 46b, Tosefot s.v. kevurah.

[37]. Talmud Sanhedrin loc. cit. Also Talmud Brachot 283, and Shulchan Aruch Yoreh Deah 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 Deah, part 2, end of §174. See also note 38.