In 2007, there were 28,358 transplants
performed in the United States, 22,049 from deceased donors and 6,309 from
living donors. While 78 people received an organ every day, an average of 19
people died each day in 2007 while waiting for a transplant which could not
take place, often because of the shortage of donated organs.[1]
As of the end of July 2008, there were 99,495 waiting list candidates.[2]
There is a severe shortage of organs for
transplantation throughout the world, including in the most scientifically
advanced countries. While organ transplantation has offered a new life to those
whose native organs have failed, it has raised a myriad of ethical issues.
These questions involve both cadaveric and live altruistic donation. A
particularly contentious issue from both a secular and halachic perspective is
whether the sale of organs should be permitted. Although the issues raised in
live and cadaveric donation are different, all organ transplantation questions
have three elements. Ethical issues must be clarified with respect to the
donor, the recipient, and society at large.
cadaveric organ donation in a particular case
would depend on several related questions, including how one views ownership of
the human body, why desecration of a corpse is forbidden, what purpose burial
serves, and for how long and for what reasons may burial be delayed.[3]
There are several biblical principles that circumscribe the scope of autopsy
and cadaveric organ donation.
Respecting the integrity of the body
It is
generally forbidden to desecrate a dead body in any way. This prohibition,
called nivel ha’met
(desecration of the dead), is learned from the biblical passage that instructs
how to handle the body of an executed criminal.[4] The Talmud explains that
this law applies to all dead bodies and the application is to any situation
which is degrading to a corpse.[5] As a
result, the Torah forbids any invasion of the dead body unless there is
sufficient justification. Desecration of a corpse is permitted in a situation
where it would save a life.[6]
The
modern halachic consensus is to allow cadaveric organ transplantation under
certain circumstances.[7]
Whether Jewish law would permit
Immediate burial
The Torah also commands that a body be buried
as soon after death as possible, preferably on the same day, and adds a
separate prohibition of leaving the dead unburied overnight.[8]
These mitzvot, are called k’vura
(burial) and halanat ha’met
(lit. leaving the dead overnight). While these mitzvot also may appear
to apply only to executed criminals, Maimonides explains that the laws of
burial apply to every dead body.[9]
Postponement of burial is not always forbidden. The concern of the Talmud is
that by delaying burial, one is showing a lack of respect for the dignity of
the body. [10] In
a situation in which no disrespect is shown, delay of burial is permitted.[11]
This is the justification for postponing burial until relatives have had
the opportunity to arrive. If the delay is to increase the dignity and honor of
the dead person, a delay of even several days is permitted. In other cases
where autopsy would be considered honorable or would bring honor to the
deceased or his relatives, the prohibitions of desecration and of immediate
burial might not stand in the way.[12] [13]
It is important to note that the use of
transplanted cadaveric organs brings up other important issues, including the
requirement of complete burial.[14]
However, were a cadaveric transplant to be permitted in a particular case,
there is an expectation that the transplanted organ will eventually be buried
with the organ recipient and if the organ is rejected, it would seem that
several halachic experts would require burial after removal.[15]
Benefit from a corpse
Another
commandment effecting cadaveric transplant is the prohibition of gaining
benefit from a corpse, called hana’ah min ha’met[16]. Most
authorities consider the prohibition to be biblical in nature and include all
types of benefits, including extraneous benefits.[17] Therefore, they rule that one
may only derive benefit from a corpse to directly save a human life.[18]
Whose body is it?
Whether
the three
previously mentioned mitzvot (the
prohibitions of desecration of a corpse and benefit from a corpse as well as
the requirement of immediate burial) may be superseded for cadaveric transplant
centers around the question of whether an individual has the degree of
ownership necessary to justify choosing what will be done with his body after
death. That is, may one forgo one’s honor with respect to desecration of ones own body after death? In general, we say that our body
is God’s and we are mere caretakers in line with the accepted halachic opinion
composed by Rabbi Yechezkel Landau, that autopsy is permitted to save the life
of a gravely ill person who is “before us” (l’fanenu).[19]
Therefore, in cases where cadaveric transplant is expected to save a life, the
above-mentioned halachic restrictions may be waived.[20]
The operative question is what constitutes l’fanenu in the modern world. The Israeli Chief Rabbinate
ruled in the 1980’s that for life-saving skin grafts, skin may be removed from
a cadaver and cultured so that it might later be used for transplant onto a
person who was not yet burned at the time of the skin harvesting![21]
Similarly, for solid organ transplants, having a transplant list is sufficient
even if we do not know which patient will get the organ when we harvest it.[22]
From the
perspective of the donor, the issues of desecration of the dead body, gaining
benefit from a corpse, and prolonging the burial do not apply when the donor is
alive. The issues that do arise are whether the donor is allowed to wound
himself to donate the organ and whether the harvesting is acceptably safe. In
most cases, the prohibition of wounding oneself may be superseded by other
considerations, such as medical necessity, or as in this case, saving the life
of another.
As will be discussed later,[23] the consensus of modern poskim[24]
(rabbinic legal decisors) is that one may undergo a
small risk to save someone else from certain danger or death.[25]
Nevertheless, one may never obligate or coerce someone to donate an organ, even
to save the life of another. Additionally, one may not significantly risk one’s
own health even to save the life of another and one who does so is called a
“pious fool”.[26]
With respect to kidney donation, the issue is
whether the surgery poses a significant risk to the donor and whether living
with only one kidney is an unacceptable risk. Rabbi Yitzchak Weiss, author of Minchat Yitzchak,[27] was very concerned about
both of these considerations, and was inclined to forbid such a transplant, but
suggested that kidney donation may be permissible if the donor will definitely
save the life of the recipient by his donation. Even in such a case, he remains
circumspect. Rabbi Eliezer Yehuda Waldenberg, author of the Tzitz
Eliezer, was also hesitant to allow live donation, but wrote that while it
is not a mitzvah, if the expert doctors are sure that there will be no danger
to the donor, he may donate a kidney to one who is seriously ill.27
Dr. Avraham Avraham describes Rav Waldenberg’s
approach as meaning that being sure does not mean that there is no possibility
of harm, but rather that “there is a good possibility that he will not come to
harm.”28
Rav
Moshe Feinstein,29 among other rabbinic authorities30
permitted, but did not require, the donation of a kidney to a very ill person,
considering the act to be a pious one. Rav Ovadiah
Yosef evaluates the objections of both Rav Weiss and Rav Valdenberg,
but asserts that since the true risk of kidney donation is so low, it is a
great mitzvah to donate a kidney.31 He even suggests the possibility
that donating a kidney to save a life might be required by the Torah’s command
“not to stand idly by
as your neighbor’s blood is shed.”32
Rav Yosef ends his responsa with the words: “Thus it appears that the standard
rule is that it is permitted and also a mitzvah to donate one of his kidneys to
save the life of a fellow who suffers from renal failure.”33 Rav
Shlomo Zalman Auerbach, arguably the preeminent decisor of Jewish law in Israel during the latter part of
the 20th century, ruled that “if the seriously ill patient is
present (and known to the potential donor) it is certainly permissible for a —
Rav
Yosef Shalom Elyashiv, a current leading onationdposek in Israel, also rules that live organ ile nothof kidneys is permissible
and appropriate, w yan obligation. Rav Elyashiv became personall mbereinvolvedin the case of well-known Knesset m RabbiAvraham Ravitz, who required a kidney argued
transplant. Rabbi Ravitz’s 12 grown children agover
who would have the privilege of donatin guidance
kidney to their father. In the end, with the tonof
Rav Elyashiv, the choice was narrowed dow by two sons, with the final decision being made means
of a lottery.[28]Dr.
Avraham Steinberg, author of the Encyclopedia of Jewish Medical Ethics, encapsulates the four
requirements necessary for ethical live organ donation.[29] He asserts that surgery to
remove the organ must not be dangerous, the donor must be able to continue his
life normally after the donation, the donor must not require prolonged and
chronic medical care, and the success rate in the recipient must be high.
Live
Donation of a Liver or Lung Lobe
Donation of some other solid organs such as
liver or lung lobes presents a significantly higher risk than renal transplants.
Such transplants are more difficult to justify because of the increased risk of
morbidity and mortality to the donor.
Partial liver donation is most frequently from
parent to child, although less commonly transplantation occurs between adults.[30]
Exact statistics for partial liver donation morbidity and mortality are
difficult to obtain, with reported mortality ranging from 0.2-2% and major
morbidity below 10%.[31]
Current mortality statistics are probably improved from the initial surgical
reports, but still remain a real consideration. Nevertheless, despite ethical
concerns voiced in the medical literature, partial liver donation from live
donors is practiced in multiple academic centers around the world, with the
risk considered medically acceptable.[32]
Living donor lung transplantation has been
utilized for the treatment of patients with end stage lung disease since the
early 1990’s. As of 2006, approximately 250 recipients had received
transplants. In the standard operation, each recipient receives a lower lobe
from each of two live donors. As a result, there are two donors for each
recipient and therefore double the morbidity and potential mortality for each
transplant procedure. Living donor transplantation is usually reserved for
cases where the recipient will likely die due to a lack of suitable cadaveric
organ availability. While no perioperative deaths were reported in live lung
donors as of 2006, the potential morbidity from the surgery is not
insignificant.[33]
Regarding both of these forms of more hazardous
live organ transplantation, halacha would not require a donor to expose
himself to such a large risk. But, if a potential recipient were to be in
mortal danger, such a donor would likely be permitted to donate by at least
some major poskim.[34] Permission would depend on
how much risk one may accept to save someone who is in immediate certain
danger.[35]
Donating
Blood and Bone Marrow
However, donation of blood and bone marrow are
much easier to justify halachically. Blood and marrow are quickly renewable,
and while the donation process may be somewhat painful for the bone marrow
donor (sometimes requiring general anesthesia) both forms of donation are very
safe, presenting minimal risk to the donor. For these reasons, these types of
live donation are permitted by all.
Rav Shlomo Zalman
Auerbach felt that it is a mitzvah to be a bone marrow donor to save
life.[36]
Both Rav Auerbach and Rav Moshe Feinstein ruled that one is permitted to
donate blood to a blood bank even without knowing that it will go to save a
life.[37]
Interestingly, Rav Auerbach ruled that a competent minor may agree to donate
bone marrow and the parents of an incompetent minor may consent for him.[38]
If the potential donor does not wish to donate
his blood or marrow, there is a difference of opinion. Some rabbinic
authorities feel that one cannot be compelled to donate, even at the cost of
the potential recipient’s life, while others feel that coercion is permitted to
save a life.[39]
The
perspective of the recipient is straightforward. As long as the donor is
permitted to donate the organ, and there is a medical indication for the
transplant, the recipient is permitted to accept it, so long as there is no
other viable, less dangerous medical treatment available. The recipient must
understand the risks associated with transplant, including the need for
life-long immunosuppressive therapy and must be capable of following the
necessary posttransplant medical regimen, including being able to afford the
anti-rejection drugs. Judaism has no intrinsic objection to accepting an organ
donation per se, but insists only that no prohibitions be transgressed in the
process of donation.
Societal issues also come into play with
respect to live organ donation, the most sensitive being payment for organs.
While society wants to provide incentives to increase the donor pool,
incentives that are overly persuasive may unduly influence a potential donor to
undertake a course of action that is not prudent. Donors are routinely
reimbursed for expenses related to donating their organ, but such payment is
not usually considered to undermine the purely altruistic motivation of the
donor.
Actual
payment for organs themselves is a very controversial topic. Most experts in
the field of transplantation, including surgeons and ethicists, have expressed
opposition to payment for organs. In the United States, federal law prohibits
the sale or trade of organs. The motivation behind the ban is three-fold, with
two of the concerns applying to live donations. There is a concern for
exploitation of people who would not donate except for the monetary incentive,
as is already the case in India. Additionally, there is a fear that the
creation of a market in human organs will create an inequity that would
discriminate between rich and poor. Those who can afford organs would be able
to obtain them and those who could not afford them would be left without
options.
Nevertheless, there are benefits to allowing
direct payment for live organ donation.[40] Obviously, it
might increase the supply of organs saving more lives, even if it does skew the
distribution of the organs. While allowing compensation for organs would surely
encourage only the poor to donate, causing a degree of inequity, in the current
situation it is only the rich who currently can afford to buy a kidney on the
black market anyway. Hence, the best solution for society might be a national
registry of people who are willing to donate for compensation, with the kidneys
allocated by the national registry in the same way that is currently done for
cadaveric organs. This would hopefully lead to equal distributions to all
recipients, including the poor.[41]
Additionally, society does not object to the
many people who undertake dangerous forms of employment for monetary
compensation (such as miners, soldiers, firefighters, and policemen).[42]
Another justification of payment for organs is that it would bring an end
to the thriving international black-market in human organs, which now currently
functions unregulated, with most of the profits going to middle-men, not the
poor people selling their organs.[43]
But from a philosophical point of view, there
is another reason to consider allowing the sale of organs. It may be a
misplaced sense of paternalism that leads us to prevent the sale of organs by
the poor. While other less traumatic means of helping the underprivileged would
be far better, the reality of the world situation today is that there are
millions of people whose only chance of overcoming poverty might be by selling
their organs.
However, even before considering the merits of
selling organs, it is an absolute necessity that society protects potential
donors from coercive tactics or from being preyed upon due to donor ignorance.
Reports of “transplant tourism” associated with organ trafficking are well
documented.[44]
Such disreputable behavior, which has allegedly involved even high-profile
transplant —
A particularly
interesting question raised by Dr. Steinberg for additional consideration is
the case of an incompetent potential living donor whose primary caregiver is a
relative in need of the transplant. The potential donor may suffer more from not
donating if the caregiver will die for lack of a donor organ! [45]
Taking all of the previously discussed
considerations into account, we must ask whether selling one’s organs is
permissible from a Jewish legal perspective.
As alluded to above, while there is a clear
requirement to save another person from danger, there is a debate regarding
whether one is obligated to risk his own life in order to do so.[46] In
the final — See Sarig, Merav, “Israeli Surgeon is arrested for suspected
organ trafficking,” British Medical Journal, 2007:973 (May 12, 2007).
50
which organ sales are permitted, there is no
intrinsic halachic objection to selling organs, per se.[47]
Rabbi Yaakov Weiner, Dean of the Jerusalem
Center for Research, integrates the issues that we have discussed (the problem
of injuring oneself, the degree of acceptable risk, and the motivations that
might drive someone to sell an organ) when he rules:[48]
One may sell his organs to save a life, if it
causes no halachic risk to the donor’s life. This would not be subject to the
prohibition of injuring oneself, because selling the organ is seen as a great
need to save life and also because saving a life is a mitzvah which
suspends all others. If however a lifesaving situation does not obtain, for
example, selling organs to a bank or for research purposes, then doing so is
prohibited. But if the motivation for his selling the organ could be defined as
a great need (e.g., avoiding bankruptcy with its accompanying legal and social
repercussions), it would be permitted.
This ruling may seem novel, but in reality it
is very logical. There is no particular reason why receiving compensation for
an action which involves risk should necessarily be forbidden either morally or
halachically. While most secular experts remain opposed to payment for organs,
there is growing support for the idea. In an article in the respected British
medical journal Lancet,57 the authors make several cogent arguments
for why payment for organs should be revisited, raising each objection and
explaining how they might be solved. A review article in the Israel Medical
Association Journal58 also supported permitting payment for organs
under tightly controlled guidelines.
From a Jewish legal point of view, the mere
fact that one is being rewarded for an act, does not take away from the ethical
value of that act. In fact, Rav Shlomo Zalman
Auerbach ruled that “even if the person selling his kidney is poor (and needs
the money for himself) or to pay off his debts, since he obtains this money by
saving the life of another Jew, he will certainly be doing a mitzvah.
This is true even if he would not have donated his kidney only to save life.”59
If we put aside the issue of live organ
donation itself, there is a precedent in Jewish law for the selling of organs.
Rabbi Moshe Feinstein ruled60 that one may sell one’s blood to a
blood bank, as mentioned above. While blood is a renewable resource and blood
donation causes no long-term disability to the donor, if the donation process
for solid organs such as kidneys were to present no other halachic impediments,
then the selling of blood and the selling of organs might be considered
comparable. Simply put, if donating an organ were to be permitted in a given
situation, then there is no intrinsic reason why selling it should be
forbidden. It is only external societal concerns and fear of exploiting the
donor which might persuade us to forbid the selling of organs.
The consensus of the decisors
of Jewish law is that live organ donation is a permissible and noble act, but
is not an obligation. Those who are hesitant to allow live organ donation do
not object to the concept, but feel that the risk may be too great to the
donor. Since the risk of mortality or serious complication from live kidney
donation is now low, even those poskim who had
discouraged live organ donation might consider it safe enough to be permitted.
Regarding the sale of organs, while the thought may be distasteful, and we pray
for a society that would make donating one’s organs for money unnecessary, we
are a long way from such a world. If allowing payment for organs with proper
safeguards would increase the number of lives saved, then Jewish law would
sanction such an approach.
27 Responsa Tzitz
Eliezer, X:25:7
28 Nishmat Avraham, Vol. 2 Yoreh Deah pp. 347 (2003, Mesorah
Publications, English)
29
Responsa
Igrot Moshe, Yoreh De’ah II
174:4
30
See Hershler, Rabbi
Moshe, “Where Organ Donors are Considered Mentally Incompetent by the Halacha,”
Halacha U’Refuah, vol.
2:122-128, Regensberg Institute, 198; Zilberstein, Rabbi Yitzchak, “May Parents
Give Permission to Donate the Kidney of a Child to a Sibling,” Halacha U’Refuah, vol.
4:156-57, Regensberg Institute, 1985; Halevi, Rabbi Chaim Dovid, “Donating
Organs from Living Donors and Cadavers in Jewish Law,” Assia vol. 4:251-259, Schlesinger Institute, 1983.
31
The risk of mortality from live kidney donation
is now estimated at .03% with a low rate of serious complications. See Surman,
O.S., “Perspective: The Ethics of Partial-Liver Donation,” New England Journal
of Medicine, 346:1038 (Number 14, April 4, 2002)
32 Leviticus 19:16
33
Responsa
Yechava Da’at, III 84 person to even undergo much suffering, for
example, by donating his kidney, to save the life of the patient.”[49]
48 Suggested in personal communication with Dr.
Avraham Steinberg. 49 The true
danger of some of these professions was brought into stark relief with the
events of September 11, 2001, when hundreds of firefighters and policemen
perished in the twin towers of lower Manhattan.
51 Finkel, Michael, “This Little Kidney Went to
Market,” New York Times Magazine, May 27, 2001.
52
Khamash, Hasan
A; Gaston, Robert S, “Transplant tourism: a modern iteration of an ancient
problem,” Current Opinion in Organ Transplantation. 13(4):395-399, August 2008.
surgeons,
often involves donors who do not understand the significance of their decision
to donate and are left with inadequate post-donation health care. [50] Sometimes, the
ill-informed would- be donor is physically coerced into donating if he chooses
to withdraw consent. In an ethical system of remunerated live organ donation,
such practices cannot be permitted.
Informed consent is an absolute requirement of
live organ donation. For this reason, mentally incompetent people who cannot
consent to donate in a meaningful way are usually barred from becoming live
donors.
[1] John Green, Director of Community Relations for Gift of Life Donor Program (http://www.donors1.org/). United Network for Organ Sharing data reported 27,885 transplants (heart-lung, heart, intestine, kidney, kidney pancreas, liver, and lung) and 18 deaths per day in 2007.
[2] For up to date statistics, see the United Network for Organ Sharing website, www.unos.com.
[3] It
is also important to note that any discussion of cadaveric transplant presumes
that the patient is indeed dead. There is dispute in the halachic literature
regarding neurologic criteria for the determination of death (brain death),
with many poskim insisting that only the
traditional respiratory and cardiac definition of death is acceptable. Additionally, an inquiry must be made to a
competent posek in every case in which there is a question as to whether
transplant is appropriate.
[4] Deuteronomy 21:22-23: “And if a man has committed a sin worthy of death, and he shall be put to death, and you hang him on a tree; his body shall not remain all night upon the tree, but you should surely bury him the same day; for a reproach to God is he that is hanged. . .”
[5] Talmud Bavli Sanhedrin 47a
[6] Talmud Bavli Chullin 11b. Rav Kahana proves that we execute murderers based on rov, the halachic concept that mandates following the majority. Even though it is not possible to absolutely prove that a murder victim was not a treifah (non-viable person whose murder is not a capital offense) even if we did an autopsy, the accused murderer is executed anyway, based on the rule that a majority of healthy appearing individuals are not treifot. The Talmud explains that while autopsy is usually forbidden, were an autopsy to contribute to saving a life, it would be permitted. Talmud Bavli Bava Basra 154a also objects to exhumation of a body for examination when it will only avoid monetary loss and is therefore a desecration of the dead body.
[7] Two notable modern poskim who forbid cadaveric transplantation are Rabbi Eliezer Yehuda Valdenberg (Tzitz Eliezer 13:91) and Rabbi Yitzchok Yaakov Weiss (Minchat Yitzchak 5:8).
[8] Deuteronomy 21:22-23
[9] Maimonides, Mishneh Torah, Laws of the Sanhedrin, 15:8
[10] Talmud Bavli, Sanhedrin 46A "Whoever delays the burial to honor the dead, or to bring a casket and shrouds, there is no transgression . . . it is for the honor of the survivors . . . for the verse says: "his body shall not remain all night upon the tree”, i.e., delay that involves shame, similar to being left on the tree. Thus where there is no such shame, it is not forbidden.” Rashi (Sanhedrin 47A), the preeminent medieval biblical and Talmudic commentator, interprets the Talmud to be explaining that "where the honor of the survivors is increased, there is no shame [to the deceased], and delay [in burial] is permitted.”
[11] The Talmud also discusses whether immediate burial is required because of "kavod” (the honor of God and/or the person who died) or “kappara” (atonement for the individual). While one may not forgo the honor due to God, one may conceivably (at least temporarily) forgo one’s own atonement. This issue is much more important in the area of cadaveric transplant where the time between death and burial may be much longer.
[12] For instance, halacha considers fulfilling the deceased’s expressed or assumed wishes to be according honor to the deceased. While there are dissenting opinions, autopsy to identify a person’s killer
(Gesher HaChaim II 28:2, Responsa Tzitz Eliezer 4:14) or to identify remains in order to allow the deceased person’s wife to remarry would be permitted (Rabbi Shlomo Zalman Auerbach as well as several other opinions quoted in Nishmat Avraham, Vol. 3 Choshen Mishpat, pp. 224-226 (2004, Mesorah Publications, English). See also Responsa Yebia Omer 3 Yoreh Deah 23).
[14] There is a difference of opinion in halachic literature as to whether partial burial fulfils the obligation of burial. The Jerusalem Talmud (Nazir 7:1) states regarding burial, “kulo v’lo miktzaso,” that is “all and not [only] part” of the corpse must be buried. Tosofot Yom Tov, (Mishna Shabbat 10:5) states that as long as a single organ remains unburied, the obligation of burial is not fulfilled. Rabbi Eliezer Yehuda Waldenberg (Tzitz Eliezer 13:91) rules that the body must be interred intact for future resurrection of the dead. In cadaveric organ transplant, where the issue of not burying the transplanted organ is a bigger issue, there are various rabbinic opinions. Rabbi Meir Steinberg rules that the prohibition of incomplete burial is only when the remaining parts will never be buried (which is not the case in transplant since the recipient will eventually be buried with the organ). Rabbi Yehuda Unterman (Responsa Shevet Meyehuda p. 314), a prior Chief Rabbi of Israel, ruled that a transplanted organ is no longer dead, so it does not require burial. Rabbi Yitzchak Liebes rules that burying a majority of the body fulfills the obligation of burial since we a have a halachic concept called “rubo k’kulo,” meaning that a majority of something has the status of the whole thing. Therefore, burying a majority of the body is considered to be burying the whole body.
[15] See Avraham, Dr. Avraham, Nishmat Avraham, Yoreh Deah, 349:(3)2:3, p. 527 (expanded Hebrew second edition) and Nishmat Avraham, Vol. 2 Yoreh Deah pp. 342-343 (2003, Mesorah Publications, English). While Rabbi Yehuda Unterman (Responsa Shevet Meyehuda p. 314) does not require burial of a cadaveric transplanted organ (see note 13), both Rabbi Yosef Sholom Elyashiv and Rabbi Shlomo Zalman Auerbach ruled that a cadaveric organ retains the requirement of burial even after being transplanted into a donor. It would follow that burial of the organ should be accomplished with the burial of the donor or by independent burial of the rejected organ.
[16] Talmud Bavli, Avodah Zarah 29b: “How do we know that one may not derive benefit from a cadaver? It is learned by analogy from the egla arufa (the killing of a calf when a stranger is found murdered between two cities), where the word “sham (there)” appears, just as it does at the death of Miriam. For it says here (Numbers 20:1) “and Miriam died there,” and it says there (Deuteronomy 21:4) “and they shall axe [the back of the neck] of the calf there in the valley.” Just as it is forbidden to derive benefit from the calf, so too, it is forbidden to derive benefit from the human cadaver.
[17] Maimonides, Mishneh Torah, Laws of Mourning 12:1
[18] However, some rabbinic authorities consider the prohibition to be rabbinic in nature, including only “usual” types of benefit and permit medical use of the dead body, such as autopsy. See Rabbi Yaakov Emden, Responsa Yaavets, 1:41. Even Rabbi David ben Abu Zimra (Responsa Radvaz 3:548), who considered gaining benefit from the dead to be a biblical prohibition, ruled that conventional uses of a corpse are forbidden, but non-conventional uses such as medical are permitted. See also Rabbi Ovadia Yosef (Responsa Yebia Omer 3 Yoreh De'ah, 21) who also permits medical benefit from a corpse. Rabbi Shlomo Kluger held that the prohibition of deriving benefit from a corpse is to avoid preventing dishonor to the corpse that would result from delayed burial.
[19] Responsa Nodeh Beyehuda, (Medura Tinyana) 2, Yoreh Deah 210. However, see the minority opinion of Rabbi Yaakov Ettlinger, a noted 19th century German posek, who argued that to some extent our bodies are our own and if one wishes to donate his body to science, he may. On the other hand, the outcome of this decision is that no one else can decide whether to allow autopsy or to donate a relative’s organs, even to save a life (Responsa Binyon Tzion 170171).
[20] Cadaveric transplant adds the complication that the transplanted organ will not be buried until the recipient dies and is buried.
[21] The Chief Rabbinate ruled that it was permissible because, while we do not know who will need the skin, unfortunately the odds were very high that someone would need it. See Rabbi Shaul Yisraeli, “The treatment of burns by skin transplantation from the dead,” Techumin (Winter 5740/1980), pp. 237-247 and Rabbi Shalom Meshash, “Banking skin for the treatment of burn patients,” Techumin 7(1986), 193-205 See also the excellent chapter in Biomedical Ethics and Jewish Law (Rosner 2001) entitled “Grafting Skin and Skin Banks,” pp. 355-365. It is important to note that not all poskim, including Rabbi Shlomo Zalman Auerbach (quoted in Nishmat Avraham), accept this definition of l’fanenu.
[22] The modern definition of choleh l’fanenu (a sick person before us) has been interpreted in various ways. Rabbi Avraham Yeshaya Karelitz (Chazon Ish, Yoreh De'ah 208:7 -Oholot 22:32) took a more statistical approach, ruling that if a disease is prevalent, so that we can presume there are people suffering from it in the present, those patients are considered l’fanenu with respect to permitting the performing of an autopsy on a patient who died of the same disease. Rabbi Bentzion Uziel was more expansive in his definition, claiming that the existence of hospitals full of patients surely fulfills the requirement of l’fanenu (Responsa Mishpatei Uziel, Yoreh Deah 1:28-29). Rabbi Yechiel Yaakov Weinberg, (Techumin 12:382-384 [1991]), argues that the definition of choleh lefanenu may be expanded due to the major improvement in worldwide communication. Nevertheless, with respect to autopsy, Dr. Avraham Avraham disagrees (Nishmat Avraham, Vol. 2 Yoreh Deah p. 337 [2003, Mesorah Publications, English]): “Although, these days, one can virtually instantly transmit information to the whole world and thereby inform those interested in the results of the autopsy, thus saving the lives of patients in other medical centers, this has never been done. Even the most important and far- reaching breakthroughs are only accepted by the medical profession after they have been published in peer-reviewed articles in a well- known medical journal, a process that can take many months at least.” However, Dr. Avraham agrees that “the point is the time factor i.e. the post mortem (or transplant when otherwise permitted, DE) is permissible if a patient who is there at the time - anywhere in the world - can be saved at the time of the post mortem. Not a patient who may only benefit some years later.” (personal communication August 7, 2008)
[23] See footnote 54
[24] Responsa Igrot Moshe, Yoreh De’ah II 174:4
[25] See SARS and Self-Endangerment-
http://www.aish.com/societyWork/sciencenature/SARS_and_Self-
Endangerment_to_Save_Others.asp.
[26] Responsa Radbaz, Volume 3:627 (1052)
[27] Responsa Minchat Yitzchak, 6:103
[28] Personal communication with Dr. Avraham Steinberg. Rav Elyashiv used the gorel of the GR”A, a traditional means of deciding complex questions.
[29] Steinberg, Dr. Avraham. Encyclopedia of Jewish Medical Ethics; pp. 1095; Feldheim: New York, 2003
[30] National Kidney Foundation website,
http://www.kidney.org/transplantation/livingDonors/infoQA.cfm#1e
[31] Katrina A. Bramstedt, Katrina A, “Living Liver Donor Mortality: Where Do We Stand?” The American Journal of Gastroenterology, 101:4, pp. 755-759 (Number 4, Published Online: 22 Feb 2006). The University of North Carolina reports to prospective donors in their donor handbook that the rate of death from major hepatic resection is from 0.5% to 2% and that the rate of major complications is <10%.
(http://surgery.med.unc.edu/AbdominalTransplant/pdfs/liver/Living _Donor_Handbook.pdf)
[32] Owen S. Surman, M.D. “The Ethics of Partial-Liver Donation,” Perspective column in New England Journal of Medicine, 346:1038 (Number 14, April 4, 2002)
[33] Information taken from “The Risks of Living Lung Donation,” prepared for the Canadian Council for Donation and Transplantation
by Dale Lien, MD and John Mullen, MD, both part of the Lung transplant program at the University of Alberta, Edmonton, 2006: “The immediate and long term surgical risks are those of an elective lower lobectomy. The usual initial hospitalization for an uncomplicated case is 4 to 10 days. Some of the potential intraoperative complications include cardiac arrhythmias, hemorrhage, the need to sacrifice the middle lobe because of anatomical difficulties, phrenic nerve injury, and blood transfusion.
Short term complications may include infection, pain, hemorrhage, pleural effusion, pneumonia, empyema, bronchopleural fistula with prolonged air leaks, airway dehiscence or stricture, pericarditis, arrhythmias, pulmonary embolism, chylothorax, and a potential need for reoperation. A small percentage of lobectomy patients may require readmission because of further complications including pneumothorax, infection, pericarditis, pulmonary embolism, pneumonias, bronchopleural fistula, pleural effusion, hemoptysis and cardiac events. The available reports indicate that these types of significant complications have occurred in 4 to 5 % of donors. . . Long term health risks include chronic incisional pain, chronic airways disease, the risk of recurrent infections, and chronic dyspnea. Available data indicates that donors lose between 10 to 20% of their pre-donation lung function as measured by pulmonary function testing. This usually does not have a significant impact on everyday activities but potentially may be important if the donor later develops lung disease.”
[34] See Responsa Radbaz, Volume 5:218 (1582) and a ruling of Rabbi Ovadia Yosef cited in Nishmat Avraham, Orach Chaim, 329:6 (expanded Hebrew second edition pp. 502-503) and Nishmat Avraham, Vol. 1 Orach Chaim p. 217 (2000, Mesorah Publications, English). Nevertheless, I know of no definitive ruling as of the time of this writing.
[35] See Eisenberg, Daniel, “SARS and Self-Endangerment to Save Others,”
http://www.aish.com/societyWork/sciencenature/SARS_and_Self- Endangerment_to_Save_Others.asp.
[36] Nishmat Avraham, Vol. 2 Yoreh Deah p. 346 (2003, Mesorah Publications, English)
[37] Responsa Igrot Moshe, Choshen Mishpat 1:103
[38] See Encyclopedia of Jewish Medical Ethics, page 1096 for a full discussion of blood and bone marrow donation.
[39] ibid.
[40] See the journal Current Opinion in Organ Transplantation, August 2008 for three articles discussing the merits and disadvantages of
allowing the sale of organs. The articles are: Matas, Arthur J a; Hippen, Benjamin; Satel, Sally, “In defense of a regulated system of
compensation for living donation,” 13(4):379-385; Gabriel M Danovitch; Francis L Delmonico, The prohibition of kidney sales
and organ markets should remain,: 13(4):386-394; and Khamash, Hasan A, Gaston, Robert S, “Transplant tourism: a modern
In discussing the Biblical obligation to save one’s neighbor from harm, Rabbi Yosef Karo (Beis Yosef, Choshen Mishpat 426) adds the crucial concept that according to the Jerusalem Talmud(Terumos, end of 8th chapter), the potential rescuer “is obligated to even enter into a questionable danger (safek sakana) to save his fellow. And the reason appears to be because the danger to his fellow is definite, but the danger to the rescuer is questionable." Interestingly, Rabbi Karo does not include this ruling in the Code of Jewish Law (Shulchan Aruch). Two possible reasons are proposed for this fascinating omission. Rabbi Karo establishes in the introduction to the Shulchan Aruch that he rules according to the majority opinion of three major authoritative Rabbis- Maimonides (Rambam), Rabbi Yitzchak Alfasi (Rif), and Rabbeinu Asher (Rosh). Since none of these noted Jewish legal experts mention the ruling of the Jerusalem Talmud, it is reasonable that
Rabbi Karo did not codify it in the Shulchan Aruch (S’ma, Shulchan Aruch, Choshen Mishpat, 426:2). Alternatively, neither Rabbi Karo nor Rabbi Isserles (Rema) include the ruling because the Babylonian Talmud (Sanhedrin 73A and Nida 61A), generally considered more authoritative than the Jerusalem Talmud, renders a contrary ruling (Pischei Teshuva, Shulchan Aruch, Choshen Mishpat, 426:2. The actual ruling of the Babylonian Talmud is probably found in Sanhedrin 73a; see Maharam Shik, on the 613 mitzvot, mitzvah 238 and Aruch L’ner, Sanhedrin 73a. Alternatively, the argument may be that found in Baba Metzia 62a, regarding the disagreement between Rabbi Akiva and Ben Petura regarding whether someone must share the last of their water with someone else if it will possibly endanger the owner’s life. The Ohr Someach, Laws of Murder 7:8, points out that Maimonides’ ruling that an inadvertent murderer may not leave a city of refuge, even to save the whole Jewish nation, proves that one may not enter a questionable danger to save others from a definite danger.)
55 Rabbi Yosef Sholom Elyashiv requires that “the need must be great andthe sale must accomplish the financial goal, otherwise it cannot be considered of sufficient value to override the prohibition of injuring oneself.” Rabbi Shmuel Vosner, in what appears to be a minority opinion, does not permit sale of organs. Kunin, JD, “The search for organs: halachic perspectives on altruistic giving and the selling of organs,” J. Med. Ethics, May 2005; 31:269 - 272.
56 Weiner, Rabbi Yaakov, Ye Shall Surely Heal, p. 155, Jerusalem Center for Research, 1995. Also see Rabbi Weiner’s extensive chapter entitled “Transplants from Live Donors.”
[49] Nishmat Avraham, ibid
attacking him, or bandits coming to attack him, that he is obligated to save [his friend]? The Torah (Leviticus 19:16) teaches: “do not stand over your neighbor’s blood (but rather save him).” According to Maimonides (Mishneh Torah, Laws of Murder and Guarding Life 1:14), this translates into a positive obligation to use one’s time, money and even body to save his fellow.