Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat Tetzaveh

10 Adar Aleph 5768

February 16, 2008

Vol.17 No.22

Organ Donation - Skin Transplants - Part 2

by Rabbi Chaim Jachter

Introduction

This week, we will review four approaches to the question of skin donations: those of Rav Waldenberg and Dayan Weisz, Rav Shaul Yisraeli, Rav Shlomo Zalman Auerbach, and the Halacha Council of the Israeli Chief Rabbinate.

Rav Waldenberg and Dayan Weisz's View

As we noted last week, Rav Waldenberg and Dayan Weisz categorically forbid any organ donation due to concern for denigrating the dead. Consequently, they certainly forbid post mortem skin donations even to save a Choleh Lefaneinu, an actual sick individual (as opposed to a potential one), whose life is endangered (though to my knowledge, they did not address this issue explicitly).

Rav Shaul Yisraeli's View

On the other hand, Rav Shaul Yisraeli (Techumin 1 pp. 237-247; he defends his ruling in the Techumin 7 pp. 206-218) argues that Halacha permits skin donations even on behalf of one who is not dangerously ill but requires a skin graft merely to avoid serious disfigurement. He permits skin donations even when the patient who needs the skin graft is not Lefaneinu.

At the beginning of his responsum, Rav Yisraeli describes the question posed to him by the administrations of a number of Israeli hospitals. They related to him that experience teaches that there will not be sufficient skin available for those in dire need of skin grafts unless hospitals establish skin banks. Rav Yisraeli notes two Halachic difficulties associated with establishing skin banks. First, the Noda BeYehudah and Chatam Sofer (cited in our prior issue) permitted autopsies only if they would benefit an individual who is Lefaneinu. These rulings appear to proscribe establishment of organ banks, which store organs for future use. Second, these two responsa restrict permission to perform an autopsy to doing so for the sake of someone who is dangerously ill. Skin grafts are necessary to help even those who are not in danger of dying but require a skin graft to enable them to live a normal life (such as those who have suffered serious facial burns).

Rav Yisraeli endeavors to demonstrate that Halacha permits the establishment of skin banks despite these potential objections. He cites many Rishonim (such as Tosafot Niddah 55a s.v. Shema) who rule that the prohibition to benefit from the skin of the dead is only a rabbinical prohibition. They base this ruling on the fact that the Gemara (Avodah Zarah 29b) derives the source of the prohibition to benefit from the dead from a comparison to the laws of Eglah Arufah (the axed heifer; see Devarim 21:1-9), which, in turn, is derived from a comparison to the laws of Kodshim (sacrifices). Tosafot argue that just as we are permitted to benefit from the skin of Korbanot after the sprinkling of the blood, so too we are permitted to benefit from the skin of an Eglah Arufah. Similarly, just as we may benefit from the skin of an Eglah Arufah, we may benefit, on a Torah level, from the skin of the dead.

Rav Yisraeli notes, however, that Rabbeinu Tam (cited in Tosafot Sanhedrin 48a s.v. Meshamshin) argues that benefiting from the skin of the dead constitutes a Torah prohibition. Rabbeinu Tam's basic reasoning is that the skin of the dead is no worse than Tachrichin (shrouds), which the Torah forbids deriving benefit from (see Sanhedrin 47b and 48a). Rav Yisraeli, though, seeks to demonstrate that Rabbeinu Tam would concede that if the deceased had authorized the use of his skin, one may derive benefit from it. The basis for this argument is that Rabbeinu Tam did not say that the skin of the deceased constitutes an intrinsic part of the body. Rather, Rabbeinu Tam merely compares the skin to Tachrichin. Thus, since even Rabbeinu Tam does not consider the skin of the dead to be an intrinsic part of the deceased's body, he would agree that if the donor had consented during his lifetime, his skin may be harvested for use even for a purpose other than saving the life of one who is Lefaneinu.

In other words, even though the Chatam Sofer and Maharam Schick (cited in our previous essay) forbid post mortem donation of body parts if not for a dangerously ill Choleh Lefaneinu, nevertheless, regarding skin, Rav Yisraeli claims, all would follow the Binyan Tzion's opinion (cited in last week's essay) and allow post mortem donation if the donor gave his consent. This is because, in Rav Yisraeli's view, the skin is not an integral component of the dead. Rather, it cannot be desecrated due to the honor due to the dead. Thus, if the donor consents to waive the honor due him, he may donate his skin to help even those who are neither deathly ill nor Lefaneinu.

Rav Yisraeli adds another argument, which we cited in the previous issue from Rav Tzvi Pesach Frank in the context of cornea donation. The Gemara (Pesachim 25b), codified by the Shulchan Aruch (Y.D. 155:3), rules that to heal a sick individual, one may benefit in an unusual manner from something that we normally are forbidden to benefit from. This applies even to a sick individual who is not dangerously ill. Rav Yisraeli, in turn, argues that Halacha considers one who receives transplanted skin as benefiting from the skin in an unusual manner. Thus, he concludes, even one who is not dangerously ill may receive transplanted skin. He also asserts that Halacha permits the establishment of skin banks, since the Lefaneinu requirement does not apply to procedures permitted on behalf of those who are not dangerously ill.

Finally, he adds the opinion we cited last week from Rav Unterman that one in fact does not benefit from the dead when transplanting body parts, because after being transplanted, they are considered as having returned to life. As noted last week, though, Rav Yechiel Yaakov Weinberg does not endorse Rav Unterman's argument.

Rav Shlomo Zalman Auerbach's View

The Nishmat Avraham (2 Y.D. 264) briefly presents Rav Shlomo Zalman Auerbach's opinion on this matter. Rav Shlomo Zalman permits harvesting skin from the dead only on behalf of a dangerously ill individual who is Lefaneinu, essentially applying the same standards to skin as apply to other organs.

The View of the Halacha Council of the Israeli Chief Rabbinate

Rav Shlomo Zalman obviously rejects Rav Yisraeli's reasoning. Moreover, Rav Shalom Messas (who served for many years as the Sephardic Chief Rabbi of Jerusalem) wrote a full critique of Rav Yisraeli's responsum representing the decision of the Halacha Council of the Israeli Chief Rabbinate (Techumin 7 pp. 193-205). Rav Messas endeavors to demonstrate that most authorities concur with the view of Rabbeinu Tam that Halacha forbids benefiting from the skin of the dead on a Torah level. Furthermore, he attempts to refute Rav Yisraeli's argument that Rabbeinu Tam would permit benefiting from the skin of the dead if the deceased had previously issued authorization to do so. He also argues that the Shulchan Aruch would forbid anyone other than a dangerously ill individual to benefit from the skin of the dead even if he does so in an unusual manner. He bases this argument on Acharonim cited by Rav Ovadia Yosef (Teshuvot Yabia Omer 3 Y.D. 21). Rav Messas also seeks to demonstrate that Halacha mandates the burial of the skin of the dead.

Nevertheless, Rav Messas is somewhat more lenient than Rav Shlomo Zalman regarding this issue. He argues for the broadening of the concept of Lefaneinu in today's troubled times. He notes that the Chazon Ish (Ohalot 22:32) rules that one may violate Shabbat not only if the dangerously ill person (Choleh) is Lefaneinu, but even if the sickness (Choli) is Lefaneinu. A precedent for the ruling of the Chazon Ish is the story of Rav Yisrael Salanter ordering his entire congregation to eat on Yom Kippur in the midst of a cholera epidemic. Rav Salanter ordered even those who were not presently ill to eat, because the danger of contracting cholera was a live threat. (We should note, though, that Rav Salanter was criticized by the Dayanim of Vilna for this ruling.) Accordingly, Rav Messas argues, since the threat of severe burn victims from accidents and terrorist attacks is ever-present, Halacha permits the establishment of skin banks to save the lives of future burn victims (see, however, Nishmat Avraham 2 Y.D. 257, who presents Rav Shlomo Zalman Auerbach's very different understanding of this point of the Chazon Ish). However, the Halacha Council of the Chief Rabbinate ruled that Halacha authorizes a maximum of fifty skins to be stored in the skin bank, a restriction which it hoped would avoid abuse of this permissive ruling.

Conclusion

No consensus has emerged from the Halachic debate regarding the propriety of cadaver skin donations. Therefore, one should consult his Rav before signing a document authorizing post mortem donation of skin.

Halacha of the Week - Mincha After Sheki'ah (Sunset)

The Rama (Orach Chaim 233:1) rules that one who davens Mincha after Sheki'ah (sunset) until Tzeit HaKochavim (dusk) has fulfilled his obligation. The Sha'agat Aryeh (number 17) vigorously supports this view arguing that Rashi (Berachot 26a s.v. Ad HaErev) and Tosafot (Berachot 2a s.v. Mei'eimatai) maintain this view. However, the Mishna Berura (233:14) notes that many Poskim disagree with this view. Most prominently, the Talmidei Rabbeinu Yonah (Berachot 18a in the pages of the Rif s.v. Tefillat HaErev) and the Vilna Gaon (O.C. 261:2) rule that we may not daven Mincha after Sheki'ah. The source of this dispute is the statement of the majority opinion in the Mishnah which permits davening Mincha "Ad HaErev" (until the evening) which may be interpreted as being either sunset or dusk.

The Mishna Berura rules that one should make all efforts to accommodate the strict opinion, which he explains requires completing Mincha before Mincha. Moreover, he rules that it is preferable to daven Mincha without a Minyan before Sheki'ah than to daven Mincha with a Minyan after sunset.

We should add two caveats to this ruling of the Mishna Berurah. Rav Yosef Dov Soloveitchik (Shiurim L'Zecher Abba Mori Z"L) notes that the lenient opinion would concede that one may not daven Mincha after sunset on Erev Shabbat and Erev Yom Tov. Once one has accepted Shabbat (or Yom Tov) it is forbidden to daven a weekday prayer, as stated in the Shulchan Aruch (O.C. 263:15). Moreover, the Mishna Berurah presents the lenient opinion as applying "to us who daven Ma'ariv only after dusk". Accordingly, those communities who regularly daven Ma'ariv after Sheki'ah should not daven Mincha after Sheki'ah even according to the Rama.