Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat Terumah

3 Adar 5768

February 9, 2008

Vol.17 No.21

Organ Transplants - Kidney and Cornea Transplants - Part 1

by Rabbi Chaim Jachter

Transplants - Introduction

Halachic authorities in the twentieth century vigorously debated the Halachic definition of death, and the debate continues to rage during the twenty first century. Currently, one cannot even contemplate heart, liver, or lung transplants unless brain death is an acceptable definition of death, because doctors as yet cannot harvest these organs from a donor unless the donor's heart is still beating spontaneously. This week, we will not discuss the brain death issue, but rather will review the debate among Poskim regarding the permissibility of harvesting organs, specifically kidneys and corneas, from donors considered dead by all Halachic standards.

Kidney Transplants - Three Halachic Issues

There are three potential Halachic objections to cadaver transplants. The first possible problem is that it constitutes Nivul HaMeit, a denigration of the dead. The source for this prohibition is Devarim 21:23, which forbids us to dishonor a corpse by leaving it hanging overnight. The second possible problem, learned out from the same source, is the failure to bury the organ. The third potential issue is the prohibition to benefit from the dead (see Shulchan Aruch Y.D. 349:1 for examples).

Does the Mitzvah of Saving a Life Override the Halachic Issues? - The Autopsy Precedent

The twentieth-century debate about organ donation emerges from the eighteenth- and nineteenth-century dispute concerning autopsies. We shall first briefly present this debate. A very serious question was posed to Rav Yechezkeil Landau (Teshuvot Noda BeYehudah Y.D. 2:210) in the late-eighteenth century. This case involved the permissibility of performing an autopsy on a patient that died in London due to complications that arose during a routine surgical procedure. The surgeons sought permission to perform an autopsy on the patient to learn if it was they who had made a mistake during the surgery. This, they believed, would help them avoid making similar mistakes in the future.

Rav Landau replied that Halacha forbids the autopsy. He argues that although the Gemara (Chullin 11b) seems to sanction an autopsy to save a life, the circumstance presented to him differ. He asserts that the Torah sanctions autopsy only to save the life of someone who is presently in danger of losing his life (Choleh Lefaneinu). He reasons, reductio ad absurdum, that if one considers the circumstance in London as Pikuach Nefesh, all medical preparations would be permitted on Shabbat, because perhaps a dangerously ill person may suddenly appear and be in need of these preparations. Moreover, he argues, if he were to permit the autopsy in this situation, surgeons would cite him out of context to allow autopsies on every patient who died under their care. Rav Landau considered this to be highly intolerable.

The Chatam Sofer (Teshuvot Y.D. 336) agrees with the Noda BeYehudah. He adds that the Torah forbids benefiting from the dead, and thus Halacha forbids autopsies. He is almost certain, though, that autopsies may be performed to save the life of a dangerously ill person who is Lefaneinu. The Chatam Sofer adds that Halacha forbids donating one's body after death for medical research. He argues that the Torah forbids us to denigrate our bodies after death and that doing so insults the Creator as well (based on the Ramban to Devarim 21:23). He explains that since the body served as a receptacle for the soul during life, it retains a measure of holiness even after death.

Rav Yaakov Ettlinger (Teshuvot Binyan Tzion 170-171) maintains that Halacha forbids autopsies even to save the life of a dangerously ill person who is Lefaneinu. He cites Rashi (Bava Kama 60b, s.v. VaYatzilah), who forbids stealing even to save a life. He argues that even Tosafot (ibid. s.v. Mahu) and the Rosh (Bava Kama 6:12), who permit stealing to save a life, would forbid an autopsy to save a life. First, the Binyan Tzion believes that Tosafot and the Rosh's ruling applies only when the thief will compensate the victim. Rav Ettlinger notes that monetary compensation to the heirs does not constitute adequate restitution for an autopsy. Second, Tosafot and the Rosh's ruling applies only to theft from a living individual, who is obligated to save lives. This obligation sanctions the theft, but absent this obligation, Halacha prohibits the theft. Thus, since a dead person is not obligated to perform Mitzvot, Halacha forbids stealing from him (in the form of an autopsy) even to save a life.

The Maharam Schick (Teshuvot Maharam Schick Y.D. 347-348) vigorously disputes the Binyan Tzion and defends the Noda BeYehudah and Chatam Sofer's permission to perform an autopsy to save the life of a dangerously ill individual who is Lefaneinu. Indeed, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 4:14) points out that the aforementioned Gemara in Chullin seems to clearly disprove the thesis of the Binyan Tzion.

Kidney Donations

Rav Moshe Feinstein rules that it is a Mitzvah to donate an organ to save a life (Teshuvot Igrot Moshe Y.D. 2:174, at the conclusion of the Teshuvah) if the donor is defined as dead by Halacha. He reasons that since it is a Mitzvah to save a life, harvesting an organ to save a life does not denigrate the dead. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:83 in the Machon Otzarot Shlomo edition) agrees, writing, "It is obvious that we are obligated to sacrifice a limb of a dead individual in order to facilitate [even] the possible saving of a life of a living individual whose life is endangered and is Lefaneinu without considering at all the wish of the deceased or his relatives." He emphasizes, though, that this applies only if the one who donates the organ is already dead, not merely in the process of dying.

On the other hand, two great twentieth-century authorities, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 13:91) and Dayan Weisz (Teshuvot Minchat Yitzchak 5:8), dispute Rav Moshe and Rav Shlomo Zalman's ruling. They argue that since upon death one is freed from observing Mitzvot, the dead individual is not obligated to save a life. Hence, we are forbidden to denigrate the dead person by removing an organ, even to save a life. Rav Waldenberg cites a responsum of the Radvaz (2:218), who rules that Halacha does not require one to sacrifice a limb in order to save another's life Similarly, Rav Waldenberg reasons, a dead person cannot be compelled to sacrifice a limb (which will be restored in the period of Techiyat HaMeitim) to save another's life.

Dayan Weisz cites the aforementioned Teshuvot Binyan Tzion, who disagrees with the Noda BeYehuda and the Chatam Sofer. Dayan Weisz believes that the consensus of Halachic authorities accepts the opinion of the Binyan Tzion as normative and therefore forbids degrading the dead even to save a Choleh Lefaneinu. In contrast, Rav Shlomo Zalman Auerbach (cited in the Nishmat Avraham Y.D. 2:264) believes that the ruling of the Binyan Tzion is not accepted as normative.

We should note that although the Binyan Tzion permits autopsies even if the dangerously ill person is not Lefaneinu if the deceased authorized the autopsy before his death, most Halachic authorities reject this ruling. These authorities include the Chatam Sofer (Teshuvot Y.D. 336) and the Maharam Schick (Teshuvot Y.D. 347). Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 3:140) and Rav Shlomo Zalman Auerbach (cited in the Nishmat Avraham Y.D. 2:257) vigorously reject this ruling of the Binyan Tzion. Rav Yisrael Belsky (Rosh Yeshiva of Torah Vodaath) stated in a lecture at Yeshiva University's Albert Einstein College of Medicine in 1988 that Halachic authorities reject the opinion of the Binyan Tzion.

We should also note that kidney donation is permissible to be accomplished, according to the many Poskim who reject brain death as a Halachic definition of death, only if the patient's heart has stopped. Moreover, any necessary preparations must also be done only after his heart has ceased beating, as Halacha (Shulchan Aruch Y.D. 339:1) forbids touching a deathly ill individual in any manner that may shorten his life (even in the briefest manner). We should note that in many instances preparations for kidney transplants begin before the heart has ceased beating spontaneously, which poses a very serious problem to the majority of Poskim who reject brain stem death as a definition of death.

Finally, we should note that Rav Yechiel Yaakov Weinberg (in a responsum printed in Techumin 12:382-384) believes that the definition of Choleh Lefaneinu has expanded greatly today due to the dramatic improvement in worldwide communication, while Dr. Abraham S. Abraham (Nishmat Avraham 2:257) strongly disputes this contention.

Cornea Transplants

Twentieth-century authorities also dispute the Halachic propriety of cornea transplants, since the recipient can live without the cornea. Rav Waldenberg and Dayan Weisz, in their abovementioned responsa, categorically forbid cornea transplants. Rav Isser Yehuda Unterman (Teshuvot Sheivet MeiYehudah 1 p. 314; Rav Unterman was Israel's chief rabbi during the 1960s) though, permits cornea transplants and Rav Tzvi Pesach Frank (Teshuvot Har Tzvi Y.D. 277) is inclined to do so. Rav Yechiel Yaakov Weinberg (Teshuvot Seridei Aish 2:120) permits cornea transplants on behalf of one who is blind in both eyes. We will examine the respective arguments of these authorities.

Rav Waldenberg and Dayan Weisz categorically forbid cornea transplants for the same reasons they forbid kidney transplants, namely, that they accept the Binyan Tzion's opinion that denigrating the dead is forbidden even to save a Choleh Lefaneinu. On the other hand, Rav Tzvi Pesach presents two arguments in favor of permitting cornea transplants. He notes is that the cornea is smaller than a Kezayit (the size of an olive) and constitutes a distinct unit (i.e. it is not Chazi LeItztarufei, see Yoma 74a). Rav Tzvi Pesach presumably means that the obligation to bury the dead does not apply to a part of the body which is distinct and whose size is less than a Kezayit. Similarly, the prohibitions to derive benefit from the dead and to denigrate the dead do not apply to such a small and distinct part of the body, as the general prohibition that applies to an item even less than a Shiur does not apply in a situation where the concern for Chazi LeItztarufei does not apply. (We note that many authorities disagree with this assertion; see Encyclopedia Talmudit 16:601-603.) Rav Waldenberg, on the other hand, argues that these prohibitions apply even to the smallest part of the body. Moreover, Rav Tzvi Pesach expresses concern that perhaps regarding the dead, the Shiur (minimum size) is a Shaveh Perutah (worth a Perutah, a very small monetary value), not a Kezayit. Thus, even though a cornea is less than the size of a Kezayit, the fact that it is worth more than a Perutah may render the aforementioned prohibitions to be in full force.

Rav Tzvi Pesach suggests another approach to justify cornea transplants. He proposes that Halacha views receiving a cornea as Shelo KeDerech Hanaato (benefiting in an unusual manner). The Gemara (Pesachim 25b) teaches that a sick individual may benefit in an unusual manner from something that we normally are forbidden to benefit from. The Gemara clearly indicates that this leniency applies even to one who is not dangerously ill. Rav Waldenberg, though, argues that benefiting from a transplanted organ is considered benefiting from the dead in a conventional manner and as such is proscribed.

Rav Unterman offers a novel argument in favor of cornea transplants. One who receives a transplant is not benefiting from the dead. He reasons that the transplanted cornea (or any transplanted organ) has returned to life, and thus the recipient is not benefiting from the dead (but rather from the living, which of course is permissible). Rav Weinberg specifically rejects this argument. He argues that although the cornea has returned to life, the benefit is from the donor, who still is dead.

Rav Weinberg does not sanction cornea transplants to a recipient who is blind in only one eye. However, he does sanction cornea donations to one who is blind in both eyes. He reasons that a blind individual is in danger of falling into a pit or fire (or traffic), and therefore it is vital for him to receive eyesight in any fashion. As precedent, he cites the ruling of the? Hagahot Maimoniot (commenting on Rambam Hilchot Maachalot Asurot 14:2) that one may feed non-kosher food to cure an epileptic because epilepsy constitutes a danger to life. This is because the epileptic is in danger of falling into a fire or pit during a seizure. Rav Weinberg argues that the same should apply to a blind person. He concludes, however, that one who relies on the lenient opinions "does not lose," since prominent Poskim have issued permissive rulings. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:84 in the Otzarot Shlomo edition) endorses the ruling of Rav Unterman, as does Rav Ovadia Yosef (Teshuvot Yabia Omer 3 Y.D. 23), though he does so only in case of great need and if the donor during his lifetime authorized the donation of a cornea after death.

Next week, we shall discuss the Halachic propriety of skin donations.