Estate Planning Series Part VIII: Living Wills, Health Care Issues: Kidney and Cornea Transplants by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.


Transplants - Introduction

            In the previous issue we reviewed some aspects of the controversies concerning the Halachic definition of death.  As explained, one cannot even contemplate heart, liver, or lung transplants unless brain death is an acceptable definition of death.  Currently, doctors cannot harvest these organs from a donor unless the donor's heart is still beating spontaneously.  In this issue, we 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 Hamet, a denigration of the dead.  The source for this prohibition is Devarim 21:23 (see Ramban ad. loc.).  The second possible problem is the failure to bury the organ (see Devarim 21:23, Rambam Hilchot Avel 12:1).  The third potential problem is the prohibition to benefit from the dead (see Shulchan Aruch Yoreh Deah 449:1).


Does the Mitzva of Saving a Life Override the Halachic Issues?

            It would seem that saving a life should override these three prohibitions.  Halacha requires one to sacrifice his life only to avoid violating the cardinal sins of murder, idolatry, and adultery or incest.  Indeed, Rav Moshe Feinstein ruled that it is a Mitzva to donate an organ to save a life (Teshuvot Igrot Moshe Y.D. 2:174).  He reasoned that since it is a Mitzva to save a life, harvesting an organ to save a life will not disturb the dead.

            Precedent for Rav Moshe's ruling appears in the Teshuvot Noda B'Yehudah (Y.D. 2:210) and Teshuvot Chatam Sofer (number 336).  These two eminent authorities permit autopsies in order to save a life.  However, they limit this permission to a situation where the dangerously ill patient is L'faneinu (presently exists).

            Two great authorities, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 13:91) and Dayan Weisz (Teshuvot Minchat Yitzchak 5:8) dispute Rav Moshe'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 classic responsa of the Radvaz who rules that Halacha does not require one to sacrifice a limb in order to save another's life (3:627).  Similarly, he 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 as support a responsa from Rav Yaakov Ettlinger (Teshuvot Binyan Tzion, numbers 170-171) who disagrees with the aforementioned responsa of the Noda B'Yehuda and the Chatam Sofer.  The Binyan Tzion argues that an autopsy cannot be performed even to save the life of a dangerously ill individual who is L'faneinu.  He argues that one cannot steal from an individual in order to save another's life, unless the victim is compensated.  Since one cannot compensate a dead person, one cannot steal from him even with the intention to save a life.  Dayan Weisz believes that the consensus of Halachic authorities accepts the opinion of the Binyan Tzion as normative.  In contrast, Rav Shlomo Zalman Auerbach (cited in the Nishmat Avraham Y.D. page 264) believes that the ruling of the Binyan Tzion is not accepted as normative.

            We should note that although the aforementioned Binyan Tzion permits autopsies even if the dangerously ill person is not L'faneinu if the person had given prior authorization, 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 Shlomo Zalman Auerbach (cited in the Nishmat Avraham Y.D. page 257) vigorously rejects 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 that Halachic authorities reject this opinion of the Binyan Tzion.


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 the responsa mentioned above, categorically forbid cornea transplants.  Rav Isser Yehudah Unterman (Israel's chief rabbi during the 1960s) and Rav Tzvi Pesach Frank (Teshuvot Har Tzvi Y.D. 277) permit cornea transplants.  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 arguments of these authorities.

            Rav Waldenberg and Dayan Weisz categorically forbid cornea transplants for the same reasons they forbid kidney transplants.  On the other hand, Rav Tzvi Pesach presents two arguments in favor of permitting cornea transplants.  One point is that the cornea is smaller than a Kezayit (the size of an olive) and constitutes a distinct unit.  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.  Rav Waldenberg, on the other hand, argues that these prohibitions apply even to the smallest part of the body.

            Rav Tzvi Pesach's second argument is that Halacha views receiving a cornea as :-! ,$9+ %1!;& (benefiting in an unusual manner).  The Gemara (Pesachim 25b) mentions that a sick individual may benefit in an unusual manner from something that we are normally forbidden to benefit from.  The Gemara clearly indicates that this leniency applies even to one who is not dangerously ill.

            Rav Unterman adds a novel argument that 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 is not one benefitting from the dead.  Rav Weinberg specifically rejects this argument.  He argues that although the cornea has returned to life, the benefit is from the donor, who is still 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).  He cites as precedent the ruling of the %#%&; /**/&1*&; (commenting to 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 fire or a pit during a seizure.


Addressing Transplants in One's Living Will

            Since the question of the propriety of kidney and cornea transplants is an unresolved Halachic dispute, one must deal with this issue in a living will in one of several ways. The general approach noted in a prior article could be used. This entails naming a qualified rabbinic authority to address Halachic issues, and not expressly addressing the details in the document. In this context, however, it would be advisable to authorize the donations of organs such as kidneys or corneas if such donations are in accordance with Halacha. Another possibility is to present this issue to one's Rav for a ruling and incorporating the ruling in his living will.

            Next week, God willing and Bli Neder, we will review the Halachic debate regarding skin donations and establishing skin banks.

Estate Planning Series Part IX: Living Wills, Health Care Issues: Skin Donations by Rabbi Chaim Jachter and Martin M. Shenkman Esq.

Estate Planning Series Part VII: Living Wills, Health Care Issues- The Definition of Death by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.