Living Wills, Health Care Issues: Skin Donations - Part Nine by Rabbi Howard Jachter and Martin M. Shenkman Esq.

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Introduction - Skin Transplants

            In the past two issues, we reviewed the many opinions regarding the Halachic propriety of organ transplants from the dead.  This week we will review four approaches to the question of skin donations.  We will review the approaches of Rav Waldenberg and Dayan Weisz, Rav Shaul Yisraeli, Rav Shlomo Zalman Auerbach, and the Halacha Council of the Israeli Chief Rabbinate.

 

Rav Waldenberg's and Dayan Weisz's Views

            As we have noted in the two previous issues, Rav Waldenberg and Dayan Weisz categorically forbid any organ donation; consequently, they would certainly forbid post mortem skin donations.

 

Rav Shaul Yisraeli's View

            On the other hand, Rav Shaul Yisraeli argues that Halacha permits skin donations on behalf of one who is not dangerously ill but requires a skin graft to avoid serious disfigurement.  He permits skin donations even when the patient who needs the skin graft is not L'faneinu (present).  His responsum on this issue appears in the first volume of Techumin (pages 237-247), and he defends his ruling from criticism in the seventh volume of Techumin (pages 206-218).

            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 Rav Yisraeli 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 B'Yehuda and Chatam Sofer (cited in the previous issue) permitted autopsies only if they would benefit someone who is L'faneinu.  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 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 of death to the laws of Eglah Arufa.  The Gemara, in turn, derives the prohibition to benefit from an Eglah Arufa, from a comparison of Eglah Arufa to the laws of Kodshim (sacrifices).  Tosafot argues 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 Arufa.  Similarly, just as we may benefit from the skin of an Eglah Arufa, we may also benefit from the skin of the dead.

            Rav Yisraeli notes, however, that Rabbeinu Tam (cited in Tosafot Sanhedrin 58a s.v. M'shamshin) 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 less than Tachrichin (shrouds), which the Torah says we may not derive benefit from.  Rav Yisraeli, though, seeks to demonstrate that Rabbeinu Tam would concede that if the deceased had authorized the use of his skin then one may derive benefit from the skin.  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, all would agree that if the donor had consented to do so during his lifetime, his skin may be harvested for use not limited to saving the life of one who is L'faneinu.

            Rav Yisraeli adds another argument (cited in the previous issue) from Rav Tzvi Pesach Frank.  The Gemara (Pesachim 25b) teaches and the Shulchan Aruch (Yoreh Deah 155:3) codifies that one may benefit in an unusual manner from something that we are normally forbidden to benefit from to heal a sick individual.  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 concludes that Halacha permits the establishment of skin banks since the L'faneinu requirement does not apply to procedures permitted on behalf of those who are not dangerously ill.

 

Rav Shlomo Zalman Auerbach's View

            The Nishmat Avraham (Yoreh Deah page 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 L'faneinu.

 

The View of the Halacha Council of the Israeli Chief Rabbinate

            Rav Shlomo Zalman obviously rejects Rav Yisraeli's reasoning.  Moreover, Rav Shalom Meshash (Sefardic 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 7:193-205).  Rav Meshash endeavors to demonstrate that most authorities concur with the view of Rabbeinu Tam that Halacha forbids benefiting from the skin of the dead.  Furthermore, he attempts to refute Rav Yisraeli's argument that Rabbeinu Tam would permit benefiting from the skin of the dead if he had authorized doing 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 in an unusual manner.  He bases this argument on Acharonim cited by Rav Ovadiah Yosef (Teshuvot Yabia Omer 3:21).  Rav Meshash also seeks to demonstrate that Halacha mandates the burial of the skin of the dead.

            Rav Meshash, however, is somewhat more lenient than Rav Shlomo Zalman regarding this issue.  He argues for the broadening of the concept of L'faneinu 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 is L'faneinu, but even if the sickness is L'faneinu.  The story of Rav Yisrael Salanter ordering his entire congregation to eat on Yom Kippur in the midst of a cholera epidemic constitutes a precedent for the ruling of the Chazon Ish.  Rav Salanter ordered even those who were not presently ill to eat because the danger of contracting cholera was a live threat.  Accordingly, Rav Meshash 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.  However, the Halacha Council of the Chief Rabbinate ruled that Halacha authorizes a maximum of fifty skins to be stored in the skin bank.  The Council imposed this limitation to avoid the abuse of this permissive ruling.

 

Conclusion

            No consensus has emerged from the Halachic debate regarding the propriety of cadaver skin donations.  Thus, one should state in his living will that a particular rabbinical authority should render a decision on this extremely sensitive issue. Generally, one must be very careful about signing secular organ donor cards which have not been reviewed by a Rav.

            In two weeks, God willing and Bli Neder, we will discuss the issue of autopsies in Halacha.

Living Wills, Health Care Issues: The Definition of Death - Part Seven by Rabbi Howard Jachter and Martin M. Shenkman, Esq.

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