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.
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