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.
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