Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat VaYeishev

23 Kislev 5769

December 20, 2008

Vol.18 No.13

Live Organ Donations - Part 1 of 1

by Rabbi Chaim Jachter

Introduction

The overwhelming majority of Poskim (Halachic authorities) oppose transplants of hearts, livers, and lungs from a cadaver since they do not accept “brain death” as a legitimate definition of death, as explained in an essay archived at www.koltorah.org. However, Halachah encourages donation of certain organs from a live donor, as we shall outline in this essay. Our discussion we will based on a great extent on the writings of Rav Asher Bush, chairman of the Rabbinical Council of America’ Halachah Commission.

The Obligation to Rescue

The Torah commands us “Not to stand aside while your fellow’s blood is shed” (VaYikra 19:16). The Gemara (Sanhedrin 73a) clarifies that this Pasuk obligates us to expend all efforts and financial resources to save another human. Rashi (ad. loc. s.v. Ka Mashma Lan) explains the phrase “do not stand” as meaning “do not stand on yourself; rather, exhaust all possibilities in order that your fellow’s blood not be lost.” The Gemara and Rashi, however, do not state whether the efforts required in saving another’s life include an obligation to risk one’s own life.

Risking one’s Life to Save Another

The Beit Yosef (Choshen Mishpat 426 s.v. UMah SheKatav BeSheim HaRambam) cites the Jerusalem Talmud (Terumot 8:4), which requires us to endanger our lives to save another from certain death. The Jerusalem Talmud (Yerushalmi) reasons that the fellow’s certain death overrides rescuer’s possible death. The Gemara (Pesachim 25b and Rashi ad. loc. s.v. Mai Chazit) states that all life is equal, with its celebrated phrase “how does one know that his blood is redder than his friend’s.” However, the Yerushalmi believes that the blood of one in certain danger is redder than the one whose life is only possibly in danger.

However, the Sema (a major commentary to Choshen Mishpat) notes that Rav Yosef Karo (the author of both the Beit Yosef and the Shulchan Aruch) does not cite this ruling of the Jerusalem Talmud in the Shulchan Aruch (C.M. 426). The Sema (426:2) explains that the fact that Rif, Rambam and Rosh do not cite the Jerusalem Talmud’s ruling convinced Rav Yosef Karo that it is not accepted as normative Halachah.

The rulings of the Jerusalem Talmud are authoritative unless contradicted by the Babylonian Talmud (Talmud Bavli). Accordingly, the Rif, Rambam and Rosh must believe that the Bavli rejects this ruling of the Jerusalem Talmud, as noted by the Agudat Eizov (cited in the Pitchei Teshuvah C.M. 426:2). Acharonim scour the Bavli for evidence that it rejects this ruling and cite a variety of sources (summarized in Teshuvot Tzitz Eliezer 9:45).

The Netziv (HaEimek She’eilah Parashat Re’eih) and Maharam Schick (Teshuvot Y.D. number 155) cite a well-known passage (Bava Metzia 62a) as evidence that the Bavli rejects the Yerushalmi’s ruling. The Bavli presents a case in which two people are walking in a desert and one of them holds a pitcher of water in which there is sufficient water for only one of the two individuals to survive. Ben Petura rules “better that the two of them die and one should not see the death of his fellow.” Rabi Akiva, though, argues that the one holding the water should drink since “one’s own life enjoys priority over his friend’s life.” The Gemara notes that while Ben Petura’s position was originally the accepted one, Rabi Akiva’s ruling was later accepted as normative.

The Netziv and Maharam Schick argue that Ben Petura does not advocate an unreasonable opinion of requiring a needless death. Rather, he calls for the sharing of the water which does not involve certain death; rather, it involves risking one’s life in order to save another from certain death. Even if one believes that there is insufficient water for both to be able to reach a water source, there is a reasonable possibility that one may unexpectedly encounter an oasis, spring or caravan willing to share its water. Rabi Akiva, though, rules that one is not obligated to risk one’s life in order to save another’s life.

According to this interpretation, Ben Petura advocates the Yerushalmi’s approach. Thus, since the Bavli concludes in favor of Rabi Akiva, normative Halachah does not require one to sacrifice his life in order to save another’s life. Indeed, the Mishnah Berurah (329:19) and Aruch HaShulchan (C.M. 426:4) rule that one is not required to risk his life to save another.

They caution, however, that one is forbidden from overzealously guarding his own life by ignoring the plight of one whose life is in danger. Rav Asher Bush, offering an example of a lifeguard rescuing someone from drowning, states, “For a qualified lifeguard there is certainly a risk to jump into a pool to save a drowning swimmer, but it would be more than difficult to suggest that he is not obligated to do so, as common sense does not group this with ‘dangerous activities.’” He argues that “those activities whose statistical risks are negligible to the point that they are not thought of as risky, are precisely the activities that the Torah has obligated even though there may be some slight risks.”

Sacrificing a Limb to Save another’s Life

In the difficult history of our people, we have been faced with unspeakable situations. One such circumstance was where a government official threatened to kill a Jew if his fellow Jew did not permit him to remove a limb. Poskim were asked whether the Halachah requires the sacrifice of a limb in order to save a life. Radbaz (Teshuvot number 627) rules that one is not obligated to sacrifice a limb even if it entails the death of another Jew.

Radbaz writes that the Torah is by definition “pleasant and peaceful” “Deracheihah Darchei Noam VeChol Netivoteha Shalom,” Mishlei 3:17) and would not compel a person to sacrifice a limb. However, one who sacrifices a limb to save another’s life fulfills a great Mitzvah, as long as it does not involve a fifty percent or higher risk of death. Our bodies belong to Hashem and we have no right to place our lives at such great risk.

Poskim have, generally speaking, accepted this ruling of Radbaz and do not require the sacrifice of a limb even if there is no significant risk involved. The Shach (Yoreh Deiah 157:3) apparently supports this ruling (as he does not require sacrificing a limb to avoid violating any Torah law that does not require one to sacrifice his life) and the Pitchei Teshuvah (157:15) cites Radbaz and does not present a dissenting view. Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 2:174:4) and Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer ad. loc.) accept this ruling of Radbaz.

Live Kidney Donations

Dayan Weisz (Teshuvot Minchat Yitzchak 6:103) in 1961 ruled that it was forbidden to donate a kidney due to the significant risk of death involved in the procedure and due to concern for future need of the donated kidney. However, in an undated Teshuvah (written after 1961 but before 1980; it seems to have been written during the 1970’s) Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 9:45) while initially agreeing with Dayan Weisz, proceeds to modify his stance and considers permitting a live kidney donation if “a team of specialists decides after a rigorous examination that the donation does not involve risk to the donor.” He concludes, nonetheless, “Kuli Hai VeUlai,” even after all efforts are exerted, the doubt remains unresolved.

Rav Ovadia Yosef, however, writes in a Teshuvah published in 1980 (ad. loc.) that Torah observant specialists have informed him that the risk involved in kidney donation is very slight and that ninety nine percent of donors return to full health. Based on this information, Rav Ovadia Yosef rules “it is certainly a Mitzvah to donate [a kidney] to save his fellow from certain death.” We should note that Rav Yosef does not state that it is an obligatory to make such a donation. This seems due to the ruling of the aforementioned Radbaz that the Torah does not oblige one to give up a limb even in order to save another’s life.

Live Liver Donations, Blood and Platelets Donations and Bone Marrow Donations

Rav Bush notes that live liver donations are permitted and but not required by Halachah due to the considerations presented above. Although the risk involved in live liver donation is somewhat higher than live kidney donation (and is performed less frequently), Rav Bush writes that a relatively small percentage does not rise to the level of activities that are deemed too dangerous even to save another from certain death.

By contrast, since blood and platelets regenerate in a relatively short time and there is no significant danger involved, Rav J. David Bleich and Rav Mordechai Willig rule that one is obligated to donate blood and platelets if there is a dangerously ill individual currently is in need.

Bone marrow donation is safe and is performed, like other cases of live organ donations, only in cases where there is a dangerously ill individual currently in need. However, removal of the marrow is painful and often requires general anesthesia. Rav Bleich and Rav Willig rule that since the risk of general anesthesia is so minimal, one is obligated to make such donation even if there will be somewhere residual pain and lost work time. We noted earlier that the Gemara requires one to expend every effort to save his fellow’s life. We should note, however, that Rama (Y.D. 252:12) and Shach (C.M. 426:1) rule that the beneficiary must compensate the donor, if possible, for the financial loss sustained in saving his life.

Conclusion

Orthodox Jews are criticized in some circles for not donating certain organs after death. We may respond that the overwhelming majority of Halachic authorities regard such donations to be forbidden and unethical. Orthodox Jews also strongly consider donating live organs such as kidneys and livers, especially since most do not approve of most post-mortem donations. Organizations such as the Orthodox Union and Agudath Israel should even consider lobbying for tax breaks for such donors. We should also be at the forefront of blood, platelet and bone marrow donation. This would be a most effective response to our critics.