(2016/5777)

Introduction - The Lander College Model Beit Din Competition

In Israel, a father and caregiver for his mentally impaired son was diagnosed with kidney failure, and all attempts to find a suitable organ donor failed. His son, however, was a near-perfect match but was incapable of providing any reasonable form of consent. Could the son be allowed, under Israeli law, to donate a kidney to save his father’s life? Ultimately the Israeli Supreme Court ruled that he could not. Was this ruling consistent with Jewish law?

This question was given to students from eight U.S. high schools who squared off in the third annual Lander College for Men (LCM) Model Beis Din competition at the Kew Gardens Hills campus. In different rounds all teams were tasked with arguing both sides of the debate.

“The Model Beis Din was an exciting and creative way of demonstrating the dynamic nature of Halachah – how the Torah can inform and confront moral and legal challenges in the most sophisticated way,” said Rav Yonason Sacks, esteemed Rosh HaYeshivah of the Landers Beis Medrash L’Talmud. “I was quite impressed with the caliber of the students’ presentations. They were creative and articulate and reflected a thorough knowledge of many Mekoros. I am confident that they found this forum to be a most enriching experience.”

Secular Courts’ Rulings

The Israeli Supreme Court addressed the issue of kidney donations from the mentally incompetent in Attorney General v. A and Others. The Supreme Court reversed a District Court decision which permitted the transplant of a kidney from a 39 year old mentally incompetent son to his 65 year old father who was suffering from severe renal failure. In permitting the transplant, the District Court noted the uncontested fact that the son was receiving the best possible care from his father and reasoned that it was in the son’s best interest to give up a kidney in order to continue receiving his father's devoted care.

What does Halachah say about this Situation?

Rav Moshe Meiselman and Rav Moshe Hershler (Halachah VeRefuah 2:121 and 127) both permit harvesting a kidney from the incompetent child in order to save the parent. They base their ruling on Rambam (Hilchot Nachalot 11:11), who rules that Beit Din may, under certain circumstances, appropriate money from an adult who became a Shoteh or Cheiresh (Halachically incompetent) for Tzedakah. Rambam, in turn, is based on the Gemara (Ketubot 48a) which permits Beit Din to take money from the property of an adult who becomes a Shoteh or Cheiresh to support his children, even if they are above the age at which a parent must support them.

Kesef Mishneh (ad loc.) offers two explanations for Rambam’s ruling. It is presumed that a person wants Tzedakah given from his property. Additionally, it is presumed that a Jew’s money is Meshubad (encumbered) to be given to Tzedakah. Rav Meiselman notes that our question might hinge on the two approaches of the Kesef Mishneh.

The Ketzot (358:1) notes that the Gemara (Ketubot 48a) and the Rambam we presented seem to contradict Tosafot (Bava Metzia 22a s.v. Mar Zutra Lo Achal). The Gemara on which Tosafot is commenting explains that Mar Zutra refused to eat food presented by an Aris, a sharecropper, without permission from the field owner, despite the fact that the owner would likely be happy with the Aris’ actions when he would later discover what the Aris did. Tosafot explain Mar Zutra’s actions on the basis of Abayei’s accepted ruling that “Yei’ush SheLo MiDa’at Lo Havi Yei’ush.” This means that one may not take a lost item from which its owner will eventually give up hope if the owner did not yet discover his loss and lose hope of recovery.

The Ketzot distinguishes between the cases of Rambam and Tosafot. Ketzot explains that for the sake of the Mitzvah (Rambam’s case), even Tosafot would agree that a Beit Din may seize items based on what it presumes would satisfy the individual.

The Ketzot writes, though, that Ketubot 48a permits Beit Din to appropriate money from a husband who became a Shoteh to purchase jewelry for his wife, based on the presumption that a husband wants his wife to appear presentable. Thus, it appears that the Beit Din may seize the property of an incompetent individual even if it not for the sake of the Mitzvah. The Ketzot, in his Avnei Milu’im (71:5), answers this seeming contradiction by explaining that the wife is Halachically entitled to jewelry; therefore, taking the money from the incompetent husband for jewelry is for the sake of a Mitzvah.

Rav Meiselman explains the basis of the Ketzot to distinguish between “Yei’ush SheLo MiDa’at” and taking for the sake of a Mitzvah. In the case of “Yei’ush SheLo MiDa’at,” Abayei and Rava disagree whether we may assess the intentions of an individual based on the knowledge that we have yet the individual is heretofore lacking. However, in the case of a Mitzvah, we assess an individual’s intentions based on the intentions of most people. Therefore, Rav Meiselman reasons that it is permissible to take a kidney from the mentally incompetent individual to save his father’s life (certainly a Mitzvah), since most people would agree to do so.

Rav Hershler explains that in some cases of Yei’ush, presumptive consent is not enough to create a transaction, since the owner’s Da’at is required to create the “Chalot Cheftza” (reality) of a Kinyan. However, presumptive consent does work when a Chalot Cheftza of a Kinyan is not needed, such as in a case of Tzedakah or a kidney donation to save a father’s life. Rav Hershler believes that the kidney may be harvested from the Shoteh if there is a presumption that he would have consented had he had Da’at.

A Dissenting View - Rav Mordechai Halperin

Rav Halperin (Assia 45-46 page 58) strongly disagrees with Rav Meiselman and Rav Hershler. He argues that the Gemara and Posekim permit only taking property from a Shoteh when presumptive consent exists. Rav Halperin strongly objects to the leap to be made from seizing property to seizing a kidney.

Rav Shlomo Zalman Auerbach’s Uncertainty

Rav Shlomo Zalman (cited by Dr. Abraham S. Abraham in his Nishmat Avraham 4:199) is unsure whether we may take bone marrow from a child who is not able to consent to the donation. Rav Shlomo Zalman argues that it depends on the celebrated dispute as to whether one may say not only “Zachin LeAdam SheLo BeFanav” but also “Zachin MeiAdam SheLo Lefanav.” Halachah permits us to acquire something beneficial on behalf of another individual even without his being aware. It is disputed if we may extend this principle to permit seizing another’s property if we deem it to be for his benefit. Rav Shlomo Zalman believes that this dispute is unresolved and thus it is unclear if Halachah permits harvesting a kidney without the donor’s consent even if it is clear that it is to the benefit of the donor.

Conclusion

Great Halachic authorities debate the permissibility of harvesting an organ from an incompetent individual even it is to save the life of his caregiving parent. The discussion is fascinating and ranges over a wide variety of Sugyot (sections of the Talmud). With Hashem’s help, the TABC Model Beis Din team was able to master the sources and very capably present and defend both sides of the argument.