5784/2024
The following is a summary of the presentation made by the 5783/2023 TABC’s victorious team, which once again came in first place in the Lander’s College Model Beis Din competition.
Rav Asher Weiss vs. Rav Shlomo Zalman Auerbach and Rav Zalman Nechemia Goldberg
While illegal in the United States and most countries, there is worldwide debate about paying organ donors. A similar argument has emerged among Poskim, with Rav Asher Weiss (Teshuvot Minchat Asher 1:122) opposing and Rav Shlomo ZalmanAuerbach (cited in Nishmat Avraham 4:211-213) and Rav Zalman Nechemia Goldberg (Techumin 30:108-114) supporting.
Rav Ovadia Yosef (Teshuvot Yechave Da’at 3:84) and Rav Weiss express the Halachic consensus that it is a Mitzvah to donate a kidney. However, one is not obligated to do so (and should not pressure people to donate). However, a consensus has not emerged regarding the propriety of payment for organ donation.
Rav Weiss writes, “it appears logically obvious that one does not own his limbs and thus cannot conduct business with them” and that “the rules of Kinyanim (acts of acquisition) do not apply to human organs.” Rav Weiss writes that he “does not endorse the commercialization of human organs.” Nonetheless, Rav Auerbach and Rav Goldberg disagree. While neither side fully sets forth their reasoning, we shall try to explain the basis for both sides. We begin with an analysis of Rav Weiss’ opinion.
Rav Asher Weiss and Rav Shlomo Zevin
Rav Weiss writes that the issue hinges on whether man owns his body. He seems to agree with Rav Shlomo Zevin’s (Le’or HaHalacha, pages 310-336) forceful assertion that we do not own our bodies. Since we do not own our body, Rav Zevin argues, “one cannot sell that which he does not own.” Rav Zevin offers much evidence for his assertion.
Teshuvot HaRosh and Shulchan Aruch
The Shulchan Aruch (C.M. 97:15) rules that we do not coerce a debtor to hire himself out to earn money to pay his debt. Even if the borrower agrees in writing to be imprisoned if he defaults on payment, he may not be incarcerated nor enslaved. This ruling is based on the Teshuvot HaRosh (68:10), who writes
“We enslave only a thief who cannot repay what he stole. Just as Chazal (Kiddushin 18) limit sale to slave to the inability to restore a stolen item but not the inability to make his double payment (Keifel), so too we say “BiGneivato V’Lo B’Chovo,” one is sold because of theft but not debt. Even though he agreed in advance to be sold into slavery if he fails to pay his loan, he cannot enslave his body since there is no Eved Ivri in our day (when Yovel does not apply). The lender may not harm the defaulted borrower until he pays, even if the borrower consented in advance. The Mishna (Bava Kamma 8:7) teaches, “one who told another to remove his arm and he excuses the other from payment, is nonetheless obligated to pay.”
Although the Gemara (Bava Kamma 91b) presents a debate about whether one is permitted to harm himself, the Rambam (Hilchot Choveil UMazik 5:1) and most Rishonim rule that it is forbidden (אין אדם רשאי לחבול בעצמו). The Aruch Hashulchan (C.M. 420:43) codifies this opinion as normative.
Tosafot (Bava Kamma 91b s.v. Ela Hai) clarifies that one may not harm himself even for monetary gain. Tosafot cites as evidence the Mishna’s (Bava Kamma 8:6) relating the following story:
The Mishna relates: And an incident occurred involving one who uncovered the head of a woman in the marketplace, and the woman came before Rabbi Akiva to request that he render the assailant liable to pay for the humiliation that she suffered. Rabbi Akiva rendered the assailant liable to give her four hundred dinars. The man said to Rabbi Akiva: My teacher, give me time to pay the penalty, and Rabbi Akiva gave him time.
The man then waited for her until she was standing by the opening of her courtyard. He broke a jug in front of her, and there was the value of about an issar of oil inside the jug. The woman then exposed her own head and she was wetting [metapaḥat] her hand in the oil, and placing her hand on her head to make use of the oil.
The man set up witnesses to observe her actions, and he came before Rabbi Akiva, and he said to him: Will I give four hundred dinars to this woman for having uncovered her head? By uncovering her head for a minimal benefit, she has demonstrated that this does not cause her humiliation.
Rabbi Akiva said to him: You did not say anything,i.e., this claim will not exempt you. One who injures himself, although it is not permitted for him to do so, is nevertheless exempt from any sort of penalty, but others who injured him are liable to pay him. In this case as well, the man was liable to compensate the woman for shaming her, despite the fact that she did the same to herself.
Sanhedrin 84b – Shulchan Aruch HaRav vs. Minchat Chinuch and Turei Even
The Shulchan Aruch HaRav (5: Hilchot NizkeiGuf VaNefesh 4) adds to the Mishnah in Bava Kamma (8:7) “one may not strike another person, even if one permitted another to hurt him, “since one does not exercise ownership over his body at all, to hit it,” (אין לאדם רשות על גופו כלל להכותו).
However, the Minchat Chinuch (Mitzva 48) and Turei Even (Megilla 27a) disagree and permit harming someone if he consents to the harm. However, Rav Zevin marshals Sanhedrin 84b to support the Shulchan Aruch HaRav:
The Gemara relates: Rav did not allow his son to extract a thorn from him, due to the concern that his son would unwittingly wound him. Mar, son of Ravina, did not allow his son to pierce his blister, lest he wound him, which would be an unwitting violation of a prohibition.
The Gemara challenges this: If so, this should be a concern when another who is not his son treats him as well, as it is prohibited for one Jew to injure another. The Gemara explains: There is a distinction, as when another treats him, the concern is that the individual would be in unwitting violation of a prohibition. By contrast, when his son treats him, the concern is that he would be in unwitting violation of a prohibition punishable by strangulation.
The Minchat Chinuch notes that this Gemara contradicts his assertion since the patient’s consent obviates the prohibition. The Minchat Chinuch Responds that the Gemara addresses a situation where agreement was not forthcoming. Rav Zevin notes the forced nature of this interpretation. Why did Rav and Mar bar Ravina refuse to allow their sons to treat them if consent obviates the prohibition? Why would they withhold their permission?
Gittin 21a
The Mishna (Gittin 2:3) records that one may write a Get on the hand of his slave and hand the slave to his wife to effectuate a divorce. The Gemara (Gittin 21a) explains that one must give his wife the entire slave since one cannot remove the slave’s hand. Rashi explains that one may not injure his slave.
This assertion is remarkable, considering that one “owns” his slave. We see that one does not own a slave’s body. The master holds only the right to the slave’s working for him. However, as Yevamot 46a states גופא לא קני ליה, a master does not own his slave’s body.
Even if the slave consents, one may not injure him. If this were permitted, the aforementioned Mishna and Gemara in Gittin would have made an exception when the slave consented to remove his hand.
Accordingly, if the Halacha does not even recognize a master owning his slave’s body, one certainly does not own his own body.
Rambam, Breishit 9:6, and Bava Kamma 84a
Rav Zevin marshals the Rambam’s (HilchotRotzei’ach 1:4) explanation for why monetary compensation does not atone for murder, even if the victim’s family consents. He explains that the family does not own the victim, but “Hashem owns him.” The Radbaz (to Hilchot Sanhedrin 18:6) supports this idea from Yechezkel 18:4, which states הנפשות לי הנה.
Rav Zevin cites further evidence from the Pasuk(Breishit 9:5) the Gemara presents as the source for אין אדם רשאי לחבול בעצמו: ואך את דמכם לנפשותיכם אדרש – Hashem holds us accountable for harming ourselves.
Rav Zevin argues that the term Doresh refers to a claim for damaging one’s property or body (such as עד דרוש אחיך אותו or ודרשתי את צאני מידם), whereas the word “Pekida” is used when Hashem punishes (such as ואפקוד עונה עליה or פקד עון אבות על בנים. Accordingly, Rav Zevin believes Hashem does not merely punish us for harming ourselves but has a claim against us for damaging divine property.
Finally, Rav Zevin marshals Abaye’s statement appearing on Bava Kamma 84a. The Gemara states:
תניא ר"א אומר עין תחת עין ממש ממש סלקא דעתך רבי אליעזר לית ליה ככל הני תנאי § It is taught in a Baraita that Rabbi Eliezer says: The verse that states: “An eye for an eye” (Exodus 21:24), is referring to an actual eye. The Gemara asks: Can it enter your mind that the verse is referring to an actual eye? Doesn’t Rabbi Eliezer understand the verse like all these Tanna’im, who explained that this verse is referring to monetary payment?
״אמר רבה לומר שאין שמין אותו כעבד א"ל אביי אלא כמאן כבן חורין בן חורין מי אית ליה דמי אלא אמר רב אשי לומר שאין שמין אותו בניזק אלא במזיק״: Rabba said in response: Rabbi Eliezer means to say that the court does not appraise the injured party as a slave to assess the compensation for the injury. Abaye said to Rabba: Rather, like whom does the court appraise the injured party? If you say that the court appraises him like a freeman, does a freeman have monetary value? Rather, Rav Ashi said: Rabbi Eliezer means to say that the court does not appraise the injured party as if he were going to be sold as a slave, but rather, they appraise the one who caused him damage. The court appraises how much the latter’s value would be reduced were he to sustain the same injury he caused to the injured party, and he pays this amount as indemnity.
Rav Zevin focuses on Abaye’s statement that a Ben Chorin has no monetary value. He understands Abaye to mean that there is no means to assess the value of a limb. A limb cannot be assessed since it has no price. Price is relevant only to something we can market, and a limb cannot be sold.
TABC Talmid Ariel Kryzman counters that the Torah is replete with concepts of Arachin and “Dami Alai,” where one donates his value to the Beit HaMikdash.
Rav Zevin concludes, “one does not own his limbs,one cannot conduct commerce with them, and they cannot be sold and mortgaged.” Clearly, Rav Zevin rejects selling a kidney or other limb for transplants.
Sanhedrin 75a
The Gemara (Sanhedrin 75a) presents an unseemly situation regarding which Chazal reacted strongly. I believe this Gemara also animates Rav Asher Weiss’ objection to payment for human organs:
Apropos the discussion of the obligation to allow oneself to be killed rather than engage in Arayot (forbidden relationships), the Gemara cites Rav Yehuda quoting Rav:
There was an incident involving a certain man who set his eyes upon a certain woman and passion rose in his heart, to the point that he became deathly ill. The sages asked doctors what was to be done with him. The doctors said that the man will have no cure until she sleeps with him. The Sages said they should let him die, and she may not sleep with him. The doctors then said that she should at least stand naked before him. The Sages responded again that they should let him die, and she may not stand naked before him. The doctors suggested that the woman should at least converse with him behind a fence in a secluded area, so that he should derive a small amount of pleasure from the encounter. The Sages insisted that they should let him die, and she may not converse with him behind a fence.
The Gemara then says: Rabbi Yaakov bar Idi and Rabbi Shmuel bar Nachmani disagree about this issue. One of them says the woman in question was a married woman, and the other one says she was unmarried. The Gemara tries to clarify the issue. Granted, according to the one who says that she was a married woman, the matter is properly understood. Since the case involved a severely prohibited forbidden relationship, the Sages did not allow any activity hinting at intimacy. But according to the one who says that she was unmarried, what is the reason for all this opposition? Why did the Sages say that the man must be allowed to die, rather than have the woman do as was requested?
Rav Pappa answers that this is due to the potential family flaw, i.e., harm to the family name, as it is not permitted to bring disgrace to the entire family in order to save the lovesick man. Rav Acha, son of Rav Ika, says: This is so that the daughters of Israel should not be promiscuous with regard to Arayot. Were they to listen to the doctors’ recommendations, Jewish women might lose moral restraint.
In this classic case, we prefer that the man die rather than degrade the woman involved. Rav Weiss may feel that selling human organs is so degrading that one cannot justify doing so, even to save lives.
Finally, The Chatam Sofer asserts (Teshuvot, Orach Chaim 31) that if non-Jews forbid a particular activity in their place of worship, then if Jews were to permit that activity, it would constitute a desecration of God's name. Similarly, since selling organs is illegal in most countries, it would create a Chillul Hashem if Halacha permits selling organs.
Interestingly, although he objects to organ sales, Rav Weiss rules that if one agrees to sell an organ and sets a price, and the organ is harvested, the buyer must pay the set fee. Bava Kamma 70b teaches that one must pay for a service provided to which one consented to receive, even if the service included an act that violates Torah law. This is especially so in the case of an organ sale since one is not paying for the organ. Rather, one pays for the organ donor's undertaking risk and considerable pain. Rav Weiss proves this point because payment is expected even if the organ unexpectedly turns out to be defective.
Rav Shlomo Zalman Auerbach and Rav Zalman Nechemia Goldberg
Unlike Rav Weiss and Rav Zevin, Rav Shlomo Zalman Auerbach and Rav Zalman Nechemia Goldberg permit the selling of human organs. Although one may not harm himself to earn money, he is allowed to inflict a wound if it will save a life. For this reason, Rav Shlomo Zalman Auerbach (cited in the Nishmat Avraham 2:265) permits blood donation. Rav Auerbach allows it even if the donor’s primary motivation is for money due to the potential to save lives.
Menachot 64a
We may draw evidence for this assertion from Menachot 64a. This Gemara records a dispute regarding actions intended to violate Shabbat but turn out to save a life. For example, the Gemara describes a case in which someone, despite hearing that a child was drowning, spread his fishing nets in the river to catch fish (Tzad, a prohibited activity on Shabbat), without intending to save the child. When he raised the net, it held the child and caught some fish. Rabbah believes that such a person has not desecrated Shabbat, for we ignore his intentions and consider only his concrete action (which saved a life). Rava maintains, however, that the person has violated Shabbat because intent determines the character of one’s actions. The Rambam (Hilchot Shabbat 2:16) rules like Rabbah that such an action does not desecrate Shabbat, while the Ra’avad appears to rule that it does.
Mishna, Nedarim 9:5
Interestingly, Rav Auerbach does not raise a problem with the commercialization of the human body. We may draw evidence to this stance from the Mishna (Nedarim 9:5), permitting one to sell his hair. However, one may distinguish between hair that regenerates and a kidney that does not.
Rav Feinstein Permits Cosmetic Surgery
Moreover, Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:66) approves cosmetic surgery based on the Rambam’s (Hilchot Chovel Umazik 5:1) definition of the prohibition of Chavalah (wounding). Generally, the Torah prohibits wounding another person (see Devarim 25:3) and, as the Gemara (Bava Kama 91b) adds, even harming oneself. However, the Rambam specifies that wounding is forbidden when it is performed “in a degrading manner” (Derech Bizayon) or, according to an alternative text, “in a belligerent manner” (Derech Nitzayon). Thus, although the Rambam rules following the Tannaitic view (ibid.) that an individual is forbidden to wound himself, Rav Moshe infers from the Rambam’s proviso that if the wounding (whether of others or oneself) is done beneficially, the prohibition of Chavalah does not apply.
Notably, Rav Feinstein does not raise these points in his responsum where he does not object to blood donations for payment (Teshuvot Igrot Moshe C.M. 1:103). Interestingly, Rav Feinstein only raises the issue of inflicting a wound but does not raise an objection based on the commercialization of the human body or enslavement.
Enslavement
Furthermore, one may argue that the Halacha does not define purchasing organs as enslavement. Otherwise, the Halacha would even forbid altruistic donations.
Human Stewardship over the Human Body
Although Hashem owns our bodies, Halacha permits selling blood, cosmetic surgery when necessary and safe, and safely donating a vital organ such as a kidney. This shows us that He grants us a Tovat HaNaah, certain rights regarding the management of our bodies.
Just as a farmer has a right to decide to which Kohen he will distribute his Teruma (although he does not own it), we also enjoy the right to choose to whom one will gift and possibly charge for an organ transfer. Accordingly, Hashem’s possessing our body does not necessarily preclude organ sales.
Payment for a Mitzva
One might object to payment for performing a Mitzva based on the Mishna (Bechorot 4:5-6) forbidding payment for Mitzvot. The Halacha (Shulchan Aruch Y.D. 336:2) even forbids physicians to receive payment for their services. However, we may pay the doctor for his efforts.
Thus, we may compensate the organ donor since one is not paying for the donation but for the risk and pain involved (as cited above from Rav Weiss). Moreover, Poskim rule that one is not obligated to donate an organ. Accordingly, one may receive payment since one is not strictly bound to donate an organ.
A Mutually Beneficial Exchange
Rav Zalman Nechemia Goldberg (Techumin 30:113) lays down a major principle. A valid monetary exchange occurs only when the purchaser acquires something of use. As evidence, Rav Goldberg cites the Ketzot (155:16), who writes that one cannot obtain a right to harm someone.
Rav Goldberg invalidates the exchange (described in Shakespeare’s “Merchant of Venice”), where a borrower agrees to pay a “pound of flesh” in case of loan default. By contrast, an organ purchase agreement is Halachically valid since it benefits the purchaser.
Rav Goldberg writes that one can even acquire something that involves pain for the seller. For example, Rav Goldberg validates a work contract in which the employee agrees to work overnight shifts. He notes Yaakov Avinu worked nights (Bereishit 31:40), and the Poskim raise nary an objection. Just as an agreement to work nights is Halachically binding, so is an agreement to sell an organ.
Kinyan of a Human Organ
Unlike Rav Weiss, who argues that one cannot make a Kinyan on a human organ, Rav Goldberg believes that Kinyan Kesef (acquisition via monetary payment) effectively acquires an organ.
Rav Goldberg notes that Rashi (Kiddushin 7a s.v. SheYesh LaHen Achrayut) believes that we regard every person as the equivalent of Karka (real estate), which we acquire through Kinyan Kesef (Kiddushin 26a). Rav Goldberg argues that even Tosafot (ad. loc. s.v. Im Kein), who disagree with Rashi, would agree that Kinyan Kesef works on this case. This is so since Biblically, Kinyan Kesef suffices. Chazal (Kiddushin 28b) ordained Kinyan Meshicha (to take hold of the item sold) due to concern of the seller claiming “Nisrefu Chitecha B’Aliya,” the wheat you purchased was destroyed in an attic fire.
However, when this concern does not apply (such as when the seller’s attic is rented to the purchaser, Bava Metzia 49b), Kinyan Kesef is effective even rabbinically. Thus, since there is no concern about such a claim regarding a human organ, Kinyan Kesef is effective.
Rav Goldberg, though, does raise the possibility that a Kinyan does not take effect due to concern of violating the prohibition of enslaving oneself. One might require the seller to have the ability to retract his agreement to avoid violating this prohibition.
TABC Talmid Shimon Ross notes a problem with Rav Goldberg’s approach. Rav Goldberg assumes one makes a Kinyan on the kidney. However, we mentioned earlier from Rav Asher Weiss that one is not paying for the kidney but rather the time, risk, and pain associated with kidney harvesting. Kinyan Kesef does not apply to time, risk, and pain.
We suggest, though, that Kinyan Situmta may apfply. The Gemara (Bava Metzia 74a) explains that not only do the Torah and Chazal determine what actions constitute a Kinyan, but every society can also determine what is considered a Kinyan. They can determine that by performing a certain action, that title is transferred from one party to another. Situmta is an example of a Kinyan that is established by society. The word Situmta refers to a stamp placed on a wine barrel. If putting the stamp on a wine barrel in a particular community signifies the deal’s finalization, the Halacha sees this action as a Kinyan. Accordingly, if society deems a contract to sell a Kinyan a binding agreement, the Halacha would recognize it.
Nafka Mina between Rav Goldberg and Rav Weiss
It is important to clarify the Nafka Mina as to whether a binding Kinyan can be performed to sell an organ. According to Rav Goldberg, one can make a Kinyan, then one who makes a Kinyan to sell his kidney cannot retract his agreement. However, according to Rav Weiss, since there is no Kinyan, one may withdraw from such an agreement. However, once the kidney is extracted, payment must be made even in Rav Weiss’ view, as noted earlier.
Setting a Price
Teshuvot Radbaz (7:2279) rules that if one charges a dangerously ill patient more than the going rate for a life-saving drug, the patient is only responsible for paying the market rate. However, if the physician healed with his medical insight, then, strictly speaking, Halacha recognizes whatever fee the doctor sets since there is no set fee for medical wisdom.
Dr. Abraham S. Abraham, a highly regarded authority on medical Halacha, writes (Nishmat Avraham 4:211-212) that the same applies to organ donation. Since risk and pain are involved, there is no, strictly speaking, going rate for such subjective matters.
Paying an Organ Broker
Interestingly, Rav Shlomo Zalman Auerbach (Nishmat Avraham 4:212-213) permits paying both the donor and the broker between donor and recipient. He sees such payment as no different than paying someone to connect him to proper medical treatment.
On the other hand, Rav Yaakov Ariel (B’Ohala Shel Torah C.M. 103) suggests forbidding broker payment for fear of the broker creating an abusive situation of abuse and exploitation.
Government Regulation
Even if Halacha permits organ sales, public policy concerns motivate most countries worldwide to ban them (see https://en.wikipedia.org/wiki/Organ_trade). The Halacha recognizes that public policy concerns (what the Mishna in the fourth and fifth Perakim of Masechet Gittin refers to as “Tikkun Olam”) potentially may override even Pikuach Nefesh concerns.
Rav Yisrael Lau (Techumin 18:136) argues that there is no reason why a wealthy person who can afford to purchase a kidney should not heal himself just because his poorer counterpart cannot afford to do so. While this may be true, public policy concerns may lead us to conclude that although organ sales might save lives in the short term, they will cause greater loss of life in the long run.
Moreover, one may defend those who save themselves even at the cost of indirectly causing others to die later. The Imrei Binah (O.C. 13:5) describes two Jews wrongly held in a prison where one can escape. However, if he runs, the evil captors will kill the remaining Jew in revenge. The Imrei Binah permits the escape since he is only indirectly (Grama) killing the remaining Jew. In such a case, we argue how we know the other person’s blood is redder than yours, and he may escape. Thus, one could say that one may purchase an organ to save himself even if it indirectly causes others to die.
Public Policy and Pikuach Nefesh
The following four sources show that sometimes public policy concerns can override Pikuach Nefesh concerns:
Sanhedrin 75a – We cited this Gemara earlier, where Chazal preferred a man to die than coercing a woman to speak with him.
The Mishna (Gittin 4:6) forbids paying an excessive ransom. The Gemara (Gittin 45a) debates whether we are trying not to motivate further kidnappings or avoid impoverishing the community. This Halacha might even apply in the case of Piku’ach Nefesh (see Pitchei Teshuva Y.D. 252:4, who cites a Machloket Acharonim about this matter).
The same Mishna forbids helping kidnapped people to escape. Rav Ovadia Yosef (Teshuvot Yabia Omer 10: C.M. 6) discusses the Israeli rescue mission in Entebbe, Uganda, on July 4, 1976. Rav Yosef endorses the Halachic validity of this military operation, arguing that a duly elected government is empowered to make public policy decisions for the nation and act in its best interest. The same should apply to the government's determination of whether selling human organs serves the people's best interests.
Nedarim 80b-81a presents a most interest ruling of Rabi Yosi:
The Gemara raises a contradiction between this statement of Rabbi Yosei and another statement of Rabbi Yosei. It was taught in a baraita: In the case of a spring belonging to the residents of a city, if the water was needed for their own lives, i.e., the city’s residents required the spring for drinking water, and it was also needed for the lives of others, their own lives take precedence over the lives of others. Likewise, if the water was needed for their own animals and also for the animals of others, their own animals take precedence over the animals of others. And if the water was needed for their own laundry and also for the laundry of others, their own laundry takes precedence over the laundry of others. However, if the spring water was needed for the lives of others and their own laundry, the lives of others take precedence over their own laundry.
רַבִּי יוֹסֵי אוֹמֵר: כְּבִיסָתָן קוֹדֶמֶת לְחַיֵּי אֲחֵרִים. הַשְׁתָּא כְּבִיסָה אָמַר רַבִּי יוֹסֵי יֵשׁ בָּהּ צַעַר, Rabbi Yosei disagrees and says: Even their own laundry takes precedence over the lives of others, as the wearing of unlaundered clothes can eventually cause suffering and pose a danger. The Gemara clarifies the difficulty presented by this baraita: Now, if with regard to laundry, Rabbi Yosei said that refraining from laundering one’s clothes involves pain and affliction,
is it not all the more so the case that if one does not bathe, which affects the entire body, Rabbi Yosei would agree that he will suffer pain? The Gemara refutes this argument: The Sages say in response: Yes, the pain of refraining from laundering one’s clothes is stronger, according to Rabbi Yosei, than the pain of not washing one’s body. As Shmuel said: Grime on one’s head leads to blindness, and grime on one’s clothes leads to madness, whereas grime on one’s body leads to boils and sores, which are less serious than madness and blindness. Based on this it may be suggested that according to Rabbi Yosei, soiled clothing presents a greater danger than an unwashed body.
Rabi Yosi shockingly permits a community to use its water for laundry instead of meeting the life-saving drinking needs of a neighboring city. Apparently, the community's long-term well-being and best interest permit overlooking the immediate Pikuach Nefesh needs of others in dire need of water.
A Stunning Ruling from Rav Yosef Shalom Eliashiv
VeHa’arev Na (1:411-412) cites an extraordinary ruling from Rav Yosef Shalom Eliashiv regarding saving one’s life with vital organs from China. The facts of the case are as follows: People report high-quality kidney organ transplants at Chinese hospitals. However, Chinese dissidents who escaped to the West report that the organs are harvested in the basements of these hospitals from political prisoners sentenced to death. Rav Eliashiv was asked if Halacha permits purchasing an organ at a Chinese hospital.
Rav Elishaiv responded that it is a Chillul Hashem to participate in such ugly practices, for it creates the impression that Jews and Jewish Law legitimate them. Thus he forbids purchasing an organ at a Chinese hospital even to save a life. Furthermore, Rav Eliashiv forbids selling organs from executed prisoners because it biases governments to kill their subjects.
Organs Harvested from Brain Stem Dead Patients
Interestingly, Rav Eliashiv and Rav Auerbach both permit (in letters printed in Nishmat Avraham 4:143-150) receiving organ donations from brain-dead patients, even though they reject brain stem death as a criterion for death. In other words, they permit receiving organs obtained from patients who were murdered according to Rav Eliashiv’s and Rav Auerbach’s standards. Rav Ahron Soloveichik (Journal of Halacha and Contemporary Society, Spring 1999, pages 41-48) agrees.
Rav Soloveichik supports his ruling from the following Gemara (Nedarim 22a), which teaches that in case of danger to life, one may violate the prohibition to encourage others to murder.
The Gemara relates: Ulla, on his ascent to Eretz Yisrael, had two residents of Ḥozai join him. Because of a brawl between them, one arose and slaughtered the other. The assailant said to Ulla: Did I act properly? He said to him: Yes, and open the place of the slaughter, i.e., cut it more so that he will die faster. When Ulla came before Rabbi Yoḥanan, Ulla said to him: Perhaps, Heaven forbid, I strengthened the hands of sinners by commending him, although I did so merely because I was afraid that he would kill me. He said to him: You saved yourself by doing so, as it is permitted for one to say words like this in order to save his own life.
How do we reconcile Rav Eliashiv’s permitting receiving an organ from a brain stem patient but not from a Chinese hospital? Western doctors mistakenly define brain stem death as death and sanction murder. Chinese physicians wrongly sanctioning murdering political prisoners since their government deems it appropriate. Why does Rav Eliashiv distinguish between these cases?
Arguably, the cases are identical in that one indirectly kills to save his life. However, western standards are far less objectionable (not in the least because of the patient’s advance consent), and thus far less a Chillul Hashem.
The question regarding the consensual purchase of human organs creates a Chillul Hashem. Quite possibly, since murder is not involved, the stakes are much lower. On the other hand, there are cases of abuse, and Jewish (and even rabbinic) involvement in such cases has generated considerable Chillul Hashem.
Conclusion
Teshuvot Chatam Sofer (C.M. 44) confirms the halachic validity of civil laws (due to the Talmudic rule of Dina D’Malchuta Dina), which “we too would have instituted, had the situation come before us.” Dina D’Malchuta Dina’s validity regarding the prohibition to purchase life-saving organs, even in case of danger to life, hinges greatly on whether Halachic authorities would have adopted such legislation. On the other hand, observant Jews ignoring civil law has created a Chillul Hashem and increased Eivah (enmity) for our people. Either way, Poskim must consider this matter carefully for the ramifications in both directions.