HealthandMedicine Fifteen people die each day waiting for What Does a donated organ. can be declared dead if neurological cated and the stakes are high. If brain lung and kidney transplants (although Halachah Say About tests confirm total cessation of brain death is not halachic death, removal of not for heart transplants). function (including a brain-stem func- the organs is murder. If brain death is At first glance, the use of NHBDs seems tion such as respiration) even if, as a halachic death, failure to remove the to avoid all the halachic issues associated with result of mechanically supplied oxygen, organs could indirectly condemn peo- brain death. After all, if there is no heartbeat the heart continues to beat and blood ple who could otherwise be saved to or circulation, there will be no respiratory continues to circulate. (It must, of activity (neither the brain nor the lungs ORGAN DONATION? course, be emphasized that even under die. This is the single most difficult By Yitzchok A. Breitowitz can function unless they are supplied with the brain-death criteria, persons who problem in the organ donation blood). And, in the absence of both lack higher mental functioning, such as process, and it is essential that one those in a coma or in a persistent vege- consult with his posek before making a heartbeat and respiration, the donor tative state, are unequivocally alive and decision to donate one’s organs. would be deemed dead even under the Transplant surgery is one of the afraid their organs will be harvested Organs and tissues can be removed therefore, their organs cannot be used.) Fortunately, in the long term this strictest of halachic criteria. wonders of modern medicine. Persons prior to their deaths. There is also a at any one of four points—and each Whether halachah allows a determi- may be a diminishing problem. As In reality, however, the use of who, in the past, would have died fear that organ donors who have not point has its own problems: 1. Removal nation of death to be made based on superior methods of preserving organs NHBDs raises ethical and halachic because of the failure of their hearts, yet died will not receive full medical of organs from persons clinically diag- clinical brain-death criteria is a matter are developed, removal could be issues of the first magnitude and essen- livers or kidneys can now have years treatment since there may be a greater nosed as being brain dead but whose of sharp debate among posekim. Some deferred until cardiac death as well as tially involves a prearranged death. added to their lives. Persons who benefit in their passing away. Still oth- hearts are still beating; 2. Removal of analogize brain death to anatomical cessation of brain function is estab- Donors who are not brain dead would have been condemned to blind- ers find the disfigurement and mutila- organs from donors whose hearts have decapitation, which is unequivocally lished. Moreover, the increased utiliza- (although they may be in a coma or a ness can now have the gift of sight. tion of their bodies or those of their stopped beating; 3. Removal of organs deemed “death”; others assert that tion of artificial organs, possibilities of vegetative state) are disconnected from Horribly disfigured burn victims can loved ones repugnant. Whatever the and tissues from cadavers; 4. Removal while true destruction of the brain transgenic transplants (i.e., from ani- life-support (pursuant to the terms of a begin the return to a normal and pro- reason, there is an acute shortage of of organs or organ parts from live would be equivalent to death, clinical mals) as well as stem cell research and living will or the family’s consent or ductive life with the aid of skin grafts. organs; the demand far outstrips the donors. tests do not unequivocally establish therapeutic cloning may eliminate the both). In some cases, the physicians 4 The tragic death of one person can supply. Around fifteen people die This article is designed solely to such destruction; still others rule that need to rely on human donors and wait no more than two minutes, deter- give life and hope to as many as eight each day waiting for a donated organ. familiarize the reader with the general as long as the heart is beating, the per- would not only resolve the brain-death mine there is no spontaneous heartbeat people. At one time, heart transplant Because of the great value Judaism concepts that are relevant to the prob- son is alive irrespective of the brain, quandary but would also greatly or respiration, declare the patient dead and proceed to remove organs. Because surgery had such a low probability of places on the saving of a life—“He lem. In determining what to do in any and a final group asserts that a brain- enhance the organ supply. success that Rav Moshe Feinstein ruled who saves a single [Jewish] life is as if of these situations one should consult dead patient may have the status of a of warm ischemia, typically no more that removal of the diseased heart con- he saved an entire world”5—it would his posek for halachic guidance. safek met—safek goses (possibly dead than two to five minutes can elapse stituted murder of the recipient;1 it was appear that organ donation ought to but possibly alive, though death is II. Donation from from the time life-support is discontin- more likely that the recipient would be encouraged, provided the procedure I. Donations from deemed certain and relatively immi- Non-Heart Beating ued until the organs are harvested. live longer with the bad heart than does not otherwise entail violations of Brain-Dead Donors nent). Although there may be no mitz- Donors There are two distinct halachic prob- with its replacement! Today, with the halachah. To the extent such donation vah to prolong the life of a goses, such lems with this procedure. First, the development of improved surgical is halachically permissible, the unease a life cannot be terminated by affirma- From a medical standpoint, brain- withdrawal of life-support from a non- techniques and anti-rejection drugs, and discomfort the family might feel he traditional legal definition of tive action such as the removal of a dead donors whose hearts are beating brain-dead patient may in itself be an the prospects of at least some degree of at the dissection of their loved one’s “death”T was irreversible cessation of res- vital organ.8 Moreover, the brain-death due to mechanically supplied oxygen act of murder or at least a violation of success are quite high.2 body should be overridden by the piratory and circulatory functions, i.e., standard itself has recently been ques- are optimal sources of organs because the commandment, “Lo ta’amod al dam In spite of the tremendous good that value of pikuach nefesh (saving a life) a person could not be declared dead tioned by some neurologists.9 the organs are supplied with oxygenat- rayecha,” “Do not stand idly by while organ donation can accomplish, rela- and by contemplating the great spiri- until there was both cessation of Both the Israeli Chief Rabbinate and ed blood, and thus they do not deteri- your neighbor’s blood is shed” (Lev. tively few people—Jews or non-Jews— tual merit that would accrue to the breathing and circulation of blood as the Rabbinical Council of America orate even after the patient is declared 19:16), and therefore neither a living “dead.” The vast majority of heart, sign up to be potential donors.3 A niftar (the deceased) whose generosity evidenced by the absence of a heartbeat have accepted brain-death criteria in will nor family consent could authorize and pulse.7 This definition would liver and lung transplants are taken variety of reasons are given for their has enabled others to live.6 Conversely, allowing organ donation.10 Rabbi Dr. such discontinuation.13 Second, even if make transplants extremely difficult from clinically brain-dead donors. to the extent halachah prohibits the reluctance. Some do not want to con- since organs deteriorate rapidly once Moshe D. Tendler, in particular, has However, in order to partially alleviate one concedes that withdrawal or dis- template their mortality. Others are choice, our feelings of sympathy for they are cut off from a blood supply argued that this is also the position of the severe shortage of donors, some continuation of life-support may be those in need of a transplant would (warm ischemia). Accordingly, his revered father-in-law, Rav Moshe.11 hospitals have developed protocols halachically sanctioned as an “omission” Rabbi Breitowitz is the rabbi of the simply be immaterial. The commands American law in all fifty states now rec- Many posekim, however, differ.12 enabling organ removal from persons rather than an affirmative act of mur- Woodside Synagogue in Silver Spring, of God cannot be set aside because ognizes the concept of “brain death” Jewish Action is not the forum to whose hearts have stopped beating. To der, the removal of organs within two Maryland, and an associate professor of others or we perceive them as inhu- (called “brain-stem death” or “whole- fully explore the intricacies of this date, NHBDs (non-heart beating minutes of disconnection would in law at the University of Maryland. mane or politically incorrect. brain death”), which means a person halachic debate. The issues are compli- donors) have been utilized for liver, itself be an act of murder.14 Cessation

Fall 5764/2003 JEWISH ACTION Fall 5764/2003 JEWISH ACTION One is not obligated to put oneself in potential sakkanah to save another but to do so is laudable and meritorious. of respiration and heartbeat constitutes life in the long run might be Moreover, because a liver can regenerate donations can never be compelled or debated the propriety of conceiving a mit even direct benefit from a corpse “death” only when that cessation is irre- obtained.20 At a minimum, there has with as little as twenty percent of its demanded but only requested as an act child for the purpose of providing mar- that is of non-Jewish origin34 and, in versible. If the patient is capable of hav- to be a direct recipient. Although the original tissue, a live donor can con- of gemilut chassadim (loving kindness) row to another child, Jewish law has no the absence of evidence to the con- ing breathing and heartbeat restored, Noda B’Yehudah implies that removal tribute parts of his liver as well.26 While and midat chassidut (piety).29 problem with the fact that there was an trary, at least in the United States, one the patient is not dead even during the of organs would never be permitted donations from live donors do not • Informed Consent: Since one is ulterior motive in conceiving the child. can assume that the organs received period of time he is not breathing. unless there is a designated beneficiary involve issues of nivul hamet or potential not obligated to donate organs, they After all, baby Marissa was loved and are from non-Jews.35 Since within two to three minutes there at the time of the removal rather than retzichah, they too pose halachic issues. can be removed only with the person’s cherished in her own right, and “using” • Facilitating Murder: The second is still the possibility, albeit remote, of someone who materializes at a later •Self-Endangerment: Even partial consent. Obviously live organ removal her for a mitzvah only enhanced the issue is more troubling. To the extent auto resuscitation (and certainly recon- date, it has been convincingly argued removal of an organ poses potentially cannot be sanctioned by someone who is family’s joy. Nor is there any problem that one takes the position that clin- nection to life-support15), and within that as long as the probability is strong serious risks and constitutes placing mentally incompetent, comatose or in a with the baby’s inability to give consent. ical brain death is not halachic death that time the brain stem has not yet that a choleh will receive the organ, it oneself into safek sakkanah (potential persistent vegetative state. (Whether Consent is required only when the pro- and the removal of organs from a been destroyed, removal of the organs is immaterial whether he was specifi- danger to life). This is true both organs can be removed once there is a cedure in question carries risks of brain-dead donor is murder, is a might actually be an overt act of homi- cally identified at the time of the because of the potential strain on the diagnosis of clinical brain death depends endangerment or severe pain; removal patient allowed to receive the product cide even according to those who removal or not.21 The key factor is reduced capacity that is left and on whether halachah accepts “brain death” of organs carries both risks, removal of of an illicit, immoral act? Once again, regard brain-stem death as death. On that the organ be used for the choleh because of the risks associated with as “death.”) But this would also mean that bone marrow does not.31 while there are dissenting voices, the the other hand, waiting until brain- rather than for general experimenta- general anesthesia and surgery. As a even a consenting minor could not autho- majority of posekim have permitted stem destruction is irreversible would tion or educational purposes.22 general rule, the Torah does not permit rize removal of his organs. Consider the V. Receiving Organs such receipt.36 It is true that just as it render the organs useless. Assuming that pikuach nefesh will a person to place himself into a situa- case of an adolescent who needs a kidney is prohibited to kill, it is prohibited to It thus appears to this writer that furnish the appropriate halachic justifi- tion of sakkanah. On the other hand, transplant and the only suitable donor is a If a Jew, God forbid, needs a vital indirectly cause the death of another.37 organ donation pursuant to the existing cation for organ removal, three issues the person who needs the organ is also younger sibling who has not yet reached organ, is he allowed to place himself However, there is no causal link NHBD protocols is halachically prohib- remain to be considered: 1. Is there an in sakkanah, and there is a mitzvah of his Bar Mitzvah. Both the younger sibling on a recipient list and thereby be eligi- between putting one’s name on an ited.16 (Note, however, that only three obligation on a donor to authorize the lo ta’amod al dam rayecha. Indeed the and his parents want the removal of the ble to receive the necessary organ if a organ list and a donor’s death. Given percent of transplants involve NHBDs.) removal of his organs after his death? risk to the patient if he doesn’t get an extra kidney for transplantation. compatible donor is found? There are the realities that the demand for After all, once a person is dead he is organ is likely to be much greater than Nevertheless, given the reality that this essentially two halachic issues: 1. deriv- organs outstrips the supply, and even if III. Donations exempt from mitzvot. Does the family that to the donor who provides one. would pose a sakkanah to the younger ing benefit from a cadaver; 2. being an a given individual takes his name off from the Dead have an obligation to use organs with- Am I permitted, or even obligated, child and that he could not be obligated accessory to, or the facilitator of, the the list, the organ will be removed out the decedent’s consent? What to put myself at mortal risk in order to to place himself in danger, some posekim illicit termination of life. anyway, a decision to participate does 23 ertain organs or body parts are about over his objection? potentially save the life of another? would not allow the donation even if the • Benefit from a Cadaver: It is for- not cause or facilitate a death that retrievCable from persons who are clearly 2. Can organs be donated to non- There is a machloket (controversy) minor consents.30 Nor could the parents bidden to derive benefit (hana’ah) would otherwise not occur.38 If the dead under all halachic criteria, and Jews?24 among the posekim regarding the mat- consent on his behalf. The parents’ right from a met.32 Nevertheless, it would death will occur with or without a there is no issue of retzichah (murder). 3. What is pikuach nefesh? Cornea ter. The Talmud Yerushalmi states that to make medical decisions for their child is appear that this rarely, if ever, would given recipient’s participation, there is These organs include skin and corneas. transplants can prevent blindness but a one is obligated to place himself in limited to decisions that benefit the child. pose a significant halachic impedi- no exclusionary principle that would Generally, Jewish law prohibits dis- person can live without sight. Similarly, potential sakkanah in order to save A parent is not authorized to endanger ment. First, to the extent a transplant prohibit benefiting from the transgres- section of corpses, autopsies or the skin grafts are not always essential for someone who is presently in definite one child in order to save another. is necessary for pikuach nefesh, it is sion after the fact.39 removal of body parts.17 This is consid- survival. In cases where the recipient can sakkanah, but such a ruling is not This should not be confused with the amply clear that the prohibition Although God is the ultimate source ered a desecration of the dead (nivul survive without the organ, would there explicitly cited in the more authorita- well-known Ayala case. Ten years ago, a against hana’ah would be superseded. of all healing, we are commanded to do hamet), a violation of the positive mitz- not be a prohibition of nivul hamet? tive Talmud Bavli. The posekim debate young woman needed a bone marrow Even corneal transplants have been what we can to alleviate illness, misery vah of burial and a source of anguish Posekim have generally been lenient in whether the Talmud Bavli would agree transplant. There was no suitable donor validated because of the potential life- and suffering.40 The concept that and humiliation to the soul of the this regard, but each proposed use must with the Talmud Yerushalmi’s in the registry nor were her parents threatening dangers of blindness even human intervention via new technolo- departed, which will be unable to find be considered on its merits.25 premise.27 The consensus appears to compatible donors. The parents decided in one eye.33 Second, the late Rabbi gies somehow constitutes an impermissi- repose.18 Nevertheless, like virtually all be that one is not obligated to put to try to conceive a child (even though Isser Yehuda Unterman, a former chief ble usurpation of Divine prerogatives is of the other restrictions of the Torah, IV. Live Donors oneself in potential sakkanah to save this necessitated the reversal of a vasec- rabbi of Israel, ruled that since the foreign to the spirit of the Torah, which these prohibitions yield when their vio- another, but to do so is laudable and tomy) on the chance that the child derived benefit from the organ occurs sees mankind as God’s collaborator in lation can save a life (pikuach nefesh).19 Organ donations are not only from meritorious, particularly if the danger might be the proper genetic match. when it is attached to a living body tikkun olam.41 Nevertheless, the license General anatomical experimentation the dead or the near dead. Live donors to the rescuer is relatively slight and Happily, that was the case; marrow was and begins to function, “benefit,” as granted to man must be exercised pur- or “leaving one’s body to science” does can contribute as well. Since human commensurate to other risks that he withdrawn from the baby shortly after such, is not derived from that which is suant to the limitations and conditions not qualify as pikuach nefesh even beings can live with one kidney, one can commonly assumes (e.g., driving, fly- birth and, over a decade later, both sis- dead but from tissue that is alive. imposed by its Grantor. These limita- though information that could save a donate his second kidney while alive. ing, et cetera).28 Thus, live organ ters are doing fine. While ethicists Third, there are some views that per- tions can be ascertained only through Fall 5764/2003 JEWISH ACTION Fall 5764/2003 JEWISH ACTION Although God is the ultimate source of all healing, we are commanded to do what we can to alleviate illness, misery and suffering.

the wisdom and guidance of our great and Minchat Yitzchok V, no. 7. in order to keep his organs “fresh.” Such since a dead person does not have an oblig- In any event, under the Uniform 25. See Seridei Aish II, no. 120 (original edi- posekim. May we have the wisdom to 9. See K.G. Karakatsanis and J.N. non-therapeutic invasion of a patient who is ation to rescue another. See Binyan Tzion Anatomical Gift Act enacted by all fifty tion); II, no. 93 (new edition) (blindness is a life- seek and follow their directives. JA Tsanakas, “A Critique on the Concept of not even brain dead may hasten death. nos. 170-171. (Rabbi Yaakov Ettlinger states, next-of-kin cannot authorize organ threatening condition that qualifies as pikuach Brain Death,” Issues of Law and Medicine, 15. In some cases of terminal illness, there would permit such removal if the donor donation where the deceased objected. nefesh) and Shevet Miyehudah, 313-323 (even may be no obligation to reconnect life-sup- Notes 18 (fall 2002): 127. gave his consent before death.) In any case, 24. Rabbi Tendler asserts that one is blindness in one eye constitutes pikuach nefesh). port once it is discontinued. But this is 1. Iggerot Moshe YD II, no. 174. 10. See Yoel Jakobovits, “Brain Death Rav Auerbach has indicated that the view obligated to donate organs to save lives 26. To a lesser degree, this is also true immaterial to the discussion in the text. The 2. While survival rates for organ transplants and Heart Transplant: The Israeli Chief of Binyan Tzion is not to be followed. See even if the probable recipient will be a for lungs. cessation of vital functions cannot be regard- have risen dramatically, they vary from organ Rabbinate’s Directives,” Tradition 24 Nishmat Avraham YD 349, p. 264. non-Jew, since all mankind is created in 27. The Beit Yosef, Choshen Mishpat 426, (summer 1989): 1-14. The RCA’s position ed as irreversible as long as the functions 20. This is the famous ruling of the the image of God. However, given the quotes the Talmud Yerushalmi’ s ruling that to organ. See can be found in Marc Angel, “The RCA could be restored by life-support even if Noda B’Yehudah II, YD no. 210, who fact that nivul hamet is an issur deOraita one is obligated to expose oneself to possible and . Healthcare Proxy”, Jewish Action (spring there is no obligation to do so. If potential requires choleh l’faneinu—that the recipi- that can only be set aside for pikuach danger in order to extricate another from cer- 3. According to a Gallup Poll, while 1992): 62, and in a document on the reversibility means the donor is alive, ent be “in front of us.” nefesh and that pikuach nefesh of a non- tain danger. But this rule is not quoted by eighty-five percent of Americans support RCA web site. Many rabbanim who are removal of organs would be overt homicide. 21. See Chazon Ish, Oholot 22:32; also Jew does not authorize violations of Torah either the Shulchan Aruch or Rema. According organ donation, less than fifty percent members of the RCA, however, do not fol- 16. Rav Auerbach originally ruled that Rav Auerbach cited in Nishmat Avraham law, how could saving a non-Jew justify to Sema and Pitchai Teshuvah, the Talmud would actually consent to donating a loved low this position. one may take a brain-dead patient off a res- YD 349:1 (2), p. 257. corpse desecration? A number of points Bavli disputes the Yerushalmi’ s premise and one’s organs when given the opportunity. 11. See . Rav pirator, determine there is cessation of the 22. For simplicity, I am assuming in the might be suggested, none of which are the halachah follows the Bavli. See also Among Jews—of all affiliations—the per- Moshe’s responsa on the brain death issue are: heartbeat and wait as little as thirty seconds, text that the operative justification for conclusive: 1. If Jews don’t give to non- Teshuvot Radvaz, no. 627. Others permit (but centage is even lower. Iggerot Moshe YD II, nos. 164, 174; YD III, after which the patient may be declared removal of organs is pikuach nefesh, and in Jews, there is a possibility that non-Jews don’t require) self-endangerment if the person 4. As of February 2002, there was a no. 132 and Choshen Mishpat II, nos. 72-73. dead. See Assia 14 (Tevet 5755): n. 1-2, pp. the absence of pikuach nefesh, there might be won’t give to Jews and future Jewish lives to be rescued is a superior talmid chacham but need for 79,523 major organs with 12. See Jewish Action (spring 1982): 126- 13-15. Subsequently, he retracted this ruling prohibitions of desecration and violation of will thereby be endangered. See Steinberg, prohibit such endangerment if the rescuer is approximately 23,000 organs available for 131; Nishmat Avraham YD 339; (app. vol.), and required a waiting period of five or six the duty of burial. The existence of these pro- Entsiklopedyah, 31: 2. There is a possibili- greater. Pitchai Teshuvah YD 252:1 in the transplantation. YD 339; J. David Bleich, Time of Death in minutes following the cessation of cardiac hibitions, even in the absence of pikuach ty that the recipient will be Jewish and name of Teshuvot Yad Eliyahu, no. 43. 5. Sanhedrin 37a. Our standard texts limit Jewish Law (1991) and Journal of Halacha activity before organs could be removed. nefesh, is not always clear-cut, particularly even if that possibility is unlikely, the laws Lehalachah, we permit altruistic volunteering this to “Yisrael”—a Jewish soul—but see and Contemporary Society 17 (spring 1989) Letter of Av 5753, cited in J. David Bleich, with respect to donating skin and corneas of pikuach nefesh are not limited by the regardless of the rescuer’s status but don’t Shinui Nuschaot printed in the Vilna (symposium including Rabbi Tendler’s view.) Contemporary Halakhic Problems 2, (New where, for a variety of reasons, choleh principles of rov (assuming majority sta- compel it. See Iggerot Moshe YD II, no. 174 Mishnayot, which cites manuscripts in which 13. It is never halachically permitted York, 1983), 348, n. 56. l’faneinu may not be required. See the discus- tus). See, e.g., Shulchan Aruch OH and Aruch Hashulchan CM 421:4. the limitation to Yisrael does not appear. to terminate life regardless of the Note that even the first ruling permitted sion in Avraham Steinberg, Entsiklopedyah 329:2:3. Removal of internal organs may 28. See Iggerot Moshe YD II, no. 174 6. Nor should techiyat hameitim be a patient’s wishes, his suffering or the qual- a short waiting period only because there Hilchatit Refuit 2, (5751): 191-243. not constitute nivul hamet on a Torah and Yechava Daat III, no. 84. concern. Certainly, if halachah permits the ity of his existence. There are, however, was a clinical diagnosis of brain-stem 23. It is conceptually difficult to say level because, at least in some cases, the 29. One must differentiate, however, removal of organs, such removal cannot some situations where there may be no death, which in and of itself would be a that a person is obligated to donate organs external appearance of the body remains between organ donation and donation of affect the donor’s ability to experience religious obligation to prolong life. strong indicator of the permanent destruc- to save a life since at the time the organ intact; 4. From the perspective of the blood or bone marrow. In the latter physical resurrection. Even if the body was While retzichah is never allowed, there tion of respiratory capacity. Where the dis- will be used, the donor is dead and there- donor and his family, the actual desecra- examples, there are no significant risks. buried intact, by the time of resurrection it may be some leniency in not providing connected patient is not brain dead, it is fore exempt from mitzvot, although Iggerot tion of the corpse is being done by the As such the imperatives of lo ta’amod will have decomposed. Moreover, the certain forms of medical intervention. obvious that death could not occur until Moshe YD II, no. 174 and Yabia Omer III transplant surgeon and his team. The would seem to make such contribution kedoshim who perished in the crematoria This is a complicated and fact-sensitive enough time elapsed that loss of function YD, no. 23 apparently so rule. However, donor has no way of knowing who the mandatory, at least where the potential will undoubtedly experience the merit of area not susceptible to easy generaliza- could never be restored. the family could have such an obligation. transplant surgeon is and under Jewish recipient is Jewish. Nevertheless, even resurrection. Techiyat hametim is a super- tion. See, for example, Nishmat Avraham, 17. Shulchan Aruch YD 349:1 and com- Such an obligation could exist even where law, could presume that he will be non- here, there are a number of limiting fac- natural phenomenon that does not depend app.; YD 339, pp. 151-157 as well as mentaries. There is an argument whether the decedent did not give consent or even Jewish, at least in the United States. A tors: 1. One is not obligated to submit to on the physical body being preserved Iggerot Moshe YD II, no. 174. To the these prohibitions apply to a non-Jewish over his objection. Taken to an extreme, non-Jew does not have a prohibition of general testing to have one’s name intact. But cf. Tzitz Eliezer XIII, no. 91 extent halachah recognizes a distinction cadaver. Compare Teshuvot Chatam Sofer anyone would halachically have the right, nivul hamet even towards a Jewish corpse. entered into a registry because there is no who suggests otherwise. in limited circumstances between active YD, no. 336 with Rabbi Avraham Yitzchok and indeed the duty, to appropriate a Accordingly, the only sin the family is designated choleh l’faneinu; 2. Even if 7. See my article, “The Brain Death retzichah and nonintervention, there is a Kook, Daat Kohen no. 199. See also Tzitz corpse in order to obtain life-saving mate- committing is authorizing desecration, there is a choleh l’faneinu, one need not Controversy in Jewish Law,” Jewish Action further difficulty in ascertaining whether Eliezer X, chap. 9, no. 25; Ramban, Deut. rials. Nevertheless, the Binyan Tzion, nos. which may be a rabbinic prohibition assume that one’s marrow or blood is (spring 1982): 61 and an addendum in the the withdrawal of life-support that a 21:22 and discussion at note 34. 170-171, rules that because the laws gov- (amira l’akum) that can yield for the suitable since the probability is that it is summer 1992 issue: 78. patient is already receiving qualifies as 18. See discussion of these reasons in erning kavod hamet are designed to protect pikuach nefesh of even a non-Jew. not; 3. Even if there is a choleh l’faneinu, 8. See Shulchan Aruch YD 339:1 and active retzichah or nonintervention. Rav Nishmat Avraham YD 349:1 (1-2). the honor of the deceased, who does not All of these rationales are questionable one is not obligated to forego significant the Rema. Whether there is a mitzvah to Shlomo Zalman Auerbach’s pesak cited in 19. See Noda B’Yehudah II, YD no. 210; have the obligation of pikuach nefesh, even and need further analysis. It should be financial loss (loss of employment) or prolong the life of a goses is a matter of note 16 suggests the former but the mat- Chatam Sofer YD, no. 336; Chazon Ish, pikuach nefesh cannot justify nivul unless noted that under the Uniform Anatomical more than twenty percent of one’s net dispute. All agree, however, that a goses ter is far from settled. Oholot 22:32; Iggerot Moshe, YD II, no. the met consents. (But cf., Nishmat Gift Act a donor can limit his donation to a worth to save another. Nevertheless, even cannot be affirmatively killed even to save 14. Yet a third problem is that coolants 174 and Yabia Omer III, YD, no. 23. Avraham YD 349, p. 264, who quotes Rav specific individual or even to an ethnic or with all these exclusions, donation of the life of another. See Iggerot Moshe YD and anticoagulants are injected into the Some, however, maintain that corpse dese- Auerbach to the effect that we don’t follow religious group though the latter is frowned blood and marrow may sometimes be II, no. 174; Tzitz Eliezer X, no. 25 (25) patient’s body while he is still on life-support cration is prohibited even to save a life the ruling of Binyan Tzion.) upon in the organ donation community. halachically required while donation of

Fall 5764/2003 JEWISH ACTION Fall 5764/2003 JEWISH ACTION A parent is not authorized to endanger one child in order to save another.

organs would never be. See Shevet Levi V, 39. An analogy would be the permissibili- no. 219; Bleich, Contemporary Halakhic ty of utilizing the scientific data derived from Problems 4, (New York, 1995), 285-287. Nazi experimentation. Although the experi- But cf. Tzitz Eliezer XVI, no. 23. mentation itself was barbarous, once the evil 30. See Rabbi Yitzchok Zilbershtein, act is done one is permitted to derive benefit Halachah U’Refuah 4, (5745): 156-157. from whatever useful good it might provide. But see Rav Moshe Hirschler, Halachah Bleich, Contemporary 4, p. 231. U’Refuah 2, (5746): 126 who writes that an 40. Baba Kama 85a. exception might exist where the recipient is 41. See Rabbi Joseph B. Soloveitchik, someone who provides care and sustenance “The Lonely Man of Faith,” Tradition 7, no. to the minor or incompetent, e.g., a parent. 2 (1965): 5-67. 31. See Bleich, Contemporary 4, pp. 301-309. But cf. Nishmat Avraham (app. *Readers interested in obtaining more vol.), CM 243:1. comprehensive endnotes should contact 32. Shulchan Aruch YD 349:1. the Jewish Action office. 33. Shevet Miyehudah, 313-323. 34. Shulchan Aruch YD 349:1 rules that the prohibition against benefit does apply to non-Jewish cadavers but Pitchai Teshuvah YD 349:1 suggests that the prohi- bition is only rabbinic and, as such, can be waived even in cases of non-life threatening illness. See Iggerot Moshe YD I, no. 229 (6). The Gra in his commentary to YD 349:1 cites the view of Rashba that hana’ah from a non-Jewish corpse is permitted. See also Mishnah L’Melech, Hilchot Avel 14:21. 35. There are two other reasons why at least in some cases there may not be a prob- lem of deriving benefit. First, the use of cadaver organs for transplantation might be considered “not in the ordinary manner of benefit” (shelo kederch hana’ah) and, there- fore may be permissible. See Teshuvot Radvaz II, no. 548 and Rabbi Tzvi Pesach Frank, Har Tzvi YD, no. 277. But see com- ments of Rabbi Akiva Eiger, YD 349:1 and Iggerot Moshe YD I, no. 229 (3). See also Tzitz Eliezer XIV, no. 84. Second, in the case of skin grafts, some posekim rule that there is no issur hana’ah at all. See Tosafot, Niddah 55a, s.v. Shema and Yabia Omer YD III, no. 23. Most, however, rule that deriv- ing benefit from skin is prohibited. Ibid. 36. See Nishmat Avraham (app. vol.) YD 339, pp. 134-150. 37. See, e.g., Rambam, Hilchot Rotzeach 2:2. 38. Rav Auerbach rules, however, that one is permitted to be placed on a recipient list only in countries where a majority of the population is not Jewish. See Nishmat Avraham (app. vol.) YD 339, p. 134.

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