The Search for Organs: Halachic Perspectives on Altruistic J Med Ethics: First Published As 10.1136/Jme.2004.008169 on 29 April 2005

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The search for organs: halachic perspectives on altruistic J Med Ethics: first published as 10.1136/jme.2004.008169 on 29 April 2005. Downloaded from giving and the selling of organs J D Kunin ...... Does Jewish law prohibit the sale of organs and should it encourage altruistic donation of organs?

rgan transplantation has now Abstract evolved to be standard and life Osaving therapy for a wide variety Altruistic donation of organs from living donors is widely accepted as a virtue and of illnesses. One of its major limitations, even encouraged as a duty. Selling organs, on the other hand, is highly controversial however, is a shortage of donor organs. and banned in most countries. What is the Jewish legal (halachic) position on these Over the last ten years, the need for issues? In this review it is explained that altruistic donation is praiseworthy but in no organs has grown nearly five times way obligatory. Selling organs is a subject of rabbinic dispute among contemporary faster than the number of available authorities. donors. The number of patients dying while awaiting transplantation in the United States alone is estimated to be 6000 annually.1 Although brain stem the following pages both of these ethical medieval codifiers of halacha (Rosh,4 dead donors are a critical source of dilemmas will be examined from a Bava Metzia 62a) rules according to donation, the donor pool is insufficient halachic perspective. Rabbi Akiva.4 Rabbi Moshe Feinstein and other means of procuring organs are of the modern era rules that the halacha 5 continually being sought. These sources ALTRUISTIC DONATION unequivocally follows Rabbi Akiva. include organ harvesting from non- It is widely assumed that saving human If this is so, however, what of the beating heart donors and from living life is an absolute value in Jewish law. policeman or fireman or soldier who healthy adults. The latter is the subject Saving another life is indeed a mitzvah risks himself for the sake of another? In of this paper. (commandment) of the Torah as fact, there are clear examples of self Organ procurement from the healthy Maimonides states: ‘‘Anybody who is sacrifice in the Bible and the Talmud donor may be divided into two cate- able to save someone else and fails to do that seem to contradict this prohibition gories: 1) altruistic giving in which there so transgresses the mitzvah of ‘Do not on sacrificing one’s own life for another. is no monetary reward, and 2) selling stand idly by the blood of your The most famous example of sacrificing organs for profit. In the ethical litera- brother’ ’’.2 This being so, perhaps it one’s own life is the suicide of King ture, altruistic donation is universally would not only be allowed to give an Saul. Suicide is considered a subcate- accepted and widely praised as a virtue. organ to save a fellow human being but gory of murder by halacha and is http://jme.bmj.com/ Healthy persons, usually relatives of end would be mandatory to do so to fulfil unequivocally prohibited. There is con- stage renal failure patients, have been this Torah commandment. The problem siderable controversy among the author- donating kidneys for decades. This is is that in the case of donating an organ, ities whether King Saul was acting well accepted medically because it there may be conflicting obligations that properly in committing suicide. One entails extremely low risk to the donor would overrule the mitzvah to save authority concludes that King Saul and has a high success rate for the another’s life. One such potential con- may have committed suicide in order 6 recipient. Although donation of a lobe of flict is the mitzvah to preserve one’s to save the lives of his fellow Jews. on September 26, 2021 by guest. Protected copyright. a liver or lung carry higher risk to the own life (Maimonides,2 ch 11 p 4).3 What emerges from this debate is a donor than does a donor nephrectomy, Inclusive in this mitzvah is the prohibi- principle that self sacrifice may be advances in surgical care have resulted tion of placing oneself in danger. With permissible if it is for the sake of saving in sufficiently low risk to make donation this potential conflict, which mitzvah one’s country, or, in practical terms, of these partial organs from living takes precedence? The Talmud records a even the saving of a community—that volunteers medically acceptable. Unlike dispute between Ben Peturah and Rabbi is, many lives. altruistic donation, however, the prac- Akiva.4 A case of two men dying of thirst The question with regard to organ tice of selling organs is banned in the in the desert is brought before the sages. donation is, however, much more vast majority of countries and its ethical One of them has a jug of water that is restrictive. Here, the issue is not sacrifi- status is very much open to question. sufficient to get him alone to safety. If cing one for the many, but one indivi- In Jewish law (halacha), these meth- they share the water, however, they will dual sacrificing for the sake of another ods are of particular interest because each live a little longer, but they will individual. It is in such a circumstance donation from brain dead patients is both eventually die in the desert. Ben that the above quoted talmudic rule, highly controversial. (Publication is Peturah rules that the owner of the jug ‘‘Your life takes precedence over your pending of a paper by myself on this should share his water because other- friend’s,’’ might apply and one would subject entitled: Brain death: reconsidering wise he would be denying his friend not be permitted to donate the organ. the rabbinic opinions in light of current temporary life, and thus he will be This principle was codified into law in medical knowledge.) From the viewpoint hastening, albeit indirectly, the death the modern era by the well accepted of halacha the acceptability of either type of his friend. Rabbi Akiva rules that the 16th century responsum of Radbaz who of giving is not a simple question. Is owner may drink it all himself, stating wrote on the question of placing oneself altruistic giving a proper course that ‘‘one’s own life takes precedence over in danger to save another: ‘‘[In trying to should be encouraged? As well, does his friend’’. The Talmud leaves the save another life,] if there is any doubt halacha prohibit the sale of organs? In dispute unresolved, but one of the major of threat to [your] life, [saving another’s

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life over your own] is piety of idiocy The commandment of saving a life is a should donate an organ and refusal J Med Ethics: first published as 10.1136/jme.2004.008169 on 29 April 2005. Downloaded from because your possible danger takes higher priority mitzvah than almost all would be a great shame. Therefore, says precedence over your fellow man’s other mitzvot of the Torah. This is Rabbi Klein, the halacha says only that definite danger’’.7 emphasised by the many areas in organ donation is permissible and While this responsum may apply to a halacha where ‘‘pikuach nefesh,’’ (the should not be construed in any way as case where there is a high probability of saving of a life) overrides even stringent obligatory. In other words, such dona- danger to one’s life, the halacha is not so prohibitions such as Sabbath obser- tion, even to save a life, is above and clear cut on the question of placing vance and the fast of Yom Kippur. By beyond what is necessary to fulfil the oneself in possible but unlikely danger this reasoning the prohibition of law of the Torah. in order to save another person. The wounding oneself should probably be majority of opinions hold that when deferred for the sake of pikuach nefesh 5 Selling organs danger to oneself is unlikely there is (Feinstein, Part II, ch 174, s 4). The ethical literature is quite divided on permission but no obligation for self However, the obligations of pikuach the permissibility of selling organs. sacrifice. On the other hand, there are nefesh also have limitations. Exactly The arguments against selling organs two notable opinions that mandate how much one needs to sacrifice to include the concern that the possibility saving a person who is in definite fulfil the mitzvah of saving somebody of selling an organ may undermine a danger, even if one must put oneself in else’s life, be it monetary loss or pain poor person’s status as an autonomous possible, although unlikely, danger. and suffering, is a matter of consider- individual—that is, given the opportu- Radbaz himself, in another responsum, able halachic controversy. All agree, nity to sell an organ, a desperately poor states that so long as one’s likelihood of however, that there are limits to the person may be compelled to sell. The dying is less than 50% one is obligated obligation. No authority suggests—for permissibility to sell an organ raises the to save a person in definite danger (Ben example, that one would be required to concern that the wealthy may exploit 7 Zimra, 1582). The Jerusalem Talmud also sacrifice an organ to save another life. and coerce the desperately poor.9 teaches that it is incumbent upon some- This is above and beyond what is Deontological principles play substantial one who is only in possible danger to mandated. (Likewise, one is not man- roles in the arguments against the sale proceed and save somebody in definite dated to spend all of one’s wealth to of organs. One such line of reasoning is 2 danger (Maimonides, ch 1 p 4). save another’s life.) Therefore, the that by permitting the sale of organs, Fortunately, the concern of danger to halachic conclusion is that because of society would make the parts of human the life of the organ donor is not much the force of the mitzvah of saving beings and, by extension, people them- of a halachic problem today. In the another life, it is permissible to injure selves, commodities. This may dehuman- current state of medicine, operations to oneself but is not obligatory. So too it is ise society.10 It is argued that donation harvest a kidney are of minimal risk of permissible but not obligatory to donate should be limited to altruistic giving mortality and long term morbidity. Such an organ. because altruism is a value that ought to procedures cannot even be considered Indeed, Radbaz in his responsum be encouraged in society. By legalising ‘‘possible danger’’ in a halachic sense. cited above permits self injury to save the sale of organs and establishing a This is supported by studies of peri- another life. His emphasis is, however, commercial market, altruism may be operative mortality and long term mor- telling. In no uncertain terms he states undermined.11 Arguments that have bidity. In a US national survey, the that there is no obligation to sacrifice an been put forward in favour of selling mortality rate was measured to be a organ, even for the saving of another organs tend to be more utilitarian. The http://jme.bmj.com/ mere 0.03%. In a 20 year follow up of life. Writing on the question of a sadistic most obvious is that selling organs may patients who had donated kidneys, all murderer who gives an ultimatum, be a strategy to increase supply.12 While criteria measuring possible renal dis- ‘‘give me your arm or I will kill your it may be argued that permitting organ ease, including abnormal creatinine friend,’’ he writes ‘‘The law of the Torah sales is exploitation of the poor, the clearance, hypertension, and protein- must agree with reason and logic. How opposite can be cogently argued: prohi- uria, were similar compared to siblings.8 is it possible to make a person blind, or biting the selling of organs is depriving a Therefore, even going by the opinion cut off his hand so another doesn’t die? poor person of a legitimate means of on September 26, 2021 by guest. Protected copyright. that one may not place oneself in any Therefore, I see no reason to rule that achieving a financial goal. Finally, if the substantial danger, in the current state this sacrifice is anything but an act of purpose of banning the sale of organs is of extremely low mortality from organ piety, and praiseworthy is his lot, who is to preserve the principle of autonomy, is donation, the concern over one’s own able to perform them’’.7 there ever true autonomy? Is not danger is not sufficiently strong to This widely accepted responsum is the altruistic giving also fraught with the exempt one from the obligation of basis for the permission to donate an risk of pressure from family mem- saving another life by donating an organ to save another person. bers, thus also compromising personal organ. It would appear then that halacha It is worth mentioning that in dis- autonomy?13–15 would mandate somebody to donate an cussing the permissibility of donating an From a halachic perspective, selling organ to save another life. organ to save another person, Rabbi M S organs presents similar questions to There is, however, another potential Klein, a senior judge of the influential those mentioned above in connection halachic conflict when considering the rabbinic court of Rabbi S H Wosner of with altruistic giving. Here again, the mitzvah of saving another’s life. This is Bnei Brak, Israel, downplayed the word- primary problem is the prohibition on the prohibition on injuring oneself. ing of Radbaz that it is ‘‘an act of piety’’. injuring oneself. As was stated, the Donating an organ is by definition self He said the halacha is simply that it is prohibition on injuring oneself may be injury. Is this permissible? Again, here is permissible. Period. In current ethical lifted when fulfilling the mitzvah of a conflict between two Torah obliga- trends it is considered a great virtue to saving another life. Here, however, in tions. On the one hand there is an donate an organ. This attitude is so selling for financial gain, one does not obligation to save another life. On the pervasive that one could conclude that if have the countervailing force of the other hand, one is prohibited from self someone chooses not to donate an organ mitzvah of saving a life because this is injury. In resolving this conflict it is he or she could be considered negligent in no way the intent of the action. important to appreciate the unique in their duty. There could well be an When a new question arises, halachic strength of the mitzvah of saving a life. expectation by family members that one authorities, much like secular courts,

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rely upon related precedents and prior The P’nei Yehoshua’s understanding the permissibility of cosmetic surgery J Med Ethics: first published as 10.1136/jme.2004.008169 on 29 April 2005. Downloaded from rulings. Deriving a precedent from the of the Talmud seems to be accepted by (Feinstein,5 part II: 66). At first glance, Talmud is ideal because this great tome Rabbi Yosef Shalom Elyashiv of cosmetic surgery seems also to be a is by the far most authoritative source Jerusalem, the pre-eminent living violation of the prohibition on injuring for all of Jewish law and thought. halachic authority, who allows selling oneself. In understanding the story of The source for adjudicating the pro- of organs under restricted circum- Rabbi Chisda, Rabbi Feinstein also dis- blem of self injury is in the talmudic stances. Rabbi Yaakov Weiner of the agrees with Pnei Yehoshua. He writes tractate Bava kamma,(Babylonian Jerusalem Center of Research in that it is distorting the plain meaning of Talmud,4 tractate Bava kamma 90a, Halachah and Medicine recently asked the Talmud and the accompanying 91b), which must be studied in detail Rabbi Elyashiv this specific question Tosafot teaching ‘‘to distinguish to understand the problems involved in and relayed this answer to me. He rules between a small need and a great need. the halachic question of selling organs. It that the need must be great and the sale This distinction was never written expli- states there directly that one is prohib- must accomplish the financial goal, citly’’. So, Rabbi Feinstein asks: ‘‘How is ited from injuring oneself. The Tosafot, otherwise it cannot be considered of it permissible for Rabbi Chisda to go the classic mediaeval school of talmudic sufficient value to override the prohibi- through the field of thorns?’’. In trying commentary, teaches that even if one tion of injuring oneself. For example, if to explain the Talmud he explicitly wishes to injure oneself because of a one has a $10 000 debt that if not paid rejects the idea that the injury was not material need such as preventing mone- would result in imprisonment, and the certain—that is, he disagrees with Rabbi tary loss, one is still prohibited from sale of the kidney would result in a net Wosner on this point, and says: doing so. The Talmud itself, however, profit of $10 000, then it may be ‘‘Therefore, one needs to say that the subsequently discusses a case that authorised. If, however, the debt is prohibition of injuring oneself is only seems to take exception to the prohibi- $100 000 then a sale for only $10 000 when [the injury] is to degrade tion on wounding oneself for financial would not be permitted, as the self oneself…He walked [through the field] considerations. It relates an incident injury could not be justified by the for a need and this [in itself] was not where Rabbi Chisda, one of the sages partial benefit. In a case that was degrading and there is no prohibition. of the Talmud, needed to pass through a recorded by Cameron and Hoffenberg, One needs to say that [the actions that] field of thorns. He lifted his clothing in an impoverished man sold his kidney in are prohibited…are things that are done order to avoid irreparably damaging it. order to provide medicine for his sick for the purpose of causing distress, like In so doing he allowed his legs to be daughter.14 According to the reasoning [a mourner] wounding himself [which wounded. Rabbi Chisda in explaining of Rabbi Elyashiv, there would be an is done for the express] purpose of his actions, stated: ‘‘My wounds will even stronger argument here for approv- causing pain. This is prohibited because heal, my clothes will not’’. This incident ing the sale because there is an addi- the will and the need is the distress seems to contradict the previous ruling tional factor of saving another life. [itself] and this is degrading.’’ of the Talmud that one may not injure Other authorities, however, do not In this responsum, Rabbi Feinstein oneself. Tosafot unfortunately does not come to the same conclusion. Rabbi permits cosmetic surgery because it is directly comment on this obvious con- Wosner does not permit the sale of not the type of injury intended in the tradiction of the Talmud. The exact organs. His understanding of the story halachic prohibition on self injury—that understanding of the story of Rabbi of Rabbi Chisda is that he did not lift his is, it is not an injury intended to Chisda is pivotal in rendering a halachic garments for the express purpose of degrade, but rather to improve oneself. http://jme.bmj.com/ decision as to whether one may sell an injuring himself but rather only to avoid Of course, what Rabbi Feinstein would organ for profit. damaging the garments. Moreover, it have ruled in the question of selling an The important 18th century com- was not absolutely certain he would organ is speculative. It would seem, mentator, P’nei Yehoshua, resolves the even be injured—that is, it was only an though, that by following his reasoning, paradox by arguing that Tosafot’s pro- anticipated possibility. His goal was only he would have argued that a person hibition on self injury was for a small to avoid damaging his garments and it who submits to an operation to sell an was not necessary that he be injured in organ is definitely intending to injury

need, whereas the case of Rabbi Chisda, on September 26, 2021 by guest. Protected copyright. not directly commented on by Tosafot, order to fulfil that goal. Quite the himself and gain benefit from the injury was for a relatively great need.16 The opposite is true with the sale of an itself, as in the case of the mourner, degree of need is determined by com- organ where the benefit of the action which is clearly prohibited. In this sense paring the loss and gain in any parti- only comes from the injury itself, and it is not comparable to Rabbi Chisda cular circumstance. In the case of therefore the injury was wholly who did not require the injury to achieve Rabbi Chisda, as he himself argues, his intended. Thus, in selling an organ there his intended result of avoiding injury to property would be irreparably damaged is a direct, intentional violation of the his garments. From this perspective, he and the reversible wounding of his legs prohibition against injuring oneself. seems to agree with Rabbi Wosner. Also, was worth the relatively small suffering This is not permissible, argues Rabbi organ donation is not similar to cos- in order to save his clothes. In other Wosner. It may be noted that this metic surgery where the injury itself is words, the self injury was justified approach is in conflict with the opinion for the good of the person undergoing because of the greater loss of his of P‘nei Yehoshua who explicitly allows the cosmetic surgery. With organ dona- clothing. Following this line of logic a for intentional self injury so long as the tion, while a person may profit mon- general principle may be derived—that need is great. etarily, the injury itself cannot be is, the prohibition on self injury is The late Rabbi Moshe Feinstein, construed in any way as benefiting relative and depends on the parti- another of the great contemporary him. After all, it results in the loss of cular circumstance. Understanding the halachic authorities, seems to take a an organ, pain from the surgery, scar- Talmud in this way, we may rule that third approach. While he wrote exten- ring, etc. I would conclude, with trepi- for a poor person with a dire need and sively on halachic questions in medicine, dation, that Rabbi Feinstein would also who can substantially profit from selling he did not directly rule on the sale of prohibit organ donation for profit. an organ, perhaps the self injury is organs. Some indication of his thinking, There remains another potential argu- worth the resulting reward and may be however, can be appreciated from a ment in favour of selling organs. When halachically acceptable. related responsum on the question of all is said and done, lives are saved by

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selling organs. So the question may be Rabbi Wosner, however, and in keeping be permissible by some rabbinic author- J Med Ethics: first published as 10.1136/jme.2004.008169 on 29 April 2005. Downloaded from posed, if the sale of an organ results in with the analogous case of the scribe ities, from a halachic perspective it would saving of a life, even if that is not the writing, if his intention is purely for nevertheless require adjudication on a intention of the donor, would it not be profit, it would be problematic and case by case basis, as is true in all areas permissible? That is to say, just as with perhaps forbidden. of Jewish jurisprudence. In this way altruistic giving where the prohibition In summary, there is a difference of potential abuse of such a public policy on self injury may be lifted for the sake opinion among the great halachic author- could be averted. of pikuach nefesh, why should it not be ities on the permissibility of selling J Med Ethics 2005;31:269–272. lifted here too if it results in saving a organs. Certainly, a major figure in the doi: 10.1136/jme.2004.008169 life? Does the intention of the donor person of Rabbi Elyashiv allows sale really matter when in the end a life is under specific circumstances and one saved? As mentioned above, this ques- is surely on solid footing in relying on Correspondence to: Dr J D Kunin, 93 Hamaysdim Street, Zichron Yaakov 30900, tion is also debated in the secular this opinion. As is recorded by A S Israel; [email protected] literature, with some saying that main- Abraham, the late Rabbi Shlomo taining the spirit of altruism is impor- Zalman Auerbach, another of the great Received 26 January 2004 tant and others, adopting a more contemporary authorities, seems to In revised form 29 March 2004 utilitarian perspective, saying the intent agree. He writes that even if a donor’s Accepted for publication 4 April 2004 of the donor should not matter. primary motive is for profit, the dona- This question of profit affects many tion is permissible because it saves a 17 areas of halacha. Does a mitzvah remain life. It cannot be overemphasised, REFERENCES a mitzvah even if one profits from its however, that in Jewish law even if this 1 Sade RM, Kay H, Pitzer S, et al. Increasing organ performance? One example offered by more lenient opinion is used, in practice, donation: a successful new concept. the Code of Jewish law is the question a legislated policy permitting organ sale Transplantation 2002;47:1142–8. of whether a scribe who writes sacred would not obviate the need for an 2 Maimonides. Mishnah Torah, Laws of murder. documents such as a Torah scroll, but is individual to obtain a rabbinic approval, 3 Caro Y. Shulchan Aruch, Yoreh de’ah. 116:5. 4 Babylonian Talmud: tractate Bava metzia 62a. also making his livelihood from this, is making certain that the need was 5 Feinstein M. Igrot Moshe, yoreh de’ah: part I: considered to be involved in a mitzvah. sufficiently great; that the goal was 145. If the scribe writes when no money is achievable in order to justify the prohi- 6 Luria S. Yam shel Shlomo, Bava kamma:ch8: 91a: s 59. involved this is unquestionably consid- bition against injuring oneself, and that 7 Ben Zimra D. Responsas of Radbaz: 1052. ered a mitzvah. This is true to the extent the person was physically fit so there 8 Najarian JS, Chavers BM, McHugh LE, et al. 20 that so long as he is writing he is would be no concern about any health years or more of follow up of living kidney released from any other daily obligation consequences. Moreover, as Grazi and donors. Lancet 1992;340:807–9. 9 Demonico FL, Arnold R, Scheper-Hughes N, et al. such as praying. Is the same true if he is Wolowelsky have written, the ultimate Ethical incentives—not payment—for organ earning money for his writing? The permissibility of selling organs ‘‘is inex- donation. N Eng J Med 2002;346:2002–5. Code of Jewish law rules that so long tricably connected to solving a series of 10 Joralemon D, Cox P. Body values. Hastings Cent Rep 2003;33:27–33. as he has some intention that he is pragmatic problems, such as creating a 11 Matas AJ, Garvey CA, Jacobs CL, et al. Non- performing a mitzvah, the fact that he system that ensures that potential ven- directed donation of kidneys from living donors. may also be profiting from his action dors and donors are properly informed N Eng J Med 2000;343:433–6. 12 Council on Ethical and Judicial Affairs of AMA. does not nullify the mitzvah. If, how- and not exploited …[and] regulation of http://jme.bmj.com/ Financial incentives for organ procurement. Arch ever, he is writing with no substantive payments so they reasonably reflect Int Med 1995;155:581–8. intention of performing a mitzvah, then compensation for pain and suffering’’.18 13 Sade RM. Cadaveric organ donation. Arch Int his motivation for profit may well cancel One such system has recently been Med 1999;159:438–42. 3 19 14 Cameron JS, Hoffenberg R. Ethics of organ the mitzvah (Caro, Shulchan Aruch, proposed in Israel where there would transplantation. Kidney Int 1999;55:725–32. Orech chaim 33.8). So too, if someone be a central registry in which people 15 Radcliffe Richards J, Daar AS, Guttmann RD, wishes to donate an organ and get some could sell organs, and where direct et al. The case for allowing kidney sales. Lancet monetary compensation, the mere fact purchase of organs would be illegal. In 1998;352:1950–2. 16 P’nei Yehoshua: tractate Bava kamma: 91b. on September 26, 2021 by guest. Protected copyright. that he requests some remuneration this proposed system priority would 17 Abraham AS. Nishmat Avraham 4:213. may not cancel the mitzvah of saving a be given to medical need rather than 18 Grazi RV, Wolowelsky JB. Non-altruistic kidney life. Indeed, even by the more stringent ability to pay. Again, it is worth empha- donations in contemporary Jewish law and ethics. Transplantation 2003;75:250–2. standards of Rabbi Wosner, this may be sising that even if such a policy is 19 Friedlaender MM. A protocol for paid kidney permissible. According to the decision of instituted, while in principle it would donation in Israel. IMAJ 2003;5:611–14.