Lecture dated Tu B’Av 5767

Table of Contents

• Three situations in organ donation from a living donor
• Entering a situation of possible danger in order to save another person
• Consent versus taking without consent, and the doctor’s role
• A basic premise: a person is not the owner of his own body
• The prohibition of self-injury and the distinction between medical treatment and donation to save someone else
• Donation from the dead: the prohibition of benefit and the obligation of burial
• The Radbaz: giving up an organ to save another person
• Explaining the difference between consent and coercion through the laws of theft
• Possible danger in organ donation from a living donor
• Donation from the dead and from the border of life: brain death and the moment of death
• A novel point about the Adi card: temporary life and sacrificing it to save lasting life

Summary

General Overview

The text maps out three halakhic situations in organ donation from a living donor: donation without risk to the donor, donation involving possible danger, and donation in which the donor loses his life. It distinguishes between donation with consent and taking without consent, and between the donor’s own question and the question of the doctor’s responsibility. It sets out basic premises such as the Radbaz’s statement that a person is not the owner of his own body, and the prohibition of self-injury. With regard to donation from the dead, it adds the prohibition of deriving benefit from the dead and the obligation of burial, but argues that in cases of life-saving these discussions are mostly theoretical, together with lines of reasoning such as Rabbi Yisraeli’s idea that the transplanted organ becomes “alive.” It cites the Radbaz, who rules that one is not obligated to give up an organ to save another person, but sees it as an act of piety when done willingly. It also presents the dispute among halakhic decisors over whether one may place himself in possible danger in order to save another, alongside the positions of the Mishnah Berurah, Igrot Moshe, and the Chazon Ish. Finally, it argues for a practical novel point regarding the Adi card: even if brain death is not defined as halakhic death, it may be that the discussion about the moment of death is not decisive if this is a case of temporary life and consent, because in his view a person may sacrifice temporary life in order to save another person’s lasting life. He notes an article by Rabbi Yehuda Dick in Assia that tends toward permitting organ donation from a dying patient.

Three situations in organ donation from a living donor

The text states that there is a case of donation “without risk” when no danger threatens the donor and the reasonable assessment is that everything will continue to be fine, such as kidney donation or partial liver donation from a healthy person. Still, it emphasizes that in the background there remains the question of how halakhically to define possible danger, since every surgery carries some degree of risk. It defines a second case in which the donor places himself in possible danger, and asks what level of risk counts as possible danger from a halakhic standpoint, while practically suggesting the use of standards like “the reasonable person” or “the reasonable doctor,” without any sharp criterion. It defines a third, more severe case in which the donation involves the loss of the donor’s life, and states that in the ordinary case there is no halakhic permission for a person to give up his life in order to save another person’s life, and therefore this is forbidden.

Entering possible danger in order to save another person

The text cites Hagahot Maimoniyot, in the name of the Jerusalem Talmud, as holding that entering possible danger in order to save another person is an obligation. It also notes that some interpret this as a permission and some as an obligation, but states that such an obligation certainly was not accepted as practical Jewish law. It brings that the Mishnah Berurah and other halakhic decisors rule that a person is not obligated to place himself even in possible danger in order to save another. According to most halakhic decisors, he is even forbidden to place himself in possible danger in order to save another person. It mentions more lenient opinions, such as Igrot Moshe, Rabbi Moshe Feinstein, and others who permit it, and also notes that the Chazon Ish hesitates and says that perhaps it is permitted. But certainly, there is no obligation.

Consent versus taking without consent, and the doctor’s role

The text distinguishes between a situation in which a person decides to give an organ and a situation in which “they take it from him” without his having expressed consent, and it states that when the donor is alive this is more problematic than after death or when he is “on the borderline.” It connects this to a donor card and the Adi card, and presents a further distinction that some halakhic decisors make between the discussion of whether the donor is permitted and the question of whether the doctor violates a prohibition, to the point of suggesting that under certain circumstances it would be preferable for a non-Jewish doctor to perform the procedure. It raises an intuitive difficulty with this distinction and later cites Rabbi Yisraeli’s reasoning that the doctor acts as the donor’s agent, and therefore it cannot be that the doctor would violate a prohibition in a case where the donor himself is permitted.

A basic premise: a person is not the owner of his own body

The text quotes Maimonides, who rules that “a person cannot make himself into a wicked person,” and the Sanhedrin that “we do not execute and we do not flog” based on a person’s own admission. It emphasizes that Maimonides grounds this in a scriptural decree requiring two witnesses. It cites the Radbaz, who asks why admission works in monetary law but not in capital matters, and explains in the Radbaz’s name that a person is the owner of his money, and therefore “the admission of a litigant is like one hundred witnesses,” but with respect to his body he is not the owner, and therefore his admission about his body is not the admission of a litigant. It explains that the underlying principle is that the power of credibility in monetary matters stems from his power to give a gift, whereas regarding his body he has no permission “to kill himself” or “to injure himself,” and therefore he does not have the ownership-right that would create similar credibility.

The prohibition of self-injury and the distinction between medical treatment and donation to save someone else

The text states that there is a prohibition of injuring a person, and that a person is also forbidden to injure himself, and that removing an organ is defined as injury by all opinions. It cites Maimonides, according to whom the prohibition of injury is “in a manner of aggression or humiliation,” and therefore medical treatment intended to save the patient is not called injury. It adds the example of a separate discussion in honoring one’s father and mother, namely whether a son who is a doctor may treat his father, because “one who strikes his father or mother” may be a different categorical prohibition. It emphasizes that in organ donation the donor himself is not healed by the procedure; rather, he is harmed in order to save someone else, and therefore the prohibition of injury is involved with respect to the donor.

Donation from the dead: the prohibition of benefit and the obligation of burial

The text presents two components in donation from the dead: the prohibition of deriving benefit from a corpse and its appurtenances, and the obligation to bury the dead and each and every part of him, to the point of the prohibition of “you shall not leave his body overnight” when burial does not take place. It argues that where a life is being saved, discussion of these aspects seems theoretical because “saving life overrides everything.” It adds that if the transplant is not truly for life-saving but rather for improving function, then there is room to discuss the cost of these prohibitions. It cites a line of reasoning according to which the problem does not arise because after transplantation the organ “becomes alive,” and therefore there is no obligation of burial and no prohibition of deriving benefit from it, and it attributes this to Rabbi Yisraeli and others.

The Radbaz: giving up an organ to save another person

The text cites a responsum of the Radbaz on the question whether a person is obligated to sacrifice a non-vital organ in order to save his fellow, and presents the Radbaz as rejecting the view that obligates this and calling the cutting off of an organ “a minor form of killing.” It describes how the Radbaz sees the removal of an organ as a kind of “killing the organ” and turning it into “dead” matter. It cites the Radbaz’s argument that this is one of the reasons the Sages removed “an eye for an eye” from its literal meaning, because injury is a kind of killing. It concludes that the Radbaz writes that there is no obligation here, only “an act of piety, and fortunate is the one who can withstand this,” and raises an internal difficulty: how can it be permitted with consent if the act is defined as killing?

Explaining the difference between consent and coercion through the laws of theft

The text argues that it is hard to distinguish between consent and lack of consent if the discussion concerns only the prohibition of injury or the category of “killing,” and it suggests that the distinction makes sense only if there is also an aspect of theft or violation of another person’s rights. It explains that if taking an organ without permission is seen as theft, then even saving a life does not necessarily permit theft of a kind that is not legally obligated toward rescue. It cites Rashi’s position in Bava Kamma that one may not save himself with another person’s money, and the explanation that according to those who disagree, the permission stems from the fact that another person’s property is obligated toward rescue by virtue of “do not stand idly by your neighbor’s blood.” It concludes that since a person is not obligated to give up an organ in order to save another, the organ is not “obligated” toward rescue, and therefore taking it by force remains in the category of theft. By contrast, where there is consent there is no theft, and therefore there is room to permit it. From this he explains the consensus presented in the text: it is forbidden to take an organ from a living person against his will, while it is permitted—and even a great commandment—when done willingly.

Possible danger in organ donation from a living donor

The text applies the dispute of Hagahot Maimoniyot and the halakhic decisors to organ donation involving possible danger to the donor, and states that against the donor’s will, “according to all views this cannot be done.” It presents the position that most halakhic decisors forbid donating an organ in a situation of possible danger in order to save another person, alongside opinions that permit it, such as Rabbi Moshe Feinstein, and the Chazon Ish’s hesitation. It notes exceptions in which there is a difference in the value of life between the donor and the recipient, and connects this to the discussion of “who says your blood is redder?” and to cases such as a fatally compromised person, a fetus, or a situation in which the community needs the person. This includes mention of discussions of rescue priority at the end of Horayot and examples from the Holocaust involving public leaders.

Donation from the dead and from the border of life: brain death and the moment of death

The text states that when a person is dead “certainly according to Jewish law,” and he expressed consent, “almost all the halakhic decisors permit it,” and “in practice Jewish law allows it.” But when he did not express consent, there are many halakhic decisors who forbid it even when he is fully dead. It explains that the modern problem is the removal of organs that require live functioning, especially the heart and liver, and therefore the question of brain death arises when the heart and breathing are being artificially maintained. It emphasizes that the definition of the moment of death is a value-laden normative determination and not a medical one, and cites the halakhic decisors who tie death to breathing based on Talmudic sources, as well as those who distinguish between independent breathing and breathing by machines.

A novel point about the Adi card: temporary life and sacrificing it to save lasting life

The text argues that the discussion of the moment of death is not relevant to the Adi card when there was consent, because even if the person is considered alive, this is still a situation of donation in which taking the organ causes his death, and it is parallel to giving up temporary life in order to save another person’s lasting life. It states that some halakhic decisors explicitly say that a fatally compromised person can give organs to save another even if he will die as a result, because one may sacrifice temporary life in order to save lasting life. It emphasizes that temporary life is an intermediate status for which one violates the Sabbath in order to save it according to most views, even though there are exceptional views. It compares this to the permission to undergo a dangerous operation in which one risks losing temporary life in order to gain lasting life, and adds that the novelty here is extreme because it involves the donor’s certain death, with consent, in order to save another, but the loss is only temporary life. It mentions an article by Rabbi Yehuda Dick in Assia on the topic of “Organ donation from a dying patient to save human life,” which tends to permit it, and briefly raises Rabbi Yisraeli’s suggestion that the doctor is exempt from concern over prohibition because he is acting as the donor’s agent, alongside side questions such as the family’s status in granting permission.

There were a few different situations here. One situation is when there is no danger at all to the donor. If he gives an organ to someone else, say a kidney donation or liver donation, and I’m a healthy person, and the risk involved in removing the organ from me—the reasonable likelihood is that everything will continue to be fine. I can live without it too. There is a second situation, where I place myself at risk, a doubtful risk. Again, the question is always what percentage or what level of risk is called a doubtful danger from a halakhic standpoint. Because every surgical procedure carries some risk, certainly when you remove an organ from a person. Maybe donating blood used to be somewhat dangerous? Yes, maybe a hundred years ago. Today I think donating blood no longer enters that category, but donating some internal organ, I think in any case—even if the assessment is that a person can continue living—it’s clear that some risk is involved. Meaning, there’s always some risk, so underlying all of this is also a question of how you determine in general what counts as a doubtful danger according to Jewish law. Here there are no clear determinations except… except for some attempt to see how what’s called the reasonable person relates to the matter. How does the reasonable person relate to it, or maybe the reasonable doctor in this context, I don’t know. There really isn’t one single criterion here, but it’s clear that there are two such states and they are different halakhically. Meaning, there is a state called donation without risk, and a state called donation with risk. The third state is the one that is more difficult halakhically: to donate and lose one’s life. Of course in this context, when a person donates an organ in order to save someone else, according to Jewish law, in the ordinary case there is no permission at all to do such a thing. Meaning, not only is he not obligated—there is no permission at all; he cannot do it; it is forbidden for him to do such a thing. A person cannot give up his own life in order to save the life of someone else. That’s the rule in Jewish law. And in Hagahot Maimoniyot, he brings in the name of the Jerusalem Talmud—although in the Jerusalem Talmud itself not everyone agrees that that’s what it says—but he brings in the name of the Jerusalem Talmud that entering into a doubtful danger in order to save another person is obligatory. Some interpret that it is permitted, some interpret that it is obligatory. In any case, the view that it is obligatory certainly was not ruled as Jewish law. Therefore, the practical Jewish law ruling is also—as the Mishnah Berurah writes, and others—that even for a doubtful danger a person is not obligated to place himself into danger in order to save another. According to most halakhic decisors, he is even forbidden to place himself in doubtful danger in order to save another. There are some halakhic decisors—Igrot Moshe, for example, Moshe Feinstein, and others—who say that it is permitted. The Chazon Ish also hesitates about this and says that perhaps it is permitted. Certainly not obligatory, but perhaps permitted. Those are the three situations. In all three of these situations, one distinguishes between a case where I decide that I want to give the organ, and a case where they take it from me and I did not express consent. Of course, when I’m still alive that’s much more problematic than when the person has already died. When a person has already died, or is on the borderline—we’ll talk about that—then there is no one left to ask. So the question is whether I can take the organ from him and give it to someone else or not. And here you can no longer ask him. So of course one must distinguish between a case where he expressed consent while alive and a case where he did not express consent. I’m just laying out the broad map of the field of discussion. These are the issues I’ll try to discuss step by step, and before that maybe a few basic introductions. This of course relates to a donor card, the Adi card—what do they call it?—that people carry today, where a person carries a card saying that if he gets into a car accident or something happens to him, organs can be taken from him for transplants in order to save people. The basic data that serve as the framework for the discussion are as follows. First datum—sorry, before I get to the data, just one more point about the framework. I said I distinguished between a case where the person agreed and a case where the person did not agree. The halakhic decisors also, at least some of them, distinguish between the discussion regarding the donor himself and the discussion regarding the doctor. Because even if, say, for the donor himself it is permissible in some way, maybe the doctor is violating a prohibition. Who says the doctor is allowed to do such a thing? Certainly if the person did not agree. There are halakhic decisors who in certain circumstances say that it is preferable to do this through a non-Jewish doctor. That is very surprising at first glance—meaning, I’m allowed to do it, but I should make sure that the surgeon is not Jewish. It sounds strange to me, but there are decisors who say such a thing in certain circumstances. All right, the data that form the framework for the discussion are the following. First datum: Maimonides writes that a person cannot incriminate himself—I’ll immediately explain the connection to our discussion—that a person cannot incriminate himself, “a person does not make himself wicked,” as it says in the Talmud. Maimonides rules this as Jewish law: it is a scriptural decree that a religious court does not put a person to death and does not flog a person based on his own admission, but only on the basis of two witnesses. And the fact that Joshua killed Achan and David killed the Amalekite convert based on their own admissions—this was a temporary emergency ruling or the law of the kingdom. But the Sanhedrin does not put to death and does not flog one who confesses to a transgression, and so on. So it is forbidden; a person does not make himself wicked. The Radbaz there explains—by the way, the Radbaz deals with this issue quite a bit; he is a very fundamental source, both this Radbaz and the Radbaz in the responsa, several responsa of the Radbaz on this issue, one of the first and central halakhic decisors who dealt with this topic. The Radbaz there asks why indeed a person cannot make himself wicked. Why can’t he testify about himself that he committed a transgression and so on, one liable for death for example, or punishment? So the Radbaz says: against that, after all, we know that the admission of a litigant is like a hundred witnesses, and a person can testify in monetary matters, and his admission is considered like a hundred witnesses, so why if he testifies that he himself desecrated the Sabbath do we not accept that like a hundred witnesses? So the Radbaz says: because a person is not the owner of his body. A person is owner of his money, and regarding his money he can—that is the admission of a litigant. But over his body, a person is not the owner, and therefore when he admits regarding his body, this is not called the admission of a litigant. What lies at the root of this? What lies at the root of this—and this is a topic I won’t go into, just in one sentence—is that my power to make a binding admission as a litigant derives from the fact that since the money is mine, I can also give it as a gift. After all, the money is mine. So now I’m in litigation with someone else over whether I owe him these hundred shekels or do not owe him these hundred shekels. The religious court cannot forbid me simply from taking these hundred shekels and giving them to him as a gift. I have every right to do that, whether I owe him or not. So since I have the power to transfer these hundred shekels as a gift, I also have the—let’s call it the right—to be believed with any claim I have regarding these hundred shekels. And since that is so, I am believed. That does not apply when a person testifies regarding his own body. I come and testify that I desecrated the Sabbath. Desecrating the Sabbath carries the death penalty, right? The religious court would be supposed to kill me. So I’m not believed. Why, asks the Radbaz? What about the admission of a litigant? This foundation does not exist here—the foundation that I have the power to do it myself—because I have no power to kill myself. It is forbidden for me. A person is not the owner of his body. So since that is so, the foundation of admission of a litigant that exists in monetary matters does not exist in capital matters, flogging, and so on. I am also forbidden to wound myself. Meaning, all the criminal, punitive dimensions are not in my hands. One of the implications, for example: what happens with someone who admits to a fine? Someone who admits to a fine—fine is a liability that is not monetary but a financial punishment. Meaning, as opposed to a monetary liability where, say, I owe someone a hundred shekels and I have to pay it, that is a debt I have to repay; that is a monetary liability. A fine is when I don’t owe him, but they impose a punishment on me, and that punishment is financial. Not flogging and not death, but a financial penalty. So in such a case, this is not a simple admission of a litigant, because there is no litigation here over whether I owe the other person or not in the legal sense. But on the other hand, giving the money I certainly can do. In the case of a fine, even if the discussion is over a hundred shekels, I can always take the… since we’re talking about money and not self-injury or self-killing, so yes, I do have the power, and from that standpoint I have the possibility of admitting to a fine. Once the division is between money and body, why does it matter whether it is a fine? Exactly—that’s what I’m saying; that’s precisely the implication. If I were to understand—but the very initial thought? No, the initial thought was there; after I said this, then there is no initial thought. The question is whether this really is the foundation. The question is whether the basis of credibility is the fact that I can carry it out myself. If that is the basis of credibility, then indeed a fine belongs to the family of money and not to the family of punishments. If the distinction—and this is discussed by medieval authorities (Rishonim) and later authorities (Acharonim) on the whole topic—if the distinction is different, if the distinction is between criminal law and civil law, which is how it is usually understood, then it is not like that. Then the law of a fine belongs to criminal law, not civil law. Because a fine is a punishment. It’s not because I owe you; it’s not a civil dispute between us that I owe you money. It’s a criminal trial; it’s a punishment. The punishment just happens to be money rather than lashes. Then a fine would already belong to the family of lashes and death. But that doesn’t concern us right now. What the Radbaz says—and this is a very fundamental point and many cite it—is that a person is not the owner of his body. A person cannot commit suicide; a person cannot injure himself; that is forbidden. And since that is so, a person is not the owner of his body. He says this regarding the question whether a person can confess to a transgression he committed and bring punishment upon himself, but of course we are speaking about it in a completely different context, and many later authorities have already cited this Radbaz as establishing some kind of principle that a person cannot be the owner—even if the person agrees. So what if you agree? The question is whether you are allowed to. What does it mean to agree? You agree to donate an organ—an organ is not like money. Money I can agree to donate; it’s mine; I can donate it, I can refrain from donating it. But an organ—what does it mean that I can agree to donate it? Meaning, I’m just showing the implications: what does it mean to agree to donate it? It’s not mine; it’s not in my hands. Either it is permitted, or it is a commandment, or it is forbidden. If it is forbidden, then it makes no difference whether I agree or do not agree. Fine. That is the first datum that has to be remembered. The second datum that has to be remembered is that there is a prohibition against wounding, of course connected to the first datum. It is forbidden to wound a person, and a person is also forbidden to wound himself. Meaning, I am forbidden to inflict an injury on a person. The definition of injury—say, something that draws blood, something like that—certainly the removal of an internal organ is an injury by all opinions. The removal of an organ, not necessarily an internal organ, is an injury by all opinions. And since that is so, in the background of things, whenever we talk about transplantation or organ donation, what is really involved is the prohibition against wounding. The doctor or the person himself—and usually it is the doctor—apparently violates the prohibition against wounding when he takes the organ from the donor. Of course, when the doctor is treating a person and needs to remove an organ or draw blood from him and so on, there is no discussion at all. Maimonides says that the prohibition against wounding applies only in a manner of aggression or humiliation—aggression meaning a fight; “those who strive,” yes? It is clear that in a place where a person is treating, there is no issue of wounding in this context. But there are interesting issues—for example, regarding honoring one’s father and mother, there is a question whether a son who is a doctor can treat his father. There’s an issue there because he is wounding him, and regarding wounding one’s father or mother it could be that the definition is not like wounding an ordinary person. And if it were the same definition, what difference would there be between the son and someone else? After all, someone else would be able to treat the father. It is forbidden to wound anyone, not only the father. But the prohibition against wounding one’s father is a special prohibition: “One who strikes his father or mother shall surely be put to death.” It is a capital prohibition, and there the definition may be different. Not a matter of aggression or humiliation, but categorically forbidden altogether. All right? So perhaps here one might say a positive commandment overrides a prohibition, something like life-saving overrides the prohibition against wounding. No, the argument is more than that. The argument is that where a doctor does it in order to heal me, this is not wounding at all. It’s not that the prohibition against wounding is overridden because it is terribly important to save a life, but rather that where one saves life, that is not called injury at all. Injury is something harmful; something beneficial is not injury at all. So one need not get to the question of whether it is overridden or not; there is no prohibition here in the first place. That is in that context. But in the context of organ donation, after all I am doing it in order to save someone else; with regard to the person himself I am certainly wounding him by all opinions. True, maybe with his consent, maybe it is very noble of him to do it, but practically speaking I am wounding him. It is in order to save someone else, not in order to save him. So here the prohibition against wounding is already involved. Another thing involved in this discussion is the issue of taking from a living being. No, no—I’m speaking now even about donation from an ordinary living person. They take a kidney or something like that, or a lung, from a living person and transfer it to someone else. I haven’t yet gotten into the different discussions. Another thing involved here—and here of course it relates more to donations from the dead—is two things. First, there is a prohibition of deriving benefit from a dead body. It is forbidden to derive benefit from a corpse and from its accessories and from the shrouds and so on, and from a grave. Meaning, everything connected to burial involves a prohibition of benefit. So if so, perhaps there is also a prohibition of benefit from the organ when I take it. That too is discussed by the halakhic decisors. And another thing is the obligation to bury the dead. Now the obligation to bury the dead means not only to bury the body as a whole but also every single part of the body. Meaning, if his limbs were scattered, God forbid, in explosions and so on—it can happen—then clearly one must gather every piece. Strictly speaking, every olive-bulk; in practice they do it even for less than that, from the dead, because it requires burial. Meaning, every organ, every part of the dead person requires burial. It is not enough that I brought the body as a whole to burial. And since that is so, every organ I take from the dead person I am in effect not burying. So there is some problem here, that I am violating… violating “you shall not leave overnight”; it is forbidden to leave the corpse unburied overnight. Meaning, it must be buried. All right, so regarding the last two aspects—the prohibition of deriving benefit from the dead and the obligation of burial—it seems to me that the discussion is purely theoretical, although there are halakhic decisors who discuss it. I cannot understand what the discussion is at all. We are talking here about a situation where we are going to save a life. In a place where we are going to save a life, life-saving overrides everything. In the end he will be buried. He will be buried in the end, just not with it? Yes, but there is an issue of “do not leave the dead overnight,” not just that in the end it won’t be buried, but from the moment he dies he should be buried; meaning it is forbidden to delay burial. But here again we are speaking of a life-saving concern sitting on the other side. Meaning, this is not—say it’s not life-saving, say it’s saving eyesight. No, eyesight too could perhaps be considered life-saving, because perhaps one desecrates the Sabbath over eyesight. That is another whole chapter. We won’t have time here to get into the differences between the various organs, but there is definitely room to discuss different organs differently. But in the basic case, when it comes to saving life, it seems to me that the discussion is only theoretical; I don’t think it has any real significance. Indeed, if the transplant is not for literal life-saving but rather to improve function or something of that kind, then perhaps there is room to begin discussing whether it is permitted to do this at the cost of prohibitions. There is one line of reasoning that claims this whole question does not arise at all. I’m simply clearing away the side players so we can begin discussing. There is an argument saying that this issue does not arise at all. Why? Because it is no longer an organ from the dead. After it is transplanted, it becomes part of a living being. Then there is no need to bury it, and there is no prohibition on benefiting from it, because from that point on it is a living organ. I transplanted it into the body of a living person; it became part of the organism of the living person; so that’s it—it is no longer an organ of the dead person. There is no burial obligation, no prohibition of benefit, and nothing of the sort. Rabbi Yisraeli writes this, and others as well. So this matter has a few solutions, and overall, certainly in acute cases these are not the real problems here—the problems of deriving benefit from the dead and the obligation of burial. All right, now let’s really begin discussing organ donation not from the dead but from the living, from a living person. So on the face of it, really—no, assuming the donation is for life-saving, I’m speaking now about donation for life-saving. Although even that is not always true. Skin donation is fairly rare, but it is something that is constantly being examined, and with identical twins it works excellently. Someone suffers burns, and now they take pieces of skin from his identical twin brother—and many times this is not literally life-saving; it is only faster recovery, and maybe even purely aesthetic considerations, yes or no in quotation marks. Not a simple question. But I am speaking now about donation to save life, because that is the main discussion. It’s fairly limited. What? Which donations from the living? Kidneys, lung, I don’t know. Organ transplants. I’ve heard of it, but I don’t know if it literally saves life. Like bone marrow, a lobe of the liver. Right, right, right. Bone marrow—those are really the acute questions we usually talk about. Where it’s not really to save life, since many things are involved, it is much more problematic. Again, with skin it may perhaps be easier; the question is whether that is called wounding or not. In any case, let us begin with organ donation from the living. Here the Radbaz was already asked whether a person is obligated to sacrifice a non-essential organ of his in order to save his fellow. The Radbaz’s answer there is, and he writes as follows: “There are those who say that he is obligated to allow the limb to be cut off, since he does not die.” I’m obligated—after all I need to save him, no?—and I am obligated to allow my limb to be cut off in order to save him, because after all I am not dying; I remain alive. What exactly is the case? The Radbaz is long before modern medicine, right? The 16th century. Is this a theoretical discussion? No, no. What? Was there a ruling like that? I can’t imagine such a possibility. What is this? I can’t imagine it—there were possibilities that existed only then, and possibilities that exist only today. But let’s see what existed then—almost only then. They said to a person: if you do not let us cut off your hand, we kill him. They kill him. Ah, in that sense! Ah, ah. And now the question is whether you can sacrifice your hand in order to save him. Not sacrifice, but in a place where they want to kill him. Rather, it is an original question, to tell you the truth, from which we discuss these things. So yes, the questions that arise today certainly do not have clear sources. So the Radbaz rejects that. He says that cutting off a limb is like a minor form of killing. Of course there is also the consideration… no, beyond the enactment of the Sages where there is no danger to life. There are those who raise the argument that you cannot know—things can get complicated and it can lead to danger to life. After all, life-saving also overrides the Sabbath, and they discuss danger to a limb. And there are quite a few doctors today who claim that every danger to a limb is in fact a doubtful danger to life, and therefore in every danger to a limb one may desecrate the Sabbath—explicitly against the law of the Talmud. Meaning, because doctors today see the medical aspect differently, they say that medically speaking there is some danger in every danger to a limb, there is some danger to life, and there are many halakhic decisors who say that today one desecrates the Sabbath for every danger to a limb. In any event, he is speaking beyond that. He says even if it won’t lead to danger, the very removal of the limb is itself killing. Why? As I said earlier, just as there is an obligation to bury every part of the dead, of the person, then every part of the person is as though a little body; it has a burial obligation upon it. To kill it is killing. I killed the hand, not the person. I killed the hand. But I did kill the hand and turned it into something dead. By the way, here it would indeed be different—for example if I transplant the hand into someone else, then there I did not kill the hand; it continues living in someone else. Here, for example, there would indeed be a difference between the Radbaz’s discussion, where it is just about removing the hand, and a medical discussion that says to transfer the hand onward, according to that reasoning I mentioned earlier: that if this organ becomes the organ of someone else, then it returns to being alive within the body of the recipient. So he says first of all that this is like danger to life, and he brings an interesting proof for it, one that is very open to discussion. He says that “a wound for a wound”—never mind—“a wound for a wound” and “an eye for an eye” and so on were removed from their literal meaning, because it cannot be that one punishes a person with bodily injury, with removal of an organ, because removing an organ is like killing. It’s an interesting explanation for why the Sages took that interpretation away from the literal meaning, because that is not what it says in the Talmud. In the Talmud it says “an eye for an eye” means money, “a wound for a wound,” and so on. All right, in any case, that is the proof he brings. The question is whether one may do such a thing—meaning, to take from him, to take something like this from a person—this is like killing the organ. So it is forbidden to do this in order to save someone else. What if he agrees? Is he allowed to agree? Is it proper for him to agree? Does his agreement help? Several different questions, though of course closely connected. So the Radbaz himself writes: “Rather, this is an act of piety, and fortunate is the portion of one who can stand by it.” Yes, he says: “I see no basis for this law except as an act of piety, and fortunate is the portion of one who can stand by it.” Meaning, if they tell me to remove a hand in order to save my fellow, there is no obligation to do it, and it is forbidden to do it against his will. But, says the Radbaz, I may do it as an act of piety; if I volunteer, I may do it; there is no prohibition in this, and it is even proper to do it. The phrase “act of piety” is of course not a neutral phrase. Meaning, one who does this—blessing should come upon him; he is a great righteous person. But you cannot obligate a person to do it. And here of course the question arises: whichever way you look at it. If you really think this is like killing, then why is it permitted? Meaning, after all, to kill myself in order to save the other—even in a doubtful danger—I am forbidden to place myself in doubtful danger in order to save the other. So if you say this is called like killing, then why, if I agree, is it permitted? Not entirely clear in the Radbaz. So perhaps here one could say that life-saving overrides the prohibition against injury, this prohibition of removing an organ. But then we return to the first focal point, to the first question. If so, then why not against his will? Why is his volunteering required? If life-saving overrides the prohibition, then what’s the problem? You could force it on him too. Whichever way you look at it, it is very hard to distinguish between a case where it is done against his will and a case where he agrees. If it is forbidden, it should be forbidden in both cases. If it is permitted—whether because life-saving overrides it, or because this is not called injury at all, because injury done for the purpose of rescue is not called injury at all—whatever way we define it, here it should be permitted in both cases. What possible reasoning could distinguish between a case where a person agrees and a case where he does not agree? It seems to me that the only way to explain such a thing is to say that there is in fact an additional aspect here that we did not raise until now, namely that this is essentially theft, a kind of theft. In fact, at the level of conceptual infrastructure it is almost the opposite of what I said until now. What I said until now was that a person has no ownership over his body, as the Radbaz himself said. He has no ownership over his body. Since that is so, when he admits something regarding his body, this is not called the admission of a litigant. Since the other person has no ownership over his body, then all the more so someone else has no ownership over his body. Once you bring it into terms of theft, you bring it into terms of violating another person’s rights. This is no longer speaking about a prohibition toward Heaven—that is what we said before, prohibition of benefit, wounding; that is how we understood the prohibition until now, as a prohibition toward Heaven. Fine, that is an ordinary prohibition, a negative commandment. When you bring it into the terms of theft, you are suddenly changing the entire basic framework by which you are analyzing it. You are effectively saying: wait, he does own it, it is his. And when you take it from him, that is like theft. And it is forbidden for you to steal. Now one still has to understand: so what if stealing is forbidden? But life-saving—after all I am stealing in order to save the life of the other person. Here an entire system of considerations enters, which we discussed in the past, namely Rashi’s position in Bava Kamma, which we discussed once, where he says that a person is forbidden to steal or to save himself through another person’s money. Rashi has a unique position, that a person may not save himself through another person’s money—meaning, he should be killed rather than violate the prohibition of theft. Most halakhic decisors disagree with Rashi. But I already mentioned then that even the decisors who disagree with Rashi do not necessarily disagree with him on the conceptual level. Rather, they claim only that in fact I am allowed to do this—why? Because when you take another person’s money in order to save yourself, I am merely carrying out the obligation that was incumbent on the other person himself. He himself should have invested the money in order to save me. He is obligated to invest the money in order to save me. The Torah tells him, “do not stand idly by your neighbor’s blood.” So since that is so, the money is pledged to my rescue. If it is pledged to my rescue, then I too may take it. But if there is a case where the person is not obligated to give it in order to save me—as we discussed then, maybe a non-Jew, that was one of the examples—it comes out that a non-Jew is more severe. To save my life with a non-Jew’s money would be more severe than to save my life with a Jew’s money. But here there is another example. What happens here? After all, this person is not obligated to give this organ—that was the Radbaz’s original assumption, right? Obligated he is not. So if he is not obligated, then perhaps I too may not take it from him; even from the perspective of theft it would be forbidden here. Why? Because if he is not obligated, then it is not pledged to my rescue. So what remains? The prohibition of theft remains. And where the prohibition of theft remains, then not only Rashi says it is forbidden, but also the Rashba—as we brought then from the responsum of the Rashba and others—also says it is forbidden. Meaning, the only reason I may take another person’s money in order to save myself is because the other person was also obligated to give the money in order to save me. There is on him a commandment or a negative prohibition of “do not stand idly by your neighbor’s blood.” But here, after all, there is no prohibition or obligation on him to give up his organ in order to save me, right? That is what the Radbaz said earlier. If he does not have that obligation, then I too am forbidden to take it from him. That is theft. So here is one of the implications of what we discussed there. Even though this is only theft and not killing, as we discussed before, it would still be forbidden to do it in order to save the other person’s life. But here there would be a major implication. What happens if he agrees? If he agrees, then it is no longer theft, right? If indeed we are speaking in terms of prohibitions of theft and not in terms of prohibitions between man and Heaven. In terms of theft, if the person waives his claim, if the person is willing to give, then there is no problem. Here we have an explanation for the difference between when a person waives and when it is done against his will. It seems to me that this is the only explanation I can understand for why there is a difference between donating an organ with a person’s consent and donating an organ without his consent. If it is merely the prohibition of wounding, which we see as a prohibition between man and Heaven, as a simple prohibition, then it should have been permitted because of life-saving—I am going to save a life with it. That overrides all prohibitions in the world. So what do they tell me? No, this is a prohibition of the sort that is like killing; this is killing an organ. And therefore one does not do it even in order to save lives, because one does not kill one person to save the other, right? But if so, then the opposite question returns: why is it permitted with his consent? The only answer is that there is some combination here, and notice this is a very non-trivial combination. It seems to me there is some intuition here that the halakhot are following. The intuition says that this is how it should be, that it makes sense. Now, how to fit that into a halakhic framework is very unclear, because if this is killing… so what, you’ll tell me it’s theft? If it’s theft, then it’s not the prohibition of murder—so what’s the problem? Then perhaps even without his consent it should be permitted in order to save the other? No—because if it is theft, then it is that type of theft where he is not obligated to give, where he is not obligated to give it; and that type of theft is not permitted in order to save the other. So there is some combination here of theft and murder. It is killing that has a dimension of theft; it is killing that is between man and his fellow, not between man and Heaven, let’s put it that way. But what kind of theft is this? What? What kind of theft? You are stealing an organ from him. What? What kind of theft? Theft belongs to the realm of money, the prohibition of theft. It also applies to things considered property. For example, yes. What? Property? If you appraise a person—how much is he worth with the organ and without the organ—he would be paid money for that, right? In Jewish law they often make such appraisals. When you injure a person, how do they appraise it? They take the person to the market and assess him: how much was he worth whole, and how much is he worth without the organ. Meaning, organs can be appraised. You are liable because you injured him, not because you stole from him. Doesn’t matter, but you see that the organ has monetary value; it can be appraised. So why should it be impossible to steal it? It’s the same thing. If you relate to it as something worth money, then just as one can damage it—sorry, now I’m speaking in terms of torts—so one can also steal it. All the concepts of monetary law also apply here. More than that—you know, Maimonides implies that one who, for example, takes a married woman also violates theft. According to Maimonides, taking a married woman is a violation of theft, at least for Noahides, aside from the sexual prohibition itself of course—not instead of it. Aside from the sexual prohibition there is also a prohibition of theft here. So you see that theft does not even have to be truly monetary. When you take something that in essence belongs to someone else, you violate the prohibition of theft. In the case of a woman this doesn’t even belong in the sense… with the body it’s more so. A woman does not belong to her husband; the husband has no ownership over the woman. She is connected to him in the prohibitory sense, or what is called the bond of marriage; there is no ownership here. And even so Maimonides speaks of the law of theft. So the law of theft is broader than people usually think. And who says it really has to depend on whether he wants it or not? The Meiri? The Radbaz. The Radbaz says that it is an act of piety; it is forbidden to take it, but it is an act of piety, and blessed is the one who does it. So you see that with his consent it is permitted. The question is how to understand such a thing. And one has to understand: this is the same Radbaz who, on Maimonides, says that a person’s body is not at his disposal, it does not belong to him. The only explanation I can give for this Radbaz is through the laws of theft. It is very strange—it’s dancing at two weddings—but the point is that theft keeps coming up. Now, in a case where a person… this was regarding a case where there is no danger to me. So again, it seems to me the near-consensus of all the halakhic decisors today—on this there is consensus; there are a few isolated voices who… nearly a consensus—that if they want to take an organ from someone who is alive and he will remain alive and can live even without this organ, in order to save someone else, it is forbidden to do it against his will and permitted to do it with his consent, and perhaps even a commandment. Meaning, not just perhaps—according to most of them it is a great commandment if he agrees, but one cannot force him. There is also the simple human intuition that says this, I suppose usually that’s the case. In the end Jewish law arrives at what simple intuition says. After all the definitions and everything, it seems to me that in the end we are in a place fairly close to that, usually. Good. And if not, then one needs to examine it very carefully. I usually tend to think that this is true more often than people imagine. We discussed this in connection with separating Siamese twins, for example, and other examples as well. The next case is where the donor enters into a doubtful danger. I mentioned earlier that Hagahot Maimoniyot brought in the name of the Jerusalem Talmud that a person is obligated to enter into doubtful danger in order to save his fellow from certain danger. I see someone drowning in the river, and I’m a mediocre swimmer, but he is going to drown. Now if I jump in, there is some chance that I will drown, but there is also a chance that I won’t, a chance that I will succeed in saving him. Am I allowed to jump into the river in order to save him? Or am I obligated? Or am I forbidden? The entire range of opinions exists. Hagahot Maimoniyot claimed that I am obligated, even though I am endangering my life. Since I am in doubt and he is in certainty—certain overrides doubtful—I must endanger my life in order to save him; it is an obligation. He brings this in the name of the Jerusalem Talmud. About the Jerusalem Talmud itself people already dispute this—that is, in the Jerusalem Talmud it is not at all clear that this is the case—but this is what Hagahot Maimoniyot says. As practical Jewish law, this is certainly not correct. It was certainly rejected. The question whether it is permitted or not is a dispute among the halakhic decisors down to our own day. Rabbi Moshe Feinstein argues that it is permitted. It is permitted to place myself in doubtful danger in order to save the other, again like the Radbaz: I am not obligated, one cannot force me, but it is permitted. Not only permitted; presumably it is also praiseworthy if you do it, I assume. Meaning, it is not merely neutrally permitted. And there are many halakhic decisors—perhaps I would even say most—who say it is forbidden. The Mishnah Berurah also truly writes that it is forbidden. Not only is it not obligatory; they say it is actually forbidden. Meaning, you are forbidden to place yourself in doubtful danger even in order to save another. Of course there are exceptions, like war. In a state of war like the one we are in, there the question always is: why is it permitted to be a soldier? You place yourself in doubtful danger in order to save the public, the people, I don’t know, the state, from danger. But if it’s forbidden? According to practical Jewish law, most halakhic decisors say I am forbidden to place myself in doubtful danger in order to save another from certain danger. So how is it permitted to be a soldier? That’s the law of war, all kinds of things like that. That already gets us into concepts of the collective, which we also discussed. So in the context of organ donation, again, now the question arises in a doubled form when I speak of organ donation. Because in the simple sense this is literally the case of Hagahot Maimoniyot. Hagahot Maimoniyot is basically the same case, right? I am placing myself in doubtful danger, because I am entering danger—this is a situation where donation of the organ puts me in danger—in order to save the other from certain danger. On the face of it, all the opinions we saw earlier are the opinions that would apply here too, right? Of course, again, this will depend on whether I am speaking of doing it against someone’s will or with his consent. Against someone’s will, by all opinions, one cannot do it. I don’t know whether they would say that even according to Hagahot Maimoniyot. I’m not one hundred percent sure, although my intuition says that even according to him—and he was not ruled as practical Jewish law; this is just a theoretical question—still, perhaps according to Hagahot Maimoniyot, who says a person is obligated to put himself in doubtful danger to save the other, maybe in such a case it would even be possible to do it against his will, because he is obligated. In any case, just as a person saves another’s property, and just as a person is obligated to invest his property in order to save another person. All right? Then perhaps according to that, one could even do it against his will. Notice: according to this, it would also come out against the earlier Radbaz. Yes? Because where I am not entering danger at all, then certainly, certainly they would do it against my will, right? If it may even be permitted to place me in doubtful danger, then if I am not even entering doubtful danger it is certainly possible to do it against my will. But all the halakhic decisors agree that this is not correct. I’m just saying: I don’t know what Hagahot Maimoniyot would say, but it doesn’t matter, because he was not ruled as practical Jewish law. But it is clear—all the halakhic decisors agree unanimously: against a person’s will, it is unthinkable. Meaning, one cannot do it. As for with his consent—that is, if he agrees—then on the face of it we enter the question of Hagahot Maimoniyot, and indeed the overwhelming majority of halakhic decisors forbid it. They forbid organ donation in order to save someone else if I enter into doubtful danger. There are exceptions in places where there is a difference between donor and recipient in terms of the value of life. And we already discussed this when we spoke about the reasoning “who says your blood is redder?” and “be killed rather than transgress” regarding murder. We discussed what happens in a situation where my blood really is redder. What if in this case it is? For example, someone who is about to die, a terefah, all kinds of things of that sort, a fetus, all kinds of people or creatures whose lives are in fact worth less, or whose chance of survival is lower. In such a case there is room to prefer one life over another. Wait—if someone injured somebody and now he has to donate an organ to save him? Yes. So maybe one can also say that his blood is worth less because he caused the situation in the first place? It seems to me yes. Didn’t he create the situation as a pursuer? Yes. So here there are those who indeed qualify this. By the way, there are Talmudic discussions in Ohalot, there are proofs from the Talmud, and there are halakhic decisors who even cite this: if, for example, we are speaking about a great Torah scholar whom the public needs, then it is also permitted. I am permitted to place myself in doubtful danger in order to save the life of someone—and I don’t think they mean specifically a Torah scholar, but someone whom the public needs. Suppose there is some chief of staff and there is no alternative chief of staff, I don’t know, a military commander without whom we cannot conduct the war. The same thing—it does not matter whether specifically a Torah scholar; the Torah scholar here is just the example of someone whom the public needs. Such questions arose in the context of the Holocaust, for example, where there was discussion about whom to save from communities where there was some possibility of saving someone. Is there priority for an admor, priority for a rabbi, or for whoever it may be because the public needs him, the community needs him? There is a lot of criticism about this in non-halakhic contexts, criticism directed at various rebbes who saved themselves and their families. The standard justifications are—I wasn’t someone who arranged this discussion systematically—the standard justifications are that the public needed them. That he is the one through whom the Hasidic group can continue to exist. Continue, continue—the thing where a person knowingly goes, knowingly goes to save the rabbi. No, that is something else—I’m now speaking about afterward. People who in the midst of events know that they are in effect sacrificing their lives so that the rebbe will be saved. It’s not that the rebbe rules that you must sacrifice your lives to save me, but they—he mentioned—of course—but they go with the awareness that this is what has to be done. Certainly he cannot compel this, meaning, everyone agrees. To compel, in a case where there is someone whom the public needs, to compel someone else to enter doubtful danger—impossible, even if the public needs him. Unless he wants to of his own will, and it is certain danger. There was a horrifying story about Rabbi Shapira of Kovno. Everyone knew, from two people who escaped from Chelmno, the first camp where they murdered Jews. And they escaped, and they remained alive, and they entered the Kovno ghetto and approached the rabbi at great risk. He received them, believed every word they said, and he was left with the option—he was the leader of the public, even the non-religious saw him that way—either to flee with his family, as many people would have done, or to remain in order not to create a vacuum, yes? And he knew, and he went and boarded the train knowingly, knowing they were exterminating him. Like Janusz Korczak too. Janusz Korczak too. But that is not doubtful danger, it is certain danger. What Yossi said, that Hasidim act to save the rebbe—that’s certain danger, you don’t know. I don’t know, I don’t know. I don’t know the cases; maybe that is so. It may be that even in certain danger it is permitted. There is a topic in Horayot regarding priority laws in rescue; that is the fundamental topic. At the end of tractate Horayot there are laws of rescue priority, whom you save before whom. Two people are in danger and you can save only one of them, so there are laws there of whom you save first. Usually a Torah scholar takes precedence over an ignoramus. And the ignoramus acts to save… “ignoramus” doesn’t really mean an ignoramus; it means that Jew who considers that he will sacrifice himself to save the rebbe, he is not an ignoramus in a derogatory sense. I’ll complete this for you in a letter. But there is here some understanding of importance. Whether he is mistaken or not, he is not some ignoramus they threw to the dogs. Not “ignoramus” as a term of contempt, but in the sense that he is not the leader whom the public needs. All right, I want to make progress, because in the end Dr. Pozner arrives. So that is regarding doubtful danger. Let’s cut it off here—that is more or less the essence regarding doubtful danger. What about the dead? What is a dead person? Or donation from someone dying, a terefah, someone who is about to die, someone who has already completely died. It seems to me here too the problem is less severe when we are talking about donation to save life. There are decisors who say that it is still forbidden. I am speaking when he expressed his consent. When he did not express his consent, many halakhic decisors say that it is forbidden, even from a completely dead person. But if he expressed his consent, almost all the halakhic decisors permit it when he is definitely dead according to Jewish law. And this is certain—as practical Jewish law, it is permitted. The question is what happens when he is not yet completely dead, and that is really the modern problem. Meaning, we need to take organs from a person while they are still functioning. Each organ has medical conditions governing when it can be taken, when it is possible to donate it. A great many questions arise in the context of liver and heart, where you need brain death, because otherwise he is a living person; you cannot take it from him. But when the heart is still functioning—for example, they keep the person on machines and the heart and breathing continue artificially, not spontaneously, what is called non-autonomous, not by themselves but with outside assistance, and the brain is already dead—then the question is whether in such a state the person is already called dead or not. There is a very complicated halakhic discussion here that I’m not going to enter into now; I also don’t know all its details. The question is what is called the moment of death according to Jewish law. This is a question discussed also in non-halakhic contexts—legal contexts, medical contexts—and also in halakhic contexts. And needless to say—and I have already had occasion to deal with this question more than once—that this determination is not a medical determination. Meaning, what is called the moment of death is a value determination, not a medical one, because the medical data are clear data. The question is what happens when the brain dies and what happens when the heart dies—medically this is known. Now the only question is what is called dead. The question of what is called dead is not a medical question; it is a question of definition. We have to define for ourselves, from a normative standpoint, who in our eyes is called a dead person. The doctor can only give the data here; he cannot make that decision. Therefore, if the medical world decides, say, that brain death is called… also death, that does not mean Jewish law also has to accept it. That is not a professional determination; that is not an expert opinion. So I’ve spoken in several contexts about the distinction—we discussed excessive speed on the roads and all kinds of things like that—that the medical determination and the halakhic determination do not necessarily have to coincide. Not that they don’t have to coincide; there simply is no medical determination on this matter. There can be a determination by the medical association, but that is not a medical determination. It is a normative determination, an agreement. Why? If it is irreversible? If it is irreversible—what does irreversible mean? There are many processes that are irreversible and the person is not considered dead. A terefah is irreversible. I too am irreversible—within at most sixty, seventy, eighty years, maybe even much less—that’s irreversible. Those are not the considerations. But as long as the person is within the irreversible process, the question is when. Even if he is, yes, even if he is unconscious, it doesn’t matter. The doctor can tell me what medical functions exist in each state, but to say what is called dead—that is a value determination, a normative determination, not a medical one. We discussed this. What is the permitted speed on the highway is also not a professional determination; it is a normative one. So too here. Therefore there are great disputes around determining the moment of death. The point I want to focus on in the last minutes we have left, and that will be enough for me to explain the principle—all the discussions I know at least around this, except for one, the article I’m presenting here—all the discussions I know in this context are discussions dealing with the question of what the moment of death is. Meaning, for example, with heart transplantation: a person’s brain has died, and it’s a major question how certainly this can be determined. It’s not so simple. Maybe now there has been some medical improvement; I don’t know all the details. For quite a few years there was a problem knowing that the brain had really died, because one has to do brainstem tests and so on, and apparently it wasn’t so simple to test that. But assuming we know that the brainstem is dead, everything is totally dead, the brain is no longer functioning, and they maintain the heart and respiratory system artificially so that the organs will still function and can be taken, the big question is whether such a person is considered dead or not. And this is a question, a major dispute among the halakhic decisors. Quite a few decisors say no, because according to several sources in the Talmud death depends on breathing. And as long as a person’s nose area… under a collapsed building, in tractate Yoma. And since death depends on breathing, as long as the person is breathing, then even if his brain is dead he is considered alive according to Jewish law—that is what some halakhic decisors say. There are those who distinguish between breathing dependent on machines and breathing on one’s own. The Talmud is speaking of someone who is still breathing on his own, not through machines; that is still an indication that he is alive. But if I maintain him with machines, that is not called being alive. So that is one distinction. The new point I want to raise here is that in my opinion this whole discussion is irrelevant. And this is the only discussion I know that has been conducted on this issue, except for one article I know, which was also published in the back-and-forth section of Techumin, and specifically about this we still haven’t talked because it was just completed this year there. This year it’s out. Yes. Why? Because the assumption here is that if the person is alive then clearly it is forbidden, and therefore it is very important to know what the moment of death is, when he stops being alive and begins being dead. But in my humble opinion, even if the person is alive it is permitted if he agrees. At the moment we are speaking only of a case where he agreed—if he carries an Adi card. And it says there that he allows organs to be taken from his body in the circumstances that arise. What happens in such a case? Let’s say for the sake of discussion that he is alive, all right? So if he is alive, we return to the question of whether a living person may donate an organ, right? Of course the question is which of the cases we are speaking about. We are speaking here about the case of a living person from whom, when the organ is taken, he will die. After all, after they take from him—say he is considered alive now—the brain no longer functions, his brain is dead, the heart and lungs are still, by means of a machine, breathing, all right? But when I take his heart, that’s it, he dies, right? So there is a problem here that we still haven’t really dealt with; I only hinted at it. This is a situation where a living person gives an organ and dies from it, sacrificing his life in order to save another. It sounds strange to say “sacrificing his life” in this context—it sounds strange, what kind of life is there already? But yes, if we assume he is alive, that is the situation. He is sacrificing his life. My claim is that such a thing is permitted even if he is considered alive. That is the point I want to make here. And therefore all the discussions about the moment of death are not relevant to the Adi card, in my humble opinion. I know great halakhic decisors say otherwise, but that is how it seems to me. Why? Because when a person is in a state where he is a terefah, it is explicit in some of the halakhic decisors that he can give his organs in order to save someone else. A person who is expected to live up to twelve months can give his organs to someone else even if he will die from it. Why? Because he is allowed to sacrifice his brief remaining life in order to save the full life of the other person. In short, there are two kinds of “alive.” There is alive with only brief life remaining, and there is alive with a full life ahead. What they said—that I am forbidden to sacrifice my life, not only that it cannot be done against my will but that I am forbidden to sacrifice my life in order to save the other—that is when my life is a full life. But when my life is only brief remaining life—notice, one desecrates the Sabbath for such a person according to almost all opinions, with only a few exceptions. I am considered alive in that regard. On the other hand, to give my brief remaining life in order to save the full life of the other is permitted. Why do we desecrate the Sabbath for someone who is on a ventilator? After all, he won’t keep any more Sabbaths, he does nothing, he is a living corpse. That person on the ventilator is a major question. On the side that he is alive, this may perhaps enter the discussion of desecrating the Sabbath in order to save brief remaining life. I assume there would be halakhic decisors who would indeed permit here. I’m speaking now about desecrating the Sabbath for someone who is still walking around among us; he’s just going to die within a day or two, he is already at the end stage. In the meantime he’ll still do two more commandments, say two blessings, do some commandment. The Meiri indeed gives that reasoning, and there are those who say one need not even get to the reasoning of “Desecrate one Sabbath for him so that he may keep many Sabbaths,” because there are other reasons in the Talmud. So even if he will not keep many Sabbaths, indeed the Or HaChaim on the Torah says that since he will not keep many Sabbaths, it is forbidden. And as I said, there are a few isolated figures who forbid it, but the majority permit it. They forbid desecrating the Sabbath to save only brief remaining life, only full life and not brief life. In the Talmud it says that one saves even brief life—there are contradictions there; all right, it’s a complicated subject, I’m not entering it now. What I want only to say for our purposes is that brief remaining life is a kind of hybrid creature. It appears in the Talmud, but the attitude toward it is very ambivalent; its status is not entirely clear. Broadly speaking, from several proofs one can show that its status is an intermediate one. It is called alive for several things, even to permit desecrating the Sabbath in order to save it, and so on. In that regard it is alive. In regard to the fact that one may not take organs from him—certainly not without his consent—he is certainly alive in every respect. In a state of brain death, according to some halakhic decisors, he is still quite alive, but it is brief remaining life according to all halakhic decisors. Fine, so it is forbidden to take it. But what if he agrees? If he agrees, then why do I care about the moment of death? After all, even if he were literally alive, walking around and functioning, but it was known that within a day or two he will die, that he is very sick and truly at the end, but if he says take an organ from me in order to save someone else, it is permitted for him to do that even if he is considered alive according to Jewish law. So what difference does it make whether he is called alive or dead? All this makes the entire discussion of what the halakhic moment of death is unnecessary. Because if it really is permitted for a person to give an organ while he is alive with only brief remaining life, and even if he thereby gives up his life—kills himself, as the Chazon Ish writes, as several halakhic decisors write—that a person is allowed to sacrifice his brief remaining life in order to save a full life. First of all, in order to save his own full life. Is a person allowed to sacrifice his brief remaining life in order to save his own full life? What is the situation? For example, I enter surgery. Right now I am dangerously ill, and the expectation is that within a few days I’m finished. All right? I go into surgery; the doctors tell me, look, this surgery is fifty-fifty—not even necessarily fifty-fifty; let’s say the doctors told me fifty-fifty. Fifty percent you die in surgery, and then what? You lost the brief remaining life you still had, the few days you still had. Fifty percent that we save you and then you get full life. So am I allowed to sacrifice doubtful brief life, because maybe I will lose my brief life, to place myself in a state where I may lose my brief life, in order to save the possibility of full life? On that there are many proofs that it is permitted, and that is how the vast majority of halakhic decisors rule—that it is permitted. That is why one may undergo dangerous surgery. Dangerous surgery—otherwise it would be forbidden to enter it. If I am in danger, but the surgery itself is a danger that I may literally die from, most halakhic decisors permit it; almost all permit it. Here of course the situation is slightly more delicate, because I sacrifice my brief life with certainty, not in doubt, and I save the full life of someone else, not my own. I sacrifice my brief remaining life in order to save the full life of someone else, but even on that several halakhic decisors say that it is permitted. Now if that is so, then the entire discussion about the moment of death is completely unnecessary. Because even if I am considered alive, even if my brain is still functioning—even before brain death—if I know that I am going to die within a day or two and I am willing to give an organ to someone else, I may do it even if I am considered alive according to Jewish law. Therefore this whole discussion about the moment of death is not relevant to donation through an Adi card, if I really agree wholeheartedly and write there and say that I have consented. And of course only with consent, because without consent it is forbidden to take from someone who has life—even brief life, of course it is forbidden to take an organ from someone who has brief remaining life in order to save someone who has full life. But notice carefully what this permission means. Here the permission is even more extreme. True, what I lose is only brief remaining life, if even that. When someone here says brain death, then in my view it is even less than that; it is worse than brief remaining life—here I don’t understand what people are talking about. It simply doesn’t begin. It is much worse than ordinary brief life. Brief life is a living person where the expectation is that within a few days he is going to die. But truly, one has to pay close attention: this is a case that is extreme in both directions. On the one hand, I lose the least. In the first two cases we discussed, in the first case the person remains entirely alive, in the second case he enters doubtful danger, but maybe he will remain entirely alive. Here he loses—everything he loses is only brief remaining life. On the one hand that is little. On the other hand, we are doing an act here that certainly kills him. So there is a side of leniency and a side of stringency. He loses only brief remaining life and not full life like the others. Sorry—he loses his life, unlike the others who perhaps lose it or perhaps not, or not at all, as in the first two cases. Here he loses his life, yes? But on the other hand, what he loses is only brief life. All right? And I even permit a situation that is basically murder by the standard definitions, because they take an organ from him and that kills him on the spot—not perhaps, not anything. We are simply permitting killing him, with his consent, in order to save the other. Meaning, this is a very extreme permission specifically because we are dealing with brief remaining life. Because we are dealing with brief remaining life—which is a leniency on one side—we permit a very extreme permission, I think it is permitted, a very extreme permission: an act of killing in order to save someone else. Now again, I’m saying: there is no time here to go into all the proofs. For some reason the halakhic decisors generally do not agree with this consideration, but there is one article by Rabbi Dick that I found—Rabbi Yehuda Dick, I don’t even know who he is—in the book Assia, “Organ Donation from a Dying Person to Save Human Life.” He also tends to permit it; he presents it before the halakhic decisors. I don’t know whether he received responses, what they said. I know that usually all the discussions are around determining the moment of death. I don’t understand why. There cannot be a prohibition on the doctor—the issue of the doctor I didn’t have time to get into; I’ll say one word about it. The problem for the doctor is resolved by what Rabbi Yisraeli says: that there is no mismatch between the prohibition on the doctor and the prohibition on the donor, because the doctor is the donor’s agent. It cannot be that the doctor violates a prohibition if for the donor himself there is no prohibition at all. The donor appoints the doctor as his agent; the doctor simply functions as the donor’s agent. Though an interesting question arises: what about an agent of a dead person—can he be the agent of a dead person? It is a commandment to heed the words of the dead. No, but if he is dead then there is no discussion at all. If he is dead there is no discussion at all; after all, we are talking about the side where he is alive. Now it is permitted to take even without his agency. Okay. Obviously, but if he is dead, then what possibility is there that there could be agency for the dead? He says this is a dispute between the Tur and Maimonides; I don’t think he is right about that, but in any case that is talking about legal agency. Here I don’t think we are talking about legal agency in exactly that sense; he is an agent in the conceptual sense. Meaning, he is the agent that society appointed on behalf of the patients, on behalf of all of us, because the doctor is the one who is supposed to perform these actions; we don’t know how to do them. So he is the agent, and he remains the agent. I do not understand the logic of discussing a prohibition on the doctor, or of saying to use a non-Jewish doctor, where there is permission for the donor. It simply is not reasonable. Rabbi Yisraeli writes this; it seems to me straightforward reasoning. All right, that’s it. I really did this a bit briefly at the end. The proofs are not entirely direct proofs—one or two are really direct on the point that one may actively sacrifice one’s own brief remaining life in order to save the full life of another—but you can see various leniencies relating to brief life as opposed to full life from which this can certainly be inferred. Whoever wants can look at Rabbi Dick’s article; maybe it’s even online. Especially since the family gives the permission—according to Jewish law is the family allowed to give permission, are they the owners of his organs? That’s not so clear. Sometimes there are interests pulling in the other direction. Not entirely; those are discussions in their own right—what is the legal or halakhic status of the family in this context. Thank you very much.