Organ Donation[1]
Tehumin – 5769
Rabbi Dr. Michael Abraham
Outline
A. Risking oneself for the sake of rescue
B. Global considerations in Jewish law
C. The global consideration in saving lives
D. How is the value of life measured?
E. Giving up the life of a tereifah to save another's life
F. The significance of consent
G. The decision in cases of doubt
H. Between the physician and the donor
v v v
The definition[1] of a person's death is disputed among halakhic authorities[2] – some maintain that death is brain-stem death, while others maintain that it is the death of the heart itself, and as long as it is functioning, even with the aid of machines, the person is defined as alive. This determination is important with respect to the possibility of taking an organ from a person whose heart is still beating and transplanting it into someone who needs it. It matters for patients who require such a transplant, for potential donors who fear that removing the relevant organ from their body involves killing them, and for the medical team that participates in the process of organ donation and transplantation. Because of the halakhic dispute, there are those who refrain from signing an ADI donor card out of concern that they will be killed before the moment of their death, and that such a signature may amount to a form of suicide.
In this article I wish to argue that that halakhic dispute is not relevant to the question of permission (and perhaps even obligation) to donate organs. Our conclusion here is that according to both views one should permit (and perhaps even require) signing an ADI card with respect to all organs, even according to those who maintain that, under Jewish law, death is the moment of cardiac death (and not brain death). Our main claim here is that even if, in a state of brain death, the person is considered alive, at most this is a matter of surrendering a short span of life in order to save another's full lifespan, and this is a permitted act, indeed one that contains a commandment.
A. Risking oneself for the sake of rescue
According to the author of Hagahot Maimoniyot (Laws of Murderer, beginning of ch. 1, and see also his words in Laws of the Foundations of the Torah 5:3), a person may risk his life in order to save another. Maimonides there (Laws of Murderer 1:14) establishes the basic norm relevant to our case as well, and so it was ruled in the Tur and Shulchan Arukh (Hoshen Mishpat, no. 426):
Anyone who can save and does not save transgresses: "Do not stand idly by your neighbor's blood" (Leviticus 19:16). Likewise, one who sees his fellow drowning at sea, or bandits coming upon him, or a wild beast attacking him, and can save him personally or can hire others to save him but does not do so; or one who heard that gentiles or informers are plotting harm against him or setting a trap for him and did not alert his fellow and inform him; or one who knows of a gentile or violent man who is complaining about his fellow and can appease him on behalf of that fellow and remove the grievance from his heart but did not appease him; and anything similar to these matters – one who does such things transgresses: "Do not stand idly by your neighbor's blood." Anyone who can save and does not save transgresses: "Do not stand idly by your neighbor's blood" (Leviticus 19:16). Likewise, one who sees his fellow drowning at sea, or bandits coming upon him, or a wild beast attacking him, and can save him personally or can hire others to save him but does not do so; or one who heard that gentiles or informers are plotting harm against him or setting a trap for him and did not alert his fellow and inform him; or one who knows of a gentile or violent man who is complaining about his fellow and can appease him on behalf of that fellow and remove the grievance from his heart but did not appease him; and anything similar to these matters – one who does such things transgresses: "Do not stand idly by your neighbor's blood."
And on this the Kesef Mishneh wrote in the name of Hagahot Maimoniyot (Constantinople edition):[3]
Hagahot Maimoniyot wrote: regarding transgressing "Do not stand idly by…," the Jerusalem Talmud concludes that one is obligated even to place oneself in possible danger; end quote. And it appears that the reason is that the other person's danger is certain, whereas his own is doubtful. Hagahot Maimoniyot wrote: regarding transgressing "Do not stand idly by…," the Jerusalem Talmud concludes that one is obligated even to place oneself in possible danger; end quote. And it appears that the reason is that the other person's danger is certain, whereas his own is doubtful.
It should be noted that he states that a person is obligated to place himself in possible danger, and not merely permitted to do so.
It is not clear from his words whether this obligation, or permission, exists only when the rescuer places himself in possible danger; what, then, is the law when the rescuer places himself in certain danger? It would seem that in such a case no obligation to save applies to him (for who says the other person's blood is redder than his own?), but is he nevertheless permitted to do so?
As stated, the source of Hagahot Maimoniyot is the Jerusalem Talmud. He refers to Jerusalem Talmud Terumot ch. 8, end of halakhah 4. However, from the source itself the matter is not clear-cut. The Netziv (Ha'amek She'elah, She'ilta 147, sec. 4) explains that Rabbi Akiva and Ben Petura disagreed about this; and although the Jerusalem Talmud ruled like Rabbi Akiva (your life takes precedence – "your life takes precedence"), it is nevertheless clear there that as an act of piety one may place oneself in a state of danger. According to this explanation, the Jerusalem Talmud provides at most permission, as an act of piety, to place oneself in possible danger, not an obligation; and in a state of certain danger there is a prohibition even according to the Jerusalem Talmud.[4]
In practice, most halakhic decisors rejected the view of Hagahot Maimoniyot and what, according to his reading, emerges from the Jerusalem Talmud (see Mishnah Berurah 329:19; Tzitz Eliezer IX no. 45; X no. 25 ch. 28; and many others). Even so, they still discussed the degree of permission to incur risk for the sake of saving another as an act of piety. This was permitted in Ha'amek She'elah 129:4 and in Iggerot Moshe II, Yoreh De'ah no. 174, sec. 4.
But all this concerns placing oneself in possible danger, not entering into certain danger. From the language of the decisors it appears that this is certainly forbidden. So too, at first glance, from the dispute between Rabbi Akiva and Ben Petura, where the law was ruled like Rabbi Akiva that the life of the owner of the flask of water takes precedence, implying that he is not obligated to give up his life to save another.[5] However, Rav Kook (Responsa Mishpat Kohen no. 144) left open whether the owner of the water is permitted to waive his right and give the water to his fellow. Another basis for this doubt exists when the person saved takes precedence over the rescuer in the hierarchy of priorities found at the end of tractate Horayot.[6]
All our discussion until now has dealt with endangering the rescuer's full lifespan for the sake of his fellow. But in our case (organ donation) we are not speaking of a full lifespan, but at most of a short span of life, and this can be discussed even without Rav Kook's doubt, as will be explained below.
B. Global considerations in Jewish law
It is accepted among the decisors that a person may endanger his own short span of life for the sake of saving his own full lifespan.[7] Beyond the proofs, this is an obvious and simple proposition, for every time a person enters a dangerous operation such a decision is involved.[8] Similarly, according to some decisors, a person may forgo his own short span of life in order to avoid a transgression (for example: not to desecrate the Sabbath, or to fast on Yom Kippur, thereby endangering his short span of life).[9]
Still, these discussions concern saving one's own life, whereas saving another's life is different. This distinction leads us to a discussion of the relation between my considerations and those of another, that is, global considerations[10] in Jewish law.
At first glance, this issue would seem to depend on a question that is more ideological, meta-halakhic, than strictly halakhic. That is, it depends on our halakhic worldview. On the one hand, organ donation raises a concern of murder; on the other hand, from a more global perspective, which looks at the overall total and at the bottom-line result, more life exists in the world. True, the donor loses a short span of life (assuming he is considered to have even that much life at all; see below), but the recipient gains a full lifespan. At first glance, there is here halakhic formalism (= the personal perspective) as against substance (= the global perspective), according to which it is possible that the world, or the Holy One, blessed be He, gains from this, regardless of the question how the organ donor fares personally.
Such a global consideration appears in two cases: when there are laws of precedence (for example, where the patient is a Torah scholar needed by the many), or when a person gives up his life for the sake of the many. On this the author of Sefer Hasidim wrote (no. 698):
If two people are sitting and enemies seek to kill one of them – if one is a Torah scholar and the other an ordinary man, it is a commandment for the ordinary man to say: "Kill me and not my fellow," like Rabbi Reuven ben Istrobili, who asked that he be killed rather than Rabbi Akiva, because the many needed him. If two people are sitting and enemies seek to kill one of them – if one is a Torah scholar and the other an ordinary man, it is a commandment for the ordinary man to say: "Kill me and not my fellow," like Rabbi Reuven ben Istrobili, who asked that he be killed rather than Rabbi Akiva, because the many needed him.
As for saving the many, this is all the more so: if saving a Torah scholar needed by the many permits self-sacrifice, then saving the many themselves certainly does. And indeed, some decisors learned this from the story of Pappus and Lulianus, the martyrs of Lod (Pesahim 50a and Ta'anit 18b).[11]
In these two examples we see that Jewish law operates according to global considerations, and a person does not make only his own personal reckoning, but the overall reckoning – what the overall gain from his act will be, not necessarily for himself.
We also find global considerations in Jewish law in the very reasoning: Desecrate one Sabbath for him so that he may observe many Sabbaths. – "Desecrate one Sabbath for him so that he may observe many Sabbaths." Although in the passage in Yoma (85b) some understood this reasoning to have been rejected, closer examination makes it clear that this is only because it does not yield permission to desecrate the Sabbath in a case of doubt, whereas the reasoning itself was not rejected. This is also proven from the passage in Shabbat 151b, where this reasoning is likewise cited in practical law.
At first glance, from the point of view of the individual person, he desecrated the Sabbath and committed a grave prohibition. Even if the fellow who was saved gained many Sabbaths, this does not appear in the rescuer's personal balance sheet (certainly not as Sabbath observance). Here we have a distinctly global consideration, which relates to the number of Sabbaths that the Holy One, blessed be He (or 'the world'), gained, regardless of the question who the particular person was who observed or desecrated them.
Another example is slaughtering for a sick person on the Sabbath. The Rosh (in his rulings, Yoma ch. 8 no. 14) reports that the Ra'avad was asked whether it is preferable to feed a sick person on the Sabbath meat of a tereifah (an animal with a fatal defect) or neveilah (carcass), which does not need to be slaughtered and thus involves a relatively lighter prohibition; or perhaps it is preferable to slaughter an animal for him on the Sabbath, even though slaughter on the Sabbath is a severe prohibition punishable by stoning. The Rashbatz (Responsa Tashbatz III no. 37) adds to the matrix of considerations the fact that slaughter on the Sabbath is the transgression of the slaughterer, whereas eating forbidden food is the transgression of the patient himself. At first glance, it would have been appropriate that the one who benefits (the patient) be the one who commits the transgression. He joins this argument to the grounds for his ruling that one should feed him neveilah rather than slaughter for him.[12]
At first glance, the words of the Tashbatz imply that the personal perspective is decisive, and that it overrides the reckoning of another person's transgressions. But it appears that the Tashbatz brought this only as a supporting consideration together with other reasons, and did not regard it as decisive. So it seems from medieval authorities and other decisors who also ruled like the Tashbatz that he should be fed neveilah, but did not justify this on the Tashbatz's ground; rather, they explained it by saying that the prohibition of neveilah is lighter. Certainly those decisors who ruled not like the Tashbatz (for example, the Tur and Shulchan Arukh, Orah Hayyim 328:14, and its commentators) decided against the personal perspective, without taking account of the question who is actually performing the transgression.[13] There is here almost full agreement, and it was even ruled as practical law, that the matter should be examined from a global perspective – how the total number of transgressions done in the world can be reduced, and the question who is supposed to commit the transgression and who benefits from it is of no significance.
The question of the global perspective is what stands behind the halakhic question whether do we say to a person: sin so that your fellow may benefit? – 'do we say to a person: sin so that your fellow may benefit?' [14] At first glance, there too global considerations enter concerning the total quantity of commandments and transgressions. For that reason, some medieval authorities joined to this question such considerations as a minor transgression versus rescue from a major transgression, or the transgression of a single person in order to save many – considerations similar to the global considerations that arise in our case, but this is not the place to elaborate.
The conclusion is that global considerations do have a place in Jewish law generally, and there are permissions for a person to sin so that his fellow may benefit (whether by being saved from sin or by having his life saved). The halakhic reckoning is general and not personal. Therefore it is not far-fetched to examine the application of these considerations in our case as well (the surrender of Reuven's short span of life for the sake of Shimon's full lifespan).
C. The global consideration in saving lives
The Sages determined that a person may not save himself at the cost of his fellow's life. The reason for this is brought in the passage in Sanhedrin 74a (and parallels):
A certain man came before Rabbah and said to him: 'The master of my town said to me, Go kill so-and-so, and if not, I will kill you.' He said to him: 'Let them kill you, but do not kill; who says that your blood is redder? Perhaps that man's blood is redder.' A certain man came before Rabbah and said to him: 'The master of my town said to me, Go kill so-and-so, and if not, I will kill you.' He said to him: 'Let them kill you, but do not kill; who says that your blood is redder? Perhaps that man's blood is redder.'
At first glance, this is the situation with the life of the organ donor vis-à-vis the patient into whom the organ is to be transplanted; and if so, there is no permission to kill the donor, for his blood is not redder than the patient's blood. And not only do others have no permission to kill him, but even if the man who asked Rabbah had been ready to die for the sake of another, it stands to reason that Rabbah would have answered him with the same answer: who says otherwise? In this case the global consideration forbids him to do what others are certainly forbidden to do to him (kill him in order to save somebody else).[15]
All this is when there is symmetry between the two candidates for death. What would the rule be in an asymmetrical situation, where the value of one life is higher?[16] From the global perspective, in such a case the entire world gains life, for the life of the rescuer is worth less than the life of the one saved. At first glance, the reasoning advanced by the Talmud here ("who says your blood is redder?") clearly implies that there is indeed room for such a global consideration – if it could truly be found that one person's blood is less red than that of the person saved, the life of the saved person would be preferred. Normally, however, the redness of blood does not depend on any criteria for the value of life, since life has infinite value and is not dependent on any such measures.
However, Jewish law does make use of this measure. From the wording of Maimonides (Laws of Murderer 1:9) it appears that it would have been forbidden to kill the fetus were it not classified as a pursuer (rodef). That is, asymmetry as such (on the assumption that the value of the fetus's life is lower than the value of the mother's life) is insufficient to permit saving the mother's life at the cost of its life. The Kesef Mishneh, who argues there that the Talmud's rationale of "who says" is not exact, is quite forced, as he himself wrote.16
These matters also came up in practical halakhic discussion in the context of separating Siamese twins. There the views were divided as to whether permission to kill one in order to save his sibling requires identifying him as a pursuer, or whether it is enough that his life is worth less in order to permit saving his sibling at the cost of his life. Rabbi Rappaport reports that Rabbi Moshe Feinstein's consideration in the case he discussed was based on this rationale. That is, he saw asymmetry alone as sufficient justification to permit saving the life of the one whose life's value is higher at the cost of the life of the one whose life's value is lower.[17]
With regard also to killing a tereifah (a person with a halakhically terminal condition), we find a dispute among later authorities on this point.[18] The Noda B'Yehuda (second edition, Yoreh De'ah no. 161) ruled that a tereifah may not be killed in order to save a living person. But Rabbi Yeshaya Pick (the questioner there), and the rabbis who responded in Responsa Tiferet Tzvi (Orah Hayyim no. 14) and Or Gadol (no. 1), tended to permit it.
D. How is the value of life measured?
The decisors discuss such questions in several contexts – when the person saved takes precedence under the laws of priority at the end of Horayot; when the rescuer is a tereifah, or one sentenced to death, or one living only a short span of life, or a fetus (the explicit case in Mishnah Ohalot ch. 7). Generally, the criterion for the value of life is the degree of obligation of the person (the rescuer or the one saved) in the commandments (how many commandments are incumbent upon him – see Horayot there), and the duration of his life during which he will be able to fulfill those commandments (as with a short span of life, a tereifah, and the like). As we saw, even in the passage of danger to life and the Sabbath, the measure of commandment-observance serves to evaluate life, and it is this that permits us to desecrate the Sabbath in order to save a person (at least according to the reasoning Desecrate one Sabbath for him so that he may observe many Sabbaths. – "Desecrate one Sabbath for him so that he may observe many Sabbaths.")
A source for evaluating the value of life according to the possibility of fulfilling commandments may be found in the passage in Bava Batra 60b, which states as follows:[19]
It was taught: Rabbi Ishmael ben Elisha said, 'From the day the Temple was destroyed, justice would dictate that we decree upon ourselves not to eat meat and not to drink wine; but a decree is not imposed upon the community unless the majority of the community can abide by it. And from the day the wicked kingdom spread, which decrees upon us evil and harsh decrees, and prevents us from Torah and commandments, and does not allow us to enter the celebration of a son's birth – and some say: his deliverance – justice would dictate that we decree upon ourselves not to marry a woman and not to beget children, and thus the seed of Abraham our father would disappear on its own; but leave Israel be: better that they be unwitting transgressors than intentional ones.' It was taught: Rabbi Ishmael ben Elisha said, 'From the day the Temple was destroyed, justice would dictate that we decree upon ourselves not to eat meat and not to drink wine; but a decree is not imposed upon the community unless the majority of the community can abide by it. And from the day the wicked kingdom spread, which decrees upon us evil and harsh decrees, and prevents us from Torah and commandments, and does not allow us to enter the celebration of a son's birth – and some say: his deliverance – justice would dictate that we decree upon ourselves not to marry a woman and not to beget children, and thus the seed of Abraham our father would disappear on its own; but leave Israel be: better that they be unwitting transgressors than intentional ones.'
The first decree was not enacted because the public could not abide by it, but what prevented the second decree from being enacted was not this; rather: better that they be unwitting transgressors than intentional ones. This is difficult, for as long as the decree was not enacted, the public that does not keep it cannot be regarded even as unwitting transgressors; on the contrary, the Torah obligates them to fulfill the commandment of being fruitful and multiplying. At first glance, with regard to this decree as well, the reason for refraining from enacting it should have been the public's inability to abide by it, like the first decree.
On its face, it seems to follow from here that refraining from procreation is obligatory even without the Sages having enacted such a decree. Even so, anyone who understood the matter should have refrained from procreation, but the Sages did not reveal this so as not to cause the transgressor to sin intentionally, preferring that he remain an unwitting transgressor. What is this reasoning that every person is supposed to understand and act upon?
The straightforward implication is that underlying this is the conception that the value of life is measured only in terms of commandment-observance. And where there is no possibility of fulfilling commandments, life has no point; therefore there is also no point in bringing life into the world. True, this is an aggadic source, but it shows us, as if incidentally, the Torah's measure for the value of life.
Indeed, several decisors discussed whether there is permission to desecrate the Sabbath in order to save the life of one who does not observe the Sabbath (such as a gentile, or a secular Jew, and the like). That is, in their view, this reasoning remained decisive even in practical law. Most far-reaching of all is the Meiri (whose words are cited in Be'ur Halakhah 329:4, s.v. ela lefi sha'ah), who states that this is the reasoning that remains in practice.[20]
True, the Meiri there applies this principle also to the value of a short span of life, and this seems at first glance to run counter to our claim here, which reduces the value of a short span of life as against a full lifespan – for he permits there desecrating the Sabbath in order to save a short span of life, because even in a short span of life one can fulfill various commandments (repent, learn, pray, and the like) – but that does not concern our case, for one who is brain-dead cannot fulfill even one commandment, nor will he be able to do so in the future. Therefore, even the Meiri would agree that the value of such a life is very low, even lower than the value of a short span of life, if it counts as life at all.[21]
If so, in our case it is clear that if the value of a person's life can be measured at all, then the value of the life of one who is brain-dead is the lowest of any creature, and it cannot be compared even to the briefest short span of life. Therefore, anyone who accepts asymmetry as a justification for saving Reuven's life at the cost of Shimon's life should, at first glance, agree that one may save the full lifespan of a sick person at the cost of the life of one who is brain-dead.
E. Giving up the life of a tereifah to save another's life
The Minhat Hinukh (commandment 296, sec. 28 in the Machon Yerushalayim edition) left open whether it is permitted to surrender the life of a tereifah in order to save the lives of others. The Meiri wrote on Sanhedrin 72 that we do not apply the reasoning of "what have you seen [to prefer one over the other]" with respect to a tereifah. His proof is from the law that a fetus is killed in order to save the mother. Thus we see that a life of lower value (such as a fetus) may be surrendered in order to save the full life of a person whose life has ordinary value (the mother, in that example). The Meiri equates this with the law of a tereifah.[22]
And so too it seems from the passage in Nedarim 22b, in the episode where Ulla instructed them to expose the place of slaughter in order to save himself. We see that even others may kill a tereifah in order to save another person's full life. The author of Tiferet Yisrael (on Mishnah Ohalot) brought this as proof. The Meiri, who did not cite it, apparently holds that there the person would have died immediately, and was not merely a tereifah.
Rabbi Dick (above, note 1, in ch. 7) cited several later authorities who discussed whether it is permitted to kill the fetus after it has already brought forth its head; and the implication is that if it has already come out completely, then both it and its mother will die. Yet the matter still remains doubtful, since even after coming into the air of the world its life's value is lower than its mother's (because it is about to die); see there.
F. The significance of consent
Our discussion until now has dealt with the weight to be assigned to the life of one who is brain-dead (on the assumption that this counts as life at all), a life of the lowest possible value, and therefore there is broad room to permit saving another person's full lifespan at the cost of that life, perhaps even without his permission. As stated, not all the decisors agreed to give weight to this value-comparison. But what is the law when that very person, whose life has the lower value, is himself willing to surrender it in order to save the life of his fellow, whose life has the higher value? Perhaps when this is not done against his will, but with his consent,[23] everyone would permit it?
The Minhat Hinukh (end of commandment 34) left open whether a person who murdered another with the latter's consent has the status of a pursuer; the practical implication is whether a third person is obligated to intervene and kill the murderer, or whether he is permitted to do so.[24] At least according to one side of his doubt, the victim's consent has significance. Even if before Heaven the murderer still remains a 'murderer,' that is not so from the victim's standpoint, since he waived his life. In our case, where even before Heaven there is no prohibition in organ donation, no prohibition remains at all; on the contrary, it is a great commandment.
All our discussion until now has been stated on the assumption that one who is brain-dead is considered a living person. Add to all this the consideration that there is also another side (a halakhic opinion) according to which such a person is already considered dead, and then there is no problem here at all.
It seems that when all these factors are joined together, it is difficult to forbid such a step. And indeed, we have seen that several decisors permit a person to give himself up for the sake of a Torah scholar needed by the many, and likewise for the sake of the many, and likewise a tereifah for the sake of a healthy person. The conclusion is that measuring the relative values of lives has halakhic significance, and it can serve as a basis for permitting the surrender of life for the sake of the one whose life's value is higher, especially in an extreme case such as the one we are discussing here.
G. The decision in cases of doubt
At first glance, in order to forbid a person to donate his organs we would have to reject all the considerations above (is a healthy person permitted to give up his life for the sake of another? To what extent is it permitted to surrender life of lower value (= a short span of life) for the sake of life of higher value? What is the value of the life of a person in a state of brain death, and is it not lower than the value of a short span of life? What is the law when he himself consents to surrender his life in such a state?). To the best of our assessment, this chain of permissions is sufficient to permit and even to require (of course, this means a halakhic obligation and not coercion) organ donation from one who is brain-dead, even according to the view that in such a state he is still considered alive. But even if there were someone who remained uncertain whether these permissions are valid, we must discuss the question how one should act in a situation of doubt of this sort.
In many cases we are uncertain about fateful questions in cases involving life and death. When we do not succeed in resolving the doubt, the tendency is to say that passive inaction is preferable. But this is not always so. With respect to separating Siamese twins, I argued[25] that the step with the minimal cost is not necessarily refraining from the separation. In order to decide what the step of minimal cost is, one must decide what the criterion for cost is. Here again enters the question of a global versus a personal perspective. From a global perspective, it seems that the cost of refraining from separating the twins is greater, since both will die; but if we intervene, only one will die. By contrast, from a personal perspective the situation is the opposite: the cost is measured in terms of the transgressions that I myself commit – one who refrains from rescue transgresses at most do not stand idly by your neighbor's blood; one who comes to rescue by way of an operation not permitted by law may transgress the prohibition do not murder.
So too in our case: from the global perspective, it is certainly preferable to permit organ donation, and the burden of proof rests on the one who forbids donation. Only one who insists on a personal perspective[26] can claim that in situations of doubt the decision is to refrain from such permission and that passive inaction is preferable.
If so, the dilemma between a global and a personal perspective projects onto our problem on two planes: both in the substantive decision whether to permit organ donation or not, and also regarding the mode of decision in situations of doubt. Since we have seen above that there is broad room for global considerations, in this context no less than in others, my opinion is that one should permit (and perhaps it is even obligatory for the person himself, for if there is indeed no prohibition then the obligation of do not stand idly by your neighbor's blood arises; though this still requires further study) organ donation.
However, taking a person's organs without his consent, or when he did not express his view on the matter, is harder to permit, and that is not what we are dealing with here.[27]
H. Between the physician and the donor
Up to this point we have dealt with permission for the donor himself to give his organs in order to save another person's life. There still remains the question regarding the medical team, which might at first glance transgress do not murder. First, there is room to adopt the position of several decisors in such contexts and hand the matter over to a non-Jewish physician. But this is not the path of Jewish law, and if there is permission then it is permitted (and indeed a commandment and an obligation) also for a Jewish physician. Let us explain this in several ways.
We are confronted by the global consideration that the physician is taking a step that increases life and does not diminish life. I already pointed this out in my article on separating Siamese twins, namely, that according to the Hazon Ish such an act is not an act of murder but an act of rescue.[28] Moreover, Rabbi Dick (in his above-cited article in note 1, ch. 3) brought from the Hazon Ish (from remarks cited in the book Hiddushim Uvi'urim 73:3, and in the book Orhot Ish p. 313) that he permitted entering a dangerous operation in order to save a full lifespan, on the ground that a short span of life, as against a full lifespan, is like other commandments in relation to danger to life. It appears that the same law applies to surrendering a short span of life for the sake of saving another person's full lifespan, for the donor's short span of life is like an ordinary commandment, and certainly so when he is in a state of brain death. We should note that he does not distinguish between the physician and the person himself; if it is permitted to the person himself, then it is permitted also to the physician.[29]
There is room to regard the physician as the donor's agent to give his organs to the recipient, and not as an independent actor. True, an agent cannot be appointed for a transgression, but as explained above there is no transgression here but rather a commandment (at least according to the view of the two parties involved, and that is enough to set aside the rationale of 'the words of the Master versus the words of the disciple').
I. The timing of consent
If indeed the permission is based on the rescuer's consent (see above, ch. 6), it is clear that this consent must be given before entering a state of brain death. Is consent that was given in the past valid for the present moment?
One may say that consent given while a person is lucid constitutes appointing the physician as an agent to take the organs and give them to the recipient patient. At first glance, this agency is not nullified even after the principal enters a state of brain death (according to the view that he is considered alive. And if he is dead, then according to all opinions it is permitted to take his organs with his consent, even without the law of agency).[30] It stands to reason that the donor did not retract his consent, neither when he entered the medical treatment that came to save his life, nor at the moment when he entered a state of unconsciousness and brain death.
Even if we remain in a situation of doubt, we return here to the question of doubt discussed above (ch. 7), especially since here there is a prior presumption that he already agreed, and the burden of proof accordingly rests on the one who claims that he retracted. Moreover: if when healthy and whole the person agreed to donate his organs, and nothing deterred him from doing so, now – when he lies unconscious, and already 'has nothing to lose' – certainly his consent remains in force. After all, is this not the case with one who leaves for a distant country and beforehand agreed that another person may enter his field – do we entertain the doubt that perhaps he retracted his consent, or that perhaps he lost his sanity there?!
J. Conclusion and summary
From all that has been said up to this point it emerges that it is very difficult to forbid donation of an organ from one who is brain-dead, if he himself consents to it, even on the assumption that he is considered a living person. This follows from the following chain of considerations:
- Rav Kook left open whether a healthy person may voluntarily give up his life (= a full lifespan) in order to save another person's life.
- Even according to the side that forbids in Rav Kook's doubt, from a global perspective it seems that there is room to permit saving life at the cost of life of lower value. Several decisors held this way (beginning with the Talmudic passage in Horayot, continuing with the Meiri and Sefer Hasidim, and on to those who disagreed with the Noda B'Yehuda and Rabbi Moshe Feinstein, and others). As we saw, the importance of life is measured according to the degree of commandment-observance and the Torah-spiritual importance of the person; this too emerges from the passage at the end of Horayot.
- The value of the life of one who is brain-dead, even if we decide that there is indeed 'life' here, is the lowest possible, lower even than a short span of life (the measure: he cannot fulfill, nor will he in the future be able to fulfill, any commandment). Therefore there is room to say that here, according to all opinions, it is permitted to save another person's life at the cost of his life.
- And all this is said even when it is against the rescuer's will. But if that person willingly consents to surrender his 'life' (if indeed he is considered alive) in order to save another, there is much more room to permit it according to all opinions.
- All this was said on the assumption that one who is brain-dead is considered a living person. But to all this, of course, one must add the other side, according to which such a person is already considered dead, and then there is no problem here at all.
- And even one who questions all these permissions enters the realm of doubt, and there too we argued that the decision should incline in favor of permitting donation of the organs.
Therefore we wish to conclude with a twofold determination:
- The question whether it is permitted to donate organs does not depend at all on the question of determining the moment of death.
- According to all opinions, even according to those who view one who is brain-dead as alive, one should not forbid him from donating his organs; on the contrary, it is a great commandment.
[1]. Part of the discussion in this article already appeared in my article 'Separating Siamese Twins,' Tehumin 27, pp. 144-156, and in order not to repeat it I refer the reader to what is written there, and I will not repeat the discussion here as well. My proposal here is based on the possibility of a person waiving a short span of life, and discussion of this matter has already been undertaken in Rabbi Yehuda Dick's article, 'Organ Donation from a Dying Person to Save Human Life,' Assia 53-54 (14, 1-2), Elul 5754, pp. 48-58; I refer the reader to that article as well so as not to repeat the points. In this article I do not see fit to enter into the discussion of determining the moment of death. Precisely the separation between this question and the problem of organ donation is the central thesis of this article.
[2]. A dispute that reawakened with the passage in the Knesset, in the past year, of the law for determining the moment of death.
[3]. Admittedly, there this is cited on Maimonides, law 15, which deals with the obligation to save a person who is being pursued.
[4]. And see further Or Same'ah, Laws of Murderer 7:8; Meshekh Hokhmah, Exodus 4:19; Klei Hemdah IV, fol. 108d; Mishpat Kohen no. 144; R. Shlomo Yosef Zevin, Le'Or HaHalakhah, pp. 14-16; Tehumin 16, pp. 218-219; and the article by Rabbi S. Za'frani in Tehumin 19, pp. 91-94: 'Risking Oneself for the Sake of Rescue.'
[5]. The author of Havot Yair (no. 146) inferred from this passage the opposite, for specifically there, where if both drink they will certainly die; but in a case of doubt, one may say they should both drink, and not that he should drink alone while his fellow certainly dies. If so, he is obligated to enter into possible mortal danger, even where the rescue itself is uncertain. – 'specifically there, where if both drink they will certainly die; but in a case of doubt, one may say they should both drink, and not that he should drink alone and his fellow certainly die. If so, he is obligated to enter into possible mortal danger, even where the rescue itself is uncertain.'
[6]. The source for this is Sefer Hasidim no. 698. See Tzitz Eliezer XVIII no. 1 sec. 10 and the references there.
[7]. See my above-mentioned article (note 1), as well as Rabbi Dick's article (in that same note), ch. 3, where he shows that this follows from several passages and decisors.
[8]. It would seem that there one does not even need explicit consent when the person is unconscious, although according to some decisors he has the right to refrain.
[9]. See Rabbi Dick, there, ch. 4. However, see there in ch. 6, that any other person is certainly obligated to desecrate the Sabbath in order to save another's short span of life (and not like the highly novel suggestion of Or HaHayyim).
[10]. In my above-mentioned article, 'Separating Siamese Twins,' I used the terminology 'teleological justifications (= purposive, according to the result) and causal justifications.' Here I prefer the terms 'global perspective' and 'personal perspective.' To a large extent these are similar distinctions, though not fully overlapping. These questions touch on a more detailed meta-halakhic discussion, and this is not the place for it.
[11]. However, see Rabbi Dick in his note 4 there, who raised the possibility of distinguishing between permission to give up one's own life (which is the prohibition of suicide, and is therefore lighter) and permission for another to take it (which is murder). See also Tzitz Eliezer XVIII no. 1, who discussed this at length.
[12]. In the notes to the Machon Yerushalayim edition (no. 37*) they referred to Responsa Radbaz, IV no. 1200, who wrote exactly the opposite: that setting aside the Sabbath is incumbent upon those around the patient, and specifically they should transgress the prohibition of slaughter rather than needlessly cause the patient to transgress the prohibition of neveilah.
[13]. The above-cited Radbaz even prefers that others commit the transgression, but his consideration is that the obligation to save is incumbent upon the others, and therefore this is not necessarily a view in favor of our consideration here.
[14]. See the Talmudic Encyclopedia under the entry 'We do not say to a person: Sin so that your fellow may benefit.' See also Shevuot 30b, Tosafot s.v. aval in the second answer, and Kehillot Ya'akov, Berakhot no. 10, and Kuntras Divrei Soferim, no. 3, where his words are discussed. See also my article (scheduled to appear, with God's help) in the Midah Tovah series on Maimonides' Roots, sixth root, part I, ch. 5.
[15]. As we saw above in Maimonides, one who did not save his fellow transgressed do not stand idly by your neighbor's blood. The decisors discussed the question whether one who did not kill a pursuer also transgressed do not stand idly by your neighbor's blood (for in the passage in Sanhedrin 73a a different source appears for this; see Torat Hayyim there, and Sefer HaMafte'ah to Maimonides, Frankel edition, on Laws of Murderer ch. 1, beginning of law 14). Why is there room to distinguish between the cases? In both cases he refrained from saving his fellow, and at first glance there is no reason to distinguish. Perhaps it can be explained that in this rescue the blood of the pursuer is shed while the blood of the pursued is saved (unlike rescue from illness or drowning and the like, where there is only saving of life). If so, from the standpoint of the global consideration, blood is still shed here, and in the overall reckoning no human blood is spared. If so, although there is here indeed an obligation toward the pursued person to save him (from the personal perspective), there is no saving of blood from the global perspective. And so too this seems implied by the words of the above-cited Torat Hayyim.
[16]. See also on this in my above-mentioned article, 'Separating Siamese Twins.'
[17]. Rabbi Feinstein's ruling did not appear in writing in his responsa. For a concise survey, see the article by Rabbi Dr. Mordechai Halperin, Siamese Twins: Rav Feinstein's Ruling And The Subsequent Controversy, ASSIA – Vol. IV, No. 1 February 2001, and the references cited there. Likewise, see the lesson unit of the Ministry of Education that also deals with this question: 'The Story of Siamese Twins,' Uvaharta BaHayyim, Ministry of Education – Curriculum Division, 5759. A broader survey is found in the article by Rabbi Professor David Bleich, who also adopts a halakhic position (different in its conception from that of Rabbi Feinstein precisely on the point of the asymmetry rationale, although in practice in this case he agreed with his ruling), which appeared in the journal Tradition 31, No. 1 (1996), 92-125.
[18]. See Rabbi Dick's article (above note 1), ch. 8.
[19]. See on this at the end of my article on the eighth root, in the above-mentioned Midah Tovah series (note 14).
[20]. And see also Tzitz Eliezer V, Ramat Rachel ch. 28; and in the final chapter of my article, 'Is There an Enlightened Idolatry?', Akdamot 19.
[21]. In defining the value of life there is a danger of a slippery slope – what is, for example, the status of a person of unsound mind who cannot fulfill commandments.
[22]. True, he rules that only the mother can kill the fetus, and not another person. But Beit Yitzhak (Yoreh De'ah no. 60 sec. 2), and Tiferet Yisrael (on the Mishnah in Ohalot), ruled simply that anyone may do so, and this is likewise the plain sense of all the decisors.
[23]. And see Rabbi Dick (above note 1), ch. 5, who discusses why his consent is needed at all.
[24]. As is well known, according to the Brisker Rav these are two different laws. See my article 'Killing to Save Property,' Tehumin 28.
[25]. In my article cited above in note 1.
[26]. To him one may apply the quip about a young Torah scholar who is punctilious in the commandments and seeks out an especially choice pauper on whom to fulfill the commandment of gifts to the poor on Purim. He does not reveal the poor man's needs to anyone, so as not to lose some of his ’embellishment.' This is the reduction to absurdity of the formalistic personal perspective: a person who gives to another in order to 'profit' from the commandment of giving, and not truly in order to help him (= the global perspective).
[27]. Rabbi Dick (above note 23) discusses the question why the donor's consent is required at all, but he deals with a tereifah or a dying person, and there consent can be given at the moment of donation.
[28]. This is not an argument of the global approach. The Hazon Ish claims that even in a private and personal approach there is no transgression here – in his case, the discussion concerns swerving the vehicle in order to save a person who crossed in front of him, but in doing so another person was run over, and there the global consideration does not permit such an act, since that person's blood is not preferable to the other's. The Hazon Ish is only saying that when a person is engaged in rescue one cannot say that he is a murderer, even on the personal plane. But perhaps globality also stands in the background of this determination.
[29]. And he also brought there from Ahiezer and Iggerot Moshe, who ruled that even if the physician failed in the operation he does not transgress murder, for the Torah permitted him to engage in this (unlike those decisors who preferred a non-Jewish physician in situations of doubt and danger).
[30]. And if he is dead, we seemingly enter the issue of the death of the principal. True, according to Ketzot HaHoshen (no. 188 sec. 2), Maimonides' view on this is that even with the death of the principal the agency is not nullified, but this interpretation of Maimonides has already been rejected by many (see the notes of Rabbi Dzhimitrovsky in his edition there). In any event, this problem can be solved through the wording of the consent, according to which the donor gives his organs to the physician while still alive, in order that they be used after his death. This is an authorization that is effective even after death. And although one may debate whether a person has the power to give his organs to someone, if he can surrender his life then all the more so he can give his organs. In any event, for this reason it seems simple that if he is considered dead (for only then is there a problem of agency), then certainly it is permitted to donate his organs even without all this, and therefore there is no real need to resort to the discussion of agency.