Jewish Organ Donation: The Crisis and the Debate
Monthly Learning Forum by Rabbi Yaakov Kermaier: January 15, 2008 I. An Unlikely Chinese Hero Rav Yosef Shalom Elyashiv , who is 97 years of age, is easily the most influential rabbi today in the ultra-Orthodox community in Israel, and his views carry great weight in the Religious Zionist community, as well. People line up around the block for the privilege of approaching him with a question.
This past summer, a physician in Israel asked Rav Elyashiv whether he could escort a patient to China for purposes of receiving an organ transplant. In China, many organs are removed from prisoners who are members of Falun Gong , which at one point had over 70 million adherents and which the government characterizes as an illegal sect. In some cases, the organs are removed while the prisoner is still alive, e.g., for kidney transplants or skin grafts, though some of the involuntary donors probably do not survive for long thereafter. In other cases, prisoners are executed and their organs harvested. Rav Elyashiv ruled that the physician may not facilitate such a transplant, because it is a chilul Hashem (desecration of God’s name). This is so regardless of the condition of the would-be recipient of the organ. Rav Elyashiv’s son-in-law, Rav Yitzchok Zilberstein , has reiterated that this ruling applies even if the prospective recipient is in danger of death .Dr. Yaakov Lavi, head of the Heart Transplant Unit at the Sheba Medical Center, estimated that 200 Israelis had received kidneys from the People’s Republic of China, and 5 had received hearts. He became suspicious, he said, when the Chinese were scheduling a heart transplant months in advance. As Yediot Aharonot has reported: Doctors and human rights activists who were present at the hearing testified that the Chinese use organs of prisoners on death row. Because of the lack of donors in Israel, people in need of a transplant have flown abroad and been saved. Dr Yaakov Lavi, head of the Heart Transplant Unit at the Sheba Medical Center, described how prisoners are "executed by order, under pretext of a sedative, the doctor gives them a shot to dilute their blood, this is important for cropping the organ for transplant. A special ambulance without license plates waits the execution and collects the body for cropping organs." Dr Lavi claimed that if the health organizations spent one percent of the money they spent on funding the transplants on a campaign to encourage donating organs in Israel, the problem could be solved. For many years, the Israeli government paid for transplants from Chinese donors. The policy has now been changed such that the State will not pay for suspect transplants, but Rabbi Kermaier questioned whether this change in policy is being implemented all the way down the line. Rav Elyashiv’s ruling was reported on Chinese television and, thus, probably became the most publicized halachic ruling in history. He said that one who accepts an organ under these circumstances is tantamount to being an accomplice to murder. That the prisoner may be killed in any event and his organs made available to others was, Rav Elyashiv ruled, irrelevant. II. General Principle of Protection and Respect for the Body of the Deceased Since the body is the vessel for life, it is to be respected even when life has departed it. Respect for the body takes three forms, the first two of which are, according to many, of Biblical origin. First, one may not mutilate the body (nivul). Second, one may not delay burial (halana). Finally, one may not derive benefit from the body (hana’ah). A Biblical source for respect for the body appears in Devarim 21:23 (source sheet II), where the Torah states that even the body of a person who has been executed by the court may not be left to hang, but must be buried on the same day. Because mutilation is forbidden, the question arises whether an autopsy may be permitted. It is generally agreed that an autopsy may be performed if it is medically necessary to identify the possibility of an infectious disease, in order to prevent its spread. But what if the autopsy is intended to advance medical research? Rav Yaakov Etlinger said that the point of kavod hamet (respect for the deceased) is to provide the level of honor the person would want for himself. If he waives his honor with instructions that he wishes an autopsy for medical research, his wishes should be fulfilled. A majority of poskim, including Rav Yechiel Michel Tukachinsky , disagreed. As the verses cited above say, disrespect for the body of the deceased is a curse of God, regardless of the intentions of the individual. The Chasam Sofer , moreover, argued that the rules of respect for the deceased are between man and God, not between man and man, and therefore may not be waived. Given his position on autopsy, Rav Etlinger would permit organ donation. Even for those who disagree with him, the concerns of nivul and halana could well be outweighed by pikuach nefesh, the need to save the life of the person requiring the transplant. Thus, the abstract permissibility of organ donation is not the real issue of halachic dispute. III. Harvesting of Organs The real issue, instead, is the time of death. If we remove organs from someone who is halachically still alive and thus bring about his halachic death, we have committed murder. Conversely, if we wait for cessation of the heartbeat, it will be too late to effect most organ transplants. The question, then, is whether life ends with brain death or the final heartbeat. From a halachic standpoint, this is a matter of heated controversy. In the secular legal realm, it is generally agreed that death takes place with the cessation of activity in the brainstem. (See Table I on source sheet.) The legal criteria for brain death were first established in 1968 by the Harvard Ad Hoc Committee on Brain Death , and were later codified in 1981 by the President’s Commission for Study of Ethical Problems in Medicine, in a report entitled Defining Death: Medical, Legal and Ethical Issues in the Determination of Death . The report was written in the aftermath of the Karen Ann Quinlan controversy, in which the New Jersey Supreme Court ruled in favor of a request by the parents of a young comatose woman to remove her from a respirator. (Surprisingly, after the respirator was removed, Karen Ann Quinlan lived for another nine years, until pneumonia claimed her life in 1985.) Now, all fifty states accept brainstem death as death. The brainstem is the respiratory center. When it ceases to function, one who is not on a respirator will die within minutes. The controversies arise because now medicine is mechanically able to keep patients’ hearts beating even after brainstem death. It is scientifically possible to monitor brainstem activity. After brainstem death, there is no function in the other regions of the brain, and there is no known case of someone waking up after this point. Against this background, what does halacha say? As noted above, if we wait for the heart to stop, it will be impossible to remove vital organs in time. But, if we remove the organs too early, we are committing murder. What is more, halacha assigns infinite value to each life, so there is no possibility of terminating Life A prematurely in order to extend the more robust Life B. Rav Moshe Feinstein , the great posek of the last century, ruled that brain death was death. Some authorities say Rav Moshe did not truly so rule, but they are disputed strenuously by Rav Dovid Feinstein (son of Rav Moshe) and Rabbi Dr. Moshe D. Tendler (son-in-law of Rav Moshe and his authority on medical issues). In fact, Rav Dovid Feinstein has said on video that his father ruled it was a mitzvah to harvest organs at the point of brain death. Rav Shlomo Zalman Auerbach , a great Israeli posek and contemporary of Rav Moshe, evolved toward a somewhat different view. One of the doctors he consulted disagreed with Rabbi Tendler about how brainstem death is determined. The doctor told Rav Shlomo Zalman that it is necessary to inject a radioactive isotope into the brain, and the act of doing so could end the patient’s life. Thus, while Rav Shlomo Zalman agreed that brain death is death, it might not be practically possible to confirm the status. There is a halachic principle that we may not even move a goseis (someone hovering between life and death), for fear of hastening his death. Rav Shlomo Zalman concluded, therefore, that we may harvest organs if the test has been performed and confirmed brain death, but we may not request the test. Rabbi Tendler responded in an article that was published after Rav Shlomo Zalman’s passing. He said that the physician advising Rav Shlomo Zalman had got the facts wrong. First, it is not correct to say that the test is being performed only for the benefit of a third party, the potential organ recipient. Indeed, if the test shows that the patient is still living, measures will be taken to try to assist him. Second, it is not necessary to touch or move the patient, because the isotope can be introduced into an existing intravenous line and a monitoring device brought to the bedside to see the results. Many religious physicians in Israel rely on Rav Shlomo Zalman, so there is a very heated debate as to whether he had been misled by the physician advising him. It is a life-or-death issue, as over 100 people a year typically perish while awaiting organ transplants. The Talmud, in Yoma 85a , provides some insight into the question. What if a person is trapped under a collapsed building on Shabbat? Of course, we may violate the Shabbat to try to save his life, but how far may we keep digging before we abandon hope that he may live? The first view cited in the baraisa is until his nose, i.e., suggesting we are measuring breathing, which is commensurate with brainstem activity. The second view is until the heart. So it seems that the baraisa identifies a brain-heart dispute, but this is not entirely clear. Dr. Alexander Tal has recently published an article showing varying texts of this Talmudic passage. Our version is Rashi’s. The versions of other rishonim , however, say that we go till the stomach, rather than the heart, once again suggesting that we are looking for respiration/brain activity. Rav Elyashiv, as well as Rav Herschel Schachter and Rabbi Mordechai Willig , all rely on the final heartbeat as the criterion of death, so the issue remains controversial.The Rambam , in ’Hilchot Tumat Met 1:15 , said that a body does not confer ritual impurity until the soul departs, even if the person is irrevocably injured. On the other hand, if the person has been decapitated, he confers ritual impurity, even though his limbs may still quiver. Rabbi Tendler views brainstem death as physiological decapitation and thus cites the Rambam in support of his view. Rav Elyashiv, on the other hand, contends that physiological and anatomical decapitation are not identical. The Chief Rabbinate in Israel has accepted Rav Moshe’s view of brainstem death as being decisive, and hospitals in Israel are permitted to harvest organs from that point. IV. Live Donors The Radvaz , who lived in the 16th Century, called one who risks death to save another a pious fool. In this vein, Rav Yitzchok Yaakov Weiss of the Eda Haredit forbade live donations of kidneys for transplantation. Rabbi Kermaier surmised that Rav Weiss might have changed his mind in contemporary circumstances, where kidney donations are safer. Under the Radvaz’s formulation, so long as the procedure is reasonably safe, donating a kidney is an act of piety, though not an obligation. This is the view advanced by Professor Abraham S. Abraham in his Comprehensive Guide to Medical Halacha (source sheet IV). V. Organ Trafficking In most Western countries, it is illegal to buy and sell organs for transplant. Bio-ethicists debate, however, whether the proscription is wise. Mark Cherry , in Kidney for Sale By Owner , argues that we should not have a blanket prohibition, which denies the opportunity to save some lives, but rather a creative cost-benefit analysis. Dr. John Dossetor has also written on the issue. A native of India living in Canada, he presented the case of an Indian woman with two unmarried daughters, who was prepared to sell a kidney in order to provide her daughters with dowries. In this case, the fate of the daughters, were they to remain unmarried, might well be worse than of their mother with one remaining kidney. Another case cited by Dr. Dossetor involved a father with a seriously ill daughter. He wanted to sell a kidney to pay for her treatment. No one would object if the daughter’s illness were kidney disease and the father donated his kidney to her. Why, then, should it be objectionable if he sells his kidney in order to provide her with life-saving treatment? Of course, organ trafficking presents risk of abuse. Were the risks fully explained to the donor? Was the donor compensated fairly? From a halachic perspective, Rav Shlomo Goren and Rav Shlomo Zalman Auerbach said there was no impediment to purchase or sale. Rav Goren argued that a mitzvah performed with ulterior motives is still a mitzvah, and selling an organ is such a case. VI. HODS Finally, Rabbi Kermaier called the class’s attention to the Halachic Organ Donor Society (HODS) and its Web site . The final item on the source sheet is a sample donor card, as filled out by Rabbi Allen Schwartz of Congregation Ohab Zedek . HODS gives prospective donors a choice whether to define death as brainstem death or irreversible cessation of heartbeat; Rabbi Schwartz chose the latter criterion. In conclusion, Rabib Kermaier cited a concern that is raised about donating organs when the recipients may well not be Jewish. He cited Rav Moshe’s concern for saving lives in general, not specifically Jewish lives. He suggested that those of us who benefit from living in the benevolent environment of the United States should be willing to have our organs provided, after 120 years, to any American who needs them, regardless of his faith.
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