CORR 216-223



“Would it be in accord with Jewish tradition if we specified in our will that upon the death of either husband or wife, any part or parts of the body may be removed from the corpse and used for any patient in need of organ transplants? If there is no immediate use for the organ, it is our wish that it be preserved for future use.” (Asked of and by Rabbi Louis J. Cashdan, Bowie, Maryland.)


THE FIRST and basic question involved in this inquiry is the question of the permissibility of autopsy in Jewish law. Forty-five years ago Dr. Jacob Z. Lauterbach wrote his classic responsum for the CCAR on the Jewish attitude towards autopsy. He began with the statement that there is no law or regulation expressly forbidding the practice of autopsy to be found in the Bible, or the Talmud, or the Shulchan Aruch. Then he goes on to the fact that the great 18-19th century authorities, Ezekiel Landau (in his responsa, Part II, Yore Deah # 210) and Moses Sofer {Yore Deah 3 3 6) would permit autopsy, but only when there is in the immediate vicinity a patient of whom the doctor says he may well be benefited by what will be learned from the autopsy of the dead person. Dr. Lauterbach comments on this opinion by saying that nowadays with modern communications, whatever a doctor may learn from autopsy in one city can be known almost at once in any other city; and so we may well say that patients who might be benefited by the autopsy are always present. And so he ends the responsum confirming the statement with which he had begun, namely, that there is no law in the classic sources that would expressly prohibit autopsy.

While Dr. Lauterbach’s statement of forty-five years ago is manifestly correct, the whole traditional-legal situation with regard to autopsy has drastically changed since the time when he wrote his responsum. First of all, between the two world wars there was an increase of anti-Semitism in the medical schools of eastern and central Europe. In fact, in certain European countries laws were passed forbidding Jewish medical students the use of bodies for dissection unless Jewish bodies were delivered to the hospitals by the Jewish community. Dr. Lauterbach mentions this fact on the last page of his responsum.

As a result of this anti-Semitism some of the Jewish burial societies (in Warsaw and in Bucharest) actually did hand over Jewish bodies to the medical schools. This action aroused a violent protest on the part of Orthodox rabbinical authorities. Especially to be noted is the literally furious reaction of Eliezer Spiro (“der Muncaczer”) in his Minchas Eliezer, Vol. IV, # 2 8. (By the way, Greenwald in his Kol Bo, on p. 41, cites this responsum as #25, which is a wrong reference.) In this responsum Eliezer Spiro speaks scornfully of the medical profession. He says that all this dissecting of dead bodies which the doctors are doing is simply willful; nothing is actually gained from it, no medical knowledge, no help for any patient. In fact in the Index at the beginning of this book, under the Index # 2 8, he says that there would be no harm to Judaism if Jewish men did not become doctors at all, since most of them become irreligious and violators of the Sabbath.

This extreme outburst on the part of this widely respected Hungarian authority has been surpassed in recent years in the State of Israel. There Orthodox authorities have accused the physicians of the hospitals of forcing autopsy on unwilling pious families. Some doctors were actually threatened with physical harm for performing autopsies. In fact, some of the right-wing Orthodox magazines in America have gone so far as to say that doctors in Israel are making a paying business of sending parts of Jewish bodies to physicians and hos-pitals in other countries.

All this new bitterness on the question of autopsy is of significance to our inquiry. It means that while Dr. Lauterbach is, strictly speaking, quite correct, nevertheless Orthodox opinion has built, since the time of his writing, upon the basis of certain Talmudic statements, a strong prohibitory attitude towards autopsy. See for example the long statement in Greenwald’s Kol Bo, pages 40-45.

The two Talmudic grounds upon which all this antiautopsy attitude has been built up are, first of all, that dissecting a body is Nivvul, an ugification, or a disgraceful handling of it. And secondly, that it is the law that a body should be buried intact and without delay. Therefore if today any Orthodox authority would be asked a question, as presented to us here, the answer would be an immediate and unequivocal negative.

However, liberal-minded people will remain unaffected by the present-day heating up of the question and will be guided by Dr. Lauterbach’s judgment, that there is no real objection in the Talmud or the Codes to autopsy. Once we start from this liberal opinion, we will find that there are actually certain justifications in the traditional law for the line of action which the present inquirers have mapped out for themselves. They are as follows:

Jacob Ettlinger, Rabbi of Altona-Hamburg (1798- 1871) in his Binyan Zion, # 17 0 and # 171, develops the now-classic objection to autopsy, namely, that it is wrong to mutilate the dead for the supposed benefit of the living. In developing his arguments he is confronted with a case given in the Talmud which clearly argues the very opposite. In the tractate Arachin 7a, we are told that the body of a pregnant woman who had just died may be opened in order to save the child to whom she was about to give birth. Is this then not a mutilation of the dead for the benefit of the living? Ettlinger disposes of the implications of this Talmudic statement (which would seem to permit autopsy) by saying that an operation upon a mother to bring forth a child is not really a mutilation at all. We frequently have such operations for living mothers (Caesarean operations) and it is not to be considered a mutilation or a shameful handling of the body. Ettlinger, in making this answer to the Talmudic question, indicates that if there were not a visible mutilation of the body, then there can be no objection, or at least there is less objection to such a dissection for the benefit of the living. It is quite possible, therefore, in the case mentioned in this inquiry, to say that just as the child is removed by operation without mutilating the appearance of the body of the mother, so too these various internal organs may well be removed without a visible mutilation of the body, and thus certainly the removal of the organs would on this ground at least be more or less unobjectionable. Of course, if the bodies are to be dismembered for bone banks, etc., then this argument would have no validity. But if only the internal organs are removed, and the body shows no manifest signs of mutilation, then it well may be argued, as Jacob Ettlinger did, that this procedure does not constitute shameful handling or Nivvul.

Having disposed of the problem of the autopsy mentioned in the Talmud in Arachin, Ettlinger then develops an even stricter opposition to autopsy than did Ezekiel Landau or Moses Sofer. He would not even permit, as they did, an autopsy, even if there is a patient actually present who might benefit from it. Yet even though he is stricter than the other two authorities, he says that while autopsy is to be considered of course a shameful affront, Nivvul, to the dead, nevertheless if a man himself in his lifetime gives consent to autopsy, or even sells his body for medical use, then such an autopsy could be permitted, since a man has a right to dispense, if he wishes, with any honors or dignities to which he might be entitled. There are some scholars who object to this right of previous consent, as for example, Moses Schick in his responsa, Yore Deah 347-8. J. Tekuchinski (Talpioth, Vol. 9, 4-5, p. 58) denies that a man has a right to dispose of his own body in this way. Nevertheless, even in Israel, in the midst of all the present dispute, there are scholars who accord a man the right to permit autopsy upon his own body (Greenwald mentions this on p. 43). Hence these people who have raised the present inquiry have the right to dispense with the traditional dignities of having their bodies buried intact and immediately; and may, according to a considerable part of Jewish religious leadership, make arrangements for the autopsy on their own bodies.

But all of this deals with only one of the two objections against autopsy, namely, the prohibition of mutilating the body (Nivvul). There remains, however, the second basis for the opposition to autopsy, namely, that since the entire body must be buried, it is a sin to delay the burial of any part of it (larger than the size of an olive) and certainly a sin to keep certain parts from burial altogether.

However, even this objection is not completely decisive. If these organs taken from these bodies are transplanted into the bodies of living patients, they become part of these living bodies and cease to be in the category of parts of a dead body which by law must be buried. This opinion is expressed by Moses Feinstein of New York (who is the prime Orthodox authority in America) in his Igros Moshe, Yore Deah 229 and 230, and also a similar opinion is given by Nahum Kornmehl in his Tiferes Z’vi, #75 (compare discussion in Current Reform Responsa, p. 119 ff.).

There remains, however, one final difficulty which arises in case there are no recipients immediately available for these organs. The difficulty is that these organs will now have to be preserved until such time as they can be used. In that case there may well be a lengthy and forbidden delay of the burial of the parts of a dead body. There is, however, one possible mitigation of this difficulty. It is the opinion of Rashi (as opposed to the opinion of his grandson, Rabbenu Tarn) that once a coffin is closed (Nistam Ha-Golel) that enclosing of the body may be considered to constitute its burial. Cf. the discussion and references in Reform Responsa, p. 152 ff. This is a far-reaching decision which is relied upon when a body is put into a coffin and taken away to another city; mourning can begin immediately after the enclosed body is taken away. This decision has also been relied upon when there was a grave-diggers’ strike and bodies could not be buried for weeks. The closing of the coffin constitutes burial and the process of mourning can begin. That being the case, we may give consideration to the fact that these organs removed from the bodies do not just lie around. They are carefully preserved. They are kept enclosed and even sealed. Therefore we may say that this com-plete enclosing constitutes their burial. When they are later used and are, as it were “disinterred,” they become a living part of another human body. Then, of course, they require no burial at all, being now part of a living being.

To sum up: While it is true that there is no clear prohibition in Talmud or Codes against autopsy, there has developed in recent years a strong and even bitter opposition to it. However, if the body is not dismembered but kept outwardly intact, the removal of the internal organs need not be considered shameful handling or Nivvul. Moreover, many authorities permit a person in his lifetime the right to make provision for autopsy on his own body, as these people are now doing. If the organs from their body are transplanted successfully, they become part of a living body, and are no longer liable to the laws of burial. Until that time they are hermetically sealed, which may be considered equivalent to burial.