NYP no. 5763.2

CCAR RESPONSA COMMITTEE 

5763.2

Live Liver Transplantation

She’elah.

My question concerns the medical procedure known as live liver transplantation, in which a significant part of a donor’s liver is removed and transplanted into the body of a recipient. This is unlike the case of live kidney donation. There, an individual who donates one of two healthy kidneys places him- or herself in no serious danger aside from the risks normally associated with major surgery (e.g., from anesthesia), so that the life-saving benefit to the recipient far outweighs the risk incurred by the donor. In the case of live liver donation, the donor faces a much greater degree of danger. This means that the risk-benefit comparison, which is so favorable with respect to live kidney donation, is much more difficult to assess.

According to our understanding of Reform Judaism, is it ethical to conduct this procedure? Should we permit an individual to risk his or her life and health by donating a large section of his or her liver, even if this would save the life of the recipient? How does this procedure comport with the basic medical ethic of “do no harm”? And how do we evaluate this procedure in light of the concept of “informed consent,” a standard so much a part of the current medical environment? Can there really be “informed consent” when a person is asked to put his or her life in danger? Can there be “informed consent” when it is a family member in need and when “no” is not an answer easily lived with? (Rabbi Deborah Pipe-Mazo, New York, NY)

Teshuvah.

Before we begin our teshuvah, we should acknowledge the principle that stands behind it and that guides it throughout: the mitzvah of healing, refu’ah.[1] The practice of medicine is the most common means by which we fulfill the obligation to preserve human life (pikuach nefesh), a duty that takes precedence over virtually every other core Jewish value. All Jews, we would think, agree on this general point. Where we disagree is on the specifics: what, in any particular situation, constitutes an acceptable practice of “medicine”? That is the case here, with our she’elah. Our generation has long since accepted the proposition that organ transplantation from donors dead or living is a valid form of medicine, of the healing arts. Yet as our questioner notes, some transplantation procedures seem to pose an unacceptable risk to the living organ donor, thus constituting an example not of medicine but of the “harm” that physicians must not inflict upon their patients. In framing our response, we shall first consider the issue of organ transplantation in general: what are the circumstances under which Jewish law, according to our understanding of it, permits the donation of a human organ from a dead or a living person to help save the life or health of another? How does the element of risk, the danger to the living organ donor, affect the calculation of these circumstances? At that point, we will be in a position to ask whether our tradition forbids, permits, encourages, or even requires an individual to donate part of his or her liver to another human being.

  1. Cadaveric Organ Donation. As of this writing, nearly eighty percent of all organs transplanted in the United States are taken from deceased donors.[2] Given the large number of potential organ recipients who currently await transplantation[3] and the efforts by governments and other institutions to encourage individuals to become organ donors upon death,[4]it is clear that cadaveric organ donation is a critically important resource in the struggle against disease. For this reason, we might suppose that Jewish law, which places such great emphasis upon the mitzvah of healing, would raise no objections to this practice. Yet it is far from obvious that this is so. The harvesting of organs from deceased persons might well conflict with another central Judaic value, that of kevod hamet, the obligation to respect the dignity of the dead. This respect entails that human remains are to be quickly and properly buried; we are not to utilize or manipulate them for our own purposes, even for the fulfillment of the mitzvah of refu’ah.[5] “The dead,” it has been noted, “are not obligated to fulfill the commandments…and we are (therefore) not empowered to deny them the honor that is their due.”[6] In particular, the use of cadaver organs for transplantation would seem to conflict with three separate ritual prohibitions:[7] the ban against deriving benefit or profit from the dead (isur hana’ah min hamet),[8] the disrespectful treatment of the corpse (nivul hamet),[9] and the delay in burial of the remains (meni`at hakevurah).[10]

Halakhic authorities, however, have come to recognize organ donation as an exception to each of these prohibitions. For example, Rabbi Isser Yehudah Unterman, a former chief rabbi of Israel, rules that the positive duty to preserve human life (pikuach nefesh) outweighs the prohibition against deriving benefit from the dead. As additional support, he offers the novel argument that the prohibition ceases to apply “when these organs are ‘resurrected’ [i.e., through the process of transplantation]” and can be considered “alive” rather than “dead.”[11] Various poskim waive the proscription against “disrespectful treatment” when the otherwise forbidden act is undertaken for a good and appropriate reason.[12] And once an organ has been transplanted into the body of the recipient, it is no longer part of the body of the deceased and thus no longer subject to the requirement of burial.[13]

Reform Jewish tradition concurs with this permissive view. Indeed, we teach our people that organ donation is a mitzvah,[14] and we are not so concerned in this regard with the various prohibitions concerning the handling of the remains of the deceased. This is not to say that we do not believe that the dead deserve respectful treatment, but simply that the traditional definitions of kevod hamet and nivul hamet came into being long before medical science developed the technologies of organ transplantation. Now that physicians and surgeons can save many lives through these procedures, they have become an integral feature of the legitimate practice of medicine. In this new scientific reality, the operative rule is the dictum that “any and all measures, with the exception of idolatry, sexual immorality, and murder, may be utilized for the sake of healing.”[15] Cadaveric organ donation is included in these measures. It is a mitzvah, and it must not in any way be associated with the acts that our tradition condemns as disgraceful treatment of the dead.

  1. Organ Donation By Live Donors. When a suitable cadaveric organ is not available for transplantation, doctors may take an organ from a live volunteer. From the standpoint of Jewish tradition, an organ donor fulfills one of the most profound duties recognized by the Torah: the mitzvah to rescue a person from mortal danger. As the Talmud states:

From where do we learn that if one sees his fellow drowning in the river, attacked by wild beasts, or endangered by robbers that one is obligated to save him? “You shall not stand idly by the blood of your neighbor” (Leviticus 19:16).[16]

This obligation, however, may conflict with another requirement, the duty to preserve one’s own life, which stems from the obligation to preserve human life in general (pikuach nefesh). The Rabbis learn this obligation from Leviticus 18:5: “These are the mitzvot…that a person shall perform and live by them,” to which the Midrash adds: “and not die by them.”[17] This implies that a person should not perform a mitzvah if that act endangers his or her life. Thus, the prohibitions against work (melakhah) on Shabbat and the commandment to fast on Yom Kippur are waived when the observance of these mitzvot would jeopardize an individual’s life or health.[18] It follows that the mitzvah of rescue is also annulled when that action would endanger the life of the potential rescuer.

We shall examine this question in some detail below, because it is central to every halakhic discussion concerning the propriety of organ donation. For the moment, let it suffice to say that, in Jewish terms, the ethical issue demands a measurement of the degree of risk in each particular case. While halakhah forbids suicide and does not require us to risk mortal danger in order to fulfill the commandments (including Leviticus 19:16), halakhic authorities are generally willing to permit a living person to donate an organ when physicians judge the operation to pose no serious risk of death or injury to the donor.[19]

  1. Live Liver Transplantation: The Procedure. What degree of risk does live liver donation pose to the donor? The surgery[20] usually involves the taking of the left lateral part of the liver from the donor. The principal arteries, veins, and biliary ducts of the donor organ are connected to the corresponding vessels and ducts of the recipient. The cut vessels and ducts on the surface of the donor liver are sealed to minimize leakage of blood or bile. The incision is then closed. Those who perform the surgery argue that it is safe, on the basis of several facts: a) an individual with a normally functioning liver can survive a 75% loss of liver tissue; b) no more than 30% of the donor liver mass is excised; c) in the above case, the donor’s liver should regenerate in one month; d) the donor will recover most, if not all, of his or her liver function. The above applies to donation of the left lobe of the liver; some researchers have obtained similar results when taking the donor’s right liver lobe, a more difficult and potentially dangerous procedure.[21] A team of Japanese physicians, surveying 470 cases of live liver transplantation at Kyoto University hospital from 1990 to 1999, found no donor deaths and concluded that “the morbidity of living donors is low or minimal even for right lobectomy, the most extended procedure, and complete recovery can be expected in all cases.”[22] An American survey published in 2000 estimated that donor death occurs in 0.2% of cases of adult donors and 0.13% for pediatric donors; among other cases, “all donors returned to predonation activities,” most by the end of three months following the surgery and all by the end of one year.[23]

Yet some observers are more cautious in their evaluation of the data. In the opinion of one expert, although “formidable success appears to have been attained with the adult-to-adult procedure thus far,” the world “still awaits center-specific and compiled data to determine whether the procedure truly reduces adult waiting list times for liver transplant recipients with minimal donor risk.”[24] The director of a live donor program in Massachusetts states frankly that “adult living liver donation is much riskier (than living kidney donation), and there is little published data on rates of complications and mortality among the donors.”[25] A recent study finds that while the mortality rate for live liver donations is low, the rate of complications (morbidity) is “significant”: 65 of the 449 donors surveyed (14.5%) experienced one or more complications of donation, including bile leak (in 27 donors), the need for blood transfusion, and the need for a subsequent operation.[26]

The evidence, therefore, presents a decidedly mixed picture. Live liver donation is “safe” in that many medical practitioners believe its risks to be manageable: the overwhelming majority of liver donors survive the operation and recover full function. Yet the procedure is definitely a serious one; liver donors do risk more significant medical complications than those posed by donors of other organs.

  1. Live Liver Transplantation: The Ethics. In addressing this question, our sho’elet refers to two separate and distinct ethical traditions: the philosophical discourse known as “secular medical ethics” and the tradition of Jewish thought and lore that we generally designate as halakhah. Concerning the former, she asks whether the procedure transgresses against the guiding medical-ethical principles of nonmalfeasance (“above all, do no harm”[27]) and of informed consent. The response in the first case depends, we think, upon one’s definition of “harm.” For example, some argue that organ donation is not “harmful” so long as “the benefits to both donor and recipient… outweigh the risks associated with the donation and transplantation of the living donor organ.”[28] This general standard may very well apply to live liver transplantation, which is a clear benefit to the recipient and which, it can be argued, may not pose an unacceptably high degree of risk to the donor. The second principle, on the other hand, presents a greater difficulty. “Informed consent” means, first, that a patient agrees to a suggested medical procedure only when he or she has been supplied with all material information that a reasonable medical layperson would consider significant with regard to that decision, and second, that the patient make his or her decision in an autonomous manner, free of coercion.[29] Yet, as our sho’elet notes, “autonomy” and “informed consent” may not apply in a situation such as ours, where the potential donor is likely to be a family member operating under powerful emotional pressures to agree to the surgery. This is a telling point. Research indicates that decisions concerning organ donation are often made quickly, as soon as the possibility is raised to the potential donor, and not on the basis of deliberation or informed consent.[30] Indeed, concludes one study, “informed consent in living donation is a myth,” because the context in which the donor must choose guarantees that the decision cannot be made in a coercion-free manner.[31]

The Jewish ethical tradition, as we have seen, would analyze our she’elah in accordance with the conflicting duties of rescue and of self-preservation: if the attempt to rescue would endanger the life of the would-be rescuer, then he or she is not required–indeed, is forbidden–to make the attempt. The logic of this prohibition is as stark as it is elegant: since each human being is created in God’s image, then each human life possesses the same intrinsic value. No life is more “worthy” of preservation than another; although my blood is no redder than yours, neither is your blood any redder than mine. One who risks mortal danger in order to rescue another is thereby making the ethically-unacceptable calculation that the value of the other’s life surpasses that of his or her own. In the event that we must choose between saving one life or another, the only sure course is to make no “choice” at all, to allow events to take their course, even if that means that the endangered person will die.[32]

Does this rule govern our case? Although the live liver donor does undertake a certain degree of risk, that risk is much less than the danger to the life of the patient who needs the transplant. To put this into traditional halakhic terminology, the donor enters a situation of safek sakanah (possible, but less-than-mortal danger), while the patient is in a situation of vadai sakanah (mortal danger). We would therefore ask: does vadai outweigh safek? Granted that one need not risk mortal danger to save the life of another, is one permitted–or even required–to accept a lesser degree of risk in order to fulfill the duty of rescue, the obligation imposed by Leviticus 19:16?

We begin our answer with what must be considered the predominant view in the halakhah. Most halakhic authorities who have considered this question rule there is no obligation to rescue when the attempt would involve even safek sakanah to the life of the rescuer.[33] Their analysis tends to being with the words of Maimonides, who codifies the rule of rescue as follows: “One who is able to rescue (kol hayakhol lehatzil) and does not do so violates the commandment ‘you shall not stand idly by the blood of your neighbor.’”[34] Some suggest that by these italicized words, which do not appear in the Talmudic source of the rule, Rambam seeks to place limits upon the requirement when the element of risk is present. R. Menachem Hame’iri, for example, writes that one is required to attempt the rescue “if one is able to do so (yakhol lehatzilo) in the absence of danger (belo sakanah).”[35] Hame’iri, of course, might be referring here to vadai sakanah, mortal danger. R. Yoel Sirkes, however, reads less-than-mortal risk into Maimonides’ words: “when Rambam writes ‘one who is able to rescue,’ he refers to a situation in which one is certain (be-de’ein safek) that he will be successful in the attempt. One is not, therefore, obligated to risk potential danger (safek sakanah) in order to rescue another.”[36] A leading commentator interprets the Shulchan Arukh to the same effect.[37] Many authorities go farther, ruling that one is forbidden to enter into a situation of potential danger to save a person whose life is in mortal danger.[38] They base this conclusion upon various passages of the Talmud[39] as well as a strictly literal (and eminently logical) reading of Leviticus 18:5: if one is commanded to live and not die by the mitzvot, then one is forbidden to place one’s life in any jeopardy whatsoever, to risk even the possibility of death (safek mitah) in order to perform any mitzvah, including the duty to rescue.[40] R. David ibn Zimra (Radbaz, 16th-17th cent. Egypt) offers a somewhat different line of reasoning in a famous responsum. Suppose, he was asked, that the sultan were to give a Jew the following choice: either let me cut off one of your limbs, or I will kill one of your fellow Jews. Is the first Jew obligated to undergo the “surgery,” inasmuch as he faces a lesser degree of danger than does the second Jew? Radbaz answers that such a demand would offend against reason and common sense (hasekhel vehasevara). Since the Torah’s ways “are ways of pleasantness,”[41] we cannot imagine that it would impose such a moral obligation upon us. Whoever enters a situation of safek sakanah in order to fulfill the mitzvah of Leviticus 19:16, concludes Radbaz, is a “pious fool” (chasid shoteh).[42]

With these considerations in mind, contemporary poskim arrive at their decisions concerning organ transplantation. R. Yitzchak Ya`akov Weiss, basing himself in large part upon the responsum of Radbaz, forbids live kidney donation on the grounds that the surgery and the possible subsequent complications place the donor in a state of safek sakanah.[43] While other authorities permit live kidney donation, they tend to do so because physicians report that the surgery has become routine to the point that it poses no risk, not even safek sakanah, to the donor.[44] If, on the other hand, kidney donation did pose such a risk, these authorities, too, would likely prohibit the surgery. Given that, according to the medical data we have surveyed, live liver donation surgery is regarded as significantly “riskier” than kidney donation, it surely constitutes safek sakanah. If so, then in light of the position we have just described, an individual is not obligated–and may well be forbidden–to donate part of his or her liver for transplantation.

The foregoing, however, is but one side of an old dispute in Jewish law. There is another side, a different voice that emerges from our source. It is a voice that declares, against the predominant view we have just described, that we are obliged to rescue our fellow human being even when the attempt would place us in potential danger (safek sakanah). This interpretation is supported by several arguments. First, none of the passages from the Babylonian Talmud that are usually cited on this question clearly state that one is forbidden to risk safek sakanah in order to save another. True, it is possible to derive that conclusion from those passages, but an interpreter need not do so.[45] In fact, one can just as easily arrive at the opposite decision on the basis of those very sources[46] and others.[47] Second, none of the major halakhic compendia, such as Maimonides’ Code, the Tur, or the Shulchan Arukh, rule that the obligation to rescue is annulled in the face of safek sakanah. Again, it is possible to read these works in such a way as to support that ruling, but one is not compelled to do so by the logic of the texts.[48] Finally, commentators have for centuries cited a passage from the Talmud Yerushalmi as evidence that one is indeed obliged to accept a lesser degree of danger in order to rescue a person whose life is in mortal danger.[49] Although that passage, like those in the Babylonian Talmud, is hardly free of difficulty,[50] some poskim do rely upon it for purposes of halakhic decision.[51]

The “other” view, a more stringent interpretation of the duty ro rescue, has never been completely vanquished by its opponents. It has, in fact, exerted a constant and considerable influence upon the pesikah (halakhic decision) of a number of authorities who hold to the predominant halakhic position. In his Arukh Hashulchan, R. Yechiel M. Epstein (19th-20th cent. Lithuania) writes:[52]

The poskim cite the Talmud Yerushalmi to the effect that a person is obligated to risk safek sakanah in order to rescue his fellow. This passage has been omitted from the earlier codes, since our [i.e., the Babylonian] Talmud takes the opposite position. Each instance, however, must be judged on its own merits. One should weigh one’s decision carefully and not protect himself more than is necessary (yoter midai)… for when a person saves one Jewish life, it is as though he has saved an entire world.[53]

A commentator to the Shulchan Arukh states the point as follows:

One should in any event weigh the situation carefully, to determine whether it is in fact a case of safek sakanah, and not to be overly strict (shelo ledakdek beyoter) in the matter. As we have learned elsewhere, one who is overly strict in insisting upon his own rights will one day lose that which he seeks to protect.[54]

These remarks express a tension between what the authors perceive as the letter of the law and what we might call the law’s higher aspirations. The authors are aware that a too-literal application of the halakhah’s minimum standard, the mitzvah of self-preservation, will allow the individual to exempt him- or herself in virtually all cases from the mitzvah of rescue. Yet such an outcome sharply conflicts with the Torah’s vision of the just and compassionate society. Nowhere is this tension more evident than in the words of Rabbi Isser Yehudah Unterman:[55]

Since the leading codes do not rule explicitly (that one is obligated to assume potential danger in order to rescue), the uncertainty in the law requires that we apply the rule “your own life takes precedence.” Yet we must define what we mean by safek sakanah. Not every fear or concern on the part of the would-be rescuer deserves to be called “danger.” For example, if a person is drowning in a river, and a man is present who knows how to swim, but this man worries lest he catch cold on account of the chilly water–can this really be called safek sakanah? Suppose that a person hears his neighbor cry for help against men who are attacking him. Is this person exempt in any such case from offering assistance, simply because he fears that the attackers may harm him?

We agree: a literal application of the predominant halakhic viewpoint–if, indeed, that viewpoint is the “correct “ understanding of the Jewish law of rescue–can lead to absurd and intolerable consequences. A community whose citizens press the mitzvah of self-preservation to its legal and logical extreme is a community defined by selfishness, where none will reach out to aid their endangered brothers and sisters.[56] It is a community where the qualities of personal courage, nobility, and selflessness do not exist. It is the sort of community in which none of us would wish to live. Our understanding of Torah, of Jewish tradition, and of our ethical responsibilities to our fellow human beings demands that we balance the predominant viewpoint, which grants us the necessary right to safeguard our own lives from danger, with the minority viewpoint, which reaches beyond this bare minimum standard of conduct toward a higher aspiration for our lives. What this means in practice is that those who teach and interpret Jewish tradition must find a way to say “yes” to the decision to become a live organ donor, even when that decision involves a degree of risk to the one who makes it.

Various poskim do just that. In addressing the question of live kidney donation, Rabbi Moshe Feinstein notes that the commandment to preserve one’s own life supersedes virtually all other obligations; under its terms, we are even forbidden to place ourselves in a situation of possible danger. Still, he rules that the duty to rescue may be an exception to this rule. Since the purpose of rescue is to save a human life that is equal in God’s eyes to our own, then although one cannot be required to endanger himself to rescue, “it is obviously permissible to risk potential danger (safek) to save a person who faces mortal danger (vadai).”[57] In dealing with the same question, Rabbi Ovadyah Yosef writes that “it is a permissible act and a mitzvah (mutar vegam mitzvah) for a person to donate one of his kidneys to his fellow.”[58] By mitzvah, Rabbi Yosef clearly means that the donation of a kidney is a meritorious and praiseworthy act though not an obligatory one, for which he would have used the word chovah.[59] A mitzvah, in this sense, is an act that is encouraged if not necessarily required of us, an act that, if performed, is worthy of our commendation and respect, an act that reaches the higher aspirations that Torah would have us set for our lives. Both these rabbis, in other words, uphold the predominant interpretation of the halakhah, but they refuse to let it confine them like a straitjacket. They want the religious Jew to consider a choice that advances beyond that which the law absolutely requires. Aware that today’s surgeons are not to be compared to the sultan’s executioner, they know that the act of organ donation, in a procedure that is carefully supervised by medical professionals, is hardly the behavior of a”pious fool.” To put this another way, they read the halakhah not only according to its predominant interpretation but also according to the minority viewpoint that calls upon us to realize a more demanding standard of moral conduct.

It is the way that we, too, read our Torah and apply it to the she’elah before us. The question we consider here–the assumption of personal risk in order to save the life of another–is a difficult one that admits of two plausible answers. Accordingly, our tradition would have us address it in a way that does justice to both sides. On the one hand, the majority interpretation of Jewish tradition reminds us that undertaking a risk to one’s life, even when that risk is safek or potential, is a fateful decision that should not be forced upon a person. This is all the more true in the case of live liver donation, a procedure that poses a greater degree of risk than do other kinds of safek sakanah. Yet the minority position, the “other voice” that emerges from our sources, teaches us that a person’s free and reasonable decision to become a live liver donor and thereby save the life of a fellow human being is by no means a violation of Jewish law and ethics. On the contrary: it is a choice that reflects Judaism’s highest legal and ethical standards.

 

Conclusion. All of the above leads us to the following points.

  1. Jewish tradition sees the preservation of human life as a mitzvah of the highest order. By its terms, we are required to protect ourselves from danger and to rescue, if we can, the lives of those in harm’s way.
  2. In the event of an unavoidable clash between these two requirements, if the attempt to rescue another person would pose a mortal danger (vadai sakanah) to our own lives, we are forbidden to attempt the rescue. In such a case, we learn that “your own life takes precedence” (chayekha kodmin; BT Bava Metzi`a 62a).
  3. The tradition gives us no unambiguous guidance should the attempt to rescue another pose a less-than-mortal danger (safek sakanah) to our lives. Most halakhic authorities rule that one is not obligated, and is perhaps even forbidden, to risk safek sakanah in order to save another. At the same time, the opposing viewpoint, which permits or even requires us to take on safek sakanah in such an instance, is at least as well supported by our sources. That more stringent minority viewpoint reflects a higher standard for our duty to our fellow human beings, a higher aspiration for our moral conduct.
  4. Since live liver donation involves a measure of risk to donor, an individual cannot be required to undergo that procedure in order to save the life of another. Indeed, that very refusal to serve as a donor can be seen as fulfilling the mitzvah of Leviticus 18:5, the duty to preserve one’s life. That decision is a valid Jewish choice, and we must not criticize a person for making it.
  5. The procedure’s risks, though not insignificant, are manageable, so that the donor is far more likely to recover full physical function than to suffer permanent medical complications. One is therefore permitted to serve as a live liver donor, thereby fulfilling the mitzvah of Leviticus 19:16, the duty to rescue. That person sets an example of nobility and courage worthy of our admiration and even our emulation.
  6. We recognize that the value of “informed consent” is exceedingly difficult to realize in situations such as this. Potential liver donors are often family members of the patient, subject to the sorts of emotional pressure that negate the likelihood of an autonomous, non-coerced decision. Yet this does not mean that an ethical decision for live liver donation is impossible to obtain. First, we must remember that ethical decisions are made in the real world, a world in which every one of us lives within a tight web of social connection and in which none of us is immune to the “pressures” of social and family life. The demand for total autonomy, therefore, is unrealistic. Second, while “pressures” cannot be entirely avoided, physicians, other medical personnel, and, indeed, the family’s rabbi can make sure to that precautions are taken to protect the would-be donor against excessive pressure.[60] They can also remind him or her that one is not obligated to say “yes,” that “no” is also a legitimate decision.

NOTES

  1. For sources and discussion, see our responsum no. 5761.7, “Human Stem Cell Research,” section 3, at notes 5ff.
  2. The data, covering the period from January 1, 1988 – March 31, 2003, are collected by The Organ Procurement and Transplantation Network, the unified transplant network established by the United States Congress under the National Organ Transplant Act (NOTA) of 1984. (These figures deal with the following organs: kidney, liver, pancreas, heart, lung, and intestine. Other donations (for example, corneal tissue) are not included.
  3. As of this writing, more than 82,000 persons are currently on waiting lists for organ transplantation in the United States, while 6,279 transplantation were performed in the United States during the first three months of 2003. See the data collected by UNOS ( ), the non-profit, scientific, and educational organization that administers the Organ Procurement and Transplantation Network.
  4. Resources and information may be found at the website , sponsored by the United States Department of Health and Human Services. Among the many organizations that actively promote organ donation are the American Medical Association ( ) and the Coalition on Donation, an alliance of for-profit and not-for-profit organizations ( ).
  5. Yechiel M. Tucazinsky (20th cent. Eretz Yisrael) entitles the fifth chapter of his Gesher Hachayim, a treatise on the Jewish law of mourning and burial, “kevod hamet.” The chapter begins with a one-sentence paragraph: “whosoever takes part in the preparation and burial of a human corpse must bear in mind that he is dealing with a holy thing.”
  6. Yitzchak Ya`akov Weiss (20th-cent. England and Israel), Resp. Minchat Yitzchak 5:8.
  7. See R. A. S. Avraham, Nishmat Avraham (Jerusalem, 1982), Yore De`ah 349:3, pp. 261-264. On all the following, we are indebted to our colleague, Rabbi Moshe Zemer, for his article “Terumat eivarim vehahalakhah,” in R. Cohen-Almagor, ed., Dilemot be-etikah refu’it (Jerusalem: Van Leer Institute/Hakibbutz Hameuchad, 2002), 265-282.
  8. BT Sanhedrin 47b; Yad, Avel 14:21; Shulchan Arukh Yore De`ah 349:1.
  9. The phrase nivul hamet is not found in the classical rabbinic sources. Indeed, the word nivul as “disgraceful treatment” is applied twice by R. Yehudah b. Ilai to activities with respect to living persons: a form of cosmetics ( Mo`ed Katan 1:7) and a form of execution (M. Sanhedrin 7:3).On the other hand, the concept of nivul is used with respect to the dead in various places, including BT Arakhin 7a, Mo`ed Katan 27b-28a, and Bava Batra 154a.
  10. The mitzvah to bury the dead in the ground is derived from Deuteronomy 21:23; see BT Sanhedrin The prohibition against unnecessary delay in burial is found in M. Sanhedrin 6:5, Yad, Avel 4:8, and Shulchan Arukh Yore De`ah 357:1.
  11. Rabbi I. Y. Unterman, Shevet Mi’hudah (Jerusalem: Mosad Harav Kook, 1955), 54-55. Rabbi Unterman, who admits that his chidush (novel legal argument) is at first glance somewhat “strange” (muzar), compares organ transplantation to famous instances of resurrection (techiyat hametim) in the Bible (g., Ezekiel 37; II Kings 4): just as there is never a question of forbidden hana’ah in those Biblical cases, so there should be no similar issue with respect to transplantation. Like many chidushim, Unterman’s is forced and, we think, ultimately unpersuasive. Kidneys, corneal tissue and other organs retrieved from corpses are in fact “dead,” not “living,” at the time of the transplantation. Techiyat hametim, moreover, pertains not to the realm of human science but to the miracles traditionally associated with the end of days. The argument that pikuach nefesh takes precedence over the prohibition against deriving benefit from the dead is more than sufficient to permit this medical procedure. Still, Rabbi Unterman’s suggestion is an important example of the power of creative thinking in halakhah–a trait not restricted to liberal rabbis–and of the readiness of a leading posek to find a way to transcend the existing conceptual structure of Jewish law in a situation where it is vital to forge an affirmative response.
  12. Ovadyah Yosef (20th-21st cent. Israel), Resp. Yabi`a Omer 3, Yore De`ah, no. 23. The classic precedent is provided by R. Yechezkel Landau (18th cent. Bohemia), Resp. Noda Bi’hudah 2, Yore De`ah 210, who permits autopsies when the procedure is needed to uncover information to save the lives of persons “in our presence,” despite the fact that autopsy was generally regarded as an instance of nivul hamet. See as well R. Shaul Natanson (19th cent. Galicia), Resp. Sho’el Umeshiv I, 1:231, who permitted the exhumation and examination of a corpse in order to determine its identity and to permit the deceased’s wife to remarry; nivul hamet applies only when the “desecration” is committed for no valid purpose, and sparing a woman from the fate of the agunah is indeed a valid purpose.
  13. Yabi`a Omer 3, Yore De`ah, no. 22. R. Yosef cites the opinion of Rabbi Unterman (see at note 11) in this context.
  14. For example, the “Matan Chaim” program of the Union of American Hebrew Congregations ( ) actively encourages organ donation.
  15. BT Avodah Zarah 25a; Yad, Yesodey Hatorah 5:6; Shulchan Arukh Yore De`ah 155:2.
  16. BT Sanhedrin The passage goes on to ask why the verse from Leviticus is necessary, seeing that the duty to rescue one’s fellow is also derived from Deuteronomy 22:2. It answers that the Leviticus verse adds an obligation to hire others to perform the rescue when one cannot personally perform that action.
  17. BT Yoma
  18. For details, see Shulchan Arukh Orach Chayim 328 and 618.
  19. See below at note 44.
  20. The Responsa Committee expresses its deep gratitude to the Committee on Bioethics of the Union of American Hebrew Congregations, chaired by Harvey S. Gordon. M.D., for its invaluable assistance in the collection and analysis of the relevant scientific data.
  21. T. Fan et al., “Safety of donors in live donor liver transplantation using right lobe grafts,” Archives of Surgery 135:3 (March, 2000), 336-340.
  22. Fujita et al., “Hepatic grafts from live donors: donor morbidity for 470 cases of live donation,” Transplantation International 13:5 (2000), 333-339.
  23. F. Renz and J. P. Roberts, “Long-term complications of living donor transplantation,” Liver Transplantation 6 (6 Suppl 2), S73-76.
  24. S. Seaman, “Adult living donor liver transplantation: current status,” Journal of Clinical Gastroenterology 33:2 (August, 2001) 97-106.
  25. “Panacea or peril? Do new treatments save lives or do they endanger them?” Medical Ethics Advisor, August 2001, citing Elizabeth Pomfret, M.D., director of live donor program at Lahey Clinic in Burlington, MA.
  26. Robert S. Brown, Jr., in New England Journal of Medicine 348 (February, 2003), 818-825.
  27. This maxim, most familiar in its Latin formulation primum non nocere, is often attributed to Hippocrates and/or Galen. Although both those authorities do make statements to this effect, the source of the precise wording remains unclear. See Albert R. Jonsen, “Do No Harm: Axiom of Medical Ethics,” in S. F. Spicker and H. Tristam Engelhardt, Jr., eds., Philosophical Medical Ethics: Its Nature and Significance (Boston: Reidel, 1977), 27-41.
  28. Abecassis et al., “Consensus statement of the live donor organ,” Journal of the American Medical Association 284:22 (2000), 2919-2926.
  29. This definition reflects the formulation of American law, represented especially by the leading case Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). One of the major building blocks of the doctrine of informed consent was the decision of Judge Benjamin N. Cardozo in Schloendorff v. Society of N.Y. Hospital, 105 N.E. 92 (N.Y. 1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” See, in general, Ruth R. Faden, Tom L. Beauchamp, in collaboration with Nancy M.P. King, A History and Theory of Informed Consent (New York : Oxford University Press, 1986).
  30. “Empirical studies show that most kidney donors make their decision to donate immediately after the subject of transplant is first mentioned to them, and no additional information has any effect on their decision”; J. D. Lantos and M. Siegler ,“Re-evaluating donor criteria: Live donors,” The Surgeon General’s Workshop on Increasing Organ Donation: Background Papers (July 8-10, 1991), (Washington, D.C.: U.S. Department of Health and Human Services, 1992), 271-290.
  31. See Austern Garwood-Gowers, Living Donor Organ Transplantation: Key Legal and Ethical Issues (Brookfield, VT: Ashgate/Dartmouth, 1999), 67.
  32. The foregoing rests upon the following sources: BT Sanhedrin 74a (“how do you know that your blood is redder than that of another?”); Rashi ad loc., v. mai chazit (the requirement to do nothing when faced with a choice between two lives); BT Bava Metzi`a 62a (in accordance with the view of Rabbi Akiva: when two men are lost in the desert, the one who holds the container of water may drink it all in order to survive–i.e., he allows the status quo to remain in effect–rather than share the water with his fellow or give it all to him).
  33. See R. Ovadyah Yosef, who surveys the literature in his usual comprehensive manner and finds that “most of the later authorities” (rov ha’acharonim) hold this position; Yechaveh Da`at 3:84.
  34. Yad, Rotzeach 1:14.
  35. Me’iri, Beit Habechirah, Sanhedrin 73a (ed. A. Sofer, Frankfurt, 1930, pp.272-273).
  36. Bayit Chadash to Tur, Choshen Mishpat
  37. Sefer Me’irat Einayim, Choshen Mishpat 426, no. 1.
  38. Among these are: R. Yonah Ashkenaazi (15th Germany), Sefer Isur Veheter, kelal 59, no. 38; R. Shneur Zalman of Liady (18th cent.), Shulchan Arukh Harav, Orach Chayim 329:8; R. Naftali Tzvi Yehudah Berlin (19th cent. Volozhyn), Ha`amek Hashe’elah, she’lta 147, end; R. Yosef Babad (19th cent. Poland), Minchat Chinukh, mitzvah 237, no. 2; R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 9:45, ch. 7; R. Yechiel Ya`akov Weinberg (20th cent. Germany-Switzerland), Resp. Seridei Eish 2:78; R. Ya`akov Breisch (20th cent. Germany-Switzerland), Resp. Chelkah Ya`akov, Choshen Mishpat, no. 33; R. Moshe Feinstein (20th cent. USA), Resp. Igerot Moshe, Yoreh De`ah 2:174.
  39. One of these passages is the dilemma of the “two men lost in the desert” (BT Bava Metzi`a 62a). There, Ben Petura requires the one who holds the water to share it with his fellow, even if both of them will thereby die of thirst, while R. Akiva rules that the one who holds the water should keep in for himself, insuring his survival. R. Berlin (see the preceding note) understands Ben Petura’s position as a hopeful stopgap: if the two men share the water, perhaps they can survive a day or two and someone will come along to rescue them. Thus, sharing the water does not place its owner in a situation of mortal danger but of possible danger; after all, he will not necessarily die if he shares it. Thus, by ruling that the man need not share the water, R. Akiva declares that he must not risk even safek sakanah in order to save his fellow.
  40. See Rashi, BT Yoma 85b, v. deshmuel leit leih pirka.
  41. After Proverbs 3:17.
  42. Radbaz 3:627. Radbaz does conclude that if the first Jew is certain that he will not die if the oppressors sever, say, his hand or foot, he is permitted to submit to this demand as an act of piety (midat chasidut). He warns, however, that if there is any danger that the severing of the organ will lead to the “donor’s” death, he is forbidden even on grounds of piety from assenting to this demand.
  43. Minchat Yitzchak 6:103.
  44. Yosef, note 33; R. Waldenberg, Resp. Tzitz Eliezer 10:25, ch. 7; R. Yisrael Meir Lau (20th-21st cent. Israel), Resp. Yichal Yisrael, no. 73.
  45. See R. Unterman (note 11), 17-21. One example: the case of the two men lost in the desert (BT Bava Metzi`a 62a). As we have seen (at note 39), R. Naftali Tzvi Yehudah Berlin interprets the act of sharing the water as placing one’s life in a state of safek sakanah. Hence, because we follow Rabbi Akiva, who rules that one is forbidden to share his water, we learn that one is forbidden to risk safek sakanah in order to save the life of another. Yet this reading of the case is surely forced. The Talmud never hints that the men may be rescued in a day or two. On the contrary: “if they both drink the water, they will both die (Rashi: because there is not enough water to allow them to reach the next settlement).” There is no ambiguity here: by sharing his water, the man holding the container risks mortal danger (vadai sakanah). The story teaches us nothing about his obligation should he run the risk of less-than-mortal danger (safek sakanah).
  46. See, for example, R. Yair Bachrach (17th Germany), Resp. Chavat Yair, no. 146, on BT Bava Metzi`a 62a: R. Akiva forbids the holder of the container to share his water only because if he does so he will certainly die (i.e., a case of vadai sakanah). But if by sharing the water he were to face a lesser degree of danger (safek sakanah), R. Akiva would rule that he must do so in order to rescue his fellow from mortal danger.
  47. Barukh Halevy Epstein (20th cent. Lithuania), Torah Temimah to Lev. 19:16, no. 110, learns from the stories surrounding R. Chaninah ben Dosa that one is required to risk potential danger in order to rescue.
  48. On Maimonides, see above at note 34. On the Shulchan Arukh, see above at note 37. In the latter case, although there is no mention of the element of danger, either safek or vadai–indeed, the author, R. Yosef Karo, merely repeats Rambam’s formulation–the commentary Sefer Me’irat Einayim notes that Karo omits mention of the opposing view, namely that one is obliged to risk safek sakanah in order to rescue. Given that Karo does mention that opposing view in his Kesef Mishneh to Yad, Rotzeach 1:14 and Beit Yosef to Tur Choshen Mishpat 426, its omission in the Shulchan Arukh is taken to imply his agreement that one must not risk safek sakanah. This is an argument from silence, which however persuasive it may be to some is hardly conclusive.
  49. The passage apparently is PT Terumot 8:4 (46b), the story of R. Shimeon ben Lakish’s rescue of a kidnaped colleague. R. Yosef Karo, in his Kesef Mishneh (Yad, Rotzeach 1:14) and Beit Yosef (Choshen Mishpat 426), claims that this passage was cited as halakhicly authoritative by the 13th- Hagahot Maimoniot, although the citation does not appear in our printed versions of that work.
  50. See R. Waldenberg (note 38), who suggests that it is not clear from the Yerushalmi text that the halakhah in fact follows R. Shimeon b. Lakish.
  51. See R. Bachrach, note 46, and R. Shmuel di Medinah [16th Italy], Resp. Maharashdam, Yoreh De`ah 204.
  52. Arukh Hashulchan, Choshen Mishpat 426, par. 4.
  53. This is a quotation from Sanhedrin 4:5. A number of manuscript variants omit the word “Jewish” from the text; see Dikdkey Soferim to Sanhedrin 37a and Chanokh Albeck’s hashlamot to M. Sanhedrin 4:5 in his edition of the Mishnah. We would agree that the word “Jewish” is out of place in this text: first, because the context clearly refers to a general human situation and not a specifically Jewish one; and second, because as Reform Jews we adhere to a tradition of moral thought that makes no distinction between Jews and Gentiles in matters that have nothing to do with ritual law.
  54. Pitchey Teshuvah to Choshen Mishpat 426, no. 2. “As we have learned elsewhere,” etc. refers to BT Bava Metzi`a 33a and Shulchan Arukh Choshen Mishpat 264:1, on the laws of returning a lost object.
  55. Shevet Mi’hudah (note 11), 21.
  56. See Avot 5:10: “One who says ‘what is mine is mine and what is yours is yours’ is of an average level of morality. But some say that this is the characteristic of Sodom.”
  57. See note 38.
  58. See note 33. R. Yosef, to be sure, declares that one is not permitted to risk safek sakanah in order to save another person, but he insists that the term “potential risk” be reserved for substantive dangers (safek shakul, a “weighty” potential risk) rather than for more tenuous, far-fetched possibilities of danger (ketzat safek sakanah). In this point, his reasoning closely follows that of Rabbi Unterman (note 55).
  59. On the categories reshut (a permitted act), mitzvah (a praiseworthy act, one that fulfills the Torah’s higher aspirations but is not absolutely required), and chovah (a required, obligatory act), see our responsum no. 5758.3, “In Vitro Fertilization and the Mitzvah of Childbearing,” ( ), at notes 47-48.
  60. For example, when a relative does not wish to donate an organ, the physicians can explain to the family that “medical complications” rule out that relative as a donor. Though this is an untruth, our tradition does permit us to tell such “little white lies” in order to preserve family peace (shalom bayit). See tractate Derekh Eretz Zuta, chapter “Hashalom,” and Rashi to Genesis 18:13.

 

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