Beth Tzedec - Organ Donation

In 1994, Moment Magazine headlined the issue of organ donation and recounted two cases regarding this medical procedure. Dr. Joel Rosh, an Orthodox Jew who co-directed the liver transplant program at Mt. Sinai Hospital in New York City, told of an Israeli girl flown to the

United States

for a transplant. On route, she was declared brain dead. The team originally assembled to save her life now turned to the family to request the donation of the remaining healthy organs. The family, on religious grounds, refused. In the other incident, Alisa Flatow, an American university student, was killed in a terrorist incident at Gush Katif in the Gaza Strip. Her father, an Orthodox Jew, flew to

Israel

to identify his daughter. He was asked whether he would consent to the donation of her organs. He consulted with his rabbi and decided, on religious grounds, to give six of Alisa’s organs to six recipients. As a result, four people - two Arabs and two Jews - lived and Alisa’s corneas were saved for later use.

Why did the two sets of parents respond differently on the basis of Jewish religious law to similar requests? At the heart of the matter is the encounter between Judaism and modernity and the question of how religious law responds to the immediate and pressing questions generated by contemporary medical practice. It is in the area of bio-ethics that Judaism squarely faces the requirements of an ancient and venerated tradition and the urgent demands for justice and compassion for those in need.

Since Judaism is often spoken of as a way of life, a guiding assumption is that it constitutes a system of stories, value concepts and laws which articulates a point of view on ethical questions, including the interface between medicine and moral life. Such an assumption is not obvious, for we usually think of ethics as universal and thus not specifically Jewish. Judaism often presents its positions through Jewish law (Hebrew: halakhah) which is specifically directed toward those who are part of the covenanted people and thus has no normative claim on others. Along with Noam Zohar (Judaism and Bio-Ethics, 1998), I would contend that while Jewish law speaks specifically to Jews, it grapples with universal issues in ways which can be enlightening to others seeking guidance about the complex moral issues presented by contemporary medical science.

An examination of the complex concerns involved in organ donation will be illustrative of the way in which Judaism seeks to balance different religious requirements. Does the Torah tradition have a clear opinion regarding organ donation? Is it permissible to transfer human body parts from one person to another? There are three other inter-related questions: (1) May one accept a donated organ? (2) May a living person offer an organ to another individual? (3) May one arrange for a post-mortem organ donation? To help frame this issue, it will be helpful to examine some basic considerations of Jewish medical ethics.

Some Basic Principles of Jewish Medical Ethics

Elliot Dorff (Matters of Life and Death, 1999) argues that the most basic belief about human life, from a Torah perspective, is that our lives belong to God who created and formed all existence (see Genesis 14:19, 22 and Deuteronomy 10:14). Since we are merely stewards of the body which the divine Source of life has given us, God can and does limit our use of our bodies.

We are commanded to preserve our lives. The rabbis (Talmud Yoma 85b) understand Leviticus 18:5 which says that we should obey God’s commandments “and live by them” to mean that piku’ah nefesh (self-preservation) is of paramount importance and danger to life suspends virtually all other commandments. In addition, based on Deuteronomy 4:15, “You shall carefully preserve yourselves,” we are obligated to take good care of our bodies. Maimonides, one of the greatest of legal scholars and a prominent physician, wrote: “It is an affirmative commandment to remove any obstacle which constitutes a danger to life and to avoid it....The Sages prohibited many things because they were a danger to life. One who transgresses them saying, ‘I will endanger myself and it is of no business to others’ or ‘I do not worry’ is to be flogged.” (Mishneh Torah: Laws Regarding Murder 11:4-5). Accordingly, One may not inflict injury on his/her body or injure others (Maimonides, Mishneh Torah: Laws Regarding Personal Injury 5:1). Moreover, one may not permit others to injure him/her and others may not act relying on such permission.

At the same time, one is obligated to preserve (save) the lives of others. The Talmud (Sanhedrin 73a) derives this from the Biblical injunction “You shall not stand idly by the blood of your neighbour” (Leviticus 19:16). The Talmud then adds that the commandment to return lost property (Deuteronomy 22:1) applies to the effort to restore lost health, so that if needed, one must engage others to save a person in danger. This, combined with the commandment, “You shall cause him to be thoroughly healed” (Exodus 21:19), becomes the mandate for the practice of medicine. When justified, it is permissible - even obligatory - to cause injury for the purpose of preserving life. This is the source of authority for surgery which causes injury in the course of a procedure which is intended to restore health (Talmud, Sanhedrin 84b, and Maimonides, Mishneh Torah: Laws of Rebellious Elders 5:7)

Although there is no obligation to sacrifice one’s life for the sake of another (Talmud, Bava Metzi’a 62a), self endangerment to save another life is permissible. Thus, it is permissible (and perhaps even required) to place oneself at minor risk in order to save a life. However, when there is not an immediate need, such as the case with medical experimentation, there is a question whether one may allow others to injure him/herself for the sake of a theoretical possibility that someone may be saved tomorrow.

From Prohibition to Permission

When these principles, which are grounded in Jewish law, are applied to the question of organ donation, we find them leading us from an initial prohibition of this procedure to an active embrace of organ donation as an act of compassion and justice required of us even after death.

The first question to consider is from the perspective of the proposed recipient of a donated organ: Is it permissible to endanger oneself by accepting such a gift? There are dangers from the surgery itself as well as from graft-host disease when the body rejects a foreign intrusion into its system. Perhaps this would not constitute appropriate care for one’s body? Because of these concerns, when transplantation procedures were relatively novel, rabbinic authorities prohibited people from engaging in unproven and potentially dangerous operations.

By 1972, as kidney transplantation and other procedures achieved high rates of success, the Orthodox scholar Rabbi Moshe Feinstein had revised his initial opposition. He argued that if there were a fifty per cent possibility of success, the patient may elect surgery. He went on to state that if the success rate were higher, the patient was obligated to undergo the procedure, since there is a commandment to appropriately care for the body. At the present time, new anti-rejection drugs, faster transportation of organs and new preservation methods as well as refinements in surgical techniques have greatly improved the survival rate of transplanted organs. Rabbinic opinion has followed these medical advances and now universally approves of the possibility of organ donation for the recipient.

If the recipient is willing and permitted to engage in this procedure, what about the status of the proposed donor? May he or she offer an organ? Since the Torah tells us "You shall not stand idly by the blood of your neighbour" (Leviticus 19:16), we argue that there is an affirmative obligation to save the life of an endangered human being and that a person is permitted to donate his or her life organs to others . As has already been seen, Jewish tradition interprets the commandment to restore lost property to apply to the effort to restore lost health and well-being and understands the mandate to preserve life to take precedence over most other religious requirements. Immanuel Jakobovits, former Chief Rabbi of the British Commonwealth and author of the first comprehensive book on Jewish medical ethics, succinctly summarizes these ideals: "It is obligatory to disregard laws conflicting with the immediate claims of life and . . . it is sinful to observe laws which are in suspense on account of danger to life or health . . . It is not only permitted but imperative to disregard laws in conflict with life or health" (Jewish Medical Ethics, 1961).

While the obligation, "Do not stand idly by the blood of your neighbour" requires one to help another when there is no risk to oneself, supererogation is not required. Blood or bone marrow donation is a relatively innocuous procedure, but kidney and other organ transplantation involves actual surgery. Granted that self-exposure is not required, may one still take the risk?

Here too, we see the responsiveness of contemporary rabbis to changing technology. A 19^th century responsum states that the loss of an organ to save the life of another puts one in the category of a pious fool. Based on that opinion, early 20^th century authorities prohibited organ donation unless there was absolutely no danger. More recently, following the lead of Rabbi Jacobovits, rabbis have taken the position that indicate that where there is minimal risk and the ability of the body to function without the particular organ is not in question, such a procedure would be permitted. By the conclusion of the 20^th century, organ donation was generally accepted as an act of hesed, loving-kindness, permitted, but not obligated.

Some Cautionary Concerns

Since human body is sacred, holiness adheres even after death. Jewish law prohibits desecration of the dead and benefiting from a cadaver and obligates the community to ensure a timely burial. All these would militate against "harvesting" organs after death. However, these prohibitions are superceded when the goal is to save another person’s life or health. The former Chief Rabbi of Israel, Rabbi Issar Israel Unterman, developed a strong argument in favour of organ donation: "Regarding the question of whether the law permits surgical removal of tissue from a dead body...to be transplanted as an organic part of the living...I find the matter to be quite straightforward. Since these procedures constitute preservation of life there is no difficulty. After all, weighty Torah prohibitions are set aside for the preservation of life. Therefore, surgical procedures conducted to save a life are absolutely permitted."

Despite overall approval, some rabbis have, nonetheless, placed restrictions on organ transplantation from cadavers for non-life-threatening conditions, such as corneal transplantation. They would limit transplantation to individuals threatened with the complete loss of a physical faculty, such as the loss of sight in both eyes. However, most authorities have sought to broaden the eligibility pool of recipients. They have argued, in our example, that impaired vision in even one eye constitutes enough of a risk to personal safety to justify removing a cornea from a dead body. In 1996, Rabbi Ovadiah Yosef, the former Chief Sephardic Rabbi of Israel, reaffirmed that opinion in a formal ruling which declared that Jewish law considered organ donation - including corneal transplantation - to be a moral mandate.

Ordinarily, autopsies are prohibited in Jewish law because they constitute a desecration of the body. However, if information from an autopsy might save a life in a timely manner, then it would be permissible. In a similar way, some rabbis argue that only if there is a specific patient in danger of death would organ donation be allowed. In an effort to expand qualification for transplantation, other rabbis have contended that electronic dissemination of information about organ availability and rapid transportation of body organs make it possible to save the life of an individual in one area or country with an organ from another area or country.

Judaism is a spiritual tradition based on a profound appreciation of our physical existence. Many commandments, such as the circumcision of an eight day old male infant or the enjoyment of the Sabbath through food, rest and sexual pleasure are linked to the body. In the Rabbinic tradition, there is a deep-seated belief in personal immortality and physical resurrection. Jewish law dictates that if a limb is severed from the body, it must be buried. Similarly, If there is a legally required autopsy, all organs must be returned for burial. Following terrorist attacks in Israel, it is possible to see specially designated teams providing medical assistance to the victims while another team reclaims scattered body parts and gathers as much spilt blood as possible.

Given the theological emphasis on physical resurrection, some authorities initially argued against organ donation contending that this would disrupt the divine desire for physical integrity. Others have contended, basing themselves on discussions of similar subjects by early medieval scholars that just as the belief in creation requires the acceptance of the miraculous, so the belief in post-mortem resurrection is based on the hope for divine grace and the possibility of the extra-ordinary. If God can bring the dead to life, then the Holy One can sort out the other matters regarding organ donation and physical wholeness.

Generosity and Justice

As many as twenty-five tissues and organs can be transplanted and one person’s decision to donate may benefit as many as ten people. Chronological age is not a limiting factor; only physical health prior to death is a determinant. However, despite indications that ninety per cent of Canadians agree with the principle of organ donation, only a small percentage of available organs are ever donated. Since 1991, Canada has had a steady rate of donation of 14.5 donors for every one million residents. In December 2000, the Government of Canada reported that approximately 1650 organs had been transplanted during the year while ten times as many people waited for donations. Statistics in the United States are similar. In 1994, while 56,000 people in the United States awaited transplants, only 19,000 received them. In March, 2000, there were 68,220 patients waiting for transplants in the United States and an estimated 100,000 never get onto any waiting list.

Facing this reality, the Committee on Jewish Law and Standards of the Rabbinical Assembly, the legal authority for Conservative Judaism, accepted a legal responsum which contended that Jews are obligated to donate body tissues and organs to save the lives of others. Based on the rabbinic understanding of Deuteronomy 20:19, Rabbi Joseph Prouser argued that since we are prohibited from unnecessarily destroying anything which is potentially useful to others, not using viable human organs to save another person’s life is “tantamount to the destruction of rare, desperately needed medical supplies.” The Committee took the position that organ donation is more than an act of loving-kindness. It is a fundamental act of justice. Giving consent for a post-mortem organ or tissue donation should be considered a moral obligation, an act of justice, to save the life of another.

Other rabbinic bodies also have expressed unequivocal support for organ donation. Rabbi Dr. Moses D. Tendler has led Orthodox rabbis to endorse a position which declared that organ donation is mandated provided that it does not pose a risk to the donor, and that cadaver donations do not constitute desecration of the body. The Reform rabbinical association has issued a similar statement calling for Jews to embrace “Mitzvat Hayyim,” the commandment of life.

To recapitulate: Donation of organs is permissible and may even be mandatory. Because of facility of information and transportation, all potential organ recipients are considered to be immediately “before us” and therefore issues of geographic distance are irrelevant to the issue. Although ordinarily there is concern for the wholeness of the body following death and an express prohibition against dishonouring the body, in this case the mandate of saving life takes precedence over other concerns.

Even those who oppose the creation of new legal obligations have argued strenuously that organ donation is a moral mandate, an active form of hesed, loving-kindness. That ideal is deeply ingrained in the Jewish tradition. In the book of Ruth, Naomi comments to Ruth about Boaz: “May he be blessed by the Eternal! for he has not failed in his hesed, loving-kindness, to the living or to the dead” (Ruth 2:20). Organ donation has become a way to act with fidelity and love to both the dead and the living. Rabbi Dorff has commented that “saving a person’s life and acting faithfully and kindly to others are values so sacred in Judaism that if a person’s organ can be used to preserve someone else’s life, it is actually an honour to the deceased person to use the organ in that way.”

The case of organ donation is an example of the way Jewish law argues using terminology and concepts which are specific to a particular religious tradition. At the same time, this approach provides a model for others seeking a structured way to examine questions of moral import. We see that because of modern technological development, the way a problem is perceived by an ancient tradition may change from a concern for personal safety to a mandate to overcome our concerns for physical integrity and to act with compassion and justice on behalf of others.