תשובות לקציני דת (אנגלית), ניתוח מח, לובוטומיהCollected Responsa to Chaplains, Use of Bone Fragments in Bone Surgery
א׳
1Question:
ב׳
2A chaplain in a Veterans Hospital sent us a question based upon an earlier responsum of the Committee. A number of years ago we had decided that while Jewish law does not require the burial of a limb amputated from a living person, nevertheless the custom is to bury it. The inquirer raises the question of the new technique in bone surgery which involves preserving fragments of living bone for the purpose of grafting them in the place of decayed bones of other patients (or possibly the same patient). The chaplain asks whether these bones, in spite of the general custom to bury amputated limbs, may be preserved for surgical purposes.
ג׳
3Answer:
ד׳
4The question raises a subject of great importance, one that will be increasingly significant, due to the growing use of new techniques in surgery and medicine. While the chaplain asks merely whether the bone may be preserved rather than buried, the question arises as to whether the bone may be used at all on another patient, and in fact whether we may use other parts of the human body (such as skin for grafting in burns, corneas for the restoration of sight) or, as in this case, the bone in surgery. In other words, may parts be removed from the body of one human being and added to the body of another? Inasmuch as these questions will undoubtedly be coming to us from the Veterans Hospitals we may as well deal with them now, if not in full detail, at least sufficiently for a general view of the problem.
ה׳
51. First, then, as to whether it is permitted to preserve a fragment of bone taken from a patient. There is absolutely no requirement in Jewish law to bury such a piece of bone.
ו׳
6If it were a bone from a dead patient, the situation would of course be different. The mitzvah of burying reaches even to a fragment of the body, affilu kazayis shel mayss (see Mishpete Uziel Tinyono Y.D. #110, where the relevant law is cited). Our case concerns a bone from a living man and there is no mitzvah of kavurah (burial) of the limbs of the living. There is a custom of burial, stemming from the fear of ritual uncleanness (especially of a Kohen), and not from the duty to bury.
ז׳
7Maimonides (Yad,Hil.Tumas Hammes II,3) says that the limb from a living person defiles just as if it were a whole body. It is in order to keep such defiling limbs from the vicinity of Kohanim that the custom arose to bury them. Jacob Reisher (Metz, 18th century) says in his Shevus Ya'acob II, #101, that since the purpose is merely to keep it away from a priest it would be quite sufficient if one kept the limb hidden away and not buried. Hence, if such a bone is put in a refrigerator, it is certainly out of contact with Kohanim and the requirement of the law is fulfilled. Besides, it is doubtful whether it even needs to be put away. Maimonides decides that the limb cut from the living, which defiles like a dead body, must be a complete limb of bone and flesh and skin before it can defile. If, however, a fragment of the bone is lacking, the limb does not even defile. Certainly then a fragment of the bone itself would not defile. Hence, there is no doubt that the bone section need not be buried at all.
ח׳
82. Now we turn to the question as to whether a Jewish patient may, according to Jewish law, use such a bone; or, to put the question more widely, whether he may use the skin of another person for healing, as is done in burns. May he use the blood of another person, as is now a widespread practice, etc.? Almost all of these questions have been discussed, in some form, in the older legal literature. There is, for example, a prohibition against the use of the blood of a human being. Yet the law is careful to define the nature of this prohibition. The Bible, in Leviticus, 7:26 says: "Thou shalt not eat the blood of bird or domestic animal." In other words, there is a specific prohibition against eating the blood of these kosher animals. Therefore their meat is soaked and salted, etc. This special and additional prohibition against the blood applied only to these animals for we might imagine that as their flesh is permitted, so is their blood; but the blood of other animals which are entirely prohibited, dom mahalche shenayim, the blood of bipeds or man, does not need to be given this special blood prohibition by the Torah. (See Sifra Leviticus at the end of Parsha 10; also Talmud, Kerisos 21 b.) The question is of some practical importance, for example, in the discussion as to whether a man may swallow the blood from his own bleeding teeth, etc. Of course, the blood of human beings is prohibited with a general prohibition, that the human body is forbidden for food, hence there is no need for a special prohibition as with cattle and birds. So Maimonides decides that the prohibition of blood of bipeds is a prohibition, but on rabbinic grounds. (Yad, Ma'acholos Asuros VI, #2.)
ט׳
9The skin of human beings is likewise discussed. The Mishna (Chullin, IX, 1) says that the skin of man creates uncleanness just as the flesh of man does. The Talmud, Chullin 122a, discusses what difference it makes if the skin is cleaned of the adhering flesh and tanned as leather. The Talmud in Nidda, 51a, says that actually such tanned skins are permitted, but "lest a man make carpets or floor coverings out of the skin of his parents," it is forbidden. This may seem like a far-fetched notion, but it is interesting to observe a fascinating responsum by Jacob Reisher in Shevus Ya-acob, I,89. A war had ended and the victorious army (whichever it was, German or French), made tanned leather of the skin of slain enemies. The question that Jacob Reisher discusses is whether such hides may be dealt with by a Jewish merchant. Perhaps the best-known responsum on this question is an earlier one by Menachem Mendel Krochmal (Nikolsburg, 17th century) in his Zemach Zedek #13, where he discusses a question of a Kohen who was told that it would be good for his health if he wore a belt of tanned human skin. Does that skin, having been tanned, still defile and may the priest wear it?
י׳
10As for the other parts of the body, there is the general law of the uncleanliness of fragments of a body. But, above all, there was a basic law that it is prohibited for the living to derive any benefit from the body of the dead, mayss osur b'hano-o. (See the law as codified in the Shulchan Aruch, Yore Deah 349.)
י״א
11All of this creates a sharp contrast between Jewish medical practice in the middle ages and that of the surrounding people. Human blood and parts of the human body were an essential part of the therapeutics of Europe among the Gentiles. A good account of this is found in the first ten chapters of Strack's "The Jew and Human Sacrifices." While the Gentile world used the blood and parts of the body for all sorts of medical purposes, Jewish law had created such an aversion to the use of parts of the body for healing that the practice was almost non-existent among Jews except for an occasional superstitious outcrop.
י״ב
12Since the Jews, by law and custom and taste, almost completely avoided the use of the human body and its products in healing, questions and doubts will surely arise (and have arisen) among Jews in modern times, when new medical and surgical methods now, for the first time, make scientific use of such parts of the body. The fact that it is a scientific and not a superstitious use makes a difference in the decision of Jewish law on the matter. The law relies a good deal on whether or not the remedy is trustworthy and the doctor reliable (refuah yeduah and rofey mumcheh). Since we are dealing here with reliable scientific remedies, we find that the law is in many cases permissive.
י״ג
13At this point it might be well for completeness' sake to restate the generally liberal attitude of the Halacha with regard to helping the sick. This liberality is seen best against the background of the strict laws of Sabbath observance. In the Mechilta (Ki Siso, near the beginning), there is a considerable discussion which brings out the various Biblical proofs of the principle that to cope with danger to life we may set aside the Sabbath (pikuach nefesh docheh es ha-shabbos). This is stated in the Mishna in Yoma VIII, 4: "All questions of doubt as to safety of life (sofek nefoshos) sets aside the Sabbath." Then there is the full discussion of three or four pages of the Talmud (Yoma 81, 84 and 85) which says that all such work on the Sabbath for the sake of the sick must not be relegated to non-Jews or to minors, as if to imply that it is not really permitted. This work must be done by adult Israelites for there is no prohibition in it. Asher b. Yechiel to this passage says, "All work that one does in behalf of an invalid in danger (sheyash bo sakana) is as if one does it on the weekday."
י״ד
14All this is codified, one might say, vigorously in the Shulchan Aruch in the Sabbath laws, Orah Chayim 328 #2. It says that if anyone has a dangerous sickness it is a mitzva (not merely that it is permitted, but it is commanded) to violate the Sabbath in his behalf, and whoever is quick to do so is to be praised, but whoever delays by inquiring whether it is permitted is a shedder of blood, ha-sho-el haray zeh shofech domim. And later in this section he repeats the statement of the Talmud that the work must be done by adult Israelites. This permissive and this tender concern for the sick must be our guide in all such decisions.
ט״ו
15First of all, as the Committee has learned upon inquiry, all these parts, the blood for infusion and the skin and the bone for grafting, are taken from the living and not from the dead. Therefore the prohibition against making use of the body of the dead does not here apply. Secondly, the uncleanliness of parts removed from the human body does not apply, for according to Maimonides, since these are not complete limbs, with bone and flesh and skin, they do not defile. In the third place, the prohibition against blood is primarily a prohibition against eating or drinking it. Such things prohibited, as food, may be taken into the body in some other way, she'lo k'derech ha'n'oson, "not in the way of enjoyment." Thus, an injection of blood is not prohibited, as would be a drinking of blood. Finally, in all these cases — those in which blood transfusions are needed, or where skin-grafting is required because of bad burns, or where bone-grafting is indicated because of diseased bones-- there is grave danger, and such cases belong in the class, choleh she'yesh bo sakana, and for all such, the laws are relaxed.
ט״ז
16A statement of the law as recorded in the Shulchan Aruch and amended by Isserles makes use of all these elements and makes the permission clear. The law is in Yore Deah 155 #3. It follows some laws on idolatry and discusses the fact that, since idolatry may not be used for our benefit (ossur b'han-o-oh), idolatrous objects may not be used for healing either. Having stated this general maxim, the Shulchan Aruch continues and says that all other things from which it is forbidden to benefit (i.e. other than idolatry) may be used. Here is the exact statement: "As for all other prohibitions, one may use them for healing, in case of critical sickness, even in the method of enjoying them (i.e. drinking, etc.); and, in the case of sicknesses that are not critical, it is forbidden to use them by way of enjoyment, but it is permitted to use them not by way of enjoyment (i.e. an injection)." To which Isserles adds that "some say (these are Rabbenu Nissim and Isaac bar Sheshes) that all things which it is forbidden to enjoy by rabbinical law may be used for healing--even by an invalid who is not in critical danger!"
י״ז
17Thus it is clear that, according to Jewish law, under modern scientific medical conditions (rofey mumcheh and refuah yeduah) it is permitted to use bone, skin, and cornea for all purposes of healing.
