גריי מאטר ד, נושאים רפואיים, תרומת איברים מהחיGray Matter IV, Medical Issues, Live Organ Donations
א׳
1Introduction
ב׳
2The overwhelming majority of poskim (halachic authorities) oppose transplants of hearts, livers, and lungs from a cadaver, since they do not accept “brain death” as a legitimate definition of death, as I explained in an essay archived at www.koltorah.org. However, Halachah encourages donation of certain organs from live donors, as we shall outline in this essay. Our discussion will based to a great extent on the recently issued report of the Rabbinical Council of America’s Halachah Commission.
ג׳
3The Obligation to Rescue
ד׳
4The Torah commands us, “Do not stand aside while your fellow’s blood is shed” (Vayikra 19:16). The Gemara (Sanhedrin 73a) clarifies that this pasuk obligates us to expend all efforts and financial resources to save the life of another human. Rashi (ad. loc. s.v. Ka Mashma Lan) explains the phrase “do not stand” as meaning, “Do not stand by yourself (without taking action); rather, exhaust all possibilities in order that your fellow’s blood not be lost.” The Gemara and Rashi, however, do not state whether the efforts required to save another’s life include an obligation to risk one’s own life.
ה׳
5Risking One’s Life to Save Another
ו׳
6The Beit Yosef (C.M. 426 s.v. UMah SheKatav BeSheim HaRambam) cites the Talmud Yerushalmi (Jerusalem Talmud , Terumot 8:4), which requires us to endanger our lives to save another from certain death.160The Yerushalmi relates that Reish Lakish once endangered his life to save the life of Rabi Imi. Although the Beit Yosef and most other poskim interpret the Yerushalmi as requiring such behavior, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 9:45:5) presents two valid approaches to disagree with this conclusion. First, Rav Waldenberg argues, it is possible that while Reish Lakish believed such behavior to be necessary, Rabi Yochanan disagreed, and the Halachah may follow Rabi Yochanan's opinion. Second, it is possible that Reish Lakish viewed such behavior as appropriate beyond the letter of the law (middat chassidut) but not required by Halachah. The Beit Yosef surmises that the Talmud Yerushalmi believes that the fellow’s certain death overrides the rescuer’s possible death. The Gemara (Pesachim 25b) states that all life is equal by using its celebrated phrase: “How does one know that his blood is redder than his friend’s?” However, the Yerushalmi apparently believes that the blood of one in certain danger is redder than that of one whose life is only possibly in danger.
ז׳
7However, the Sema (a major commentary to Choshen Mishpat) notes that Rav Yosef Karo (the author of both the Beit Yosef and the Shulchan Aruch) does not cite this ruling of the Talmud Yerushalmi in the Shulchan Aruch (C.M. 426). The Sema (426:2) explains that the fact that the Rif, the Rambam and the Rosh do not cite the Talmud Yerushalmi’s ruling convinced Rav Yosef Karo that it is not accepted as normative Halachah.
ח׳
8The rulings of the Talmud Yerushalmi are authoritative unless contradicted by the Talmud Bavli (Babylonian Talmud, see the Rosh to Chullin 2:6). Accordingly, the Rif, Rambam and Rosh must believe that the Bavli rejects this ruling of the Talmud Yerushalmi, as noted by the Agudat Eizov (cited in the Pitchei Teshuvah C.M. 426:2). Acharonim scour the Bavli for evidence that it rejects this ruling and cite a variety of sources (summarized in Teshuvot Tzitz Eliezer 9:45).
ט׳
9The Netziv (HaEmek She’eilah parashat Re’eih) and Maharam Schick (Teshuvot Y.D. no.155) cite a well-known passage (Bava Metzia 62a) as evidence that the Bavli rejects the Yerushalmi’s ruling. The Bavli presents a case in which two people are traveling on an isolated road, and one of them holds a pitcher with sufficient water for only one of the two individuals to survive. Ben Petura rules, “Better that the two of them drink [half the water each] and die than that one should see the death of his fellow.” Rabi Akiva, though, argues that the one holding the water should drink all the water, since “one’s own life enjoys priority over his friend’s life.” The Gemara notes that while Ben Petura’s position was originally the accepted one, Rabi Akiva’s ruling was later accepted as normative.
י׳
10The Netziv and Maharam Schick argue that Ben Petura does not advocate an unreasonable opinion that requires a needless death. Rather, he calls for the one who holds the water to risk his life in order to save the other from certain death. Even if there is insufficient water for both to be able to reach a water source, there is a reasonable possibility that one may unexpectedly encounter an oasis, spring or caravan willing to share its water. Therefore, the two do not face certain death by sharing the water. Rabi Akiva, though, rules that one is not obligated to risk one’s life in order to save another’s life, so the one holding the water should ascertain that he will live.
י״א
11According to this interpretation, Ben Petura advocates the Yerushalmi’s approach. Thus, since the Bavli concludes in favor of Rabi Akiva, normative Halachah does not require one to sacrifice his life in order to save another’s life. Indeed, the Mishnah Berurah (329:19) and Aruch Hashulchan (C.M. 426:4) rule that one is not required to risk his life to save another.
י״ב
12They caution, however, that one is forbidden from overzealously guarding his own life by ignoring the plight of one whose life is in danger. Rav Asher Bush, offering an example of a lifeguard’s rescuing someone from drowning, states, “For a qualified lifeguard, there is certainly a risk to jump into a pool to save a drowning swimmer, but it would be more than difficult to suggest that he is not obligated to do so, as common sense does not group this with ‘dangerous activities.’” He argues that “those activities whose statistical risks that are negligible to the point that they are not thought of as risky are precisely the activities that the Torah has obligated even though there may be some slight risks.”
י״ג
13Sacrificing a Limb to Save Another’s Life
י״ד
14In the difficult history of our people, we have been faced with unspeakable situations. In one such circumstance, a government official threatened to kill a Jew if his fellow Jew did not permit him to remove a limb. Poskim were asked whether the Halachah requires the sacrifice of a limb in order to save a life. Radbaz (Teshuvot no. 1052 / 3:627) rules that one is not obligated to sacrifice a limb, even if it entails the death of another Jew.
ט״ו
15Among other reasons, Radbaz writes that the Torah is by definition “pleasant and peaceful” (“deracheihah darchei noam v’chol netivoteha shalom,” Mishlei 3:17) and would not compel a person to sacrifice a limb. However, one who sacrifices a limb to save another’s life fulfills a great mitzvah, as long as it does not involve a fifty percent or higher risk of death. Our bodies belong to Hashem and we have no right to place our lives at such great risk.
ט״ז
16Poskim have, generally speaking, accepted this ruling of Radbaz and do not require the sacrifice of a limb, even if there is no significant risk involved. The Shach (Y.D. 157:3) apparently supports this ruling (as he does not require sacrificing a limb to avoid violating any Torah law that does not require one to sacrifice his life), as does the Pitchei Teshuvah (Y.D. 157:15; he cites Radbaz and does not present a dissenting view). Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 2:174:4) and Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer ad. loc.) accept this ruling of Radbaz.
י״ז
17Live Kidney Donations
י״ח
18Dayan Weisz (Teshuvot Minchat Yitzchak 6:103) ruled in 1961 that it was forbidden to donate a kidney due to the significant risk of death involved in the procedure and due to concern for future need of the donated kidney. However, in an undated teshuvah (written after 1961 but before 1980; it seems to have been written during the 1970’s), Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 9:45), while initially agreeing with Dayan Weisz, proceeds to modify his stance and considers permitting a live kidney donation if “a team of specialists decides, after a rigorous examination, that the donation does not involve risk to the donor.” He concludes, nonetheless, “kuli hai veulai,” even after all efforts are exerted, the doubt remains unresolved.
י״ט
19Rav Ovadia Yosef, however, writes in a teshuvah published in 1980 (Teshuvot Yechaveh Da’at 3:84) that Torah-observant specialists have informed him that the risk involved in kidney donation is very slight and that ninety-nine percent of donors return to full health. Based on this information, Rav Ovadia Yosef rules, “It is certainly a Mitzvah to donate [a kidney] to save his fellow from certain death.” We should note that Rav Yosef does not state that it is obligatory to make such a donation. This seems to be due to the ruling of the aforementioned Radbaz that the Torah does not oblige one to give up a limb, even in order to save another’s life.
כ׳
20Live Liver Donations, Blood and Platelets Donations and Bone Marrow Donations
כ״א
21Rav Bush notes that live liver donations are permitted but not required by Halachah due to the considerations presented above. Although live liver donation is somewhat riskier than live kidney donation (and is performed less frequently), Rav Bush writes that it does not rise to the level of activities that are deemed too dangerous even to save another from certain death.
כ״ב
22By contrast, since blood and platelets regenerate in a relatively short time, there is no significant danger involved in donating them. Thus, Rav J. David Bleich and Rav Mordechai Willig rule that one is obligated to donate blood and platelets if a dangerously ill individual currently is in need.
כ״ג
23Bone marrow donation is safe and is performed, as in other cases of live organ donations, only if a dangerously ill individual currently is in need. However, removal of the marrow is painful and often requires general anesthesia. Rav Bleich and Rav Willig rule that since the risk of general anesthesia is so minimal, one is obligated to make such donation, even if it will cause some residual pain and lost work time. We noted earlier that the Gemara (Sanhedrin 73a) requires one to expend every effort to save his fellow’s life. We should note, however, that Rama (Y.D. 252:12) and Shach (C.M. 426:1) rule that the beneficiary must compensate the donor, if possible, for the financial loss sustained in saving the beneficiary's life.
כ״ד
24Conclusion
כ״ה
25Many Orthodox Jews are criticized in some circles for not donating organs that can be harvested only from patients who experienced brain stem death but their heart still beats spontaneously. We may respond that the overwhelming majority of Halachic authorities regard such donations to be forbidden and unethical. However, Orthodox Jews should strongly consider donating live organs such as kidneys and livers. Organizations such as the Orthodox Union and Agudath Israel should even consider lobbying for tax breaks for such donors. We should also be at the forefront of blood, platelet and bone marrow donation. This would be a most effective response to our critics.