“Whoever saves a single life, it is as if he has saved an entire world.”
So the Talmud tells us, and so Chazan Eric Wasser did several weeks ago
Wednesday, when he gave up one of his kidneys so that a congregant in his shul could
live.
Eric Wasser is cantor of the Fair Lawn Jewish Center. The congregant is
Harvey Jaffee, himself an extraordinary and selfless human being who in recent
years has been a Judaics teacher to teenagers, many of whom often bring friends
to class with them. Jaffee’s kidneys had failed him, and the prognosis for
a long life (much less a productive one) was grim, to put it in the best light.
Shortly before the surgery, Mr. Jaffee sat with Chazan Wasser. “My
children want to know what they can do for you,” he told his cantor. “They want
to thank you, but they can’t even begin to think of something appropriate for
the person who saved their father’s life.”
Wasser did not miss a beat. “I should be thanking you,” he said, “for
giving me the opportunity to help extend a life of someone who does so much
good for others.”
I visited the two men in the hospital the day after their surgeries. In
my time with Chazan Wasser, I thanked him for this tremendous mitzvah
generally, and specifically for saving the life of a man who has taught me so
much about selflessness and courage. The cantor repeated to me what he had said
to Mr. Jaffee, that he is the one who is thankful for the opportunity. We both
also marveled at a compassionate God who could put two people who were so
perfect a blood and tissue match for each other.
Both men also had something else to say—pass it forward.
A healthy person can donate a kidney; a part of the liver, lung, or
intestine; or bone marrow. According to the Organ Procurement and
Transplantation Network, which maintains a running count on its website, as of
the moment I write these words, 99,357 people in the United States are awaiting
a kidney to save their lives; 15,715 people are waiting for a liver; another
1,621 are in need of a lung. Eighteen people die each day because no transplant
is available in time.
There are approximately 20,000 people who need donated bone marrow; the
average is 3,000 deaths a year because no matching marrow was found in time.
Blood is the easiest to donate, yet almost always is in short supply in
emergency situations. The American Red Cross says that it takes 80,000 units
per day to meet the nation’s needs; in one week in February, it announced that
it was short 50,000 units of blood. Last September, a nationwide blood shortage
caused postponement of elective surgeries in Philadelphia, Atlanta, and Los
Angeles, which were the heaviest hit areas.
Clearly, the need is there and, in the case of blood, there is virtually
no halachic barrier to donating. Under Jewish law, however, is it permissible to
donate a healthy organ? And what about being an organ donor after death—what
does halachah have to say about that?
(A digression is in order. Consider the rest of this article to be a taste
of what is available in the JFNNJ-sponsored Florence Melton School of Adult
Jewish Learning, a program near and dear to the heart of Harvey Jaffee, the
recipient of Cantor Wasser’s kidney; he has done much in the last few years to
keep the Hebrew University-created program going. Much of the material cited
here is the subject of two lessons its Ethics of Jewish Living curriculum, one
of the program’s four core courses.)
Because saving a life is a prime directive in Judaism—the Torah demands
that we “not stand idly by” when another person’s life is in danger (see
Leviticus 19:16)—whether it is permissible to donate live organs would seem to
be a simple question to answer. It is anything but. There is a clear-cut
conflict in Jewish values here: While Judaism maintains that we must do what we
can to save a life, it also maintains that all humans are equally valued and,
thus, are equally entitled to protection and preservation.
If all human life is precious, we must go out of our way to save a life.
Yet, if all humans are equal, we must draw the line when our own lives are put
at risk.
This is a valid concern in organ donations. After all, general
anesthesia can pose a risk and complications can arise during surgery. Seventy
years ago, 640 people out every 1 million who were administered general
anesthesia died because of it. Today, the number is closer to seven out of
every one million, although the risk is a bit higher for people over age 65. In
December, a study of a popular anesthetic, etomidate, revealed patients given that
drug “had 2.5 times the odds of dying [within 30 days] than those given
propofol,” another popular anesthetic.
Anasthesia is only the entry point in the risks associated with surgery.
Perhaps a more serious concern is what is known as Health Care Associated
Infections (HAI); one in every 20 patients contracts an HAI while in a
hospital; too many die. The HAI-related death in our area two weeks ago of
Rabbi Yossie Stern, founder of Project Ezrah and its executive director,
undrescores that risk.
The talmudic sage Rabbi Akiva, in responding to an exaggeratedly
hypothetical situation, ruled that we do not have a right to risk our lives to
save the life of someone else. “Your life,” he said, “takes precedence.” (See
the interesting discussion in Babylonian Tractate Bava Metzia 62a.)
As noted, however, he was responding to an extreme hypothetical, one
that requires absolute certain knowledge of the outcome. Absolute certainty is
hard to come by, however. Is any risk forbidden, or is it a question of degree of
risk?
For this, we turn to a discussion in BT Sanhedrin 73a. There it is
stated that the Torah demands “that if one sees his companion drowning in the
sea or being dragged by an animal, or being attacked by bandits, he is
obligated to come to his rescue,” either by himself, or by hiring others to do
so, if the situation allows for it.
Maimonides, the Rambam, codified this in his Mishneh Torah, the Laws of
the Murderer and of Saving Lives, 1:14: “Anyone who is able to rescue and
nonetheless does not, violates the prohibition of ‘Do not stand idly....’”
In his commentary to Sanhedrin 73a, the 13th century French scholar
Menachem Meiri went further: “Not only is he himself required, if he can do so
without endangering himself..., but even through the assistance of others whom
he must hire....”
In other words, we are dealing with degree of risk. If there is a 50-50
chance of survival or less, the risk is considered a “vadai sakanah,” a certain
danger, and Jewish law forbids taking that risk. Once the risk falls below 50
percent, however (safek sakanah), a strong minority of opinion allows the risk
to be taken.
The late Rabbi Ovadiah Yosef, in Yechaveh Da’at 3:84, applied this to
kidney transplants.
Because “God-fearing medical experts” state that “the removal of a
kidney is minimal, and that roughly 99 percent of kidney donors recuperate
fully...,” he ruled in 1980, “according to the halachah it is permissible, and
even a mitzvah....And this worthy mitzvah will protect the donor as a thousand
shields.”
Rabbi Solomon Freehof, arguably Reform Judaism’s foremost legal
authority, was not so positive in his response (see Freehof, S., “Kidney
Transplants,” in New Reform Responsa, 1980), however, because “the operation on
the potential donor to remove the kidney involves danger and may not go well,”
and the operation itself “may not be quite successful.” Thus, while not banning
the procedure outright, he ruled that “Jewish ethics does not require us to
enter into potential personal danger...when the benefit of the one to be
rescued is itself not absolutely clear.”
Reform’s Central Conference of American Rabbis echoed this in a 2008
responsum regarding a live liver donation. It acknowledged that “Jewish
tradition sees the preservation of human life as a mitzvah of the highest
order.” However, “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...[because] ‘your own life takes precedence.’”
The CCAR responsum referred to “live liver donation surgery” as a “safek
sakanah. If so..., an individual is not obligated—and may well be forbidden—to
donate part of his or her liver for transplantation.”
“That decision,” it added, “is a valid Jewish choice, and we must not
criticize a person for making it.”
On the other hand, “The procedure's risks, though not insignificant, are
manageable,” the CCAR responsum said. Thus, there is a need to “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.”
On balance, it ruled, “One is therefore permitted to serve as a live
liver donor.”
That ruling ran counter to an opinion offered in 2002 by Rabbi Moshe D.
Tendler, certainly someone on the right halachically who nevertheless is more
open to transplants and even favors stem cell research (he is also a Ph.D in
biology and a recognized medical ethicist).
“The Judaeo-Biblical tradition forbids self-sacrifice even to save the
life of a loved one,” he wrote in On the Beat, the New York Organ Donor Network
Newsletter. “Live donation of kidneys has proven to be a low-risk procedure for
the donor. The same cannot be said for adult/adult liver lobe transplant. Until
the surgical technique improves, the risk to the donor who must donate a major
portion of the liver is too great to encourage this procedure. Adult/child
transplants, however, requiring only a small lobe of the liver (which has the
ability to regenerate in a short time) can be approved.”
Because “the shortage of organs is so acute,” Rabbi Tendler in the same
article took a far more lenient, albeiut cautious, view on the issue of paying
donors for their organs. He admitted that this was a slippery slope, but one he
felt was worth the risk.
As he noted, he was not alone in thinking this way. “Leading medical
journals (New England Journal of Medicine in the USA and Lancet in England)
have published thoughtful articles suggesting that remuneration will not lead
to the commodification (treating as a commodity) of body parts, or exploitation
of the indigent, if the organs are donated to the national organ bank and not
directed to a specified individual,” he wrote. “The Jewish tradition reluctantly
concurs with this analysis because of the overarching consideration of ‘saving
a life.’”
Clearly, when it comes to live donors, most decisors argue that Jewish
law encourages organ donations when the odds favor a full recovery for the
donor. There is no risk to a donor who is already dead, however. It would seem,
therefore, that organ donation after death is less problematic from the
standpoint of Jewish law.
Yet, the opposite is true, for a number of reasons.
Foremost among these are the belief that we humans are created in the
image of God, and how one defines death.
If we are created in God’s image (assuming God has an “image,” which
normative Jewish tradition insists He does not), then desecrating the human
body in any way for any reason desecrates that image.
On the other hand, if God commanded that we “must not stand idly by,” to
not desecrate the human body to help others also violates God’s law.
In an August 1995 article in Moment Magazine, Adena K. Berkowitz
provided a heart-wrenching example of this conundrum. The case involved “an
Israeli girl who flew with her family to the U.S. for a liver transplant. On
the plane, the young girl, while on life support, was declared brain dead. The
team assembled to try to save her life now turned to her family and asked if
they would donate her remaining healthy organs. They said no. The Israeli
family explained, ‘We feel for the other families and we want to help, but we
have asked our rabbi and he has said that it is not permitted under Jewish
law.’”
If their rabbi did say such a thing, it was because he considered that
leaving the body intact, meaning not “desecrating God’s image,” was of greater
importance than the mitzvah not to stand idly by when someone’s life needs
saving.
Desecrating God’s image, in fact, is a non-issue in such cases,
according to all but the most rigid authorities. Even the Talmud seems to
acknowledge this. In a discussion in BT Chullin 11b, we are told
parenthetically that when “an individual’s life is at stake, desecration of the
deceased is permitted.”
True, some authorities deny this—not because God’s image is being
desecrated, but because the body of the deceased will not be whole at the time
of the resurrection of the dead. No less a medical ethics authority than the
late Rabbi Eliezer Waldenberg, for many years the supervising rabbi of Shaare
Tzedek Hospital in Jerusalem and one of the foremost Orthodox authorities on
halachah and medicine, forbade a cornea transplant because the donor “will be
blind in his eyes” at the time of resurrection. It is not clear, however, where
Rabbi Waldenberg actually stood on transplant issues. In one instance, at
least, he approved of a kidney transplant, despite his views on resurrection.
Most people believe that Rabbi Waldenberg’s view, in fact, is the
normative Jewish belief, but it is not. For example, Rabbi Shlomo Aviner, chief
rabbi of Beit El in Israel and head of Yeshivat Ateret Yerushalayim, called
such assertions “nonsense.” The donor “will not be missing anything,” he wrote
in 2004. “On the contrary, an organ with which this great mitzvah is done will
reappear twice as healthy [at the time of resurrection].”
The Agudath Israel of America, for one, does not permit organ donations
after death, except in very narrow circumstances. Most rabbinic organizations,
however, here and in Israel, take the opposite view. The Orthodox Rabbinical
Council of America, the Conservative Rabbinical Assembly, and the Reform CCAR
all encourage their laities to become organ donors, within set guidelines. Other
rabbinic groups permit organ donations, but only to save the life of another
Jew, or in some cases only an observant Jew by their definition of observance.
Rabbi Tendler, among many others, considers such positions to be a chilul
hashem, a desecration of God’s name.
It should be noted, in passing, that virtually all authorities allow the
acceptance of a transplanted organ, even if they oppose donating that organ, as
in the case of the young Israeli girl just cited.
The more serious halachic hurdle to post-death donation is defining
death; more accurately, defining when death actually occurs. Jewish law
maintains that if actual death (as opposed to some arbitrary medical definition
of death) has not occurred, to harvest an organ is to commit murder (or, at the
least, to hasten death).
Time of “death” is critical in organ donation. Kidneys and the pancreas
remain viable for a while even after death, but livers, hearts, and lungs must
be harvested before the body of the donor has completely shut down.
Traditionally, death has been defined since talmudic times as when
breathing ceases. This is based on Genesis 7:22, which states, “All in whose
nostrils was the merest breath of life.” In the 17th century, Rabbi Yehudah
Aryeh of Modena explained the Talmud’s definition as meaning that the brain has
stopped functioning. “[A]ll opinions agree that the fundamental source of life
is in the brain,” he wrote. “Therefore, if one examines the nose first [the
Talmud’s test], which is the organ of servitude of the brain, and there is no
spontaneous respiration, none of them [the rabbinic opinions] doubts that life
has departed from the brain.”
It is this opnion that was seized on as the game-changer in organ
transplantation. If brain function, not respiration, is the key to “actual
death,” then livers, hearts, and lungs may be harvested to save a life.
The case of 20-year-old Alisa Flatow, the New Jersey native who was the
victim of a suicide bomber in April 1995, is the paradigm here. After she was
declared to be brain dead, her father, Steven Flatow, consulted with Rabbi
Tendler and with his own rabbi, Alvin Marcus. With their approval, he agreed to
allow his daughter’s heart, lungs, kidneys, liver, pancreas, and corneas to be
transplanted into six people who were on the transplant waiting list. Although
two of the six subsequently died, the lives of four people were saved.
“Alisa Flatow will not only get credit in heaven above for the four
people alive, walking around with her organs, but the many hundreds who will be
saved because other people will be inspired to follow her example,” Rabbi
Tendler was quoted as saying in the Moment article.
Accepting brain death as the definition of actual definition would seem
to be supported by a comment in Mishnah Ohalot 1:6a. According to that talmudic
source, a decapitated person is dead regardless of whether blood continues to
flow, or the body continues to twitch. Rabbi Tendler argues that a “brain-dead
person is like a physiologically decapitated” one.
Another noted and widely respected decisor, Rabbi J. David Bleich, disagrees. In Time of Death in Jewish Law, he
wrote, “only irreversible cessation of respiratory and cardiac activity
accompanied by total absence of movement” is death according to Jewish law.
Rabbi Bleich (who does support low-risk transplants in cases of live
donors) does agree that decapitation ends life; a passing reference in his
rather lengthy heavily-footnoted discussion indicates this. He simply does not
agree that decapitation is the same thing as “brain death,” because it is
impossible to say with certainty that a person’s brain is indeed “dead.” He
quotes Dr. Henry K. Beecher, who headed a Harvard Medical School study on brain
death published in 1968, who subsequently wrote, “Only a very bold man, I
think, would attempt to define death....We felt we could not define death.”
In the end, in the case of post-death
organ donations, it boils down to which authority one is willing to heed, or to
personal choice. Rabbi Bleich’s position notwithstanding, ever more authorities
today are willing to accept “brain death” as actual death. Saving a life, or
several lives, as in the case of Alisa Flatow, takes precedence, in their view.
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