Committee on Jewish Law and Standards

The Rabbinical Assembly

 
"Chesed or Chiyuv"? : The Obligation to Preserve Life and the Question of Post-Mortem Organ Donation
Rabbi Joseph H. Prouser
(Teshuva, December 1995, Kislev 5756)
 
Question : What is the halachic status of post-mortem organs and tissue donation?
 
I. Preservation of Human Life as Obligatory
 
The inestimable value of human life is a cardinal principle of Jewish Law.
Human life is not a good to be preserved as a condition of other values but an absolute, basic, and precious good in its own right . The obligation to preserve life is commensurately all-encompassing.
 
This obligation includes not only self-preservation, but the duty to save the life of one's fellow human being, should he or she be in mortal danger. The Torah's commandment, "Lo taamod al dam raerh" --- "You shall not stand idly by the blood of your neighbor" --- provides the halachic basis for this obligation.
 
In addition, the Talmud reformulates this prorhibition (mitsvah lo taassé) into a positive, prescriptive obligation (mitsvah ossé), by relating the duty to intervene in life-threatening situations to the comandment regarding restoration of lost property -- hashabat havida. "Every individual , insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property."
 
II. Who is Obligated?
 
In codifying this mitsvah, Maimonides emphasizes how broadly its obligation devolves : "kol hayekhol léatsil véaino hétsil hover al "lo taamod al dam raékha" "Anyone whi is able to save a life, but fails to do so, violates 'You shall not stand idly by the blood of your neighbor." In describing the analogous duty to save the life of one being pursued by an assaillant (rodef), Maimonides leaves no room for exemption: "kol israel metsouian lehatsil"-- All Israel are commanded to take life-saving action." Indeed, not even the inability personally to save the life in peril relieves one of this obligation : "lo taamod al dam raékha lo taamod al atsmékha mishma ela khazor al kol tsadékha shélo yéabod dam raékha."
 
"You shall not stand idly by the blood of your neighbor" means "You shall not rely on yourself, alone." Rather, you must turn to all available resources so that your neighbor's blood will not be lost.
 
 
III. Precedence of the obligation
Its is abundantly clear that the mandate to preserve life -- pikouakh nefesh- takes precedence over other religious obligations and considerations. (The prohibitions against murder, sexual immorality, and idolatry are, under normal circumstances, the only exceptions -- yaarog véal yaavor). Former British Chief rabbi Immanuel Jakobovits articulates this princple in no uncertain terms:
 
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.
 
Thus, the seriously ill are required to eat on Yom Kippur. Similarly, it is forbidden to circumcise a sick or weakened infant if this would further compromise his health. The circumcision must be delayed, for "ain lekha davar shéomed bifnei pikouarh nefesh -- "preservation of life overrides all other considerations." This principle has many applications in regard to the Laws of Shabbat. The requirement to preserve life at the expense of Shabbat observance is unambiguous indeed:
Mi shéyesh lo holei shéyesh lo sakana mitsvah lekhalel elav et hashabat véhezriz harei zé méshoubakh véhashoel harei zé shofekh damim.
 
It si commanded that we violate the Sabbath for anyone dangerously ill. One who is zealous (and eagerly violates the Sabbath in such a case) is praiseworthy; one who (delays in order to) ask (questions about the Law) is guilty of shedding blood.
 
A noteworthy expression of this zeal is the recommendation (directed at Israeli society) in sefer shmirat shabat kéhilkhata that when it becomes necessary to drive an ambulance on the Shabbath, it is preferable that Shabbath-observant Jews do the driving.
 
IV. Primary Objections to Post-Mortems Procedures
 
To be sure, post-mortem donation of human tissue is not without halachic difficulties. The halachic objections to this practice include the prohibitions against nivoul hamet (disgracing the dead body, as by disfigurement), hanaah min hamet (deriving benefit from a dead body), and halanat hamet (delaying burial).
 
All three of these concerns, collectively termed kavod hamet (the dignity of the dead), are addressed in a responsum by former Israeli Chief Isser Yehuda Unterman. As to the first two issues, Rabbi Unterman rules succintly:
 
 
"Hashééla hih im moutar mitsad hadin laasot nitouakhr bébashar adam met vélhaavir miméno bashar... shéyitkasher akhar kakhr béofen organi kékhélék min hakhaï... vépashout béaïnaï hadavar shéyesh bahem mishoum pikoukhr nefesh lo kémabaï lan shéasourei-torah khamourim nedakhim mipnei pikouakh nefesh, vélakhen, hanitoukhim shéossim léhatsalat néfesh vadai moutarim"
 
"Regarding the question of whether the Law permits surgical removal of tissue from a dead body... subsequently to be transplanted as an organic part of the living... I find the matter to be simple. Since these procedures constitute preservation of life there is no difficulty. After all, weighty Torah prohibitions are set aside for the preservation of life. Hence, such surgical procedures conducted to save a life are absolutely permitted.
 
Rabbi Efrayim Oshry rules with similar clarity : heikhan hashaiahr ainan shel pikouarh nefeh khaishinan lénivoul hamet--- "Where saving a life is involved, we are not concerned with the desecration of the dead". So, too, Rabbi Theodore Friedman : Pikouakh nefesh gadol mikavod hamet -- Greater is saving a life than the dignity of the dead. (Kevod hamet)."
 
As to the question of burial, Rabbi Unterman discusses only the particular organs or tissue being transplanted. In this regard, he considers transplanted tissue to be restored to life and thus not requiring burial with the donor's remains. The question of whether the donor's transplanted tissue will eventually be buried together with the recipient is not compelling, just as the requirement that blood be buried poses no obstacle to blood donation.
 
Rabbi Unterman does not discuss the issue of delaying burial to facilitate post-mortem procedures. Since, however, such delay is neither typical nor necessary, we should not consider it an imprediment. In those few, rare case where burial is delayed, we should rely on Rabbi Unterman's general approach: preservation of life takes precedence, and the prohibition of halanat hamet (delaying burial) is likewise suspended. "Ain lekha davar shéomed bfnei pikouahr nefesh "Preservation of life overrides all other considerations."
 
While organ an tisue transplantation is a relatively new halachic quandary, the related question of autopsy has a longer general and halachic history. "Many medical practitioners regard autopsy as essential to maintaining high standards of medical knowledge, hospital care, and community health." The trend toward permitting autopsy under the rubric of pikouakh nefesh, however, has generally been conditioned by the stipulation that a specific beneficiary of information gained through the procedure be identified (kholeh nimtsah lifaneinou). That is, theoratical medical knowledge alon does not constitute pikouakh nefesh. A demonstrable need for information required to avert immediate danger to a specific human life is necessary to render autopsy permissible.