Some Halakhic Questions

What are the Jewish legal issues with organ transplantation?

By Fred Rosner

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

 

The halakhic (Jewish legal) issues concerning the transplantation of a human organ can be conveniently subdivided into those which pertain to the recipient, those that involve the physician or medical team, and those that primarily affect the donor.

 

In regard to the recipient, what is the status of the transplanted organ? Does it become a permanent part of the recipient, or must it be returned to the donor upon the eventual death of the recipient? The donor may long since have been buried, and his identity and/or burial site may not be known.

 

Furthermore, where a diseased organ such as a heart, liver, or lung is removed before implantation of a new organ, what does one do with the “old” or diseased organ? Can one just discard it? Must it be buried? Can one incinerate it or place it in formalin for preservation? Must it be treated with respect as part of a human being who was created in the image of God? This problem is not unique to organ transplantation but applies to any organ or part removed from a living human being. Thus, the rabbis discuss whether or not a gallbladder, stomach, uterus, appendix, foot, leg, or other diseased organ or limb removed at surgery or traumatically avulsed requires burial. An entire chapter in Rabbi Joseph Karo’s code of Jewish law [the Shulkhan Aruch] is devoted to this question.

 

Another halakhic question is whether or not the recipient is allowed to subject himself to the danger of the operative procedure. In Judaism, it is not proper to intentionally wound oneself for no valid medical reason. Does this rule apply to surgery in general and to an organ transplant in particular? Furthermore, does the recipient transgress the biblical commandments “Take heed to thyself” and “Keep thy soul diligently and take ye therefore good heed unto yourselves,” which both the Talmud and Maimonides interpret to mean the removal (i.e., avoidance) of all danger to one’s physical well‑being?

 

Another Jewish legal issue concerns a recipient who is a priest (kohen). The latter is commanded not to become ritually defiled by corpse contact. Does this question of ritual defilement apply to an organ from a dead donor which is now to be implanted into a priest?

 

Finally, what are the halakhic priorities, if any, for choosing a recipient in view of the shortage of organ donors? In Jewish law, a woman takes precedence over a man when both desperately need food because it is less dignified and more shameful for a woman to go begging than a man. A woman is ransomed before a man if both are captives, but a man takes precedence over a woman if both are drowning because he is subject to more commandments. Additional priorities are enumerated in the Talmud. Do any of these priorities apply to organ transplant recipients? Should medical criteria be used exclusively in the selection of recipients?

 

In regard to the physician or medical team performing the organ transplant there are two major halakhic issues. Does an organ transplant constitute standard medical therapy or human experimentation but with therapeutic intent? Corneal and kidney transplants can be considered standard medical therapy, whereas heart, lung, and liver transplants should still be viewed as experimental. Physicians are obliged to heal the sick using all standard therapies available. Human experimentation is permissible in Jewish law under specific restricted conditions. The more difficult issue is the establishment of criteria for determining whether a prospective donor is dead, for if the donor is still alive when the physician performing an organ transplantation removed one or more of his organs, the physician would be guilty of murder. In relation to heart transplantation, the question of “killing” the recipient is also raised by several rabbis. When the recipient’s diseased heart is removed prior to the implantation of a new heart, the patient is without a heart. Is the patient halakhically dead? If so, are the physicians guilty of murder? Obviously not!

 

There are numerous Jewish legal questions concerning the organ donor. I have already mentioned the most important of all; namely, the establishment of the death of the donor before any organ is removed for transplantation. In addition, there is a biblical prohibition of desecrating or mutilating the dead. How can one remove an organ for transplantation without desecrating the body? There is also a biblical prohibition of deriving benefit from the dead. The recipient of an organ from a deceased person certainly derives benefit from the dead! Furthermore, there is a biblical prohibition of delaying the burial of the dead and the positive commandment of burying the dead. Another halakhic consideration is that of ritual defilement for priests in the same room with either the donor or only the donor’s organ or organs. Do such organs transmit ritual defilement? Finally, in Jewish law is permission necessary either from the deceased prior to his demise or from the next of kin? Is one “robbing the dead” if one fails to obtain consent? Does the deceased have total rights over his body, or does it belong to God, who gave it to him on loan for the duration of his life?

 

Dr. Fred Rosner ia a professor of medicine at Mount Sinai School of Medicine. A prolific writer, he has published 36 books and over 800 articles. Dr. Rosner is listed in Who's Who in America and Who's Who in World Jewry.