Organ Transplants and Donor Cards

(YD 349:1-2; 357:1)

Question: 
Is it permissible to donate organs for the sake of transplantation? If so, is it a mitzvah? Should all Israeli citizens carry a donor card, which is available from the "Edi" organization?

Responsum: 
Organ donation after death falls under the category of "pikuah nefesh" and should be encouraged providing it has been established without a shadow of a doubt that the donor is halakhically dead. It is recommended to carry an "Edi" card because it removes any legal and halakhic confusion after a person dies.

1) Pikuah nefesh takes precedence over Shabbat, Yom Kippur and all of the mitzvot in the Torah aside from idol worship, forbidden sexual relations and murder. When doctors began to perform heart transplants in the 1960s, all of the recipients died within a few days or weeks. The halakhic authorities were therefore opposed on the grounds that the transplants were killing the recipient rather than saving their lives. But in 1980 the anti-rejection drug Cyclosporin A was introduced. Since then there has been a dramatic change in the rate of success. After one year, the survival rate is now: 68%-83% for liver transplants (in the U.S.), 88% for kidney transplants and 80% for heart transplants. Therefore, transplants are now without question a form of pikuah nefesh, which takes precedence over most of the prohibitions in the Torah.

2) Some authorities claim that transplants are a form of "nivul hamet" or desecration of the dead, which is forbidden by the Talmud. But Rabbi Unterman has already shown that there is no desecration if the person agreed to a transplant before his death. Furthermore, other rabbis have ruled that there is no desecration if the operation was done "for an important need" such as a transplant. And in any case, "pikuah nefesh" takes precedence over the fear of "nivul hamet".

3) According to the Talmud, one may not derive benefit (hana'ah) from the dead, which would seem to preclude transplants. But Rabbi Tuvia Friedman has pointed out that according to Rabbi Yohanan (Pesahim 25a) one may use anything as a cure except for idol worship etc. and Rashi adds: even things which are "assur be-hana'ah". Furthermore, Rabbi Unterman suggested in connection with cornea transplants that they do not lead to benefit from the dead because, after the transplant, the organ comes back to life.

4) It is forbidden to delay the burial of a relative (Deuteronomy 21:23 and Mishnah Sanhedrin 6:5). Therefore, it would appear to be forbidden to delay the burial of an organ. But, again, one can reply that the transplant returns the organ to life and there is no delay in burial.

5) Now we shall investigate a number of specific transplants:

a) Kidneys: There is no question that a person suffering from kidney failure is in mortal danger and therefore a kidney transplant from a deceased donor is "pikuah nefesh".

b) Heart and liver: These are the most problematic transplants. On the one hand, according to the Talmud and poskim, death is determined by cessation of breathing and heartbeat. On the other hand, these organs can only be used if the donor's heart is still beating. In other words, removing a heart from a donor while it is still beating may be murder from a halakhic point of view! In the early seventies, there were halakhic authorities that suggested redefining death as brain death even if the heart continued to beat. But most authorities were opposed because this does not fit the traditional halakhic definition. In 1986, there was a change in attitude by the poskim due to the invention of Cyclosporin A and due to the development of new machines, which could measure "brain stem death". The brain stem regulates breathing so its death indicates that the patient is halakhically dead even if he is being kept alive by various machines. The Chief Rabbinate of Israel then published five conditions for allowing heart transplants: 1) clear knowledge of the cause of injury, 2) absolute cessation of natural breathing, 3) clinical proof that the brain stem is indeed dead, 4) objective proof such as the BAER test that the brain stem is dead and 5) proof that nos. 2 and 3 continue for at least 12 hours under full and normal treatment. These criteria have been in use for heart transplants at Hadassah Hospital at Ein Karem since August of 1987.

c) Skin transplants and skin banks are permitted by most authorities.

d) Cornea transplants: Rabbi Unterman and Rabbi Tuvia Friedman have ruled that blindness is "pikuah nefesh" because a blind person can fall down the stairs or get run over. We concur and therefore corneas may be transplanted or preserved in eye banks.

6) Some authorities only allow transplants if the patient who will benefit is in close proximity, basing themselves on R. Yehezkel Landau who permitted autopsies in the 18th century if the patient was "in front of us". But today, times have changed and skin and corneas can be stored while other organs can be flown all over the world, so a patient is always "in front of us".

7) It is recommended to carry an "Edi" donor card because it prevents legal and halakhic problems after death. Furthermore, there is a severe shortage of organs for transplantation in Israel. Lastly, this shortage forces Israelis to go abroad, which costs a great deal of money and frequently Israelis are turned away due to the lack of reciprocity between Israel and other countries.

In conclusion, it is a mitzvah to donate organs after death because "whoever saves one life is considered as if he had saved the entire world" (Mishnah Sanhedrin 4:6).

Rabbi David Golinkin
Approved Unanimously


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