Internal organs are most successfully transplanted when “harvested” from a ventilated patient, whose blood remains oxygenated and circulating. From the perspective of halacha, or Jewish religious law, that raises a serious question and, in its wake, ethical dilemmas.

A diagnosis of “brain death” ““ when tests indicate that a person has suffered irreversible cessation of all brain function ““ is considered by contemporary medicine and secular law to be sufficient to constitute death, thereby permitting the removal of organs.

In cases involving medical matters, scientific realities play an important role in the deciding of halacha. But Jewish law’s rules, judgments and definitions do not necessarily parallel those either of medical science or society. Machines and observations can measure electrical activity in the brain and “invoked potentials”; but the determination of when a soul has left a body is something less easily calibrated. To an observant Jew, halacha alone serves as the determinant.

While there are halachic decisors who maintain that lack of brain-stem function renders a patient dead, in the judgment of a majority of major decisors, “brain-dead” human beings whose hearts are still beating must be maintained on life-support. Renowned decisors who clearly forbade removing organs from brain dead patients include Rabbi Shlomo Zalman Auerbach, Rabbi Eliezer Waldenberg, Rabbi Aharon Soloveichik (who reported that his brother, Rabbi Yosef Dov Soloveichik, held the same position), zacher tzaddikim liv’racha. Contemporary poskim Rabbi Yosef Sholom Elyahiv, Rabbi Shmuel Wozner, and Rabbi Moshe Sternbuch, shlit”a, concur as well; as do Rabbi J. David Bleich and Rabbi Mordechai Willig.

While saving another’s life is a most weighty imperative, halacha does not permit one life to be taken to save the life of another ““ no matter how diminished the “quality” of the life of the former, no matter how great the potential of the life of the latter. “We do not push away one life for another one” is the halachic principle. Halacha, further, forbids any action that might hasten death, including the death of a person in extremis. For those who maintain that brain-death does not satisfy the halachic standard for establishing death, harvesting vital organs from a braind-dead patient is equivalent to murder.

Complicating-some would say driving-the issue is the fact that there is a large surplus of people in need of organs, and a dearth of suitable donors. According to the National Institutes of Health, more than 100,000 people are currently waiting for organ transplants, and close to 20 die each day because of organ shortages.

Those facts, some fear, combined with the acceptance (by the medical establishment and some halachic decisors) of brain death as the end of a life, may lead to a particularly slippery slope, at whose bottom lies the viewing of very old, yet unborn or very disabled human beings as mere organ repositories. This year, in fact, a small change may have signaled more sliding to come. The American Academy of Neurology, whose 1995 guidelines directed that tests to ascertain lack of brain function be performed twice on each patient, revised its suggestion, counseling that a single examination should be sufficient. There are now, moreover, physicians advocating the use as organ donors of people, including infants, with diminished brain function.

“Economic” and utilitarian concerns can play a role, albeit a rare one, in some halachic considerations. But they have no pertinence when at issue is the possible taking ““ even for a good cause ““ of a human life.

A further dilemma is presented by the idea, much proclaimed of late, that only those who are willing to have their organs removed in the event of their “brain death” should be permitted to receive organs removed from brain dead patients. Some Israeli media commentators are pressing for such an official national policy, and Israel has in fact already implemented a program allowing holders of donor cards to jump ahead of non-card holders (and their children) on organ recipient lists that are compiled in order of urgency of need.

There are many reasons, though, why a person might be unable to donate a vital organ. To take an obvious case, if a non-terminal patient has only one functioning kidney, no one would fault him for not offering it to a dialysis patient. Or if a patient had an infectious disease, no one would ask that he ““ or want him to ““ donate a compromised organ, even post-mortem. Yet no one would deny such unable-to-donate patients freely donated organs they needed.

What, though, if a person is bound by his religious beliefs ““ i.e. his conviction, say, based on his rabbi’s determination, that halacha defines death as cessation of heartbeat ““ to decline to be an organ donor at a state of “brain death”? Should he be disqualified as a result from receiving an organ ““ even an organ so procured?

He would not likely be justified – indeed, would arguably be acting in both a non-halachic and hypocritical way – to play a direct role in such procurement. But if a brain dead patient has been prepared for organ donation without the recipient’s encouragement, as a matter of course according to medical norms not consonant with halacha (or from a donor whose rabbinic authority hews to a halachic approach that permits organ donation in such a case), to offer his organs to whoever matches next on an urgency list and he is that person, would it be proper to apply an “if you don’t give, you don’t get” rule? Would it be just, or just spiteful?

Can a potential recipient’s religious beliefs ““ or, for that matter, his or her personal behavior ““ constitute valid grounds for penalizing him or her (or his or her child)? Lists of potential organ recipients are, rightly, compiled in order of urgency of need, not personal worth or religious convictions.

Legally speaking, denying someone a transplant simply because joining an organ-donation system would force him to dishonor his religious beliefs would clearly amount to a curtailing of his constitutional religious rights.

Even, though, approaching the issue from reason, not law, the only “justification” for denying an organ to someone who objects to how the organ was procured is a desire to punish the potential recipient for his beliefs.

Punishment should play no role in public policy, particularly when what is said to deserve punishment is a religious conviction.