Take my kidney. Please…
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Take my kidney. Please…

A case of conflicting commandments

“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 two weeks ago Wednesday, when he gave up one of his kidneys so that a congregant in his shul could live. (See the accompanying article.)

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 it 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; last week, 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 human beings 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 of 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, underscores 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 takes precedence,” he said. (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 about 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, who while certainly on the right halachically, nevertheless is more open to transplants and even favors stem cell research. (He also is 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’s 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,” in the same article Rabbi Tendler took a far more lenient, albeit 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 the issue of how we define death.

If we are created in God’s image (assuming God has an “image,” which normative Jewish tradition insists God 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, both 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 in 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 has 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 opinion 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.

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) agrees 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 and subsequently wrote, “Only a very bold man, I think, would attempt to define death.”

In the end, in the case of post-death organ donations, it boils down to which authority a person 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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