Notes from an AMS End of Life Seminar: Organ Donation

[lethargic_man]

Notes from an AMS End of Life Seminar

Organ Donation

Rabbi Daniella Kolodny

[Standard disclaimer: All views not in square brackets are those of the speaker, not myself. Accuracy of transcription is not guaranteed.]

Jews highly value medical care, in contrast to some other groups. There is the concept of פִּקוּחַ נֶפֶשׁ, which is attached to verses in the Torah:

Leviticus 19:16	ויקרא יט טז
You shall not stand idly by the blood of your neighbour.	לֹא־תֵלֵךְ רָכִיל בְּעַמֶּיךָ לֹא תַעֲמֹד עַל־דַּם רֵעֶךָ אֲנִי ה׳׃

What does this mean? Rashi explains:

Watching your fellow's death, when you are able to save him; for example, if he is drowing in the the river or if a wild beast or robbers come upon him.

The Gemara elaborates:

Sanhedrin 73a	סנהדרין עג א
Whence do we know that if a man sees his fellow drowning, mauled by beasts or attacked by robbers, he is bound to save him? From the verse, "You shall not stand by the blood of your neighbour!"	והא להכי הוא דאתא האי מיבעי ליה לכדתניא מניין לרואה את חבירו שהוא טובע בנהר או חיה גוררתו או לסטין באין עליו שהוא חייב להצילו תלמוד לומר לא תעמוד על דם רעך׃

This is not just passive but also active:

Deuteronomy 22:1	דברים כב א
Thou shalt not see thy brother's ox or his sheep go astray, and hide thyself from them: thou shalt in any case bring them again unto thy brother.	לֹא־תִרְאֶה אֶת־שׁוֹר אָחִיךָ אוֹ אֶת־שֵׂיוֹ נִדָּחִים וְהִתְעַלַּמְתָּ מֵהֶם הָשֵׁב תְּשִׁיבֵם לְאָחִיךָ׃

What does this have to do with saving a life?

Sanhedrin 73a

סנהדרין עג א

Whence do we know that if a man sees his neighbour drowning, mauled by beasts, or attacked by robbers, he is bound to save him? From the verse "Do not stand by the blood of your neighbour". But is it derived from this verse? Is it not rather from elsewhere? Viz., Whence do we know [that one must save his neighbour from] the loss of himself? From the verse "you shall restore him to himself!" From that verse I might think that it is only a personal obligation, but that he is not bound to take the trouble of hiring men [if he cannot deliver him himself]: therefore, this verse teaches that he must.

מניין לרואה את חברו שהוא טובע בנהר או חיה גוררתו או לסטין באין עליו שהוא חייב להצילו תלמוד לומר לא תעמוד על דם רעך׃ והא מהכא נפקא מהתם נפקא אבדת גופו מניין תלמוד לומר והשבותו לו אי מהתם הוה אמינא הני מילי בנפשיה אבל מיטרח ומיגר אגורי אימא לא קא משמע לן׃ תנו רבנן אחד הרודף אחר חבירו להרגו ואחר הזכר ואחר נערה המאורסה ואחר חייבי מיתות בית דין ואחר חייבי כריתות מצילין אותן בנפשו׃

This suggests there is no upper financial limit on saving a life (in terms of medicine being too expensive for the NHS, etc).

How does this work out with religious people? What about people who fall sick on Shabbos? The Shulchan Aruch says (Orach Chayyim 328:2):

It is commanded that we violate the Shabbos 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.

This is the reason for the existence of Hatzola: if one has to violate Shabbos, it should be a religious Jew trying to save a life who does so.

There is a story of a famous rabbi who on Yom Kippur during an epidemic in eastern Europe in the nineteenth century pulled out a sandwich on the pulpit and ate it, saying "There is an epidemic; it is important for this community to keep its strength up."

[Discussion of quality of life:] May one have a kidney transplant on Shabbos? Yes; people with successful transplants have better quality of life, and probably longer life, than people on dialysis machines.

What about someone blind in one eye and sighted in the other? Can they get a corneal transplant? Yes! Rabbis have ruled not only are they improving their quality of life, they're possibly prolonging life, as they're less likely to trip over and suffer an accident.

There is a difference between live donation and post-mortem donation. Only the latter will be considered here. (The former is problematic in any number of ways: what if people feel coerced to give organs, or feel they need the money from selling them; what if they're putting their life in danger by giving?)

Organ donation should be a חסד, not a מצוה.

The Chareidi community is now in favour of organ donation as a matter of halacha. There are communities that reject it, but Chareidi rabbis who have approved it.

Israel is problematic because there are very few organ donors there. France in the nineties refused to donate organs to Israelis because they felt Israel was more of a taker than a giver. However, attitudes started to change with a prominent Chareidi woman who gave organs in the the nineties.

Organ donation has really only become possible since the development of immunosuppressants in the sixties.

Some of the objections we might have include:

• נִיווּל הַמֵּת: disgracing a dead body. This is why we try to bury within 24 hours (or even by nightfall in Jerusalem).
• הנאה מן המת: deriving benefit from a dead body. From a halachic perspective, one should give for a specific patient; there is therefore a problem with giving one's body for medical students to practise on. (Actually, nowadays there is an excess of cadavers.)
• הלנת המת: delaying burial

The former Israeli Ashkenazi Chief Rabbi, Rabbi I.Y. Unterman, is strongly in favour of organ donation (שבת מיהודה p. 54):

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. Hence such surgical procedures conducted to save a life are absolutely permitted.

Jewish objections and misconceptions:

• A donor's body will be mutilated. Following organ donation, the body is carefully sewn together for burial. As Jews traditionally bury their dead in closed caskets the dignity of the body is preserved and any surgical markings are obscured by the casket.
• The donor of his family will have to pay for the procedure. [More of a concern in the States.] Either the recipient or their insurance (NHS?) pays for the transplant.
• Difficult to contemplate death beforehand.
• Will the medical staff fight for my life if I have agreed to become an organ donor? Protocols for organ donation require a team of physicians that deal with the recipient patient's transplantation be completely separate from those who care for the donor patient.
• "Sliding into death"—death is a process. טְרֵפָה ‎→ ‏גוֹסֵס → death → separation of the soul from the body. (When does the soul leave the body? We don't know, and there are different opinions.)
• Resurrection: Does a body need to be buried completely for resurrection? This is where it becomes theologically tricky. We haven't got to the End Days; we don't know what's going to happen. Saadiah Gaon (892–942):

  We know of no Jew who opposes this doctrine or finds it difficult from the point of view of his Reason that G-d should revive the dead, since it has already become clear to him that G-d created the world ex nihilo. He can find no difficulty therefore in believing that G-d should, by a second act, create something from something disintegrated and dissolved.

When is death in halacha

Mishnah Oholos 1:6

אוהלות פ׳ א ו׳

A person cannot defile [as a corpse] until their soul is gone forth, so that even if he has his arteries severed or even if he is in his last agonies he [still] makes levirate marriage obligatory and liberates from levirate marriage, qualifies [his mother] for eating terumah and disqualifies [his mother] from eating terumah. Similarly in the case of cattle or wild animals, they cannot defile until their soul is gone forth. If their heads have been cut off, even though they are moving convulsively, they are unclean, [moving] like a lizard's tail, which moves convulsively.

אדם אינו מטמא, עד שתצא נפשו׃ ואפילו מגויד, ואפילו גוסס, זוקק ליבום ופוטר מן היבום, מאכיל בתרומה ופוסל בתרומה׃ וכן בהמה וחיה אינן מטמאין, עד שתצא נפשם׃ הותזו ראשיהם, אף על פי שמפרכסין, טמאין, כגון זנב של הלטאה שהיא מפרכסת׃

Physical decapitation. Later on cessation of respiratory activity.

Yoma 85a	יומא פה א
Our Rabbis taught: How far does one search? Until [one reaches] his nose. Some say: Up to his heart. If one searches and find those above to be dead, one must not assume those below are surely dead. Once it happened that those above were dead and those below were found to be alive.	תנו רבנן עד היכן הוא בודק עד חוטמו ויש אומרים עד לבו׃ בדק ומצא עליונים מתים לא יאמר כבר מתו התחתונים׃ מעשה היה ומצאו עליונים מתים ותחתונים חיים׃

Cessation of breathing as an indication of death was first argued in the Talmud; Maimonides and the Shulchan Aruch (O.H. 330:5) later agreed. The Shulchan Aruch also a added time period to prevent accidental pronouncements of death (not a factor today as technology has evolved to measure even the slightest life-signs. The Hatam Sofer, among others, added cardiac arrest as a determining factor much later.

Rabbi Moshe Feinstein (in a teshuva of 1976):

The sole criterion of death is total cessation of spontaneous respiration. In a patient representing the clinical picture of death, i.e. no signs of life such as movements or response to stimuli, the total cessation of independent respiration is an absolute proof that death has occurred.

When can organs be harvested? When there is no longer spontaneous respiration? No spontaneous heart rate? No brain activity?

Rabbi J. David Bleich has been the chief critic to brain death as the determining factor. He argues that only true decapitation can be a determinant of death or total destruction of the brain, otherwise we must use the original criteria, respirator and cardiac arrest. (And decapitation must be physical decapitation, not physiological "decapitation".)

With modern resuscitation techniques, cessation of breathing or cardiac activity is no longer necessarily a determinant of death.

The Uniform Determination of Death Act (put forth by the AMA and the American Bar Association) states: An individual who has sustained either 1) irreversible cessation of circulatory and respiratory functions, or 2) irreversible cessation of all functions of the entire brain, including the brain stem is dead.

[The Halachic Organ Donor Society cites both rabbis who pasken cessation of respiration and those who pasken brain death as termination of life, and their organ donor cards list both options, with a tick mark next to the one you selected.]

Organ donation should be only for the purpose of saving a life, not for storage or research.

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Audience member: Britain has one of the lowest organ donor rates in the developed world. One of the major problems is 40-50% refusal by relatives. How can organ donation be promoted?

Attitudes have changed in recent years, and even the most frum communities are now in favour of it.

It's giving the best gift you can have; and allows a part of you to live on.

Making sure your relatives know you are on the register decreases refusal by relatives to 30%.

Nowadays you get an opt-in option when applying for a driving licence.

[Lastly, I can't leave this subject without plugging the Halachic Organ Donor Society.]

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