The main points of the complex issue of organ transplants * The essential question: Determination of the moment of death – is brain death considered death, even though the heart continues beating? The Chief Rabbinate decided to allow transplants, but justifiably conditioned it on the presence of a God-fearing physician * The medical establishment, which for years attacked the Rabbinate, opposed the intervention of rabbis an thus prevented numerous transplants * Following the initiative of MK Schneller and a softening of the medical establishment, it was agreed that rabbis would authorize the transplants * Only recently have enough rabbis been trained to rule in this field, and the clause the Rabbinate requested has been added to donor cards * Today, it is a mitzvah to sign the organ donor card
Is it Permissible to Transplant an Organ from a Deceased Body into a Living One?
In principle, it is forbidden to take an organ from the body of a deceased person due to three prohibitions: 1) it is forbidden to benefit from a deceased body. 2) It is forbidden to desecrate a deceased body. 3) It is a mitzvah to bury the dead, and whoever takes a limb from a corpse, forfeits the mitzvah of burial of that specific organ.
Accordingly, there are poskim (Jewish law arbiter) who are of the opinion that it is forbidden to transplant an organ from a deceased person in order to save a life, because the deceased are exempt from mitzvot, and are not obligated to give up a limb to save a living person (Binyan Tzion). However, in the opinion of most halakhic authorities, it is permissible to take a limb from the deceased in order to save lives, because ‘pikuach nefesh’ (the saving of life) overrides the mitzvot of the deceased’s honor and burial (Noda B’Yehuda, Chatam Sofer, and many others). In practice, since this issue concerns the saving of lives, Rabbi Goren ztz”l wrote that it is a mitzvah to follow the opinion of the majority of halakhic authorities.
The Question of Brain Death
There are patients whose lives depend on whether organs will be found for them for transplantation. Today, it is possible to receive a heart or a liver for transplantation from someone who was severely injured, whose brain, including the brain stem, had died, but their hearts still beat with the help of a ventilator. If the heart were to stop beating, the blood and oxygen would stop flowing into the organs and they would degenerate, become irreversibly damaged, and not be transplantable; but since the blood system continues functioning, some organs remain vital, and can be transplanted.
The essential halachic question is: what is the status of a person who died of brain death, but whose heart is still beating? If he is considered alive, then the taking of his limbs is murder; if he is considered dead, then it is a mitzvah for his family members to donate his organs in order to save lives.
Disagreement among the Halachic Authorities
In principle, it is agreed that death is determined by breathing (Yoma 81a; Rambam Shabbat 2:19; S. A., O.C. 329:4), and since breathing is dependent on the brain, in the opinion of some of the eminent poskim, a person whose brain has been completely destroyed, including the brain stem responsible for breathing, and can no longer function and breathe independently, is considered dead, and organs may be removed from his body for transplantation (Rabbi Goren, Rabbi Yisraeli, and also, as testified in the name of Rabbi Feinstein).
In contrast, some eminent poskim maintain that as long as the heart beats a person is still considered to be alive, and one who takes organs from him for transplantation is considered as if he murdered him (Rabbi Waldenberg, Rabbi Wozner, and Rabbi Elyashiv).
Rabbi Shlomo Zalman Auerbach ztz”l also forbade, and although he was of the opinion that in principle the brain determines death, nevertheless, he was apprehensive that the doctors’ measuring devices were not sufficiently accurate and based on their tests, doctor’s may conclude the brain died completely – while in truth, part of it was still alive.
Our Rabbis Decision
During the tenure of the Gaon Rabbi Avraham Shapira ztz”l and the Gaon Rabbi Mordechai Eliyahu ztz”l as Chief Rabbis, this question came before them. Together with their colleague Rabbi Shaul Yisraeli ztz”l and the other members of the Rabbinical Council, they delved deeply into the issue and in 1986 decided that death was determined by the brain, and consequently, it was permissible to take organs for transplant from a brain-dead person.
One of the sources of this is found in the Mishnah (Ohalot 1:6), according to which a person whose head was cut off is considered dead, even though his body convulses; and, as it turned out, if a beast’s head was severed and attached to a life-sustaining machine, its heart continued beating. Hence, the heartbeat after the brain dies is not a sign of life, but is like the convulsion of a dead person whose head was cut off.
In order to prevent any doubt, strict control conditions were established by which it would be possible to ascertain clearly that the brain was indeed dead, including the brain stem. The rabbis also agreed that one of the two doctors who would determine the death of the brain would be a God-fearing doctor whom they trusted.
Caution in Verifying Brain Death
It should be noted that our rabbis’ position of requiring the participation of a God-fearing physician in the death-determination team was not due to stubbornness, or a desire to intervene in the doctors’ work. The demand stemmed from a well-founded fear that there are doctors who believe it is permissible to take organs from a person – also from someone defined as being in a vegetative or terminal state although though his brain was not yet completely dead – because in any case, there is no longer a chance of his returning to life. While such a position stems from good intentions, according to Jewish law it is considered murder.
In addition, the concept of ‘brain-death’ is vague because it is a gradual process of degeneration, and determining the given moment when the brain is considered alive, and then dead, is difficult; rather, as time passes, the function of the brain stem cells gradually decrease. It was necessary to determine the stage at which the brain completely ceases to function, in such a way that there is no longer any possibility of activating the respiratory system even though some activity still occurs in certain cells within it. Since the question is complex, it was necessary to establish a strict and reliable control system.
The Ugly Face of the Medical Establishment
But then, the medical establishment’s ugly face was revealed. For years, people from the medical establishment alleged that the rabbis did not care about saving lives. Without recognizing the seriousness of the matter, and the difficulty in deciding on an action that could be either murder or life-saving, they accused the rabbis of being afraid to decide the halakha, and in the meantime, people needing transplants were dying. But then, when the rabbinate decided in favor of the lenient opinion, it suddenly became clear a more important value than human life was involved, namely, the honor of the medical establishment. True, the issue of transplants was important, but not to the point of agreeing to the Rabbinate’s request that one of the doctors determining the moment of death be appointed by the Rabbinate. Let all those requiring transplants die, so long as the Rabbinate does not participate in determining the moment of death. And so it was: dozens of people died as a result of the insistence of the medical establishment.
Testimony of a Senior Doctor
After I had given a lecture on this issue, a senior doctor approached me and said frankly, he himself would not trust the doctors on this question. First, because it is difficult to define definitively what exactly brain-death is. Second, being familiar with the medical system as he was, regrettably, some doctors would be willing to determine brain-death prematurely. Only after telling him that the Rabbinate had demanded a representative on its behalf would partner in determining the moment of death, was his mind set to rest.
MK Otniel Schneller’s Initiative
Twenty years later, MK Otniel Schneller delved into the issue, initiating and steering the enactment of the ‘Brain-Respiratory Death Law’ and the ‘Organ Transplantation Law’. Despite the opposition of various doctors, medical standards were set in law corresponding to the Rabbinate’s demands. It was also decided that two senior doctors who had absolutely no involvement in organ transplantations would participate in determining the moment of death. These doctors would not treat the patient, and would not represent the interests of another patient who needed a transplant. These doctors would undergo special training by a committee to be established for their accreditation. In addition, it was decided that a medical-halachic control committee would be established to examine all the death certificates of brain-death to check if they were done according to halakha and lawfully. In practice, Rabbi Avraham Steinberg told me that after examining more than 200 cases they didn’t find a case of a significant breach of the regulations, so that practically speaking, there was not even one case of removing a living patient from a ventilator for transplantation. Otniel Schneller deserves to be honored for this.
However, the Rabbinate’s demand had not yet been fulfilled because the medical establishment still insisted on not including expert rabbis in supervising the process of approving the moment of death. Over time, the medical establishment softened its position, and agreed to add a clause to the ‘Adi’ organ donor’s card, allowing religious people to state that the donation is contingent upon the consent of a “clergyman” agreed to by the family. It seemed that adding this clause would have solved the problem. But in practice, it turned out that the problem was not resolved because more than ninety-nine percent of the “clergy” were unfamiliar with the instruments meant to check the state of the brain and consequently could not permit a person to be disconnected from life-saving machines, thus, forfeiting the possibility of organ transplantation. Only when they found a way to contact one of the rabbis who was an expert in the matter, were they able to permit organ transplantation according to the rulings of our rabbis.
Mitzvah to Sign the New Organ Donor Card
Recently, a satisfactory solution was found. The Chief Rabbinate, in cooperation with the National Center for Transplantation, trained dozens of rabbis from all over the country, and additionally, the following clause compliant with the Rabbinate’s request was included in the ‘Adi’ card: “I request that my family consult with a rabbi who was trained and authorized by the Chief Rabbinate and the Ministry of Health concerning the halachic aspects of organ donation.”
It is a mitzvah to sign on an organ donor card with such a clause. And merely by signing on such a card, one is considered as having taken part in the saving of life, for indeed, our Sages have said: “If a person thought to fulfill a mitzvah and he did not do it, because he was prevented by force or accident, then Scripture credits it to him as if he had performed it” (Berachot 6a). May we all merit a good and long life.
This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Other interesting, informative, and thought-provoking articles by Rabbi Melamed can be found at: http://revivimen.yhb.org.il/