The donation of vital organs from deceased donors is one of the most impactful ways to save a life. Medical innovation nowadays has enabled us to take an organ from a donor, whether dead or alive, and implant it into the body of another person. Fundamentally, one may differentiate between three types of transplantations: 1) transplantation of an organ from a living person (such as kidney transplants; not covered in this paper); 2) Organ donation from a braindead donor whose heart is functioning via artificial means (such as a heart or liver transplant); and 3) organ donation from a donor after cardiac arrest (such as skin grafts and corneal transplants). The issues that arise in this context are: is organ donation prohibited, permitted, or perhaps even a mitzvah? Is there a case where the donor is halachically considered dead, but his heart is beating and one would be permitted to take vital organs from them? May one receive organ transplants from a deceased person? Is the donor or the donor’s family required to consent?
2. The Ethical Dilemma
In any case of organ transplantation, we are confronted with two patients (at least): the donor and the recipient. The primary obligation of the doctor is to provide for the needs of the patient and preserve their body from any dangers that befall it. This obligation exists in totality for the recipient, but does it necessarily exist towards the donor? Would removing of these organs qualify as providing for the wellbeing of the patient? Is it in his best interest to steadfastly determine his death, or even expedite it, in order to enable a successful transplant? On the one hand, using the donor’s vital organs requires removing them while the body systems are still functioning; on the other hand, removing them at an early stage could be considered manslaughter. When a patient lies before us whose death is at hand, is it permitted to remove an organ in order to save someone else? If not, how may we determine the moment of death from a medical, legal, and ethical perspective?There are many differing positions surrounding these issues. There are those who believe that if a person consents to donate their organs, one may take them even when they are alive but in a critical neurological state and they are expected to die in a short timeframe. To contrast, there are those who believe that one should not remove organs from a patient even if they are braindead, for as long as their heart is pumping. The accepted opinion is that one should not expedite the death of a patient, even if they are actively dying, and one is permitted to remove organs only from a deceased individual. The accepted definition of death is brain death, even if the heart is functioning, however there are different definitions for the concept of brain death: total brain death or death of essential systems within the brain. It should be noted that from a medical perspective, death is a process, and even if the brain and heart are not functioning, there are still living tissues in the body. Determining the standard for death is, however, a legal, moral, cultural, and halachic issue – not exclusively a medical one. An additional important principle employed in this discussion is the decision around defining death and how the method of care of the donor can remain unimpacted by the needs of the recipient1.
3. The Jewish Position
3.1 The Sanctity of Life: Saving a Life
It is a holy responsibility to preserve the soul and save the patient. Chazal expounded, “’And you should live by them’ – and not die by them” (Sanhedrin 74a). From here the Gemara learns that, barring the three major sins, nothing stands in the way of pikuach nefesh2. When we are presented with a critical patient who needs a transplant, assisting and healing him has both an element of saving a life and performing a chessed.
However, each question of organ donation involves two souls, the soul of the donor and the recipient. The Gemara (ibid., side a) establishes that it is universally understood that we even violate the Shabbat for temporary extension of life3. Each moment of life is therefore of meaning, even if man’s life is coming to an end and it is clear they will pass shortly. The Mishnah (Ohalot 7:6) determines “that we do not push aside one life for another”. The consideration of preferentially treating a person at the expense of another is not a valid one, even when there is no doubt that the donor is dying, and even if there is doubt as to whether he is currently alive4. Organ donation from a deceased person is possible only when the donor is classified as halachically deceased.
3.2 Determining Time of Death
From a technological perspective, it is impossible to remove vital organs from a person unless they are connected to an ECMO (a cardiopulmonary machine), allowing them to breathe and for blood to flow throughout their body. The halachic question is whether a person such as this is considered dead or perhaps they are still living5
Early halachic sources only recognize cardiopulmonary arrest as death6. Nowadays, science allows us to identify death of the brainstem, the area of the brain that is in charge of cardiac and respiratory functioning, as an irreversible process. This determination is possible even when the patient is hooked up to an ECMO machine, since it is not based on the breathing and cardiac functioning but the activity of the brain7.
Halachic authorities disagree regarding the issue of brain death as a halachic determinant for death8. Those against its classification claim that halacha only recognizes cessation of breathing or cardiac function as death, which can only be determined through those systems. Due to the prohibition to disconnect a patient from a respirator we have no way to determine this, and therefore it is prohibited to take organs from a person as long as they are breathing, even if the breathing is performed by the machine9. Those who recognize the halachic status of neuro-respiratory death claim that a person who is braindead is not breathing, and when they are connected to an ECMO machine the body is breathing, but not the person themselves. According to them, the moment that the patient status is determined as brain death, the person is considered halachically dead, and one is permitted to transplant the organs10.
The Chief Rabbinate of Israel determined in 5746 that halacha fundamentally recognizes brain death, however the path to halachic approval for organ donation was arduous for many reasons, varying from additional halachic issues to topics connected to relying on the medical team to fulfill other halachic criteria before harvesting the organs. In 5768, “The Brain and Respiratory Death Determination Law” was passed in Israel, officially establishing the concept of brain death, both from a medical and halachic perspective. The law addressed issues that had made halachic approval for organ donation difficult, and in 5770 a renewed ruling of the Chief Rabbinate was determined confirming that the law is in accordance with the decision of the rabbinic council from 576811. The law also established a committee that retroactively analyzed past determinations of brain death. According to the testimony of Rabbi Prof. A. Steinberg, committee member, all determinations were done legally and in accordance with halacha12.
3.3 Additional Halachic Questions Surrounding Organ Donation
Even after a patient is considered dead, there are many halachic discussions surrounding the issue of whether it is permitted to use certain parts of their body: the prohibition of benefiting from a corpse13, the obligation of burial14, and the prohibition of mutilating a body15. When the recipient is in a critical state, these prohibitions are pushed aside for pikuach nefesh16. Even when there is no risk to life, such as corneal transplants and skin grafts (in certain situations), the accepted halachic opinion is that it is permitted to harvest organs from the deceased and transplant them into the body of someone else17.
3.4 Keeping the Body Intact
There is a popular notion that one who has organs removed from them after death will not rise in Techiyat Hameitim (Resurrection of the Dead) whole. This is one of the factors withholding people from consenting to organ donation. From a halachic and religious perspective this has no foundation. One who agrees to donate their organs, in accordance with halachic rulings in the field, is performing a great mitzvah of chessed and the mitzvah of “do not stand idly by over your friend’s blood” with his body. God, who has the ability to revive the dead, knows how to return whole and healthy those who were cremated al kiddush Hashem, living and dead, and all those who had the zechut to donate of their body to save a fellow person18.
- Organ donation is considered part of the great mitzvah of saving a life, and a tremendous merit for the deceased.
- Organ donation must be done after determination of brain and respiratory death according to the law confirmed by the Israel Chief Rabbinate.
- There is no prohibition of benefiting from a deceased person’s organs that can push aside saving a life, and the concerns of impacting the resurrection of the donor are not relevant to this discussion.
- It is permitted to transplant organs from a deceased person, such as the cornea or the skin, even when the recipient is not critically ill.
- Anything that is not necessary for the organ donation requires burial, including gauze with the blood of the deceased and similar items. One should stipulate this to those arranging the transplant so that everything is indeed buried in accordance with halacha.
- The rabbis at Tzohar and the National Transplantation Center operate a hotline 24 hours a day in order to allow personalized halachic counseling in any situation.
- See: The Medical Halachic Encyclopedia, volume 3, entry ‘Organ Transplantation’, pages 145-146; S. Glick, ‘Ethical Perspectives on Organ Transplantation’, The First International Conference for Medicine, Ethics, and Halacha, Jerusalem 5756, pages 190-193.
- See position paper ‘The Obligation to Be Healed’.
- This is the ruling of the Shulchan Aruch, Orach Chayim, 329:4.
- See Minchat Shlomo Responsa, Tinyana, article 86.
- The topic of brain death has been discussed at length in the last few decades in the responsa of halachic authorities, in essays, and in both written and oral discourses preceding the legislation around organ transplantation in Israel. Many essays have been compiled in the book Determining Time of Death: A Collection of Essays, edited by Rabbi Mordechai Halperin, the expanded 2nd edition, Jerusalem 5768. These essays are accessible from the site ‘The Shlesinger Institute for Medical Research in Accordance with Halacha’ https://bit.ly/2P6a1z2. Here we bring a summary of the fundamental principles, and we will refer to some of the essays in the aforementioned book, and not the chapter and original essays in The Medical Halachic Encyclopedia and in Assia. Additional discussion can be found in the other essays in the book. See also the Nishmat Avraham, Yoreh Deah, article 339:2.
- The main sources for this issue are: 1) the Baraita brought in the Talmud Bavli, Yoma 85a, where the Tanaim disagree regarding if checking for signs of life in a person trapped under rubble on Shabbat requires reaching their nose or their heart; 2) The Mishnah in Ohalot 1:6, that determines that a person who has been decapitated is considered dead even if their body is spasming.
- See Rabbi A. Steinberg, ‘Determining Time of Death: A Medical and Historical Background’, Determining Time of Death: A Collection of Essays, Jerusalem 5768, pages 5-12.
- See: ibid. ‘Determining Time of Death: A Halachic Background’, ibid., pages 177-191; ibid., ‘Determining Time of Death: An Overview of the Positions’, pages 195-204.
- Minchat Shlomo Responsa, volume 5, article 7-8; Tzitz Eliezer Responsa, volume 9, article 6 and other responsa (the responsum in volume 17, article 66 was written in the wake of the ruling of the Chief Rabbinate [see later on] and published as well in the aforementioned book Determining Time of Death, pages 205-217); Shevet Halevi Responsa, volume 7, article 235; and more. See Rabbi A. Steinberg, ‘Determining Time of Death: A Halachic Background’ (previous endnote), pages 187-188 and footnote 63. According to Rabbi Shlomo Zalman Auerbach, total dysfunction of the brain, its cells, and its components is a necessary sign of death, and just brain stem death is not enough. One who is brain dead according to the accepted medical definition today is doubtfully dead and one may not remove a heart for transplant. See the two essays of Rav Steinberg mentioned in the previous endnote. Rabbi Shlomo Zalman Auerbach authorized the summary of his methodology as explained in the second essay, see as well Minchat Shlomo Responsa, Tinyana, article 86.
- This is the position of Rabbi Shlomo Goren, Rabbi Shaul Yisraeli, Rabbi Eliezer Shapiro, and Rabbi Mordechai Eliyahu as well as others, and this is the ruling of the Chief Rabbinate. See Rabbi A. Steinberg, ‘Determining Time of Death: Halachic Background’ (earlier endnote 8), pages 188-189 and footnotes 73-74. This is also the opinion of Rabbi Moshe Feinstein, Igrot Moshe Responsa, Yoreh Deah, volume 3, article 132. His complex and developing position, influenced by the tremendous medical innovation in the field of organ transplantation, is explained in different responsa and in testimonies of his family regarding his final position. See Rabbi A. Steinberg, ‘Determining Time of Death: A Halachic Background’ (earlier endnote 8), pages 189-190, and see from him ‘Determining Time of Death: An Overview of the Positions’ (earlier endnote 8), pages 196-199. This is also the opinion of Rabbi Ovadiah Yosef, see the aforementioned, ‘The Brain and Respiratory Death Law: the Opinion of the Gaon Rav Ovadiah Yosef’, Determining Time of Death, appendix, pages 7-8.
- See ‘Protocol 7 from the Meeting of the Chief Rabbinic Council of Israel’, Determing Time of Death, appendix, pages 13-16. The law and the Rabbinate’s decision allowed for one who does not view brain death as halachic death to act according to this opinion and obligates the medical system to comply accordingly.
- “I can testify that since the beginning of the council’s action analyzing the cases of determined brain and respiratory death, over 300 cases, we found that all determinations were made according to the law fulfilling the requirements of the Chief Rabbinate. Therefore, I determine that one may rely entirely and definitively on the determination of brain and respiratory death performed by the medical teams and the technology they have available” (Yonatan Halleli, ‘Mitzvah or Murder? The Organ Donation Campaign in the Chareidi World Making a Storm, Maariv, 12.3.2018).
- According to the Radbaz (Responsa of the Radbaz, volume 3, article 548 ), using the flesh of a deceased person for medicine is not considered deriving benefit and is permitted. According to Rabbi Akiva Eiger (Addendum of the Ra’akah to the Shulchan Aruch, Yoreh Deah, article 349:1) the prohibition of benefitting from a corpse even applies when there is benefit. According to Rabbi Isser Yehuda Unterman (Shevet MiYehuda, volume 1, Jerusalem 5715, pages 313-322), a transplanted organ becomes part of the living body and therefore there is no prohibition of deriving benefit from a corpse. Rabbi Shlomo Zalman Auerbach (Minchat Shlomo Responsa, Tinyana, article 97) agrees with the opinion of Rabbi Unterman, but according to him the transplant itself has an issue of deriving benefit. Rabbi Ovadiah Yosef (Yabia Omer Responsa, volume 3, article 21-22) writes that his rabbi permitted non-beneficial use, and therefore one may rely on the opinion of Rav Unterman (Found in Yabia Omer Responsa, ibid., article 20, is the responsum of Rabbi Ben-Tzion Aba-Shaul regarding transplants, and article 21-23 contain the response of Rabbi Ovadia Yosef to Rabbi Aba-Shaul. Article 21 deals with the prohibition of deriving benefit from a corpse; article 22 with the mitzvah of burial; and article 23 with the prohibition of mutilation, see more further on). See: The Medical Halachic Encyclopedia, volume 3, entry ‘Organ Transplantation’, pages 115-116; Nishmat Avraham, Yoreh Deah, article 349:2-3.
- The rationale of Rav Unterman (see previous endnote) applies also for the obligation of burial. The transplanted organ becomes part of the living body, and therefore does not require burial. According to Rabbi Shlomo Zalman Auerbach (see Nishmat Avraham, ibid., subarticle 3), this reasoning does not apply for the prohibition of burial, but according to Rabbi Ovadiah Yosef (Yabia Omer Responsa, ibid., article 22) this reasoning is stronger proof for burial. According to Rabbi Yosef Shalom Elyashiv (‘Responsum Regarding Autopsy and Organ Transplantation’, Moriah, 307-310 , pages 168-170) the mitzvah of burial is not negated by organ transplantation. See The Medical Halachic Encyclopedia, ibid., page 116; Nishmat Avraham, ibid.
- The Nodah BeYehuda Responsa (Tinyana, Yoreh Deah, article 210) writes that autopsies have the prohibition of mutilating a corpse, and so too writes Rav Waldenberg (Tzitz Eliezer Responsa, volume 13, article 91) regarding organ transplantion. Rav Uziel (Mishpatei Uziel Responsa, volume 1, Yoreh Deah, article 28-29) writes that everything that is done for a purpose – does not qualify as mutilation. This is also the opinion of Rabbi Ovadiah Yosef (Yabia Omer Responsa, earlier endnote 14, article 23), but according to him one should not permit this from the outset unless the deceased has consented prior. See: The Medical Halachic Encyclopedia (earlier endnote 14), page 117; Nishmat Avraham (earlier endnote 14).
- The Nodah BeYehuda (ibid.) writes (regarding autopsies) that in a situation of pikuach nefesh the prohibition of corpse mutilation is pushed aside. This is also the opinion of the Chatam Sofer Responsa, Yoreh Deah, article 336; Chazon Ish, Yoreh Deah, article 208:7; Minchat Shlomo Responsa, Tintana, article 86 (“It is obvious that we are obligated to sacrifice an organ of a deceased person for the doubtful case of saving a critical ill person before us without considering at all the will of the deceased and their family”). The Bnei Tzion Responsa (volume 1, articles 170-171) disagrees with the Nodah BeYehuda, and according to him one should not permit corpse mutilation even when there is pikuach nefesh, since one is prohibited from saving themselves at their friend’s expense. This is also the opinion of the Minchat Yitzchak Responsa, volume 5, article 8 and Tzitz Eliezer, volume 13, article 91. The rationale is that the deceased is exempt from mitzvot and therefore is not obligated to save his friend, and one should prepare his body whole for burial. See: The Medical Halachic Encyclopedia (earlier endnote 14), pages 118-120; Nishmat Avraham (earlier endnote 14).
- This is the opinion of Rabbi Isser Yehuda Unterman, Shevet MiYehuda (earlier endnote 14). His initial reasoning, as explained earlier, is that an organ transplanted into a living patient is considered alive, and there is no prohibition of deriving benefit or an obligation for burial. He also adds that ocular patients are considered pikuach nefesh (The Minchat Shlomo Responsa, Tinyana, article 97, disagrees and writes that not all ocular issues are pikuach nefesh). This is also the opinion of Rabbi Tzvi Pesach Frank (Har Tzvi Responsa, Yoreh Deah, article 277), who adds that an organ that is smaller than a kezayit does not require burial. Rav Chaim David Halevi (Aseh Lecha Rav Responsa, volume 2, article 56) and Rabbi Shmuel Wosner (Shevet Halevi Responsa, volume 2, article 211, and more explicitly in volume 8, article 94) write this as well. The prohibiting authorities that were cited in the previous endnote also prohibit corneal transplants. In the Yabia Omer Responsa (earlier endnote 13, end of article 23, in the conclusion to his set of responsa) Rav Yosef differentiates between cases and rules that when one is standing before a patient who can receive a cornea for transplant he is permitted to receive it, but when the question is whether to remove a cornea from a dead body, one is not permitted unless the deceased consented to the procedure before his death. See: The Medical Halachic Encyclopedia (earlier endnote 14), pages 123-133, dealing with transplantation of various organ (the discussion around corneas is from page 130 onwards); Nishmat Avraham (earlier endnote 14).
- Rav Hadaya (Yaskil Avdi Responsa, volume 6, Yoreh Deah, article 26) prohibits corneal transplants and writes that one who is missing an organ from his body after death will not receive it in Techiyat Hameitim. Rav Waldenberg writes similarly (Tzitz Eliezer Responsa, volume 13, article 91) as an additional proof against organ transplantation, and adds that he is certain that the rabbis who permit would not consent to donate their own organs. However, the majority of halachic authorities hold that one does not need to be concerned for this, and many rabbis and talmidei chachamim have signed cards consenting to organ donation. See for example Rabbi Re’em Hacohen, ‘Organ Donation and the Resurrection of the Dead’, Shabbat Be’Shabto Leaflet, 10th of Cheshvan 5772.