Living Organ Donation in Halakha Rebecca Linzer

In 1818 the first human–to–human blood transfusion was recorded when the life of a woman who hemorrhaged after giving birth was saved. The first live organ donation occurred in 1954. These modern medical miracles and the many that followed have saved numerous lives. Judaism places a high value on human life. The Mishna in Sanhedrin 4:5 teaches us that"one who saves one life, it is as though he has saved an entire world.; The Torah in Vayikra 19:16 commands us לא תעמוד על דם רעך - "Do not stand idly by your neighbor's blood." The Biblical commentaries and the Talmud debate the extent and the application of this commandment. Modern poskim have been challenged to reinterpret the scope of this commandment in the changing times of medical innovation. The development of Halakhic writing on the topic of organ donation is a good example of the interaction between Halakha and modern medicine. This article will explore whether one is halakhically permitted to donate tissues and organs, and whether there are occasions when one is required to do so.

As the transplant gap (the gap between the number of people who need transplants and the number of donations available) widens, new organ sources are being sought. Live donations have three benefits – they are more readily available, the donation time can be chosen, and they are generally more effective. Today common live donations include kidney, lung, pancreas, liver, skin, bone marrow, and blood. In order to discuss the halakhic ramifications of donation, it is important to know how donation effects the donor and to differentiate between different types of donations.

In a live kidney donation, the donor donates one of two healthy kidneys. According to many studies, having one kidney should not have a significant impact on the donor's life. For living kidney donors, the remaining kidney will enlarge slightly to do the work that two healthy kidneys share, but the donor will never have the "back–up" that a normal person has in the case of injury or illness in the other kidney¹.

In a live lung donation, a lobe of one of the lungs is given. There will be some reduction in lung capacity for the donor. Often two live donors are used, each donating one lobe to create two "lungs" for the recipient. Partial pancreas and intestine donations are similarly possible. Lungs, intestines and pancreas do not regenerate, but donors usually have no significant problems with the reduced function.

In a live liver donation, a part of the donor's liver is removed and placed in the recipient. The remaining part of the donor's liver is sufficient to maintain normal body functions. The recipient also receives a large enough segment of the donor liver to maintain body functions. During approximately the next two months, the remaining and transplanted parts of the donor liver grow to normal size, providing normal long–term liver function for the donor and the recipient. This is generally more effective than a liver from a deceased donor.

Bone marrow transplant has undergone some changes in recent years. Today, bone marrow transplantation (BMT) is only one of two methods of collecting blood–forming cells for bone marrow transplants. Doctors use needles to withdraw bone marrow from both sides of the back of the pelvic bone. This is done under anesthesia. Bone marrow regenerates within a few weeks. Another, less invasive, method is peripheral blood stem cell transplantation. PBSCT is a process in which stem cells are obtained through apheresis (blood filtration). The donor is given a medication to increase the number of stem cells released into the bloodstream for a few days before apheresis. The blood is then removed, filtered for stem cells and returned to the body. The process takes a few hours and is similar to other blood product donations such as platelet donation. Apheresis usually causes minimal discomfort. Unlike bone marrow donation, PBSC donation does not require anesthesia. The medication that is given to stimulate the release of stem cells from the marrow into the bloodstream may cause some side effects, but these generally end within 2 to 3 days of the last dose of the medication. Regeneration of bone marrow or stem cells takes about three weeks.

Blood donations and blood component donations incur practically no risk and minimal discomfort. Blood is regenerated within 4 to 6 weeks.

Much has been written about halakha and live organ donation. In the early years of transplant surgery the discussion tended to be about whether one was permitted (mutar) to donate, considering the risk factors involved in the donation process, or whether the risk too great, rendering a donation forbidden (assur). Must one come to harm to save the life of another? May one put oneself in danger to save another? Must one preserve their own health at the risk of the life of another? These questions and others are relevant to the question of live organ donation.

On the other hand, the Talmud in Sanhedrin 74a rules that one must sacrifice one's life rather than commit murder. It explains that this is a logical deduction and brings a story in which Rabbah tells a man that he must allow himself to be killed instead of killing another. Rabbah explains his reasoning: "for who says that your blood is redder than that of your victim? Perhaps the blood of that man is redder than yours!" Since we cannot objectively know whose life is more valuable, it is forbidden to take one life in order to save another.

These two examples are extremes. In the first, a person must actively save himself before his friend as he is in possession of the water. In the other he must let himself be killed rather than actively murder the other person. What do we do with the gray–area situations in between?

The Talmud Bavli does not discuss the requirement when the attempt at saving the other requires one to endanger oneself. Despite the fact that the cases enumerated in the Talmud seem to be dangerous ones, the Rishonim on the Talmud in Sanhedrin overwhelmingly read this source as indicating that one is not obligated to risk one's life in order to save another.

In the Talmud Yerushalmi in Terumot 8:4 47a R Imi finds himself in a very dangerous situation as a captive. The rabbis discussed what to do. R Yonatan said he should be wrapped in shrouds, meaning that he should be abandoned, leaving him in captivity where he would surely die. R Shimon Ben Lakish chose to save him, saying "either I kill (the captors) or be killed, I will go and save him by force," thus knowingly risking his life to save R Imi.

Two schools of thought have emerged from these sources. According to the first, which is the predominant opinion held by most poskim, a person is not required to endanger himself to save another because the Torah has commanded (Yoma 85b) וחי בהם - ולא שימות בהם – 'one should live by the mitzvot and not die by them.' This would apply to the mitzvah of lo taamod ('do not stand idly by your neighbor's blood') as well. Clearly, the question of what is a risk must be asked – there are risks that a person takes very day. There are risks that a person is willing to take to preserve their property. Any action which would be a significant risk to the person would not be required. Notable poskim in this school of thought include the Sefer Hasidim (12th c. Germany):

The Sefer Hasidim concludes based on the Talmudic discussion that one should not endanger oneself in order to save another. The Rambam (12th c. Egypt) limits the requirement found in Sanhedrin to situations when "one is able (היכול)" to save, indicating that it is a qualified requirement. However, it is unclear whether the qualification is applied to the one who requires saving (whether it is possible to save him), or to the one who is saving (whether he is able to safely save the person in danger).

The Meiri (13th c. Catalan) clearly states that one is required to attempt saving another only if there is no danger:

The Tur (13/14th c.) cites the formulation of both the baraita in Sanhedrin and the Rambam.

The Bach (16/17th c. Poland) explains why the Tur felt the need to present the Rambam as a second opinion that conflicts with the source in Sanhedrin. He introduces the concept of danger into the explanation of the Rambam and comments that by adding the word ve'yachol the Rambam indicates that he is not required to place himself in any danger in order to save another.

According to the second school of thought, a person is required to endanger himself to a certain extent. One is required to place oneself in significant danger in order to save another, even a danger that would not be normally acceptable to people in order to save their own possessions. The mitzvah of lo taamod is different than other mitvzot because it involves human life.

Following the second school of thought, The Hagahot Maimoniyot (13th c. Germany) concludes based on the Yerushalmi that even if one must place himself in safek sakana – possible danger – one should save the other².

R Yosef Karo (16th c.) in his monumental work Beit Yosef comments that even if there is a possibility of danger one is required to save the other. He explains that while one is in a situation of possible danger, the other is in definite danger, and that one who saves even one soul it is as if he saved an entire world.

This is what he writes, as well, in the Kessef Mishneh³, his commentary on the Rambam. However, in the Shulchan Aruch he does not follow this position, noting instead Yachol lehatzilo – indicating that only if he is able he must save him, and if he is unable, there is no requirement to endanger oneself.

In the 13th century (Italy), Menachem ben Benjamin Recanati wrote a responsum debating the appropriate response to a ruler who demanded the sacrifice of a limb (in a way that will not be fatal) from a Jew in order to save a fellow Jew. Is this comparable to organ donation? The situation relates to one Jew in danger, and another who will sacrifice part of his body to save him. The premise is that the loss of the limb will not be fatal. We can say that this is a similar case, although not precisely comparable.

Recanati says that it is logical that one would be required to allow the limb to be cut off, based on a Talmud in Avoda Zara 28 which allows one to treat an eye sickness on Shabbat only because the eye was thought to be connected to the heart and could cause a loss of life. Thus, if the loss of a different limb would not endanger a life, one would not be able to violate the Shabbat to save it. He says that one can deduce by kal vachomer that if we can violate the Shabbat for pikuach nefesh, but not to save another limb, that limb should be sacrificed for pikuach nefesh.

Additionally, the Radbaz points out that the reality is that one cannot say unequivocally that the removal of a limb is not life threatening. Even minor surgery has its complications, and one cannot be obligated to put oneself at risk that might result in death. He brings the example of a blood–letter who made minor cuts on a patient's ear and the patient bled to death.

The Radbaz also points out that one is required to save another by expending money, but not by endangering one's limbs. Even the Torah, that states "a burn for a burn, a wound for a wound" (Shemot 21:25) means practically that one should pay the value of the limb. He comments that it would be more far–fetched for someone to die of a burn than sacrifice of a limb, but even in the case of the burn the Torah requires only payment.

Additionally, the Radbaz writes that the Torah has ways of pleasantness (דרכיה דרכי נעם) and thus could not obligate one to forfeit a limb.

Based on this reasoning, the Radbaz concludes that there is no obligation to sacrifice a limb, but that this is a pious act. However, he does note that if the sacrifice would endanger a life that would fall under the category of chassid shoteh – a pious fool. He states that the prohibition to put oneself at risk takes precedence over even the certainty of another's danger. This seems to be based on the opinion of Rabbi Akiva in Bava Metzia 62a – 'Your life takes precedence over the life of your fellow.' Based on this, he would never require one to sacrifice a limb for another.

In another responsum⁶, the Radbaz discusses the question of putting oneself in danger to save another and concludes that the obligation to endanger oneself is dependent on the level of risk. If the risk is minimal or nonexistent, one would be obligated. He bases this ruling on the Yerushalmi. If the risk is extreme it would be prohibited; he would be a chassid shoteh. In the case when the risk is not clear but is less than 50% one would be permitted, but not required. However, this would not be applicable to sacrificing a limb, which according to the Radbaz is always voluntary.

I would like to explore the possibility that with the advances in medicine, the question that should be asked is no longer whether organ donation is permissible, but rather whether it might be obligatory to save another by donating an organ or other tissue.

The Radbaz categorically states that one cannot be required to donate an organ, even in a situation where there is certain pikuach nefesh for another Jew. He does not explain why, but only states that 'the Torah's ways are pleasant.' However, it seems he believes the obligation to save a life is limited, as in most mitzvoth. In general, fulfilling a positive commandment requires one to spend up to one–fifth of one's possessions. A negative (prohibitive) commandment would obligate one to spend the value of all of one's possessions. Which of these categories defines organ donation? The mitzvah of lo taamod is in an intermediary category of שב ואל תעשה (literally, 'sit and do no action') – since there is no action in the violation, rather it is the failure to perform an action. There is a debate among the rabbis whether this is treated as a positive commandment which requires spending only one fifth of assets, or as a prohibition which would require spending everything. The majority of poskim believe that the level of obligation in the case of שב ואל תעשה –is similar to that of a positive commandment, and therefore only requires one to expend the value of one–fifth of one's property. Although organ donation cannot be translated into a monetary burden, Chazal did assess hypothetical value for how much one would be willing to risk to avoid a situation. We can assume that if people would willingly spend one–fifth of their worth to avoid a situation, they would not be required to fulfill the mitzvah. Thus, the Radbaz's reasoning seems to be that most people would willingly part with one fifth of their worth and even all of their wealth to avoid losing a limb, and therefore there can be no mitzvah requirement to lose a limb, but it would be considered a pious act.^25,26

R Willig and R Bleich²⁸ have both stated that in the case of regenerative body parts, where there is no significant danger in the donation process, there would be a full obligation to donate when the person in need of donation is not theoretical, but actually present (חולה בפנינו). R Elyashiv²⁹ ruled that if general anesthesia was needed in order to give the donation that would be considered enough of a risk to say that one could not be obligated to donate. R Willig and R Bleich view the risk of anesthesia as an insignificant risk. R Meiselman³⁰ states clearly that while organ donation is permitted and voluntary, blood and skin donation are obligatory as they do not have enough of a "monetary value" to exempt one from the obligation.

In the case of donations which regenerate (and therefore, would not fall under the Radbaz's declaration that one cannot require another to donate an organ), with the broad definition of חולה לפנינו which technology provides, and with the low risks associated with today's medical procedures of organ donation, it would appear that one could require the donation of regenerative tissues. Based on the earlier explanation of the types of donation, the donations can be placed on a spectrum such that donation of blood would be the simplest to require, while donation of a kidney would be at the other extreme, not required but certainly permitted and a pious act. Blood marrow and liver donations would be on the spectrum closer to blood donations as they regenerate, while lung donations would be more similar to kidney donations that do not regenerate. When grappling with questions of organ donation, one must constantly be aware of technological innovations and medical advancements that can affect our halakhic rulings in questions of risk and pikuach nefesh.

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