(Vol. LXVI, 1956, pp. 104
QUESTION: Physicians in recent years have developed a technique of transplanting the cornea from the eyes of people who died recently onto the eyes of the blind, and thus--in many cases--restoring their sight. Is this procedure permitted by traditional Jewish law?
ANSWER: This question has received considerable discussion in Jewish legal literature during the last two or three years. There have been a number of articles on the question in the Orthodox rabbinical magazine, Hapardes, and also a full discussion of it by the late Rabbi L. Greenwald, in his Kol Bo Al Avelut, p. 45. It is necessary first to state the general attitude of Jewish law as to the use of normally forbidden objects (blood, trefa meat, etc.) in case of sickness. The law is in the fullest sense liberal and is codified in the Shulchan Aruch, Yoreh De-a 155.3. An invalid who is not in grave danger may make use in healing of all things which are forbidden by Rabbinic law, but not of such as are forbidden by the stricter law of the Pentateuch itself; whereas an invalid who is in imminent danger ("choleh sheyesh bo sakana") may make use for his healing even of such objects as are forbidden by the strictest Pentateuchal law. A man who is blind in one eye would be considered as an invalid not in immediate danger, but one who is blind in both eyes would be considered as one who is in imminent danger. Therefore, there is no question that a person totally blind or in imminent danger of becoming totally blind, may make use of anything that may bring him healing, in this case, vision.
There is no question that the invalid is permitted by Jewish law to make use, therefore, of the cornea of the dead. But the question which concerns the Orthodox writers in this matter is not whether the blind man may use it, but whether we have the right to provide it. This is another, and a more complicated matter. There is, first of all, the question of Tum-a, uncleanness. Part of the body of the dead makes one unclean by contact, and since it is the procedure to have that part of the body available, the touching of it makes one unclean. This part of the question need not delay us long, since uncleanness nowadays applies only to Kohanim, Priests, and the question of uncleanness would come up if the doctor himself were a Kohen. But even in his case it is not sure that he would become unclean by contact with the cornea of the eyeball. The doubt as to uncleanness involves the size of the object. Does an amount as small as this make one unclean? All of those who discuss the matter count this amount as "less than an olive," their usual measurement for the amount that can make one unclean. If, then, human flesh less than an olive in size must be buried, it does make one unclean if not buried. The two considerations are related to each other. Does less than an olive require burial? This is debatable. The Minchat Chinuch #537 (Joseph Babad) says that even such a small amount needs to be buried; but the authoritative commentator to the Yad, namely, the Mishneh Lamelech (Judah Rosanes), at the end of Hilchot Evel (the second paragraph before the end of his comment), says that it need not be buried. Thus, this is a question which can be decided either way.
But something further is involved. If only the cornea itself were removed from the body of the dead, it would be easy to decide this question permissively, but the practice is not to take out the cornea alone, but to remove the entire eyeball and to keep it under refrigeration until needed for the operation. If it were the cornea alone which is removed, then the cornea--being, as its name implies, horny, skin-like material--does not make unclean by contact. The law is clear that the skin of a dead human being without flesh does not make unclean, but that (practically or "Rabbinically") we treat it as unclean lest it be used irreverently (Nidda 55a). The Talmud states this figuratively: "Lest a man make floor coverings of the skin of his parents." But essentially, the cornea per se (being skin or horn) does not make one unclean and does not need to be buried.
However, in practice, the whole eyeball is taken out and kept. The question, therefore, depends upon whether the eyeball of the dead needs to be buried. If it does, then not burying it involves both the sin of "Bal talin," "Do not delay the burial of the dead," and also uncleanness. Even if the whole eyeball may be considered by measurement as being below the mandated amount that some authorities require to be buried (i.e., less than an olive), nevertheless Greenwald in his discussion says that it should be buried for another reason. It is an ever, "a limb," of the body, and the "limbs" should be buried whatever their size. However, even that is doubtful, because it is not sure that the eye is counted among the "limbs" of the body. The only clear indication in the older law that the eye is to be counted as a "limb" which requires burial, is based upon an Agadic statement in B. Nedarim 32b. There we find an Agadic discussion as to why God called the Patriarch first "Avram" and then later "Avraham." The name Avram totals the number two hundred forty-eight, the number of the "limbs" of the body. The Agadic explanation of the difference is that God referred (by the second name) to five more "limbs" of the body, and these five are then enumerated, the two eyes being counted among them.
But, directly contrary to this Agadic statement that the eye is to be considered a "limb' which must be buried, is the halachic implication of the Mishna in Oholot I.8, in which the limbs of the body which defile are enumerated, and the eyes are not enumerated among them. It is, therefore, debatable in the law whether the eye is to be considered a "limb" which requires burial or not.
How then can we decide when the following crucial facts are doubtful?--Does a small amount less than an olive defile and is it required to be buried? Is the eyeball to be counted legally a "limb" (ever), which-- whatever its size--is required to be buried? The decision can only be made on the basis of general attitude to the law. An Orthodox rabbi such as Greenwald--who
in his introduction mentions the modern use of the cornea as another evidence of the laxity of our age, and who, therefore, feels obligated to guard against further laxities by being doubly strict--will decide all these doubts on the stricter side (lechumra). Whereas a more liberal teacher, more concerned with making the law viable for our changing age, will decide these doubts leniently (lekula).
My decision, therefore, which has adequate justification as seen above, is as follows: Since, the general spirit of the law is to allow the dangerously sick to use anything otherwise prohibited; and since there is justification in the law for not even being required to bury that which is "less than an olive"; and since it is doubtful whether the eye is one of the "limbs" which must be buried; and since at all events we have become accustomed to permit autopsies in which even limbs of the body are not buried for a while--we are justified in deciding that even though the entire eye is taken out and kept under refrigeration, the cornea may be used to restore the sight of the blind.
Solomon B. Freehof