CCAR RESPONSA

Contemporary American Reform Responsa

78. Banks for Human Organs

QUESTION: Is there any objection to the establishment of repositories for organs like kidneys, heart, liver, cornea, and segments of skin, so that they can be used to help victims at the proper time? It is now only possible to store organs for a short period. Would Reform Judaism object to long term storage as it becomes feasible in order to save lives? Skin banks now help burn victims survive. (Rabbi M. Beifield, Jr., Raleigh, NC)

ANSWER: Tradition has demanded the quickest possible burial of the dead and considers it shameful to leave a body unburied overnight unless the delay is for the honor of the dead (Deut. 21.23; San. 46b; M. K. 22a; Shulhan Arukh Yoreh Deah 357.1). Burial according to the Talmudic discussion in Sanhedrin is an act of atonement and also prevents any dishonor to the corpse. The thought of atonement through burial is based on the Biblical verse, "And he makes atonement for the land of his people." In other words, burial in the earth will make atonement for the individual (Deut. 32.43). In addition it prevents the ritual impurity of the priests (kohanim) who are to have no contact with the dead (Lev. 21.2 ff; Shulhan Arukh Yoreh Deah 373.7 f; Greenwald, Kol Bo Al Avelut, pp. 249 ff).

Burial of limbs is carried out by extension and was known by Talmudic sources (Ket. 20b). However, almost all authorities who discuss burial of limbs indicate that it is done only to prevent ritual impurity of the kohanim (M. Eduyot 63), and that the other two motivations for general burial, i.e., atonement and the honor of the dead, are not applicable (Jacob Reishel, Shevut Yaaqov, Vol. II, #101; Ezekiel Landau, Noda Biyehudah, Vol. II, Yoreh Deah #209). Maimonides limited the possibility of ritual impurity to a limb which had been completely preserved with skin, sinew, etc. and felt that other sections of the human body like liver, stomach, or kidneys, did not transmit ritual uncleanliness (Yad Hil. Tumat Hamet 2.3).

It is clear from this discussion as well as recent responsa that there is no obligation to bury the vital internal organs as they do not transmit ritual uncleanliness. That is true for traditional Jews, and of course, for us as Reform Jews. As the kohanim have no special status among us, the precautions connected with them have no significance for us.

There are no problems about the removal of the organs, however we must now attempt to define the turning point when "independent life" has ceased and can best do so by looking carefully at the traditional Jewish and modern medical criteria of death. The traditional criteria was based on a lack of respiratory activity and heart beat (M. Yoma 8.5; Yad Hil. Shab. 2.19; Shulhan Arukh Orah Hayim 329.4). Lack of respiration alone was considered conclusive if the individual lay as quietly as a stone (Hatam Sofer Yoreh Deah #38). All of this was discussed at some length in connection with the provision by the Shulhan Arukh, that an attempt might be made to save the child of a woman dying in childbirth even on shabbat; a knife might be brought to make an incision in the uterus in order to remove the fetus (Shulhan Arukh Yoreh Deah 339.1). If one waited until death was absolutely certain, then the fetus would also be dead.

Absolute certainty of death, according to the halakhic authorities of the last century, had occurred when there had been no movement for at least fifteen minutes (Gesher Hayim I, 3, p. 48) or an hour (Yismah Lev Yoreh Deah #9) after the halt of respiration and heart beat. On the other hand, a recent Israeli physician, Jacob Levy, has stated that modern medical methods permit other criteria, and the lack of blood pressure, as well as respiratory activity, should suffice (Hamayan, Tamuz 57.31).

This discussion was important in connection with the preparation for burial, as well as other matters. When death was certain, then the preparation for burial must begin immediately (Hatam Sofer Yoreh Deah 338; Y. Z. Azulai, Responsa Hayim Shaul II, #25). In ancient times, it was considered necessary to examine the grave after a cave burial to be certain that the individual interred had actually died. This was recommended for a period of three days (M. Semahot 8.1). This procedure was not followed after Mishnaic times.

In the last years, it has been suggested that Jews accept the criteria of death set by the ad hoc committee of the Harvard Medical School which examined the definition of brain death in 1978 Journal of the American Medical Association, Vol. 205, pp. 337 ff). They recommend three criteria: (1) lack of response to external stimuli or to internal need, (2) absence of movement and breathing as observed by physicians over a period of at least one hour, (3) absence of elicitable reflexes, and a fourth criteria to confirm the other three, a flat or isoelectric electroencephalogram. They also suggested that this examination be repeated after an interval of twenty-four hours. Several Orthodox authorities have accepted these criteria while others have rejected them. Mosheh Feinstein felt that they could be accepted along with turning off the respirator briefly in order to see whether independent breathing was continuing (Igrot Mosheh Yoreh Deah II, #174). Moses Tendler has gone somewhat further and has accepted the Harvard criteria Journal of the American Medical Association, Vol. 328, #15, pp. 165.1 ff) . Although David Bleich (Hapardes, Tevet 57.37; Jacob Levy, Hadarom, Nisan 57.31, Tishri 57.30; Noam 5.30) vigorously rejected these criteria, we can see that though the question has not been resolved by our Orthodox colleagues, some of them have certainly accepted the recommendations of the Harvard Medical School committee. We are satisfied that these criteria include those of the older tradition and comply with our concern that life has ended. Therefore, when circulation and respiration only continue through mechanical means as established by the above mentioned tests, then the suffering of the patient and his family may be permitted to cease, as no "natural independent life" functions have been sustained.

In addition to this, we may be well guided by the statements on medical ethics made by the Committee of the Federation of Jewish Philanthropies of New York. They have suggested that the following criteria be used:

"1. Acceptance of total cessation of brain-stem function as a criterion of death is in keeping with halakhic standards for determining death, provided the Harvard Criteria are met.

"2. The Committee expressed confidence in the medical profession's ability to provide needed safeguards and to set proper standards.

"3. Our support of this new legislation is necessary to correct the lack of uniformity presently found among hospitals and staff in determining the fact or moment of death. This legislation is, therefore, viewed as a 'tightening up' of standards.

"4. The neurological definition of death serves an important function in view of the widespread introduction of respiratory-assist technology in hospitals.

"5. Radiological methods for determining cessation of blood flow to the brain's respiratory centers are considered a particularly valid test for neurological (i.e., brain- stem) death," (M. D. Tendler, ed., Medical Ethics, 5th ed., 1975, with addendum 1981).

Hanaah the problem of "benefiting from the dead," has been discussed by Solomon B. Freehof (W. Jacob,American Reform Responsa #86). A transplant lies outside the scope of what tradition has normally understood as hanaah; this potential objection does not exist.

As we view the traditional reluctance in this matter, we feel that the desire to help a fellow human being, especially in these dire circumstances of piquah nefesh is of primary significance. From our liberal understanding of the halakhah, this is the decisive factor. The act of donating organs does honor to the deceased; many of those about to die would gladly forego any other honor and donate organs for this purpose (Kid. 32; Shulhan Arukh Yoreh Deah 364.1, 368.1; Isserles Responsa #327). As the donation of an organ will help to save the life of another human being, storage until the time of proper use presents no problem. Progress in the future may raise new issues of use and lead us to reexamine this matter. At the present time we should insist that storage and handling be done with appropriate respect and that the disposal organs which are not used be done with reverence.

March 1986

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