QUESTION: The sale of kidneys and other bodily organs isillegal within the United States. Can a doctor who suspects that a donor who claims to be a close relative and states that he is donating his organ but who is is actually selling it, perform a transplant operation in good conscience? Can he perform such an operation upon citizens of the United States in a country in which the sale of bodily organs is permitted? (Rabbi M. Staitman, Pittsburgh, PA)
ANSWER: We must first concern ourselves with the generalquestion of transplants and the dangers which lie in the operation. There is a clear line of reasoning in the Jewish tradition which demands that a person remove all possible danger to himself (Deut. 4.9, 4.15; Ber. 32b; B. K. 91b; Yad Hil. Rotzeah Ushemirat Hanefesh 11.4; Hil. Shevuot 5.57; Hil. Hovel Umaziq 5.1) . This has led modern traditional authorities to limit operations to those matters in which there was a high likelihood of success ("Dangers of Surgery").
In the case of a kidney, we face danger to both the donor and the recipient.The donor possesses two kidneys, and the loss of one may at a later stage in life cause health problems. The recipient of a kidney transplant undergoes an operation which, while not routine and often successful, is dangerous. The recipient benefits greatly from the new kidney which restores that person to a normal life in place of regular dialysis. The general question of such transplants has been discussed from a Reform point of view (S. B. Freehof, New Reform Responsa, pp. 62 ff; Current Reform Responsa, pp. 118 ff) and from a traditional point of view by many authorities (Mosheh Feinstein, Igrot Mosheh Yoreh Deah 229 and 230; Eliezer Waldenberg, Tzitz Eliezer IX, 45, X, 25; Obadiah Yoseph Dinei Yisrael Vol. 7). There is a consensus that although it is permissible to give a kidney to a close relative, no one should urge such a donation because of the potential danger involved.
In our instance we are going a step further as we are discussing the sale ofsuch a kidney from a living person. The sale of all organs is illegal in the United States. We, in this case however, are discussing the morality of transplanting a kidney which may have been sold elsewhere and whether Judaism permits the transplant when a sale is suspected.
Individuals in the third world have been particularly tempted to sell organsbecause of dire poverty. It is reprehensible to solicit organs in such lands. The practice has been defended by those engaged in it as an act of gemilat hasadim despite the commercial transaction the "donor" is saving the recipient's life which is currently in danger, so the donor, whether he makes a gift or a sale, is saving a fellow human being. We recognize this line of reasoning, but are not convinced by it. There is a somewhat parallel case reported by David Ibn Zimri of Egypt (16th century). In his responsa (Vol. III, #627) the following was cited: The Pasha told a certain Jew to allow his leg to be amputated or else he would kill another Jew. May this man endanger his life (since the amputation was dangerous) in order to save the life of a fellow Jew? David Ibn Zimri considered this beyond the call of duty.
As people often searchdesperately for a donor, such sales are bound to continue despite our disapproval and their illegality. We must help to assure alternative sources for transplant organs; we urge that the public be educated to donate their organs. The 40,000 annual fatal automobile accidents alone are sufficient to supply most needs. If foreign sources are closed by the refusal of surgeons to use organs when a sale is suspected, then we may become serious about a national donor program. The surgeon in this case should not perform the operation on moral grounds .