SURGICAL TRANSPLANTS

What is the attitude of the Jewish legal tradition to the growing surgical practice of transplanting parts of a dead body into that of a living person?

IT should go without saying that Jewish tradition and feeling would be absolutely opposed to hastening the death of a potential donor by even one second, in order that the organ to be transplanted into another body be in good condition. Nothing must be done to hasten the death of the dying. This scrupulousness about preserving the last few moments of life is also the concern of modern medicine. There are serious discussions today among doctors, especially with regard to obtaining organs for transplanting without delay, as to exactly when the potential donor is to be considered actually dead. At first the rule was, when the heart stopped beating; now they are considering a further test, when the brain stops functioning. As the discussion in medical circles continues, they will devise more and even stricter tests.

As far as deciding when the potential donor is actually dead, modern scientific opinions are much stricter than Jewish tradition. The controversy arose a century ago as to whether the Jewish law of immediate burial was too hasty an action or not. Various governments in central Europe decreed that there must be a delay of three days before the burial. The great Hungarian authority, Moses Sofer, defended the Jewish custom of immediate burial (on the same day) and said that our traditional judgment, embodied in the knowledge of the Chevra Kadisha, was sufficient proof of death (see his responsum, “Chasam Sofer, ” Yore Deah 3 3 8) . Let us therefore say at the outset that, at least according to the spirit of Jewish law, the stricter the test as to the time of death which physicians will arrive at, the better it is. We therefore agree with the strict judgments of modern medicine that the patient must be absolutely dead.

But it is from this point on that the real problem begins. Is it morally or legally permissible to take away parts of the body of the dead, and is it further permissible to insert such parts into a living body? The problem is difficult, first of all, because transplanting of organs is an entirely new surgical procedure and, therefore, there could be no direct parallel or discussion of such a procedure in the older literature. Whatever opinion is arrived at on this matter must be derived as the underlying ethical principle behind related discussions in the literature.

There is a second and more direct difficulty in analyzing this question. When we begin to study the ethical implications of related ideas in the Talmud and in the writings of later scholars, we discover that the relevant basic principles seem to be mutually contradictory. Since this fact constitutes an initial difficulty, let us consider it first.

There is a general principle as to healing and the materials used for healing which, on the face of it, is so general as to make all further discussion of this problem unnecessary. The Talmud says (Pesachim 25a): “We may use any material for healing except that which is connected with idolatry, immorality and bloodshed.” These are the three cardinal sins to avoid, for which a person must be willing to undergo martyrdom. But aside from three such sources of healing methods or materials, any material or any method would be permitted. Maimonides, himself a great physician, makes this Talmudic statement even clearer. He says (Hilchos Yesodey Torah, 5:6):

“He who is sick and in danger of death, and the physician tells him that he can be cured by a certain object or material which is forbidden by the Torah, he must obey the physician and be cured.”

This is codified as a law in the Shulchan Aruch, Yore Deah 155:3.

Considering this general permission to use anything we need, no further discussion would seem to be necessary, except for the fact that the body of the dead has a special sacredness in Jewish law. There is a general principle that the body of the dead may not be used for the benefit of the living (mayss ossur b’hana’ah, based on Sanhedrin 47b). If the two principles are taken together, the general permissiveness would then need to be restated as follows: We may use all materials except those involved in the three cardinal sins mentioned above and except, also, the body of the dead.

But this apparent prohibition of using parts of the body of the dead depends upon a closer definition of the word hana’ah (benefit). Later scholars understand the word hana’ah, “benefit,” to mean really not “general benefit,” but rather “satisfaction,” in the sense chiefly of the satisfaction of food. Therefore they speak of materials taken into the body in other ways than by the way of eating, and they call such absorption of material (other than eating) “not in the way of benefit, or satisfaction,” (to k’derech hana’aso). For example, the eating of blood is forbidden, but taking a blood infusion by means of the veins is described as not by way of hana’ah or satisfaction, and therefore is permitted. Thus the question of getting hana’ah (satisfaction) from the body of the dead depends now on whether it is taken as medicine by way of food. If the parts of the body of the dead are taken “not by the way of satisfaction” (derech hana’ah) but inserted into the body in another way, the law forbidding “benefit” from the dead is usually much more permissively interpreted.

There is another phase of the principle that the dead may not be used for the benefit or satisfaction of the living. That has to do with the distinction between Jewish dead and Gentile dead. In general we are in duty bound to heal the sick, bury the dead, comfort the mourners of Gentiles, just as we do with the bodies of Jewish dead (b. Gittin 60a). But with regard to the Jewish dead, Jewish law adds certain special regulations. For example, a Cohen may not be in the same building with the Jewish dead because he may not defile himself except for his own relatives. There are detailed burial requirements as to washing, shrouds, etc., which are required for the Jewish dead. These extra requirements do not apply to the Gentile dead. We are, of course, in duty bound to bury and console, but neither Gentiles nor we are required to obey these additional minutiae of Jewish burial laws. It is sufficient if Gentile dead are respectfully buried and their mourners consoled.

There seems to be no Christian objection to such use of the bodies of the dead. But there is a debate in Jewish law as to whether the body of the Gentile dead may or may not be used for the benefit of the living. The Shulchan Aruch, Yore Deah 349, is inclined to the belief that the body of the Gentile dead may not be so used, but the majority of opinion inclines to the side that such bodies may be used for the benefit of the living (see the authorities marshalled by Moses Feinstein, Igros Moshe, Y.D. 229, 230). Since, therefore, the majority of the available bodies as sources of organs for transplant are Gentile bodies, this detail of the doubt as to whether “benefit for the living” may come from the body of the dead does not have heavy weight.

There is, of course, a third consideration and that is the duty of burying the whole body of the dead. This duty is the source of the basic objection of Orthodox authorities to autopsy. Therefore the question now is whether a part of a body which is inserted into a living body is still to be considered part of the dead, which must be buried, or rather is it now a part of a living body?

All, or almost all, of these rather complex considerations and apparent contradictions which needed to be harmo-nized are discussed in the Talmud and its early commenta-tors, but of course they have no definite statement about the actual consuming or using the body of the dead for the healing of the living. Such an actual use for healing begins to appear in the literature in later centuries.

One of the strangest discussions of the use of the dead medically for the healing of the living, is found in the responsa of David ibn Zimri (Egypt, 1479-1589). He is asked a question which seems bizarre to us, who no longer are aware of medieval popular medical superstitions. It seems that mummies from the ancient Egyptian tombs were in David ibn Zimri’s time a regular article of commerce. They were sold for medical purposes. People would actually eat those mummies to heal certain diseases. He is asked whether it is permitted to get benefit (handah or satisfaction) from these bodies of the dead (Responsa Radbaz, III, 548). He states the general principle that one may not have hana’ah from the flesh of the dead (based on Avodah Zara 29b). Then he says that these bodies, embalmed so long ago with various chemicals, are no longer human flesh but are now another product. The ancient embalming preserved merely the outlines of the features but transformed the flesh into something else entirely. Furthermore, he says, these were once the bodies of the ancient Egyptians and, of course, here the law is less strict than the laws about “benefit” from the Jewish dead.

As far as I am aware, there is no other discussion in the responsa of the use of parts of a dead body for healing. There are some references to the use of tanned skin, but that was not for medical purposes. But in our time there are two detailed discussions of precisely our problem. They are by Moses Feinstein of New York, who may well be considered the prime Orthodox author of responsa (although, indeed, some extreme Chassidim recently denounced him for an allegedly liberal opinion with regard to artificial insemination). Moses Feinstein in his Igros Moshe, Yore Deah, has two successive responsa on the subject (229 and 230). These responsa, although only four or five years old, do not yet know of heart and liver transplants, but the author already knows of bone transplants and that is sufficient for him to marshal all the relevant opinions.

He discusses, as was indicated above, the exact definition of the term hana’ah, benefit, and explains it as literally meaning “satisfaction of food.” Hence that which is taken into the body not by way of food (i.e., not by mouth) is to be considered more leniently. Furthermore, he speaks of the fact that most bodies available for organs are Gentile and therefore the stricter prohibitions do not apply to them. Finally he comes to a conclusion which is vital to the whole discussion, that when a part of a body is taken by a surgeon and put into a living body, it becomes part of a living body. Its status as part of the dead which needs to be buried is now void (botul).

There is a confirmation of the permissive opinion of Feinstein in the responsa of Nahum Kornmehl, published in 1966 in New York, Teferes Zvi, 75. His explanation is really charming. He says with regard to the prohibition of hana’ah from the dead in transplants that when the operation occurs there is certainly no hana’ah for the patient, only misery for days. The hana’ah comes when the transplant comes to life and becomes part of his body. But now it is alive and therefore this has nothing to do with benefit from the dead.

To sum up the discussion: The exceptional nature and rights of the dead body do not stand in the way of the use of parts of the body for healing of another body. The part taken is not taken into the living body as food. Hence it is not considered derech hana’ah. The part becomes integrated into a living body and therefore the requirement of its burial has lapsed. Therefore the general principle first stated remains unimpugned, that “we may heal with any of the prohibited materials mentioned in Scripture.” This is especially true, as Maimonides indicates, because the patients about to receive these implants are actually in danger of death, and for such patients any possible help is permitted by Jewish tradition.

(Originally submitted to the Central Conference of American Rabbis, 1968.)