KIDNEY TRANSPLANTS

QUESTION:

One of two sisters in middle life needs a kidney transplant. The doctors prefer to implant a kidney from a close relative (such as a sister) because the similarities of the bodies will make the danger of the rejection of the kidney by the recipient’s body much less likely. Is the healthy sister ethically or legally in duty bound, according to the Halachah, to donate her kidney to her sister? Also, is the sick sister entitled to demand that donation? The problem is complicated by the fact that the two sisters are not on friendly terms. (Asked by Rabbi David Polish, Chicago, Illinois.)

ANSWER:

As FAR AS the ethics of the Halachah is concerned, this question goes back to the Biblical verse in Leviticus 19:16: “Stand not idly by the [shedding of the] blood of thy neighbor.” The Talmud (in Sanhedrin 73a) makes this general command more specific and says: If you see your neighbor drowning in the river or being attacked by robbers and you do not come to his help, you have violated the Biblical mandate, “Stand not idly by.”

The post-Talmudic scholars realize that the Talmud is not specific as to just how much the potential rescuer is in duty bound to endanger himself. The post-Talmudic discussions on this question revolve around the question whether the victim is in real and imminent danger or only in potential danger (s ‘fak pikuach nefesh), and as to the potential rescuer, whether he would put himself in imminent danger or only in potential danger. These alternatives are discussed, and the general conclusion is that the potential rescuer must exert all means by the expenditure of money (example: hiring people to overcome the robbers, etc.) but is not in duty bound to put himself in serious physical danger.

Recently there has developed a good deal of Halachic discussion and decision as to how this interpreted Talmudic dictum applies to the specific problem of kidney transplants. Most of this discussion is connected with the historic Orthodox hospital in Jerusalem, Shaare Zedek. This hospital maintains a scholar whose task it is to study all the modern medical problems in the light of the Halachah. This scholar is Eliezer Waldenberg, whose responsa works (Tzitz Eliezer) have reached thirteen volumes. In addition to this monumental work of Eliezer Waldenberg, many of the physicians connected with the hospital are themselves Halachic scholars, and they have developed an ongoing symposium on all the new medical-Halachic questions. They publish these symposia in a series called “Healing” (Assia). Thus we are now fortunate in having a considerable body of decisions on questions such as the one asked here and on other new questions, such as artificial insemination, heart transplants, life-maintaining machinery, etc.

As to our question here, Eliezer Waldenberg has two responsa. The more important one is in Volume X, #7. In this responsum he cites a responsum from David ben Zimri, who was brought as a child from Spain in 1492, became rabbi of Egypt, and after he reached the age of ninety, left Egypt and continued his rabbinate in Safed. In

the responsa of David ben Zimri (Radbaz), Vol. III, # 6 2 5, he discusses a question which may have had actual reality under the rule of the Egyptian pashas. It is as follows: The ruler tells a certain Jew that he is going to kill another Jew unless this (first) Jew allows him to cut off his arm or his leg. The question, then, is as follows: Is a man required by Jewish law to sacrifice one of his own limbs to save another person, a question which, of course, comes close to our question about kidney transplants. Radbaz decides that while one is in duty bound to do what one can to save one’s neighbor, one is not in duty bound to endanger his own life (as might well happen with the crude amputation surgery of those days). In fact, says Radbaz, if he does indeed risk his life to save the other man, he is just being foolishly righteous (chasid shota). This in effect becomes the present-day decision of Waldenberg. He says that one is not in duty bound to risk his own life in order possibly to save another. As for the case cited by Radbaz, we do not actually know what the outcome would have been—after the first Jew had given up his limb, the pasha might nevertheless have killed the Jew whose life he had threatened. Similarly, we are not sure that the kidney transplant will be successful. Thus this would be a case of a person risking his life for the potential (not sure) saving of another.

After deciding that a man is not required by Jewish ethics to risk his own life for the potential saving of another life, Waldenberg moves on to a further question, namely, that not only is the potential donor not required to give his kidney, but it may even be said that he is really forbidden to do so, since, as Waldenberg indicates, we are not the absolute masters of our own body. Actually one’s body is a God-given loan to us, and we have no right seriously to harm it. In support of this latter idea, he quotes the Shulchan Aruch of Schneir Zalman of Ladi, who says (in Sh’ miras Ha -Guf # 14), ” You are in duty bound to protect your body and do it no harm.”

However, Waldenberg himself somewhat mitigates this completely negative conclusion. He considers the probability of some future changes in the situation, based on the possibility of medical progress. If, he says, medical science so advances in the future that the danger to the donor is largely eliminated and the likelihood of benefit to the donee is greatly enhanced, then such a gift of the kidney may be permitted, provided the potential giver does it of his own complete and full-hearted free-will.

This subject is further discussed in the symposium Assia mentioned above. There the physicians have a somewhat more permissive attitude than Eliezer Waldenberg, being more confident of the success of the surgical procedures involved. In the complete Volume I, p. 186, there is an article by Professor Kahn, who says that of course the donation has a better chance for success if the kidney is from a close relative, but the kidney may only be taken from him “if he in truth wishes to give it from the depth of his heart and has no hesitation or limitations to his intention.”

Of course, if the donor has serious doubts about giving up his kidney, or has to be too heavily persuaded to do so, then, as Waldenberg says, if some damage occurs through the operation, the doctor or those who persuaded the donor are the ones who have incurred guilt.

Applying all this to the specific question asked, we can say that if the sister who is asked to give the kidney is not completely willing to do so, it is against Jewish ethics to try too insistently to persuade her. After all, the operation on the potential donor to remove the kidney involves danger and may not go well, and also the operation of implanting it may not be quite successful, and it is clear that Jewish ethics does not require us to enter into potential personal danger, especially when the benefit of the one to be rescued is itself not absolutely certain.