THE USE OF THE CORNEA OF THE DEAD

QUESTION:

Physicians in recent years have developed a technique of transplanting the cornea from the eyes of people recently dead onto the eyes of the blind and thus, in many cases, restoring their sight. Is this procedure permitted by traditional Jewish law? (Asked by Rabbi David Wice, Philadelphia, Pennsylvania.)

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 Ha Pardes, and also a full discussion of it by the late Rabbi L. Greenwald, in his Kol Bo Al Avelus, p. 45.

It is necessary, first, to state the general attitude of Jewish law as to the use of normally forbidden objects —blood, trefe meat, etc.—in case of sickness. The law is in the fullest sense liberal, and is codified in the Shulchan Aruch, Yore Deah 155:3. An invalid who is not in grave danger may make use in healing of all forbidden things which are forbidden by rabbinic law, but not of such as are forbidden by the stricter law of the Pentateuch itself. An invalid who is in imminent danger (choley sheyesh bo sakanah) may make use for his healing even of objects which are forbidden by the strictest Pentateuchal law. A man who is blind in one eye would be considered an invalid not in immediate danger, but one who is blind in both eyes would be considered 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 on this matter is not whether the blind man may use it, but whether we have the right to provide it. This is another and more complicated matter. There is, first of all, the question of tumah, “uncleanness.” Part of the body of the dead makes unclean by contact, and since it is the procedure to have that part of the body available, the touching of it makes 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 only 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 or the eyeball. The doubt about uncleanliness pertains to the size of the object. Does an amount as small as this make unclean? All of those who discuss the matter count this amount as “less than an olive,” their usual measurement for the amount that makes unclean. If, then, human flesh less than an olive must be buried, then it does make unclean if not buried, the two considerations being related to each other. Does less than an olive require burial? This is debatable. The Minchas Chinuch # 5 3 7 (Joseph Babad) says that even such a small amount needs to be buried; but the authoritative commentator to the Yad, namely, the Mishne L’Melech (Judah Rosanes), at the end of Hilchos Avel, the second paragraph before the end of his comment, says 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 the question permissively, but the practice is not to take out the cornea alone, but to remove the entire eyeball and 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 un clean, but that (practically or “rabbinically”) we merely treat it as unclean lest it be used irreverently (Talmud, b. Nidda 55a). The Talmud states this picturesquely: “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 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 the sin of bal solin, “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), Greenwald in his discussion says it should be buried for another reason. It is an ever (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 Aggadic statement in b. Nedarim 32b. There we find an Aggadic discussion as to why God called the patriarch first “Abram” and then later “Abraham.” The name Abram totals the number 248, the number of the “limbs” of the body. The Aggadic 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 Aggadic statement that the eye is to be considered a “limb” which must be buried is the Halachic implication of the Mishnah in Oholos 1:8, 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.

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 like 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 ( l’chumra). Whereas a more liberal teacher, more concerned with making the law viable for our changing age, will decide these doubts leniently (l’kula).

My decision, therefore, which has adequate justification as seen above, is as follows: Because 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 ac customed 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.

(This responsum was originally written for the Central Conference of American Rabbis Yearbook, Vol. LXVI, 1956.)