Organ donation – an act of life saving and bestowing kindness
Apart from the halachic controversies and debates that shall be detailed further on, one thing should be emphasized: according to the majority of the rabbis, organ donation, when carried out in accordance with halachic law, credits the deceased donor and his/her family with the highest virtue both in the Upper Worlds and in this world.
Organ donation joins together the highest commandment of life saving and bestowing kindness. All religions are in favor of organ donation for life saving.
Life saving – above all (almost)
Life saving is the highest fundamental value in Judaism. In fact, in order to save a life, it is permissible to transgress any other commandment, with three exceptions: blood shedding, incest, and idolatry. In the Torah and in the Halacha, many places can be found that state that life saving is a high commandment that prevails over all others. For example: "neither shalt thou stand idly by the blood of thy neighbor" (Leviticus, 19, 16). Rashi interprets this commandment as a prohibition to do nothing if a human life can be saved; in Aruch HaShulchan (Choshen Mishpat 426:4), it is written: "And do not overly preserve yourself … and whoever preserves a single soul of Israel, [scripture ascribes to him] as though he had preserved a complete world".
What is halachic death?
All rabbinic rulings that authorize organ donation (and even regard it as a commandment) set one single restriction: donation is permissible only if carried out in accordance with halachic laws. At the heart of the halachic problem lies the establishing of the death of a person – which has to be done according to halachic laws.
All along history, the definition of the death of a human being has constituted a medical, psychological, and ethical problem in different cultures and religions. In the second half on the 20th century, as a result of the development of technological and scientific knowledge, a wide consensus has been achieved, as physicians, philosophers and jurists all over the world rallied around a uniform definition: human death shall be defined as brain-respiratory death, i.e. a state in which there is proof of total and irreversible arrest of brain activity, also including autonomous respiration, in spite of normal heart and circulatory activity.
Within Jewish Halacha as well, a controversy has taken place in the course of the years as to the establishing of the death of a person, and it can be stated that consensus has been reached with regard to a number of necessary preliminary conditions for establishing death:
a. The person does not move his/her limbs.
b. The person is unconscious.
c. The organ the lack of activity of which defines the moment of death ceased its activity completely and irreversibly.
The controversy that has not been solved to this day is: what is the organ or function the total absence of which determines the moment of death from a halachic point of view? Nowadays, the rabbis are in disagreement as to whether this is:
a. Respiratory or cardiac arrest.
b. Total brain destruction (even if cardiac activity is conserved).
c. Total and irreversible absence of autonomous respiration, even if the heart is still beating. The brain in this definition is important for the fact that within it (i.e. in the brain stem) lays the respiratory center, and the total and irreversible arrest of its activity indicates the total and irreversible arrest of autonomous respiration.
As stated, the leading rabbis of our generation disagree as to which of these three main options is the one that determines the moment of death of a human being from a halachic point of view. The halachic circles that equate the moment of halachic death with the stopping of the heart activity cannot be part of organ donation, as organ removal prior to the arrest of the heart activity would mean, in fact, taking life.
Brain death is halachic death
In 1985, the Chief Rabbinate of Israel was required to decide in this matter. For this purpose, the Chief Rabbinate appointed a Committee made up of rabbis and of medical-rabbinic advisors. Its conclusions, which were accepted unanimously by the Chief Rabbinate Council, establish that a person in which all the objective scientific conditions for determining total brain death are present, including, in particular, brain stem death, and total and irreversible absence of respiration, is dead for all intents and purposes.
However, the halachic ruling does not stop here, but emphasizes that the establishing of death, based on this definition, shall be done in a certain manner, which is presented in detail, and only then is organ donation permissible.
How is brain death established according to Halacha?
The Ministry of Health applies a precise procedure of establishing brain death, which is detailed in a circular of the General Director, and which imposes the obligation of scrupulous examination by two specialist physicians for determining death. However, the Chief Rabbinate of Israel was not satisfied, as previously mentioned, by this procedure and it required additional conditions. Thus, in the course of the years, although the halachic ruling as to the determination of brain death as halachic death had already been accepted in principle, controversies continued between the medical and the rabbinic communities as to the practical manner of pronouncing brain death.
As a result of these controversies, a limited steering committee was established, which set up a list of rules for determining brain death acceptable by both communities and ensuring the largest social consensus possible.
These rules were, finally, set down in a law passed at the initiative of Otniel Schneller, MK, Brain-Respiratory Death Law, 5768 – 2008, which formulates all the requirements for the determination of brain death, accepted both by physicians and by rabbis who recognize in principle that brain death is equivalent to the death of a person. The law settles all the medical-scientific, public and halachic problems.
The guidelines of the law include:
- Addition of an objective test. Addition of an objective machine test to the clinical tests mentioned in the Circular of the General Director. This test is supposed to be carried out in any case, not only in such cases in which a full clinical examination is impossible (as a matter of fact, this requirement also exists in a number of countries in the world).
- Special qualification of the physicians. The physicians shall be required to obtain special qualification for establishing brain-respiratory death. In order to obtain such qualification, they shall have to undergo special training in a course that the contents of which shall be determined by the Ministry of Health, the Israel Medical Association and the Chief Rabbinate.
- Control by a Supervisory Committee. The process of establishing brain death in Israel shall be subject to follow-up by a Special Superior Supervisory Committee made up of physicians, rabbis and public figures, which shall examine each case and shall ensure its conformity with the standards.
- Uniformity in the entire state. The process of establishing brain death shall be uniform in all the Israeli hospitals and shall be applied to any patient in which the possibility of brain death is examined.
The law is authorized by Halacha
In September 2009, the Chief Rabbinate, led by the Rishon LeZion, Rabbi Shlomo Amar, and by the Chief Rabbi of Israel, Rabbi Yona Metzger, confirmed the fact that the Brain-Respiratory Death Law is in accordance with Halacha; and consequently, that it was unreservedly possible to implement the 1986 ruling of the Rabbinate, which permitted organ donation on condition that death be established according to Halacha.
It can be concluded that brain-respiratory death is being established nowadays by a meticulous process, in compliance with the procedure of the Ministry of Health – Circular of the General Director, carried out by two specialist physicians that have undergone special qualification, and after a test executed by means of machine has shown an absence of brain activity, under the Brain-Respiratory Death Law, and in full compliance with the requirements of the Chief Rabbinate of Israel and of the Halacha.
Moreover, by means of the donor card, it is possible to stipulate that the donation be conditional upon the authorization of a clergyman at the request of the family. The present wording of the donor card poses certain halachic difficulties, and a discussion is taking place presently as to the update and amendment of the donor card, so that its wording may comply with halachic requirements.
In any case of doubt – an answer
Apart from the core problem of establishing death, there are additional halachic problems that may arise in connection with organ donation. Jewish religion attributes great importance to the dignity of the dead, and there are explicit halachic laws as to the proper care to be given to the body, ensuring the respect of its dignity. Is organ donation – which, from every point of view, saves lives – in contradiction with the obligation of respecting the dignity of the dead? We shall see hereunder how Halacha confronts this problem.
Mutilation of the dead – The Torah prohibits the unnecessary mutilation of the dead. However, if the mutilation is done with the purpose of saving life, like in this case, the rabbis agree that it must be permitted, as Pikuach Nefesh (saving of human life) prevails over all the prohibitions of the Torah, apart from three transgressions (idolatry, incest and blood shedding) that are not superseded by the injunction of Pikuach Nefesh.
Postponement of burial - The Torah prohibits the postponement of burial. The organ harvesting may postpone burial by a number of hours, but as it is done with the purpose of saving life, the rabbis agree that the prohibition of burial postponement is superseded by the injunction of Pikuach Nefesh.
Benefitting from the dead – The Torah prohibits benefitting from the dead. As in this case the benefit stems from life-saving organs, the rabbis agree that the prohibition of benefitting from the dead is superseded by the injunction of Pikuach Nefesh.
In view of all this, it is obvious that the organ donation commandment, by its life-saving character, supersedes all the prohibitions related to the care of the dead.
The process of removing organs from the deceased takes place in hospital, in an operating room, in a respectful and professional manner, with maximum speed and by fully maintaining his or her dignity.
Is the cornea life-saving?
Some people maintain that the cornea cannot be removed from the dead, as it is not life-saving, and, as such, it does not supersede the halachic laws related to the respect for the dignity of the dead.
However, a large number of leading rabbis have ruled that blindness is a life-endangering condition, as the environment represents a permanent danger for the life of the blind. In view of this, it was ruled that cornea donation is "life-saving" too, and that the cornea has the same status as any other organ from the point of view of organ donation from the dead. Other rabbis have permitted cornea removal from the dead in order to save a person from blindness for other halachic reasons too.
And what about the resurrection of the dead?
Some people maintain that it is forbidden to remove organs from the body of the dead, because he/she shall need them at resurrection. It has to be mentioned that from the moment of burial, a process of putrefaction and decomposition of the human body takes places, so that it is certain that the organs are not preserved for resurrection. Most of the rabbis have ruled that, at resurrection, the Holy One, Blessed Be He, shall restore to each person his or her organs, as He restores his or her life. Similarly, a person who, in the course of his or her life, underwent a limb amputation, or removal of various internal organs, shall surely be resurrected to life without these mutilations. And besides, the majority of the rabbis do not mention resurrection of the dead as a halachically significant factor for the question of organ donation.