Jewish Law - Commentary/Opinion - How Much is that Liver in the Window?

How Much is that Liver in the Window?
Rabbi Chaim Steinmetz

How Much is that Liver in the Window?

Rabbi Chaim Steinmetz

There is a serious shortage of organs for transplant surgery. Only a fraction of patients who need transplants get them, and as of October 31, 1999, there were 66,175 on waiting lists for organ transplants (Source: United Network for Organ Sharing). With the hope of motivating more families to donate organs, the State of Pennsylvania has begun to offer $300 towards the funeral expenses of an organ donor. This plan has sparked a great deal of discussion about the morality of buying and selling cadaver organs.

In halacha, the body of a dead person is treated with enormous respect. The Bible prohibits mistreating any dead body, even the bodies of an executed prisoner or military opponent (Deuteronomy 21:23; Joshua 8:29). In addition, one is prohibited to derive any benefit, financial or personal, from a dead body (Avodah Zarah 29b). According to the Mishnah (Yadayim 4:6), the reason why the Torah considers one who comes into contact with a dead body to be ritually impure (tamei) is to prevent people from fashioning household objects such as spoons from the bones of family members; because dead bodies are ritually impure, it is extremely inconvenient to make regular use of body parts. (It should be noted that the concern of the Mishna is not an imaginary one; it was not uncommon for sorcerers to use human bones).

There is a great deal of debate among halachic authorities about when death occurs, and at what point one may remove organs from a cadaver. Once death occurs, most opinions maintain that it is a mitzva to donate organs to save another person's life (e.g., Iggrot Moshe YD II: 174). [The amount of time that may elapse between death and the need for the donee to obtain the organ involved in order to save his life is a Halachic question that is beyond the scope of this article.] The prohibition against deriving benefit from a cadaver does not preclude organ donations, because the organ is saving the recipient's life. However, the question remains: Does the prohibition against deriving benefit from a dead body preclude the sale of cadaver organs?

Dr. Abraham S. Abraham discusses this issue in a recent volume of his series on medical halacha Nishmat Avraham (volume 4, 113-115, 222-223.) He argues that the prohibition against gaining benefit from a dead body would prohibit one from selling cadaver organs. He writes that the late Rabbi Shlomo Zalman Auerbach agreed with his approach. However, at the end of the book, he prints a letter from Rabbi Eliezer Waldenberg, the author of the responsa collection Tzitz Eliezer. Rabbi Waldenberg argues that the family would be allowed to sell the organs. He bases his opinion on a complex responsa by the Chatam Sofer (YD 130). The Chatam Sofer argues that when one does a mitzva, he does it because he is obligated to do so, and therefore has no other choice (cf. Rosh Hashanah 28a, Rashi s.v. lav). If so, the person is performing the mitzva because of his obligation, and the only is only an indirect benefit. Rabbi Waldenberg says the same would be true of organ donations. Assuming there is a mitzva to donate organs, there is no problem for the family to get paid for the donation, because they are obligated to donate the organs in any case. In most transactions, the seller is obligated to turn over his wares because he has received money from the buyer. However, in this case, the seller has an obligation to donate the organs even before the transaction took place. In this case any monies received by the family are not the source of their obligation to donate the organs, and therefore this money is not considered a direct benefit from the dead body.

There are two halachic opinions about the acceptability of selling cadaver organs. Some see it as forbidden, prohibited because the family benefits from the sale of a dead body. Others find a loophole to allow this transaction, by viewing the money as peripheral to the donation. While it may be far simpler to forbid this practice, the enormous scarcity of organ donations may obligate us to look for any way to encourage organ donations, including paying donor families.

Rabbi Chaim Steinmetz is the Rabbi of Tifereth Beth David Jerusalem in Quebec Canada, and may be reached at tbdj@connectmmic.net