R. Shaul Yisraeli was among the most vigorous halakhic defenders of the brain death criteria. A member of the Chief Rabbinate council that voted to adopt the criteria, he subsequently wrote a strong article defending the decision. However, he also wrote another responsum on organ donation that took a surprisingly different, albeit not contradictory, approach to the general subject. According to the index I have of R. Yisraeli's published works he only wrote two responsa on organ donation. The first and most famous was his defense of brain death criteria, originally published in 1987 and republished in the first volume of Chavos Binyamin. He also wrote a responsum on the general subject, published without a date in Chavos Binyamin volume 3 (no. 109), in which he addresses various other issues related to organ donation.

Organ Donor Cards

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I. A Giant Speaks

R. Shaul Yisraeli was among the most vigorous halakhic defenders of the brain death criteria. A member of the Chief Rabbinate council that voted to adopt the criteria, he subsequently wrote a strong article defending the decision (see this post: link). However, he also wrote another responsum on organ donation that took a surprisingly different, albeit not contradictory, approach to the general subject.

According to the index I have of R. Yisraeli’s published works he only wrote two responsa on organ donation. The first and most famous was his defense of brain death criteria, originally published in 1987 and republished in the first volume of Chavos Binyamin. He also wrote a responsum on the general subject, published without a date in Chavos Binyamin volume 3 (no. 109), in which he addresses various other issues related to organ donation (available here: link and in English translation: I, II, III, IV, V, VI). Before we discuss his answers to specific questions, I emphasize that his is only one view among many and everyone should consult with their own halakhic advisor. However, as one of the main halalakhic proponents of the brain death criteria, his views are of particular interest.

II. Dangerous Donations

Is a Jew obligated to give live organ donations? Are you required to save someone else’s life by offering a non-vital (to you) organ, blood or bone marrow? Based on two responsa of the Radbaz, R. Yisraeli rules that you must if you bear no physical risk or even pain in the procedure. If it is dangerous, then you need not. He places the border at 50%. If the probability of pain or worse is 50% or greater then you are not obligated to donate a part of you. If you would not take the risk to earn money then you need not take it to save someone else’s life (see Mishpat Kohen, no. 143).

Based on the Radbaz, R. Yisraeli additionally says that while there is no obligation to donate a kidney or similar because of the pain, it is still praiseworthy because the risk of death is small. He goes even ferther regarding donation of blood or bone marrow, which a donor will produce to replace what is given, saying that it is advisable. In other words, you need not but you should give blood and bone marrow.

III. Selling Organs

Selling organs is morally complex because of the commoditization of human body parts. R. Yisraeli is unconcerned with such issues and allows payment for blood and organs provided that the price is reasonable and no one other than the donor — specifically not middle-men/brokers — receives compensation. The donor may be paid for his time, pain and physical loss.

IV. Organ Donor Cards

Perhaps most surprising in this responsum is R. Yisraeli’s negative attitude toward organ donor cards, which generally apply only after their owners’ death (in which R. Yisraeli includes someone whose brain stem is dead). A person retains ownership over his body, except where specific prohibitions limit his rights. He can therefore give permission to donate his organs after his death. And even if he did not explicitly allow it, if we can legitimately assume that he would have given permission had he been asked then we may take his organs. However, if he declines to donate, or we believe he would have, then we may not take his organs. (R. Yisraeli leaves room for family to determine what the decease said or would have said on the subject.)

Even though the obligation of saving another person’s life overrides nearly all other commandments, a dead donor is not obligated in anything, including saving someone’s life. Even while he is alive we cannot force him to fulfill an obligation that will only apply when he is exempt. I find this all very confusing. Why does a dead person retain rights over his body? Why doesn’t our obligation to save someone’s life override our obligation to respect the deceased’s life? I think these can all be answered and I am certainly not advocating stealing organs from cadavers. However, R. Yisraeli elides these issues.

Perhaps significantly, R. Yisraeli concludes this section by stating that someone who asks whether he should donate his organs for lifesaving procedures after his death should be encouraged to do so. You can tell him to sign and carry an organ donor card. However, we may not encourage people to ask that question. Such donation generally occurs after a sudden death, such as in an accident, and encouraging people to consider such situations qualifies as “open[ing] one’s mouth to Satan.” The Gemara (Berakhos 19a) forbids such pessimistic — dangerous — speech. Therefore, R. Yisraeli forbids unprompted encouragement of registration for organ donor cards.

While I find this surprising and difficult — does not the obligation to save lives override such an injunction? — I quote this not as definitive halakhah but as the ruling of one of the greatest rabbinic proponents of brain death criteria. R. Yisraeli’s knowledge and experience gained him respect and authority in life-and-death situations. These same traits led him to forbid active encouragement of registration for organ donor cards. Those who respect him, like I, will take his rulings seriously as Torah to be studies, while consulting with their own halakhic advisors regarding proper practice.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

11 comments

  1. It’s very difficult to respond to a post like this without a copy of the tshuva to read. Is there any way to post a copy?

  2. Does R. Yisraeli address what many take as a moral failing of mattering transplant acceptance while asuring its donation? i understand from your note he himself is one of the mattirim, but imagine the t’shuvoh must have explained his dismissal of the other side. also – “elide over”?

  3. “Selling organs is morally complex because of the commoditization of human body parts. R. Yisraeli is unconcerned with such issues and allows payment for blood and organs provided that the price is reasonable and no one other than the donor — specifically not middle-men/brokers — receives compensation. The donor may be paid for his time, pain and physical loss.”

    — I’d love to see a copy of the tshuva, but if this is indeed what R. Yisraeli says, then how refreshingly libertarian!

    See Eugene Volokh’s article, “Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs” Harvard Law Review, Vol. 120, April 2007 – http://papers.ssrn.com/sol3/papers.cfm?abstract_id=941868#PaperDownload

  4. Here is the teshuvah: link

  5. I found an English translation in 6 parts: I, II, III, IV, V, VI

  6. “Why does a dead person retain rights over his body?”

    I’m confused by the question. Why does a dead person retain rights over his property (e.g. distribution via a modern will)?

  7. Such donation generally occurs after a sudden death, such as in an accident, and encouraging people to consider such situations qualifies as “open[ing] one’s mouth to Satan.” The Gemara (Berakhos 19a) forbids such pessimistic — dangerous — speech.

    Wouldn’t that make most forms of insurance assur?

  8. IH: A dead person doesn’t retain rights over his property. The Torah specifies exactly how they should be divided among the heirs, and a person can’t override that mitzvah. What a person *can* do is give away any property he wants, to whomever he wants, during his lifetime. So all halachic wills that distribute property to whomever the deceased wants operate by giving away the person’s property while the person is still alive (there are several ways to do this that allow the person the full use of his property while he’s still alive, but I’m not going to go into detail in a blog comment).

  9. In discussing paying for an organ, does he discuss who is doing the paying? I can understand if the government gives some benefit (tax credit etc.). But if it is the patient who is doing the paying, does this mean that wealthy people whose need is not that great will get organs while others who are sicker and have a greater need will not?

  10. I really don’t understand the injunction of Lo liftoach peh lasatan in this case. As Shlomo wrote this would mean that all forms of insurance and dealing with possible negative problems in the future would be assur liftoach peh laSatan. Maybe the difference here is that organ donors have to do with sudden and meshuneh death where the Satan lurks more than in normal insurance issues. But I still find it difficult that a posek of R’Yisraeli’s stature would use this as a reason to discourage the use of organ donor cards. There are many teshuvot of R’Aviner which greatly encourage carrying donor cards and he himself carries one.

  11. Fascinating article-one can only guess what the Moetzes Gdolei HaRofim think about the bottom line-no active encouragement of signing of donor cards by a Posek who subscribes to and defends brain death.

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