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.