by R. Gidon Rothstein
18 Tevet: R. Ben–Zion Abba Shaul and R. Ovadya Yosef Debate Cornea Transplants
One of the wonders of the past hundred years has been the flowering of Torat Eretz Yisrael, Torah from the Land of Israel. In this series, where I review responsa by dates of the Jewish calendar, we’ve certainly studied our share of Diaspora-based Torah giants, but we’ve also gotten the opportunity to “meet” and learn from scholars of Eretz Yisrael.
In this installment, we meet R. Ben-Zion Abba Shaul, a contemporary and friend of R. Ovadya Yosef and R. Chayyim David Halevy (longtime Sephardic Chief Rabbi of Tel Aviv). R. Abba Shaul taught at and then headed the yeshiva where they all had studied, Porat Yosef.
He titled his responsa Or Le-Tziyyon, a Light to Zion (a play on his name, Ben-Zion, son of Zion), and 1;Yoreh De’ah 28 of that work is dated the eighteenth of Tevet 5719 (which was December 29, 1958—Tevet is the month that might already be in January, so that the Jewish and non-Jewish years are more easily translated one to the other—5719 to 1959. In this case, it was still 1958), and is addressed to R. Ovadya Yosef.
R. Abba Shaul had written about whether Jews could have cornea transplants; since at the time he was not writing books of responsa, he asked his friend to include it in Yabi’a Omer (R. Yosef’s responsa), with reactions. The original responsum was dated 27 Elul, 5715 (1955), so it was three years later that he turned to R. Yosef for reaction.
R. Yosef acceded to his request, in 3;Yoreh De’ah 21 (which we’ll review briefly). When R. Abba Shaul later decided to publish his own responsa, he included this one, which is where we’re taking it from.
Benefit from the Deceased
Corneas are among those few body parts that medically can be harvested even after death, so the issue of determining death does not bother us. However, we do have to be concerned with the halachic prohibition of receiving benefit from corpses. Rashi to Sanhedrin 47b sees this as a Biblical prohibition, a view Tosafot ratifies, based on a similarity of language between Miriam’s passing and what happens with an eglah arufah, a heifer whose neck was broken to atone for the unsolved murder of a person found between cities.
In both cases, the Torah uses the word sham, there. Miriam is described as having passed away there, and the heifer has its neck broken there. Tradition had it that that word signals a gezerah shavah, which tells us that laws of one topic are transferred to the other; here, the prohibition to receive any hana’ah, use or benefit,from the heifer applies to the deceased as well.
R. Abba Shaul lists a slew of authorities who agree that this is a Biblical rule, including Shulchan Aruch, and then notes that R. Ovadya Yosef himself argued in an earlier volume of Yabi’a Omer (contra Maharashdam and Mabit, significant decisors themselves) that most authorities extend this rule to tashmishei hamet, items used to service the deceased, let alone the body itself.
Corneas as Skin or Unusual Ways to Derive Benefit
Tosafot Zevachim 71b said skin does not count as a part of the body on a Biblical level. We might think the cornea counts as a sort of skin for the eye, but R. Abba Shaul rejects that, since the cornea is a membrane, and we treat other membranes (such as for the brain and lungs) as full-fledged body parts, so why should the cornea differ?
Another suggestion would be that the prohibition is limited to derech hana’atan, the usual way of deriving benefit. That’s the general pattern of prohibitions ofhana’ah [it’s not clear to me why he assumes this is not the usual way to derive benefit from a cornea, but let’s leave that].
Still, many authorities did apply this prohibition to skin, which can only be true if it is in force she-lo ke-derech hana’atan, unusual ways of benefit [and once skin is part of the prohibition, to define cornea as skin does not help].
Does Seeing Count as a Benefit?
Another way around the prohibition might be to focus on the benefit received. Halachah rules that sound, sight, and smell do not count as me’ilah, deriving prohibited benefit from items that are sanctified by virtue of their being owned by the Beit HaMikdash (hekdesh). The person who hears, sees, or smells items ofhekdesh will not have to pay the usual fines or bring a sacrifice. That seems to say these experiences are not physical enough to prohibit benefit, which would remove the benefit provided by a cornea from consideration as hana’ah.
R. Abba Shaul is not convinced. He agrees that the pleasure added light gives, so that a person who is already sighted can better see how to separate wheat from chaff (one Talmudic example) does not count as a benefit for me’ilah purposes. But when we restore the sight of a blind person (whom halachah sees as so restricted by his/her handicap as to be almost like one who is no longer living), that must also count as a full benefit.
Radvaz also held that the rule was not as broad as portrayed. In his view, if a Jew actively smells a specific item belonging to hekdesh, that would be me’ilah, improper use of hekdesh. The Gemara that exempted sight and smell from me’ilah only meant when that benefit comes from the air, sights, sounds, or aromas created by the Beit HaMikdash that have no boundaries, that come upon people without their intending them in any way. But where a person intentionally seeks out a sensual experience of an item of hekdesh, Radvaz was certain that would constitute me’ilah. Finding sight through corneas from which we are otherwise prohibited to benefit would also then qualify as a prohibited benefit.
Non-Jews’ Corneas as the Missing Assist to Permissibility
The last possibility is corneas from non-Jewish corpses. Shulchan Aruch Yoreh De’ah 349 doesn’t accept that as a meaningful distinction, but most rishonim, authorities who lived before Shulchan Aruch, disagreed and held that the prohibition to benefit from corpses was stated only regarding Jewish deceased.
[This might seem disrespectful of non-Jews, but that’s not necessarily so. The first question is whether there’s some obvious reason we should not take any benefit from corpses; if there is, then to allow it for non-Jews would indeed show our lack of regard for them. But if there isn’t—and in this case, since non-Jews regularly and without moral qualms take certain forms of benefit from corpses, including harvesting corneas to help others—then the prohibition is setting up a different standard regarding Jewish corpses.
Whatever the reason for that standard, the fact that we do not apply it to non-Jews likely says that we have a differently developed sense of how we treat fellow Jews. That would also explain, for example, the permissibility of lending at interest to non-Jews—if we’re obligated to treat fellow Jews as family, from whom we would not take interest, that says nothing about the morality of taking interest; which would then mean that taking interest from a non-Jew says only that we do not think of non-Jews as family.]
He notes that Shulchan Aruch’s ruling should carry much weight, but that the earlier authorities can be grouped with the view of Radvaz and Mishneh Le-Melech, that this benefit is lo ke-derech hana’atan, not the ordinary way, so that we may do this even to a Jewish corpse. The two reasons that now apply to a non-Jewish corpse create a sefek sefeka, a double doubt, that makes it reasonable to permit it.
Defacing the Deceased
Yet one more problem rears its head, leading R. Abba Shaul to retract his consent. Binyan Tziyyon understood nivul hamet, mistreatment of the deceased, to be prohibited even in cases of mortal danger. We might think the deceased’s permission would save us, but Chatam Sofer and Maharam Schick did not accept that (although Binyan Tziyyon did, interestingly enough). [They held that this would be an example of a broader phenomenon, where some action is inherently a problem, even though it looks like it’s an issue of the mistreatment of a particular person].
So he’s left feeling this is prohibited. There might be a Biblical prohibition of benefit even in an unusual manner and the prohibition of mistreating corpses, which remained in place regardless of the deceased’s prior permission, according to Chatam Sofer and Maharam Schick.
R. Abba Shaul cautions us to be very strict about this, lest people assume it’s really permitted (if they ever see us allowing it, they’ll draw the too-broad conclusion it’s fundamentally allowed), and then doctors will remove corneas even from those who never gave permission (which will be generalized nivvul hamet; he doesn’t say it explicitly, but that feels to me like a factor that played a large role in his thinking—he worried, I think, that allowing even certain cases would lead to wholesale removal of corneas at death, as he mentions already happens with other body parts).
R. Ovadya Yosef Disagrees
By the time R. Abba Shaul published this, R. Ovadya Yosef’s response had come out long before. R. Abba Shaul refers us there, apologizing for not revisiting the issue. R. Yosef had responded to his friend’s ideas, in Yabi’a Omer 3;Yoreh De’ah 21, from 20 Tevet, 5719 (1958). We do not have space to review it in any meaningful way (you can hear an audio summary at ou.org), but his fundamental point was that some authorities do permit benefit in an unusual way.
Since the issue at stake is likfoach einayim ivverot, opening unsighted eyes, R. Yosef thinks there’s room to allow this form of surgery, even with corneas from deceased Jews. He doesn’t stress it, but I think his comment about helping people see is the question for both of them—to what extent does the need for corneas lead us to emphasize the room for permissibility? He doesn’t say the consensus allows benefit she-lo kedarkah, in unusual ways, he says that enough authorities allow it that for these purposes it should be ok.
For R. Abba Shaul, the overweighing factor seems to have been the worry that this will become too routine, leading to violations of rights of the deceased, while R. Ovadya Yosef is more focused on alleviating the distress of those whose sight can be restored by a simple operation.