Hesed or Hiyuv? The Obligation to Preserve Life and the Question of Postmortem Organ Donation

by Rabbi Joseph H. Prouser, 1995; Edited by Rabbi Robert Binder

Question (Sh’eilah)

What is the halakhic status of postmortem organ and tissue donation?

Answer (Teshuvah)

The inestimable value of human life is a cardinal principle of Jewish law. Thus we are obligated not only to self-preservation, but also the duty to save the life of another human being who may be in mortal danger. The Torah’s commandment “You shall not stand idly by the blood of your neighbor” (Leviticus 19:16) provides the halakhic basis for this obligation.

In addition, the Talmud reformulates this prohibition (mitzvah lo ta’aseh) into a positive, prescriptive obligation (mitzvat aseh) by relating the duty to intervene in life-threatening situations to the commandment to restore lost property (Deuteronomy 22:1): “Every individual, insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property” (Sanhedrin 73a). In his monumental code of Jewish law, Maimonides leaves no room for exemption: “All Israel are commanded to take life-saving action” (Mishneh Torah, Laws of Murder and Preserving Life, 1:6).

Nevertheless, postmortem donation of human tissue is not without halakhic difficulties. The objections to the practice include the prohibitions against nivul ha-met (disgracing the corpse, as by disfigurement), hana’ah min ha-met (deriving benefit from a corpse), and halanat ha-met (delaying burial.) All three of these concerns, collectively termed kavod ha-met (the dignity of the dead), were addressed by former Israeli Chief Rabbi Isser Yehuda Unterman, who ruled that “Surgical removal of tissue from a dead body… subsequently to be transplanted as an organic part of the living… constitutes preservation of life. After all, weighty Torah prohibitions are set aside for the preservation of life. Hence, such surgical procedures conducted to save a life are absolutely permitted” (Shevet Mi-Yehuda, 1983). As to the question of burial, Rabbi Unterman discusses only the particular organs or tissue being transplanted, thus considering them “restored to life” and not requiring burial with the donor’s remains. He does not discuss the issue of delaying burial, which today is neither typical nor necessary. In those few, rare cases where burial is delayed for the purpose of organ transplant, the principle that preservation of life overrides all other considerations would apply.

The halakhic mandate to preserve life by consenting to postmortem tissue donation takes on compelling urgency by virtue of the massive need for tissue transplants. Developing technology in the medical field has resulted in a near doubling in the numbers of heart, kidney and liver transplants performed, with significant increase in the survival rates of organ recipients. It is therefore, “not merely permissible for a Jew to bequeath his organs for transplantation following his death, it is a mitzvah for him to do so, in order to save one life, or several lives” (Rabbi David Golinkin, Responsa of the Vaad Halakhah of the Rabbinical Assembly of Israel).

Those contemplating organ donation should also be aware that studies have found that donating a loved one’s organs or tissue helps shorten the time needed by members of a bereaved family to recover from their loss. Serving as an organ donor thus not only saves lives, but also provides comfort and healing to loved ones. Consenting to organ donation therefore brings physical healing to the deathly ill while offering emotional healing to the bereaved.

Given the increasing sophistication and success of transplant technology, the postmortem donation of vital organs and tissue incontrovertibly constitutes piku’ach nefesh (“preservation of life”), which overrides all other considerations. Consent must therefore be granted when requested by doctors or hospitals for use in lifesaving transplantation procedures. This obligation can also be fulfilled by registering as a and by informing family members, preferably in writing or as part of a living will.