The Deceased, the Family and Organ Donation

Rabbi Shabtai A. Rappoport

A. was a healthy well-to-do man, forty years old, fond of all sorts of sports. He always made a point of riding a bicycle to work, claiming that the extra thirty minutes spent each day, each way, will be handsomely repaid in years of good health. A couple of days after his birthday party, he was on his way to work when a car driven by a sixteen year old hit him. The rescue team arrived immediately on the scene - but his head injuries were fatal, and he was announced brain dead upon arrival at the hospital. The transplant center was alerted immediately. Leaving in the same town was P. also about forty years of age, who for a couple of years was suffering from a severe heart disease, that now reached a critical stage. Several months ago he was told by his physician that his only hope was a heart transplant. Laboratory tests proved that A.'s heart was compatible for P. and a member of the hospital staff called A's wife to ask her permission to the transplant. A's wife, still shocked by the catastrophe, could not reply, and suggested that the doctor call A's parents. The aged father's response was resolute and given at once. He positively refused to even consider the possibility. No amount of arguing, pleading, and endeavors to convince him could change his attitude. In the meantime P's life were wasting away.

Does a family member's refusal to have an organ of his dead relative transplanted in a body of a critically ill person have any validity? What is the family's status concerning organ donation from their kin's body in order to save another life? Does not the decree to save human life take precedence over all other considerations?

Halacha clearly orders the immediate burial of a deceased person, and prohibits removal of organs from his body. The biblical source to this prohibition is found in Deuteronomy 21, 22-23, where the treatment of a corpse of a person executed by court is discussed. According to that decree his body should not remain unburied after nightfall, but he must be buried at the same day. The reason given there, according to the interpretation of our sages, is the respect due to the human body, that was created in the image of G-d. The Gemara Sanhedrin 46,b makes clear that the case of the executed person is just an example, and the rule applies to all corpses.

Still it is well known that the obligation to save human live transcends most legal prohibitions and commands. The biblical decree regarding the immediate burial of a corpse should be no exception. This was the ruling of Rabbi Yechezkel Landau, a most prominent Rabbinical authority of the eighteenth century in his famous responsa Noda Beyhuda Vol II Yore Dea 210, which considers an autopsy required to ascertain the cause of death. Rabbi Landau ruled that even though autopsy is usually forbidden, when there is an immediate need of it to save human life which is in imminent danger, it is definitely permitted. It is obvious that our case meets this provision.

Like any biblical decree, the prohibition to remove organs from a corpse that has to be buried, referred to in Halacha as nivul hamet or desecration of the dead body, is binding all Jews alike, and not solely the relatives. Hence, if it is permitted in order to save human life, the relatives should have no legal status enabling them to deny permission to the organ donation.

An analysis of talmudic sources, however, presents a different picture. The Gemara in Baba Batra 155,a quotes a story that occurred in Bnei Braq, where an orphaned young man sold real estate which he inherited, and died shortly afterwards. It was not clear whether this orphan was not a minor when he died, and consequently whether his sales were valid or not. The relatives who stood next in line to inherit that property wanted to prove that he was indeed a minor, to nullify the deals and to recover the assets. The buyers, on the other hand, wanted to prove that the deals were valid. The only way to settle this dispute was by a posthumous examination of the corpse, which is also regarded as a desecration of the dead body. The Gemara reasons that the relatives have no right to demand this post-mortem examination, as opposed to the buyers who do have this right. According to the commentaries to the Talmud, the relatives have the duty to prevent desecration of their kin's body, even if this duty incurs a financial loss. The buyers, which were not relatives do not share that duty, and hence have the right to order the examination of the corpse. Because as shown previously, the biblical prohibition to desecrate a body applies to all Jews alike, this different ruling as to the relatives and the non-relatives presents an inconsistency which has to be clarified.

Biblical laws are divided into two categories. One category governs the mutual responsibilities people have to each other. A liability derived from laws in this category, is towards a specific person who demands it, as in restitution for damages - which the person who caused them has to pay to the person who suffered them. The other category governs the responsibilities of a person towards G-d himself. Duties derived from laws in the latter category are not to a specific person at all.

It seems that the obligation to bury a corpse, not to desecrate it, and treat it with respect, does not belong to the first category. The corpse is not a person to whom one has obligations. The reason given to that obligation in the Bible is the respect that must be expressed towards Man who was created in G-d's image, and this encompasses humanity at large, and not only the specific person whose corpse has to be buried. On the other hand it could be argued that this obligation is but a continuation of the responsibilities owed to another living person. Among these responsibilities of the first category we find the need to help the poor, retrieve lost property for another person, and an extension of this liability is posthumous - to ensure that a man's corpse is treated respectfully and buried properly.

Talmudic law places the primary duty of burying a corpse with the relatives. The reason seems to be that the general law, which obliges all Jews to bury the dead, is of the second category, it is a duty owed to G-d alone. The relatives, however, have an additional duty, one that stems from the first category, towards the person who was their kin, to bury his remains.

In the talmudic period it was customary that a person is buried on his own grounds, and the obituaries are said at a gathering in a specific place, also in the person's own estate. The Gemara Bechorot 52,b rules that when a person sold his gravesite, or his obituary site, the relatives can nullify that deal. The reason given there is the disgrace which will be caused to the relatives if their kin will not have a proper obituary ceremony and burial. This disgrace give the relatives a legal standing in annulling this deal. This ruling is in accordance with the previous argument that the relatives have a special duty to ensure proper burial to their kin's remains. Hence failure to ensure that is regarded as a family disgrace. This also the reason to the above mentioned Bnei Braq ruling, that the relatives alone must incur financial loss in order to prevent the desecration of their kin's corpse.

Rabbi Moshe Feinstein in his Igrot Moshe Yore Dea Vol II 174 Ch. 4 proves that the disgrace caused to a person by the desecration of his kin's corpse is worse than losing his entire fortune, and a person does not have to suffer such a loss even to save human life. Still, it could be proved from many responsa that disrespect towards a corpse is different than disrespect towards a living man. The latter is defined by the subjective feelings of the person, but the former only by standards of Halacha, because a corpse does not have subjective feelings. Hence, if according to Halacha it is proper to remove an organ from a corpse in order to transplant it in another person and thus save his life, this is not considered desecration at all. This reasoning covers only the general prohibition (to all Jews) to desecrate a dead body, which stems from the duty of a person towards G-d's alone. But the disgrace caused to a family because of an improper burial of their kin, is definitely judged by their subjective standards. It follows, that if they state that they are disgraced by organ donation by their kin, they have the right to prevent the organ removal, even if this donation is necessary to save human life.

In order to save human life, A.'s father should try to overcome the sense of pain and disgrace he feels regarding organ donation by his dead son. But if he insists on his refusal, he is legally, according to Halacha standards, able to prevent the transplant.

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