Shabbat Parashat Va'eira 5764
From the works of Hagaon Harav Shaul Yisraeli zt”l - Organ Donations- Part IV - From Chavot Binyamin, siman 109
[We have seen that one is not required to donate parts of the body to save others, but that it is an act of righteousness when the donor’s life is not significantly endangered. It is a moral (not absolute) obligation when the part regenerates (e.g. blood or bone marrow).]
May one charge a price to donate tissue or a limb from his body?
We have a rule (Bechorot 29a) that mitzvot which a person is required to do for his friend must be done free of charge. Therefore, even one who toils greatly in order to return an object to his counterpart may not get paid for his efforts. The only exception is that he may take money in cases that the mitzva took him away from a money-making activity, in which case he can take “schar batala” (Bava Metzia 30b). For this reason, one cannot take money for doing a life-saving action, as it is categorized as returning one’s body to himself, which is included in the mitzva to return lost items (Sanhedrin 73a).
However, since there is not a full requirement to donate a limb or tissue for transplantation, as it does not fit into the parameters of the aforementioned mitzva, it is permitted to take pay. Indeed, we even have a pay scale, including five types of payments for those whose bodies were damaged, within the laws of damages. [Ed. note- These laws discuss forced payment after the fact by someone who actively damaged. Rav Yisraeli meant to give only an example of payment for the body, not an operative device of evaluation.] We even find (Bava Kama 93a; Choshen Mishpat 421:12) that these payments apply even when the person who is damaged agreed in advance to the damages, whether wounds or destruction of a limb, and even if he explicitly stipulated that the other would be exempt from pay. The logic is that one cannot relinquish his limbs.
There is, thus, no reason to forbid one who donates from his body to demand and receive payment for his donation. The amount of the charge can be set by agreement between the donor and the family of the recipient (see Rama, Choshen Mishpat 264:7 and Gra and Netivot Hamishpat ad loc.). As long as the amount of payment is within the realm of reasonable, one should not see it as extortion or immorality, since the donor is caused physical and, at times, psychological suffering and, as we have already explained, one does not relinquish his limbs. [Ed. note- It is not clear if this last point is intended to apply to bone marrow donation, which is painful but does not have known long-term effects on the donor.]
We should point out that only the donor himself may receive payment for his donation. One who mediates between the family of the recipient and the donor, whether an individual or an institution which takes upon itself to deal with such matters, may not take money. This is because the mediator is obligated to expend effort in order to do the mitzva of “returning one’s body.” Therefore, one is only entitled to schar batala, the amount that one loses out from other occupations during the time he deals with the mitzva. It is proper that this limitation be enforced by legislation, which will prevent the danger of commerce in body parts. [Ed. note- It would appear that even according to the rules of schar batala, one who dedicates his life to arranging such donations would be entitled to take significant, although not exorbitant, pay for his major, ongoing efforts, efforts which the average person is not obligated in – see Tosafot, Ketubot 105a)].
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