Shabbat Parashat Bo| 5764
From the works of Hagaon Harav Shaul Yisraeli zt”l - Organ Donations - Part V - Extraction of an Organ from the Deceased - From Chavot Binyamin, siman 109
Is one allowed or required to agree, during his life, to an organ donation after his death? Is he permitted or required to sign and carry a donor’s card?
A person has rights and control over his body when he is alive (see Harav Yisraeli’s machloket withHarav Zevin z.t.l. in Amud Hay’mini, siman 16). The exception to this rule is when these rights contradict a Torah prohibition, such as: committing suicide (Rambam, Rotzeiach 2:2,3); damaging oneself (Rambam, Choveil U’mazik 5:1); endangering one’s life (Rambam , Rotzeiach 12:6), etc.
Because of this concept, as we explained previously in the Radvaz (1052), a person is not forbidden to donate an organ to save the life of a friend or to donate blood to help cure someone with a non life-threatening illness (see Igrot Moshe, CM I, 103). The reason is that since there is an important need, the Torah prohibition not to damage his body doesn’t exist.
It appears that this same right to donate from his body remains after his death, by means of his granting permission for use during his life. One can learn this idea from Bava Batra 154b, which discusses a case where one sells his property, and questions arose about his ability to perform a sale. It says that his corpse must be checked to determine the matter, despite this being considered a disgrace. This is because his responsibility continues after death. Similarly, a person can agree to be disgraced after death (Tosafot, Sanhedrin 46b). No one in the family can object to the donation since the deceased let his will be known, even if there is a certain amount of damage to the relatives (see Bava Kama 91b, 86b). It is sufficient to have a reasonable level of confidence that the deceased would have agreed if asked (see Pesachim 4b; Rosh on Chulin VIII, 26).
However, if the deceased objected explicitly, others are required to respect his will. Even though saving lives is a great mitzva, the deceased is exempt from mitzvot, and, therefore, even in his lifetime, cannot be obligated since the actual mitzva takes hold only after death. We have no dominion over his body after death, as his rights to his body continue.
One who asks whether he should give permission to use organs to save lives should be encouraged to do so, as it is a mitzva. Based on the statement of Chazal, “by the measure one uses, so will he be measured,” one can be assured that even though he is not required to do so, the merit of donation will stand by him on his day of judgment.
However, one should not recommend to the inquirer to sign or carry a donor card. This is because the card has significance only in cases of sudden death, whether in an accident or another similar case. Giving expression to the possibility of the type of tragedy which a person hopes and prays will not occur, is not desirable. Our Rabbis already warned us: “A person should never ‘open his mouth to the Satan’ ” (Berachot 19a).
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