Autopsy
Whether autopsies are permitted is an extremely controversial issue
among traditional Jews. It brings into direct opposition two fundamental
principles—kavod ha-met (reverence
for the human body after death) and pikuach
nefesh (the preservation of life). Many rabbis have argued that the
biblical requirement for burial as soon as possible (Deut. 21:22–23), combined
with the prohibition against desecrating the corpse (nivvul ha-met), forbids mutilation of the body for post-mortem
examination. However, others have countered that reverence for the corpse must
yield to the superior value of life and its preservation. Indeed, the duty of
saving and maintaining life, which includes even cases of a doubtful nature,
overrides all but three commandments of the Torah (against idolatry, adultery,
and murder).
It was not until the 18th century, when human bodies began to be
commonly used systematically for medical research, that the permissibility of
autopsies for medical research and saving lives became a practical halakhic
question. The first clearly recorded ruling permitting an autopsy in the
interest of the living was issued in a responsum by Ezekiel Landau of Prague.
However, it was strictly limited to a situation in which, at the time of death,
there was in the same hospital another patient suffering from the same
symptoms, so that the autopsy could be of immediate value in saving a life. The
problem became an important issue in Israel with the establishment of the
Medical School of the Hebrew University in Jerusalem. Rav Kook, the usually
liberal Ashkenazic chief rabbi of Palestine, entirely forbade the autopsy of
Jewish bodies for medical purposes. However, a 1949 agreement between Hadassah
Hospital and Chief Rabbi Isaac Herzog, which was incorporated into Israeli law
four years later, permitted autopsies in the following situations: (1) when the
civil law demanded it in cases of crime or accidental death, (2) to establish
the cause of death when it was doubtful, (3) to save lives (i.e., when an
autopsy may yield medical information that would directly benefit another
person), and (4) in cases of hereditary disease, when an autopsy may directly
benefit the survivors. Before an autopsy could be performed, it was necessary
to obtain the signatures of three doctors. The medical dissection must be
performed with the utmost respect for the deceased. Any organs dissected were
to be handed over to the hevra kadisha
for burial after the necessary examinations had been performed.
As autopsies became more routine and after allegations of widespread
abuse of the legal safeguards, certain Orthodox circles in Israel agitated to
have the law amended by reverting to the strictly limited permission given by
Rabbi Landau. Consequently, in 1980 (despite strenuous opposition by Israeli
medical researchers), the law was changed to make it more difficult to justify
the need for performing an autopsy. Autopsies are now permissible only if there
is a specific legal or medical reason to warrant one in a given case.
Although from the halakhic point of view the objections that apply to
autopsies also apply to dissection for the purpose of anatomic study, enough
people bequeath their bodies for this purpose that it has not sparked
substantial religious opposition. The only restrictions are that the remains be
buried in a timely fashion according to Jewish law and custom and that the
decision be in accord with the wishes not only of the deceased but also of his
or her family. Today, medical schools in the United States have a sufficient
supply of bodies of unknown, abandoned individuals from county morgues.
Therefore, Jews should not volunteer to have their bodies dissected, for there
is no medical need to override the respect for a corpse required by the concept
of kavod ha-met.
There is general agreement among halakhic experts that autopsies are
permitted in the case of violent or accidental death or when a crime is
suspected.
Organ Donation
As with autopsies, the issue of organ donation revolves around the
often-conflicting principles of kavod
ha-met and pikuach nefesh. In
this instance, however, these two basic tenets work in tandem, for it is
assumed that deceased persons would be honored if their organs were used to
preserve the life of another. Giving a person the opportunity to live by
donating an organ is also the ultimate act of hesed, lovingkindness to one’s fellow human being.
Despite this predominant opinion that delaying burial to permit organ
transplantation does not diminish respect for the dead but, on the contrary,
enhances it, some rabbis have limited this practice to varying degrees. The
most restrictive opinion permits donations only when there is a specific
patient who stands to lose his or her life or an entire physical faculty.
According to this view, if a person can see out of one eye, a cornea may not be
removed from a cadaver to restore vision in the other eye. A corneal transplant
would be permitted only if both eyes were failing and the prospective recipient
would be in danger of losing all vision, thus incurring serious potential
danger to life and limb. Moreover, since the patient for whom the organ is
intended must be known and present, donation to an organ bank would not be
permitted.
Nevertheless, since there now is a shortage of donated organs and it
is certain that all will be used for transplantation, most Orthodox rabbis have
relaxed the restrictions on organ donations. However, there are still major
problems associated with giving permission for transplantation. One is
precisely defining the moment of death. According to classical Jewish sources,
there were two criteria to determine when death occurred. The majority rule was
the breath test, in which a feather was placed beneath the nostrils of the
patient; movement of the feather indicated life, whereas lack of movement
signified death (Yoma 85a; PdRE 52). This test was based on two biblical
verses: “God breathed life into Adam” (Gen. 2:7), and the Flood killed “all in
whose nostrils was the merest breath of life” (Gen. 7:22). A minority view in
the Talmud maintained that the cessation of heartbeat was also required to
determine death (Yoma 85a). Later codifiers insisted on both respiratory and
cardiac manifestations of death.
Moses Isserles, acknowledging the difficulty of accurately
distinguishing death from a fainting spell, argued that even after the
cessation of breath and heartbeat one should wait a period of time before
assuming that the patient is dead. In a 1988 ruling approving heart
transplantation, the chief rabbinate of Israel effectively accepted the modern
definition of death as a completely flat electroencephalogram (both cortical
and brainstem function), which indicates the cessation of spontaneous brain
activity.
Some Orthodox Jews resist organ donation because of the concept that
death does not come at a clear, definable moment but rather occurs in stages
over time. According to rabbinic lore, the complete severing of the relation
between body and soul does not take place until three days after death (Gen. R.
100:7; Lev. R. 18:1; MK 3:5). During that time, the soul hovers over the grave
in the hope that it may be restored to the body, departing only when
decomposition begins. This was an explanation for the belief that the grief of
mourners naturally becomes most intense on the third day after the death of a
loved one. Moreover, this concept led the Rabbis to permit relatives to watch
graves for three days in case the interred body was still alive, “for once it
happened that they watched one who thereupon continued to live for 25 years and
another who still had five children before dying” (Sem. 8:1). Some even
believed that the soul continues to have some relationship with the body for 12
months, until the body has disintegrated (Shab. 152b–153a). Medieval folklore
often spoke of the “spirit community,” in which life continued after physical
death. Thus the combination of all these factors makes it understandable why
some families are hesitant to donate the organs of their relatives.
The Talmud (Av. Zar. 29b) and Maimonides clearly indicate that it is
forbidden to use a cadaver for some other purpose or extraneous benefit. Modern
rabbis have employed ingenious reasoning to argue that organ donation and
transplantation do not violate this rule against deriving benefit from the body
(hana’ah min ha-met). Some of the
arguments are as follows:
1. The prohibition against deriving
benefit from a cadaver is of rabbinic origin and thus may be overridden for
medical purposes.
2. Even if the prohibition is of biblical
origin, what was forbidden was only conventional uses of the cadaver, not such
“nonconventional” ones as medical treatment.
3. The prohibition was designed to ensure
a timely burial that would prevent dishonoring the cadaver so that, once the
bulk of the remains have been properly buried, individual organs can be used
for transplantation without violating the original prohibition.
4. Once an organ has been transplanted, it
is no longer considered as dead tissue, since it literally has been revitalized
in the body of the recipient.
Another objection to organ transplantation is the belief among some
that one must be buried complete to be resurrected whole. According to this
view, donating an organ would leave the deceased without that part when the
dead are brought back to life. Medieval philosophers ridiculed this concept.
For example, Saadiah Gaon pointed out that if one believes that God created the
world from nothing, one should surely believe that God can revive the dead even
if a few parts are missing. Except for the most extreme branches of
ultra-Orthodoxy, virtually all rabbis agree that saving life in the here and
now clearly and unequivocally takes precedence over whatever one believes about
future resurrection. (Ronald L. Eisenberg, The JPS Guide to
Jewish Traditions [Philadelphia: The Jewish Publication Society, 2004],
110-14)
