Leviticus 25 :25
B’OR HA’TORAH 8 (1993)
A Pound of Flesh?
On Selling Tissues and Organs
by Rabbi Mordechai Halperin, MD
Introduction
Medical and technological advancement in organ transplantation is improving the
quality and duration of human life. Often the most suitable organ donors are healthy
people. This brings increasing attention to the problem of selling tissues and organs.
There are many parts of the body that can be transferred from a live donor to a suffering
patient. In the present state of technology, the kidney is the only organ suitable to be
taken from a living donor for transplantation . The existence of two kidneys in the body of
the donor creates a large functioning reserve and enables very low risk kidney removal.1 . 2
, 3 The situation differs, of course , in other organs , such as the heart, lungs, liver, and
pancreas, the (partial or entire) removal of which is liable to cause death or serious
health risks. We could add to our list parts of the body that are not defined as "organs"4
but are so important that their transplantation into the body of the recipient could save his
life and/or significantly improve its quality. This group includes, in addition to the kidney :
skin, bone marrow, and.plain blood.
1 J.S. Tapson , "The Risk of Donor Nephrectomy,"
Int. J. Artif . Organs, 8:1 (1985), pp. 13-16.
2 D. Weiland et al., "Information on 628 LivingRelated Kidney Donors at a Single Institution w ith
Long-Term Follow-up in 472 Cases,' Transp. Proc.,
16:5 (1984} .
3 F. Vincenti et al., " Long-Term Renal Function
in Kidney Donor: Sustained Compensatory
Hyperfiltration
with
No
Adverse
Effects."
Transplantation, 36:626 (1986) .
4 For example, skin. There is no doubt that skin is vital to the preservation of human life. Indeed the
meaning of the term ever, "organ ' in Hebrew, has
changed. In the Mishna, "organ " means a part of the
body that includes bone in it (Ohalot 1:8; Aduyot 6:3),
as distinguished from "organ heads", which include
also boneless parts of the body ( Nega’im 6:7; Kidushin 25). In a later period we find the term “organ” extended to include boneless parts of the body , such as
eyes (Maimonides, Torat ha'Adam, at the end of the
section on pain.) But even after the definition has
been extended, skin almost certainly has not been included as an "organ .'
46 Selling Tissues and Organs
The idea of selling organs arouses
strong feelings. It invokes wretched victims
exploited by insensitive charlatans and live
organs cut off in irreversible surgical processes - in exchange tor paper money.
On the other hand, sometimes human lite
depends on obtaining donations of dispensable organs; and in our materialistic
world a bill of sale can save human life.
We cannot ignore these strong feelings,
but we also cannot allow them to prevent
halachic (Jewish legal) discussion on the
subject.
I shall preface the following halachic
discussion with a short tactual description
of kidney transplants, based on the medical technology of 1989. For the sake of
clarification, I shall compare the sale of
kidneys with that of two other types of tissue: hair and blood.
I. Medical Background
The kidney has a number of vital tunctions in the human body. Among them is
keeping the acid-alkaline balance, maintaining electrolytic balance, keeping the
liquid balance of the body, and disposing
of various waste materials accumulated in
the body. Serious renal dystunctioning endangers lite and requires dialysis (homodialysis as well as peritoneal dialysis) or kidney transplantation in order to prevent imminent death. In the past decade, the life
expectancy of patients treated by dialysis
was longer than that of patients who
underwent kidney transplantations.
Recently, the life expectancy of transplant patients has improved to the point
5 Douglas Black and N. F. Jones, eds., Renal Diseases, 4th edition (Blackwell Scientific Publications,
1979), p. 528.
B'Or Ha'Torah
that a patient with a transplanted kidney
(from a dead donor) is expected to live as
long as a patient treated by dialysis .s An
even more significant improvement has
occurred in the case of renal transplants
where the kidney was donated by a living
relative, and today this life expectancy has
risen substantially above that of dialysis
patients.6, 7 Renal transplant patients with
a kidney from dead donors are also likely ,
in some cases, to gain a substantial improvement in the quality of their lives as
opposed to dialysis patients. However,
those patients who reject the transplanted
kidney suffer many months and in the end
return to dialysis.
The success of a kidney transplant
from a living donor not related by family to
the recipient is equal to or more than that
of a transplant from a dead donor.8,9 This
arrangement helps till the gap in Western
society between the availability of kidneys
from dead donors and the number of patients needing a transplant.
In summary, it is possible today to operate on a healthy person with two good
6 W.V. Vollmer et al., " Survival with Dialysis and
Transplantation in Patients with End-Stage Renal
Disease, " N. E. J. Med., 308:26 (1983) , pp. 15531558. The major causes of improvement are :
a. classification of donors by MHC
b. blood transfusion
c. suppression of recipient' s immune
system by cyclosporine
7 Combined Report on Regular Dialysis and Trans-
plantation in Europe XVI presented by Hospal
Ltd. (Basel: 1985), pp. 58-61.
8 A. S. Levey et al., " Kidney Transplantation from Unrelated Living Donors," N.E.J. Med., 314 (1986), p.
914 .
9 Talia Weinstein et al., " Kidney Transplantation from
a Related Donor – Yes! From an Unrelated Donor
- No?” Ha'Rifuah , 115:12 (1988) , pp. 403-404 .
B'Or Ha'Torah
kidneys and to remove one of them for
transplantation into the body of a patient
suffering from end-stage renal dysfunction.
Danger to the life of the donor does not
substantially exceed that of the small risks
of the anesthesia process and a simple
operation.1
II. Kidney Donation
As the immediate mortality risk of kidney removal is small.1 donating a kidney
cannot be forbidden because of long-term
risk. On the other hand, no one can be obligated to donate a kidney from his body
because nobody can be obligated to donate any organ to save someone else.
There is no obligation here, but
permission is granted. Furthermore, saving
life under these conditions constitutes a
mitsva (To- rah Commandment). In this
paper we are considering the mitsva of
saving life through the heroic sacrifice of
an organ from a living body10 to be on
the highest level of performing the law.
Ill. Hair versus Kidney Sale
Selling hair is mentioned in the Mishna11 as a legitimate way of making money:
10 Responsa of the Radbaz 1:42 . The only difference
is that in the loss of an organ such as a hand, amputation causes damage and permanent discomfort,
whereas after the removal of a kidney , pain and surgical complications persist for six months at the most.
See note 1, p. 1; Eliezer Waldenberg , Tsits Eliezer
18, 25:77. See also Ovadya Yosef, " Permission for
Kidney Transplantation,' Dinay Yisrael, 7 (5736),
25:43; Chaim David Ha'Levy, 'Organ Transplantation
from the Dead and the Living in Halacha,' Sefer Assia, vol. 4, pp. 255-257 ; Avraham S. Avraham , Nishmat Avraham, Yoreh De 'ah 349, 3 (3) 1.
11 Mishna
Nedarim 9:5.
Selling Tissues and Organs 47
...a man vowed not to receive
any enjoyment whatsoever from his
wife , and the ketubba [alimony stipulated in the marriage contract] was
400 dinars .
He came to Rabbi Akiba , who obligated him to give her the ketubba.
He said to him: "Rabbi, my father left 800 dinars . My brother took
400 and I took 400 . Wouldn't it be
enough if she got 200 and I got
200?"
Rabbi Akiba said to him: "Even if
you have to sell the hair off your
head, you're giving her the ketubba."
In its discussion of this Mishna, the Talmud12 explains that selling hair was permitted. It is told (in the Jerusalem Talmud)
that Rabbi Akiba's own wife used to sell
her braids to support the family.13
Thus, it can be concluded that a person
has the right to cut off tissue from his body
and sell it.
In principle, it makes no difference
whether the buyer uses the purchased
hair as dead tissue in a wig or if he transplants it as living tissue with pieces of skin
into the scalp. The only difference lies in
the process of removing it from the body.
Clipping off only hair violates no halachic
prohibition, but cutting off skin together
with hair is liable to cause "self-mutilation."
The difference is clear between clipping
oft hair with no liability of mutilation and removing a kidney with the liability of it being
halachically considered "mutilation."
The principal halachic question there12 Talmud Nedarim 658.
13 Jerusalem Talmud Shabbat, chap . 6, halacha 1.
48 Selling Tissues and Organs
fore is whether a person is allowed to "mutilate" himself, and under which conditions.
IV. The Self-Mutilator
Unnecessary self-mutilation causing irreversible damage is forbidden by all the
Jewish legal opinions14 and furthermore by
the Torah prohibition of bal tashchit (don't
destroy).15 The Tana'im (the Sages of the
period of the Mishna, around the second
14 Baraita and also Talmud Baba Kama 91 B. The
halachic authorities of the past 300 years have been
divided over the question of whether man is the master of his body. In the opinion of Shlomo Yosef Zevin
(L'Or ha'Halacha, "Mishpat Shylock”) - man is not
master over his body. In contrast to him, Shaul Yisraeli (ibid., additional comments on " Mishpat Shylock” ) thinks that man is master over his body and organs, and that the halacha is the only source that
limits their use.
15 Deuteronomy 20 :19.
In the opinion of Rabbenu Yonah , Sha'aray T'shuva
3:82, any waste of money is forbidden by the Torah
("even a penny's worth " ). This is also the opinion of
the Rambam in Sefer Ha 'Mitsvot, Negative Commandment 57. Indeed, in the Mishneh Torah, " Laws
of Kings" 6:10, the Rambam wrote that ruining money is punishable by rabbinic injunction. The Torah
does not forbid ruining money; the Torah forbids ruining food. The prohibition against ruining money was
made by the Talmud Sages.
Also regarding the prohibition against self-mutilation,
the Rishonim (the halachic authorities of 1000-1500
CE) were divided over whether the prohibition came
from the Torah or from the Talmud. In his comments
on Baba Kama 91 B, Ha'Me'iri claims that this prohibition comes only from the Talmud (which used what
was written in the Torah on the subject as a peg
upon which to hang its own opinion) . But the Rashba,
in responsum number 616, writes that the prohibition
comes directly from the Torah. Other opinions agreeing with the Rashba include the Ran in Shavuot 27,
number 616, and his responsum number 32. See
also Ovadya Yosef, Responsa Yabi'a Omer, part I,
section Yoreh De'ah 9:6.
B'Or Ha'Torah
century CE) were divided in their opinions
as to when mutilation is useful to the mutilator.
In a baraita16 (an article of the Oral Law
that was not included in the Mishna) Rabbi
Akiba holds the opinion that a person is
entitled to injure himself if he has a need
for it, inasmuch as the prohibition against
bat tashchit doesn't apply in the case of
need.17 In contrast to this, in the Mishna1a
itself Rabbi Akiba holds the opinion that it
is forbidden for a person to mutilate himself even out of need, 19 except if there is a
"great need."20
Financial profit is described as a normal
need, for which self-mutilation is not permitted, according to Rabbi Akiba in the
Mishna,21 whereas preventing great pain is
defined as a great need.22 As to what the
halacha (law) should be, the Rishonim (the
halachic adjudicators of 1000-1500 CE)
were divided in their opinions : Rabbi Meir
Abulafia (a leading Jewish authority of that
period) ruled that "a person is entitled to
mutilate himself,"23 whereas the great Mai16 Talmud Baba Kama 91A.
17 See Tiferet Yisrael on Mishna, Mikva 'ot 2:7; and
Boaz, note 7 on this mishna.
18 Mishna Baba Kama, 8:6, according to the conclusion of Talmud Baba Kama 91A .
19 Talmud Baba Kama 91B. See Tosafot there, s. v .
starting "ella hi tanna.”
20 Pne Yehoshua on Tosafot, Baba Kama 91B.
21 Mishna Baba Kama.8 : 6 describes self-humiliation
done to prevent financial loss.
22 According to Pnei Yehoshua (see note 20) .
23 Shita M 'kubetset on Baba Kama 91 B, reference to
Meir Abulafia; Tur, Choshen Ha'Mishpat 420, reference to Moshe lsserlis.
B'Or Ha'Torah
monides before him had ruled that "it is
forbidden for a person to mutilate either
himself or his fellow,"24 and this is also
how the Shulchan Aruch (the Code of Jewish Law compiled by Rabbi Joseph Caro
about 350 years after Maimonides) rules.
In view of this ruling against self-mutilation, it is forbidden to donate organs or tissue for outright commercial purposes.
Therefore, donating a kidney for the purpose of research and industry is forbidden
even if the donor is said to be supporting
himself from his "donation."25 This stands
in contrast to cutting hair, which is not prohibited on grounds of "mutilation" and
therefore is allowed for commercial purposes. Blood donation is located somewhere in between these two forms of selling. Under modern conditions, a blood donor suffers only slight discomfort. Therefore there is room to doubt if its status is
like that of haircutting or like that of kidney
removal for transplantation. For this reason, the late, righteous ga'on (genius)
Rabbi Moshe Feinstein tended to allow
blood donation for commercial purposes.26
Despite the prohibition of kidney removal for commercial purposes, there is no
prohibition of kidney removal for the prolongation of another's life. Even if the pur-
pose of the transplant is not to prolong
but rather to improve the quality of the
recipient's life, then here too, the
prevention of acute suffering is defined
as "great need," allowing "mutilation."22
When the prohibition of "mutilation" is
24 Maimonides, Mishneh Torah, " Laws of Mutilation
and Damage" 5:1.
25 Yosef Caro, Shulchan Aruch, Choshen Mishpat
420:31.
26 Moshe Feinstein, /ggeret Moshe, Choshen Mish- pat,
responsum 103.
Selling Tissues and Organs 49
deferred or cancelled and a living donor is
permitted to have an organ or tissue cut
out of his body, then we must discuss his
right to demand payment - or, in other
words, to sell his organs. At first glance,
we cannot stop anyone from being compensated for donating a part of his body
for transplantation, just as we cannot stop
him from selling his hair. Nevertheless,
there are four reasons for limiting his right
to sell:
1. the prohibition of receiving
payment for performing a mitsva;
2. the law against the rich exploiting the poor;
3. the chance that the dubious
nature of the donor's "conscious
consent" to the results of his operation can cause an illegal transaction;
4 . absence of the "totally willing
attitude" necessary for a sale to be
valid.
V. The Prohibition of Receiving Payment for Performing a Mitsva
In principle, it is forbidden to demand or
receive payment for teaching Torah.27 This is
derived from the well-known drasha
(study of the halacha from the Torah vers-
27 Talmud Nedarim 37A; Maimonides, Mishneh Torah, "Laws of Torah Study " 1:7. Indeed, in the opinion of the Tur, Yoreh De'ah 221, referring to the
Rosh, in our times one is allowed to be paid for
teaching Torah. The reason for this is given in the
Shulchan Aruch, Yoreh De 'ah 246 :5, according to
the Talmud, B'chorot 29A and Tosafot there s.v. "ma
ani b'chinam."
A person with no income is entitled to be paid for
teaching Torah . And even if he has an income, he is
entitled to receive compensation for the money that
he could be earning while teaching Torah.
50 Selling Tissues and Organs
es) comparing the teaching of Torah in the
days of Moses with that in later generations:28 "If I [Moses] am for free, then you
[the later generations] also are for free ."
This principle is not limited only to the
mitsva of teaching Torah , but applies also
to the performance of any mitsva for other
people.29
Healing is considered a mitsva,30 and it
is forbidden to be paid for the act of healing itself.31 Ostensibly , a prohibition could
be derived from this principle that forbids
payment for organ donation conducted
solely for the mitsva of saving life, for charity, and/or for replacement of loss.
Examination of this problem, though ,
shows that there is nothing in this principle
to prohibit paid organ donation . Certainly a
doctor, performing a mitsva by treating patients, is entitled to payment for his ex28 See the Rosh on Talmud Nedarim 37A. Indeed, in
the opinion of the Rambam in the Mishneh Torah,
"Laws of Torah Study,” ma ani b'chinam refers to
Moses as the people 's teacher (rather than G-d' s student) . If Moses taught Torah for free , so then we , his
students , must teach for free.
29 David Chazan , Ma 'archei Lev21(Salonika:1821),
29:74, referred to in Yosef Pe'or Ha' Levy, "The Right
of the Doctor to Receive Payment in Jewish Sources,' Dinay Yisrael 7, p. 87. Indeed, from the discussion in the Tur, Orach Chaim 585, on the halachic
difficult ies in being paid for blowing the shofar on
Rosh Hashana, the issue originates from the problem
of the "Shabbat wage " payment and not from the
problem of payment for performing a mitsva. Thus
there is no general prohibition of receiving payment
for a mitsva, except for learning Torah.
B'Or Ha'Torah
penses , time, and the price of the medical
practices that he prescribes for his patients.32 In other words , a mitsva between
man and his fellow requires action but not
expenditure of money or a financially valuable object . Since the donation of an organ
indisputably causes 1) the loss of a monetarily valuable body part33 and 2) suffering,
which also has monetary value,34 there is
no reason to prevent payment for the damage and pain that the donor suffers.
An additional reason, a kind of social
reform, is brought forth in rulings permitting the payment of a midwife on the Sabbath, "because of the danger that if she
knows that she's not going to be paid,
then perhaps she won 't come or will be
negligent in the mitsva."35 This reason
apparently exists in every medical act
which saves life and depends , in fact , on
the decision of the rescuer . This reason
certainly exists also in the case of organ
donation.
There is a major difference, though,
between a donor and a doctor. The doctor
has taken upon himself the mitsva of healing and is not entitIed to exempt himself
from this mitsva.36 There is an opinion that
one who is not entitled to refuse has no
32 Maimonides and Sefer Chassidim (see note 31).
In Maimonides 's opinion, it is pennitted to be paid for
services rendered and not just for one's time . This is
also the ruling in the Shulchan Aruch , Yoreh De'ah
336:2.
30 Shulchan Aruch, Yoreh De 'ah 336:1.
33 According to Mishna Baba Kama 8:1 and Talmud
Baba Kama 48 , in the passage starting “tne Rav Hoshaya."
31 Maimonides, Torat Ha'Adam, section on danger,
34 "Suffering," according to Baba Kama (see note 33).
compare with : Sefer Chassidim (Bologna : 1518), p.
295, or in the Panna edition (1924), p. 810 . See also
S. Kutik, " Medical Practice and Halacha” in
Safer Chassidim: “ Payment for the Doctor's Efforts,”
Sefer Assia , vol. 5, pp. 34-39.
35 Responsa of the Mohari of Verona (Shtetin: 1860)
no. 112, p. 498.
36 Shulchan Aruch , Yoreh De'ah 336 :1.
B'Or Ha'Torah
right to demand payment for his action.37
In contrast to him, the donor is not obligated to give an organ from his flesh to heal
or save another human being;38 because
he is free to decide, the fact that he is doing a "mitsva" cannot deny his right to demand payment.
In summary, the general prohibition of
taking payment39 for carrying out an action that contains a mitsva does not prevent the donor from demanding and receiving payment for the donation of organs.
VI. Preventing Exploitation of the Poor
by the Rich
In Deuteronomy there is a special prohibition against taking back a divorced wife
who "left and was married to another
man".
...then her first husband, who divorced her, cannot remarry her ...
and you must not bring immorality to
37 Machaneh Efraim, "Schirut," 17; Responsa of Ri-
Selling Tissues and Organs 51
the land that G-d your L-rd is giving
you as a heritage.40
There are several reasons41 for this
Negative Commandment.
For our discussion Rabbi Yehuda HeChassid's explanation is pertinent:
..."then her first husband [who divorced her cannot remarry her]" - if
she were allowed him, then wealthy
men would hire the poor to divorce
their wives and then they would take
them and when they were sated,
would divorce them and return them
to their husbands.42
Thus, fear of the wealthy class exploiting the bodies of the poor lies at the bottom of this Torah writ. Just as the Talmud
Sages learned the principle of building a
"fence" around the Torah from the restrictions that the Torah imposes on the nazirite and later applied it in legislation,43 so
can we learn from the verse "her first husband, who divorced her , cannot remarry
her" the principle of prohibiting commerce
in human organs in order to prevent de-
bash, no. 476, according to Rav Pappa in Talmud
Yevamot, 106A.
40 Deuteronomy 24: 1-4.
38 See Radbaz, responsum 1:32 (1867) and the ad-
41 Ramban on this passage in the Torah; Sefer
ditional sources indicated there .
ha 'Chinuch, Commandment 580.
39 There is room for discussion on how much money
42 Yehuda He' Chassid , Ta'amay M'soret ha 'Mikra
a donor is entitled to demand. Is there an upper limit?
What is the law for the donor who demands an exorbitant amount by accepted criteria? See note 31,
Shulchan Aruch, Choshen Mishpat 264; Tur, Yoreh
De'ah 336 ; Shulchan Aruch, Yoreh De'ah 336:3 and
explanatory note 11 of the Vilna Ga'on.
Indeed, as said above , the situation of the donor is
preferable because he has no obligation to sacrifice
one of his organs even to save a life, and therefore
he is apparently entitled to set his own price for his
donation, while the rest of the process is dependent
upon supply and demand.
(according to manuscripts in Moscow and Oxford ,
references by Yitzchak Shimshon Langa, (Jerusalem: 1981), end of Torah portion Ki Tatsay; or under
the title Perushay ha'Torah L'Rabi Yehuda he'Chassid(Jerusalem : 1975). The Malbim brought up a similar idea, attributed to the Rishonim , (the Sages of
1000-1500 CE) in his commentary on Sifray, Deuteronomy 24:4.
43 Moshe Chaim Luzato, M 'silat Yesharim, ch. 11,
"On Purity," s.v. "We shall now talk about forbidden
relationships."
generate exploitation of the bodies of the
poor by the wealthy.
Hazal (the Talmud Sages) had the authority to legislate in the spirit of building a
"fence" around the Torah for the entire
people of Israel, but this authority was
granted only to the Sages of the period of
the Talmud.44 No one today is authorized
to make new laws or to proclaim new decrees for the entire Jewish people. The
only authority which can be exercised today is local authority by local rabbis, "the
good men of the city"45 and their corollaries.
In summary, there is no prohibition neither in the Torah nor in the legislation of
the Talmud Sages - against receiving payment for donating organs. Therefore, as
long as there is no law enforced on this
subject, it cannot be said that the halacha
prohibits paid organ donations whether to
prolong human life or to substantially improve the quality of life of the recipient.
VII. Can Dubious Consent be Considered an Illegal Transaction?
In secular Israeli law, the health laws
(on consent forms) state that before being
operated upon a person must sign his
agreement to the operation,46 and that the
consent form must be worded according to
the second amendment of these laws.47
44 Maimonides, introduction to his Mishneh Torah,
according to Talmud Baba Metsia 86A, s.v. "Ravina
v'Rav Ashi sot hora'ah," but not according to Rashi.
45 Shulchan Aruch, Choshen Mishpat 2; Sdeh
Chemed, Klalim, ma 'arechet tav, klal26 .
46 Article 3 is referred to in A. Carmi and A. Sagiv,
Medical Negligence in Judaism and in Israel (Haifa:
Tamar Publishers, 1986), p. 150.
47 Article 1, ibid.
The doctor who explains the content of
the consent form to the patient must certify
by signing on the margins that he orally
explained everything written on the form to
the patient. The doctor must further certify
that the patient signed consent in his presence, after he was convinced that the patient entirely understood his explanations .48
This requirement, of the patient's full
understanding in advance of the necessity
and consequences of the operation, is not
carried out in a significant part of all cases,
and in actuality is conducted in an extreme
minority of hospital operations. Usually,
the patient possesses neither the faculties
nor the rational decision-making powers
that the doctor does, and the doctor's signature vouching that the patient "understands" everything does not change the
situation.
Indeed, from a halachic point of view,
an operation that saves or prolongs the life
of the patient does not need conscious
consent,49 and therefore its practical absence is not serious. But as soon as the
operation is meant not to save the patient
himself, but rather to remove an organ for
the sake of another patient, then conscious consent is required by halacha . An
illegal transaction could result from the
lack of this consent . There are not many
people donating organs for the sake of
Heaven, and therefore their doctors should
devote the time and patience required to
enable their conscious consent and total
willingness even if they are receiving monetary compensation for their pain and bodily loss.
48 Ibid., pp. 153-154.
49 See the authors, "Consent to Surgery - Signing
on Shabbat, " Assia 44 (11, 4), pp. 31-33 and in the
sources cited there.
B'Or Ha'Torah
On the other hand, it is doubtful whether it is possible to secure true conscious
consent from the commercial donor,
whose main motive is an urgent need for
cash. The anticipated reward is liable to
distort the donor's judgment vis-a-vis the
consequences of his action in a way
somewhat similar to how the possible payoff distorts the gambler 's judgment. It is
possible, then, that there is a problem of
an illegal transaction here.
VIII. Without Total Willingness is a
Transaction Valid?
Examination of this problem indicates
the lack of a necessary condition for a valid transact ion - and that is total willingness
on the part of the donor. When a person is
ready to sell one of his organs because of
financial pressure, in effect he enters into
a forced agreement in which his willingness is not totally voluntary. The payment
for the organ does not create total willingness except in the case in which the seller
receives the full equivalent of the sold organ and does not lose anything.50 Since
remuneration does not constitute a full replacement for a human organ, and since
50 Rashbam on Talmud Baba Batra 48 (on the problem of a forced sale) says that Rabbi Huna reasons
that suffering causes the forced seller to decide with
all his heart to sell, for two reasons: the suffering itself and the money he can get, so he doesn't lose
anything .
The definition of irreparable loss in the case of amputation can be seen in the question starting "atoo
b'shuftene askinan" in Talmud Baba Kama 85A ,
which sets the price for the pain of having a hand
amputated. The price is set according to the sum that
a person is willing to receive as compensation for
having his hand amputated without painkillers. On
the difference between a hand and a kidney , see
note 10 above .
Selling Tissues and Organs 53
indeed the donor does "lose something,"
the sale of the organ lacks a necessary
element for its legal-halachic enforcement,
and has a legal status similar to that of a
forced gift which is not a gift - a concept
called in the Talmud tlayuhu v'yaheeve.51
The lack of total willingness in selling
organs out of financial pressure necessitates distinguishing between the situations
in which the transaction is valid and those
in which the transaction is invalid. There is
reason here for setting limitations by requiring all prospective paid organ donors
to be reviewed by a halachic-medical approval committee .
IX. Summary
1. There is no halachic source forbidding payment for an organ donated for the
sake of doing a mitsva.
2. Selling organs out of financial distress is sale by force without full compensation, similar to tlayuhu v'yaheeve, wherein
a gift is not a gift. Thus the sale lacks the
basis of total willingness necessary for the
validity of the transaction.
3. It is possible that insufficient understanding of the consequences of having an
organ removed creates a situation of an illegal transact ion.
4. . In view of the differences between
the various cases, paid organ donations
ought to be limited and made conditional
by a public review commitee that will try to
51 Rashbam on Baba Batra 48 , s.v . " Shmuel agrees ...
but tlayuhu v'yaheeve is not a gift." Shulchan Aruch,
Choshen Mishpat 205 :4.
See Beit Yosef on article 12 of the above citation to
understand the reason why there is a difference
between coerc ion imposed by others and coercion
imposed upon oneself, but this reason does not pertain to the sale of organs.
prevent criminal exploitation in the absence of valid, full understanding, conscious consent , and total willingness .
5 . It is self-evident that the
approval committee should be
independent and not amenable to
pressure .
Translated from Hebrew by Ilana Attia