The issue of sale of organs and tissues is a sensitive one; the emotional aspects of the issue cannot be neglected in the discussion. Nevertheless, the halachic aspects of the issue must be discussed dispassionately in the light of authoritative sources. Here we shall deal with the halacha pertaining to the sale of human hair, blood, and kidneys.
SALE OF HAIR AND KIDNEYS
mentions the sale of hair as a legitimate way of raising money. Rabbi Akiva said: “You must fulfill your financial obligations even if you have to sell the hair upon your head to do so!” The Babylonian Talmud68
states that sale of hair is a legitimate method of raising money. The Palestinian Talmud relates that Rabbi Akiva’s wife sold her braids to support her husband who was studying Torah.69
This indicates that the human origin of biologic tissue does not necessarily disqualify it from sale.
One might say that there is no essential difference between the sale of hair intended for a wig and skin intended for grafting onto the head of another. But one might distinguish between the procedure of cutting the hair, which is permitted, and the procedure of removal of a donor’s skin, which might be considered to be injury and thus prohibited. Moreover, hair regrows as contrasted with organ or tissues. This brings us to the basic question of a person’s right to injure himself.
All authorities agree that it is prohibited to injure oneself irreversibly.70
There is a division of opinion among contemporary authorities regarding the question whether a person is considered to own
his body. According to Rabbi Shlomo Yosef Zevin a person does not own his body.71
Rabbi Saul Israeli, on the other hand, is of the opinion that a person does own his body (see the addenda to Rabbi Zevin’s article).
This is derived from the principle that wanton destruction is not permissible.72 According to Rabbenu Yona, the Torah prohibits unnecessary spending of money73 (cf. Maimonides, reference 74). But Maimonides wrote that the rabbis prohibited unnecessary spending.75 This would seem to mean that the Torah does not prohibit it. There is also a division of opinion regarding the status of the prohibition to injure oneself. According to Meiri76 the rabbis prohibit injuring oneself. But Rashba77 wrote that the Torah prohibits this.78
There are differences of opinion among the sages in cases where one “injures” oneself for beneficial effects. According to one Talmudic source79 a person may injure himself for a beneficial purpose, just as one may destroy one’s own tree or any other property for beneficial purposes.80 In another source81 we find a rather different opinion, according to which one may not injure oneself for “minor” benefit,82 while this would be permissible in order to achieve “great” benefit.83 According to this opinion, financial profit would be considered “minor”, while avoidance of pain and suffering, on the other hand, would be viewed as a “great” benefit. The codifiers are also divided on this matter. Rabbi Meir Abulafia held that under such circumstances one may injure oneself,84,85 while Maimonides held that one may not injure oneself,86 a ruling codified by Rabbi Joseph Karo.87
In view of this, the utilization of organs and body tissues for purely commercial purposes is not permissible. Similarly, it is prohibited to donate a kidney for research or industrial purposes if the benefit to the donor is purely financial. On the other hand, cutting the hair involves no injury, and it is therefore permissible to use hair for purely commercial reasons.
Blood donations fall somewhere between the examples discussed above. In drawing blood there is only minor discomfort. Is this similar to cutting hair, which is not considered an injury, and therefore permitted? Or is drawing blood more like kidney donations? Rabbi M. Feinstein tended to permit drawing blood for purely commercial reasons.88
Although one may not remove a kidney for mere financial benefit, one may surely remove it to transplant it for the prolongation of life. Even relief from suffering or improvement of the quality of life is considered to be of great enough benefit to justify the injury involved in removing a kidney.
When there is no prohibition of injury to the donor of an organ or tissue, does the donor have a right to demand payment? In principle, it would seem that the donor should have the same right to sell a kidney or blood as he has to sell his hair. But three points might restrict this right:
As a rule, one should not accept payment to fulfill a commandment of the Torah.
Society may legislate to prevent the exploitation of its poorer members.
Informed consent and a firm decision to sell are necessary prerequisites for removal of an organ or tissue, and for transfer of ownership to the purchaser.
PAYMENT FOR THE FULFILLMENT OF DIVINE COMMANDMENTS
In principle one may not insist on monetary compensation for teaching Torah.89,90
This is deduced from the well known Midrash (homiletic method of biblical exegesis; the term also refers to the whole compilation of homiletic teachings on the Bible), which compares the Almighty’s instruction of the Israelites in the days of Moses with the instruction of students by their teachers. Just as the Israelites were instructed without payment, so should students in every generation be instructed without charge. Nevertheless, according to Rabbi Jacob ben Asher it is permitted to accept payment for Torah learning.91
This principle is not limited to instruction in Torah. It encompasses the fulfillment of all commandments.92 Since healing is also a commandment of the Torah, in principle the healer may not demand payment for healing.93,94 it would apparently follow that one may not be reimbursed for donating an organ for life-saving purposes.
Although a healer may not demand compensation for his efforts in healing, he may request compensation for his expenses, his time, and any medications or devices which he gives the patient.93,95 in other words the fulfillment of a commandment does not require that the healer spend his own money for the patient.
It is obvious that the loss of an organ can, to some extent, be evaluated in terms of money. It can be concluded also from the Mishnah.96 The suffering involved in the removal of an organ is also measurable in financial terms – “Tsa’ar” in the terms of the Mishnah. Therefore, a donor has every right to demand compensation for a donated organ and for the suffering incurred by its removal, even when such an act is considered as a great mitzvah.
A reason presented for permitting midwives to receive compensation for the performance of their occupation on the Sabbath is: “because if they knew that they would not be paid, they might not come”.97 The same principle can be applied to any medical procedure of a life-saving nature.
Even if physicians were not allowed to receive compensation, there is a fundamental difference between the donor of an organ and a physician. A physician is charged with the commandment to heal. He cannot exempt himself from this obligation, and it may be argued that one who should not refuse rendering medical service has no claim to compensation.98,99 A donor, on the other hand, who is under no obligation to donate an organ, and may accordingly choose not to donate, has the right to claim compensation.
In summary, the general prohibition of compensation for fulfilling a commandment does not conflict with the right of a donor to demand and receive payment for his suffering and for the organs or tissues donated.
EXPLOITATION OF THE POOR
It would seem that in a cruel world there is real danger of an organ market in which the affluent might purchase an organ from the poor. This is an example of exploitation of the poor by the rich. In order to prevent such legalized exploitation, it would be appropriate to introduce legislation regulating the sale of human organs and tissues (cf. Ta’amei Massoret ha-Mikra le-Rab Judah ha-Chasid, end Ki Teitsei; cf. Malbim on the Sifrei 134; cf. Ramban, Comm. on the Torah ibid.; Sefer ha-Chinnuch 580). Today, as we have no central halachic authority to legislate universally binding laws, rabbinic bodies have jurisdiction only in those locations which have accepted their authority.100–102
In summary, unless such a prohibition is legislated, we cannot prohibit the sale of organs for purely exploitative reasons, whether the donation of an organ may lengthen human life, or where it may improve the quality of life.
INFORMED CONSENT AND COERCED SALE OF AN ORGAN
Secular Israeli law requires the patient’s signature on a consent form prior to surgery. The law stipulates the formula to be used. A physician is also required to sign a form certifying that he has explained to the patient everything contained in the form, that the patient fully understood, and that the patient signed the form in his presence.
The requirement that the patient fully understand the need for and the possible results of the surgery is impracticable in many cases. In fact, this requirement is fulfilled in only a minority of cases. Generally speaking, the patient has neither the medical knowledge nor the ability to weigh the matter seriously. The physician’s signature does not change these facts.
From the halachic point of view a surgical procedure which may save the patient’s life does not require his consent. But the removal of an organ to save another patient is different. In such a case consent of the donor is of great significance. Without explicit prior consent the donor might subsequently claim that consent was given in error and that he had never intended to allow removal of an organ or tissue from him.
It is doubtful if the profit-seeking donor always properly understands the medical issues involved in the donation. The donor’s need for money may lead him to ignore the medical consequences of his donation. As a result, the donor may be considered as not fully informed, and his consent might thus not be valid.
If a human organ is sold under coercion, the sale seems to be invalid since it fails to comply with one of the basic conditions of “meeting of the minds”. A donor who sells an organ because of urgent financial need is in a state of coercion. Payment for the coerced sale does not create a situation of consent unless the seller receives full value and loses nothing on the transaction.103,104
THE OPINION OF THE GREAT CONTEMPORARY JEWISH SCHOLARS
“There is therefore no reason whatever to ban one who donates a part of his body from requesting and receiving payment for this. The amount of payment can be stipulated in advance and agreed between the donor and a member of the family of the recipient of the transplant ... Such payment, provided that it is within reasonable limits, need not be seen as unethical, since the donor undergoes physical and at times mental suffering, and as stated a person does not waive his rights to his organs ...
“At the same time, it must be pointed out that only the donor himself is allowed to receive payment for his donation. Any intermediary acting between the donor and the family of the recipient, whether an individual or an organization that undertakes to deal with the matter, must act strictly within the halacha, which regards this is as trouble that everyone is obliged to take, ‘restoring the [safe] body’ to its owner. They are therefore forbidden to accept any payment other than compensation for abandoning other work, as explained above regarding restoring lost property. This should certainly be embodied in statutory law, to save us from the danger of a trade in human organs developing.”105
Rabbi Shlomo Zalman Auerbach has a more consistent opinion. He wrote that in order to save life, both the donor as well as the mediator, are allowed to receive compensation.106 Nevertheless see Wigoda’s opinion on organ donation and organ sale.107
PRACTICAL CONCLUSIONS OF SECTION 3:
There is no halachic prohibition against receiving compensation for donated organs.
Sale of an organ as a result of desperate financial distress may create a situation of coercion without full value being paid. Such a situation lacks “complete consent”, and the sale might be void.
A donor’s incomplete understanding of the medical consequences of the removal of an organ may invalidate the sale.
In light of the differences in various cases, the donation of organs for payment should be regulated and requires fully informed prior consent. This should eliminate exploitation on account of uninformed consent.