halachic sources for treating body parts

A small amount (size of an olive) of flesh from a deceased requires burial.

Tissue or blood removed from a live person does not. Regarding surgical removal or a limb or organ: Halacha requires burial of any organ or limb containing basar, giddim v'azamos removed at surgery or traumatically avulsed. Internal soft tissue organs such as the gallbladder, appendix, kidney, utreus, prostate, do not require burial. However, a limb does require burial.

(See Tosafos Niddah 55a;Tosafos Yom Tov Shabbos 10:5; Shulchan Aruch Y.D. 374:2; Shut. Node B'Yehuda Y.D. 1:90; Ibid. 2:209; Shut. Shevus Yaakov 2:101; Shut. Milamed L'Ho'il Y.D. 118; Shut. Chelkas Yaakov 2:154, Ibid. 3:80; Shut. Minchas Yitzchak 4:98; Shut. Tzitz Eliezer 10:25-8; Shut. Iggeros Moshe Y.D. 231; Ibid. 2:150; Ibid. 3:141)

The halachic issues presented by post-mortem transplants are several. let's focus on some of the issues which you note in your question:

The prohibition of nivul ha-meis. The source for the prohibition for desecration (or mutilation) of the dead is from the verse in Dvarim 21:22-23, "And if a man has committed a capital offense and was executed, you shall hang him upon a tree but do not allow his body to remain on the tree all night." The Talmud (Sandedrin 47a) says that any act which can be construed as desecration of the dead is included in this prohibition.

The Talmud (Chullin 11b) offers a number of illustrations. In reference to execuring a murderer, the Gemora asks: Perhaps the victim was a treifah, a person with a fatal organic disease or defect, which would make the offense unpunishable. If you should say, examine the victim's body [to ascertain whether he had a fatal disease], that would be desecrating the dead, and hence, forbidden. Should you then say that since a man's life is at stake, desecration of the dead is allowed, then one could answer that the possibility exists that the murderer struck the victim in a place where he had been suffering from a fatal wound and thus removed any trace of that wound.

Clearly, the procedure under discussion was a post-mortem examination of the victim. This procedure is rejected as a violation of nivul ha-meis. Accordingly, it would seem that the removal of an organ from a dead body is precluded in Jewish law, for there could be no greater desecration of the dead than to remove body parts.

Rav Yonason Eibeschutz (Bina L'Itim, the laws of Yom Tov 1:23) addresses a fascinating question: A woman suffered a miscarriage that resulted in a grotesquely deformed fetus. The family suffered dire poverty and it occurred to the husband, that if he were to travel among the various towns, he might display the fetus in the hope that the viewers would give him money. Was this permissible? Rav Eibeschutz says that apart from the requirement of burial, it could not be allowed because of the prohibition of hana'a mai-meis, deriving benefit from a human corpse.

The prohibition against deriving benefit from a cadaver is formulated by the Talmud (Sanderin 47b, Avida Zara 29b) on the basis of a gezeira shava, a hermeneutic principle applied to the occurrence of an identical term in different contexts. An identical term is used in describing the ritual of the egla arufa (Dvorim 21:4), and in the description of the burial of a human corpse (Bamidbar 20:1), that of Miriam. The Talmud says that this signals the transposition of the already established prohibition against deriving benefit from the heifer to a prohibition against deriving benefit from a human corpse. See also The Talmud (Bechoros 45a) and The Chasam Sofer (Y.D. 336).

One of the most famous responsa on this subject is that of the Noda B'Yehuda, Rav Yechzekal Landau of Prague concerning postmortem pathological examinations. He says (Shut. Node B'Yehuda Y.D. 210) that suspension of a prohibition is sanctioned only for the benefit of an already endangered patient, or to use the phrase later coined by Chasam Sofer a choleh l'faneinu – "present" in the legal concept of a "clear and present danger." Prohibitions may be ignored in order to rescue an endangered life, but they are not suspended in anticipation of a hypothetical eventuality. Were the doctor to have another patient awaiting surgery for the same condition that the deceased had, and he wants to do the postmortem so that he will gain the knowledge to help his patient, it would be permissible. The condition which must be satisfied is the realistic anticipation of obtaining otherwise unknown and unobtainable information which, in turn, may lead to life-saving treatment.

In terms of cadeveric organ transplant, based upon the analysis of the Chazon Ish (Ohalos 22:32), as long as the probability is strong that a person whose life is at risk will receive the organ, it is immaterial whether he was specifically identified at the time of the removal or not. With modern communication many more patients with life threatening illnesses can be treated by cadeveric transplants even when removed from the patient's location. Swift air transportation can fly a life-saving organ anywhere in the world. Jewish Law takes this into account when permitting organ removal from a cadaver and considers such patients to be before us here and now.

Rabbi David I. Kaye

Director, Department of Pastoral Services

Chair, Medical Ethics

Parker Jewish Institute for Health Care and Rehabilitation

For further reading, see the following:

Jakobovits Immanual; The Dead and Their Treatment; Jewish Medical Ethics: Chapter 12 (1975)

שו"ת ציץ אליעזר חלק י סימן כה פרק ח