International Responsa Project
When a medical procedure raises ethical, moral, or halachic
questions, advice from a reliable source is needed. The International Responsa
Project provides this service to people all over the world who send their
questions – some of general and theoretical, some specific and technical – via
e-mail (irp@medethics.org.il), website (www.medethics.org.il), telephone, fax,
and post. The questions are answered as quickly as possible by one of the rabbi-doctors at the Institute. The
following are samples of recent questions and their answers. Please note that
these are answers to specific questions and no general halachic conclusions
should be drawn. A competent halachic authority should always be consulted.
Subject: Shiduchin & procreation with Klinefelter's Syndrome
Date: January 2009
Answered by: Rabbi Mordechai Halperin, M.D.
Shalom,
A boy with klinefelter, lo aleinu, parents want to know what and what not is one
allowed to check pre-marriage? Is freezing of sperm allowed in case there will
be some use for the sperm later on?
Yours sincerely
If a young man is diagnosed as Klinefelter, and he has
some sperm cells in his ejaculate, he is allowed to freeze the sperm cells for
further use.
In principle, he is also allowed to perform a sperm test for that purpose, but
practically this should be done only after consulting with a prominent Rabbinic
authority.
The late Rabbi Shlomo Zalman
Auerbach told me that it is permitted to perform sperm test in order to find
out if a man has a chance to have children, as it may effect his future
decision with whom to marry.
For more references, please see ASSIA Book Vol. VII
(Hebrew) pp. 273-303.
Subject: Halachic
sources for treating body parts
Date: January 2009
Answered by: Rabbi David I. Kaye
From which passages in the Torah and Talmud does the
Jewish treatment of body parts and human tissue derive?
Can you suggest some sources or articles I could
reference regarding this question?
This question has relevance to my work as a physician
and surgeon and I am interested in learning how these halachot
developed.
Thank you.
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 executing 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.
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
Subject: Reconstruction
surgery and tattoos
Date: October 2008
Answered
by: Rabbi Mordechai Halperin
I am 33 years old. I was diagnosed with breast cancer
last year. I am finished with my chemotherapy and I have recently undergone
complete bilateral mastectomies. I have chosen to do breast reconstruction with
implants. I am finished with that as well and I am now ready for nipple
reconstruction. I have the option to tattoo nipples onto the "breast"
instead of going through another surgery (skin grafting to construct a nipple...) I have been through a
total of 5 surgeries in
the last year and I am not physically and
psychologically up to going through another surgery right now. I really just
want to be finished with this last step and try to look as normal as possible.
I know there are halachic issues with tattoos and I was hoping you can help
guide me.
You are allowed to go through the tattoo procedure for
the nipple reconstruction.
See the Nishmat
Avraham (Hebrew, new edition – 2007), Vol. II (Yore-De'ah)
180:a3 (pp. 132-133)