Lecture Delivered on December 28th, 1988
Rav Hershel Schachter: “I’d like to close with one final point. Rav Tendler had a Ta’anah– he didn’t present. I assume time didn’t allow earlier… he didn’t present the ta’anah [his claim], which others have disputed which I think is not such a pashut [simple] thing. I think Rabbi Tendler is perhaps more correct than the others. Rav Tendler said a ta’anah that if you consider these [brain dead] people as alive, or safek [doubtfully] alive, the person who is brain dead is alive, or safek alive, then how can you allow your talmidim [students], how can you allow your ba’al habatim [congregants] to go to Pittsburgh to take a heart transplant? How are you allowed to take the heart of the [brain] dead person? If you hold that the [brain dead] person is alive then it’s an act of retzichah [murder], how are you permitted to use that heart for yourself? What was the ta’anah, not that the heart is asur b’hana’ah, that’s not the sheilah- asur b’hana’ah or mutar b’hana’ah is pikuach nefesh. Yehareig v’al ya’avor, how can you take it? So many rabbanim said no, that just because they send their ba’al habatim and their talmidim to Pittsburgh and they allow ba’al habatim to get a heart transplant from these people whom we know the transplants have to be made while the patient is brain dead and they hold that the patient is either vadai chai or safek chai, but since in hospitals they have a whole list of people who need a heart… and if you don’t want the heart they’re going to call up the next guy and he is going to take the heart so bein coh va’choh [in any case] they’re going to cut out the other fellow’s heart… so since they’re going to cut it out anyway, see, there is no problem on your part. There is no issur on your receiving the heart, since bein coh va’choh they’re going to cut out the heart, they’re going to do the act of retzichah so you’re permitted to take it.
So Rav Tendler had a ta’anah, he doesn’t think, on a previous occasion… he didn’t say it today, he doesn’t think that this is correct. If you’re not… if you hold they’re not allowed to take out the heart, so it should be prohibited to take the heart. What exactly was that Ta’anah? What exactly is that argument? So I remember when we learned this Rambam, the Rambam quotes this Mishnah [Terumos 8:12 in his Hilchot Yesoidei Hatorah 5:8]
So the Rambam quotes the Mishnah that “yamusu [sic: ya’hargu] kulam v’al yemasru nefesh achat me’Yisroel” so the Ramach has the kashya that the sevarah [logic/halachic reasoning] of Mai Chazis doesn’t apply so the Kesef Mishnah and Rav Chaim and the Chemda Shleimah all answer that originally the Din begins as a sevarah of Mai Chazis.. so after you say that it’s a hekeish to gilui arayos, then it’s established as a Din [law], not only as a sevarah. So then you carry it back from giluy arayos to shfichus damim and there it’s also a din. So what is takeh the geder of the Din? What is the upteich? What is the nature of this Din?
So the Rav pointed out in the name of Rav Chaim… Rav Chaim has the first piece in the Chibur on the Rambam… it’s not exactly written like this, but this is the way the Rav said it over, that the Gemara has a machlokes in eizehu neshech between Ben Peturah and Rabbi Akiva… essays in Europe, that Ben Peturah must have been a Christian thinker because it doesn’t make any sense, I should lose my life in order to save his life? And Rabbi Akiva presented the true Jewish tradition, that’s how the atheists write, he presented the true Jewish tradition that chayechah kodem le’chayei chaverchah. What kind of baloney is this? So Rav Soloveitchik pointed out, and Rav Chaim has in his sefer that me’ikar hadin, Ben Peturah is right, he wasn’t a Christian thinker, he was a Tanna. M’ikar hadin, Ben Peturah is right. Why is Ben Peturah right? Ay, but I’m not killing the other fellow. I’m not doing lo tirtzach, I’m just drinking the water. Ben Peturah holds that the geder hadin is I’m not permitted to save my life at the expense of another person’s life. But Rabbi Akiva has a pasuk “chayechah kodem le’chayei chaverchah” that if its b’yad echad meihem kikar shel mayim. If I have the cup of water, my life wasn’t in danger in the first place. Your life is in danger… you don’t have any water… I have the water and even though gezeilah is mutar mishum pikuach nefesh, so the other fellow is allowed to steal the water, but kol zman that he didn’t steal the water I have the kiton shel mayim. My life is not b’sakanah. Let’s say I live in the city, there’s water all over so my life is not b’sakanah. So if I’m in the midbar and I have the kiton shel mayim, my life is not b’sakanah. So then Rabbi Akiva says that it’s permissible for me to drink the water. But what would be the din if you have shnaim shemehalchim bamidbar and there’s a kiton shel mayim shel hefker, then the Rav said based on Rav Chaim… I don’t know if he said the name of Rav Chaim, but based on Rav Chaim… that then Rabbi Akiva would agree with Ben Peturah that it’s prohibited for either of them to drink the water…fully, to drink all the water, because I’m not permitted to save my life at the expense of another person’s life even though I’m not violating lo tirtzach. That’s all included in the pasuk of yehareig v’al ya’avor.
So I think Rabbi Tendler’s Ta’anah is a shtarke ta’anah [strong objection], that if you really hold that these brain dead people are either vadai chai, that the Kohen could wipe off the brow or at least a safek chai… I don’t see how you could hold that they’re vadai chai… I can understand why it should be safek chai because of the two sefeikas that I mentioned earlier. If you consider that it’s at least safek chai or possibly even vadai chai, I think there should be a serious sheilah regarding using the organs from these people because l’ma’aseh, they don’t just cut out the eiver and then call me up am I interested in taking the organ. I have to be there over la’asiasan. They have to call me and I ask them take out the eiver and I want to be the one to receive that eiver. So lichorah I would assume that that should be in violation of this Din. This should be a case where everybody should agree, where Rabbi Akiva should agree to Ben Peturah that it is prohibited to save my life at the expense of another person’s life. Thank you very much.
Please Note: The ‘Bush Document’ posted on-line by the RCA in 2010 states that Rabbi Schachter’s position is that it is permissible for a Jew (who rejects brain death as death and needs an organ transplant) to ask a doctor to remove organs from a brain dead patient – thus, in his eyes, killing the person. Assuming this report is true, no reason was given as to why Rabbi Schachter changed his position.