Monday, December 20, 2010

Torah Values Vs. Halachah

Continuing, and hopefully wrapping up, the topic of organ donation, here is a discussion of my second reason for becoming an organ donor. I would like to reiterate (because people ignored it the first time) that I am NOT issuing a "psak," nor have I even studied the matter thoroughly. But since we all decide whether to sign up as organ donors or not, I am explaining why, until I thoroughly research the topic and reach a final conclusion, in the meanwhile I am signed up.

Although it is not true to say that "where there is a rabbinic will, there is a halachic way," it is true to say that sometimes fundamental Torah values either override halachah or dictate its direction. Now, this is a principle that certainly is and has been open to abuse. For example, although homosexuality is a very difficult topic, one can't simply say that because there are fundamental Torah values of freedom (or whatever) then it should be permissible -- since there is a contrary and explicit Torah value that homosexuality is forbidden. Likewise, to say that because there is a fundamental Torah value of compassion for the downtrodden, therefore it should be halachically permissible to engage in policy X for the Palestinians, may ignore the fact that there are contrary halachic principles regarding Eretz Yisrael and/or Jewish welfare. So if there was a clear and unequivocal position in Judaism that brain death is not death and organ donation is prohibited, one could not use the idea of fundamental Torah values to override it.

But we do see that there is a concept of the spirit of the law that is not always in accord with the letter of the law - a perfect example is naval b'reshus haTorah. And we also see that Poskim will in some cases have a clear direction in which they direct their halachic conclusion - for example, with certain question of niddah or agunah. Furthermore, while I don't think it is even necessary to invoke it for this case, there have been authorities who have explicitly said that there are Torah values that are even more fundamental than halachah and override it. Ironically, this occurred with the first Charedim! R. Yisrael David Margaliyot-Jaffe Schlesinger, a disciple of Chassam Sofer, made this argument in order to justify issuing rulings that were not founded in halachah; see Michael Silber, "The Emergence of Ultra-Orthodoxy: The Invention of a Tradition," p. 54 (although this did meet with opposition!) Dr. Marc Shapiro discussed how R. Moshe Shmuel Glasner considered certain values to be more fundamental than halachah and thus override it, and how even Rav Soloveitchik - the Halachic Man - wrote that "the halakhic inquiry, like any other cognitive theoretical performance, does not start out from the point of absolute zero as to sentimental attitudes and value judgments. There always exists in the mind of the researcher an ethico-axiological background against which the contours of the subject matter in question stand out more clearly."

So, getting back to the topic of organ donation, and incorporating the "common-sense principle" discussed by Rabbi Dr. RMH, here's how I would apply it:

1. It is a fundamental Torah value to save lives. Lo ta'amod al dam reyecha. And several lives can be saved by organ donation from a brain-dead person.

2. It is established beyond reasonable doubt that all thoughts, feelings, etc., occur in the brain, and not anywhere else in the body.

3. It is established beyond reasonable doubt that someone who is brain-dead is not coming back. Ever. Forget about all the medical miracle stories - it's not happening in this case.

4. The halachic status of brain-death cannot be clearly derived from Chazal; there are disputes as to which inferences to make from their words, and in any case they had a fundamentally different medical reality as well as conception of physiology.

So you have someone who is certainly effectively dead, who is dead by virtually every measure, who left instructions with HODS that he himself wants to be considered dead in such circumstances, and who even from a halachic perspective can well be argued to be dead. By doing so, several lives - real lives, of people who can feel and think and speak and act and who do mitzvos and who want to live and who have families who want them to live - will be saved. That is the final, tremendous act of chessed that the departed wanted to do - making his unavoidable death save the lives of others. Surely that is clearly what Hashem wants, what Chazal would have wanted, and the direction that the halachah should take.


You can learn more about being an organ donor, and sign up, at www.hods.org.

15 comments:

Jenny said...

Rabbi Slifkin -

Israel recently passed a law that organ donors and their families will receive preferential treatment if they are in need of organs. This "pikuach nefesh" (though not with a choleh right in front of us) seems to be a shikul as well.

Does HODS coordinate with the government database for this purpose?

Anonymous said...

Thanks for this post as I think you've gotten to the nub of the issue (given you've already debated the "why not wait till you've investigated issue"). R'YBS would point out how much flexibility chachmei hamesora have - but of course once there is flexibility in the system the question is who can use it and where.

I had an exchange on Cross Currents last week on this (I'm debating on whether to continue it since prior experience is that we talk past each other or something)

"2.you (R' Adlerstein) said" A host of responses pelted a fire with snowballs. They may have been cathartic exercises, but you can’t answer arguments based on halachic sources with statements that Judaism espouses certain universal values, and upholds the dignity of all people. That may be true – but you still have not addressed the halachic issue. What they may be conveying is their belief in that worn mischaracterization of halacha, “where there is a rabbinic will, there is a halachic way.”

I responded -Would you accept the following “where there is enough concern among leading rabbinic decisors, there is generally a halachic way to remediate the situation”. WADR I think the halachic world has overreacted to the “worn mischaracterization” by an overstated counter position that implies halacha is totally objective and the Rabbi is just a technician who does the input and out pops the answer . IMHO this is not the case and maintaining this fiction rather than explaining why the Rabbis have not seen it appropriate to change something at this point.

[R'YA responded – 2. You are getting closer, but I don’t think we are there yet. You still create too much expectation when you offer a general hope of remediation. I don’t think that this is true. It varies entirely with the topic. (The original formulation, BTW, was subsequently dropped by the original author.) It is simply not the case that if you are a woman seeking to have an extramarital fling that you can sell your husband to a non-Jew for a few months. Similarly, Yitz Greenberg’s suggestion decades ago that we remedy the problem of raging teen hormones by sending unmarried girls to mikvah once a month was foolish, as R Aharon Lichtenstein pointed out at the time. There are, in many areas of halacha, opinions that can be relied upon when pushed; there are other areas where there are on such opinions. There are also opinions that have so little support that they simply have no place in halachic reckoning. The only people who pay any attention to them are those on the far left who employ a different halachic strategy that no seasoned ben Torah would regard as having any legitimacy.

(Me , not posted-I don't really see his response as a general answer-just saying who can use the power and who can't?)

KT
Joel Rich

Maverick said...

Doesn't the Rambam believe most mitzvot (at least) are a means to an end, that we can know that end and perhaps the mechanism by which that end is reached? In such a case, wouldn't the spirit of the law require we optimize the letter of the law so the purpose of the mitzvot is most effectively fulfilled?

IH said...

Just as a reality check (as of Dec 2007):

"In Israel the rate of organ-donation agreement is only 45 percent, a rate that is about 50 percent lower than in most Western countries. The percentage of signatories that have a donor card ("ADI" cards) in Israel is only 8 percent; in Western countries the percentage of signatories to similar cards is 30-40 percent. With a rate similar to that in the West, we would be able immediately to double the number of organ transplants each year, and to shorten the waiting list, which now stands at about 1,000 patients, in just a few years."

http://tinyurl.com/3amswau

My sister required a transplant in chul, so I have some personal views on the subject irrespective of the entertaining pilpul.

Michapeset said...

My sister required a transplant in chul, so I have some personal views on the subject irrespective of the entertaining pilpul.

People who have personal experiences with organ transplants and whose lives or the lives of someone very close to them were either saved by an organ donor or were greatly enhanced (eg going from blind to seeing with eyes donated) by an organ donor are the ones who have little doubt in regard to what Hashem, Chazal and the Torah would want in this regard (being that neither the Torah nor Chazal spelled it out clearly). Being subjective is not negative in this case. As Rabbi Slifkin pointed out in another post a few weeks ago, we are ALL biased in some way. Being human, Rabbonim are biased as well. Rabbonim would do well to visit and speak with recipients of organ donations before coming up with a definitive psak. And this goes for all areas of halacha. Halacha does not operate in a vacuum and is not a dry set of numerical or mathematical principals, where 1 = 1. If a Rov has NO exposure to people whose lives would be directly affected by the rendering of his psak, it is just as problematic as if he himself would be directly affected by the rendering of his psak, such as if he himself were waiting to be the recipient of an organ donation which would save his life or the life of his child.

Eddie said...

I still have not gotten an answer to my question. If(please tell me if Im wrong) noone says you are killing someone if you do NOT donate your organs, but there are who say you ARE killing someone if you DO donate your organs, it would seem that better not to kill someone.

Carol said...

'Doesn't the Rambam believe most mitzvot (at least) are a means to an end, that we can know that end and perhaps the mechanism by which that end is reached? In such a case, wouldn't the spirit of the law require we optimize the letter of the law so the purpose of the mitzvot is most effectively fulfilled?'

Rambam believes that Torah is the most perfect law that will ever exist and as such cannot require any 'optimization'. Taamei HaMitzvos by and large are deduced by us the people. To put the two together we have to understand and contextualize the Torah. Rambam's taamei haMitzvos are not meant to be exhaustive. He shows us the way. I have my own taamim which I haven't seen anywhere. Rambam writes that he had learned every book on avoda zorah that he could find. What was his motivation? Maybe he felt a conflict between human values and Torah's uncompromising stance on the issue. After he understood the depth of evil of avodah zora he came to fully identify with Torah attitude. I had this problem myself because I have Hindu friends. I followed in Rambam's footsteps and read many books on various forms of idol worship. I discovered things that I never learned in school and came to completely share Rambam's view.

Phil said...

Brain-dead Washington woman comes back to life, at KGW news:

http://www.kgw.com/news/local/Brain-dead-Washington-woman-comes-back-to-life-105635108.html

There's an organ-donor twist to this story that's pretty cool!

Phil said...

This story, about a man this time, is pretty wild, too:
http://www.metro.co.uk/news/world/126081-brain-dead-victim-comes-back-to-life

Natan Slifkin said...

Phil - Read Dr. Noam Stadman's article on Hirhurim. Nobody ever comes back from true brain death. That doesn't mean that there aren't misdiagnoses of brain death, just as there are misdiagnoses of cardiac death.

robert said...

By doing so, several lives - real lives, of people who can feel and think and speak and act and who do mitzvos and who want to live and who have families who want them to live - will be saved.

I'm assuming that you don't really mean to say that only the lives of Shomer Mitzvot Jews should be saved via organ donation.

Natan Slifkin said...

Come on, you must know me by now.

robert said...

Rambam believes that Torah is the most perfect law that will ever exist and as such cannot require any 'optimization'.

I assume you're only referring to d'oryta commandments since laws made by people can definitely be mistaken or need "optimization".

robert said...

Come on, you must know me by now.

Sure your regular readers do, but others may not understand.

Natan Slifkin said...

Obviously I did not mean to say that only the lives of Shomer Mitzvot Jews should be saved via organ donation.

Incidentally, atheist Jews do mitzvos too. They might not consider them as such, but they do them.