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Thursday, July 19, 2012

Masei: Living Donation of Organs and Ir Miklat

(With some changes, this is a re-post of last year's post on this subject.  I also incorporated the comments that came in last time.)


What is the extent of the moral and halachic obligation to save another's life?  The question is far too broad and nuanced to even discuss in this forum.  I only want to point out a not well known paragraph from Reb Meir Simcha in his Ohr Samei'ach on this topic.  Every word in Reb Meir Simcha is a gem, and this one is particularly interesting and deserves wider dissemination.


The issue at hand is whether one is allowed to endanger his life to save someone else.  Assuming he is allowed to do so, is he obligated to do so?  Does the relative degree of danger to himself and the other person matter?  There has to be some leeway here; an absolute prohibition would mean there were no soldiers, no policemen,  no doctors in infectious disease clinics, and no firefighters.  As you can see, the numerous permutations require careful attention.   One current question is whether a person may donate a kidney or part of a liver to someone who would otherwise die.  There is definitely a danger involved in living donation.  It is allowed?  Is it justified?  Is it a mitzvah?  Is it an obligation?  For helpful overviews and a survey of the various opinions, both modern and ancient, see here and here.  There is a wonderful group, called HODS- the Halachic Organ Donor Society- that has a very interesting and informative web site dedicated to this and many other issues.  I should really have linked to HODS' home page, but the video on the home page is so hard to watch, and so beautiful and poignant at the same time, that I wanted to warn you before linking to it.

As always, halachic questions of this nature should be directed to an Orthodox Rabbi of stature.  Basic rabbinic training certainly does not guarantee the expertise to deal with such questions.


Back to Reb Meir Simcha.  The Gemara says that a person who must run to the Ir Miklat, that is, a person who had killed someone inadvertently, may never leave until the Kohen Gadol dies.  There is absolutely no circumstance that would allow him to leave.  As the Mishna in Makkos 11b says, 
אינו יוצא לא לעדות מצוה ולא לעדות ממון ולא לעדות נפשות ואפי' ישראל צריכים לו ואפי' שר צבא ישראל כיואב בן צרויה אינו יוצא משם לעולם

He does not leave to testify about the new Moon, and not for civil testimony, and not to testify in capital cases, and even if the Jewish People need him, even if he is a General like Yoav ben Tzruyah, he never leaves.


Reb Meir Simcha addresses the question, how can it be that Pikuach Nefesh wouldn't allow temporary abatement of the punishment of Galus?  If he is needed to lead the army in war, if he is needed to testify in a capital case, if he is a doctor, nothing at all allows him out, despite the deaths that will likely result from this refusal.  What happened to the primacy of human life?  In fact, I would say that the best possible thing for this man to do that would rectify his negligent taking of a life is to go and save lives!  Why doesn't the Torah allow this?  


Reb Meir Simcha (in 7 Rotzei'ach 8) answers that all these reasons would not affect the vengeful relative's right to kill him.  The Goel Hadam will still have the right to kill this man as soon as he walks out of the Ir Miklat.  Since leaving endangers him, he is not allowed to leave his safe refuge; A man may not endanger his life in order to save others.  (I would not be too quick to assume that this is based on Reb Akiva in Bava Metzia 62a, חייך קודמין, because Reb Meir Simcha makes no reference to that Gemara at all.)  This is particularly interesting in light of the fact that the ability and the motivation of the Goel Hadam to do what he is allowed to do will vary with the time and place and circumstances.  But Reb Meir Simcha says that the mere fact that the Goel Hadam has the right to kill this man with impunity prohibits this man from leaving the Ir Miklat, even if leaving would enable him to save another man's life.


Without in any way deprecating Reb Meirs Simcha's teretz, the fact remains that, as he himself cites extensively, many poskim say that one may, perhaps even must, endanger himself to save another's life, and his teretz is of no use in explaining how the others would learn the Mishna in Makkos.  (Rav Shternbuch, in Taam VaDaas, argues that the whole concept of war means that you endanger yourself for the benefit of the people, and it doesn't make any sense to say that it is the danger of the Goel HaDam that precludes a general from leaving the Ir Miklat in order to lead his army in war.  I'm not impressed with his raya, but there it is.)  A certain Isha Chashuva immediately answered that the experience of Galus has to be a simulacrum of death, of leaving everything behind and not being able to return.  If the person can come back for any reason at all, then it's not at all like being dead.   (I once said that the reason women tend to get headaches is because vestigial organs are more prone to derangement.  While I still think this is true, my rebbitzen has made it clear that it does not apply to her.)

Here is our teretz.


Galus is a form of chiyuv missah.  Chiyuv missah obviously trumps V'chai bahem.  Proof- first of all, the fact that you kill the guy is proof enough.  More- pikuach nefesh is docheh shabbos, but a mechallel Shabbos is chayav missah.  One might say that this is because Rachmana afkerei l'damei.  Or one might say that the chiyuv missa is doche pikuach nefesh.  If you say the latter, then you have a pshat in the Mishna in Makkos.  In any case, one thing is certain: you don't say אז מען דארף דעם גנב - נעמט מען אים פון די תליה אראפ

Comments:

Efrayim said...


Your answer is creative, but some might find it hard to believe that one person's chiyuv misah can set aside another person's pikuach nefesh. Is someone who is chayav misah now exempt from saving othes' lives? Perhaps the explanation is that since there is a real chiyuv misah - if he leaves intentionallly, anyone is permitted to kill him - leaving is not viewed as doubtful misah, but as actual misah. This is comparable to the principle of "kim leih b'd'rabbah mineih" where there is theoretical chiyuv missah even when there is no chiyuv missah applied.

b said...

I didn't say that a chayav missa is not obligated in pikuach nefesh. I said that when the chiyuv missa is at odds with the pikuach nefesh, chiyuv missa is stonger. Here, galus in the Ir Miklat is the equivalent of Missa, leaving is like avoiding a chiyuv missa, and pikuach nefesh is not docheh chiyuv missa. 

I hear how you are using Reish Lakish from Ksuvos 34b. Very nice. Creative- and ironic, too. It's diametrically opposed to my teretz. I am saying that galus is missa, and missa is docheh pikuach nefesh. You are saying that galus is galus, and leaving galus is the din of missa, and the mitzva of pikuach nefesh cannot possibly generate a din missa on someone.
Daniel said...

I'm asking because I don't know. Is there in fact a chiyuv on the rotzeach to go to an ir miklat? or just an option? what would be the chiyuv? ושמרתם לנפשותיכם or ונס אל אחת הערכים האל וחי? what if he genuinely feels that he wants pure justice of death by go'el hadam?

2- Doesn't ואם אין מחני נא מספרך and אשר הערה למות נפשו (ישעיה נג show that you can give up your life for someone else? ואת"ל Moshe saving the entire nation is different, what about avraham going to save Lot. Or the din of קנאים פוגעים בו? it seems to me, where the danger is a function of the person's expressing that which is proper is in his eyes it's always permissibale to give your life for that which you feel is Truth. Even in instances of certain death, let alone only risk.
b said...

He is required to go to the Ir Miklat, he doesn't have the option of staying home and taking the risk. First Rambam in 5 Rotzei'ach- כל ההורג בשגגה גולה ממדינה שהרג בה לערי מקלט ומצות עשה להגלותו שנאמר וישב בה עד מות הכהן הגדול. והוזהרו בית דין שלא יקחו כופר מן הרוצח בשגגה כדי לישב בעירו שנאמר ולא תקחו כופר לנוס אל עיר מקלטו

I don't know how to explain your examples. But here's what I'm thinking:

Perhaps self endangerment is a form of charity, of giving away what is yours on behalf of another, and there are limits to tzedaka. There's a rule of chomesh, that you only give up to 20% of your money to tzedaka. If so, as soon as we remove the parties from a tzedaka relationship, all these discussions will not apply. Perhaps certain relationships create responsibility, and when you are responsible for someone, you are allowed and maybe obligated to take a risk on his behalf.
Daniel said...

The Rambam only shows that beis din is obligated להגלותו, not that he has a chiyuv to be גולה.

I'm a little puzzled how כופר לנוס אל עיר מקלטו means "to allow him to stay home" but regardless, again my point the same, the issur is on beis din, not the rotzeach.
Efrayim said...

Re your 1027 response - I agree with you that you must say that a chiyuv missah is stronger than the mitzvah of v'chai bahem of the person who chayav misah; if I recall correctly there is a story of a person who actually carried out the 4 types of misas beis din on himself. The nafkah minah would be that one who is chayav misah and has the opportunity to escape is not required to, and perhaps is not even allowed to (assuming he knows he is guilty). However, a strong, perhaps compelling case can be made that even if you are correct in your assertion that golus is a form of chiyuv misa, that does not now exempt the rotzeiach b'shogeg from the obligations he has because he is physically alive. Why is he less subject to the mitzvah of v'chai bahem as applied to others than he is in the mitzvos of wearing tefillin, learning Torah, et al.? Is someone who is on his way to being executed now patur from saving others' lives (assuming he can escape beis din's hands long enough to do so)?

Re Daniel's point - if anything the chomesh halachah is a question on this whole discussion You are not allowed to give up more than 20%/25% of your assets to perform a one-time mitzvas aseh. Acharonim understand that as also applying to your emotional strength - e.g., you are not required to push yourself to your breaking point in order to fulfill the chiyuv achilas matzah. (Obviously this is a principle which requires in-depth elaboration.) How then can you be allowed to risk your life? I don't believe the answer can be as broad as the one Daniel suggests since the meforshim give all sorts of technical parameters under which the rule of "kanaim pogim bo" can apply. It's not carte blanche for risking your life for whatever you consider worthwhile.
b said...

OK, Efrayim, I agree that my teretz is far from impregnable. But I thought that it was, as you said, creative enough to count as a nice lomdus. I'm not arguing, but I do want to emphasize that I anticipated the problem when I said that if his chiyuv missa is רחמנא אפקריה לדמיה, the teretz doesn't begin.

As for your kashe on chomesh- please note that I was making the tzutshtell to chomesh in Reb Meir Simcha, who holds that it is assur to endanger yourself, which would comport with the idea of Chomesh and Tzedaka.
great unknown said...

Daniel at 3:30
la'nus is not a verb but a noun: the one required to escape.
Daniel said...
TGU- saw the rashi now. thank you very much.
b said...

By the way, Chomesh is a takana derabanan, and there are many exceptions to its application. Still, the concept, the idea that underlies the Chachamim in Usha, may apply.
great unknown said...

How can you say that chomesh is a takana d'rabanan? Everyone knows that it is a halacha l'Moshe miSinai. Not to drag this out too far, see the Shnos Eliyahu on the first mishna in Peah, d"h gemilus chassadim, in the Pirush Ha'Aruch.
Intriguingly, the Pirush Ha'Kotzor says the opposite.
Daniel said...

Re Efraim: the maamar chazal of אל יבזבז יותר מחומש , regardless of it's source, is not a strict ISSUR in the way you (or yes, probably 99% of the world) are thinking but rather a general guidleine for going through life and mode of conduct (as the original meaning of הלכה/הליכה means).

How can it be "ASSUR" to give more than a chomesh when i have the right to be מפקיר כל נכסיי if I want and live a life of an עני?...

Anonymous said...

. אגרות משה, יו"ד, א סימן קמג 

ובדבר אם תקנת אושא שאל יבזבז יותר מחומש הוא איסור או רק עצה טובה... והנה לא כתב הרמב"ם הדין דאל יבזבז יותר מחומש אלא בסוף הלכות ערכין ולא בצדקה בהלכות מתנות עניים ובש"ע מפורש שהמחבר סובר דבידו משגת מחוייב ליתן כפי צורך העניים אף שהוא יותר מחומש משמע שסובר בדעת הרמב"ם שכיון שדין התורה הוא שיתן כפי צורך העניים לא תקנו רבנן לאסור וגם לא לעצה טובה בצדקה רק להקדיש אסרו... עכ"פ הרמ"א שכתב ואל יבזבז יותר מחומש בצדקה פליג וסובר שאסור וכדמוכח מהא דמר עוקבא ודעת הרמב"ם והמחבר צ"ע. עכ"פ למעשה אין לבזבז יותר מחומש אם לא לחשש פקוח נפש. 

.מנחת יצחק, ה סימן לד 

והנה בתשובת אגרות משה שם, בנה יסודו על דברי הרמ"א שם (יו"ד סי' רמ"ט סעי' א'), שכתב ואל יבזבז יותר מחומש עיי"ש. ולענ"ד אין ראיה דבא לחלוק על המחבר, דאם רצונו לחלוק, היה כותב, וי"א, כנודע דרכו, וביותר ממה שמצוין שם המקור, (ב"י בשם הגמ' פרק נערה שנתפתתה), ואף שאין הציון מהרמ"א עצמו, אבל כן ראיתי בדרכי משה השלם, שעל דברי המחבר בש"ע, עד חומש מצוה מן המובחר כו', כתב למקור הדברים, בפ' נערה שנתפתתה א"ר אילעי באושא התקינו המבזבז אל יבזבז יותר מחומש, שמא יצטרך לבריות עיין שם, ש"מ דלא בא לחלוק על דברי המחבר, אלא למלאות דבריו, דבאין ידו משגת אסור לבזבז, אבל בידו משגת, י"ל דמודה לדברי המחבר. 
וא"כ להלכה למעשה, כמו בזמן הזה, שבכל עת יש עניים נצרכים לפנינו, וביותר עניי א"י, שפיר יכול מי שידו משגת לבזבז יותר מחומש, ומצוה קעביד

b said...

I saw the שנות אליהו and the פירוש הארוך, and I see that the former implies derabanan, while the latter says clearly, based on a Yerushalmi, that what we call תקנת אושא is really a Halacha L'Moshe Mi'Sinai that Chazal publicized at Usha.

Are you sure the שנות אליהו and the פירוש הארוך are both from the Gaon?

Efrayim said...
This has nothing to do with the discussion here, but the Mishnah Brurah brings this down in the sugya of chomesh, and it's inyanah d'yoma, so maybe the distinguished blog editor or someone else can answer this question. Based on the story of Bar Kamtza the Magen Avraham suggests that when there is "eimas hamalchus" one is permitted to violate even a lo saseh (i.e., offering a korban with a mum). The Mishnah Brurah says that other acharonim question this ruling since the rabanan's concern was actually about pikuach nefesh, which is certainly docheh any ordinary lo saseh. However, if you look at the Maharatz Chiyus on Gittin where the story of Bar Kamtzah is, he not only approvingly cites this Magen Avraham, but says that the reason the rabanan suggested Bar Kamtzah be killed was because he was a rodef! If he was a rodef, how can we infer anything to a case of ordinary "eimas hamalchus"?

great unknown said...

I was just thinking about a similar issue this morning: in America, so far, we don't have a clue as to what aimas malchus is, other than from history. Unless you live in Chicago, where the police routinely beat up and torture people; murders have yet to be revealed.

The din of rodef is defense against personal [or communal] sakanas nefashos; so is aimas malchus.

re: the Shnos Eliyahu
Other than the pirushim on kabbalah and trigonometry, we have very little actually written by the GR"A; most of it was transcribed by his talmidim [rather chasuv in their own right], but some was actually reviewed by the GR"A. See the haskama of R' Chaim Volozhiner to the Shnos Eliyahu.

As to the stira in the two versions, we find the same in the gemora by amora'im who just came out of shiur.

l'Inyanainu, see also the Gevuros Ari on Ta'anis 24a. However, see the Ahavas Chesed, 19:4 and the footnote there. Also, perek 20. Note that the Chofetz Chayim is not misyaches at all to the GR"A in the pirush ha'aruch.

A very relevant issue concerns how much of support for descendants who are learning can be counted against ma'aser and chomesh. I seem to recall from the Chasam Sofer that for a time period originally contracted at the time of the chasuna, none of it counts; after that, fifty percent.

I suspect the age of the child counts also; the minhag seems to be not to follow the strict d'Oraysa or even the more generous takanas Usha on that. However, I suspect that it would be very good from a chinuch standpoint to kick out sons as soon as they become bar mitzvah.
From a certain perspective, that is done by many in Eretz Yisroel, where they are shipped out the yeshiva dorms at the earliest possible moment.

b said...

Efrayim:

Have you ever wondered about policy in Halacha? For example: Rahm Emanuel is associated with an Orthodox synagogue. When the recession began, he asked his rabbi whether it was allowed to participate in a conference call on Rosh Hashanna to make decisions about what to do to prevent a depression. The Rabbi said that he may, because telephone usage is most likely derabanan, but more importantly, a depression would destabilize nations, bring hunger and famine, and result in many deaths and wars.

Certainly true. But one might argue that these results are not proximate, and halacha deals with direct, not gramma of gramma of gramma.

Or you could say that it is delusional to say there's a difference between pikuach nefesh of a choleh in front of you, or pikuach nefesh of cholim de'alma when you know for a fact that cholim will eventually appear.

You realize that this hetter would be a blanket hetter for kohanim to go to medical school, and chillul shabbos for medical students, and even working on shabbos when you're afraid that if you don't make a parnassa, you might get poor and not be able to afford medical help. And so on ad absurdum. So only Gedolim mamash can pasken on such questions.

In this case, Chazal are telling us that Eimas Malchus is Pikuach Nefesh. It may not look like it, it may not be immediate, but antagonizing the government is extremely dangerous, and so you are docheh shabbos as if it were pikuach nefesh mamosh, and if a guy is massering to the government, even on a matter that seems relatively minor, he is a rodef and chayav missah.

b said...

and Efrayim- I certainly don't need children and fools visiting this site. You are obviously neither. If you have any friends that you think might add something to our discussions, they would be welcome. I don't guarantee a gem every week, but occasionally something interesting does come up, either in the posts or in the comments.

Efrayim said...

Good, well-explained answer. Iy"h I'll come at least as long as I have bein hazmanim.

great unknown said...

There's a shu"t Chasam Sofer which deals with and thoroughly disposes of any possible heter for a Kohain to attend medical school based on future pikuach nefesh. Please enlighten me as to any gedolai poskim who do promulgate such a heter.

BTW, didn't Rahm's Rabbi also sign a letter in support of SSM? Obviously a godol with breite plaitzes.

great unknown said...

Which puts me in mind of,
Hog butcher for the world...
City of the breite plaitzes

b said...

I know the Chasam Sofer and of course Reb Moshe as well, that there's no chiyuv to learn medicine so that some day you will be able to save lives. By the way, the same thing would be mattir student autopsies, because only with that kind of hands on training will surgeons and physicians be able to save lives. We all know how that argument fared in Eretz Yisrael. 

The only posek I know that is mattir is the apocryphal posek at YU that so many MO doctors are someich on. Unbelievable what I've heard in the "name" of this alleged posek- wholesale chillul shabbos during rounds as a student and so forth.

But I still say that the concept of dichui on the basis of policy and planning is valid if applied by poskim of a certain stature. I realize that many of the reasons advanced for prohibiting chillul for getting a rebbe to daven or to get a kamei'a would apply here, too. That's a subject I'm working on, and will post on if I can find a parsha it's relevant to.

b said...

From a letter I received from Dr. Nachum J:

true , that is what rav moshe said
but he also told me, now that you will be a doctor , you HAVE to do that,
you don’t have the right to say that ” I’m better off in learning”
[ he also knew me well enough to know that I am NOT better off in learning]
so I work 30 hrs a week, that’s enough
a 60/40 split works fine for me

2 comments:

Michael said...

In terms of whether ספק פיקוח נפש is דוחה the obligation to save someone else's life, I saw a very interesting (העמק שאלה (קכט where the Netziv says that it's voluntary. It's on a She'eila cited by a Tosfos on Shabbos's Daf Yomi, which is how I came across it yesterday.

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