[Speech] Deemed Consent, Multi Faith & Belief Perspectives

Rabbi Danny Rich
27 March 2019
Deemed Consent for Organ Donation Event, The Royal Free Hospital NHS Trust

I should perhaps declare an interest in that I have been an advocate of the ‘opt out’ proposal concerning organ donation as soon as I heard of it some years ago, and further, whilst I do not speak for the denomination of which I am the professional head or the Hospital or NHS Mental Health Trust which employ me as a chaplain, I speak as a Liberal Jew although I will try to reflect the wider Jewish view where possible.

I am pleased to report that there is a strong consensus of support throughout the Jewish world for the principle of organ donation from a deceased person to another for the saving – and indeed enhancing – of another life. The principle of pikuach nefesh: the saving of life tends to override virtually all prohibitions or matters of distaste, save only that one may not commit murder, sexual indiscretion or idolatry. As the Babylonian Talmud Pesachim 25a observes in the name of Rabbi Yochanan, ‘All modes of healing are permissible (perhaps obligatory), provided only that they do not involve murder, idolatry or incest.’

This principle takes precedence over ordinary obligations at the point of death including respect for the body as having been the vessel of the soul, the desirability to bury a corpse intact, and the requirement not to exploit or profit from death.

This does not mean that for a religious Jew – whether more traditional or more Liberal- the question is without religious complications. One obvious challenge is ‘the actual point of death’ dilemma. The moment of death is a disputed or unresolved matter in Jewish legal sources. Medical practitioners may, of course, have one or a number of different tests for measuring death including the detection of breathing, heartbeat, brain activity or the functioning of certain organs. The pivotal Jewish passage is in the Babylonian Talmud (Yoma 85a) in which there is a discussion about the requirement that, if a building collapses on the Sabbath and someone may be trapped in the rubble, one may breach the Sabbath requirements to try to save the victim. If the victim is found alive one extricates the victim and endeavours to save life but if the victim is dead then the body may be left until Shabbat has ended. The dilemma is how far one digs to determine whether the victim is dead or alive. Up to the nose or up to the heart? The main sign of life is in the nose in accord with Genesis 7:22: ‘All in whose nostrils is the breath of the spirit of life.’ It is from this text that debate (respiratory versus cardiac) occurs and differing conclusions are arrived at.1

The bigger challenge matter revolves around consent. In Jewish tradition it is generally accepted that an individual may do as they wish with their own body (excepting having a tattoo or causing oneself harm) so a clear expression of a desire to donate one’s organs would not ordinarily be rescinded by a family, even though it is accepted that the family becomes responsible for the body after the death of a Jew.

More difficult, of course, is where consent is assumed which is likely to apply more often in an-opt out system. As a Liberal Jew who affirms the philosophical idea that the highest capacity of a human being is to act both morally and rationally – and in a time when individual lives can be a saved by organ donation – it seems obvious that an assumption to donate can be made but I cannot assert such for the Jewish tradition as a whole. The nearest I can get to it is the Babylonian Talmud (again) (Pesachim 4b) which tells of a story where a friend dies and leaves a storehouse full of produce. Although the crops are but one day old, it is presumed that they have been appropriately tithed i.e. that the owner intended to (and presumably did) carry out the obligation of paying the appropriate dues.

Given the Jewish emphasis on the human desire and willingness to do good – to respond to the yetzer ha’tov (the good, selfless inclination) – rather than its opposite – I am content that, in the absence of a written record of objection, the health services proceed on the assumption that it was a patient’s intention to give another human being the possibility of life by the use of his or her organs.

In an ideal world, of course, a prospective donor would have given clear instructions, communicated that to any family, and expressed (where relevant) that, as a person of faith, any religious advisor has been involved in the decision. (I am troubled by the state’s invariable preference for involving religious leaders since I am clear what I want and the last thing I desire is one of my kindly colleagues conspiring with my children who, by the way, have also been made well aware of my strong views!) That it seems to me is both the moral and legal course: the individual is empowered and respected, the family is involved, and the decision is taken (where relevant) in the context of an acknowledgement of the role of faith.

Let me conclude tongue in cheek: the Hebrew Prophet Ezekiel(36:26) declares, ‘A new heart will I give you, a new spirit within you. I will remove the heart of stone from your flesh and I will give you a heart of flesh’. A diseased or non-functioning in an otherwise healthy person is a ‘heart of stone’ whereas a healthy organ in a deceased person has the potential to be a reviving ‘heart of flesh’. How ironic that humanity now possesses the ability to literally fulfil Ezekiel’s metaphor!

Each one of us is able to give so many gifts in our lives; what better than to give a gift of life at our death.
1 For a discussion of the different views see Steinberg, Avraham, Encyclopaedia of Jewish Medical Ethics (Jerusalem, 2003) 695-711

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