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.