Organ Sales and the Value of Life: A Halakhic Framework

Last week we reviewed the background concerning the case for legalizing the sale of organs, and we inquired as to how Jewish law would respond to the question. We noted that at first glance halakha would favor essentially any measure that results in saving human life. This week, we will examine a sugya that possibly challenges the assumption that pikuach nefesh holds universal sway.

The Gemara (Bava Kama 60b) analyzes an incident concerning King David’s flight from the Philistines, in which he asked his assistants whether or not they could fetch him some food from a pit in Beit Lechem. According to one interpretation in the Gemara, David was inquiring whether it is permissible for a person to save himself with his friend’s money. The Gemara goes on to explain that while as a general matter “it is prohibited for a person to save himself with his friend’s money,” David was exceptional because a king can exercise eminent domain and seize another’s property.

On its face, then, the Gemara seems to assert a far-reaching halakhic principle: one may not save oneself through an act of theft. This position seems jarring to say the least, as it would appear to contradict outright the axiom that potential loss of life overrides all areas of the Torah aside from the three cardinal sins of idolatry, murder, and illicit relations.

Disturbed by the Gemara’s seemingly radical import, numerous rishonim blunted its sharp edge. Tosafot (ibid. s.v. mahu) maintains that David’s intention was merely to inquire whether he was liable to repay the damages. It is a given, on this reading, that David was permitted to take the food; his question was only in regard to compensation. Rashba (s.v. mahu) and Rosh follow Tosafot’s view, and Rambam (Hilchot Chovel u-Mazik 8:13) appears to rule accordingly.

Rashi (s.v. ve-yatzilah) and Ra'avad (Bava Kama 117b s.v. u-matzil), however, appear to accept the face reading of the Gemara. Such an approach, while finding support in the literal reading of the sugya, is perplexing. In the words of R. Judah Rosanes (Parshat Derakhim 19): “And this matter is bewildering in my eyes. For how is it possible that in a situation of life endangerment one may not save his life with that of his friend?”

Intriguingly, some acharonim rally in Rashi’s defense. In particular, R. Yaakov Ettlinger, author of Binyan Tziyon, rules in accordance with Rashi’s view (#167) and explains the logic underlying his position (#170). Invoking the Gemara (Yoma 85b) which derives the law of pikuach nefesh from the sacrificial service in the Beit Hamikdash – just as the sacrificial service overrides Shabbat so too does human life – Binyan Tziyon observes that no one would conceive of arguing that it is permissible to steal in order to perform the avodah in the Temple. By the same token, concludes R. Ettlinger, Rashi maintains that one may not steal to save a life.

Despite this novel defense of Rashi, most authorities – and the practical halakha – follow Tosafot (cf. Pitchei Teshuvah to Choshen Mishpat 28 and Yabia Omer C.M. 4:6). Despite its logical simplicity, however, this position must contend with the Gemara’s terminology. If King David was in fact permitted to steal in order to save a life, why does the Gemara use the term prohibited? To say the Gemara is misleading is to put it mildly.

To the best of my knowledge, this question was first posed to Rashba (Responsa 4:17). In seeking to resolve the problem, Rashba radically rereads the Gemara to be invoking the term “assur” not in reference to our question of pikuach nefesh but to an entirely different scenario related to King David discussed earlier on in the Gemara. Rashba’s reading, however, seems strained, leaving later commentators to search for additional resolutions.

Rav Yosef Engel (Gilyonei Hashas to Bava Kama 60b) suggests an incisive defense of Tosafot. King David meant to inquire as to the nature of the permissibility of the act of taking the food: was this not an act of theft at all (“hutrah” in Talmudic parlance), or was it an act of stealing, albeit one that was permissible due to exigent circumstances (“dechuya”). If the former, he would be exempted from payment; if the latter he would be liable. The Gemara’s conclusion is that the act of taking the food remained a ma’aseh g’neiva, and therefore – as Tosafot emphasizes – David was liable to repay the food’s value.

A striking conclusion emerges from R. Engel's analysis that carries potentially wide-ranging contemporary ramifications. By portraying King David – had he not been a king – as having performed an act of halakhic theft, the Gemara shares a fundamental insight regarding one who saves a life by stealing: while such an act is technically permissible, it remains a necessary evil. And, to push the argument a step further, whereas in an individual circumstance such as that of King David there is no prohibition, when it comes to setting community policy the situation may be different. The fact that this remains a ma’aseh aveira and, strikingly, that the Gemara goes out of its way to stress this point despite its permissiblity according to the majority view, conveys a crucial message: the argument that we must always privilege loss of life over theft and related ethical considerations is overly simplistic and, in some instances, flat-out wrong.

How does this relate to the question of organ sales? We should first note that it is not identical to that of our Gemara: in regard to selling a kidney, at issue is not an act of theft but the intense pressure placed upon an indigent person to sell an organ. It would therefore be incorrect to fully compare the question of halakha’s attitude toward the sale of an organ to one who saves his life by way of g’neiva. Still, I would argue that the larger message of the Gemara remains pertinent. Although priority is given to saving lives, we ought not discount the halakhic and ethical factors on the other side of the equation. Saving one’s life with a friend’s money is not a hutrah but a dechuya. Similarly, we must be extremely cautious before endorsing a system that treats body parts as objects to be sold in the marketplace, and that strongly incentivizes the needy to participate in that commerce.

In the end, it’s hard to prove one way or the other on the basis of our sugya. Still, the message is loud and clear. While saving human life is of inestimable value, other considerations must be brought to bear as well. Only after carefully balancing the halakhic mandate of pikuach nefesh with the ethical factors on the other side of the equation can halakha endorse a practice such as organ sale. Only then will our halakhic policy be consistent with the larger significance of the dictum, assur le-hatzil atzmo be-mamon chaveiro.