Friday, January 29, 2010

Defiling the Dead and Autopsies

Defiling the Dead
Rabbi Akiva had said that we cannot examine the corpse to determine if he was a minor or an adult at the time of his death, for it will be defiling the dead.

Reb Yosef Engel in Gilyonei HaShas writes that he did not find a source to the prohibition against defiling a corpse. Perhaps, he says, it is from the verse which teaches us that we are not permitted to let a dead man hang on a tree overnight. From there we see that a corpse is supposed to be treated with honor. Any disrespect to the dead will be a violation of this verse.

He also suggests that since there is a positive commandment to bury the dead – if one will be examining the corpse, even while buried, nevertheless, during the defilement it is regarded as if he isn’t buried, and one would be transgressing the positive mitzvah of burial.


Autopsies: How and When?

By: Meoros HaDaf HaYomi

Physicians have always wanted to gain medical and anatomical knowledge from examining the bodies of those who expired from various diseases. We are forbidden to desecrate the departed, but, on the other hand, we want to use any potential medical information to save the lives of the similarly afflicted. All the halachic authorities treating the subject agreed on the clear principle that the Torah forbids preserving any organ from a Jewish body and thus delaying its burial or desecrating a Jewish body in any manner, even by the otherwise usual means of an autopsy to advance medical knowledge or to investigate cause of death. Autopsies are included in learning the medical profession, but the Torah strictly forbids such operations on Jewish bodies. Alternatively, medical information may be gained from autopsies on the cadavers of non-Jews who agreed to such while alive.

A Jew died in a hospital from a certain disease. Another Jew in same ward was diagnosed as terminally ill with the same malaise and the medical staff want to autopsy the body to discover the best way to operate on the lingering patient and, hopefully, save his life. As an introduction to this topic, we cite the Noda BiYehudah who warned that “even gentile doctors perform experiments only by operating on those executed for crimes or on those who agreed to such while alive” (Responsa, 2nd edition, Y.D. 210). In that era, then, every doctor was exceedingly careful about autopsies but, nonetheless, halachic authorities expressed their suspicion that granting permission in some case would invite a wave of desecration and dishonor of the departed. As usual, we do not intend to present the practical halachah, but merely to address current topics. The following discussion therefore does not include all the opinions and their rationale, but is limited to the two major approaches of the leading poskim, and we start with our sugya, which forms a basis for a fundamental difference of opinions.

The great Tanna Rabbi Akiva lived in Bnei Brak and already then the halachah was a guiding beacon for residents of the town. The Gemora recounts that some people asked him to allow them to disinter their relative to ascertain if he was halachically an adult at the time of his death. Some merchants, on the other hand, claimed that he was grown up when he sold them land he had inherited from his father. The halachah is that only a mature adult is considered sufficiently experienced to sell inherited land and the heirs wanted to exhume the deceased to prove that he was not halachically mature at his death. They would then be able to invalidate the sale of the land and claim it for themselves. Rabbi Akiva forbade them to do so, as one must not desecrate the deceased and, moreover, anatomical features are liable to change after death, making it impossible to pinpoint the person’s age. What, though, is Rabbi Akiva’s source for the prohibition on desecrating the deceased? According to Responsa Binyan Tziyon (171), Rabbi Akiva meant that we must never desecrate the dead, as such acts are regarded as robbing them and, if so, we are not allowed to do so even to save a life. Although we must ignore almost all prohibitions to save a life, which is a mitzvah in itself, the dead are exempt from mitzvos and we must not desecrate them, causing them great pain. Moreover, even a person in danger may not save his life by stealing, if he will never be able to return the theft (see Bava Kamma 60b and Rashi and Tosfos ibid) In our case, then, the doctors would be forbidden to autopsy the deceased in an attempt to save the terminally ill patient. Still, the Noda BiYehudah (2nd edition, Y.D. 210) and the Chasam Sofer (Responsa, Y.D. 336) hold that Rabbi Akiva did not forbid making use of the deceased’s remains to save a life. The relatives who came to him, after all, wanted to clarify a matter of property. As for saving lives, though, the prohibition on desecrating the dead is like any other prohibition and must be ignored and “it is almost certain” that there is no transgression involved.