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Shabbat Parashat Yitro| 5764

Moreshet Shaul

From the works of Hagaon Harav Shaul Yisraeli zt”l - Organ Donations - Part VI - The Status of the Family - From Chavot Binyamin, siman 109
[This is the last installment of our translation of Rav Yisraeli’s article on organ donations. We again stress that those who are interested in the topic should see the article in the original, as well as the works of other poskim.]
 Let us deal with the status of the family of the deceased regarding permission or opposition to the organ transplants from his body. We have sources that demonstrate that a person’s family is harmed by the embarrassment and disgrace of their relative (e.g.- Bava Kama 86b, in regard to someone who was disgraced while sleeping and died; ibid. 93a; Sanhedrin 75a). We also have sources that members of the family are disgraced by a disgrace done to their deceased relative (see Tosafot, Sanhedrin 46b) and that relatives are commanded to deal with the burial. It is clear that even though the monetary obligation to pay for burial expenses is on the inheritors (and only when there is an inheritance), the obligation to be involved in the burial is on other relatives, as well.
Therefore, the relatives have a special status in regard to taking organs and other parts of the deceased in the case that these donations from the deceased are needed for transplantation, in a way that there is the saving of a life in Yisrael. (See Mishne Lamelech at the end of Hilchot Avel, on the mitzva to bury even a small piece of the deceased).
Because of this, the relatives can appear as parties to deliberations, and even to prevent use of the organs of the body of the deceased if he showed explicit opposition to it when still alive. However, in a case where the donor agreed to the donation, or even where there is a reasonable presumption that he would have agreed if had he been asked, because of the great importance of saving a life, there is no value in the opposition of the relatives.
Even if there is no way of knowing what the deceased would have wanted, the family is obligated to agree to use of the organs of the deceased. The mitzva to save lives overrides the mitzva to bury that applies to these organs (see Igrot Moshe YD II, 174, at the end of the responsum). The relatives should continue to deal with bringing the rest of the body to burial.
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This edition of Hemdat Yamim is
dedicated to the memory of R’ Meir  ben
Yechezkel Shraga Brachfeld o.b.m.

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