[Avodah] Is there any issur here al pi halacha?

[kennethgmiller at juno.com]

R' Joseph Kaplan quoted "R'n IE": [That's Rebbetzin Ilana Eltzadfun. -micha]
> The idea is really scary and makes me very uncomfortable, but
> it's hard to make a moral judgment given that everyone comes out
> ahead - the recipient gets a kidney and the donor gets badly
> needed money.

RJK then commented:
> Not everybody.  The poor person whose condition is worse than
> the rich person's but doesn't get the kidney and dies comes
> out way behind.

It seems to me that RJK's comment is accurate only if the poor person
could have gotten that kidney through other channels. But if the rich
person got a kidney which would not have been available any way other
than via payment, then the poor person could not have gotten it any way.

Phrased another way: RJK's comment presumes a fixed number of available
kidneys. But if market forces are allowed to come into play, it can
increase the number of available kidneys, because people who had been
unwilling to donate them, might now be willing to sell them. This
is indeed good for the donor/seller, and good for the richman/buyer,
without being bad for the poor man.

BUT!!! Lest anyone think I'm endorsing these organ sales, let's also be
honest enough to admit that there will indeed be some people who were
previously willing to donate their kidney to the patient who needs it
the most, but will now change their mind and offer it only to the highest
bidder. I do NOT deny them the right to do so, but let's all admit that
this scenario would indeed be bad for the poor man.

(And of course, as I wrote before, I am also fearful that market forces
could exert undue pressure on some people to sell their kidneys against
their best interests. I think that a ban on organ sales is a surefire way
to protect such people. But I must concede that over the past few days
my thoughts have softened, and I can see the view of those who say that
such a total ban is too draconian, and squeezes an already insufficient
supply of kidneys.)



R' Micha Berger wrote:
> See RMF's (IM CM 2:73.2) and RSZA's (Nishmat Avraham YD pg 156)
> where they each say that if two patients arrive at the same
> time, the one with a better chance at chayei olam goes first;
> but if you are already caring for someone capable only of chayei
> sha'ah, you can't stop treating him to make time for the chayei
> olam. When RSZA says that the mishnah in Horios can't be
> implemented today (as RJR cited), he doesn't mean that therefore
> there are no halakhos of triage.

R' Joel Rich commented:
> the quote above being a classic example (I'd ask anyone with
> connections to see if they can get any non-YU gedolim to comment)
> as to what exactly did R'SZA mean - is it not applicable today or
> is it applicable but no one will listen.....

> It seems some/most current  poskim treat horiyot priorities as a
> tertiary tie breaker with almost no application (i.e. if both
> cholim are equally sick and equally distant from the dr\ and we
> know they keep the same number of mitzvot......)  some interpret
> the whole water bottle thing as chaye shah vs. olam)

> IMHO the minhag haolam (and poskim but I can't say which came
> first), is not what one would have expected from the primary
> sources,

My guess is that RMB was looking at the original Hebrew version of Nishmat
Avraham. The reason I say that is because he refers to page 156. In my
English edition, from 2003, the discussion of Triage fills several pages,
from 181 to 185.

RMB wrote that according to Rav Shlomo Zalman Auerbach, "the mishnah in
Horios can't be implemented today", but he doesn't explain WHY it can't
be implemented today.

RJR is explicitly unsure about this: "is it not applicable today or is
it applicable but no one will listen....."

I would like to bring some quotes from the English version of Nishmat
Avraham, and I hope they will clarify RSZA's intention.

Nishmat Avraham, vol 2, pg 182, col 2, near top:

"The Igrot Moshe continues that although with regard to the rules of
precedence we should follow the Mishnah, nevertheless it is difficult
in practice to do so without much thought and study. Rav Auerbach zt"l
[Minchat Shlomo Tanina 86:1] also writes that nowadays it is very
difficult to follow the rules of the Mishnah."

Nishmat Avraham, vol 2, pg 183, from bottom of col 1 to top of col 2:

"The Igrot Moshe, already quoted above, writes that although with
regard to the rules of precedence we should follow what the Mishnah,
nevertheless, in practice, it is difficult to do so without much thought
and study. Rav Auerbach zt"l wrote, [Assia 59-60, Iyar 5757 pg 48]
quoting the Pri Megadim,[beginning of Siman 328 in Mishbetzot Zahav]
that if one of the two patients is definitely dangerously ill and the
other only possibly so, and only one can be treated, the patient who is
definitely dangerously ill takes precedence over the one who is only
possibly so. Therefore the main criteria that must be considered are
the degree of danger to the patient's life and the chances of saving
him. The patient's age is of no consequence whatsoever. See the Mishnah
and Gemara at the end of tractate Horayot which gives the priorities of
who comes first in being freed from captivity and with regard to other
issues. See, however, above that both the Igrot Moshe and Rav Auerbach
zt"l write that nowadays it is extremely difficult to follow this ruling."

Nishmat Avraham, vol 2, pg 183, col 2, near bottom:

"How does arriving first acquire for one the right to precedence in terms
of Halachah? ... ... I found that Rav Zilberstein shlita also asks what
standing the concept of "in turn" has in Halacha?" -- This is followed
by two pages of shakla v'tarya on the subject.

It seems to me, based on the Nishmat Avraham, that RSZA would reject
RJR's suggestion that Horiyos is "not applicable today". He would also
reject the suggestion that it is "applicable but no one will listen",
but this is a bit closer to the answer we're looking for.

It's not that no one will listen to Horiyos, but that it is too difficult
to do so. Look at those quotes again; each of the two quotes contains
the word "difficult" twice. It is already difficult enough to give each
patient a proper diagnosis in a limited amount of time. To give these
other tasks to the physician as well just isn't fair.

No one disputes Horiyos. It's just too difficult and we've given up on
it. That is my attempt at explaining what Rav Auerbach meant.

But honesty requires me to offer the following rebuttal:

Please note that all of the above quotes from Nishmat Avraham were from
a section titled "Triage". It all makes perfect sense for those in the
emergency room, or any other "front line" situation. And an argument
could be made that it also applies to a physician making his rounds in
the hospital, trying to give each patient the best care that he can.

But I cannot see applying any of that to a committee whose task is the
allocation of limited resources -- in this case, kidneys. There is a
committee somewhere, which meets at regular intervals, and they have a
large pile of case histories of sick and dying people who desperately
need kidneys. But there aren't enough kidneys for them all, and they
have the unenviable job of figuring out who needs them the most, by
whichever criteria they have.

The guys in the Hatzala ambulance don't have the time to ask the
accident victims, "Are you a kohen?" But the people in the Transplant
Selection Committee DO have the time to investigate these things. Indeed,
investigating anything which could be relevant to their prioritization
criteria is *exactly* what they're supposed to do.

So... Are they asking, or not? And if not, then *why* not?

And so the questions of RMB and RJR still stand.

Akiva Miller