When is Brain Death Not Death

BY MIRIAM THORNE

Israel, a first-world and technologically advanced country, has surprisingly low rates of organ donation. In 2007, only about 8% of Israelis were registered donors, compared to the 30-40% in most Western countries. Lawmakers and religious leaders have been working to increase the rate of organ donation, but efforts are particularly complicated in Israel because of religious concerns regarding brain death as the definition of death. In 2008, the Knesset (Israeli Congress) passed two laws that changed the way that organ donation operates in Israel.

The Organ Transplant Act of 2008 created a priority system in which those willing to donate an organ get priority to receive one if they ever require a transplant. One goal of the priority system was to increase the number of organs donated by providing an incentive to donate. But lawmakers were also motivated by frustration with Haredi Jews, who happily accept organs but refuse to donate them. Traditionally, Jewish law has prescribed that cardiac death defines death and that organ procurement from a brain-dead patient is murder. Many Jews, even Orthodox Jews, have, in recent years, followed a different interpretation of the law and accepted brain-death as death. Still, numerous Orthodox Rabbis and communities—not only Haredi—continue to believe that they cannot, according to the written law, elect to be cadaveric organ donors. Their refusal to donate does not reflect an ideological unwillingness to be a donor. On the contrary, Jewish law holds that the greatest deed is to save a life and that almost any other law must be broken to do so. But, under this law, one cannot kill a person to save another; according to certain Orthodox communities, cadaveric organ donation would involve just that.

Critics of the Organ Transplant Act do not oppose efforts to increase donated organs. But they generally find that the priority system does so in an unethical way. Israel is one of few countries that include non-medical criteria in its distribution of donated organs. Whenever non-medical criteria are considered, there is risk that groups of people will be systematically disadvantaged. For example, a market system for organs discriminates against the poor. Under this priority system, those who do not donate are discriminated against.

Defenders of the priority system argue that the system is not discriminatory because those who do not donate choose not to and everyone has that choice. But claiming that anyone can choose to donate disregards the possibility that an individual might have a legitimate set of values or beliefs that prevents him or her from donating. Just as a poor person has legitimate reasons not to pay for an organ s/he cannot afford, a religious person can have deeply-held beliefs that prevent him or her from donating. Who gets to say what constitutes a ‘legitimate’ reason not to donate? Who has the authority to say that no legitimate reasons exist? Is the Israeli government really in such a position to judge certain religious values? By including participation as a donor in the protocol for assessing how organs are distributed, lawmakers make claims to moral authority, judging people’s ethical and religious codes.

Similarly, because those who donate organs are more likely to receive them, donors are, in effect, deemed to have a greater right to life than non-donors. This assumes that people who donate are better people and more deserving to live, and that those who do not have no justifiable, respectable reason—implying that they refrain from donation because they are morally inferior. The priority system explains willingness to donate an organ by moral character alone.

Lawmakers did not only theoretically delegitimize the Haredi reason for refusing to donate but they also tried to eliminate it completely through a different law. Also in 2008, lawmakers, clinicians, and religious leaders collaborated to create and enact the Brain-Respiratory Death Act, which established that brain death defines death. Under the Brain-Respiratory Death Act, one cannot validly claim that a person does not die until the heart stops. An immediate effect of this law was that the Haredi reasoning for abstaining from donation became legally invalid.

The first question to ask about the Brain-Respiratory Death Act is whether all Jews really accept the interpretation of the text that was made by the Chief Rabbinate and then codified in the law. Although the Chief Rabbinate collaborated with lawmakers and supported the determination of brain death as death, numerous Jewish sects still maintain that cardiac death is death. For the Chief Rabbinate to support a single definition of death knowing that it would not be accepted by all Jews is troubling. And for it to have enormous life and death consequences because of the Organ Transplant Act is even more problematic because it undermines the role and legitimacy of the Chief Rabbinate as a protector and representative of all Jews. To declare a single definition of death erases the heterogeneity of religious, philosophical, ideological conceptions of death and dying. It also simplifies the conception of life and death to medical terms. In an op-ed in Haaretz, Rabbi David Shabtai says, “Whether brain death should qualify as death is not a medical question, but depends on philosophical, moral and religious values and ethics.” For the Brain-Respiratory Death Act to simplify death as a medical condition or even a judgment based on a single line in a religious text is reductionist and dismisses alternative ways of thinking and conceptions of life.

In examining the laws and their effects, it is perhaps most important to consider how authority was used and produced during the passage of the two laws. Medical representatives were quite powerful in creating the priority system and establishing a national definition of death. Religious authorities also influenced the lawmaking process and the Chief Rabbinate approved the law. But only certain, intentional, religious authorities actually had power. The Haredi Jews, who held the minority position on the organ donation issue, were either not considered in the lawmaking process or were disregarded. The way in which the law was presented, as an inclusive and collaborative process with religious authorities, masked the exclusion of diverse representation within religion.

In the face of criticism, lawmakers made certain changes to the laws but they maintained the laws’ structures, for the most part. In the years following the enactment of the two laws, Israel did see increases in organ donor rates and in the actual numbers of organs donated. Some might argue that the laws’ successes in this area warrant its failure to represent and treat all Israelis equally. But an acceptance of a discriminatory system reveals a great failure of the larger society and government to represent its citizens and protect them politically.

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KEY TERMS 

Organ Donation is the transplantation of procured organs from one body to another. Expendable organs can be procured from living donors, but all other vital organs must been taken from a dead patient. Current technology requires that the deceased donors’ heart still be beating for the organs to be viable; doctors procure organs when the patient’s brain is dead but heart is alive.

The Organ Transplant Act, 2008, created a point system that gave priority on the organ transplant list to those willing to donate organs.

The Brain-Respiratory Death Act, 2008, legally defined brain-death as death; current technology only allows cadaveric organ procurement from patients who are brain-dead.

Orthodox Judaism is a conservative sect of Judaism whose members closely follow the written and oral laws of the Torah.

Haredi Judaism, also known as ultra-orthodox, practice the most conservative form of Judaism and follow Jewish law most strictly.