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The Israeli medical and rabbinical establishments, which have long disagreed on whether "brain death" or the cessation of heartbeat constitutes a "death" that can allow the taking of organs for transplant, are inching closer to a compromise in view of the shortage of life-saving donor organs.
A private member's bill proposed by Kadima MK Otniel Schneller, due to be discussed by the Ministerial Committee on Legislation next week, would establish a steering committee of doctors, rabbis and legal experts that would set down a syllabus for interested doctors to study that would qualify them to determine the moment of death. The bill is intended to encourage organ donation by allaying fears of religious Jews and others that their organs, or those of their loved ones, might be "harvested" before their death.
Most organs taken from those whose heart has stopped beating are unusable or less successful than those taken from the bodies of people whose lower-brain function has ceased - constituting brain death - but whose heart continues pumping.
"Schneller's proposal is an excellent way to reduce public fears and increase trust in doctors who determine the moment of death," Prof. Jonathan Halevy, director-general of Jerusalem's Shaare Zedek Medical Center, told The Jerusalem Post Wednesday night. Halevy, a modern Orthodox Jew and former chairman of Israel Transplant (the national organ transplant coordination center), said he would do everything he could to help get the bill passed.
Although many modern Orthodox, and even some haredi rabbis, accept brain death as the criteria for "death," most haredi rabbinical arbiters do not accept this definition. In 1984, the Chief Rabbinate accepted brain death as the determining factor if a religiously observant doctor was involved in deciding the moment of death. But this criterion met with opposition from the Israel Medical Association (IMA), which insisted that any licensed physician, whatever his or her beliefs, is qualified to determine death.
Surveys conducted by ADI/Israel Transplant to understand why people refuse to register as potential organ donors have revealed that many refuse because they fear doctors who determine the moment of death would bend the rules to remove rare organs from still-living patients to save others' lives.
Although the state rabbinate has been nearly taken over by haredi rabbis, rather than the more liberal national religious (Zionist) rabbis, the Chief Rabbinate has never withdrawn its approval for the recognition of brain death.
Schneller maintains that his bill, if passed by the Knesset, would be a "significant breakthrough" for organ transplantation. The shortage of available organs leads to the deaths of hundreds of people a year, and some people are forced to purchase organs illegally abroad or seek out a legal donation for large sums.
The IMA has so far opposed Schneller's bill on the grounds that it would bring about "rabbinical supervision" of the determination of death.
"Doctors believe that one must take extreme care not to put medicine under the aegis of religion," the IMA said this week in a statement. "At the same time, we welcome any progress between our views and those of the rabbinate."
According to Halevy, the Schneller bill - which is being supported by MK Arye Eldad (National Union/NRP), who is a physician - bypasses the IMA's objections, as doctors will determine the moment of death without rabbinical intervention. He estimated that if the bill passes into law, the number of ADI registrants would rise by 10 percent to 20%.
"It would calm potential donors in the entire population, not just the religious, and increase trust in doctors without harming their autonomy," he said. "It's not a magic solution, but it will advance organ donation. It will boost the national consensus."
Halevy said he did not expect many haredim to register as donors if the law passed, and that some people use the lack of supervision of doctors as an "excuse" for not agreeing to register, obscuring other reasons for their refusal. He said it was easier to get Muslims to register as potential donors than Jews.
When Halevy was Israel transplant chairman he pushed through the institution of an optional box to be checked on ADI donor cards that would allow an organ to be taken only if a clergyman chosen by the family is consulted. This option, he said, led to tens of thousands more Israelis registering as potential organ donors. Today there are about half a million registered, compared to only a few tens of thousands when the Chief Rabbinate issued its acceptance of "brain death" 23 years ago.
If the bill is passed, Halevy said, a workshop of a day or two could be held at one of the hospitals or medical schools and run by the IMA. Those who want to get training can study the relevant anatomical, technological, physiological, halachic, social and other aspects of determining the moment of death as set down by the steering committee.
"Most doctors don't have to undergo such training," he said. "You need only a small number in each hospital and on ambulances."
Currently, every medical school graduate has to take a short advanced trauma life (ATLS) course to learn a simple systematic approach to the management of trauma patients through interactive tutorials and skills teaching.
"Why does the IMA oppose having a workshop for doctors to determine the moment of death based on a syllabus written by a committee of public representatives, including rabbis?" Halevy said. "There are rabbis and public representatives on other bodies, such as the Helsinki committees on human medical experimentation."