Will new legislation make it easier for bereaved Orthodox families to donate their loved ones' organs?
By NETTY C. GROSS01netty(photo credit: Schneider Hospital)Extract of an article in Issue 1, April 28, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Reportclick here.
Nobody knows how long it was until someone noticed her. When they did, on that fatal day in late February, Halleli Nechama Walfish, aged 18 months, was unconscious with a cord attached to a play device wrapped lethally around her neck. It happened in the toddler's preschool in the West Bank settlement of Tekoa, seven kilometers south of Bethlehem.
Halleli's father, Shlomo, a rabbinical student, grew up in the settlement. Her mother, Aviyah, is a university student, with an eye toward becoming an art therapist. They are both in their twenties and live a modern Orthodox lifestyle. Halleli was their first and only child.
The nursery teacher found the asphyxiated child and tried to resuscitate her. The school alerted Aviyah, who was doing errands in Jerusalem, and Shlomo, who was studying at the yeshiva on the settlement. Assisted by a local paramedic, he, too, tried to revive her. She was then sped by ambulance to the Shaare Zedek Medical Center in Jerusalem. Placed on a ventilator, she never awoke and was declared brain dead three weeks later. Sholom played his guitar at the toddler's pediatric intensive care unit bedside in the vain hope of stirring a reaction.
With the support and advice of their families, doctors and rabbis who entered the tragic picture - and after making up their own minds - Shlomo and Aviyah accepted the brain death diagnosis as proof of the termination of life and decided to donate her vital organs, giving four desperately ill children a new lease on life.
Transported on the evening of March 20 by special ambulance to Schneider's Children Hospital in Petah Tikvah, Halleli was removed from life support and a marathon organ transplantation got under way. Her heart was given to a 13-month-old girl, suffering from cardiac muscle disease, Israel's youngest heart transplant patient ever, and her liver went to an 18-month-old girl who had been en route to the airport with her parents for treatment in a Miami, Florida, hospital when they got the call from the hospital here.
Halleli's kidneys were harvested and transplanted into two children, ages 3 and 7, by coincidence both Arab citizens of Israel, suffering from kidney disease. Halleli was buried in Tekoa the next day.
Days later, the families of two young people who died unexpectedly - a soldier from Holon who perished when a friend's gun misfired and killed him and the sudden death from a lethal virus of an 18-year-old woman from Kfar Saba - also donated their organs for transplantation.
But getting organs for transplants in Israe is not usually as easy as all that. Israel has a low instance of organ donorship and Israelis frequently travel overseas to undergo transplants which cost millions; others die waiting for organs. Experts say a main reason for the acute organ shortage in Israel has been the lack of a coherent policy on transplants, which is fueled by religious and cultural reluctance in determining the moment of death, and a long-term dispute between doctors and rabbis on related issues.
Halleli's donations and the late-March events coincided with the passage of the new law on brain and respiratory death, initiated by Knesset Member Otniel Schneller (Kadima), which may help overcome the shortage of organs. The legislation is designed to regulate organ donations in compliance with Jewish religious law and to mitigate Orthodox opposition to the determination of brain death as actual death (a situation which is medically preferable for transplants over cardiac death, which haredim insist is actual death). The private bill had broad support, including that of the modern-Orthodox camp and, surprisingly, even the ultra-Orthodox Shas Sephardi party whose spiritual guru, Rabbi Ovadia Yosef, has long objected to "automatic transplantation" in the case of a brain death determination. Schneller was also able to overcome the 20-year dispute between the Chief Rabbinate and the Israel Medical Association over who had jurisdiction to determine death, doctors or rabbis, by devising an extraordinary dialogue process.
The legislation passed by 38 votes to 17, on March 24, 2008. The law goes into effect on May 1. Leading the opposition was Ashkenazi ultra-Orthodox United Torah Judaism (UTJ), which voted against the legislation. That camp's decision-makers and interpreters of Jewish religious law have argued (and continue to do so) that brain death is not death. MK Moshe Gafni (UTJ) told the Knesset on the day the law was passed: "A brain dead person is a living being." There were disagreements within UTJ. Knesset Member Avraham Ravitz, a colleague of Gafni's, who suffered from kidney disease for many years and received a kidney donation from a son in recent years, supports the new law.
But the ultra-Orthodox are split along the Sephardi-Ashkenazi divide. Shas Knesset Member Haim Amsallem told reporters that the new law was "historic" because it issues "a clear statement of the rabbis that the end of brain activity is death," and with that determination confirmed, transplanting the deceased's organs becomes a positive religious commandment.
Schneller, 56, tells The Report that his involvement with the determination of brain death and organ transplants began over a year and a half ago, somewhat by chance. Walking to Sabbath services in the synagogue of the West Bank settlement of Ma'ale Mikhmash where he lives, Schneller encountered a man in his forties who was in dire need of a new liver, which was unavailable. "He was yellow and dying," he recalls.
A liver was eventually located, the man underwent a transplant and he survived. But Schneller had become aware of the burgeoning crisis and decided to work on new legislation. Schneller said that he found "very stiff resistance" among much of the Israeli public to donate organs of loved ones that contrasts starkly with the "tremendous need and suffering." Schneller also observes that some modern-Orthodox and secular Israelis are resistant to organ donations and attributes this to the heretofore "lack of clarity" on the religious Jewish view of organ donations. "When it comes to death rituals, people become superstitious," he says.
An Orthodox Jew, Schneller realized that the first immediate problem was to circumvent Rabbi Yosef's objection to "automatic transplantation" procedures in the event of brain death. "He wanted the family to have the right to ask a rabbi," Schneller says. The second problem, he notes, was avoiding the long dispute between the Chief Rabbinate and the Israel Medical Association (IMA) regarding jurisdiction over the determination of death. "This was a very sensitive issue. Doctors refused to be subject to religious supervision," while rabbis countered that by keeping them out of the process, people might be transgressing the commandment "thou shall not murder." Schneller says his act "is a balance between two world views."
The new law's innovation is that it has found a way acceptable to both physicians and rabbis to determine brain death and the absence of breathing, ending the argument over who has the last say. Earlier this year, the Chief Rabbinate and the IMA reached an agreement on how to determine the moment of death, allowing the Knesset Health and Labor/Social Affairs committees to shape the bill for its final (third) Knesset reading. The law provides for brain death and the cessation of breathing to be determined by two authorized doctors, graduates of a short course to be devised by a newly created steering committee on which a mix of professionals, including rabbis, serve.
The committee to determine death, as stipulated by the law, will consist of three IMA-backed physicians; three Chief Rabbinate-recommended rabbis (one of whom must also be a physician); a medical ethicist; a philosopher, and a lawyer conversant in relevant matters and recommended by the Supreme Court. Of the last three participants, at least one must also be a physician, while another must be a non-Jewish member of another faith. Additionally, a series of confirmatory brain tests must be performed. Families still have the final say, however, whether to disconnect a loved one from a ventilator.
Extract of an article in Issue 1, April 28, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Reportclick here.
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