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Brain-dead ethics May 5, 2012

Posted by Ezra Resnick in Equality, Ethics, Law, Religion.

The rate of organ donation in Israel is lower than in other countries, partially because some religious authorities forbid harvesting organs from someone who is irreversibly brain dead until cardiac death (at which point organs are usually unfit for transplant). In an attempt to increase the organ supply, a new Israeli law gives priority to patients in line for transplant if they (or their families) are registered as donors. In Haaretz, David Shabtai cries foul:

Yes, physicians are necessary to diagnose death, utilizing advanced technologies and relying on their expertise to do so. But identifying those vital qualities that characterize life and differentiate a living person from a corpse is something that medicine cannot do. These questions demand a philosophical response, an ethical value judgment as to what it means to be alive. In modern society, these questions demand legislation that reflects the value judgments of the community it represents. In Judaism, this is a question of Jewish law, and as in many areas of Jewish law, reasonable people reach reasonably different conclusions.

I’m not sure Shabtai understands what “reasonable” means. It is not reasonable to base one’s medical definitions on the scriptural interpretations of rabbis (instead of scientific evidence), or to base one’s ethics on the presumed will of some absolute authority (instead of a concern for people’s well-being). Not all value judgments are equally valid or deserving of equal consideration from the legal system. Should a Christian Science community that denies life-saving medical treatment from its children be immune from prosecution?

Shabtai, however, goes on to condemn the new law as — you guessed it — religious discrimination:

Jewish law is full of conflicting opinions on virtually all issues, and determining the moment of death is no exception. While Jacob may follow the opinion that does not equate brain death with death, Isaac may adopt the opposite approach. Both Jacob and Isaac, ready to uphold the esteemed value of saving lives, may be willing to donate their organs after death even as they disagree on when that point begins. Both can and should be willing to help each other to the best of his abilities and according to his beliefs and conscience.

The new Israeli law, however, ranks Jacob and Isaac differently when it comes to eligibility for receiving organs, and this seems particularly unfair. Both are willing to do whatever they can to save lives, including postmortem organ donation. Both reject the idea of killing one person to save another. Both oppose removing organs from a living person, even to save a life. Because of current medical limitations, however, most organs are harvested from brain-dead patients – patients whom Isaac identifies as dead but Jacob considers alive. Isaac therefore signs up as a potential organ donor, while Jacob cannot. It is not Jacob’s unwillingness to donate that is at issue, but rather his religious convictions regarding the particular circumstances by which organs are most often harvested.

The incentive offered in the new law, by pushing Isaac toward the top of the waiting list, unfairly punishes Jacob for his religious views. While nobly intentioned as a means of increasing the organ supply, practically this new law institutionalizes religious discrimination in medical treatment. Such a notion flies in the face of the Hippocratic tradition that has guided medical practice since its inception. Treating patients differently based on their religious convictions is something that good people should not tolerate.

But patients are not being treated differently based on their religion: preferential treatment is given to anyone registered as an organ donor, which is a perfectly relevant criterion that anyone can meet. Anyone who chooses not to contribute to the societal effort, for whatever reason, faces the same consequences. For comparison, Israel also has laws granting various benefits to military veterans and reservists — do those laws unfairly discriminate against people who didn’t serve in the military for religious reasons? Refusing to grant people special privileges due to their religious beliefs is not discrimination — in fact, it’s the opposite of discrimination.

By the way, why are those religious people who refuse to be donors — because they believe it’s wrong to harvest organs before cardiac death — nevertheless happy to accept such organs harvested from others? That sounds hypocritical to me, but I guess it’s “reasonable” in Shabtai’s world.

If only more people made good use of their brains while they’re still alive.

(via Religion and State in Israel)


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