In the past 3 years, three landmark laws relating to bioethics have been passed in the Israeli Parliament. These are the Terminally Ill Patient Law in 2005, and the Organ Donation Law and the Brain Death/Respiratory Law in 2008. To reach consensus on these difficult issues in a multicultural society such as Israel was not an easy undertaking. Israel is a heterogeneous society composed of native-born Jewish and Muslim citizens and immigrants from the former Soviet Union, other Eastern European countries, Ethiopia, South America and English-speaking countries.

Conflict between secular and religious perspectives are at the root of most bioethical disputes in Israel. Israeli law, like Israeli society, is anchored in both Judaic and democratic values. Jewish law, while not the determining factor in Israeli legislation, invariably exerts an influence on both lawmakers and the courts. During the first three decades of Israel’s existence, there were serious conflicts between the largely secular medical establishment and the religious population, particularly over the issues of postmortems and abortion. The laws discussed here are the result of attempts to reach a reasonable consensus between fundamentally differing outlooks without destructive conflicts. There are also political implications of these disagreements, as the religious parties play an important role in Israel’s parliament and government. How Israel resolves these issues might be relevant for other countries struggling with similar disputes.

The basic Jewish perspective on bioethics is best summarised by the former chief rabbi of the UK, Lord Immanuel Jakobovits, who writes:

Now in Judaism we know of no intrinsic rights. Indeed there is no word for rights in the very language of the Hebrew Bible and of the classic sources of Jewish law. In the moral vocabulary of the Jewish discipline of life we speak of human duties, not of human rights, of obligations not entitlement. The Decalogue is a list of Ten Commandments not a bill of Human Rights. In the charity legislation of the Bible, for instance, it is the rich man who is commanded to support the poor, not the poor man who has the right to demand support from the rich. In Jewish law a doctor is obligated to come to the rescue of his stricken fellow-man and to perform any operation he considers essential for the life of the patient, even if the patient refuses his consent or prefers to die. Once again, the emphasis is on the physician’s responsibility to heal, to offer service, more than on the patient’s right to be treated.1

This emphasis on duty as opposed to rights is, of course, not unique to Judaism. Similar ideas are found in Muslim theology and in Protestant thought, where interpersonal obligations are based on an emulation of the covenant between God and man grounded in the Christian concept of agape or love.

This is in obvious contradistinction to a secular liberal perspective based on human rights, autonomy and unlimited human freedom. Israel, like many other countries, is composed of citizens who are passionate about one or another of the conflicting philosophies, and this state of affairs has the potential to lead to polarising debate and acrimonious dispute. The new laws are significant, for the most part, in avoiding this pitfall. In a multicultural medical environment, it is important for physicians to be familiar with the cultural and religious background of their patients. An analysis of these laws can be a springboard for comparing and contrasting how different societies grapple with these universal issues.

TERMINALLY ILL PATIENT LAW (2005)

The law was framed by a 59-member public advisory body representing many components of Israeli society.2 It consisted of healthcare providers, ethicists, philosophers, legal experts and clergy. The advisory body was divided into four working groups (medical/scientific, legal, ethical/philosophical and Jewish legal). The committee was chaired by Professor Avraham Steinberg, a pediatric neurologist, with expertise in medical ethics and Jewish law. The groups met intensively over a period of 2 years to reach compromise and consensus on many of the contentious ethical issues in end-of-life care. The committee made a successful effort to stay out of politics and out of the media and public eye during its deliberations, in order to reduce tension and external sources of conflict and to enable free exchange of opinions and ideas. After the proposed law by the committee became a governmental proposal, it was debated intensely in a parliamentary committee for over a year, and it was then opened for comments to the public at large.

Highlights of the law3

A terminally ill patient is defined as a patient who in the opinion of the responsible physician is expected to die within 6 months even if appropriate treatment is given. Patients are defined as terminally ill in their final stages of life if in the opinion of the responsible physician they are expected to die within 2 weeks even if appropriate treatment is given.

It is presumed that a person wishes to continue living unless there is a proof to the contrary beyond all doubts; if there is doubt, the option of life is to be favoured. However, in an emergency in the case of a terminally ill patient in the final stages of life whose attitude cannot be ascertained because of the emergency or who is non-competent, the doctor is permitted to refrain from life-saving medical treatment.

The presumption of the patient’s will to live is abandoned only in one of the following situations:

• for a competent patient—according to the patient’s last expressed wishes;

• for a non-competent patient—according to advance medical directives, directives of the patient’s surrogate, or, in their absence, testimony by a relative or friend regarding the patient’s wishes.

If a competent terminally ill patient requests medical treatment that in the opinion of the responsible physician is not justified, the team is obliged to accede to this request, except for treatment that on medical assessment is not expected to prolong the patient’s life or treatment that might cause significant harm to the patient.

Terminally ill patients who no longer desire to live and are competent shall not be given medical treatment unless they have given their specific consent. However, it is the medical team’s duty to make all efforts to persuade the patients to accept oxygen, food, drink, regular medications and palliative treatment in some form unless there are medical counterindications. As to non-competent terminally ill patients, it is forbidden to refrain from treatments directed at medical events other than their incurable condition—that is, routine treatments necessitated by intercurrent disorders, background disorders or pain. It is forbidden to withhold food and drink in any manner.

It is forbidden to interrupt a continuous medical treatment if the interruption is likely to bring about the death of the patient, be that patient competent or not. However, it is permitted to interrupt a discrete medical treatment (ie, a treatment given in discrete cycles with interruptions between cycles such as dialysis).

The responsible physician should ensure that everything is being done to relieve the pain and suffering of the terminally ill patient even if there is a reasonable chance that the palliative treatments will endanger the patient’s life.

Ethics committees shall be set up at the institutional and national level in accordance with this law. An institutional ethics committee shall be composed of four physicians, a nurse, social worker or clinical psychologist, an ethicist, a lawyer and a religious figure

The patient, the patient’s surrogate, a relative or guardian of an incompetent patient, a treating physician, the patient’s personal physician or a social worker may request the involvement of the ethics committee.

The law does not require care givers to provide medical treatment to a terminally ill patient or to refrain from doing so against their values, conscience or medical judgment, but they must transfer treatment to another care giver by a procedure prearranged with the hospital management.

Ethical considerations

The most controversial aspect of the law relates to the distinction made between withholding treatment (which is allowed) and withdrawing continuous treatment (which is not allowed).4 Most Western counties allow withdrawing as well as withholding of care. In its formulation, the committee attempted to strike a balance between respecting the autonomy of the patient and the sanctity of life. Respect for autonomy is recognised in the law by establishing the right of the patient to refuse treatment, while sanctity of life is the reason why active euthanasia is prohibited. This distinction is based on Jewish law, which, like many other religions, differentiates between acts of omission and acts of commission. However, the compromise reached was unacceptable to some members of the committee, who argued that there was no moral basis for the distinction between withholding and withdrawing treatment. In addition, the ban on withdrawing continuous treatment was felt by some to be an affront to patient autonomy. The problem is most relevant and acute with respect to withdrawal of ventilatory support.

One of the most pressing issues in contemporary medical ethics is the question of medical futility. Addressing this issue, the Manitoba College of Physicians and Surgeons recently released a new guideline which states that the final decision to withdraw life support lies with the physician, regardless of the wishes of the family or the patient.5 According to this 2008 guideline, the criterion for maintaining life support is the ability of the patients to recover to a level at which they are aware of themselves, their environment and their existence. If the family disagrees with this decision to terminate life support, the physician must consult with another physician. If the consulted physician agrees, treatment may be withdrawn over the objections of the patient, proxy or representative. Even if the minimum therapeutic goal is achievable but the physician concludes nevertheless that life-sustaining treatment should be withdrawn and obtains a consultant’s agreement, the physician may withdraw life support over the express opposition of the patient, proxy or representative, if the family is given 96 hours’ notice before withdrawal of life support. This position has been criticised for limiting patient autonomy from the opposite perspective of the Israeli law. In Manitoba, physicians may end life against the wishes of the patient; in Israel, physicians may extend life against the wishes of the patient.

The Israeli law stands in sharp contrast to this Canadian guideline. Not only may a physician not unilaterally decide when to withdraw care, but patients may also request treatment beyond what is being proposed by the physician unless it is deemed harmful or is not expected to extend life. This has the potential to create a situation where the patient’s family has a right to dictate care, but it remains to be seen how this clause of the law will be interpreted. The law also does not address the question of fair allocation of resources in a situation of limited healthcare budgets. Is it just that a family should demand expensive care for a dying patient when there are not enough healthcare dollars to provide potentially live-saving drugs to patients who need them?

ORGAN DONATION LAW (2008)

Israel, like most countries, has a dearth of organ donors and many patients on the transplant waiting list. The average waiting time for a cadaver kidney transplant is 5 years and is available only to patients on dialysis. In response to these concerns, in March 2008 the Organ Donation Law was passed in the Israeli Parliament. In the USA, Britain and Japan, it is illegal to sell or traffic in organs. The only country with a compensated, regulated and legal organ donation program is Iran.

Highlights of the law6

A person may not give or receive financial rewards for a living or cadaveric organ donation. However, a donor may receive compensation for financial losses incurred as direct result of the organ donation. These include

• the increased costs of health, life and disability insurance,

• psychological treatments, and

• loss of work days.

The compensation does not have to be equivalent for all donors. The compensation is to be paid by the government under the auspices of the National Transplant Center.

A potential donor must receive approval from an evaluation committee that is authorised by the National Transplant Center. The committee must be certain that:

• the potential donor is medically and psychologically fit to be a donor;

• the potential donor gave consent freely and with a clear mind, without any familial, social or monetary pressures;

• the potential donor gives informed consent for the medical procedures;

• the potential donor did not agree to be a donor in order to receive illegal financial rewards or in order to receive the legal financial compensation;

• the potential donor understands that a donor can renege on a promised donation at any time without any civil or legal penalties; and that

• the recipient is medically and psychologically fit for a transplant.

It is illegal to broker illegal transactions between potential donors and recipients.

An Israeli organisation can support transplants outside of Israel only if they are done in accordance with the local law and do not involve the sale of organs.

Ethical considerations

Underlying the law is the principle that the sale of organs is unethical and the belief that organ donation should be based on altruism. Over the past decade, there has been much debate on this difficult moral question, and the ethical arguments both pro and con have been discussed extensively. As mentioned previously, ethics in Israel is viewed from both a secular and religious perspective and this duality is at the root of much conflict and dispute in the field of bioethics. On most issues the religious viewpoint is more conservative than a secular one grounded in autonomy and human freedom. However, on the issue of compensation for organ donation the religious authorities were much more flexible. In the words of a leading Jewish medical ethicist,

There is no fundamental Jewish legal prohibition against financial compensation for tissue or organ donation. Almost all rabbinic authorities who expressed an opinion stated clearly that from a Jewish moral point of view there is nothing wrong in receiving reasonable compensation for an act of self-endangerment, whereby one still adequately fulfils the most important commandment—to save life.7

In order to avoid the moral issue of commodification of the human body, Jewish authorities label the financial reward as compensation for the donor’s pain and suffering as opposed to a payment for the organ.

However, there is a minority opinion in Jewish law which maintains that the donor’s motivation is crucial in determining the ethical acceptability of an act. This agent-based morality has much in common with the concept of virtue ethics put forward by Michael Slote, who writes that an

… act is morally acceptable if and only if it comes from virtuous motivation involving beneficence or caring (about the well being of others) or at least doesn’t come from bad or inferior motivation involving malice or indifference to others.8

This position was ultimately accepted by the framers of the new law, and in Israel rewarded organ donation and trafficking in organs remains illegal.

The law was immediately subject to criticism from two perspectives. There were those who felt that the amount of compensation (estimated to be US$5000) might be sufficient to encourage desperate people to donate, while others maintained that the law would not help to increase the number of kidney donors because of the lack of significant compensation for donors.9

BRAIN DEATH/RESPIRATORY LAW (2008)

One of the most pressing issues in Israeli bioethics is how to define death, and this might account for the low number of cadaveric transplants done in Israel. Many countries have defined death as a complete and irreversible cessation of brain activity consistent with the Harvard criteria, but until recently Israel has been reluctant to take this step.

Summary of the law10

The time of death of a person is determined to be when there is brain/respiratory death according to this law or cardiac/respiratory death.

The time of death is to be determined by two physicians whose credentials have been accepted by the committee.

Brain/respiratory death is determined on the following basis:

• the medical reason for the cessation of brain function is clearly known;

• there is clinical evidence of the absence of independent respiration;

• there is clinical evidence of complete and irreversible loss of brain function including brainstem function;

• a confirmatory examination (eg, brainstem auditory evoked response, transcranial Doppler, sensory evoked potential, computed tomography angiogram, magnetic resonance angiogram) has documented complete and irreversible loss of brain function including brainstem function;

• Medical conditions that could cause an error in the examinations listed above have been eliminated.

Notwithstanding what is written in the law, if the determination of death on the basis of brain/respiratory parameters violates the religious beliefs or world view of the patient according to information provided by the patient’s family, the patient should not be disconnected from mechanical ventilation, and supportive treatment should not be stopped until the patient’s heart has ceased beating.

Ethical considerations

Among the reasons why the cadaveric donation rate is very low in Israel is the public’s difficulty in accepting brain death, a difficulty that the current law attempted to rectify. There has been a decades-long controversy among primarily orthodox Jewish legal authorities over whether to accept brain death. In the USA, the most prominent orthodox decisor ruled:

… the definition [of death] called the Harvard criteria is considered as if the patient is decapitated because the brain has already been destroyed. And even if the heart is able to beat for a few days all the time the patient has no ability to breath independently he is considered dead.11

However, many Israeli rabbis to this day have not accepted this position.

A careful reading of the law reveals that it is not brain death per se that defines death, but brain death accompanied by the cessation of the ability to breathe independently, because even Jewish decisors who accept brain death do it on the basis of the cessation of respiratory drive, which is now known to be controlled by the brainstem. They argue, similarly to Paul Ramsey,12 that there is no need for a new definition of death. According to these decisors, the traditional Jewish definition of death has always been cessation of respiration, and what is new is the scientific knowledge that respiration is controlled by the brainstem. Many ethicists accept brain death because of their belief, in the words of Lisa Cahill, that “life fails to constitute a sufficient condition for the fulfilment of human value in either the presence of gross suffering or the absence of consciousness”.13 This position, however, has not been accepted by the many authorities in Israel who argue that the traditional definition has always included cardiac death in addition to absence of respiration. This religious opposition is the reason for the clause in the law that allows families to request continued treatment even if criteria for brain death have been met. Notwithstanding the law’s existence, Israel did not adopt one legal definition of death, but left it up to the individual as to how to define death.

CONCLUSIONS

The new Israeli laws demonstrate how a heterogeneous country is attempting to develop a bioethical consensus that would be acceptable to most of its citizens. Using learning from previous failed attempts, compromise, dialogue and work done in the absence of hysteria and publicity were crucial to the process. In all three laws, compromises were obtained between the secular and religious factions, from which an acceptable law was developed. Another factor that has helped bring the two establishments closer has been cooperation in reproductive technology and stem cell research. The Jewish tradition is generally very favourable towards these new treatment modalities and it is no accident that Israel has more in vitro fertilisation centres per capita than any other country. The Israeli experience is a model of a country working to synthesise an ancient tradition with the complexities of modern life and could serve as an example for other countries struggling with similar issues.