Introduction– current situation in N.S.

Currently peotential organ donors in Nova Scotia are identified by opt-in option when they register for their health card. In addition, potential donors are identified by discussion with next of kin and physicians in critical care facilities around the province.

as reported in Globe and Mail, April 24, 2014 (Kelly Grant): “The Nova Scotia government is considering becoming the first province to make organ donation automatic unless people opt out before they die, a proposal that could reignite the debate about whether presumed consent laws should be enacted elsewhere to help the thousands of Canadians awaiting a transplant.

Health Minister Leo Glavine said he is preparing to ask the province’s deputy health minister to lead an online public consultation asking Nova Scotians whether they would support a “reverse onus” law that would compel people to register their opposition if they do not want their organs harvested after death… Canada had 15.5 deceased donors per million in 2012, according to a report released in February by the Canadian Institute for Health Information (CIHI.)”

Why even bother?

Saving a person’s life is clearly a big command in the Jewish Bible, as it is said: “You shall not stand by [the shedding of] your fellow’s blood. I am the G-d” (Vayikra 19:15)

Maimonides (Avoda Zara 10:1, Meiree) states that a person must save other’s lives, whether they are Jewish or not Jewish.

“And G-d created man in His image; in the image of G-d He created him..” (Bereshit 1:27)

Can you kill to save a life?!

A central matter is that a human beings life would not be measured in terms of personal quantity – “how much time do I have left?” nor by the standard quality measurement we’re used to i.e. how much pleasure, suffering, Q.O.L (Quality Of Life) we can absorb. It doesn’t even end with one’s accomplishments, as we don’t know what G-d destined us to accomplish in this world. – Life is an absolute value!

The ramification I am pointing at is that saving one’s life, by taking even one second from another, is prohibited. Even though we may save the life of a beautiful baby while taking a second from a suffering old man – there is no way we can allow it.

When does a person’s status changes to ‘dead’?

The point of declaring a person’s death therefore is fundamental. A second before, we cannot use his organs to save others. When is the second after?

“Everything that had the breath of the spirit of life in its nostrils, of all that were on the dry land, died” (Genesis 7:22). The rabbis in the Talmud ordains, that a person is declared “Dead”, when her/his breathing stops completely. If you’re alone, with no other equipment, you can take a feather, put it close to the person’s nostrils, and if it doesn’t move for couple of minutes, there is no life there. (Talmud Yoma 83-85).

Today, thank goodness, we have better equipment than feathers. Therefore we are obligated to make sure as much as possible today, that the person is really dead.

Are we dead when the brain stops or the heart?

A central question is whether a brain-stem dead patient, whose heart continues to beat with the help of a ventilator, is considered dead or alive. If Jewish law considers this person to be ‘alive’, then removal of organs would be forbidden because you would be ‘killing’ the donor. From a medical viewpoint, this makes it difficult to transplant organs because once the heart stops pumping oxygenated blood to other organs, they begin to deteriorate and die. These organs are typically no longer viable for transplant. (This is the opinion of Rav Elyashiv: The breath that stops is just an indicator that the heart is also dead).

And yet death can be confirmed, even in the presence of a beating heart. This was shown by cutting off a head of an animal, while maintaining the heart artificially beating. – A certain death, and with yet a useful heart. (Igrot Moshe yo”d, 146. Israel chief rabbinate 1986 acc. to Rav Fainstein). It is a matter of a fact that organs can remain alive with the mechanical artificial help of a ventilator supplying the organs with oxygen, although the person is non-arguably dead. Life is not determined by the heart, you are alive only so long as the brain continues to function: brain death is death.

What is being done today?

Death can be determined at the bedside by confirming absence of brain function. This includes an examination demonstrating several findings: absent pupil response, absent gag, absent sucking reflexes. Importantly this also includes the “apnea test” where the ventilator is turned off for a period of several minutes combined with close observation for spontaneous breathing. Absence of breathing confirms brain death. (GB Young, “Diagnosis of Brain Death” www.uptodate.com).

Two doctors required to confirm the above findings.

However, the gold standard is mechanical testing for brain blood flow (for example CTA, cerebral angiography or MRA), in which never in the history of modern medicine has there ever been a case of a brain-stem dead person ‘waking up.’ (Dr. B. Haroon, ICU NS)

 

An open door for health care abuse?

Regarding the concern that Doctors might prematurely declare you dead in order to harvest your organs:

First, we believe in the righteous ethics of the Doctors, and confident they will follow their oath to save people and not kill.

Second, it is the reality that death is determined by at least two doctors. Although the doctors might (and in NS probably do) know each other, every doctor knows that there are enough doctors waiting in line to replace her/him and take over the position if caught in a crime of collusion.

Third, even if a doctor breaks the rules in order to use an organ, and in doing so kills a patient, it is the doctor’s own crime. This does not take from the good deed of the donor. It is not the wicked who decides the law, and a low probability of such mischief must not prevent such good like saving lives (See first paragraph – “Why even bother”).

What about religious rituals after death?

There are three main severe prohibitions in Judaism regarding the treatment of the body after a person’s death, which might prevent from allowing organ donation:

Since the body is a vessel that carries a holy soul and by that being itself sanctified (Chatam Sofer 6:10), Jewish people are not allowed delay the burial (Devarim 21:23), to benefit from a dead body (Talmud Avo”z 29) nor any mutilation of the dead (Sifree Devarin 221).

Another concern is what will be done with the remaining after the process is done. (Talmud Jerusalem Nazir 7,1). According to the Jewish law every piece of the body needs to be buried, including every blood drop that will be spilled during the transplant process.

Closing thoughts on “reverse onus” legislation

 

–          Is it ethical?

o   Legislation is the most ethical approach.

–          Should there be government involvement?

o   It is the obligation of the government to make us do better, even if it is not the easiest emotional decision for the individual.

–          Religious Rights?

o   Being opted-in by default maintains the balance between our right to completely own every organ in our body and the privilege to save lives after our passing.
The new legislation brings Nova Scotia’s society to a higher level, that by default every citizen is part of the collective need and on the same time enables her/him to for personal reasons and/or religious restriction to opt-out.

–          Critical concerns for all parties?

o   At least one independent doctor will verify brain death with the use mechanical equipment for confirmation, unless mechanical testing can not be performed in cases where donors are not stable enough to undergo testing, for example if cardiac arrest has occurred.

o   An easy and accessible way to opt out completely or partially (for a person who doesn’t want to donate a certain organ for her/his person reasons, but desires to do so with other organs).

o   Possibility to request for a religious authority in the process, in a way that will not interfere with the practical process of the transplant. (Talmud Sanhedrin 46).

–          Critical concerns in the Jewish community?

o   Every other organ or remaining of the body of a Jewish person after her/his passing, must be brought over for burial in the same grave (including blood that was spilled). (Talmud Jerusalem, Nazir 7)

o   Consent must be obtained from a donor’s next of kin, so long as it is possible to contact them without reducing the probability for the success of the transplant. Dishonor for one’s body is considered disrespect for the deceased family as well (Talmud Sanhedrin 46).

o   Since death is a ‘once in a lifetime’ event that involves our spirituality, I suggest that every person talk to her/his religious leader regarding practical issues and whether she/he should opt-out or not.

Ethically those who are willing to donate organs should also receive priority to receive them. Though problematic practically, ethically a person who opted-out would have a lesser priority than someone who stayed a donor. The principal is non punitive, but rather that an individual who thinks it is wrong to donate must agree that it is not ethically right to receive.

 

Respectfully submitted,

Rabbi Amram Maccabi

Reviewed by:

Ian Epstein, MD, FRCPC