The Knesset approved in second and third readings the Brain
and Respiratory Death Law this week with a majority of 24 MKs
from various parties against only five no-votes and one
abstention.
The five opponents were MKs Rabbi Gafni and Rabbi Porush of
UTJ and Uri Ariel, Effie Eitan and Yitzchak Levy of HaIchud
HaLeumi-NRP. MK Ahmad Tibi abstained. The supporters were
from Kadima, Labor, Shas, Meretz, Pensioners, HaIchud HaLeumi-
NRP and the Likud.
Before the third reading Rabbi Gafni announced that UTJ
wanted to view the vote as a no-confidence vote in order to
defer it for one week. But PM Ehud Olmert turned the vote
into a confidence vote which, according to Knesset
regulations, must be held on the spot. Therefore some UTJ
members were not present.
The new legislation goes against halochoh and gedolei
haposkim, including HaRav Eliashiv shlita.
According to a notice recently issued by HaRav Eliashiv, "As
long as the heart continues to beat, even if the brain stem
is dead, the patient should be considered living in every
respect."
"I oppose this law outright," said Rabbi Gafni. "Someone who
is brain dead is a living human being. The leading
poskim hold that brain death is not death and
declaring [the patient] dead in such a case borders on
murder."
A few years ago nobody considered allowing a brain-dead
patient to be declared dead, he noted, and at this rate, in
another five years there may be calls to declare death at an
earlier stage, e.g. terminally ill patients who have yet to
be declared brain dead or dead as a result of cardiac
arrest.
He also challenged the paragraph of the law stating that the
committee set up to determine death in such cases would
include three doctors and three rabbis, including one who is
also a doctor. Rabbi Gafni suggested that of the three
doctors, one should also be required to be a rabbi.
He said the only crucial part of the law is the paragraph
stating that any family who objects to having their brain-
dead loved one be declared dead in contradiction to their
conscience or religious convictions could reject the
physician's determination. In such cases, said Rabbi Gafni,
they should have the right to demand medical care be
continued. The legislation also states that physicians must
inform the family they have an option not to accept the
declaration of death based on brain death.
Rabbi Gafni concluded his speech before the Knesset by
addressing the public and Am Yisroel in a moving plea, saying
if they have a brain-dead family member in the hospital,
"Please ask the doctors to continue full medical care for the
patient until his complete recovery, or choliloh,
cardiac arrest."
The bill, initiated by MK Otniel Schneller (Kadima), was
presented to the Knesset by Labor and Welfare Committee
Chairman MK Itshac Galantee (Pensioners). According to the
proposal, the following procedure would be used to declare a
patient brain dead: the treating physician would notify
family members that the patient may be in a state of brain-
respiratory death. Then doctors with specialized training
would be called in to conduct a battery of tests. If they
determine the patient is indeed brain dead, the family would
be authorized to receive the patient's medical records and
the physician would inform the family of the possibility of
consulting with a clergyman from the patient's religion.
Following this procedure, if the family decides to stop
treatment, it would be permitted to do so.
Physicians "authorized" to recommend disconnecting life-
support would be selected by a committee appointed by the
director-general of the Health Ministry. The committee would
include ten members, including three doctors recommended by
the Israel Medical Association, three rabbonim recommended by
the Chief Rabbinate including one who is also a physician, an
"ethicist," a philosopher and a jurist to be appointed by the
High Court president. The committee would also be required to
have one non-Jewish member.
The bill alters the current law, which only allows life-
support to be disconnected in the event of cardiac arrest or
respiratory failure.
