Go in Peace: Brain Death, Reasonable Accommodation and Jewish Mourning Rituals

Abstract

Religious objections to brain death are common among Orthodox Jews. These objections often lead to conflicts between families of patients who are diagnosed with brain death, and physicians and hospitals. Israel, New York and New Jersey (among other jurisdictions) include accommodation clauses in their regulations or laws regarding the determination of death by brain-death criteria. The purpose of these clauses is to allow families an opportunity to oppose or even veto (in the case of Israel and New Jersey) determinations of brain death. In New York, the extent and duration of this accommodation period are generally left to the discretion of individual institutions. Jewish tradition has embraced cultural and psychological mechanisms to help families cope with death and loss through a structured process that includes quick separation from the physical body of the dead and a gradual transition through phases of mourning (Aninut, Kriah, timely burial, Shiva, Shloshim, first year of mourning). This process is meant to help achieve closure, acceptance, support for the bereaved, commemoration, faith in the afterlife and affirmation of life for the survivors. We argue that the open-ended period of contention of brain death under the reasonable accommodation laws may undermine the deep psychological wisdom that informs the Jewish tradition. By promoting dispute and conflict, the process of inevitable separation and acceptance is delayed and the comforting rituals of mourning are deferred at the expense of the bereft family. Solutions to this problem may include separating discussions of organ donation from those concerning the diagnosis of brain death per se, allowing a period of no escalation of lifesustaining interventions rather than unilateral withdrawal of mechanical ventilation, engagement of rabbinical leaders in individual cases and policy formulations that prioritize emotional support for families.

RETRACTED: Routine parental request of organ donation in end-of-life care of children in the United Kingdom: Unresolved medical, legal, cultural and religious challenges

“…5,18,26,27 Failing to respect and accommodate these diverse values and beliefs can have a profound negative impact on surviving parents and family members. 6,18,25,27 Although routine integration of organ donation can conflict with religious beliefs, some commentators believe that religious beliefs should not ''be allowed to stonewall a secular approach'' to the end-of-life care of children in a multicultural society. 28 Other commentators have downplayed the conflict with religious beliefs by claiming that donating a child's organs can lessen parental bereavement symptoms.…”

Views of leaders in under-represented and equity-denied communities on organ and tissue donation in Nova Scotia, Canada, in light of the Human Organ and Tissue Donation Act: a qualitative descriptive study

“…Participants were leaders of African Nova Scotian, LGBTQ2S+ (Lesbian, Gay, Bisexual, Trans, Queer, Two Spirit and others) and Faith-based (Islamic, Jewish) communities. Understanding the view of leaders from these communities is particularly important given: (1) a long and well-documented history of racial discrimination against African Nova Scotians by public institutions within the province20 21; (2) Health Canada’s decades-long and recently abandoned policy restricting sexually active men who have sex with men (MSM) from donating blood22 and (3) questions surrounding the religious permissibility of organ and tissue donation in Muslim and Jewish faiths 23 24…”

Death pluralism: a proposal

“…A survey of Jewish faith leaders found that, although 97% of rabbis know that BD and cardiopulmonary death are medically and legally equivalent, one in four believe that BD is not equivalent to death and almost one in five agrees with the continuation of life support after BD determination [ 19 ]. Opposition to BD and discontinuation of life support is particularly extended among Ultra-orthodox Jews [ 10 ]. Among Muslim faith leaders, although a majority of scholars and medical organizations accept BD as true death, the consensus is not unanimous [ 8 , 29 ].…”

“…In the U.S., the states of New York, California, and Illinois go a step further by including accommodation clauses in their regulations or laws, the extent and duration of which are usually left to the discretion of hospitals themselves. Israel and the state of New Jersey go even further by including an option for religiously based dissent in the law, meaning that an individual who would be considered dead according to medical standards may remain legally alive if relatives veto the determination of BD on religious grounds [ 10 , 18 ]. As a matter of fact, this is a form of pluralism with regard to the legal determination of death.…”