Written evidence submitted by the Board
of Deputies of British Jews
SUMMARY POINTS
Organs are donated by individual Jews not by Jewish
organisations
Judaism emphasises the importance of saving lives:
A living person may donate an organ to
save someone else's life (eg donation of a kidney). This is not
only permitted but actively encouraged, provided that in doing
so the donor is not putting his own life at significant risk (Court
of the Chief Rabbi, 2010)
A Jewish perspective is that presumed consent
diminishes the altruistic gift essence of organ donation and is
perceived to diminish the status and respect with which the body
/ body parts are held after death.
The preferred organ donation system is that families
(including Jewish ones) should be able to consider and reflect,
consult religious authorities if they so wish, and (if they feel
appropriate) give consent.
1. BOARD OF
DEPUTIES OF
BRITISH JEWS
The Board of Deputies of British Jews is the main
representative body of the Jewish community. Founded 250 years
ago, the Board is consulted frequently by outside bodies, including
Government, concerning issues where there may be thought to be
either a Jewish viewpoint, or a collective Jewish interest. The
Board is not a religious authority, does not give rulings about
interpretation of Jewish law (known as "halacha" / "halachic
law") and ethics, and does not have any formal jurisdiction
status. However, the Board has had a long standing and consistent
role in defending a Jewish vantage point in matters of public
policy, and in particular in defending societal respect for the
views of Jews who wish to be guided by Rabbinic rulings made according
to strict halachic interpretation.
2. SUBMISSIONS
BY THE
BOARD OF
DEPUTIES OF
BRITISH JEWS
CONCERNING ORGAN
DONATION
The Board of Deputies has made submissions to Parliamentary
Committees previously concerning organ donation, and in particular
in relationship to a proposed change to a presumed consent (commonly
known as "opt-out") system. These submissions were made
to the House of Lords Select Committee on the European Union—Sub-Committee
G (Social Policy and Consumer Affairs) (dated 2 October 2007;
and in response to further queries 12 March 2008). These earlier
submissions may be helpful to this Committee in their deliberations.
3. THE JEWISH
VIEW OF
ORGAN DONATION:
GENERAL PRINCIPLES
In these previous submissions the Board noted that
a "Jewish view on organ donation" was difficult to define.
Although the Board may be able to provide insights and information
about a Jewish religious perspective, the Board emphasised that
religious beliefs are the beliefs of individuals rather than of
organisations.
However, the Board was able to enunciate certain
underlying Jewish principles which could be helpful. These were
based primarily upon the strong Jewish tradition of caring for
the sick. "Pikuach nefesh"—"saving
of life"—takes priority over other religious obligations.
Organ donation saves lives and is therefore permissible. Organ
donation (in fact, organ gift) falls clearly within this Jewish
altruistic tradition.
Recently the Court of the Chief Rabbi has re-iterated
how this principle applies to organ donation:
"A living person may donate an organ to save
someone else's life (eg donation of a kidney). This is not only
permitted but actively encouraged, provided that in doing so the
donor is not putting his own life at significant risk.
With regard to donation after death, in principle
(notwithstanding the various Halachic rules concerning the sanctity
of a dead body and the normal requirement that all parts of the
body be buried) Halacha permits such donation provided that the
organ is required for an immediate transplant".
The Board has noted that this view, expressed by
a respected religious authority known for adherence to strict
halachic principles, is based upon a searching analysis of classical
Jewish sources. These address questions not only about transplantation
per se but also about any relative risk of the procedures involved,
the balance of beneficial effects with risk, and the evidence
that the procedure (ie transplantation) is life-saving.
With regard specifically to organ donation after
death (which is the main focus of the current consultation) the
Board is cognisant that this Rabbinic view implies that organ
donation takes precedence over other halachic obligations such
as (i) "avoiding needless mutilation" of the body after
death; (ii) "not deriving benefit from a dead body";
and (iii) delay of burial.
Thus, bearing in mind the caveats about expressing
a collective view noted above, there is broad consensus in favour
of the principle of organ donation.
4. CONSENT TO
ORGAN DONATION
AFTER DEATH
Previously the Board has made several submissions
that are relevant to the particular question of presumed consent
to organ donation, some of which predate our comments to the House
of Lords Select Committee.
The Board worked towards, and welcomed, the concept
of the Human Tissue Act. This legislation is consistent broadly
with Jewish views about the status of both parts of the body and
the whole body after death. This Act is founded upon the need
for consent to the use of organs and tissues, and has regularised
previous haphazard structures which had been open to neglect and
abuse (as evidenced in the Alder Hey and Bristol episodes, and
the Isaacs case).
The Board has been very conscious in these submissions
that "presumed consent" does not exist as an entity
in this area of halachic law. Jewish law would follow a "case-by-case"
process and would not recognise a "blanket ruling".
The Board has also been active, almost throughout
the past 250 years, in working to ensure that Jews are able to
follow their own laws and customs with regard to burial. The natural
sequel to this is that, in the same way as it is the responsibility
of the family to handle the body of the deceased with respect
and in an expeditious fashion, so too is it their responsibility
to give consent to organ donation.
The Board is broadly sympathetic to the view taken
by other religious groups that organ donation is a humane act,
and that taking organs without family consent goes beyond failure
to respect human remains, and into the realm of an unacceptable
violation of the dead.
The Board has also taken into account that, where
organ donation after death is made in conformity with Jewish practice,
the obligation ("mitzvah") to perform an act
of "pikuach nefesh" rests with the family of
the dead person. For the more observant members of the community
the consent process thus represents an important obligation which
would be denied to them.
5. SUPPORT FOR
ORGAN DONATION
The Board has been fully cognisant of the ongoing
concern about the shortage of donated organs in the UK. It is
for this reason that the Board has supported initiatives by the
various transplant organisations to increase public awareness
and understanding in the wider community as well as amongst Jews.
The Board is aware that the size of the Jewish community
in the UK, and therefore the impact of any increase in Jewish
donation rates, is likely to be small. In Wales, for example,
the total Jewish population (based on the census) is approximately
2,000, so that even if presumed consent was introduced the annual
total Welsh Jewish organ donation rate is likely to very low.
Nonetheless the Board (as well as the Rabbinic authorities) have
given much time and thought to how Jews can contribute to the
public debate and policy.
In particular, the Board has co-operated as much
as possible with the Organ Donation Task Force. During the course
of these discussions the Board has become increasingly aware of
the issues we share issue with other faith communities, amongst
whom very similar views about consent have been expressed. The
Catholic community in particular has given careful thought to
all the issues noted above. A key impression is that in the public
domain there is a combination of misgivings about "tampering
with the body", and disquiet / suspicion about the definition
of death under the current regimen. Presumed consent would only
make this worse.
Finally, the Board is aware that already the Office
of the Chief Rabbi is exploring new ways forward in order to achieve
a formula whereby faith communities (including the Jewish community)
can promote and support organ donation under circumstances where
families can be re-assured that they are able to have their religious
views respected.
6. CONSULTATION
QUESTIONS
There are some specific questions which are relevant.
(i) (4) To what extent is there a demand for
legislation on the matter in question?
The Board commends the report of the Organ Donation
Task Force to the Welsh Select Committee in this regard. In addition,
the contradiction between a "presumed consent" system
and the public demand for better scrutiny of body parts and bodies
as expressed in the Human Tissue Act suggests that any "demand"
is equivocal. Even when a potential donor is "registered"
family consent is the standard by which most of not all decisions
are made.
(ii) (5) Are there any cross-border issues
relating to a Legislative Competence Order?
There is a long-standing Jewish tradition that it
is the patient before you ("choleh lefanecha")
whose life you must save. Many years ago the UK Rabbinic authorities
ruled that modern knowledge transfer and communication broaden
the range of this concept. Although not specifically an issue
for the Jewish community per se, the complications of different
systems operating in different parts of the UK would seem to the
Board to run contrary to this tradition.
(iii) (12) What are the implications of Article
8 and Article 9 of the European Convention on Human Rights on
any such measure?
The Board has based its submissions on the premise
that Jews (and others) have the right to expect that their remains
will be treated respectfully according to their and their family's
wishes. For some people these wishes may take into account religious
views. Thus it is conceivable that a "presumed consent"
system contravenes these articles.
Professor David R Katz
Vice-chair, Defence and Group Relations
February 2011
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