Supplementary memorandum by the Board
of Deputies of British Jews
Thank you for your letter of 30 January asking
the Board of Deputies of British Jews for further comment following
our earlier submission on this subject.
Although there are four specific questions posed,
which we intend to address, we also believe that there are some
underlying issues raised in your letter that need to be clarified.
The impression given (last paragraph, page 1)
is that, while in general both the faith groups and their religious
leaders support organ donation, there are particular issues which
might be of concern to some members of the faith groups, which
might make them reluctant to consent; and that this is then linked
to self-perception of religious law. These comments tend to diminish
the role that personal faith may play in the core decision making
process, and to propound the view that total subjugation to religious
authority should be the norm. Ignoring the personal faith dimension,
and focussing entirely upon the pragmatic issues, does not do
justice to the individual and their concerns. It is strange that
these assumptions are stated at this point as your "understanding",
thus prejudging the responses to question 2.
There are two other issues which these same
introductory comments raise. Firstly, it is unclear where the
phrase "substantial number of cases" derives. One would
need to know how many realistic potential donors there are in
total, and how many refusals there are from amongst each faith
group. The Board has the impression from your letter that it is
the most observant parts of the Jewish community from which those
who refuse might be presumed to be drawn. They may also be the
least affluent. It would be of interest to know whether or not
a control cohort of similar financial and social status will behave
in the same way. There are also potential comparative Christian,
Muslim and Hindu groups in the same socio-economic cohorts. Anger
at the time of the Alder Hey investigation reflected a deep-seated
sense of betrayal and mistrust which was not necessarily based
upon religion. In earlier discussions it was made clear to the
Jewish community that there are also racial issues and that it
is the Afro-Caribbean donation rate that is the lowest.
Secondly not all Jews share the same view of
this issue and other matters relating to organ donation. However,
although for this reason widespread consultation amongst the Jewish
community may be needed, there is a documented tendency amongst
Jews to revert to certain religious "norms", when confronting
death, which can be based upon misunderstandings of the religious
position, but which are nonetheless sincerely held, and should
not be dismissed. For example, families will insist on immediate
registration of death and facilities for early funerals, and then
opt for cremation. Studies of Jewish opinion document that the
reason why many Jews who oppose autopsy and cremation, and presumably
donation, is based on the notion that "soft tissue"
body parts will be necessary in the event of resurrection of the
dead, despite the fact that there is Talmudic discussion reflecting
that after a period of time only bones will remain. This pattern
of reversion to religion, which might occur even amongst Jews
who regard themselves as secular, will have an impact on donation
rates. People change when confronted with mortality, and this
can act as an impetus either for or against organ donation.
In answer to your specific queries, therefore:
QUESTION 1
Religious beliefs are those of people, not of
organisations. Thus this question is difficult, and probably inappropriate,
for a representative organisation to answer, and would perhaps
be so even if that organisation were to be composed solely of
a group of synagogues. There is no difference between the UK and
the EU in this context. Taking the observant Jewish view as the
"median" norm there has been a continuous debate about
problematic issues ever since transplantation was first suggested.
Issues such as relative risk of the procedure, relative risk to
live donors, how live donation should be regulated etc have all
been posed and discussed in terms of religious law ("halacha").
The most major problematic area relates to determination of the
death of the donor, and in particular to the definition and acceptability
of brain death. Whether or not brain death defines the Jewish—legal
moment of the death of an individual is debatable. Those who do
not accept the definition of brain death cannot become organ donors
until respiration has ceased, because this constitutes the killing
a "still-alive" donor. One can foresee that this will
pose problems if UK (or any other) authorities act without due
consideration to the sensitivities of the donor and their families.
QUESTION 2
The problems raised by this question have been
noted already above. The "solution" which would help
to address this tendency (without prejudice to a decision whether
or not to donate) has already been formulated, with three main
principles:
1. There must be opportunity for adequate
consultation with Rabbinic authorities expert in this field during
the decision making process.
2. There should be suitably trained transplant
co-ordinators, fully conversant with issues of concern to Jews:
as noted by the Spanish authorities "the laws are necessary
frameworks but they do not make organisations function ... transplant
organisations should be based on credibility, efficiency, impartiality
and transparency".
3. The family must be reassured that they
will be able to observe the principles of honouring the dead—"kavod
hamet"; to bury the donor in a Jewish cemetery as soon as
possible after donation; and to take organs donated and not used
(or rejected), for suitable burial.
QUESTION 3
In the light of the comments above, a change
to a system of presumed consent would not be acceptable, as it
would change the climate of the donation process radically. The
concept of presumed consent that has been introduced in some European
jurisdictions is only accepted by orthodox Jews because it is
the law of the land, not because they regard it as the best way
to regulate transplantation. The term "presumed consent"
is in such instances factually wrong. The proposed change would
not provide reassurance to the Board that the religious rights
of a very significant number of Jews in the UK are protected along
the lines suggested in our answer to question 2 above.
QUESTION 4
This question moves entirely from issues of
faith perspective to practicality. As noted above, Jewish views
are not monolithic and Jews can change these views with time;
how Jewishness is defined would be a problem; and the opportunities
for stigmatization are considerable. The Select Committee may
not be aware that the issue of religion and donation was brought
to the fore for the first time in the UK when a newly-appointed
renal physician was refused a place for a Muslim patient on a
transplant list "because Muslims do not donate". We
are informed that there are also differences in the Muslim community
on this issue. The opportunities for discrimination would be increased
considerably in an "opt-out" system.
Finally, in preparation of these comments, it
has been very helpful to have a memorandum at hand from Mr David
Frei, Registrar of the Court of the Chief Rabbi, available to
us, and therefore I am also attaching this memorandum for your
consideration.
12 March 2008
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