Prof. Arie Herman, Why Can't We Sue if Not Warned of Birth Defects?

In a position paper submitted this week to the Supreme Court, as reported in Haaretz, The Israel Society of Gynecology and Obstetrics argued that not every birth defect can be grounds for a malpractice suit. Prof. Arie Herman, the president of the organization, explains why the lines have to be drawn.

Why shouldn't it be possible to sue for malpractice if no warnings were given of a birth defect?

Prof. Arie Herman - Nir Keidar
Nir Keidar

The discussion is not about malpractice but about the legal term "wrongful birth." We're talking about cases where there's a mishap, where there's a defect. The doctor did not cause the defect. The doctor perhaps did not diagnose the defect. But this fetus that comes into the world had to come with the defect. The claim of wrongful birth says that I should not have come into the world. Therefore the question is an ethical one: Who is not welcome in the world? The emphasis in the story in the paper is on the suits and compensation, but that is really not the point.

So what is the point?

When the Supreme Court decided what constitutes a wrongful birth, there was one approach that included everything. But there's also an approach that says that only if a very serious defect is involved, then it would be better if the fetus were not born. We're talking about serious mental retardation, lack of comprehension, a life without meaning, the need for constant help in getting dressed, eating, getting cleaned. The court was split between these two approaches. What I'm saying is that if wrongful birth is all-encompassing, those who serve on abortion committees will be stripped of their ability to decide when to say yes and when to say no. Then we get to a very slippery slope where all the parents will want to have only perfect children and someone will devise a genetic chip that can say what the child's IQ is and if it's only 105 and not 120, they'll say they want to terminate the pregnancy, but we won't approve it, so then this, too, will be considered a wrongful birth. What we're saying is that there has to be a scale. And we made recommendations on what that scale should be. You could take the approach of Miriam Ben Porat, which is that it applies only to very serious defects, but it could also take the approach of Aharon Barak, which is that it includes everything. To that, we say no. There has to be some middle ground.

On what basis did you, the doctors, decide where to draw the line?

You know that in Israel it's possible to terminate a pregnancy at any stage, but that's not the case in most countries. In 2007, the Ministry of Health put out guidelines for the abortion committees, and we were involved in preparing them. The scale I just mentioned already appeared these guidelines. What they say is that a slight impairment - we refer to it as an impairment, not a defect - that affects the person but not his overall integration in society, and that this person will not need the help of others for his whole life, that cannot be grounds for an abortion after week 24. Around the world, generally speaking, they say we're crazy for allowing abortions above and beyond what is imaginable. They are extremely critical of our approach. A moderate impairment is not grounds for abortion after week 28. A severe impairment which would require lifetime assistance is grounds for an abortion even toward the end. We took this scale and we want to apply it here so that only a serious impairment is grounds for a wrongful birth suit.

But that too sounds like a malpractice suit.

But let's look at a different issue. We did an ultrasound and saw that a hand is missing. The pregnancy was in an early week and the parents could still go to an abortion committee but decided to continue with the birth. A boy was born. They couldn't sue anyone for a wrongful birth. They're not entitled to a cent. There's a handicapped child, he has impairments and difficulties and he doesn't get a single cent. You're looking at it from the perspective that we supposedly want to cover ourselves, but that's simply not correct. But the question is indeed a question of malpractice. Are all of these defects that were not detected, or is it that a doctor sees a defect and he does not tell the parents because it's minor, so that they don't have an abortion.

No, no, that's not it. But they come to him with complaints from a different direction - that the woman wasn't informed that it was possible for her to do more tests beyond those the system provides.

But even so, in Israel they do the most tests of anywhere in the world, well beyond what is recommended. So perhaps there should be limits on the number of tests?

There is a limit, it's low. And then the court comes with complaints to the doctor and finds that he was negligent, because he should have requested more tests, beyond the limit.

So we're already in a situation where everybody wants only perfect children?

But if it's decided that wrongful birth includes everything, we'll be in an even worse situation. Today the abortion committee has the option of saying to parents that we will not approve an abortion if two fingers are missing. If everything is wrongful birth, then we'll be stripped of our ability to make this decision. There are many situations with uncertainty. You find something and there's a 5 percent chance that the child will be impaired. If everything is wrongful birth, no doctor on the committee will want to risk it, even if the request is absurd. In our position paper we stressed the issue of the doctors, but we also touched on social issues. If we are a society that wants perfect children and everything else is wrongful birth, what does that say about our attitude to the disabled? That they basically don't need to be here, that they should have been destroyed first. And whoever didn't destroy them because of negligence is berated. You have to understand that we are also doctors who treat the fetus, that from week 24 we already put him in a preemie ward and fight for his life.

Yes, you really are constantly saving premature infants at younger and younger ages who will later on suffer their whole lives from very serious problems. Perhaps that also is wrongful birth.

So what's the alternative? To kill them in the womb? The court already decided that if there's a premature birth, from week 24, abortion is out of the question. We're not willing to kill at a viable stage if there are no defects. So if there's a chance there will have an impairment, then what do we do? We're here to treat.

But even if it's not called wrongful birth, if there's a defect that was not detected, that's negligence on your part.

I'm not arguing the issue. The one who determines whether or not there was negligence is the court. When you talk about negligence, there has to be damage. The damage in wrongful birth pertains to the person born and for that there is compensation. There is also compensation for the parents for "damage to autonomy" and it's a much smaller sum. As far as I'm concerned, in a case of negligence, they should give the parents the same amount they give the child, but they shouldn't call it "wrongful birth."

The Defense Ministry's legal adviser is now circulating a memorandum regarding a bill to make certain changes to the law pertaining to military cemeteries, which was originally passed in 1949 and has been revised over the years.

The bill, which will soon be raised for discussion in the Knesset, is based on recently-made recommendations of the Defense Ministry's Public Council for the Commemoration of Soldiers. The ideas were approved by the defense minister.

Among other things, the bill proposes designating within the military cemeteries separate sections for members of the security forces who are not in the army, i.e., policemen, and members of the Mossad, Shin Bet security service and the Israel Prisons Service.

This is in contrast to the longstanding current practice of not separating military cemeteries based on service, in which a Shin Bet agent will be buried alongside a soldier, a soldier beside a policeman and so on. In practice, for many years the military cemeteries have served the security forces. The proposed bill to make the separation is puzzling. Due to the public nature and sensitivity of the issue, and because many Israeli citizens have relatives who are in the army and in the other security forces, public comment must be given extraordinary weight during the legislation process, which needs to be as transparent as possible.

But the explanations offered for the bill are partial and much is hidden from the average person. Furthermore, the Public Council does not count any members who have fallen relatives who were in security forces other than the army.

It is almost certain that the preparation of the bill for its second and third readings will be done by the Knesset's Foreign Affairs and Defense Committee, whose sessions are usually closed to the general public.

It is hard to refrain from asking what prompted the Public Council to separate between these types of casualties from now on. What is the logic? After all, I believe the council is not intending to exhume non-soldiers from military cemeteries to move them to the designated sections.

It seems from now on there will be "two classes" in the cemeteries. Isn't this discrimination? Won't the legality of the amendment be challenged in the High Court of Justice?

Since by the nature of things, the number of security forces fallen who are not soldiers is substantially lower than the number of fallen soldiers, the presence of the former beyond the section designated for soldiers only will only highlight the disparity more.

Moreover, the Public Council recognizes the principle that what is done cannot be undone and therefore it is not recommending now stopping to bury in military cemeteries those who died of natural causes and who are part of security forces other than the army. Regarding those security force members who fell in the line of operational duty, i.e. for their country, certainly their status should not differ from that of the soldiers. So why the separation?

Technically, it will also be difficult to designate special sections for non-army security force members at all the military cemeteries and certainly in the hundreds of military sections across the country. The inequality from place to place will only intensify the contrast between what is happening on the ground and the original intention of the legislation to attain uniformity and equality which must exist in the military cemeteries.

For many years, there have been in the military cemeteries in Israel exceptions that do not correspond to the original law and its spirit. These exceptions, which the Public Council must be aware of, reflect far reaching changes in Israeli society, but also the willful ignorance (if not more ) of defense ministers and the Public Council over the years.

Changing the military cemeteries into de facto cemeteries for the security forces is one of the deviations that occurred and became entrenched over the course of time. If there was some injustice in this, it cannot be undone by a new injustice, most certainly not when the surviving relatives of the fallen from the non-army security forces have not had an opportunity to say their piece.

The Public Council must accept the fact that what's done cannot be undone and perhaps even de jure declare the military cemeteries to be cemeteries for the fallen of the IDF and the security forces.

The writer is a professor at Bar-Ilan University and is the author of "Lev Va'even: Sipura Shel Hamatzeva Hatzvait B'Yisrael B'Shanim 1948-2006," about Israeli military tombstones.

In February 1995, the findings of a sleep deprivation study conducted at the Technion Israel Institute of Technology in Haifa concluded unequivocally: "Early morning classes in grade school must be canceled." The study - which examined the sleep habits of 6,388 pupils between fourth and 12th grades at 39 Israeli schools - also recommended examining the criteria for the so-called "zero hour" early morning lessons given in middle and high schools as well.

Co-authored by Prof. Peretz Lavie, and researchers Rachel Epstein and Nela Zelig, the probe was conducted in the Technion's sleep laboratory. It "discovered that 22 percent of Israeli high school students sleep six hours a night, two hours less than the recommended amount of sleep for this age group according to international guidelines," Gabi Zohar reported in Haaretz.

"A quarter of the students in the State of Israel sleep the same amount as soldiers in officer candidate courses," Lavie said. "And a third reported to researchers that the zero-hour lesson was considered the toughest part of the day."

The study also revealed that pupils who woke up to attend the early morning lessons suffered from much more fatigue during the day than students who were on regular schedules.

"Nineteen percent of the students were tardy for this reason, in contrast to 11 percent of students arriving late to regular classes," Lavie reported. "Seventeen percent of the students complained of difficulty concentrating during days which started with the zero-hour lesson, in contrast with 12 percent of students keeping regular schedules."

"Fatigue has a cumulative effect," he warned, "and so if the morning lessons aren't cancelled - a decision currently in the hands of each individual school principal - it is advisable to allow these students to arrive late once a week, so they can make up for lost sleep."

In light of the study's findings, the parents association approached the Haifa branch of the Association for Civil Rights in Israel, saying the zero-hour classes impaired the children's right to get a reasonable amount of sleep.

But school principals were still not convinced about the importance of sleep. Some readers who responded to the Haaretz article on the study also rejected its findings.

"The only ones to blame for teenagers' dwindling hours of sleep are the teenagers themselves," wrote Rina Ilan of Tel Aviv. "There is enough time for everything in the afternoon and evening, except for homework... In my experience, the early morning hours are the best for the absorption of new material. The desire to sleep and the yawns disappear a moment after the bell rings...

"As for the parents association," she continued, "each one of these bleeding hearts should search his memory and recall how they allowed their children, even when they were very young, to watch TV or play when they should have been sleeping. And so they should not complain when their children have trouble getting out of bed in the morning."

Menachem Sarid of Herzliya suggested that, instead of cancelling early morning lessons, "The students should go to bed one hour earlier."

The Education Ministry, however, hurried to cancel early morning classes. At a meeting of ministry directors on February 22, 1995, director general Dr. Shimshon Shoshani announced that, "starting September 1, 1995, the zero-hour lessons will be cancelled in grade schools and middle schools," Haaretz's Yossi Hatoni reported the next day.

"[Shoshani] has decided that there will be no zero-hour classes in government schools. The high schools, however, will continue to conduct them," Hatoni wrote. "Shoshani directed district officials to make sure that inspectors handle this matter."

But over the next eight years, tens of thousands of Israeli students continued to rise for early morning studies, until October 2003, when the Education Ministry made the following announcement: "Scholars in Israel and abroad have shown unequivocally that the amount and quality of sleep students get are critical parameters for wakefulness and cognitive functioning at school, as well as the fact that tiredness and a lack of alertness endanger students by making them more susceptible to getting into traffic accidents. And so, starting in the 2004 school year, zero-hour classes in elementary, middle and high schools must be cancelled. This means the school day will start at 8 A.M. There are to be no classes before 8."

Rabbi Yitzhak Shapira, the "slim and fragile man" who was dragged by policemen - according to Israel Harel's eye-roll-inspiring description ("The prosecution vs. justice," February 18 ) - wrote a book that permits Jews, among other things, to shed the blood of the enemy's children.

In "Torat Hamelech" ("The King's Torah" ), authors Shapira and Rabbi Yosef Elitzur write: "There is cause to hurt children and infants if it is clear that they will grow up to harm us, and in such a situation, the strike should be directed specifically at them." These two rabbis explain to us that the injured children should thank us, the killers, for "their generosity."

"And simply speaking, [the children] also benefit from this, because otherwise they will grow up in an improper way and in any case we will have to kill them," they write.

Harel tells Haaretz readers that Shapira was detained, with his hands and feet shackled, for two main statements that appear in the book: "It is not forbidden to kill a gentile who violates seven religious precepts," and "In any place where the presence of a gentile endangers the life of an Israelite, it is permitted to kill him."

Apparently, according to Harel, the remaining 230 pages of "The King's Torah" deal with matters relating to the Sabbath, modesty and the dietary laws of kashrut. For some reason, Harel skips over the chapters on revenge and taking the law into one's hands and directed, among other things, at the massacre perpetrated by Baruch Goldstein and the "price tag" policy.

"A decision by the nation is not necessary to permit shedding the blood of the evil kingdom," the rabbis write in the book. And for those who don't understand the connection between the above statement and Goldstein, the authors refer to the memorial pamphlet "Baruch Hagever" (a play on words that can be translated as "Baruch the Man" or as "The Blessed Man" ).

"Revenge is the heat of justice, as opposed to the heat of the desire for evil," they write. "Just as there is eagerness to do evil, so too should there be eagerness to do justice and fight evil. Because the wicked operate 'without concern' we too operate 'without concern' in order to uphold proper balance and measure for measure... See more on this in chapter three of the pamphlet 'Baruch Hagever' and see ... the article 'Taking Revenge on the Gentiles.'"

It was not at random that someone who was himself involved in planning the revenge acts committed by the first Jewish underground, and someone who referred to Baruch Goldstein as a martyr who joins the martyrs of the Nazi Holocaust, provided a formal endorsement for "The King's Torah." Rabbi Dov Lior's endorsement is quite enthusiastic, in fact: "This work is worthy of being placed on the table of kings and rabbinical leaders and all proponents and lovers of Torah, so that they may see how the Torah of Israel guides man both during normal life and times of war."

Why doesn't Deputy State Prosecutor Shai Nitzan pay attention to the muezzins and imams who incite their people, Harel complains.

We found easily that on November 7, 2010, an indictment was issued against Imam Nazim Mahmoud Salim, 45, of Nazareth, who used his sermons to convey radical messages of the world Jihad and the Al-Qaida terrorist organization, and called on his congregation to attack those who are not Muslims.

We have not yet heard about a column by Harel about the slim and fragile imam, shackled hand and foot, and dragged by policemen in a way reserved for rapists, murderers and terrorists.

The writer is executive director of the Forum Yod Bet B'Heshvan to encourage tolerance and openness.