Shas Swing Vote Pushes Through Organ Donor Law

The Knesset approved a law yesterday intended to regulate organ donations in compliance with Jewish law. The bill was passed with the support of the ultra-Orthodox Shas party.

The new law on brain and respiratory death was introduced by MK Otniel Schneller (Kadima), and it was accompanied by an exceptional process of discussion between rabbis and doctors. The bill enjoyed the support of senior rabbis from the Sephardic ultra-Orthodox community as well as from the National Religious camp, including the Shas spiritual leader Rabbi Ovadia Yosef and Sephardi Chief Rabbi Shlomo Amar. Ashkenazi interpreters of halakah, however, were in disagreement on the bill.

Politicians say the real test of the new law will be the publication of calls by rabbis for organ donation, defining it as a religious obligation. Ultimately, success will be determined by the rabbis' ability to convince the religious and traditional public to support organ donations.

The law determines, among other things, that brokering sales of organs, whether in Israel or overseas, is a criminal offense punishable by up to three years in prison.

According to Tamar Ashkenazi, who heads the National Transplant Center, 55 percent of the families asked to donate the organs of a family member refuse, and the number of potential donors is quite small to begin with. Donors are mostly accident victims, rather than those who die of disease. Such potential donors must have organs in good condition and must still be alive when they arrive at the hospital.

Out of the 145 families asked to permit organ donations in 2007, only 61 agreed. The organs from these 61 donors were transplanted into 231 people. This means every donor saved about four others.

According to Ashkenazi, half of those families that refused said they did so for religious reasons, with some saying they wanted to preserve the wholeness of the body. In practice, it is very difficult to differentiate between the two explanations.

The new law is expected to add dozens of donors a year, and could save the lives of another 100 to 200 people every year.

Brain death usually precedes cardiac death. Most of the internal organs used for transplants - hearts, lungs and livers - need to be removed during the brain-death stage, since once the heart stops beating, they will no longer be fit for transplantation.

The Orthodox and ultra-Orthodox publics have almost completely refrained from donating organs until now. In the case of the ultra-Orthodox, their rabbis had not recognized the status of brain death, and therefore viewed the extraction of such organs as equivalent to murder.

Within the national religious community, there was a serious crisis of faith vis-a-vis the medical establishment, which led to a lack of agreement on determining the moment of death.

Schneller led a process intended to overcome this problem. According to the bill that was passed, a committee will be established to follow the situation and reach agreement. The committee will include rabbis, doctors and ethicists. It will also authorize doctors who will be responsible for determining brain death.

The doctors will determine brain death by using a series of different tests that will verify complete cessation of breathing and brain activity. The family can object to organ tranplantation, even if a patient is brain dead.

MK Chaim Amsellem (Shas) explained yesterday that the great advances in medical instrumentation of recent years are what enabled yesterday's breakthrough. "For the first time, there is a clear and final statement of rabbis that the end of brain activity is death. The minute a person is declared dead, it is clear that the donation is life-saving and a religious commandment," explained Amsellem.

The United Torah Judaism (UTJ) party objected to the law. Its leaders, led by Rabbi Yosef Shalom Elyashiv, insist that religious law does not recognize brain death as death. MK Moshe Gafni (UTJ) told the Knesset plenum yesterday: "A brain-dead person is a living being." Such opinions are expected to make the promotion of organ donations difficult.

The law passed yesterday by a vote of 38 to 17.

Until now, the rules governing transplants were ordinances set by the director general of the Health Ministry. The courts have ruled a number of times that there was a need to legislate the matter in law. One of the results of a lack of a legal basis was the inability to prosecute organ brokers, said Ashkenazi. Instead, such cases usually were prosecuted on the basis of peripheral issues, such as tax evasion.

What was controversial was the acceptance of two amendments proposed by Finance Minister Roni Bar-On, which cancelled budgets intended to encourage donations. The main funding was to be for educational and promotional activites, at a cost of NIS 5 million a year.