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Euthanasia, organ sales, and genetics on agenda at Jewish legal forum
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Euthanasia, organ sales, and genetics on agenda at Jewish legal forum

Experts weigh in on ‘law, medicine, and pursuit of justice’

Rabbi Shalom Lubin moderates a panel at the Jewish Law Symposium featuring, from left, Francine Halushka Katz, Arthur Caplan, and Rabbi Michael Broyde. Photo by Mendy Moscowitz
Rabbi Shalom Lubin moderates a panel at the Jewish Law Symposium featuring, from left, Francine Halushka Katz, Arthur Caplan, and Rabbi Michael Broyde. Photo by Mendy Moscowitz

A year after Hurricane Katrina, which devastated much of the Gulf Coast in 2005, bioethicist Arthur Caplan was hired as a consultant by New Orleans coroner Dr. Frank Minyard.

Caplan, now director of the Division of Medical Ethics at NYU Langone Medical Center in New York, set about investigating 45 deaths at the storm-ravaged city’s Memorial Medical Center, where “patients were in pretty horrible conditions” since the hurricane and resulting surges had left the hospital without electricity and scant sanitation facilities.

“Some doctors euthanized their patients because they didn’t want them to suffer,” Caplan told the audience during a panel at the 11th annual Jewish Law Symposium on Sept. 26 at the Birchwood Manor in Whippany.

“Was that the right thing to do?” asked the moderator, Rabbi Shalom Lubin, founder and sponsor of the program, and director of the Chabad of Southeast Morris County.

“Yes,” said Caplan. “Leaving someone behind in hunger and pain unable to be maintained by machine, I think you have to try to relieve their pain. If that means the only way to do that is to calm them to die, it might be a morally defensible action.” 

Fellow panelist Rabbi Michael Broyde, a professor of law and senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta, disagreed sharply with the notion of mercy killing.

However, he said, “If in the process of ameliorating their suffering they die because the narcotics we give them cause their death unintentionally, that might well be permitted by the Jewish tradition.”

But the decision to euthanize patients without their permission, he said, “is simply, in the Jewish tradition, homicide.”

The interchange came near the start of “Law, Medicine, and the Pursuit of Justice: Individual Rights vs. Societal Obligations.” The two-hour dialogue was held in a hall full of more than 500 attorneys, many of them receiving continuing legal education credits. 

Referring to the recent hurricanes that have devastated parts of Texas, Florida, and the Caribbean, moderator Lubin opened the discussion by asking whether aid and treatment should be given to people who ignore warnings to leave their homes before a storm hits.

“There is an obligation, but there are exceptions,” said the third panelist, Francine Halushka Katz, a senior healthcare attorney at Axiom Law-Life Sciences Group, a legal consulting company. “When their own lives are at stake, we do allow members of rescue organizations to say, ‘We are not going out to rescue people who are making the choice [not to evacuate].’” 

Turning to the question of whether immigrants who come to the United States with the specific purpose of gaining access to medical care, Katz said, “It could be a question of foreigners taking advantage of our healthcare system….” But regardless, she added, many of them “should receive care up front” to prevent them from running up higher medical costs should they become more ill.

When considering the case of immigrants, even those without proper documents, Caplan urged the audience to “think of the people who mow your lawn, take care of your kids, fix your food. Do you want them to have hepatitis? Do you want them to have the flu? Do you want them to spread diseases?” He called it “imprudent” to deny anyone — especially those holding such jobs — basic healthcare. 

Changing the subject as to whether Americans — like people elsewhere in the world — should be allowed to buy organs for transplantation, Caplan said poor people in other countries who sell their organs “are usually worse off” after doing so because “they cannot afford aftercare. There is no doubt,” he said, that the practice is “raw exploitation.” 

Broyde suggested that government-regulated buying and selling of kidneys might relieve critical donor shortages, noting that Jewish tradition wouldn’t consider it “nefarious” to sell a kidney to a person in need. 

“Compensation doesn’t have to take the form of cash,” said Katz, suggesting that tax credits be issued for donors’ expenses and protections be put in place so that donors do not have their insurances policies rescinded after giving organs.  

As to whether insurance companies should have access to knowledge of genetic weaknesses in a person’s DNA, Katz pointed out that “by federal law they are not allowed to use that information to determine a person’s eligibility for health insurance.” 

But, Caplan said, the insurance companies have been known to consider genetic and other risk factors for potential policy holders. He noted that during the AIDS epidemic some companies refused to sell insurance to anyone who lived in specific zip codes with large gay populations.

He said that in the near future, prenatal blood tests will be able to determine the DNA of an 8-week-old fetus. 

Turning to religious differences in medical care, Lubin asked what to do about “patients’ discriminatory demands couched in religious requirements.” 

There was consensus that female patients should be cared for by women doctors if so requested. The request to be treated by a co-religionist “is very often honored because you care about a patient’s satisfaction report,” said Katz. Poor reports may decrease a hospital’s payments from Medicare “so effectively the government is encouraging us to honor potentially discriminatory requests in the part of the patients.” 

“What would to do with a racial request?” asked Lubin. 

“You want to make patients happy,” Katz responded.

“What do you say?” the moderator asked Caplan.

“I say ‘screw them,’” the bioethicist replied to applause and laughter.

But, he said, some requests that would appear discriminatory might be “medically relevant,” such as when a combat veteran asks to be treated for post-traumatic stress disorder by a fellow service member. 

“But generally speaking, on the race issue or the religious issue, we don’t accommodate,” Caplan insisted. 

Broyde said Jewish tradition accepts a “reasonable request” for cultural compatibility, “Having a physician who speaks your native language is not a ridiculous request and should not be casually denied in the name of equality.”

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