Yechezkel Nakar died on May 31, 2017. He had a stroke, was admitted to NewYork-Presbyterian Hospital/Columbia University Medical Center, and was later declared brain dead.
His family, however, disputed what the doctors said. Because the Orthodox Jewish man was still breathing after being declared brain dead, they considered him alive for another three weeks, when his heart finally gave out at Maimonides Medical Center, where he had been transferred after his (official) death.
The question is: When did he die: when the doctors said he did or when his religious family declared it so (because they don’t accept the “halachic validity” of brain death)?
The family eventually sued to rescind the death certificate. It wasn’t just a moot point. Insurance companies won’t pay for those three weeks of his care if he was technically dead.
A judge has now apparently ruled in the family’s favor, giving a dead man three additional weeks of life… on paper. The Jewish publication Hamodia celebrated the decision and spoke with the Nakar family’s attorney:
Several legal statutes require that companies and organizations provide what is termed “reasonable accommodation” to the beliefs of religious individuals. Like many hospitals, Columbia-Presbyterian’s protocol instructs doctors not to remove life-sustaining equipment after brain death has been declared in cases of religious or moral objection to doing so, but to hand the matter over to another department in the hospital.
“We would argue that if the term [reasonable accommodation] is to have any meaning at all, it must mean that the hospital should make a sincere effort to actually accommodate the next of kin’s objection to brain death as a definition of death,” read the court filing on Mr. Nakar’s behalf. “This would mean not proceeding to conduct the brain death test, and certainly would also mean to not declare the patient dead based on the brain death test. It would also mean giving the family the opportunity to transfer the patient to another facility rather than conducting the brain death test and declaring the patient dead.”
“This is a clear and very strongly worded legal recognition of the responsibility of hospitals to accommodate religious beliefs,” [attorney Morton Avigdor] told Hamodia. “This is not just about one hospital, it will affect all of the city and likely beyond, who will have to rethink the way they treat religious rights.”
How religious groups use this victory to their advantage remains to be seen, but it seems like a dangerous precedent to allow religious concerns to override expert opinions regarding when someone is legally dead. Just because you don’t accept the science doesn’t mean there’s anything wrong with it. We accept that with evolution and climate change deniers, but extending that to when someone is declared dead for legal purposes seems like a stretch that gives religious beliefs more power than they should have in a secular society.
That said, declaring when someone is dead is about as clear cut as when we declare someone alive. The latter has been the source of countless debates regarding autonomy and abortion. While we’re not as familiar with the former as a source of controversy, there are religious objections surrounding it, too.
I’ll post the opinion itself if I can get ahold of it. (No luck so far.)