Organ donation, brain death, and the limits of liberal bioethics

INTRODUCTION Is the regulation of bioethics in Israel exceptional? Does Israeli law regulate questions of life and death differently than in other Western societies, to which Israel proudly compares itself? Scholars who have studied this question have often noted the distinct role Jewish law has played in shaping Israeli bioethics. Hardly any new bill or regulation passes without the approval of leading Orthodox Jewish rabbis. The distinct approach of Jewish law to questions of natality and mortality has reinforced the belief, prevalent among scholars and laypeople alike, that religion is a key element (albeit not exclusive) in understanding Israeli bioethics, and that many bioethical controversies can be understood as reflecting a tension between religious commitments and secular liberal values. The following chapter offers a critique of this line of analysis. Taking the brain death (BD) and organ donation (OD) controversy as our point of departure, we wish to think of Israeli bioethics not as an exception that lies outside of Western liberal bioethics, but rather as a vantage point that allows critical reflection on Western liberal bioethics. Israeli bioethics makes manifest and thus challenges aspects of liberal bioethics that are often hidden or taken for granted in more mainstream bioethics. Specifically, we contend here that the Israeli case of BD and OD exposes two fallacies of bioethics: liberal bioethics seeks to clearly separate science, ethics, and politics whereas such separations are prone to fail, and second, liberal bioethics clearly separates the rights and privileges of individuals and those of groups to which individuals belong, especially family and state. The first divide places scientific judgment as the producer of truth claims independent from ethical considerations and power relations. Thus, for example, determining whether a woman is pregnant is a truth claim of a technological and scientific judgment independent of the normative readings of what are the implications of this pregnancy. The second divide sets the individual as the prime frame of reference. Autonomy and consent are the pillars upon which liberal bioethics promotes the working assumption that individual rights trump the interest of family members and the state. Following Bruno Latour (2012), we will refer to these strategies of separation as “practices of purification”.