Orthodox Coercion in Israel

...That brings us to the second question: should this presumed background be one of consent or of non-consent...

...Either choice allows a determined and foresight-ful person to deviate through his own prior explicit statement...

...Is that any way for a Jewish state to behave...

...The terms of entry of Agudat Yisrael into Israel's new governing coalition will reawaken and exacerbate these controversies, I predict...

...Had these defects been remedied, it still would have been a vicious crime, even if they had randomly selected the subjects from the total population (including non-Jews...

...I do not claim that post mortum autopsies are anywhere near as objectionable as experiments upon the unconsenting living...

...I have left open the difficult question of how much weight this is to be given...

...Still, happily we have come upon yet another way that Israel's nature as a Jewish state appropriately can be expressed...

...Thus, only for the lackadaisical is the question relevant, and for them perhaps it is not especially pressing...

...Unlike the case of epidemic, where others might be harmed by the spread of disease from their unwitting bearers, here people merely will not be helped as much as possible...

...This is not to say that Jewish law should govern in all situations...

...Perhaps the Orthodox now should be following the rules they would formulate and follow if all were Orthodox, e.g., with regard to autopsies or serving in the armed forces...

...The primary party is the person whose body is to be autop-sied, and his previous explicitly given (unrevoked) consent or non-consent should settle the question, whatever the wishes of others in his family...

...But with regard to autopsies, we cannot describe Israel currently merely as a state where the presumed background goes the other way, against the direction of Jewish law and custom...

...This is a stronger question than the Orthodox themselves ask, who apparently are willing also to compel autopsy when one of two similarly sick people has died, in order to aid in the treatment of the other...

...People now will argue not only about the coalition issues themselves (religious women in the armed forces, halachic conversion and the Law of Return...

...In this instance, the Nazi's crime was not only the vicious intent of their "medical experiments" or the fact that these were not well designed to advance knowledge...

...And no doubt there should be more stringent standards than currently on the treatment of laboratory animals also, but that is another matter...

...But there is one point in the coalition agreement which is designed to remove an imposition by the non-Orthodox upon the Orthodox...

...If this view were followed in the case of autopsies, an autopsy could be performed upon a Jewish person in Israel only if he had either explicitly consented beforehand or if he had said nothing explicit but his immediate family unanimously consented...

...The Orthodox are not to be compelled to serve others through being autopsied, but should others be condemned to hospitals with suboptimal rates of autopsy because some beds are occupied by unautopsiable people...

...for example, it would not justify compulsory participation in harmful medical experiments...

...It also seems permissible for those hospital officials who are convinced (and can demonstrate) that only thereby can they achieve certain standards of care, to restrict admissions to only those people who consent beforehand to being autopsied (should the eventuality arise...

...the controversy will spread...

...so other sick people will not receive as fine medical treatment as it otherwise would be possible to give them...

...Most of us, after all, do care about some things which might occur after our deaths, e.g., to our reputations...

...Unconsenting people may not be treated like laboratory animals...

...There is a presumption that it be the presumption...

...This is the case with army and reserve duty, supported and voted for by Agudat Yisrael whose own non-serving increases the burden on the others...

...The Orthodox are perfectly right in saying that barring very strong reasons, autopsies should not be forced upon those who object for religious reasons...

...The current situation in Israel allows autopsies to be ordered to determine if death was caused by foul play, or if the cause of death was completely unclear (a healthy person dies suddenly), or to detect hereditary disease to help yet unborn children, or to detect epidemic diseases...

...But one general point does apply to both...

...If you didn't think of both of these, you've been accustomed to ignoring part of Israel's complexities...

...This differs from the position of Agudat Yis-rael...

...Only if they disagree among themselves or if there is no family to consult do we turn to the presumed background...

...This raises very interesting and delicate questions: do the Orthodox, rather than bringing halachah into line with what is necessary for the functioning of a society which is almost all Jewish, depend upon the willingness of other Jews (instead of upon gentiles, as in the past) to do what they themselves are unwilling to do...

...I assume for the sake of discussion that the Orthodox do hold to the position of Jewish law and custom on this issue, thereby bypassing difficult issues, given the political interests involved, about how the halachic position is to be determined...

...Granting that the appropriate principle involves consent, two questions remain...

...There has been protest within Israel about the imposition of religious standards upon the secular, e.g., with regard to marriage laws, public transportation on the Sabbath...

...But some modus vivendi had been reached...

...Questions of this degree of intricacy have not yet reached the public arena...

...For there it is not merely a presumption that is operating: even an Orthodox person's explicit non-consent cannot block his own autopsy...

...And second, should the presumed normal course of events be one of non-consent so that explicit consent is required for an autopsy, or should it be one of consent so that explicit non-consent is required to block an autopsy...

...It seems appropriate that one component of a Jewish state be this: when a background must be presumed, from which someone can explicitly opt out or deviate if he wishes, that background should be one in accordance with Jewish law and custom...

...This is not a case merely of happening to benefit from the non-Orthodoxy of others, but approaches exploiting it...

...But no one should scoff at, even if he does not share, other persons' religiously based caring about what happens to their own bodies after death...

...Or, even, a non-Jewish one...

...Finally, if some laws when followed by all are incompatible with a functioning state then, despite my argument earlier, should those particular laws provide a background presumption in a Jewish state, even when enough people will deviate to make it workable...

...fall within this class...

...Should people be treated as resources for the benefit or aid of others, to be used even against their wishes...

...But in answering the question of what the presumption should be, some significant weight is to be given to Jewish law and custom...

...Still, there remains the question of what the background should be, even apart from those without family who are too young to have decided for themselves...

...But if many other Jews choose to behave non-halachieally so that it is not yet necessary for the Orthodox to behave differently, why should they contemplate doing so...

...soon even long standing accommodations and compromises will be reexamined under the light of growing antagonism...

...But if he has not previously explicitly said anything one way or the other, should we turn to his immediate family or should a presumed background come into play...

...The new coalition agreement pledges the Likud government to remove this last power...

...Suppose though that the doctors are right that the quality of medical care will decline somewhat under this proposal...

...Is this sufficient reason to compel autopsies...

...Worried parents will ask whether issues of war should be determined partly by representatives of groups who risk few of their own children in the armed forces, and Robert Nozick is Professor of Philosophy at Harvard University and the author of Anarchy, State and Utopia published by Basic Books...

...these are likely to be the person's own...

...However, things are very different if the others aren't induced to perform this behavior but are required to do so, though they don't object on religious grounds...

...Many will not object at all to autopsies, and these people, of course, are perfectly free to consent beforehand to their own...

...First, whose consent is needed...

...Even here, I can imagine that there also might be very strong reasons for the background presumption to differ from (the rule in) Jewish law...

...And if so, is this wrong...

...autopsies upon those who object (on religious grounds...

...Or is it permissible for them to continue to follow those laws which they can follow in a Jewish state only provided other Jews don't...

...There are some things one may not do to some in order to use them to benefit others...

...Were this to occur, the Orthodox might protest being shunted off to hospitals which perform very few autopsies (or to hospitals which also are less modern in other ways, if the only very modern hospital packages available include autopsies...

...Doctors object that the growth of medical knowledge, in clinical practice and medical research, will be slowed if autopsy can be done only with consent...

...The point is restricted to situations where some presumption or other must be chosen, and where it is only a presumption, that is, where people can choose to deviate from it...

...I suggest (tentatively) that the family's wishes, if unanimous, settle the issue...

...The advancement of medical knowledge and medical treatment does not justify any and every imposition upon people...

...But also, whatever the wishes of the diseased person or his family, three doctors may order autopsies because the precise cause of death among several alternatives is unknown, or to check the doctor's diagnosis...

...Painters would be upset to know their paintings will be destroyed, and so forth...

...I would add: or who object for any other reasons...

...the percentage of autopsies performed with consent in that small population would be insufficient to police doctors' diagnoses or provide experience with rare diseases...