There is an
urgent matter on the desk of British Prime Minister Boris Johnson today. A
two-year-old girl named Alta Fixsler, an Israeli citizen residing in the U.K.,
was born with a severe brain condition, and her parents have sought every
recourse they could for her care. Tragically, against her parents’ wishes,
Alta’s doctors at the Royal Manchester Children’s Hospital (RMCH) have decided
to remove the little girl from life support against her family’s will. Her
parents have made arrangements to have her moved to Israel, and the government
of Israel and two different Israeli hospitals support Alta’s parents in the
matter and have agreed to care for her. However, RMCH has petitioned a judge of
the British High Court to disconnect her life support, and their motion has
been granted against her parents’ and the Israeli government’s wishes. The
Israeli Minister of Health has now petitioned the U.K. Secretary of State for
Health and Social Care to permit Alta to be transferred to Israel.
A similar and notorious English case came before the
European Court of Human Rights some four years ago, concerning a young boy
named Charlie Gard. In June of 2017, the ECHR ruled that as a matter of law it
was in Charlie’s best interests to die, and his parents were wrong to seek to
preserve his life while pursuing a potentially life-saving experimental
procedure. In that case, as in this one, a foreign hospital had offered to
provide further care at no cost whatsoever to the British healthcare system or
any British hospital.
Little Alta is now in danger of being left to die just as
Charlie Gard was, against her parents’ wishes.
This constitutes a violation of Alta Fixsler’s right to
life, of her parents’ right to choose how to care for their child, of her
parents’ religious freedom, and of the laws of the Republic of Israel of which
she is a citizen. Once again, we have here a shocking example of the European
trend to disregard an individual’s right to life, relying either on physicians,
judges, or politicians to determine the value of an innocent person’s life.
First, Alta’s right to life is of paramount importance.
Without protecting the right to life, a society cannot protect any other of
that individual’s critical freedoms, such as the freedom of speech, of
association, or of the press; a dead person has no freedom of any sort at all.
Neither can the RMCH argue that Alta’s right to life comes into conflict with
other public interests, such as might be the case if her ongoing medical care
were to cost the NHS large sums of money. Her parents merely seek to return to
their home country, where they will avail themselves of medical care at no cost
to the United Kingdom. Second, it is Alta’s parents, not the RMCH or the courts
of the United Kingdom, that have the right to make final decisions regarding
the termination of her life support. Third, Alta’s parents are Hassidic
Orthodox Jews, and their faith requires that life support never be terminated
for a human with a life expectancy of more than six months. The State of Israel
forbids the same by law. One physician has estimated her life expectancy at six
to eight years, with the likelihood she will live into her teens if she once
reaches age four. To terminate her life support would violate her family’s
religious freedom and show a disregard for the laws of her home country.
Moreover, since Alta is an Israeli citizen, and since the State of Israel has
offered to care for her at its own expense, for the RMCH to refuse to
release her may even constitute false imprisonment of an Israeli citizen whose
family desires to transport her elsewhere for treatment.
One would hope that Alta’s life could be preserved upon
appeal to the ECHR. Sadly, as we have seen in the case of Charlie Gard, the
ECHR would be unlikely to overturn this decision. Nonetheless, there are some
differences between Alta’s case and Charlie’s that are worthy of consideration.
There are three questions at the core of the legal issue
in Alta’s case.
The first is who has the right to make decisions for Alta.
In this respect, the ECHR is sadly unlikely to disagree with the judgment of
the British High Court. According to the Family Division of the British High
Court, Alta’s medical doctors are responsible to testify as to what is best for
the child even if this violates her parents’ wishes or religious beliefs. In
this case, all the doctors involved agree that she would experience severe pain
if she were transported. However, her parents and the government of Israel
believe that she could perhaps be saved, and Israeli law once again requires
that her life be preserved due to her long life expectancy. Nonetheless, since
the RMCH believes her chances of survival to be minimal, British courts have
judged that the pain she would suffer outweighs any benefit. This is tragic and
highlights the need for the British government to grant leave for her to be
transported to Israel; the British legal system will not save her.
The second legal issue is one of religious liberty. Since
Alta’s parents’ faith forbids terminating her life support, the decision of the
High Court’s Family Division is a direct violation of Alta’s freedom of
thought, conscience, and religion under Article 9 of the European Convention on
Human Rights. However, the court in Alta’s case did not draw this conclusion so
simply. It did not agree that little Alta could be assumed to be a member of
the same religious faith as her parents, but implied that she should instead be
treated neutrally (i.e., as someone without faith), and her objective
well-being should be assessed by her doctors, giving relatively little weight
to her parents’ preferences.
The court also presented a shallow analysis of the meaning
of religious observance which deprived it of its power. The court treated
religion merely as a means to personal comfort or joy; and sadly, because
of little Alta’s condition, she is unable to experience many, if any, pleasant
sensations. The court therefore implied that, even if Alta were considered an
Orthodox Jew, such religious faith should not be weighed heavily because she
would be unable to benefit from it. This of course is a misunderstanding of the
depth, breadth, and nuance of the freedom of religion. Religious faith and
observance are often grounded in views of reality that are understood to give
one’s life objective meaning independently of how the adherent feels or
experiences that faith.
There may also be some chance that the ECHR would view
Alta’s case differently than Charlie Gard’s. In the Gard case, Charlie’s
parents were of similar personal conviction to Alta’s, and of course the ECHR
sadly did not protect their religious freedoms. However, the Fixslers have a
formal affiliation with a religious denomination that officially forbids such
termination of life support, which may carry greater weight than the mere
personal convictions of her parents. It is at least a distinction the Court
might be persuaded to consider. In either case, it would be best for the
British government to grant the request of the Israeli Minister of Health and
intervene on her behalf, to avoid the risk that she be allowed to die
prematurely.
The third legal issue is one of international
jurisdiction. Alta is a citizen of Israel and, as noted above, the laws of the
State of Israel forbid the termination of life support for a medical patient
with a life expectancy of more than six months. It is difficult to establish
Alta’s precise life expectancy, but at least one physician estimates it to be
between six and eight years at the least, twelve to sixteen times longer than
the time period permitted by Israeli law. There is even a reasonable
possibility she could survive into her teens. The decision of the Family
Division of the British High Court, if upheld, would therefore almost certainly
violate Israeli law. Though the RMCH is not within the State of Israel, it
nonetheless seeks to force an Israeli citizen who is currently in the United
Kingdom against her will to be left to die when her home country has requested
she be released, and such release would have no adverse consequences to the RMCH.
It could only hypothetically harm Alta, if one falsely assumes that her life is
of less importance than the physical pain she would suffer if moved.
https://eclj.org/euthanasia/coe/alta-fixsler-a-new-charlie-gard-urgent-calls-made-to-the-office-of-prime-minister-boris-johnson?lng=en
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