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Court grants injunction to keep brain dead Orthodox man on life support

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Shalom Nethanel Ouanounou

The family of Shalom Nethanel Ouanounou won a victory in a Toronto court on Wednesday, when they convinced a judge to issue an interim injunction to prevent doctors at Humber River Hospital from taking Ouanounou off of life support.

They then drove to the hospital to be with him.

Ouanounou, 25, is breathing with the help of a respirator, after suffering a cardiac arrest brought on by an asthmatic attack on Sept. 27. Doctors say he is brain dead and want to remove him from life support. A death certificate has already been issued.

Ouanounou’s family say he is breathing, his heart is beating and that “Shalom and traditional Orthodox Judaism does not accept brain death as death.”

“Under Jewish law, and in accord with Shalom’s beliefs, Shalom is alive and the application of the brain death criteria expressly violate Shalom’s religious beliefs and thus discriminate against him based on his religion,” read a statement provided by Max Ouanounou, the young man’s father.

On Wednesday, hundreds of members of the Jewish community crowded into the courthouse at 330 University Avenue, as a show of support for the family. A post on Facebook reproduces what appears to be a flyer calling for “urgent action” on the part of the Jewish community. It asked people to show up to the courthouse on Wednesday and bears the “haskama” (agreement, or consent) of “the rabbanim (rabbis) of Toronto.”

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Charles Wagner is the lawyer representing the Vaad Harabonim of Toronto and the League for Human Rights of B’nai Brith Canada in their bids to be granted intervener status in the case.

That status has not yet been granted, though Wagner was present in court during the hearing. Lawyers for the Ouanounou family and the hospital consented to the judge’s order saying the hospital must continue to provide medical treatment to Ouanounou, until the issue can be adjudicated, Wagner said.

The timeline for that hearing is unknown, but the court will be asked to consider an issue that could have far-reaching implications regarding the definition of death and how much deference is granted to a patient’s religious beliefs, Wagner stated.

There is no statutory definition of death in Ontario, “but the generally accepted position of the medical community is that it is with cessation of brain functions,” Wagner said.

A statement provided by Max Ouanounou stated, in part, that, “Withdrawing life support and potentially killing the patient is against Jewish law, and Shalom’s express religious beliefs.

“Shalom seeks an accommodation as a matter of human rights and constitutional law that allows his Jewish beliefs to be considered and accommodated in determining when death occurs.”

For their part, the Vaad and the League for Human Rights supported the family’s bid for an interim injunction.

“The family, and this is the position of my clients, as well, is that they believe that the disinclination of the doctors to accommodate the patient’s religious belief about the definition of death contravenes the (patient’s) rights under the Charter of Rights and Freedoms,” Wagner said.

New Jersey, he added, recognizes a religious exemption to the definition of “brain death.”

The Centre for Israel and Jewish Affairs (CIJA) acknowledged that balancing freedom of religion with end-of-life decisions can be complex and challenging.
“We have engaged the Ontario Ministry of Health and Long-Term Care and are exploring an intervention with the court on this case. Our hope is that there will be a resolution that satisfies all concerned parties and establishes a consensus that informs a protocol for such circumstances in the future, in a manner that will preserve human dignity and the constitutional rights of people of deep faith,” said Berl Nadler, chair of CIJA Toronto.

Joseph Lugassy, one of Ouanounou’s uncles, said the family was “ecstatic” when they heard that the injunction was granted.

“As you know, in our religion, as long as there’s the slightest hope – the heart is going – we cannot take off life support. We always hope for a miracle.”

“Like any parent, we hope the child gets better. His heart is working, his hypothalamus is working, so certain parts of the brain are working,” said Max Ouanounou.

Ouanounou is never alone, his father continued, saying that they “have family there 24/7,” and tehillim (psalms) are being constantly recited in his presence. People have flown in from out of town to support Ouanounou and the family have given him an additional name, Yochai, which translates from Hebrew as “God lives.”

It goes with his previous Hebrew names, Shalom Nethanel, God has given peace, Max Ouanounou said.