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  • Israel (Issi) Doron (a1) and Charles Foster (a2)

In this article, we present a short case study based on an incident that occurred in Israel several years ago. The incident did not reach the courts but was made public by the family members of the older woman at the center of it. The family argued that the actions taken by one of the parties involved should have been defined as elder abuse, but no criminal charges were ever brought. Yet the issues concern key legal and ethical questions about law, religion, and older persons. More specifically, the incident raises the issue of the moral commitment to one's past religious beliefs in reference to one's current choices and preferences once living with dementia. We contend in this article that an Aristotelean account of human dignity would have provided the most satisfactory way to resolve the tensions created by this incident.

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1 See Peter Auer and Mariàngels Fortuny, Ageing of the Labour Force in OECD Countries: Economic and Social Consequences, Employment Paper 2000/2 (Geneva: International Labour Office, 2000),; David E. Bloom and David Canning, “Global Demographic Change: Dimensions and Economic Significance” (paper presented at the Federal Reserve Bank of Kansas City Symposium on Global Demographic Change: Economic Impacts and Policy Challenges, Jackson Hole, August 2004),

2 See Israel Doron, “Demographic, Social Change and Equality,” in Equality Law in an Enlarged European Union, ed. Helen Meenan (Cambridge: Cambridge University Press, 2007), 117–44; Kevin Kinsella and Wan He, An Aging World: 2008, U.S. Census Bureau International Population Reports P95/09-1 (Washington, DC: United States Government Printing Office, 2009).

3 See Israel Doron, “The Socio-Demographics of Dementia,” in Dementia, Law and Ethics, ed. Charles Foster, Jonathan Herring, and Israel Doron (Oxford: Hart, 2014), 15–24; Ferri, Cleusa P. et al. , “Global Prevalence of Dementia: A Delphi Consensus Study,” Lancet 366 (2006): 2112–17.

4 Alzheimer's Association, “2014 Alzheimer's Disease Facts and Figures,” Alzheimer's and Dementia 10, no. 2 (2014): e47e92 .

5 See Herring, Jonathan, “Losing It—Losing What—The Law and Dementia,” Child and Family Law Quarterly 21 (2009): 329 .

6 See Boyle, Geraldine, “Social Policy for People with Dementia in England: Promoting Human Rights?,” Health and Social Care in the Community 18, no. 5 (2010): 511–19; Knüppel, Hannes et al. , “Inclusion of Ethical Issues in Dementia Guidelines: A Thematic Text Analysis,” PLOS Medicine 10, no. 8 (2013), doi:10.1371/journal.pmed.1001498.

7 While the case we present is based on an actual incident, various facts were changed in order to maintain the parties' anonymity and to better reflect the ethical dilemma of the case.

8 See Ilana Rosen, Sister in Sorrow: Life Histories of Female Holocaust Survivors from Hungary (Detroit: Wayne State University Press, 2008); Schiff, Brian et al. , “Consistency and Change in the Repeated Narratives of Holocaust Survivors,” Narrative Inquiry 16, no. 2 (2006): 349–77.

9 See Brodaty, Henry et al. , “Vulnerability to Post-traumatic Stress Disorder and Psychological Morbidity in Aged Holocaust Survivors,” International Journal of Geriatric Psychiatry 19, no. 10 (2004): 968–79; Yehuda, Rachel et al. , “Impact of Cumulative Lifetime Trauma and Recent Stress on Current Post-traumatic Stress Disorder Symptoms in Holocaust Survivors,” American Journal of Psychiatry 152, no. 12 (1995): 1815–18.

10 See Greene, Roberta, “Holocaust Survivors: A Study in Resilience,” Journal of Gerontological Social Work 37, no. 1 (2002): 318 ; Greene, Roberta R., “Holocaust Survivors: Resilience Revisited,” Journal of Human Behavior in the Social Environment 20, no. 4 (2010): 411–22; Shrira, Amit et al. , “Do Holocaust Survivors Show Increased Vulnerability or Resilience to Post-Holocaust Cumulative Adversity?,” Journal of Traumatic Stress 23, no. 3 (2010): 367–75.

11 See Anderson, Keith A., Fields, Noelle L., and Dobb, Lynn A., “Understanding the Impact of Early-Life Trauma in Nursing Home Residents,” Journal of Gerontological Social Work 54, no. 8 (2011): 755–67.

12 See Paula David and Sandi Pelly, eds., Caring for Aging Holocaust Survivors: A Practical Manual (Toronto: Baycrest Centre for Geriatric Care, 2003).

13 See Gavison, Ruth, “Jewish and Democratic? A Rejoinder to the ‘Ethnic Democracy’ Debate,” Israel Studies 4, no. 1 (1999): 4472 ; Gross, Michael L. and Ravitsky, Vardit, “Israel: Bioethics in a Jewish-Democratic State,” Cambridge Quarterly of Healthcare Ethics 12, no. 3 (2003): 247–55.

14 See Shalev, Carmel, “End-of-Life Care in Israel—The Dying Patient Law, 2005,” Israel Law Review 42, no. 2 (2009): 279305 ; Steinberg, Avraham and Sprung, Charles L., “The Dying Patient: New Israeli Legislation,” Intensive Care Medicine 32, no. 8 (2006): 1234–37.

15 See Coggon, John, “Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?,” Health Care Analysis 15, no. 3 (2007): 235–55.

16 See Doyle, Patrick J. and Rubinstein, Robert L., “Person-Centered Dementia Care and the Cultural Matrix of Othering,” Gerontologist 54, no. 6 (2014): 952–63.

17 See Trau, Jane M. and McCartney, James J., “In the Best Interest of the Patient,” Health Progress 74 (1993): 50.

18 See Sulmasy, Daniel P. and Snyder, Lois, “Substituted Interests and Best Judgments: An Integrated Model of Surrogate Decision Making,” Journal of the American Medical Association 304, no. 17 (2010): 1946–47.

19 In re Jobes, 529 A.2d 434, 445 (N.J. 1987).

20 See Kopelman, Loretta M., “The Best-Interests Standard as Threshold, Ideal, and Standard of Reasonableness,” Journal of Medicine and Philosophy 22, no. 3 (1997): 271–89; Kopelman, Loretta M., “The Best Interests Standard for Incompetent or Incapacitated Persons of all Ages,” Journal of Law, Medicine and Ethics 35, no. 1 (2007): 187–96.

21 See Philip Alston, ed., The Best Interests of the Child: Reconciling Culture and Human Rights (Broadbridge: Clarendon Press, 1994).

22 See Gutheil, Thomas G. and Appelbaum, Paul S., “Substituted Judgment: Best Interests in Disguise,” Hastings Center Report 13, no. 3 (1983): 811 .

23 In re MM (An Adult) [2007] EWHC 2689 (Fam), para. 99.

24 Mental Capacity Act, 2005, c. 9,

25 Ibid.

26 See Moskowitz, Seymour, “Adult Children and Indigent Parents: Intergenerational Responsibilities in International Perspective,” Marquette Law Review 86 (2002): 401–45.

27 Exodus 20:12 (New Revised Standard Version).

28 See Ziettlow, Amy and Cahn, Naomi, “The Honor Commandment: Law, Religion and the Challenge of Elder CareJournal of Law and Religion 30, no. 2 (2015): 229–59; Goldberg, Charlotte K., “The Normative Influence of the Fifth Commandment on Filial Responsibility,” Marquette Elder Law Advisor, no. 10 (2009): 221–44.

29 See Moshe Lieber, The Fifth Commandment: Honoring Parents—Laws, Insights, Stories and Ideas (New York: Mesorah Publications, 1998).

30 Our use of the term “Jewish law” in this article should not be confused with either “Israeli law” or “Jewish ethics.” “Israeli law” refers to the laws of the State of Israel. Sometimes those laws reflect Jewish traditions or halachic rules, but they are the outcome of a secular and democratic process. “Jewish ethics” does not refer strictly to the halacha or the Orthodox rulings but rather to the broader philosophical and ethical grounds of a Jewish religion and tradition.

31 Abraham S. Abraham, The Older Patient—A Halakhic Perspective on Nursing Issues [in Hebrew] (Jerusalem: Reuven Mass Publications, 1989).

32 See Charles C. Foster and Jonathan Herring, Altruism, Welfare and the Law (New York: Springer, 2015).

33 See Charles C. Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (London: Bloomsbury Publishing, 2009).

34 See Christman, John, “Relational Autonomy, Liberal Individualism, and the Social Constitution of Selves,” Philosophical Studies 117, no. 1 (2004): 143–64; Mackenzie, Catriona, “Relational Autonomy, Normative Authority and Perfectionism,” Journal of Social Philosophy 39, no. 4 (2008): 512–33.

35 See Harris, John, “Cloning and Human Dignity,” Cambridge Quarterly of Healthcare Ethics 7, no. 2 (1998): 163–67; Macklin, Ruth, “Dignity Is a Useless Concept: It Means No More Than Respect for Persons or Their Autonomy,” British Medical Journal 327 (December 2003): 2027 .

36 See Foster, Charles, “Putting Dignity to Work,” Lancet 379, no. 9831 (2012): 2044–45; McCrudden, Christopher, “Human Dignity and Judicial Interpretation of Human Rights,” European Journal of International Law 19, no. 4 (2008): 655724 .

37 See Aharon Barak, Human Dignity: A Constitutional Value and a Constitutional Right (Cambridge: Cambridge University Press, 2015).

38 See Charles C. Foster, Human Dignity in Bioethics and Law (Oxford: Hart, 2012).

39 See Hale, Brenda, “Dignity,” Journal of Social Welfare and Family Law 31, no. 2 (2009): 101–8.

40 Beauchamp and Childress's four principles—respect to autonomy, beneficence, non-maleficence, and justice—form one of the most widely used ethical frameworks in bioethics. See Tom Beauchamp and James Childress, Principles of Biomedical Ethics, 5th ed. (Oxford: Oxford University Press, 2001).

41 See Charles Foster, “Dignity and the Use of Body Parts,” Journal of Medical Ethics (2012):  44–47.

42 See Foster, Charles, “Dignity and the Ownership and Use of Body Parts,” Cambridge Quarterly of Healthcare Ethics 23, no. 4 (2014): 417–30.

43 See, e.g., Macklin, Ruth, “Dignity Is a Useless Concept,” British Medical Journal 327, no. 7429 (2003): 1419–20; Bagaric, Mirko and Allan, James, “The Vacuous Concept of Dignity,” Journal of Human Rights 5, no. 2 (2006): 257–70; Harris, John, “Cloning and Human DignityCambridge Quarterly of Healthcare Ethics 7, no. 2 (1998): 163–67; Peter Singer, Applied Ethics (Oxford: Oxford University Press, 1986), 228.

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Journal of Law and Religion
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  • EISSN: 2163-3088
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