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Published online by Cambridge University Press:  20 June 2016

Israel (Issi) Doron
Associate Professor, Head of the Department of Gerontology, University of Haifa
Charles Foster
Fellow of Green Templeton College, University of Oxford; The Ethox Centre and the Faculty of Law, University of Oxford


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.

Copyright © Center for the Study of Law and Religion at Emory University 2016 

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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): 2112–17CrossRefGoogle Scholar.

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

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

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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): 349–77CrossRefGoogle Scholar.

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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): 755–67CrossRefGoogle Scholar.

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

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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): 1946–47CrossRefGoogle ScholarPubMed.

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): 271–89CrossRefGoogle Scholar; 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): 187–96CrossRefGoogle ScholarPubMed.

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 CrossRefGoogle ScholarPubMed.

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): 401–45Google Scholar.

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): 229–59CrossRefGoogle Scholar; Goldberg, Charlotte K., “The Normative Influence of the Fifth Commandment on Filial Responsibility,” Marquette Elder Law Advisor, no. 10 (2009): 221–44Google Scholar.

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): 143–64CrossRefGoogle Scholar; Mackenzie, Catriona, “Relational Autonomy, Normative Authority and Perfectionism,” Journal of Social Philosophy 39, no. 4 (2008): 512–33CrossRefGoogle Scholar.

35 See Harris, John, “Cloning and Human Dignity,” Cambridge Quarterly of Healthcare Ethics 7, no. 2 (1998): 163–67CrossRefGoogle ScholarPubMed; 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 CrossRefGoogle Scholar.

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

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): 101–8CrossRefGoogle Scholar.

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): 417–30CrossRefGoogle Scholar.

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

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