Doctors say he's dead. Jewish laws say he's alive. Can a hospital turn off life support?

A legal battle to keep a 25-year-old deemed brain dead on life support is now in the hands of an Ontario judge.

Ontario judge now tasked with deciding whether to continue life support for man deemed brain dead

Shalom Ouanounou has spent close to 20 weeks on life support after he suffered an asthma attack that did irreversible damage to his brain. (CBC)

To the doctors at Humber River Hospital, 25-year-old Shalom Ouanounou is dead. He has no capacity for consciousness, no brainstem reflexes, and no ability to breathe on his own.

But to his devoutly religious family, who adhere to a interpretation of Jewish law that defines death as cardiac and respiratory failure, Ouanounou is very much alive.

Since November, when an emergency injunction was obtained to stop the hospital from ending Ouanounou's life support a few weeks after he was pronounced dead, he's lain in a bed in the west-end hospital as machines support his respiratory and cardiac systems.  

What becomes of him is now in the hands of an Ontario judge, Justice Glenn Hainey, who heard arguments this week for and against the continuation of his life support.

"Ontario has no legal definition of death. Some provinces do, but Ontario doesn't," said Mark Handelman, a lawyer representing Ouanounou via his father, who is acting as his substitute decision maker.

Along with his co-counsel Hugh Scher, Handelman argues that removing life support for Ouanounou, a committed Orthodox Jew, would violate his charter right to freedom of religion.

Heart death vs. brain death

Ouanounou was rushed to hospital on Sept. 27 in the midst of a severe asthma attack that deprived his brain of oxygen, resulting in irreversible damage. He was pronounced dead three days later.

In an affidavit, his father Maxime Ouanounou described his son's identity as being defined by his "strict adherence to his religious beliefs."

Before his asthma attack, "[Shalom] made clear that his beliefs in this regard are that "brain death" is not the same as death," he went on.

The Ouanounou family's lawyers argue that Ouanounou should be treated "in the same manner as any other severely neurologically impaired patient," with everything possible done to prolong his life.

They also want his death certificate revoked and for disputes about the withdrawal of life support to go to Ontario's Consent and Capacity Board in the future. 

Defining death, the lawyers wrote in a factum, must be based "not only on medical criteria but also on individual wishes, values and beliefs."

Blurring definition of death would create 'massive uncertainty'

Meanwhile, a group of three doctors and the Humber River Hospital make the argument that despite the lack of a fixed legal definition, in practice, neurological death is "death at law in Ontario."

Definitions of when life ends need to be applied uniformly, it said in a legal document containing their arguments. Anything else "would create massive uncertainty medically, legally and socially."

As for his religious freedom, "charter rights and freedoms are only enjoyed by living persons," the document says.   

The hospital also expanded on the "extraordinary" measures it is using to keep Ouanounou's cardiac and respiratory systems working, which include numerous antibiotics, hormones, and medications to slow organ death and mimic signals sent out by the brain.

"The only reason that the applicant's heart is still beating is because of the intensity of the interventions being provided to him," argued the hospital, who said that to date the cost of Ouanounou's care has been about half a million dollars. 

Orthodox community rallies

Aliza Karoly, a lawyer who has been working pro bono to help the Ouanounou family and their rabbi navigate the legal process, says the case has caught the attention of the Orthodox community.

"It's very important to us," she said. "We don't want to be caught in a situation in which the hospital doesn't consider what we want."

Karoly said Orthodox Jews filled the courtroom while arguments were being made earlier this week, including high school students who were bussed in for the occasion.

"You have to face the fact that it affects every single one of us in that courtroom," she said.

Parallels with McKitty case

A decision is expected from Justice Hainey in the next one to three months, during which time Ouanounou will remain at the hospital.

Taquisha McKitty has been declared brain dead but her family says she shows signs of life. (Instagram)

Also waiting for a judge's decision is the family of Taquisha McKitty, a Brampton woman who was declared brain dead in Sept. 2017, but whose family wants her to remain on life support. The McKitty family is also being represented by Hugh Scher.

Initial arguments in that case centred on the possibility that McKitty was not in fact brain dead.

Her father said the 27-year-old showed signs of life that included squeezing the hands of family and even shedding tears. 

Scher also introduced an argument similar to Ouanounou's, saying that declaring her dead while her heart continues to beat contravenes her Christian beliefs and amounts to discrimination.