DATE: February19, 2025

This is to express our strong opposition to S1965 an Act to amend the public health law and the surrogate’s court procedure act, in relation to restoring medical futility as a basis for both surrogate consent to a do not resuscitate order and for a do not resuscitate order for a patient without a surrogate.

Informed by classical Jewish tradition which teaches that all human life is sacred, and possessed of the firm view that laws that undermine the sanctity of human life send a message that is profoundly dangerous for all of society, Agudath Israel’s interest in the issue of conditions under which a DNR order can be placed is especially keen. There is a whole medical literature on the topic of how the presence of a DNR order in a patient’s chart increases their chances of dying, for example an article in Critical Care Medicine, June, 2017, Quantifying the Mortality Impact of Do-Not-Resuscitate Orders in the ICU.

S1965 is designed to take the power of decision-making away from the patient, family, and surrogate and allow doctors to place DNR orders if they argue that the case is one of “medical futility.” Unfortunately, the concept of medical futility is not a clear one. An article in the Journal of Medical Ethics and History of Medicine, published on October 20, 2016, “Medical futility and its challenges: A review study” concludes, “Medical futility is an extremely complex, ambiguous, subjective, situation-specific, value-laden, and goal-dependent concept which is almost always surrounded by some degrees of uncertainty. Thus, there is no objective and valid criteria for determination of medical futility.”

Moreover, unclear concepts open the door to discrimination. The National Council on Disability, in a November 20, 2019 article, “Federal study finds rampant bias in medical “futile care” decisions”, announces the release of a study, Medical Futility and Disability Bias, which found that “many healthcare providers critically undervalue life with a disability, where they deem treatment “futile” or “nonbeneficial” – oftentimes despite the wishes of the patient to the contrary.”

The concept of medical futility inherently blurs the line between objective medical findings and personal values. Medical professionals, in making decisions about futility, may do so according to their own goals and values, which may not correspond to the values of the patient or the patient’s surrogate. Bill S2894, by reintroducing the concept of medical futility, would be a step towards increasing the power of medical professionals to make decisions that were formerly made by the patient, the family, or the surrogate and therefore threatens the concept of patient autonomy.

As representatives of a people whose values regarding medical interventions require great cultural sensitivity, Agudath Israel rejects the claim that life-or-death decisions can be safely taken from the patient, family, and surrogate and given to healthcare workers.

For all the reasons above we urge you to vote in the negative on this bill.

Click HERE to download the memo.