Case Number

CA 7918/15

Date Decided

11-24-2015

Decision Type

Appellate

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

A transgender woman ended her life, and, in documents she left behind, she made clear that she wished for her body to be cremated and that most of her ashes be scattered at sea and some be buried in a place for her memory. In her will she asked that the First Respondent act to execute her wishes – this, among others, because she was concerned that her biological family members (who are religious) would object to the cremation of her body. The District Court accepted the Respondent’s motion and ordered to deliver the deceased’s body to be cremated – as she wished. This appeal, which was filed by the deceased’s mother in light of the family’s objection to the body’s cremation, challenges the decision.

The Supreme Court (by Justice N. Hendel, joined by Justices U. Shoham and A. Baron) rejected the appeal for the following reasons:

On the question of authority, the Court believed no in-depth discussion as to which court is authorized to hear the matter – the District Court or the Family Court – is necessary, because the difficulty raised by the jurisdiction issue has been in large part resolved by bringing the matter to the Supreme Court. Beyond the necessary scope, the Court added that in light of the nature of the concrete dispute and the general issues it raised, the District Court was correct in its findings regarding authority.

On the merits, the Court believed that, in balancing the wishes of the deceased and the status of the family, the wishes of the deceased prevail. The roots of the duty to protect the dignity of the deceased – from which the requirement to realize their wishes stems – are in one’s constitutional right to dignity and personal autonomy. The constitutional nature of this duty gives it normative superiority over the family members’ interests and leads to preferring the wishes of the deceased in case of a conflict. In this case, the deceased’s wishes that her body be cremated were clearly expressed in several ways, and there was no factual foundation that points to flaws in her will. Her suicide, shortly after preparing the documents, does not undermine the conclusion regarding her mental capacity. Her free will, therefore, outweighs the family’s position.

However, though the principle of the will of the deceased is significant, it is not absolute. Where there is a legal bar, the will of the deceased yields to it. In our case, as indeed the Appellant maintains, Jewish law prohibits cremation of bodies. However, Israeli law does not restrict individual liberty to diverge from the rules of Jewish law on various issues. The matter should be examined on a case by case basis, while balancing the duty to execute the deceased’s wishes and considerations of public interest and human dignity – all this in light of existing law. In the absence of any provisions requiring burial of bodies, or prohibiting their cremation, and once this does not conflict with the public interest, and such is the case here (as reflected even in the Attorney General’s position), there is no bar to doing so. Explicit legislation by the Knesset would be necessary in order to create a prohibition against the cremation of bodies.

It was therefore ruled that the deceased’s wishes should be respected and that her body must be delivered for cremation in spite of her family members’ objections.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Right to Dignity and Autonomy After Death, Jewish Law -- Burial, Wills and Estates -- Respecting Wishes of Testator

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