The delicate issue of organ trade is continuously on the public agenda and from time to time moves to center stage. The issue naturally arouses strong emotions and arguments and creates an urgent need to bridge opposing and uncompromising positions. On one hand, there is a need to solve the problem of sick people waiting for transplants, yet, on the other hand, it is difficult, and perhaps impossible, to accept the notion that trade in human organs and tissue is permissible.

The demand for transplant organs exceeds the supply available from donations of deceased individuals. In Israel, for example, there are approximately 600 individuals waiting for a kidney transplant, while the number of transplants performed in practice does not exceed about 110 a year. The waiting list increases by 10%-20% annually. It is therefore not surprising that some of the patients die waiting for the life-saving transplant.

The source of organ donations to date is a deceased donor or a living relative and is on a purely altruistic basis, without direct or indirect monetary reward. As demand exceeds supply, those in need of a transplant turn in despair to other donors, foreigners and in most cases completely anonymous individuals in the aim of buying an organ from their body. When a buyer meets a seller, a black market develops on an international scale that functions according to the rules of supply and demand and crosses borders and countries. A sick person in one country may contact an intermediary in another country. The latter will find a donor in a third country, while the operation will be performed in a fourth country. The entire process is conducted covertly, or with the silent consent of the authorities, and is always illegal in the involved countries. Huge sums of money change hands during this complex process, enjoyed by the intermediary, the surgeon, the hospital and the organ donor. The organ donor usually receives a tiny and insignificant portion of the money that changed hands in the transaction.

The directive of the Director of the Medical Administration in the Ministry of Health (68/97) prohibits any form of organ trading as well as transplants of organs received in exchange for money. Doctors violating the provisions of this directive risk disciplinary and criminal procedures against them, including the loss of their license to practice medicine. In line with this position of the Ministry of Health, the IMA Ethics Bureau (December 1997) position paper prohibits organ trading and their use. This position is also accepted throughout countries in the Western world, including all international medical organizations.

In line with this approach, the government also submitted to the Knesset draft legislation to amend the People’s Health Ordinance (Num. 13) – 1991. According to the draft bill, it is prohibited to sell and buy organs. The transaction itself is annulled and the parties to the transaction carry criminal responsibility. However, reality forces us to deliberate this issue once again. There is an immediate need to find an urgent solution to the distress of patients and to their desperate need for transplant organs, a solution that is not available under the current conditions. Many voices have recently called for permitting organ trade from a living donor as part of a national system that will prohibit direct trading between the parties, but rather through a central organization. This organization will be responsible for compensating the donor and will provide the donated organ to the individual waiting for a transplant who is most suited to receive the specific organ.

The High Court of Justice in Israel deliberated the issue in a single hearing (H.C. Itri, 161/94) and rejected the petitioner’s request that the court order the Minister of Health to formulate regulations that would permit the plaintiff to sell a kidney and, in doing so, solve his financial problems. The High Court accepted the position of the Minister of Health that such a complex and sensitive issue should be resolved through legislation that will address legal, moral and ethical issues.

Against this backdrop the Ministry of Health formulated the “Draft Law – Organ Transplants, 2002” that permits, under defined circumstances, compensation when taking an organ from a live donor.  This would include expenses involved in performing the medical procedures, as well as compensation for loss of time, loss of income and temporary loss of earning ability. The compensation will be paid to the donor by the National Transplant Center. Any kind of brokering between a donor and a donation recipient would be forbidden.

The Ethics Bureau held a long discussion on the issue of organ trade with the aim of striking the moral and ethical balance required between the needs of patients and those in need of a transplant, and the potential risk to organ sellers, as well as the broad social significance of the existence of such organ trade. The position of the majority of Ethics Bureau members, as formulated after a prolonged discussion, is specified here. The Bureau members are aware that this position expresses a fragile balance between opposing approaches, a compromise balancing profits and losses, some tangible and immediate and some intangible, pertaining to values of abstract social morality that shape the essence of our life as a human society. Given that these values are not absolute and may change, the position of the Bureau on this issue should be reexamined in the future.

• Organ donation is a moral duty imposed on the entire society.
• State authorities should act to educate and inform doctors and the public at large about this issue.
• In the case of organ donation from a deceased donor, the state may compensate the donor’s family.
• Organ donation and compensation will be handled through a central national organization.
• There shall be no direct contact between the donor’s family and the organ recipient.
• Compensation shall be in the form of medical-financial benefits and not direct monetary consideration.
• Organ trading from a live donor creates social class discrimination, is unethical and is therefore fundamentally wrong.
• Therefore, an organ from a live donor should not be sold or bought.
• A doctor shall not be involved directly or indirectly in the sale or purchase of organs.
• A doctor shall not conduct an organ transplant operation with an organ bought from a live donor.
• This position shall be reevaluated in case of a change in legislation or the position of the public.