Organ Transplant Law (Israel)

The law combines prohibitions on organ commerce with centralized authorization and rules governing living donation, deceased donation, overseas transplantation, donor compensation, and organ allocation.[2][1] Sections 3 and 4 prohibit giving or receiving remuneration for an organ removed during a person's lifetime or after death. Remuneration is defined as money, a money equivalent, a service, or another benefit. The statute also prohibits direct or indirect mediation between donors and recipients when prohibited remuneration is involved, as well as collecting a fee for such mediation.[2]

Section 36 imposes criminal penalties for violations. Brokering an organ sale, receiving or providing remuneration for such brokering, and removing or implanting an organ without the required permit may each be punished by up to three years' imprisonment or a fine.[2] Unauthorized import or export of an organ, providing remuneration for consent to donate after death, and privately funding specified burial or transportation expenses carry a lesser penalty of up to six months' imprisonment or a fine.[2] Certain offences apply even when the planned removal or transplant is to take place outside Israel, giving the law extraterritorial reach over specified conduct by Israeli residents and entities.[1]

The statute excludes several categories from prohibited remuneration. These include reciprocal living-donation arrangements involving relatives or acquaintances; fixed state compensation for financial losses reasonably incurred through organ removal; benefits distributed by a corporation approved by the Minister of Health under statutory conditions; and specified burial, transportation, and air-transport expenses for the body of a deceased donor whose organs were removed for implantation.[2]

Before 2008, cadaveric organ removal was governed in part by the Anatomy and Pathology Law, 5713–1953. It permitted a physician to operate on a body for the curative treatment of another person when three authorized physicians certified that the operation served that purpose, and it required reasonable notice to relatives before a therapeutic dissection.[5] In urgent, life-saving situations, the waiting period could be shortened to the latest time at which the organ remained usable, and dissection could proceed if a reasonable attempt had been made to locate relatives. The law listed corneal transplantation to prevent blindness and the use of a deceased person's kidney or skin tissue to save life among the permitted life-saving uses.[5]

From the mid-1990s until 2008, Israeli health maintenance organizations reimbursed patients for transplants performed abroad, creating a strong incentive to pursue commercial transplants.[3] The later legislation was also shaped by debates over altruism, compensation, and the persistent shortage of organs. An early academic assessment described the law as grounded in the view that organ sales are unethical and donation should be altruistic, while questioning whether the available compensation would increase the supply of kidneys.[6]

The Knesset enacted the Organ Transplant Law, 5768–2008, on March 24, 2008.[1] The explanatory notes to the draft bill stated that the law sought to eliminate organ trading and prevent exploitation of donors and recipients by criminalizing organ trading and mediation while establishing comprehensive rules for organ removal and implantation, backed by criminal sanctions and monetary penalties.[2]

The law regulates a National Center for Implantations under the Ministry of Health. The National Transplant Center had originally been established by the Ministry in 1994, and its activities are now governed by the 2008 legislation.[2][7] It is the sole body responsible for registering transplant candidates, managing the national waiting list, allocating organs, and authorizing transplants performed in Israel.[7][8]

The Center's objectives include increasing organ donations and transplantations and centralizing oversight of organ removal and implantation.[2] Its allocation policy is described as egalitarian, computerized, and transparent, applying organ-specific criteria that include blood type, height, weight, medical urgency, age, waiting time, tissue matching, and the likelihood of saving life or improving quality of life.[9] When candidates are equally eligible under these criteria, the Center may consult independent specialists and additional experts before making an allocation decision.[9] The Health Ministry has stated that discrimination based on religion, race, or nationality is not permitted in the allocation process.[10]

The Adi donor card is the principal mechanism for registering willingness to donate after death. Israeli citizens from age 17 may sign regardless of health status, and registrations are kept in a confidential database managed by the Center.[8] Signing a card does not guarantee that organs will be removed: the family is consulted and may refuse donation even when a card has been signed. Registration may be cancelled at any time by notifying the Center.[8]

The law establishes detailed protections for living donors. It requires informed, voluntary consent and prohibits pressure, coercion, and illegal payment throughout the process.[1] Donors may withdraw consent up to the point of entering the operating room and incur no civil or criminal liability for doing so.[1]

Living-donor applications are reviewed by Local or Central Evaluation Boards according to the relationship between donor and recipient. Donations to relatives are reviewed by a Local Evaluation Board, while donations to non-relatives are handled by the Ministry of Health's Central Evaluation Board.[1] Liver-lobe donation is permitted only from a relative. The statutory definition of relative includes spouses, parents, children, siblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, cousins, and specified in-law relationships.[1] Each board includes a specialist physician, a psychiatrist or clinical psychologist, a social worker, a public representative, and an attorney. Non-relative donors also undergo psycho-diagnostic evaluation.[1]

The evaluation considers the donor's medical, psychological, and cognitive condition; personal background; relationship to the recipient; motivation; and the absence of family, social, or economic pressure.[1] The board must be satisfied that donor and recipient understand the risks, consent is free and informed, and the proposed recipient is medically and psychologically suitable.[1] One living donor described undergoing assessment by a social worker, psychologist, psychiatrist, and Ministry of Health panel to establish her health, understanding, voluntariness, and intentions before donation.[11]

Section 22 provides a state compensation and expense-reimbursement framework for eligible living donors who are Israeli residents, legally distinguished from prohibited payment for an organ.[1] Benefits may include compensation for monetary loss, travel and lost earnings, private health insurance, loss-of-work-capacity insurance, life-insurance counseling, psychological care, convalescence, and a three-year exemption from the health levy.[1] The 2010 regulations established coverage periods and monetary ceilings for expenses resulting from organ-removal procedures performed for implantation in Israeli residents; benefits may be denied when the removal or implantation was unauthorized.[2]

A distinctive feature of Israel's transplant framework is allocation priority for registered donors. A policy implemented in January 2010 gave people who had signed organ-donor cards priority should they later require a transplant. It was described at the time as the first national implementation of a law prioritizing allocation according to a patient's willingness to donate.[12] Section 9(b)(4), as amended, grants priority to candidates registered in the Adi donor database.[1]

The Knesset passed an amendment to the Organ Implantation Law on July 25, 2012, modifying the allocation-priority rules.[13] Under the original statute, priority favored people who had donated an organ—or whose immediate relatives had donated—when the donation was not designated for a specific recipient. The amendment treated donations designated for a specific recipient and donations without a specific designation as equivalent for purposes of the donor's allocation priority.[13] The legislative notes stated that both types of living donors were equally entitled to priority because the health risks faced by a donor did not depend on that distinction.[13]

The National Transplant Center's steering committee is responsible for developing organ-allocation priority guidelines, and the law requires consideration of whether a donor or the donor's close relative previously donated an organ during the donor's lifetime.[13]

The law does not impose an absolute ban on transplantation outside Israel. A procedure abroad, including one funded by an Israeli entity, is permitted only when the removal and transplantation comply with the foreign country's law and Israel's anti-trafficking provisions.[1] Organs may be brought into or taken out of Israel only under Health Ministry directives issued in consultation with the Foreign Ministry and approved by the Knesset Labor, Welfare and Health Committee.[1] An imported or exported organ must have been removed after the donor's death and in accordance with the law of the country where removal occurred; removal in Israel is governed by the Anatomy and Pathology Law, 5713–1953.[2]

Health-fund coverage for overseas transplantation is limited to cases in which the patient's Health Fund determines that the service, or an adequate substitute, cannot be obtained in Israel and the patient's life is endangered without it.[2] Decisions may be appealed, and an approved insured person may receive up to US$250,000, subject to possible increases in specified circumstances.[2] Reimbursement is denied for unauthorized overseas procedures suspected of involving unlawful organ trade, although treatment for resulting medical complications remains covered under the National Health Insurance Law.[2]

Israeli courts have enforced these restrictions. In Haddad v. State Labor Court, decided March 12, 2012, the High Court of Justice rejected a petition seeking reimbursement from Kupat Holim Meuhedet for a kidney implantation performed in South Africa. The court cited the petitioner's failure to establish a life-threatening or otherwise exceptional medical justification and public-policy concerns about possible unlawful organ trade.[2]

Organ donation after death in Israel is permitted only after brain-respiratory death has been declared. The Adi Center defines this as total and irreversible cessation of brain-stem activity, including loss of autonomous respiration, despite continued heart and circulatory activity.[4] Determination requires a strict Ministry of Health procedure, examination by two specially qualified specialist physicians, and an objective machine test confirming the absence of brain activity.[4]

The Brain-Respiratory Death Law, enacted in 2008, established legal procedures for determining brain death, including specially qualified physicians, uniform procedures throughout Israel, and oversight by a supervisory committee composed of physicians, rabbis, and public figures.[4] In September 2009, the Chief Rabbinate of Israel, under Chief Rabbis Shlomo Amar and Yona Metzger, confirmed that the law accords with Halacha.[4]

The path to this legal recognition was contested within Jewish religious law. Opposition by leading ultra-Orthodox rabbis to defining brain death had been a major barrier to post-mortem organ donation, and negotiations intended to legitimize brain death and remove the prohibition on post-mortem donation led to the 2008 Brain-Respiratory Death Act.[14] In its November 3, 1986 decision, the Chief Rabbinate Council required permanent and irreversible cessation of respiration to establish death for halakhic purposes. It set five prerequisites, including a known cause of injury, absolute cessation of spontaneous breathing, clinical and objective evidence of brain-stem destruction, and continuation of absent respiration and brain-stem activity for at least twelve hours despite customary intensive care.[15]

The 1986 protocol also required a four-member determination team, including three qualified physicians and a fourth member from a Ministry of Health-approved list, acting unanimously.[15] For heart transplants at Hadassah Medical Center, the decision required a Chief Rabbinate representative to participate in the death-certification team.[15] The ruling reflected a shift in rabbinic thinking: Rabbi Moshe Feinstein and Chief Rabbi Y. Unterman had regarded early heart transplantation as involving the murder of both donor and recipient, while later medical developments and changing rabbinic positions led the Council to permit the procedure under specified safeguards.[15]

Halachic authorities continue to disagree over whether death is defined by cardiac or respiratory arrest, total destruction of the brain, or irreversible loss of autonomous respiration caused by brain-stem death.[4] The Chief Rabbinate recognizes brain-respiratory death when specified conditions are met, while other authorities maintain that cardiac activity must also cease. An Adi card may be made conditional on authorization by a clergyman requested by the family.[4]

The relationship between Israel's ultra-Orthodox community and organ donation presents a notable contrast. Substantial resistance to signing Adi donor cards and consenting to post-mortem donation persisted after enactment of the 2008 Brain-Respiratory Death Act.[14] At the same time, the community became prominent in anonymous living kidney donation.[14]

The nonprofit organization Matnat Chaim has been a central vehicle for this participation. It has reportedly guided more than 1,000 volunteers through anonymous living kidney donation, saving hundreds of lives.[14] An earlier account reported that more than 315 successful living-donor surgeries had taken place since 2009, largely through Matnat Chaim's efforts, and characterized Israel as a world leader in living donation.[11] Almost all Matnat Chaim donors choose Jewish recipients, regardless of the recipients' degree of religious observance.[14]

Israeli courts have applied protective principles to proposed donations by legally incompetent persons. In Anon. v. Anon., the Supreme Court addressed whether a kidney could be removed from a mentally disabled adult for transplantation into his father.[5] The court held that removal could be permitted only if it clearly and substantially benefited the protected person, after balancing the expected benefit against surgical harm, the consequences of leaving the person with one kidney, mental harm, lack of understanding or consent, and available alternatives. The proposed transplant was rejected.[5]

Justice Elon emphasized that the proposal involved invading a person's body and removing a vital, non-regenerating organ from someone unable to understand or consent. He concluded that the court's role was to protect the person's dignity rather than authorize the procedure merely because it might benefit a parent or caregiver.[5] My Jewish Learning describes a corresponding Israeli case in which courts refused to compel a developmentally disabled boy to donate a kidney to his father, treating the son's privacy and bodily integrity as outweighing an argument based on the father's survival.[16]

Enactment of the law was followed by a marked decline in Israelis seeking transplantation overseas, from approximately 160 people annually to 35.[1] Transplantation expert Asif Efrat likewise stated that the number of Israelis purchasing organs abroad significantly decreased after the law's passage, although the trade did not disappear completely.[3]

Leaders of the international transplant community associated with the Declaration of Istanbul praised the Israeli law.[3] Its principal enforcement mechanisms included criminalizing brokering, prohibiting HMO reimbursement for commercial transplants abroad, and extending specified offences to conduct involving planned procedures outside Israel.[3][1]

In 2014, 84 applications to donate organs were submitted to the Central Evaluation Board and 61 were approved, illustrating the screening role of the evaluation process.[1] Despite these developments, a severe shortage remained: one reported count placed approximately 845 people on the waiting list for a donor kidney, notwithstanding an increase in the number of Israelis holding donor cards.[11]

Several aspects of Israel's organ-transplant framework have generated legal, ethical, and public controversy.

The Abu Kabir Forensic Institute affair is the most significant historical controversy associated with this field. Israeli law required relatives to be asked for approval before corneas or other body parts were removed from corpses brought to Abu Kabir for autopsies. On December 19, 2009, Israeli television disclosed that chief pathologist Yehuda Hiss had admitted removing body parts without obtaining the legally required approval.[17] A state inquiry found no evidence that Hiss targeted Palestinians specifically; rather, bodies of IDF soldiers, Israeli civilians, Palestinians, foreign workers, and others were subjected to the practice.[18] Israel and the IDF confirmed in 2010 that unauthorized removal had stopped, and the relevant guidelines were subsequently clarified.[18] The documented removal of body parts from people who were already dead must be distinguished from unsubstantiated allegations that Palestinians were killed specifically to obtain their organs.[17]

The donor-priority policy generated substantial moral and ethical debate after its implementation. Prioritizing registered donors raises questions about whether willingness to donate should affect a person's access to an organ.[12]

Early academic commentary also criticized the law on practical grounds. The absence of significant compensation was not expected to substantially increase the number of available kidneys, and the effect on living donation remained uncertain at the time of publication.[6]

The distinction between permitted compensation and prohibited remuneration remains part of the policy debate. Section 22 legally defines benefits such as reimbursement for lost earnings, insurance, psychological care, convalescence, and a health-levy exemption as compensation for donation-related losses rather than payment for an organ.[1] Early academic discussion nevertheless questioned whether the compensation framework was sufficient to preserve an altruistic system while materially increasing donation.[6]

The ability of some living donors to choose a recipient has also attracted public controversy. The Health Ministry has stated that religion, race, and nationality may not be used in allocating deceased-donor organs. For certain living donations made independently of the National Transplant Center registry, however, the donor may retain the legal ability to choose a recipient, subject to medical, psychological, ethical, informed-consent, and Health Ministry review. The distinction drew attention when a prominent journalist announced that his kidney would go only to a Jewish recipient.[10]