Israel has one of
the lowest organ donation
rates in the world

In a Controversial First, Israel Allows Non-Medical Criterion for Transplants

December 21, 2009
by Brendon Nafziger, DOTmed News Associate Editor
In a controversial move, Israel is set to become the first country to give priority to patients for organ transplants based on non-medical criteria.

In response to a dearth of donations, one of the lowest in the developed world, Israel's parliament, the Knesset, passed a law that gives priority for transplants to people who signed organ donor cards and their immediate families.

Jacob Lavee, M.D. a transplant surgeon at Sheba Medical Center in Tel Hashomer, Israel, whose efforts helped spur passage of the new law, which goes into effect in January, discussed how it works in The Lancet on Thursday.

People who sign organ donor cards would gain priority points for transplants, moving up in the queue. Their first-degree relatives -- children, parents, siblings and spouse -- would also move up, gaining about half the point bonus of the signatory.

The biggest boost would go to first-degree relatives of deceased donors whose organs were actually used, as well as to so-called non-directed living donors: donors who, while alive, give an organ, like a kidney, to an organ bank and not to a particular recipient.

The Israeli National Transplant Council, which helped develop the law, also wanted living donors who gave an organ to a specific individual to receive priority, which the Knesset rejected. Dr. Lavee says the Ministry of Health is contesting the ruling on appeal.

But the new law doesn't affect everyone. Children under 18 and the mentally and physically impaired, who are unable to sign cards, keep their priority status.

And for most life-and-death cases, medical criteria still prevail. The law will not affect candidates for heart, lung or liver transplants who urgently need the new organ to live, although in choosing between two equally urgent cases, a card signatory will come ahead in the queue over a non-signatory.

Plus, most people aren't penalized for not already being signed donors. For the first year after the new plan goes into effect, patients, even those on transplant waiting lists, who sign donor cards will become eligible for prioritization after a one-year waiting period.

Grim statistics

In his article as well as in an editorial in the Israeli newspaper Ha'aretz also published Thursday, Dr. Lavee explains that Israel is facing a crisis. It has one of the lowest donation rates in the world, with only 8 percent of Israelis holding an organ donor card, as opposed to 30-40 percent of people in most Western countries.

Last January, of the 864 patients listed as needing a kidney, heart, lung or liver, only 221 received a transplant from a dead donor that year.

The proportion of medically eligible brain-dead donors to actual donors is also lower than in the rest of the developed world, at about 45 percent. In the United States, the so-called conversion rate, the number of eligible donors who become actual donors, hovers at around 70 or 80 percent, according to a spokesman for the American Transplant Society.

In part, Israel has a low rate of donations because even if someone has signed a donor card, doctors still need permission from the immediate family before they can remove organs from the brain-dead donor. Plus, many religious Jews are opposed to organ donation. According to Ha'aretz, last year in response to the burgeoning popularity of donor cards, a religious group issued "life cards," which said the person's organ couldn't be removed after death.

Quid pro quo

Still, many ethicists and surgeons are wary of a plan that appears to compensate donors for their efforts, a practice forbidden by most countries.

"Basically in the sense of right and wrong I support the idea if you're not willing to participate in the system as a donor, why should you be able to receive from a donor," says Robert Gaston, M.D. Dr. Gaston is professor of medicine and medical director of the Kidney and Pancreas Transplantation program at the University of Alabama at Birmingham and secretary-treasurer of the American Society of Transplantation. "At the same time, I try to keep in mind this is about patients, and patients are sick, and my job as a physician is to make them better, or help them get better, regardless of their motivation or what they've done in their previous life."

Dr. Lavee, writing in The Lancet, acknowledges the "new policy violates the definition of pure altruism, which requires no quid pro quo reward." But he thinks it achieves another worthy goal of medical care: providing maximum health.

Paolo Bruzzone, a surgeon with Sapienza Universita di Roma, writing in an accompanying commentary in The Lancet, says while he wouldn't recommend the policy for Italy, he acknowledges it is preferable to other schemes, such as the forced removal of organs from the dead, or financial incentives like paying for funerals or tax breaks.

Dr. Gaston agrees that Israel seems to be trying to strike a tricky balance.

"The idea of incentives to reward organ donation is something that is evolving throughout the world," says Dr. Gaston. "And it sort of lives in this gray zone between a purely altruistic view of organ donation, and I suppose the other end of the pole would be a market in organs that exists as a black market. Between those two poles, how do you do incentives in a way that truly incentivizes people willing to donate organs without compelling them to do so, or without coercing them to do so, or without making the entire thing a financial transaction?" he asks.

"That's been a struggle globally. It sounds as if what they're trying to do in Israel is something to incentivize organ donation without moving into the arena of commercialization," Dr. Gaston says.


Although this is the first time such a policy has gone national, private organ networks have had similar if usually less strong measures.

But in the U.S., a policy like the Israeli one would have a hard time getting off the ground. Since the passage of the National Organ Transplant Act (NOTA) in 1984, it has been illegal to give "valuable consideration" for organ donation, usually interpreted as direct payment though sometimes it's thought to outlaw any kind of compensation, explains Dr. Gaston.

However, states have tested the phrase's ambiguity. Pennsylvania's legislature approved a law to pay for funeral expenses of people when organ donation occurred after death, though the law was ultimately not enacted because of the legal issues, says Dr. Gaston. Nonetheless, Wisconsin and other states have passed laws to reimburse living donors with one-time tax deductions.

And, Dr. Gaston says, some schemes, like paired donations, blur the lines. In this "organ swap," a living donor gets someone to give an organ to a patient the original donor isn't compatible with, but that donor also gives an organ to the compatible person of the other donor's choice.

In 2007, the Charlie Norwood Act made sure this practice, which accounts for more than 40 percent of all kidney donations in the U.S., would be protected, and not fall afoul of NOTA.

"The truth is, in organ transplantation as it exists in the U.S., the recipient gets a new life, hospitals get paid, doctors get paid, the health care system gets reimbursed, immunosuppressants cost money, so pharmaceutical companies make money. The only person in the whole enterprise for whom there's no compensation is the donor. And the whole thing doesn't happen without donors," Dr. Gaston says.

Even though he acknowledges that incentives allow for the possibility of coercion, hundreds of patients die every week awaiting transplants, he says.

"That is a crisis that merits looking creatively at the incentive side of things," he says. "Short of paired donation, the altruistic system may have reached its maximum in supply available of organs. Going forward, we're going to look at other ways of doing it."

But will it work?

Even so, it's not clear the Israeli measure will work. In a separate commentary in The Lancet, Linda Wright, a bioethicist who specializes in the ethics of organ transplantation at the University of Toronto, wonders if it will increase the rates of donation because it's not clear if the law might still require family consent, one of the sources of the problem to begin with.

And Dr. Gaston says donation laws often don't result in the changes you'd expect. In all the years since the Wisconsin law allowing tax deductions for living donations has been in effect, he notes, only five or six people have ever claimed a deduction.

Even Spain, which was thought to have the highest per capita donations per year, in part because of presumed consent laws that assume people want to donate their organs at death unless they "opt out," has donation rates similar to the rest of Europe, Dr. Gaston says.

For the Israeli law, at least, doctors will have a chance to see if their skepticism is confirmed in January 2012, when the project's effects will go under review.

"If undesirable consequences emerge, such as no increase in organ donation, or an increase in candidates' mortality rates, then policy and legal adjustments will be necessary," Dr. Lavee concludes.