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

by Brendon Nafziger, DOTmed News Associate Editor | December 21, 2009

"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.

Trend-setting

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.