Most countries have elaborate algorithms to allocate organs for transplant when they become available, but Israel has gone too far. In all other countries, criteria are primarily based on how sick potential recipient are and how long they have been waiting for an organ. The goal is to maximize the life-saving potential of every available organ. In Israel, however, a new law took effect this past April in which these medical considerations take a backseat to social value judgments. The law assigns recipient priority to people who sign up themselves to be organ donors, or one of their first degree relatives (parents, spouse, or children) are signed up to be potential organ donors, or if one of their first degree relatives has already been an organ donor. This means that if your parent or child carries an organ donor card, you automatically become more eligible to receive an organ than somebody who might be far sicker than you. Proponents of this law tout it as an example of reciprocal altruism and extreme fairness, a system which limits benefit to those who are themselves willing to participate. A closer look at the law reveals that, in fact, it is anything but. Not only is the law not reflective of supposed fairness, but more importantly, it corrupts the traditional moral fabric of modern medicine.
In today’s world, almost all organ transplants come from brain dead donors. There is significant disagreement among decisors of Jewish law (Halakhah) whether or not brain death constitutes halakhic death. If it does, then there is virtually universal agreement that organs may, and very likely should, be transplanted for life saving purposes. If not, then donating organs is forbidden, since removing life-sustaining organs would kill the donor. Proponents of this law claim that those who do not recognize brain dead patients as dead should lose priority for receiving organs to be consistent with their own view, since accordingly, receiving an organ should be considered aiding and abetting murder.
The truth is however, that this argument displays a very extremist view of Jewish law.
The disagreement about brain death is similar to others in Jewish law, where both sides recognize that legitimate debate exists. Jewish law is rarely monolithic, with almost each and every detail subject to dispute. Practically, adherents follow a particular approach, even while continuously cognizant that others practice differently. There is a very real awareness of multiple truths and various justifiable interpretations. It should therefore come as no surprise that those who do not recognize brain death as death nonetheless acknowledge that others reasonably disagree. And since everybody agrees that if you can donate you certainly should, even those who do not recognize brain death as death are willing to receive organs from people who hold the opposite perspective. These people are neither violating their principles nor aiding unsanctionable actions, but are rather simply recognizing the variety of legitimate halakhic perspectives and the right of others to adopt positions different than their own.
Proponents of the law claim that it rewards behavior, allowing benefit only for those who actively participate. A closer inspection of the law however, reveals that it does not actually reward any particular behavior at all.
While perhaps meaningful as a personal declaration of principles, signing a donor card actually carries little legal weight. Practically, organs can be harvested only with the potential donor’s family’s (or other next of kin’s) consent. Regardless of whether a donor card is signed, the actual donation – the behavior that the law intends to encourage – depends on the consent of the next of kin. The ‘behavior’ that the law intends to reward has not yet taken place, will most likely not take place, and even if one day it will, it will not be the decision of the donor that matters, but rather that of his or her family.
This façade of fairness goes deeper. Even if we agree to include non-medical factors in assigning priority to recipients, if we had to choose one group of people most deserving of priority – it would certainly be those who actually donated an organ. While most organs come from brain dead patients, nonetheless kidneys (and sometimes parts of lungs and livers) can be donated by living, healthy individuals. These are people who have made a fateful decision with all of its inherent risks, and acted on it, in their lifetime. While donating an organ after death is certainly altruistic, it is an altruism that comes at no risk or expense to the donor. He or she no longer needs those organs and is happy to share their life saving potential with others. A superior form of altruism is donating an organ when you have to live with and deal with the consequences. The brave men and women who selflessly do so should receive priority in all areas of medical care, certainly including receiving an organ themselves, should the need ever arise.
Yet the new law only recognizes the heroic efforts of these individuals if they donated an organ to an anonymous recipient. If a donor offers his or her kidney to a relative or friend, he or she does not qualify for priority. However, both donors to targeted recipients and those who give anonymously undertake similar risks, both must live with the consequences of their decisions, and both literally give of themselves to save somebody else’s life. Treating these donors differently is simply wrong. If this law had anything at all to do with fairness, it would treat both types of donors equally. The law should perhaps more accurately be described as legislating social engineering.
But regardless of how we describe this law, medicine, in both the Jewish and Western traditional sense, is supposed to focus on greater values. Medicine should be about maximizing saving lives, enhancing both life span and life quality. Both the Hippocratic tradition of medicine and halakhic dictate demand providing care to all patients without bias or discrimination. As medical professionals and as a caring society, we do not, and should not, evaluate a person’s social status to determine if they are deserving of our resources. As an ethical culture, we provide medical care to all who need it, trying to maximize our life saving efforts whenever possible.
When organs become available for transplant, we should do the same. As medical professionals dedicated to our patients and as a society of decent, caring people, we should insist that organ allocation and transplant priority be assigned solely by medical criteria. Let’s abandon these presumptuous and rather specious notions of supposed fairness and focus instead on saving lives.