One of the fields of study which has been developed in recent years is that of Bioethics and the Law, including questions relating to the transplanting of organs. The problems raised by organ transplants are of concern to numerous disciplines, and the present issue of the Israel Law Review examines this topic from various points of view — ethical and halakhic, as well as legal.

In his article on the ethical implications of the buying and selling of organs, Noam Zohar subjects the generally negative attitude adopted towards both practices to a philosophical analysis, and argues that neither one is as objectionable as it appears at first sight. This article also poses a challenge to the application of traditional legal reasoning to the area of biomedical law.

The halakhic position on organ transplantation is presented by Mordechai Halperin in a wide-ranging discussion of the topic. Of particular interest are his remarks concerning the possibility of coercing organ donation, and of trading in human organs in accordance with Jewish law.

Transplantation of organs from live persons may take place without any payment to the donors, and this involves relatively few moral problems. Gift donation appears to be widely accepted as a laudable and welcome form of benevolence. Even though an organ gift may entail some risk to the donor, his or her consent — provided that it is freely given and properly informed — renders such risk non-objectionable.

Gift donation cannot, however, be expected to fill the large and growing demand for transplant organs. Thus, the issue of a market in organs has for some years now been the subject of ethical and legal scrutiny, and has been addressed by (generally prohibitive) legislation. What follows is intended as a critical survey, focusing initially on organ-buying, and then on organ-selling.

I. Survey of Transplant Techniques

The kidney is one of the few organs which today can be successfully transplanted from a living donor to an ailing recipient. A healthy donor can function satisfactorily with a single kidney; therefore the removal of one kidney for transplantation does not significantly endanger the donor's life. However, removal, or even partial removal, of other organs, such as the heart, lungs, or pancreas, will present a serious risk to the health and life of the donor.

In addition to organs, skin, bone marrow, blood and other body parts can be transplanted from living donors.

A. Kidney Transplants

The kidneys function to regulate the body's electrolyte and water balance and eliminate various wastes. Severe kidney dysfunction endangers the patient's life, and requires treatment by dialysis or kidney transplant. Up until a decade ago, the life expectancy of patients treated by dialysis exceeded that of patients who underwent kidney transplants. Over the past decade, the life expectancy of patients who have undergone kidney transplants from deceased donors has increased to a point where it is now comparable with the life expectancy of patients on dialysis.

The Israeli Supreme Court addressed the issue of kidney donations from the mentally incompetent in Attorney General v. A and Others. The Supreme Court reversed a District Court decision which permitted the transplant of a kidney from a 39 year old mentally incompetent son to his 65 year old father, who was suffering from severe renal failure. In permitting the transplant the District Court noted the uncontested fact that the son was receiving the best possible care from his father, and reasoned that it was in the best interests of the son to give up a kidney in order to continue receiving his father's devoted care. In reversing the District Court's decision, the Supreme Court emphasised the need for the establishment of a “clear and substantial benefit” to the legal incompetent before any of his or her organs are transplanted to another individual. The Court was not inclined to accept the more subjective substituted judgment approach found in some similar American cases. The interests of other individuals, or even of the community as a whole, may not be preferred over those of the incompetent person. In the present case, no such “clear and substantial benefit” accruing to the son from the kidney donation had been demonstrated. Amongst the reasons given by the Court for this finding was the existence of a doubt as to the chances of a successful transplant in light of both the father's age and the seriousness of his condition. It was also unclear why the son could not receive the same quality of care from his siblings as he had received up to now from his father.

The Psalmist's wrote: “For my father and my mother have forsaken me, but the Lord will take me up”. The eleventh-century commentator Rashi explains that this abandoned child, forsaken by his father and mother, is actually a fetus. “For my mother and father have forsaken me — [i.e.] during coition, they thought of their own enjoyment, and having finished their enjoyment, he turns away and she turns away; But the Lord will take me up — [i.e.] the Holy One Blessed Be He protects the semen and creates the fetus”. This graphic and surprisingly poignant depiction of the bedroom is an attempt to portray man's existential solitude from the very moment of conception. He is abandoned by his parents, who were partners to his conception. They forsake him as soon as they complete their sexual intercourse, since their exertions were meant for pleasure, not for childbirth. At this point, intercession comes from God, whom the Sages elsewhere say is the third partner to the creation of man. God assumes responsibility for the continued development of the embryo from conception onward. The underlying assumption of this view is that childbirth is an incidental byproduct of sexual relations, which are primarily intended for mutual pleasure.

Property rights exist only in their relationship to certain assets. A property right per se has no independent existence. Thus, for example, the sentence: “‘A’ is the owner” is meaningless as long as there is no mention of the object of which A is the owner (“‘A’ is the owner of the house”). This also applies to lease, pledges and other property rights — without assets to which the rights relate, the rights do not exist. Things which are the objects of property rights are the various “assets”, and a person's aggregate assets constitute his “wealth”.

Medical recourse to organ transplants and the transfer of other material from the body of one person to that of another has increased steadily over the past few decades. This raises new legal questions, and brings once-thought purely academic questions to the forefront.

Organs and other material used for transplants can either be taken from a living person (for example, bone marrow, sperm, or blood); or from a corpse, as is the case with most transplants. Certain material, in particular kidneys, can be taken from both. In Israeli law, this duality in the sources of supply is paralleled by different sources of regulation. With respect to a corpse, the Anatomy and Pathology Law attempts to solve the main problems from a practical point of view. On the other hand, the Israeli legislator has as yet to intervene with respect to the living body.

1. The connection between the proprietary nature of a right and its transferability was discussed at length in my article, “Some Fundamental Concepts of Property Law: A Critical Survey”. The view expressed there was criticised by Prof. Tedeschi in two articles: the first, “On the Right of Preemption in Land”, and the second — “Property and Transferability — Ownership of Organs Taken from a Living Person”. The latter included criticism of certain things I had written in my article, “Organs as Assets”, in relation to the connection between an object constituting an “asset” and it being “transferable”.

According to my approach, transferability is a central feature of a property right, and of the nature of a thing as an “asset”. Prof. Tedeschi, however, believes otherwise.

Is it possible to view human organs as assets that can be given as “the subject of a gift”? The view most widely accepted in the legal literature is that a dispositionary act in relation to our body cannot constitute the object of a binding contract, if the execution of the contract could endanger the life of the person (i.e. the person making the disposition) or constitute a risk to his physical well-being. In such a case, the contract would contradict the general principles of law and morality.

It is an accepted legal principle that a person may make a commitment to give hair, to nurse a child or to donate blood. In a contract for consideration, the validity of the obligation must be determined, but stipulating specific performance is prohibited, thus the only remedy can be the awarding of damages. The law in Israel is clear that the giver of a gift can retract his promise up until the moment of giving, and if the intended recipient of the promised organ is detrimentally affected, the reluctant giver will be liable, at most, to compensate the frustrated recipient.

Two decisions were rendered recently by Israeli courts of lower instances which concern the field of diplomatic immunities. The first, delivered by the Magistrate Court in Petah Tikwa, deals with the inviolability of diplomatic premises and with the waiver thereof; and the second, by the District Court in Jerusalem, refers to the question of state immunity from attachment and execution, and seems to constitute a clear diversion from the accepted international norms and rules on this issue. Both decisions, rendered in the matter of the residence of the Ambassador of Côte d'Ivoire to Israel, will be examined separately, following the factual background relevant to each.

The question of the inviolability of diplomatic premises, as well as that of a diplomat's immunity from jurisdiction, is a separate issue from that of state immunity. The first considers the treatment given to diplomats in foreign countries, and is codified in the 1961 Vienna Convention on Diplomatic Relations (the “Convention”), while the latter consists only of customary international law, and deals with the concepts of acts of state and the immunity of sovereign states from jurisdiction by the courts of another state. In the following survey we will show that in some instances, the two issues have been confused and conclusions drawn from one to the other without consideration of the differences between the two.