A Jewish perspective on compensation for kidney donation
Alan Jotkowitz
M.D.
Introduction
Worldwide
there is a dearth of organs available for solid organ transplantation.
Currently there are close to one hundred thousand people on waiting lists for
organ donation in the United States.[1] As a
result of this situation various proposals have been suggested to increase the
number of organs available for transplantation. They include donation by
default and priority for receiving of organs to those willing to donate. In
addition, many patients travel to other countries sometimes under dubious and
ethically problematic conditions. In the last ten years we have also witnessed
the growth of the "transplant tourism" industry. In most countries
with underground economies in transplants such as Colombia, India, Pakistan and
the Philippines organs are bought from the poor and sold to wealthy foreign
patients. China has become notorious for using organs from executed prisoners.[2] In
response to this crisis there have been renewed calls to legalize the selling
of kidneys from living donors. The worldwide leader in this endeavor has been
Iran, which in 1988 instituted a compensated and regulated living-unrelated
donor renal transplant program.[3] As a
result, the number of transplants increased dramatically and by 1999 the
transplant waiting list was eliminated. The government provides the recipient
with a monetary award (approximately $1200) and health insurance. In addition,
recipients provide rewarding gifts to donors and in the case of poor recipients
this award is provided by charitable organizations, In the Iranian experience,
84% of the compensated donors were classified as poor, 16% were middle class
and none were wealthy. From the recipients, 50% were poor, 36% were middle
class and 13% were wealthy.[4]
In 2003 a
protocol for paid kidney donation in Israel was developed. According to the
protocol there will be a single waiting list for all patients and the donor
will not be allowed to choose a recipient. All expenses of the donor relating
to the transplant will be covered by the National Transplant Center and the
donor will receive a tax free payment of $20,000.[5]
Concerns have also been raised about Israeli patients traveling to China to
receive organs form dubious sources and receiving funding from Israeli health
maintenance organizations and insurance companies.[6] In
2008 the Knesset passed a law providing limited benefits to those who donate a
kidney for altruistic reasons but prohibiting organ sales either in Israel or abroad.[7] The
purpose of this article is to review briefly the halachic issues relating to
organ donation and the moral correctness of compensated organ donation from a
Jewish ethical perspective.
Ethical issues
There are
a number of arguments against financial compensation for organ donation
1. Medical- Inadequate pre-transplantation
screen-ing has resulted in CMV, HIV, hepatitis,
malaria and tuberculosis infections. There have also been reports of poor
surgical technique, inadequate wound care and improper immunosuppressant
medications. In addition to the surgical risks and lack of follow up care for
the donor
2. Economic- in developing countries donors
typically receive less than $2000 while middleman and surgeons often charge
more than $80,000.[8]
Research in India and Pakistan demonstrates that most of the donors profits go
directly to debt collectors and their financial situation rarely improves after
the operation.[9]
There are also fears that families will also demand compensation for cadaveric
organs.
3. Ethical- the most powerful arguments
against compensating donors are the moral ones. The pursuit of social justice
and equality in healthcare has been recognized as one of the cardinal
principles of modern medical ethics.[10] A
system where a desperate impoverished person is left with no choice but to sell
his or her organs is incompatible with this principle. Other ethicists object
to compensation on the basis of commodification of the human body.[11]
Prostitution and the selling of organs are examples of activities in which the
body is treated as an object and are morally objectionable. Exploitation,
potential harm, flawed consent and possible coercion all play a role in this
process. There is also the concern that legalization of compensation will
eliminate the altruistic motive to donate.
There
also exist arguments in favor of compensation:
Medical- there is a global shortage of
organs available for transplantation. In the United States there is a 100.000
people on the waiting list for a kidney transplant and the average waiting time
is five years. It is simply a matter of life and death as the annual death rate
for potential candidates has increased from 6.3% in 2001 to 8.1% in 2005.[12] The
hope is that allowing financial compensation will increase the pool of donors as
occurred in Iran. In addition, by making the transaction legal the care of
donors and recipients will improve.
Economic- Proponents of compensation are in
favor of a regulated system where the compensation for the recipient will come
from the government or private sources eliminating some of the improprieties in
the donor-recipient relationship.[13] Some
suggest that instead of a lump sum compensation the recipient should receive
potentially life altering benefits such as a mortgage for a house, lifelong health
insurance or university tuition for his or her children thereby eliminating the
influence of money lenders. Compensation for the middlemen will also be
eliminated in this system.
Ethical- The British philosopher Janet
Radcliffe-Richards maintains that the arguments against compensated organ
donation are "attempts to justify the deep feelings of repugnance which
are the real driving force of prohibition, and feelings of repugnance among the
rich and healthy no matter how strongly felt, cannot justify removing the only
hope of the destitute and dying".[14] She
agrees that despair and poverty is the driving force behind most compensated
kidney donations but the answer is not to eliminate the best option that many
people have to improve their circumstances but to work to lessen world poverty
so nobody would want to sell an organ. If problematic informed consent is the
issue then we should insist on adequate pre-donation information and the
availability of counseling. In response to the argument that it is unfair for
the rich to have treatments unavailable to the poor then we should ban private
medicine and most healthcare available in the West which is not available in
the developing world.
Halachic issues: Compensated donors
The
halachic issues involved in compensation for organ donation have been discussed
previously by Rabbi Y.M. Lau, former chief Rabbi of Israel. He distinguishes
between two cases
1. A situation
where the organ was taken without permission from the donor and now he requests
payment for the organ. In this case the halachic questions revolve around
whether a person's organs belong to him and if he has ownership rights to sell
them. The question if one is allowed to benefit from one's organs is also
relevant. Notwithstanding these significant halachic objections they are not
relevant when the recipient's life is in danger because of the overriding
commandment to save a life.
2. The more
common situation is where a person is willing to donate an organ for adequate
compensation for the pain and suffering he will endure. That this is halachicly allowed is obvious to Rabbi Lau.
Rabbi Lau
was also concerned about the potential inequalities that compensated donation
might cause in healthcare:
One might
object [to compensated donation] because of the need to have equality in the
healthcare system. However, according to halacha one is not allowed to prevent
a person from saving himself using his own financial resources. I do not
understand how one can forbid this because another person in a similar
situation does not have the resources to save himself.[15]
The
normative halachic approach to this question is best summarized by Professor
Avraham Steinberg who writes:
There is
no fundamental Jewish legal prohibition to against financial compensation for
tissue or organ donation. Almost all rabbinic authorities who expressed an
opinion stated clearly that from a halachic or Jewish moral point of view there
is nothing wrong in receiving reasonable compensation for an act of
self-endangerment, whereby one still adequately fulfils the most important
commandment-to save life.[16]
Notwithstanding
this relatively straightforward halachic pronouncement, there exists dissenting
opinions which maintain that the motivation of the donor should play a role in
the permissibility of the donation. The starting point for this argument is the
opinion of Rabbi Moshe Feinstein regarding the nature of the prohibition of
Chavala (assault).[17] In
codifying the laws of Chavala the Rambam writes "One is prohibited from
injuring oneself as well as his fellow man. Not only a person who causes
injury, but also one who assaults a non-guilty Jew, be it a minor or an adult,
a man or a woman, in a quarrelsome way (or a debasing way) transgresses a
negative commandment".[18]
Based on this Rabbi Feinstein maintains that one is only liable for assault if
it is done in a "quarrelsome or debasing" manner. Because of this
understanding of the prohibition he allows cosmetic surgery because clearly the
surgical assault is not done in a "quarrelsome or debasing" manner.
In the same responsa he takes note of the fact that one is not allowed to let
someone injure you in order to obtain loan forgiveness because even though one
is benefiting financially from the assault he still considers it done in a
debasing manner.[19]
According to Rabbi Feinstein motivation therefore plays a role in establishing
whether an act is defined as assault. In extrapolating this principle to organ
donation, one could infer that donating an organ for altruistic reasons would
not be considered bodily assault in a debasing manner but selling one's organs
for money might so be considered. In contradistinction, Grazi and Wolowelsky argue that "inadequate motivation does not
undermine the inherent ethical value of the act itself, or provide an exemption
to the obligation to perform a mitzvah".[20]
Extending
this principle of Rabbi Feinstein's, Rabbi Shabtai Rappoport maintains that
motivation plays a primary role in the halachic question of allowing the
selling of organs.[21]
Rabbi Rappoport maintains "It follows that donating an organ (i.e. kidney)
in order to save life, is not obligatory but should be encouraged as an act of
piety…..however when the motivation is earning a living, such a major injury,
and the ensuing medical risk definitely forbid that organ sale"[22]
Recognizing the possibility of the existence of two donor motives; an
altruistic one and a financial one, Rabbi Rappoport suggests a simple test to
distinguish between the two. Would the donor be willing to donate his kidney if
there was no possibility of financial gain? If not, then the motivation is
defined for halachic purposes as financial and the donation is prohibited.
Another
approach as to why compensated organ donation should not be allowed has been
suggested by Michael Vigoda.[23] He
cites the opinion of former Chief Rabbi Unterman who maintains that "one
is not allowed to save yourself by injuring another".[24] In
other words, pikuach nefesh
(saving life) does not override the prohibition of assault. Vigoda suggest two
possible explanations for this position
1. Many
authorities rule that one is not allowed to steal in order to save yourself if
you have no intention of returning the money and therefore one is not allowed
to injure another because there is no equivalent financial compensation for a physical
injury.[25]
2. Assault is
viewed as an extension of the prohibition of murder and similar to murder there
is no dispensation of the prohibition even to save a life.
According to these two explanations why then
is altruistic donation allowed?
Vigoda
answers based on Rabbi Feinstein's explanation of the prohibition of assault.
An act is only defined as assault if it is done with the motivation to debase
the victim and would not apply in an altruistic donation but would apply if the
donation was for compensation.
For Vigoda following Rabbi Feinstein, the
donor's motivation is the crucial factor in deciding whether a donation is
acceptable. This formulation shares much in common with Michael Slote's
conception of virtue ethics.[26] From
the perspective of virtue ethics, an "act is morally acceptable if and
only if it comes from virtuous motivation involving beneficence or caring
(about the well being of others) or at least doesn’t come from bad or inferior
motivation involving malice or indifference to others".[27]
Thus,
similar to Rappoport and Vigoda's halachic analysis, organ donation is only
considered ethical if done on the basis of an altruistic motivation.
Notwithstanding
their moral persuasiveness, the arguments of Rappoport and Vigoda seem forced
from a straightforward halachic perspective and the question remains if there
exist any other factors driving their respective halachic opinions. Haym Soloveitchik has perceptively pointed out that
occasionally halachic masters have to look for shaky leniencies to justify
behavior on the part of their community. In this vein, he cites the example of
the Ashkenazi response to martyrdom, where various tosafists
try to find halachic leniencies to rationlize the
behavior of their constituents regarding voluntary martyrdom. He writes
"they did this by scrounging all the canonized and semi-canonized
literature for supportive tales and hortatory aggadah,
all of dubious legal worth. But by massing them together, Ashkenazi scholars
produced, with a few deft twists, a tenable, if not quite persuasive, case for
the permissibility of suicide in times of religious persecution…..What had
taken place was that law and logic had led men to an emotionally intolerable
conclusion, one which denied their deepest feelings and more significantly,
their deepest religious intuitions, and so the law as reinterpreted."[28]
The
question therefore arises are there are other factors in paying kidney donors
which deny one's deepest feelings and religious intuitions and if so what are
their roles in the halachic process
Kovod Habriyut
The
principle of kevod ha-beriyot
(human dignity) is mentioned in the gemara in
reference to proper burial of a corpse, personal hygiene and public nudity. But
its scope, however difficult to define, is much broader. In the words of the
Rambam, in urging a judge to be compassionate, "whatever [he does] let all
his actions be for the sake of Heaven. And let him not regard kevod haberiyot lightly; for it
overrides rabbinic prohibitions" Rabbi Aharon Lichtenstein has suggested
several tentative guidelines for the use of the principle in halachic decision
making
1. "Personal
dignity must be significantly, albeit briefly, fractured, rather than merely
ruffled"
2. "Genuine
dignity must be involved, not superficial vanity"
3. "Where
the prospect of hurting another is also present……it is conceivable that the
principle may be much more broadly defined".[29]
All these
factors certainly are relevant when discussing the issue of compensation for
organ donation. The prospect of having to undergo a major surgical procedure
and donate a kidney because of dire financial circumstances is certainly a
significant genuine assault on personal dignity with the potential to cause
harm. The principle of kevod ha-beriyot,
according to Rabbi Lichtenstein, is a fundamental Jewish value and
should play a greater role in halachic decision making.
Moral
Avi Sagi
and Daniel Statman have argued for the existence of an autonomous morality in
Judaism as opposed to one based on divine command.[30] They
further argue that the nature of the halachic system based on human discretion
and understanding is more consistent with an autonomous theory of mortality. To
buttress their opinion they invoke a responsum of the Radvaz.
The Radvaz argues that one should not be required to
cut of ones hand to save a fellow Jew because “and furthermore it is written
its ways are pleasant and the laws of our Torah have to be acceptable to our
reason and logic and how can someone suggest that a person is required to blind
himself or amputate his leg or arm so his friend should not die".[31]
"Interpretations
of the Torah must be consistent with human reason. In this text [responsa of
the Radvaz], "reason and logic" are
synonymous with moral understanding which, as Ha-Radvaz
sees it, would rebel against the notion of forcing a human being to sacrifice a
limb to save someone else's life".[32]
To many
people the selling of organs appear to be a violation of universal morality for
the reasons cited previously.
Israel- a light unto the Nations
The
question of selling organs has another dimension in relation to legislation to
allow it in Israel.
1.
The return of the Jewish People to its ancestral
homeland has led to the development of new halachic questions that were simply
not relevant in the Diaspora and innovative halachic decision making and makers
are needed to answer them. An halachic response was needed to the development
of modern economic, judicial, banking, public safety and healthcare systems in
the new State.[33]
2.
The recognition of the theological and historical
significance of the State clearly impacts on practical halachic decision making
and blur the boundary between halacha and theology which still reverberate
today. For example, the vitriolic arguments that still exist on the correct way
to observe shmitta in a modern heteregenous society and how to deal with the conversion
crisis are as much theological arguments as they are halachic. Recognition of
the impact of halachic decision making on the wellbeing, both physican and moral, of the national homeland should play a
significant role on halachic rulings.
3. Rabbi Haim
David Halevy, former Chief rabbi of Tel Aviv, believed that the State of Israel
has a special obligation in the world. He writes;
Notwithstanding
the fact that the Torah was only given to Israel, …there is no doubt in my mind
that the majority of commandments between men based on morality and humanism
and other Torah values, which human civilization depends on, first and foremost
the belief in the existence of God, all of this was given primarily to Israel
with the clear purpose that Israel would be "a nation of priests" and
through them the rest of the world will recognize these values……Because it is
through the Jewish people, either when they are living independently in their land
or scattered in the Diaspora, that the world has learned the great values of
God's Torah.[34]
The
Jewish people have a singular responsibility to be a beacon of morality for the
nations of the world. In Rabbi Halevy's thought the phrase "a nation of
priests" represents this idea. If one believes that compensated organ
donation is immoral a law permitting this in Israel would violate this special
obligation.
Most
contemporary halachic decisors have permitted
financial compensation for organ donors, notwithstanding their significant
moral qualms, because in the words of Rabbi Lau "I do not understand how
one can forbid this because another person in a similar situation does not have
the resources to save himself"[35]
I have suggested that problematic motivation, concern for the dignity of man,
universal morality and the nature of the role of the Jewish people in the world
might provide a theoretical framework for questioning the halachic validity of
the transaction. In the final analysis it is the role of the leaders of the
generation to decide if these are significant grounds to forbid compensated
organ donation.
[1] Steinbrook
R. Organ Donation after Cardiac Death. N Eng J Med 2007;357:209-213.
[2] Chapman
J. Should we pay donors to increase the supply of organs for transplantation?
No. BMJ 2008;336:1343(14 June)
[3] Ghods AJ, Savaj S. Iranian model of paid and regulated
living-unrelated kidney donation. Clin J Am Soc Nephrol. 2006 Nov;1(6):1136-45.
[4] Ibid
[5] Friedlaender MM. A protocol for paid kidney donation in Israel. Isr Med Assoc J. 2003
Sep;5(9):611-4.
[6] Lavee J. Organ transplantation using organs taken from
executed prisoners in China--a call for the cessation of Israeli participation
in the process Harefuah.
2006 Oct;145(10):749-52, 781. Hebrew.
[7] available in The Journal of
Medicine and Law 2008 June, vol. 38: pp 180-191.
Hebrew
[8] Turner, L. Let's wave good bye to "transplant
tourism" BMJ 2008;336:1377 (14 June)
[9] Ibid
[10] Medical
professionalism in the new millennium: a physician charter. Ann Intern Med. 2002 Feb 5;136(3):243-6.
[11] for an insightful discussion of the issue see Wilkinson S. Commodification arguments
for the legal prohibition of organ sale. Health Care Anal. 2000;8(2):189-201.
[12] Matas AJ. Should we pay donors to
increase the supply of organs for transplantation? Yes.
BMJ 2008;336:1342
(14 June)
[13] Ibid
[14] Radcliffe-Richards J, Daar AS,
Guttmann RD, Hoffenberg R, Kennedy I, Lock M, Sells RA, Tilney N. The case for allowing kidney sales. International
Forum for Transplant Ethics. Lancet. 1998 Jun
27;351(9120):1950-2.
[15] Lau
Y.M. Selling organs for transplantation. Tehumin
1998;18:125 hebrew
[16] Steinberg A. Compensation for kidney
donation: a price worth paying. Isr Med Assoc J. 2002 Dec;4(12):1139-40
[17] Responsa
Iggrot Moshe Choshen
Mishpat vol.2:66.
[18] Maimonides
Laws of Chovel and Mazik Chapter 5.
[19] Responsa
Iggrot Moshe Choshen
Mishpat vol.2:66.
[20] Grazi RV, Wolowelsky JB. Jewish medical ethics: monetary
compensation for donating kidneys. Isr Med Assoc J. 2004 Mar;6(3):185-8
[21] Rappoport SA. Sale of organs form living donor for transplant: motivation
and decision making in An equitable distribution of human organs for
transplantation ed. Mordechai Rabello Jerusalem, 2003.
[22] Ibid
[23] Vigoda
M. Living organ donation and its commercialization. Assia (Hebrew) 18,
5-24,2003
[24] Responsa
Shevet Me-Yehuda p. 53, 1984.
[25] For
further discussion of this issue see Mark Dratch, "His Money or
Her Life? Heinz's Dilemma in Jewish Law," The Journal of Halacha and
Contemporary Society, XX (Fall 1990)
[26] Slote,
Michael, Morals
from Motives, Oxford University Press, 2001. For an enlightening
discussion of the relationship of Jewish ethics to virtue ethics see Y. Blau
The Implications of a Jewish Virtue Ethic,” Torah. u-Madda Journal 9 (2000):
34-36. 35. and a classic in the field Walter Wurtzberger's
Ethics of Responsibility Philadelphia:JPS 1994
[27] Slote,
Michael, Morals
from Motives, Oxford University Press, 2001.
[28] Soloveitchik,
H. Religious Law and
Change: The Medieval Ashkenazic Example AJS Review, Vol. 12, No. 2
(Autumn, 1987), pp. 205-221
[29] Lichtenstein, A. Mah
Enosh: Reflections on the Relation between Judaism and
Humanism, Torah Umadda Journal vol. 14 2006/7 pp.
1-61
[30] Sagi,
A. and Statman D. Divine Command Mortality and Jewish Tradition. Journal of Religious Ethics 1995;
23:
pp.39–67
[31] Responsa
Rivash #447.
[32] Sagi,
A. and Statman D. Divine Command Mortality and Jewish Tradition. Journal of Religious Ethics 1995;
23:p. 57.
[33] for further discussion on this issue see Mark
Washofsky Halakhah and
Political Theory: A Study in Jewish Legal Response to Modernity Modern Judaism, Vol. 9, No. 3 (Oct., 1989), pp. 289-310
[34] Haim
David Halevy.Torat Hayim, Sefer
Shemot p. 91.
[35] Lau
Y.M. Selling organs for transplantation. Tehumin
1998;18:125 hebrew