The Jerusalem District Court instructed health maintenance organizations to pay kidney donors NIS 63,000 to cover their expenses, but did not rule on the issue of whether it's allowed to pay for a kidney.
The Western world generally forbids organ trade. In Israel the ban came in a directive by the CEO of the Health Ministry. But Jewish law (halakha) does allow payment for organs and even considers selling one to be a mitzvah.
In a precedent-setting ruling on Monday by the Jerusalem District Court, Judge Joseph Shapira instructed HMOs to pay 31 kidney donors NIS 63,000 each to cover expenses. Shapira stipulated that the ruling is not on the more fundamental issue of whether payment should be allowed for the kidney itself.
Shapira opened his verdict with the words "Giving your soul and heart, giving, giving when you love", taken from Hamutal Ben Zeev's song "Latet," clearly not a coincidence.
The court case was brought by 31 people who had donated kidneys to relatives. Why only kidney donors? The kidney is the only internal organ that can be taken from a living donor. We each have one heart, one liver (and therefore they can be harvested only from the dead, but we have two kidneys and can do fine without one.
The plaintiffs, represented by attorney Shmuel Yelinek, claimed that the state and HMOs were negligent in not supplying their relatives with kidneys. Every donation, they said, saved the state NIS 350,000 a year, the cost of treating someone with failing kidneys. As result of their organ donations, they were left with a 30 percent handicap and a potentially diminished work capacity. They sought compensation that was part of the amount saved.
Yelinek, who wrote a doctoral disseration on rewarding organ donation is running a campaign for it to be regulated. HMOs Clalit and Maccabi, through attorney Amir Almagor, answered that this claim is "a dangerous one", and that granting a reward for organ donation will constitute "organ trade approved by a court of law." They warned that "poor people's organs will become rich people's spare parts. Organ donors, they argued, were not harmed and that it was proven that "quality and longevity of life for organ donors is the same if not higher than that of the general population."
"The plaintiffs were unable to name even one country in the world where a similar custom exists, in which a considerable reward is given by the state or HMO for the donation of organs to a relative," said Clalit's attorney, Paz Moser. Clalit argued that approving the claim will bring about the collapse of HMOs, and Israel's health establishment.
Judge Shapira rejected the plaintiffs' argument the health establishment was negligent in not supplying patients with kidneys. "You cannot interpret the inclusion of the right to kidney transplant [in the health basket - S.I] as an obligation of the state and/or HMOs to supply organs for transplant, as if it were a product readily available in grocery stores," ruled the judge. But he said the HMOs are obligated "to compensate the donors for the direct expenses related to the transplant operation, as opposed to a reward for organ donation."
The expenses included are "the loss of earning for the duration of the operation and rehabilitation, days in hospital, travel expenses, third-party aid for the rehabilitation period, as well as unusual medical expenses" that are not part of the health basket. On this basis, Shapira reached the NIS 63,000 judge sum for each plaintiff.
"The question of whether a kidney donor is entitled to an additional reward for the lack of the organ, and if so, how much and what should the nature of that reward be, remains open," wrote Shapira.
The judge said the Health Ministry should formulate a law on organ donation that answers these questions - "and the sooner the better," said the judge. But the proposal the ministry has come up with is similar in nature to the verdict. It forbids the giving or receiving of a reward for an organ donation. And it states that the minister of health will set a uniform compensation for organ donors.
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