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Published online by Cambridge University Press: 04 July 2014
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.
1 (1988) 42(ii) P.D. 661.
2 The substituted judgment standard requires that any decision regarding organ donation on behalf of a legal incompetent be made as if he or she were, in fact, competent. Account is taken of the person's previously expressed interests, values and desires in any decision regarding transplantation. This standard usually provides more leeway for allowing transplants than the strictly objective best interests criterion, and is popular in American law since it reflects the strong concern of that system with individual rights, and their exercise — even on the part of the legally incompetent. On some of the disadvantages of the substituted judgment approach, see infra nn. 35 and 47.
3 16 L.S.1. 106, as amended in Capacity and Guardianship (Amendment No. 7) Law, 1983 (37 L.S.I. 87).
4 See Shapira, A., “Informed Consent to Medical Treatment”, (1989) 14 Iyunei Mishpat 264–266Google Scholar, for an analysis of this case. Shapira contends that the view of the Supreme Court is undoubtedly the correct one in relation to organ transplantation.
5 See Hirshler, R. Moshe, “Kidney Donation from a Mentally Incompetent Individual”, (1981) 2 Halakhah Urefuah 122Google Scholar; Meiselman, R. Moshe, “Halakhic Problems Relating to Kidney Transplants”, (1981) 2 Halakhah Urefuah 114.Google Scholar
6 Attorney General v. A and Others, supra n. 1, at 680–684.
7 Resp. Radbaz 3 no. 1052, Pithei Teshuvah, Hoshen Miahpat 426:2; Arukh Haehulhan, Hoshen Mishpat 426:4; Pri Megadim, Orah Hayyim 328:7; cf. Kesef Mishneh, Hilkhot Rozeah 1:14; Beth Joseph, Tur, Hoshen Mishpat 425.
8 Resp. Radbaz 3 no. 627; Resp. Triz Eliezer 10 no. 25:7: Yosef, R. Ovadiah, “A Responsum Concerning Kidney Transplants”, (1977) 7 Dinei Israel 25.Google Scholar
9 Resp. Radbaz 3 no. 627.
10 See sources in supra n. 7 and Shulhan Arukh Harav 2, Orah Hayyim 329:8; Hilkhot Nizkei Haguf sec. 7.
11 See Lichtenstein, A., “Does Jewish Tradition Recognize an Ethic Independent of Halakhah?” in Kellner, M., ed., Contemporary Jewish Ethics (N.Y., 1978) 102.Google Scholar
12 See Sinclair, D., “Non-Consensual Medical Treatment of Competent Individuals in Jewish Law”, (1992) 11 Tel-Aviv University Studies in Law 253–258.Google Scholar
13 See Sinclair, D., “The Status of Medical Therapy and Non-Consensual Medical Treatment”, Shenaton Hamishpat Haivri (Jerusalem, in Hebrew)Google Scholar (forthcoming).
14 In Nagar v. Nagar (1984) 38(i) P.D. 365, Dayyan Y. Kapah observed that Jewish law does not recognize parental rights per se; see also Sinclair, D., “Jewish Law in the State of Israel”, (1991) 9 Jewish Law Annual 251–257.Google Scholar
15 Silberstein, R. Yitzhak, “Kidney Transplantation”, (1985) 4 Halakhah Urefuah 157.Google Scholar
16 See sources in supra n. 5.
17 Shulhan Arukh, Hoshen Mishpat 290:2.
18 Gittin 52a; Maimonides, , Hilkhot Nahalot 11:10.Google Scholar Maimonides explains that this outlay is for educational purposes.
19 Gittin, ibid.; Maimonides, ibid. According to Rashi, the reason for not submitting the estate to assessment is because it imposes a continuous burden upon the estate (Gittin, ad. loc.) R. Joseph Trani maintains that charity is unlimited in terms of the sum expended on it, unlike sukkah and megillah which do have a limit (Resp. Maharit 1 no. 127).
20 Bava Bathra 8a. In this Talmudic case, charity was assessed from the estate of a family which had a reputation for supporting the needy, and it was for the purpose of “enhancing the orphan's reputation that the assessment was made” (R. Gershom, ad. loc.) This principle is codified by Maimonides, in Hilkkot Matnot Aniyim 7:12Google Scholar, and is incorporated into the laws of guardianship in Shulhan Arukh, Hoshen Miahpat 290:16.
21 R. Hirshler, supra n. 5, at 127–128; R. Meiselman, supra n. 5, at 121.
22 Ketubot 48a; Maimonides, , Hilkhot Nahalot 10:8.Google Scholar
23 Ketubot, ibid.; Maimonides, , Hilkhot Nahalot 11:11Google Scholar; Shulhan Arukh, supra n. 14.
24 Hilkhot Nahalot 11:11.
25 Ktzot Hahoshen, Hoshen Mishpat 358:1.
26 Resp. Maharit 1 no. 127.
27 For the application of this distinction in the case of a mental incompetent, see Resp. Hatam Safer, Orah Hayyim no. 2. Also see Ilan, R. Naftali Bar, “Halakhic Aspects of Bone-Marrow Transplants,” (1992) 13 Assia 59.Google Scholar
28 See supra n. 5.
29 Attorney General v. A and Others, supra n. 1, at 683–684.
30 See infra nn. 39–40.
31 See supra n. 15.
32 See supra n. 5.
33 Nishmat Avraham 4, Hoshen Mishpat 147:1, citing R. Shlomoh Zalman Auerbach.
34 Attorney General v. A and Others, supra n. 1, at 681.
35 See Superintendent of Belchertown School v. Saikewicz 373 Mass.728, 370 N.E. 2d 417 (1977); Sinclair, D., “The Terminal Patient in Jewish Law with Comparative Reference to English and American Law”, (1993) 12 Tel-Aviv University Law Studies (forthcoming).Google Scholar
36 445 SW 2d 145 (Ky App. 1969).
37 (1816) 2 Mer. 99, 35 Er. 878.
38 (1846) Craig and Ph. 76, 41 ER 418.
39 11 Paige 257 (NY, 1844).
40 In re Pescinaki (1976) 226 NW 2d 180 (Wisc. Sup. Ct.); In re Richardson (1973) 284 50 2d 185 (Lou. C.A.).
41 34 (1979) 576 SW 2d 493 (Texas C.A.). Also see Robertson, D., “Organ Donation by Incompetents”, (1976) 76 Colum. L.R. 48.CrossRefGoogle ScholarPubMed
42 Supra n. 1.
43 Skegg, P., Law, Ethics and Medicine (Oxford, 1984) 61.Google Scholar
44 Mason, J. and Smith, R. McCall, Law and Medical Ethics (London, 1991) 303.Google Scholar
45 Gillick v. West Norfolk and Wisbech Area Health Authority (1985) 3 All E. R. 402; Kennedy, I. and Grubb, A., Medical Law (London, 1989) 982.Google Scholar
46 See Mason and McCall Smith, supra n. 44, at 304. The relevant Australian statutes are cited in Legislative Responses to Organ Transplantation (World Health Organization, Dordrecht, 1994) 13 ff. Canadian law also forbids pediatrie organ donations: see Dickens, B., “The Modern Function and Limits of Parental Rights”, (1981) 97 L.Q.R. 462.Google Scholar Under French law, a minor may only donate a non-regenerative organ to a brother or sister, and the procedure must be authorised by a committee consisting of three medical experts in the transplantation field.
47 Airedale N.H.S. Trust v. Bland (1993) 1 All E.R. 821, at 843 and 872.
