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Published online by Cambridge University Press: 04 July 2014
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.
1 See sec. 1(b) of Gift Law, 1968 (22 L.S.I. 113): “The subject of a gift may be immovable property, movable property or rights”. The English translation of the new Israeli laws of Contracts, Property and Succession appear in Rabello, A. M., ed., European Legal Tradition and Israel (Jerusalem, 1994) 583–769.Google Scholar
2 See Uniform Anatomical Gift Act; Gangi, , Persone fisiche e persone giuridiche (Milano, 1948) 176Google Scholar; Pesante, M., “Corpo Umano (Atti di disposizione)”, in Enciclopedia del Diritto, vol. x (1962) 653 ss., 661Google Scholar; Dworkin, G., “The Law Relating to Organ Transplantation in England”, (1970) 33 Modern L. R. 356–357Google Scholar; “Transplantation — Incompetent Donors: Was the First Step or the Last Step Taken in Strunk v. Strunk?” (1970) 58 Calif. L. R. 754; Rivosecchi, M.-Masera, C., I Contratti atipici d'oggi (Milano, 1985) 137 s.Google Scholar: “Donazione degli occhi”; Mastropaolo, F., “Aspetti giuridici delle manipolazioni biologiche” (1989) 2 Quadrimestre 274, 280, 282.Google Scholar See also Frankel, D., Legal Aspects of Organ Transplants, Doctoral Dissertation (Jerusalem, 1976) 71.Google Scholar In his dissertation Frankel argues that a person's right to his body includes a right to his organs; Levinson-Zamir, D., “Transplantation from Living Bodies: Experience and Problems in Israel” (1988) 38 HaPraklit 300.Google Scholar
3 Cf. sec. 30 of the Contracts (General Part) Law, (27 L.S.I. 117, at 122): “A contract the making, contents or object of which is or are illegal, immoral or contrary to public policy is void”. However, it is clear that the whole situation must be taken into account prior to the moral judgment.
4 Israeli law does not require “consideration” as a necessary element for the validity of a contract. So we have in Israeli law (like in Continental legal systems) both contracts with consideration, like the contract of sale, and contracts without consideration, like the contract of gift (a unilateral contract). See Rabello, A.M., The Gift Law, Commentary to the Laws relating to Contracts, (Jerusalem, 1979).Google Scholar
5 See Gift Law, supra n. 1, sec. 5 (b): “Unless he has waived the right to do so in writing, the donor may retract the undertaking so long as the donee had not altered his situation in reliance thereon”.
6 This was already accepted by the Pandektists. See, for example, Windscheid, B., Pandektenrecht, 11Google Scholar; and see the discussion of Bensa-Fadda in the volume of comments on Windscheid in the Italian translation of the essay, volume 4, of 1926.
7 M. Pesante, supra, n. 2, with the discussion of the essence of the rights of a person over his body and organs.
8 This approach is represented by Levontin, A., “What is a Property Right?” (1980) 9 Mishpatim 384Google Scholar; J. Weisman, “Organs as Assets”, in this issue, p. 610; ibid., Property Law: General Part (Jerusalem, 1993, in Hebrew) 91 ff.
9 G. Tedeschi, “Ownership of Organs Taken from a Living Person”, in this issue, p. 624. Our purpose is to complete their research, with an examination of the problem of donation of an human organ.
10 See supra n. 8.
11 Attorney General v. Levy (unpublished), cited by Frankel, D., “Legal Incompetents as Organ Donors” (1971) 3 Mishpatim 238, at 244Google Scholar; J. Weisman, “Organs as Assets”, supra n. 8, at 620; Prof. Weisman says that the “first sparks of recognition of parts separated from a living body as “assets”, upon their separation, have already appeared in the case-law” (loc. cit.). In our opinion, this is a matter of adapting the case-law to the legal situation, which has long been recognised in the modern world of law. See the discussion in Tedeschi's article, supra n. 9, at 638–639, and the literature cited there.
12 See secs. 4 and 5 of Gift Law.
13 See, e.g. Jewish law on the question of the sale of a synagogue or ritual items, Mishnah Megillah, ch. 3.
14 The Halakhah, also permits the donation of organs in certain cases, and, for example, considers a person's donation of one of his kidneys to save another person from certain death as a good deed (Yosef, R. Ovadiah, (1983) 3 Halakhah Urefuah, 61–63Google Scholar). It is interesting to note that according to R. Goren, the Halakhah permits the sale of kidneys for transplant. See: “Sale of Kidneys for Transplantation in the Light of the Halakhah”, Hazofeh Oct. 1984, p. 5. A similar view to that of R. Goren, i.e. that in certain cases, tissue and organs can be sold, is taken by R. Mordechai Halperin, “Organ Transplants from Living Donors”, in this issue, p. 566, which refers specifically to the kidney. It emerges that according to Prof. Weisman's definition as well, the kidney is an asset according to Jewish law.
See also Canon Law: in the Middle Ages, the Canonists held the rule whereby a person was not the owner of his organs (nemo dominus est membrorum suorum), but modern Canon law, too, permits the transplantation of organs from one person to another, and it is prepared to consider different definitions: see Ravà, A., I trapianti di organi da individua a individua nel Diritto canonico (Milano, 1956).Google Scholar
15 Supra n. 9, at 648.
16 (1992) S.H. no. 1381, p. 150.
17 Attorney General v. A. (1988) 42(ii)P.D. 661, at 676, per Elon D.P.:… “from the point of view of human-spiritual values, which are not measured in terms of material possessions or financial worth — therefore the rule is that one does not permit the donation of a kidney by a minor in exchange for financial payment in a commercial fashion”. According to Rabbi Y. Silberstein in Jewish law the donation of a kidney of a minor (e.g. to save his brother) is nul; the minor being without capacity to give and his parents not authorized to agree for him: (1984) 4 Halakhah Urefuah, 125–129.
18 16 L.S.I. 106, at 109.
19 See Schereschewsky, B., Family Law in Israel (Jerusalem, 1971) 414 and 617Google Scholar; see also the criticism of this in Tedeschi, G., “On the Gift Law” (1969) 1 Mishpatim 639, at 645.Google Scholar
20 See the Capacity and Guardianship Law, supra n. 18, at 107, and its interpretation in Englard, Y., Capacity and Guardianship Law, 1962, Commentary to the Laws Relating to Contracts (Jerusalem, 1972) 26Google Scholar; see D. Frankel, supra n. 11, at 241, for a discussion of the removal of organs to be made generally available for transplantation; see B. Schereschewsky, supra n. 19, at 141, on the analogous relationship between legal incompetents and minors; see Tedeschi, G., Legal Essays (Jerusalem, 1978) 334Google Scholar, on the connection between agency and guardianship.
21 Sec. 5(a) of the Gift Law, supra n. 1; see Y. Englard, ibid., for a discussion of the entering into an obligation with respect to real property; also see Englard, Y., “The Guardians Authority to Represent the Ward and Court Approval (Nachool v. Levi (1976) 30(ii) P.D. 113)” (1977) 8 Miskpatim 479.Google Scholar We tend to agree with the majority opinion in Nachool; however, Justice H. Cohn, in his dissenting opinion, maintained that the parties were obligated even without prior court approval. Cohn J. reiterated this opinion in Scharef v. Inbar (1980) 34(iii) P.D. 178.
22 Cf. Y. Englard, ibid., at 484: “Prior to court approval the guardian is not empowered to represent the minor in contractual negotiations; and therefore, may not make an offer on behalf of the minor. Court approval empowers the guardian to accept and/or extend an offer on behalf of the minor”.
23 Cf. Y. Englard, ibid., at 482, as he considers the possibility of a contract based on a suspensory condition in accordance with sec. 27(b) of the Contract (General Part) Law (supra n. 3, at 122): “If it was possible to receive court approval retroactively, we would be faced with a conditional contract as defined in the Contract (General Part) Law. However, according to sec. 20 of the Capacity and Guardianship Law, in the situations that it regulates, parents are not empowered to represent their children without ‘advance approval’ from the court. It follows, therefore, that without ‘advance approval’ the parents may not act in their child's name. They are estranged from their child's estate, and they may not make an offer to enter into a contract on behalf of their child. An offer, as previously stated, is a legal action which under certain circumstances is irrecoverable and may create a one-sided obligation on the part of the party making the offer”.
24 See also Scharef, supra n. 21. The Judges disagreed as to the ramifications of court approval: Agranat P. reasoned that a contract becomes perfected from the receipt of court approval onward (Nachool, supra n. 21, at 123); whereas, Barak J. seems to think that with court approval that contract will attain retrospective perfection; however, Justice Barak (Scharef, at 191–192) stated that the issue merited further discussion. Justice Shamgar (Scharef, at 194) adopts Professor Englard's opinion that a guardian cannot make an offer on the ward's behalf prior to receiving court approval. In our opinion, this is the correct legal interpretation.
25 See Scharef, ibid., at 193, Justice Shamgar reasoned that prior to receiving court approval, the guardian's actions are “inherently invalid”.
26 See Y. Englard, supra n. 20, at 57; and Englard, Y., The Supplement to Capacity and Guardianship Law, 1962, Commentary to the Laws Relating to Contracts (Jerusalem, 1978) 15Google Scholar; see also Scharef, ibid., at 190, Justice Barak noted: “that parties may not retract their offers; they must wait a reasonable amount of time for the fulfillment of the condition, and the parties have a fiduciary relationship”; see Shalev, G., The Law of Contract (Jerusalem, 1990) 341Google Scholar for a discussion of a condition of law.
27 See Tedeschi, G., “A Contract, Performance of Which Requires Third Party Agreement” (1978) 32 Mishpatim 296, at 298.Google Scholar In Tedeechi's opinion, court approval is a preliminary condition to the perfection of the contract.