1 35 L.S.I. 370.

2 Penal Law, 1977, sec. 2. See Public Service (Gifts) Law, 1979, (34 L.S.I. 3) sec. 2, which refers to “a gift which is not subject to ownership”. The reference is not to a gift of something which does not constitute a “asset”, but something which is not restorable by the recipient, such as a thing which is consumed as a result of its use, or which is not tangible, e.g. a service received.

3 The Succession Law, 1965, (19 L.S.I. 58) states that “the assets of the estate shall be distributed amongst the heirs in accordance with their value at the time of distribution” (sec. 109(a); see also sees. 131, 134 and cf. sec. 112). Sec. 5(a) of the Spouses (Property Relations) Law, 1973, (27 L.S.I. 313) refers to “half the value of the aggregate property of the spouses” (see also sec. 6, and cf. sec. 8(1)). In the Bankruptcy Ordinance (New Version), 1980, (3 L.S.I. [N.V.] 131) see secs. 1 (“assets of the Bankrupt”), 85, 124, 135.

4 Prof. Levontin refers to the “feature of exchangability”, in stating: “…And note: We have said exchangeability and not transferability. One who can give to others one of his rights only as a gift, or bequeath it to them, and these [recipients] cannot transfer it except in this way, but they cannot sell, lease or encumber it (neither directly nor indirectly by subjecting the right to the creditors) — the right is not a right in property”: Levontin, A., “What is a Right of Property?” (1979) 9 Mishpatim 384, at 390.Google Scholar Further on the connection between property rights and exchangeability, see Weieman, J., Law of Property: General Part (Jerusalem, 1993, in Hebrew) 56–59, 89–90Google Scholar; Lawson, F.H. and Rudden, B., The Law of Property (Clarendon Press, Oxford, 2nd. ed., 1982) 16, 26Google Scholar; Radin, M. J., “Market Inalienability” (1987) 100 Harv. L.R. (1987) 1849, 1851, 1888–1889CrossRefGoogle Scholar, et al.

5 Yiannopoulos, A.N., Louisiana Civil Law Treatise, (3rd ed., 1991) vol. 2, pp. 33, 36–37Google Scholar; Skegg, P.D.G., “Human Corpses, Medical Specimens and the Law of Property” (1975) 4 Anglo-American L.R. 412, 418 n. 39CrossRefGoogle Scholar; Slavery Convention 1926, K.A. 202, vol. 7, p. 307; Final Act of the U.N. Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, The Slave Trade and Institutions and Practices Similar to Slavery, K.A. 265, vol. 9, p. 1.

6 Giesen, D., Medical Malpractice Law (Gieseking-Verlag Bielefeld, 1981) 241.Google Scholar

7 Brams, M., “Transplantable Human Organs: Should their Sale be Authorised by Statute?” (1977/1978) 3 Am. J. of Law and Medicine, 183, 184Google Scholar; Giesen, supra n. 6, at 370, note 748.

8 Council of Europe Resolution, 1978, On Harmonisation of Legislation of Member States relating to Removal, Grafting and Transplantation of Human Substances, Art. 9, in Giesen, supra n. 6.

9 This is the situation in the U.S. according to the National Organ Transplant Act, 1988. See Blumstein, J.E., Sloan, F.A. (eds.), Organ Transplantation Policy (Duke University Press, 1989) 59Google ScholarPubMed; Dukeminier, J., “Supplying Organs for Transplantation”, (1970) 68 Mich. L.R. 811, at 861–62CrossRefGoogle Scholar; cf. Moore v. Regents of the University of California, 793 P.2d 479, 518 (Cal. 1990); and in France, according to sec. 3 of the Transplantation Law, 1976: Giesen, supra n. 6, at 242, 243, 405; Giesen, D., International Medical Malpractice Law (Tübingen, 1988) 627.Google Scholar See the similar view in German law, according to which the corpse is extra commercium: Larenz, Karl, Allgemeiner Teil Des Deutschen Burgerlichen Rechts, (Munich, 3rd ed., 1975) 230–231.Google Scholar This is also the position in Canada: Mason, and Smith, McCall, Law and Medical Ethics, (Butterworth, 1983) 176.Google Scholar The traditional view of the Common law is that there is no right of property in the human corpse. Dworkin, G., “The Law Relating to Organ Transplantation in England”, (1970) 33 M.L.R. 353, 364.CrossRefGoogle Scholar English law does not permit transplant surgery if the donor receives consideration. Lamb, David, Organ Transplant and Ethics (Routledge, London, 1990) 137.Google Scholar

10 See Hirschler, Moshe (author and editor), Halakhah and Medicine, (Jerusalem, 1991) vol. 2Google Scholar, citing Rabbi S.Y. Zevin, at 100; Metzger, Z. (ed.), Medicine in the Light of the Halakhah (Jerusalem, 1993, in Hebrew) vol. 2, 70b.Google Scholar

11 Dukeminier, supra n. 9, at 861–862; Yiannopoulos, supra n. 5, at 34. On the situation in Scotland, see Skegg, supra n. 5, at 420.

12 Weisman, supra n. 4; Levontin, supra n. 4, at 390; Karl Larenz, supra n. 9, at 252–253.

13 And this is the case in Israel, under the Anatomy and Pathology Law, 1953, (7 L.S.I. 135) as we shall see below. This is also the situation, for example, in the United States, under the Uniform Anatomical Gift Act, 1968. There are States in which no distinction is made between “donation” and “sale”, and both are prohibited if the transfer must be made while the person is still alive. This is the situation, for example, in Italy (with an exception allowing for the donation of a kidney): Dukeminier, supra n. 9, at 849.

14 Dukeminier, supra n. 9, at 812. See also The Sale of Human Body Parts”, (1974) 72 Mich. L.R. 1182, 1218, 1222; Giesen, supra n. 9 (International, etc.) at 622, 627.

15 Dukeminier, supra n. 9, at 811 n. 2, who recounts that Burke and Hare supplied the needs of the Scottish scientist, Dr. Knox in this manner. See also “The Sale of Human Body Parts”, supra n. 14, at 1218; Giesen, supra n. 9, at 677, n. 26.

16 In 1970, a lock of Byron's hair was sold at the famous Sotheby's Auction House in London, at a price of £320. Skegg, supra n. 5, at 418, n. 39. The market prices in the United States, in 1970, were as follows: a pint of blood — $10–15; a dose of semen — $5–50: Dukeminier, supra n. 9, at 847. See also “The Sale ofHuman Body Parts,” supra n. 14, at 1237. In Canada, the price of blood and semen are similar: Dickens, B.M., “The Control of Living Body Materials”, (1977) 27 U. Toronto L. J. 142, 167, 171, n. 157.CrossRefGoogle ScholarPubMed

17 Skegg, supra n. 5, at 417. Before the invention of false teeth, poverty-stricken people had on occasion given their consent to pulling out their teeth and offering them for sale. There are reports of wealthy people from the Far East who travel to Australia together with “paid organ donors” to undergo transplants. A similar pehonomenon has also been reported relating to wealthy people from the Near East, who go to England for similar purposes. Giesen, supra n. 6, at 370, n. 748. The price of organs for transplant that have been reported are as follows: an eye was offered for $50,000 in 1969; several years later (1975), the price had dropped to $35,000. A kidney was offered for $5,000 in 1970, for $3,000 in 1974, and in Canada, in 1977, for $6,800. In 1985, in Chicago, a kidney was offered for $34,500, and in London, for £14,300. Giesen, ibid., at 627 n. 189. It has been reported that in 1989, poor Turks and Indians were flown to Britain to sell their kidneys for £2000 - £3000 per kidney: Meyers, D.W., The Human Body and the Law (Edinburgh University Press, 2nd ed., 1990) 191, 207.Google Scholar The great differences in prices are remarkable, and stem in part from the special conditions pertaining to the “market” in prgans. See also the view that, in a sense, organs are an asset for hospitals which perform transplants. The value of the asset is the difference between the cost of the transplant for the hospital and the amount paid by the recipient: Hansmann, H., “The Economics and Ethics of Markets for Human Organs” in Blumstein, J.F., Sloan, F.A. (eds.) Organ Transplantation Policy (Duke University Press, 1989), 82, 83.Google Scholar Sometimes, the consideration given for body parts assumes the form of insurance, such as the common practice in Israel, in the framework of the blood donors insurance scheme of the Magen David Adorn, whereby for a pint of blood the “donor” receives blood insurance for one year, to cover the needs of the donor, his spouse, and his children till age eighteen, and the parents of both of the couple. On insurance arrangements made for the donors of organs, see Dukeminier, supra n. 9, at 811, n. 1, 812, 848; Shapiro, and Spece, R.G., Cases, Materials and Problems on Bioethics and Law (West Pub. Co., 1981) 823–824Google Scholar; Dickens, supra n. 16, at 165, n. 123, 167, 171, n. 157. On transactions in body parts of embryos for pharmaceutical purposes, see Field, N.E., “Evolving Conceptualization of Property: A Proposal to Decommericalize the Value of Fetal Tissue”, (1989) 99 Yale L.J. 169.CrossRefGoogle Scholar

18 This is the situation, for example, in the Province of Ontario, Canada: Dickens, supra n. 16, at 166, 183; Yiannopoulos, supra n. 5, at 31, 33; Matthews, P.M., “Whose Body? People as Property” (1983) 36 Current Legal Problems 193, 229–230CrossRefGoogle ScholarPubMed; Blumstein, supra n. 17, at 14–15; Jaffe, E.S., “‘She Has Got Bette Davis's Eyes’: Assessing the Nonconseneual Removal of Cadaver under the Taking and Due Process Clauses” (1990) 90 Columb. L.R. 528, 549–550, 553, 559.CrossRefGoogle Scholar See also Skegg, supra n. 5, at note 39; Dickens, supra n. 16, at 183. On the fact that the extrication of an organ from a person's body, with his consent, for the purpose of a transplant, does not constitute a criminal offence, see Skegg, P.D.G., Law, Ethics and Medicine, (Oxford, 1984) 43Google Scholar; Mason and McCall Smith, supra n. 9, at 169.

19 As stated in sec. 30 of the Contracts (General Part) Law, 1973 (27 L.S.I. 117).

20 Valuable material on this quetion can be found in Frankel, D., The Legal Aspects of Organ Transplants (Doctoral Dissertation submitted to the Hebrew University of Jerusalem, 1976).Google Scholar

21 Dworkin, supra n. 9, at 364.

22 “The Sale of Human Body Parts”, supra n. 14, at 1219.

23 Shapiro and Spece, supra n. 17, at 827; “The Sale of Human Body Parts”, supra n. 14, at 1217; Lamb, supra n. 9, at 138.

24 See above, n. 15.

25 Brams, supra n. 7, at 192; Meyers, supra n. 17, at 208.

26 Dukeminier, supra n. 9, at 863.

27 Ibid., at 861.

28 Ibid., at 859; Brams, supra n. 7, at 192–193.

29 “The Sale of Human Body Parts”, supra n. 14, at 1201.

30 Shalev, G., Defects in the Making of Contracts (Commentary to the Laws of Contracts, Tedeschi, G. (ed.), 1981) 9, sec. 20.Google Scholar

31 To the paternalistic argument, which focusses on concern for the individual, some add that of concern for society, which will bear the burden if the individual takes excessive risks upon himself. Dukeminier, supra n. 9, at 859.

32 Brams, supra n. 7, at 192.

33 Ibid., at 191.

34 This is the common assumption: “The Sale of Human Body Parts”, supra n. 14, at 1264; Brams, supra n. 7, at 187. There are those, however, who doubt this: Brams, at 193.

35 Brams, supra n. 7, at 192–193.

36 See above, near n. 7, and also, Mason and McCall Smith, supra n. 9, at 176–177. This is also the view of D. Frankel, supra n. 20, at 172.

37 Dukeminier, supra n. 9, at 861, 865–866.

38 “A change in the law would itself stimulate a parallel change in organized medicine's rules of medical ethics”: Brame, supra n. 7, at 194.

39 Ibid., at 188, 193.

40 4 L.S.I. 127.

41 This was amended in 1980 (35 L.S.I. 40).

42 Slonimski v. Hadassah Medical Organization, Jerusalem et al., C. A. (Jerusalem) 17/78. This decision was rendered by the then District Court judge, E. Goldberg (unpublished).

43 This is a quotation, cited in a decision, from the dissertation of D. Frankel, supra n. 20, at 28, 36, 60. See also Strauss, P.H., Succession Law in Israel (1970) 27Google Scholar; Karmi, A., The Doctor, the Patient and the Law (Ma'ariv Publications, 1977) 68.Google Scholar

44 These uses are autopsy to determine the cause of death, except where there is a suspicion that the death was caused by a crime of negligence etc., as specified in sec. 9 of the Law, or use of parts of the corpse for medicinal purposes.

45 The relatives listed are: a spouse, children and parents — sec. 6A(d). When the treatment is not one that is required to save a life (and saving of human life was defined widely in sec. 6(c)(2) of the Law), the brothers and sisters of the deceased also have the power to oppose the transplant: see sec. 6A(a)(1).

46 The consent of a person for use of his body does not need to be given formally in a will: sec. 1 of the Anatomy and Pathology Law, 1953, reg. 2, and the Schedules to the Anatomy and Pathology Regulations, 1954. The Law maintains an interesting balance between situations in which consent is required and those in which lack of opposition suffices. See secs. 2, 5(b), 6A(a)(1) and 6A(c), as opposed to secs. 5(b), 6A(a)(2), 6A(b), 6A(d). The Law refers to consent to use of part of a corpse for curing a person; the question may arise as to whether a device which has been implanted in a person's body, such as a pacemaker, is included. Can the consent given by a person in his lifetime serve to allow the hospital to extricate from his body, after his death, a pacemaker which is required for the treatment of another person? Dickens, supra n. 16, at 198. On the position of the Halakhah on this question, see Metzger, supra n. 10, at 30.

47 The Anatomy and Pathology Law contains no provisions concerning the reversibility of the consent of the deceased or his family. In the United States, it was ruled that a unilateral statement of the donor is sufficient to revoke his consent: Best, F.L., “Transfers of Bodies and Body Parts Under the Uniform Anatomical Gifts Act”, (1980) 15 Real Property, Probate and Trust Journal, 807, 813–814, 834.Google Scholar It may be said that the consent required by the Anatomy and Pathology Law relates to the time that the body or body parts are required for use; consequently, consent which has been withdrawn prior to use does not constitute consent. The proposed conclusion, concerning the reversibility of consent, does not mandate the further conclusion that withdrawal of consent will not constitute a breach of contract. Another open question is whether a person's consent to give part of his body in his lifetime — assuming that it is valid — is also reversible. The question of a person giving part of his body in his lifetime is not regulated in the Anatomy and Pathology Law. The possibility that the consent is reversible and nevertheless withdrawal thereof constitutes a breach of contract is not unfamiliar to the law. See, e.g. sec. 28(b) of the Hire and Loan Law, 1971 (25 L.S.I. 152), which deals with a breach of contract of loan when the remedy of specific performance will not be awarded.

48 Attorney General v. Nazira Levi, Custodian File 1402/70 (unpublished), cited by Frankel, D. “Legally Incompetent Persons as ‘Organ Donors’”, (1971) 3 Mishpatim 238, at 244.Google Scholar In the Slonimski case (supra n. 42), this case was not mentioned. In that case, the question of parts of a corpse as property was discussed, as opposed to the case of Levi, in which the question concerned the body parts of a living person. See also the dissenting opinion in Moore v. Regents of the University of California, supra n. 9, at 518.

49 See supra n. 4.

50 And also, the rule invalidating a testamentary provision to destroy properly will obviously not apply to a testamentary provision to cremate a corpse, or for ite burial: Dukeminier, supra n. 9, at 834–835. In the United States, there is much discussion of the question of whether the sale of body parts should be subject to income tax or capital gains tax. The tendency is to treat the sale of body parts as a type of service contract, and not as a sale of goods, and not to apply to it the laws of liability for sale of defective products. “The Sale of Human Body Parts”, supra n. 14, at 1254–1255, 1258–1259, 1263; “Tax Consequences of Bodily Parts”, (1973) 73 Columb. L.R. 842. See also: Trustee in Bankruptcy of Reuven v. Reuven, (1968) 22(ii) P.D. 141 (damages for personal injury of a bankrupt are not assets in the hands of the trustees); Futshevitzky, Y., “Tax Aspects in Transactions in Body Parts”, (1988) 2 Missim 6.Google Scholar

51 Romano v. Shochet (1982) 36(i) P.D. 634, at 637–638.

52 See Traffic Ordinance (Amendment no. 19) Law 1986, (S.H. no. 1188, p. 198) sec. 14E. And see Traffic Ordinance (Amendment no. 19) Bill 1986, H.H. 1757, p. 34, sec. 34E. Even the import and export licences issued by the Ministry of Trade and Commerce have assumed a proprietary character, in view of the development of the market in which such licences are sold by their original recipients. The lively trade in such licences was reported in Ha'aretz on 9 December 1985. On the proprietary nature of personal licences issued by the State, see Reich, C.A., “The New Property”, (1964) 73 Yale L.J. 733.CrossRefGoogle Scholar