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Competing Interests: The author declares no funding or conflicts of interest.

In 2008 Israel enacted a new law on organ transplantation which granted priority on the waiting list to holders of donor-cards who become patients in need of organ transplantation. This paper offers ethical criticism of the priority system arguing that the "reward" is by necessary also a "punishment". Moreover, because donor-cards have no binding power in Israeli law, the reward/punishment is actually directed at declarations, not actions, and, consequently, violates the freedom of conscience and expression. The reward system is also incompatible with fundamental values of medical ethics and with the very logic of talion, because the law punishes non-signers but not patients who are responsible for the loss of their organs. Lastly, I argue, that because priority on a waiting list is a positional good, it communicates a false message as if donation is an excellence of the few, and it legitimizes a rational choice to prefer wholesomeness of the cadaver to the risk of low rank in the priority list.

We describe the parallel changes that have taken place in recent years in two countries, Israel and The Philippines, the former once an "exporter" of transplant tourists and the latter once an "importer" of transplant tourists. These changes were in response to progressive legislation in both countries under the influence of the Declaration of Istanbul. The annual number of Israeli patients who underwent kidney transplantation abroad decreased from a peak of 155 in 2006 to an all-time low of 35 in 2011 while in the Philippines the annual number of foreign transplant recipients fell from 531 in 2007 to two in 2011. The experience of these two countries provides a "natural experiment" on the potential impact of legal measures to prevent transplant tourism.

The revised Organ Transplant Law in Japan that took effect in July 2010 allows organ procurement from brain-dead individuals, including children, only with family consent. The amended law also allows individuals to prioritize family members to receive their donated organs after death. This policy differs from the prioritization policy in Israel, which provides incentives to individuals who agree to help each other in society and rectifies the problem of free riders, individuals who are willing to accept an organ but refuse to donate. Despite these differences, however, the Japanese and Israeli policies have revealed new ethical dilemmas, including the fear of compromising fairness in organ allocation.

Although the legalization of the concept of brain death in Israel may be similar to that in other developed countries, much doubt surrounds its wisdom and practical effect. The new Israeli act raises theoretical and practical concerns, which were not fully anticipated by lawmakers. The article describes the new law and elaborates on key issues deriving from the regulation of brain death. Its main argument is that the new legislation of brain-respiratory death suffers from some major problems that need to be addressed so that it will have some meaningful, let alone less detrimental bearing on the acceptance of brain death in Israel and the practice of its determination.

The Anatomy and Pathology Law, as amended in 1980, granted some considerations of the deceased's family's feelings regarding transplants of cadavers. However, the law granted a special standing to the deceased's wishes. When the deceased left a written consent or objection, his/her wish overrides the family's feelings or wishes. Had he/she left a written consent, the transplant is permitted despite any objection raised by the family, and when he left a written objection, his objection overrides any consent signed by a family member, except in emergency situations as prescribed in the law. When the deceased has not left any written document regarding his wishes, the law distinguishes between transplants to save life or healing only. In most cases the law refers to "saving life" in a very broad meaning, including use of kidneys, corneas, any other parts of the corpse in order to prevent a defect in sight or hearing, and skin tissues. In these cases, a notice of intention for removal of a cadaver for transplant, should be given to a member of the family, and the removal is permitted as long as there is no written objection signed by a parent, a spouse or a child, submitted during a limited period. There is no need for a written consent of the family and any demand for such consent is against the law. To abstain from removing an organ for transplant in case of "saving life" when permitted by law, may create a breach of duty to save life and professional negligence.