Cashing in on the transplant list: an argument against offering valuable compensation for the donation of organs.

• Author: Hurley, Jennifer L.
• Position: Law overview - Report

INTRODUCTION

In a landmark operation on December 23, 1954, surgeon Joseph Murray demonstrated that organ transplantation was possible. (2) Murray removed one of Ronald Herrick's two kidneys, and placed it in Richard Herrick, his identical twin brother dying of kidney failure. (3) Richard's immune system did not identify his brother's tissue as foreign because they were identical twins. (4) Initially, rejection of transplanted organs threatened organ transplantation. (5) In 1983 the anti-rejection drug, Cyclosporine was developed and the number of organ transplants increased significantly. (6) The significant increase in the number of transplants performed each year is directly attributed to the discovery of Cyclosporine. (7) The success of organ transplants has led to a greater demand for available organs. (8) The current demand for transplantable organs exceeds the available supply. (9) As of September 2000, the number of organs needed by patients on the United Network for Organ Sharing (UNOS) waiting list was over 76,000. (10) As of November 30, 2003, that number had increased to 83,545. (11)

Efforts have been targeted at expanding the supply of transplantable organs rather than to identify ways to decrease the demand. (12) Consequently, the stated objective of many regulations purporting to address organ transplantation is to increase the number of donors. (13) Currently, there are two viable sources of human organs for transplantation: living donors and post mortem donors. (14) Live donors may only donate those organs that they can survive without. (15) Thus, cadavers represent the primary source of transplantable organs. (16) Each year, approximately 4,500 organs are procured from cadavers and used in transplant procedures. (17) The continuing demand for transplantable organs greatly exceeds the present supply. (18) Experts have noted that they anticipate the number of available organs to remain constant, while the demand will continue to increase consistent with longer survival rates, thus creating a striking deficit between supply and demand. (19) Potentially, each donor can help as many as fifty recipients. (20)

The United States suffers from a precariously low reserve of organs that are available for transplant. Perhaps even more dangerous to the general welfare of the American public is the threat of offering economic compensation to encourage organ donation. First, this Note is aimed at acquainting the reader with the development of regulations designed to promote organ donations suitable for transplant in the United States. Secondly, this Note explores the support for the prohibition against offering economic compensation for organ donations. In light of proposed regulations purporting to experiment with offering economic compensation for donating organs, the potential for exploitation of the poor and indigent is discussed at length. The reasoning behind the original prohibition relating to offering economic compensation for organ donation is also explored. This note concludes that regulations should not be enacted to repeal current prohibitions against offering valuable consideration for organs and human tissue; but rather to continue to promote organ donation within the existing regulatory framework.

Organ Donation Laws

The historical basis for organ donation laws originates from the common law concept that one may not have a property interest in a cadaver. (21) State courts continue to uphold this basic assumption; yet, many recognize a "quasi-property right" in the relatives of the deceased, allowing them to gain control of the body following death for the purpose of proper disposition of the remains. (22) As organ transplant technology advanced and the demand for transplantable organs continued to grow, the common law proved to be inadequate to address the myriad of issues related to organ transplantation. (23)

Many states began to enact statutes that regulated the donor process by establishing guidelines for whom may become a donor. (24) Initially, many states enacted statutes and regulations pertaining to organ transplantation that were ambiguous and irreconcilable to one another. (25) In order to promote an analogous and extensive system of regulation, the National Conference of Commissioners on Uniform State Laws (NCCUSL) met in 1968 and drafted the Uniform Anatomical Gift Act (UAGA). (26) In 1984, UAGA was supplemented by the National Organ Transplant Act (NOTA). (27) As recently as 1998, these regulations were improved upon by the enactment of the Organ Procurement and Transplantation Network (OPTN). (28)

THE UNIFORM ANATOMICAL GIFT ACT

In enacting the UAGA, the NCCUSL was cognizant of the many competing interests influencing organ transplantation. (29) In promulgating the Act, the UAGA addressed these concerns by posing twelve questions. (30) As many scholars note and as is evidenced by the subsequent regulations designed to enhance the UAGA, this particular regulation should be understood to require regular modifications and amendments to address society's evolving needs and concerns. (31)

The UAGA successfully achieved its stated purpose of achieving uniformity among state laws pertaining to organ donation. (32) Four years after its inception, every state and the District of Columbia had adopted some version of the 1968 UAGA. (33)

The provisions of the UAGA provide that any eighteen-year-old has the legal right to decide whether to donate all or part of their bodies after their death. (34) The decision to donate their organs is shared by the donor and his or her immediate relatives or other person standing in a fiduciary capacity. (35) The donor may bequeath a post mortem donation through any written document to any one particular person or group of people. (36) At any time before the donor's death, he or she may amend or revoke the document purporting to express his or her desire to donate. (37)

When organs are donated under the UAGA, the regulation requires that the person retrieving the organs must avoid mutilating the body. (38) Furthermore, under the UAGA, any person who acts under any anatomical gift law is protected from civil or criminal liability. (39)

Despite the general success of the UAGA, the Act has been criticized on three major grounds. (40) The first criticism principally relates to the ineffectiveness of the organ donor card system. (41) The second criticism relates to the failure to sufficiently define the time of death of a patient for purposes of organ retrieval. (42) The third criticism of the UAGA is its inability to effectively increase the number of available organs. (43) These inadequacies contributed to the drafting of a new UAGA, which was adopted by the NCCUSL in 1987, and by the American Bar Association in 1988. (44)

In 1987, the UAGA adopted the system of "routine inquiry and required request". (45) This system requires that health care providers inquire of each patient whether they are a donor and to request written confirmation of their intent to donate. (46) Law enforcement officers, and other emergency and hospital personnel are required to make every reasonable effort to locate information specifying the individual patient's wishes. (47) Failure to conduct a reasonable search may result in administrative sanctions, as opposed to criminal or civil penalties. (48)

The 1987 UAGA prohibits the commercialization of organs by proscribing the purchase or sale of body parts for "valuable consideration, if the removal of the part is intended to occur after the death of the decedent." (49) Within the meaning of the Act, valuable consideration includes "reasonable payment for the removal, processing, disposal, preservation, quality control, storage, transportation, or implantation of a part." (50)

THE NATIONAL ORGAN TRANSPLANT ACT

The National Organ Transplant Act (NOTA) was effectuated to regulate organ transplantation on the federal level. (51) In 1984, Congress promulgated the Act to establish federal guidelines to the organ transplantation process. (52) The primary purpose behind NOTA was to ensure an equitable nationwide system for the distribution of organs. (53)

NOTA is founded on six basic objectives. (54) The first objective established a task force on organ procurement and transplantation that is comprised of twenty-five members who study a broad range of medical, legal, ethical, economic and social issues related to organ procurement and transplantation. (55) The second purpose compels the Secretary of Health and Human Services to convene a conference relating to the potential for establishing a national registry of voluntary bone marrow donors. (56) The third purpose created the division of Organ Transplantation. (57) The fourth goal empowers the Secretary to make grants for the planning, creation, initial operation and expansion of organ procurement organizations. (58) The fifth objective obligates the Secretary to contract for an Organ Procurement and Transplantation network and a Scientific Registry. (59) The sixth objective forbids the purchase and sale of human organs for valuable consideration. (60)

By prohibiting the sale of organs in interstate commerce, Congress effectively protected indigent and ostracized persons from becoming an exploited source of organ donations. (61) Further the task force on organ transplantation created under the Act conducts comprehensive reviews of the medical, legal, ethical and social issues presented by human organ procurement. (62) Unfortunately, the lack of any real enforcement and supervision of the system has failed to lead to a significant increase in donated organs. (63)

Arguably, NOTA's most profound contribution to the organ transplant process was the establishment of a system for matching those in need of organs with transplantable organs. (64) The Act created the Organ Procurement and Transplantation Network (OPTN) to supervise the allocation of organs throughout the country. (65)...