Organ conscription: how the dead can save the living.

• Author: Schwark, David

1. INTRODUCTION II. HISTORY OF ORGAN DONATION IN THE UNITED STATES A. The Uniform Anatomical Gift Act B. The National Organ Transplantation Act C. Consequences of the Acts 1. Organ Shortage 2. Black Market III. POSSIBLE SOLUTIONS A. Organ Market B. Routine Request C. Presumed Consent IV. PROPOSED SOLUTION A. Organ Conscription B. Concerns 1. The Fifth Amendment 2. Religion 3. Commodification 4. Loss of Autonomy V. CONCLUSION I. INTRODUCTION

   On his third tour of duty in Afghanistan, just two weeks before he was scheduled to return home, Army Ranger Corporal Ben Kopp was mortally wounded while fighting the Taliban. (1) His heroic actions saved the lives of at least six of his fellow Rangers. (2) However, his heroism did not end there. Because he was an organ donor, Corporal Kopp may save, improve, or prolong the lives of seventy-five more people. (3) One of those fortunate people, Judy Meikle, was desperately in need of a heart transplant. (4) Now, because of Corporal Kopp's heroism, Judy says that everything has improved since the transplant) "I don't think there can be a better tribute to Jill's [Ben's mother] generosity and Ben's--literally in my case-- Ben's big brave heart, than to have his heart keep beating inside me." (6) Corporal Kopp's mother explained, "To experience that joy along with my sorrow--that's got to be what a miracle feels like." (7)

   Although many Americans are not capable of the heroism required to risk their lives in the military, anyone can be a hero by donating his or her organs when he or she passes away. Unfortunately, very few Americans donate their organs: According to the U.S. Department of Health and Human Services, only 8,019 people who died in 2006 donated their organs. (9) That represents only 0.33%, or three in 1,000, of the people who died in 2006. (10) This low number has led to a current organ waiting list of 110,127 people. (11) On average, eighteen people die each day while waiting for an organ. (12) Often, after waiting on a list for an organ, people are removed from the waiting lists because their conditions have deteriorated to the point where organ transplantation would not save them. (13) In 2010, new entrants on the waitlist are likely to wait ten years for that organ. (14)

   This deficit is the result of two factors. First, the Uniform Anatomical Gift Act and the National Organ Transplant Act prohibit the sale and purchase of any organ or tissue for valuable consideration. (15) Not only does this discourage donation, but it also takes away a crucial property right from individuals, the right to exchange for valuable consideration. (16) Second, some estimate that 30% of Americans do not even know how to become organ donors. (17) These facts indicate that the current system of voluntary, altruistic donation has failed.

   Recently, Israel, another country struggling with organ deficits, decided that its voluntary, altruistic system was not working and changed it. (18) Now, the families of the deceased organ donors are permitted to receive up to $13,400 that can be used to memorialize the deceased. (19) In doing so, Israel has become the first country in the world to allow deceased organ donors to be rewarded. (20) This plan, however, may not go far enough towards alerting the problem of organ shortages. (21)

   A mandated organ donation system that compensates the families of the donors is the best way to ensure that people waiting for organs do not die needlessly, and also ensures that individuals' Fifth Amendment rights are not violated. Mandating donation would guarantee the availability of organs, which could prevent hundreds of deaths each year.

   Although mandatory donation may seem like an extreme government measure, without it, people will continue to die because of a lack of organs. Therefore, to ensure that individuals are not unduly burdened by the taking of their organs, there must be just compensation. For these reasons, a successful system of organ donation needs to be both mandatory and compensatory.

   This Note will examine the failures of uncompensated and voluntary donation and argue that the only way to meet our country's organ needs is to make donation mandatory. However, because the deceased's organs are property, the Fifth Amendment requires any taking for public use to be compensated. Thus, the only way to ensure that mandatory donation is constitutional is to provide compensation to donors.

   Part II of this Note examines the history of voluntary organ donation in the United States. This history describes the evolution of organ donation laws from the first transplant until the present day. Part II also details the consequences and shortcomings of the current system.

   Part III examines three other proposed solutions to the organ deficit. These possible solutions include routine requests, an organ market, and presumed consent. However, none of these solutions would increase the organ supply as effectively as a mandatory donation system.

   Part IV discusses how a mandatory donation program is the most effective way to ensure a sufficient organ supply. Part IV also argues that once an individual dies, the organs become the property of the deceased's heirs. Finally, Part IV discusses why a mandatory donation system would be unconstitutional unless donor's families are compensated for the taking of the deceased's organs.

2. HISTORY OF ORGAN DONATION IN THE UNITED STATES

   In 1954, (22) doctors successfully transplanted a kidney from one twin to the other in one of the most important medical procedures in the past century. (23) By 1967, experimental heart and liver transplantation were performed successfully. (24) These medical breakthroughs required individual states to begin passing legislation in an attempt to control the new developments. (25) Finally, nationwide regulations were deemed necessary, and in 1968, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") drafted the Uniform Anatomical Gift Act ("UAGA"), which provided for uniform regulation of anatomical gifts and defined persons who could gift their organs. (26) The goal of the UAGA was not only to regulate, but also to encourage donation. (27) In 1984, Congress passed the National Organ Transplant Act ("NOTA"), which made receiving "valuable consideration" for an organ a federal offense, punishable by up to $50,000 and five years in prison. (28)

   1. The Uniform Anatomical Gift Act

      The 1968 UAGA allowed individuals to donate organs, eyes, and tissue as girls to a known donee or to any donee that might need an organ to survive. (29) Though it did not explicitly state that organs could not be given for compensation, it was interpreted to restrict donation only to "gifts." (30) The UAGA made a variety of advances in the law of organ donation, standardizing the process in each state and enabled individuals to donate organs, eyes and tissue to any donee that needed an organ to survive. (31) The significant provisions expressly allow donations for medical, research, and educational purposes; (32) give priority to the wishes of the deceased; (33) and set out a prioritized list of the next of kin authorized to donate where the wishes of the deceased are unknown. (34)

      It was assumed no organs could be removed for transplant absent an explicit consent to donate. (35) Soon after, all fifty states had adopted some form of the Uniform Anatomical Gift Act. (36) Unfortunately, the 1968 UAGA did not achieve its goal of significantly increasing donation. (37) This fact, combined with the explosion of organ transplantation that occurred beginning in the 1980's, the recent passing of NOTA and the fear of a market for kidneys, (38) led the NCCUSL to amend the UAGA in 1987. (39)

      The 1987 amendment addressed the changes in organ donation caused by the increase in organ transplantation. (40) Some of the changes included prohibiting the sale of organs at death, (41) reducing formalities of executing the donative document, (42) prioritizing donor consent over family objection, (43) and allowing medical examiners to release any usable organ for transplantation. (44) Furthermore, the 1987 UAGA reinforced a trend in presumed consent statutes when it recommended presumed consent for the donation of any organ or tissue from cadavers under the custody of coroners or medical examiners. (45) Unlike the original act, which was swiftly adopted by all states, the amendment faced stiff resistance. (46) Eventually, twenty six-states adopted the 1987 revisions. (47) This resulted in non-uniformity of state laws, which was only increased by subsequent changes by individual states. (48)

      More recently, the NCCUSL decided to make amendments in order to resolve any inconsistencies and hopefully encourage more organ donation. (49) One of the revisions was the elimination of presumed consent. (50) The NCCUSL made clear that "[o]rgan donation is a purely voluntary decision that must be clearly conveyed before an individual's organs are available for transplant." (51) As of November 1, 2009, the 2006 UAGA has been enacted in thirty-six states and the District of Columbia, and has been introduced as currently pending bills in three other states. (52) Although more states have adopted the 2006 amendments, its goal of increasing organ donation has not been met. (53)

      The UAGA has also been used by plaintiffs to argue that a personal property right exists "in the body organs of a decedent ... giving relatives the right to consent to organ donation." (54) Although the "right to consent to organ donation" is not "synonymous with a personal property right," it does open the door to the assertion. (55) Furthermore, the UAGA allows a decedent to direct donation of a body part or organ to a specific named individual. (56) This gives added weight to the claim that the heirs inherit a personal property right in the organs of the deceased. (57)

   2. The National Organ Transplantation Act

      In 1984, Congress passed the National Organ...