Proxy consent to organ donation by incompetents.

• Author: Morley, Michael T.

INTRODUCTION

A seven-year-old girl lies in a hospital bed, surrounded by intimidating machines, receiving her twice-weekly dialysis treatment. (1) Diagnosed with hemolytic-uremic syndrome and malignant hypertension, she has already had both of her kidneys removed. (2) Her name is Kathleen Hart, and without a kidney transplant from her twin sister, she will likely die. (3)

Since the first kidney transplant involving a living human donor occurred in 1954, (4) noncadaveric organ donations have been an important source of life-saving organs for patients in desperate need, leading to over 40,000 transplants. (5) A major impediment to such transplants, however, is the lack of available organs from both living and deceased donors. (6) Further complicating the matter is the fact that not all organs are compatible with each potential recipient; there is a serious risk that a recipient's body will reject a transplanted organ. (7) In addition, because people's organs grow as they get older, a donor must be close to the recipient in age, or at least stature, for the transplanted organ to "fit" properly. (8) For these reasons, members of a patient's immediate family, especially siblings, are among the best potential organ donors. (9) The ideal donor would, of course, be an identical twin. (10)

Neither children, (11) nor adults suffering from severe mental impairment, (12) are permitted to make decisions regarding medical treatment for themselves; both groups generally depend on their legal guardians (most often, parent-guardians) to tender "proxy consent" for such treatment. (13) The term "incompetents" is used throughout this Note to refer to those who, for reasons of age or mental defect, are legally incapable of tendering consent.

In recent years, the right of parent-guardians to consent to organ donation on behalf of their incompetent wards has been severely criticized by many academics. (14) Several commentators, while not arguing for a prohibition on the practice, nonetheless regard it with great skepticism, (15) or fail to reach any definite conclusions. (16) Some articles ignore the constitutional dimension of the issue and focus instead on potential legislative responses. (17)

Moreover, proxy consent has been found invalid by many courts. (18) Those cases in which courts have found that parent-guardians do have the right to tender proxy consent are surprisingly terse and relatively cursory in their analyses. (19)

In this Note, I argue that the constitutional rights of children and mentally impaired persons (collectively, incompetents) are violated when the law fails to provide a mechanism through which proxy consent (20) may be tendered for donation of a nonvital organ (21) to an immediate family member. I further demonstrate that, in general, the Constitution accords parent-guardians, (22) and not judges, ultimate authority for determining whether such organ donation is appropriate. (23)

Part I of this Note examines the available statistics regarding organ donation and explores the safety of such procedures. In particular, it demonstrates that organ donation poses only small risks to a donor's physical and psychological well-being. Part II studies proxy consent from the perspective of children and mentally impaired individuals, arguing that an absolute prohibition on proxy consent for organ donation--whether legislatively or judicially imposed--would violate their right to bodily integrity and run afoul of the Equal Protection Clause.

With the principle established that some mechanism for proxy consent must exist, Part III studies the matter from the perspective of parent-guardians. My ultimate conclusion is that the decision of parent-guardians to tender or withhold proxy consent may not constitutionally be second-guessed by judges. This conclusion can be reached either through a conservative approach or through a more radical departure from common assumptions in this area.

First, I examine the rights of parent-guardians, accepting arguendo the traditional assumption that they are bound to act in the best interests of their wards. Because the decision as to whether organ donation is in the best interests of an incompetent is based primarily on value judgments and subjective, nonquantifiable factors, I assert that it falls squarely within the constitutionally protected range of discretion of parent-guardians, and may not be reviewed by courts.

Ultimately, however, I reject the traditional assumption, arguing instead that parents need not make this decision based solely on the prospective donor's best interests. Parent-guardians have the right to take into account other factors, such as the demands of morality and the best interests of the family as a whole. As a practical matter, it is irrelevant which of these arguments one accepts, because the family's decision in either case is unreviewable. Nonetheless, I argue that this latter framework is more consistent with recognizing the dignity and humanity of both children and the mentally impaired.

Part IV addresses a potential ethical dilemma arising from the right of parent-guardians to tender proxy consent for organ donation--the phenomenon of parents conceiving children specifically to be organ donors. This Part examines how the frequency and success rate of such endeavors are greatly enhanced by emerging reproductive and genetic technologies. It concludes, however, that these consequences are not legitimate grounds for opposing this Note's theses regarding proxy consent. Part V concludes.

This Note does not pretend to offer a complete solution to this nation's chronic organ shortage. Instead, this Note attempts to mitigate, however slightly, the harsh effects of this shortage by arguing for recognition of the right of children and mentally impaired individuals to donate their organs to immediate family members, and the right of parent-guardians to consent to such donation. Awareness of such rights will help ensure that human life is not unnecessarily extinguished by ill-informed legislative policies or judicial determinations, and that the dignity of those unable to act on their own behalf is respected. (24)

1. ORGAN DONATION: STATISTICS AND RISKS

   Every year, the number of organ transplants from living donors continues to increase. (25) Between 1988 and 2000, close to 140,000 kidney transplants were conducted; over 41,000 of these procedures involved kidneys from living donors. (26) During the same period, over 46,000 liver transplants occurred, with over 1000 involving donations from live donors. (27) Since 1987, between 60,000 and 70,000 bone marrow transplants were made possible by living donation. (28)

   Siblings, including minor siblings, constitute a sizable pool of living organ donors. Since 1996, 109 children have received kidney transplants, and four children have received liver transplants, from either a full or half-sibling. (29)

   The supply of organs available for transplantation is still dwarfed by demand, however. As of January 15, 2002, there were 50,803 patients waiting to receive kidneys and 18,744 in need of livers; 1849 of these patients were under the age of eighteen. (30) Nearly half of the people on the waiting list were of ethnicities other than Caucasian. (31) At any given time, over 3000 patients are looking for a compatible bone marrow donor in the National Bone Marrow Program Registry. (32)

   As the above statistics indicate, transplant procedures have become fairly commonplace and pose little risk to donors. Kidney donation, for example, is for the most part safe and painless. (33) "Under local anesthesia a long thin tube, called a catheter, is introduced into the artery in the groin, and a special dye is injected that permits the radiologist to examine the kidney[s'] circulation." (34) The physician then X-rays both kidneys; the dye allows her to determine which has fewer blood vessels attached to it. Finally, while the patient is under general anesthesia,

   [a]n incision is made over the tip of the twelfth or last rib, and a portion of the bone is removed. The donor kidney is carefully exposed, its blood vessels and ureter are identified, and when all is ready, it is separated from the blood supply and removed from the body.... [T]he donor's wound will be sewn together and he or she will be allowed to wake up. (35) Liver transplants are similarly safe because only a portion of the donor's liver is removed. (36) Due to the liver's regenerative capacity, both the transplanted portion as well as the donor's own liver are able to grow into whole, fully functioning organs. (37) "More than 100 living related liver transplantations have been performed world wide, and donor mortality or major morbidity has not been reported." (38)

   Bone-marrow transplants are the most effective form of treatment for leukemia and over thirty other types of blood diseases. (39) They, too, are relatively uncomplicated.

   Donating bone marrow involves little risk and only a small amount of discomfort. The harvesting of bone marrow generally takes place ... with the donor under general anesthesia. A long needle is inserted into the hip bone, which has a large supply of bone marrow. Several bone punctures on each hip will be required to remove the necessary amount of marrow. (40) This procedure poses no serious health risks, even for child donors. According to one study based on twenty years of data involving bone marrow donations by children less than four years old, such "surgery can be safely performed with minimal risk[;] ... neither age nor size should be a contraindication to the donation of bone marrow." (41)

   Organ donation is also virtually free of adverse long-term consequences for donors. Kidney donors do not have a heightened risk for renal failure later in life. (42) Because donated liver and bone marrow naturally regenerate, their donation entails essentially no long-term ramifications. (43)

   Notwithstanding the high level of physical safety of...