Proposed Legislation for Safely Regulating the Increasing Number of Living Organ and Tissue Donations by Minors

• Author: Bryan Shartle
• Position: J.D. candidate
• Pages: 433-471

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J.D. candidate. I would like to thank Professors Katherine S. Spaht and Lucy S. McGough for their helpful comments on earlier drafts of this article. I would also like to thank my family and friends for their support, particularly my wonderfully patient wife who has aided me with her insightfulness and encouragement.

Introduction

The increasing shortage of transplantable organs and tissues has been widely documented.¹ According to data released by the United Network for Organ Sharing (UNOS),² more than six thousand patients died in the United States during 1999 while awaiting an organ transplant.³ These statistics reveal a disappointing nineteen percent increase over the total deaths in 1998.⁴ Data on tissue donation are not as readily available. However, the shortage of transplantable tissues has been blamed for countless deaths.⁵

Due to the shortage of transplantable organs and tissues, the medical profession has begun to view alternative donor sources with increasing approval. Cadaveric donors are no longer the sole source of transplantable organs and tissues; in fact, the number of living organ donors now rivals the number of cadaveric organ donors.⁶ There were 5,848 cadaveric organ donors in the United States in 1999, Page 434 only forty-one more than in 1998; however, there were 4,662 living organ donors in the United States during 1999, nearly a seven percent increase over the 4,361 in 1998.⁷

Undoubtedly, the increase in living donors has saved lives. But, the medical and legal professions have voiced concern because currently there is no federal legislation and limited state legislation regulating who may consent to living organ or tissue donation or how consent for such donations might be obtained.⁸ This concern becomes even more alarming when one considers that the number of living organs and tissues donated annually by minors has drastically increased since 1995⁹-herein lies the impetus for this article.¹⁰

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This article explores the current legal framework within which living organ and tissue donations by minors occur and concludes that legislation such as that proposed in this article is desperately needed to protect the physiological and psychological health of minors. The current judicial standards are inadequate because they merely regulate the disposition of the donation under review and, thus, fail to provide any substantive protection for the welfare of all donating minors.¹¹On the other hand, the legislation proposed in this article ensures that the best interests of all donating minors are protected by requiring judicial approval of all living organ and tissue donations by minors which are not regulated by other law. Moreover, the proposed legislation-which encompasses two standards, namely, a standard for living organ and nonregenerative tissue donations by minors and a standard for living regenerative tissue donations by minors-lists several factors which may be considered by an adjudicating court in determining the propriety of a particular donation. While the two proposed legislative standards are nearly identical, they differ in one important respect. The proposed legislative standard for living regenerative tissue donations by minors accords greater deference to the donating minor's parents. The deference to parental authority is implemented in the form of a rebuttable presumption (operative under certain circumstances) that the living regenerative tissue donation is in the best interests of the donating minor.

Section I of this article preludes the following sections by briefly discussing the medical implications of living organ and tissue donations by minors. This section discusses what human organs and tissues are transplantable and how these organs and tissues are medically distinguishable. Particular attention is placed on distinguishing between regenerative and nonregenerative transplantable body parts and describing the medical risks associated with living organ and tissue donations. Section II provides an overview of the constitutional implications of living organ and tissue donations by minors and concludes that legislation such as that proposed by this article is constitutional. Section III discusses how living organ and tissue donations by minors are regulated nationally, with emphasis placed on the problems associated with this regulating approach. Section IV gives an overview of cases involving organ and tissue donations by minors. Section V introduces and thoroughly discusses the proposed legislative standards for regulating living organ and tissue donations by minors. Finally, this article concludes by reiterating the need for legislation to regulate living organ and tissue donations by minors and explaining how the legislation proposed in this article can protect minors as the number of per year living organ and tissue donations continues to rise.

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I Medical Implications of Living Organ And Tissue Donations By Minors

The human body has approximately thirty transplantable organs and tissues combined.¹² These organs and tissues include: a variety of glands (e.g., pancreas, pituitary, thyroid, parathyroid, and adrenal), parts of the ear, blood vessels, tendons, cartilage, muscles (including the heart), testicles, ovaries, fallopian tubes, nerves, skin, fat, bone marrow, blood, livers, lungs, kidneys, and corneas.¹³ Transplantable organs and tissues are either regenerative or nonregenerative.¹⁴ Transplantable regenerative body parts are replenished by the body and usually include only tissues such as blood, ovum, skin, bone marrow, and sperm.¹⁵ Transplantable nonregenerative body parts are not replenished by the body and include organs such as the heart and kidneys and tissues such as the lobe of a lung.¹⁶

When a transplantable organ or tissue is donated by a living minor, the donation is usually made to a sibling. Moreover, the organ or tissue donated is usually either a kidney, a nonregenerative organ, blood or bone marrow (both of which are regenerative tissues).¹⁷ Data released by UNOS, which covers the period of 1989 to 1998, reveal that only two living organ donations by a minor have been of an organ other than a kidney.¹⁸ However, living adult donors have donated other Page 437 organs, including a lobe of a lung, a portion of the liver, and a portion of the pancreas.¹⁹ Data on the donation of tissue are not as prevalent as data on organ donation because there is no central registry for donative tissue;²⁰ however, medical and legal literature only discuss the donation of blood and bone marrow by minors, which gives rise to a fair assumption that blood and bone marrow are the primary, if not the exclusive, tissues currently donated by living minors.

The medical risks associated with living organ and tissue donations vary according to the body part donated. However, all living donations entail some pain and discomfort for the donor and include such risks as wound infections, urinary tract infections, phlebitis, and isolated cases of pulmonary embolism or wound bleeding.²¹ There is also the potential risk that a living donor may suffer negative psychological feelings of resentment if the donee-recipient's body rejects the donated body part.²² Aside from these universal risks, living organ and tissue donations are quite safe.²³ The mortality rate for living kidney donation is extremely low-around 0.03-0.06 percent.²⁴ The risks associated with blood Page 438 donation are nonfatal and include such complications as hyperventilation, increased heart rate, infection, hematoma, seizures, and convulsions.²⁵ The risks associated with bone marrow donation are principally caused by the anesthesia administered to the donor-a risk inherent in nearly all living organ and tissue donations.²⁶ The mortality rate for bone marrow donation is approximately 0.01 percent, consistent with the mortality rate for anesthesia administrations.²⁷ Aside from the risks associated with anesthesia, bone marrow donation entails a slight risk of bone fracture, bone infection, artery rupture, skin scarring, and the inherent risks associated with blood transfusion, should it be necessary.²⁸

II Constitutional Implications of Living Organ And Tissue Donations By Minors

A The Rights of Minors

Minors are protected by the United States Constitution and possess constitutional rights.²⁹ One of the most important rights held by minors is the right of privacy, Page 439 emanating from the Fifth...