The shortage of organs for transplantation: exploring the alternatives.

• Author: Barnett, A.H.

For more than a decade, medical practitioners, students of medical policy, organ procurement personnel, and other health care professionals have lamented the shortage of cadaveric organs for transplantation. This concern about the supply of transpoantable organs has spawned a large number of professional articles pointing out the extent and consequences of the failure to current cadaveric organ procurement policies to produce an adequate supply of transplantable organs.(1) This growth of the academic and professional literature has been paralled by an explosion of artices in the public press documenting the shortage and describing the human suffering associated with it.(2)

Two common threads pervade this literature. First, most authors writing on this subject now tend to agree that the current system of cadaveric organ procurement is woefully inadequate and that some fundamental policy change is in order.(3) Second, the individual papers contained in this literature generally advocate some particular alternative system for harvesting organs and argue that the proposed system would, in all likelihood, be preferable to the present system on some specific grounds, usually the number of organs collected.

The problem with this piecemeal approach to policy development is that no one has yet considered all the policy options simultaneously(4). Consequently, in reading this literature, we are left with the uncomfortable feeling that something must be done, but we cannot be certain what that something is. Moreover, as virtually any student of public policy will readily agree, institutions and legal rules exhibit considerable inertia. Once in place, a given policy will tend to endure despite widespread recognition of serious flaws in its operation; and new policies that are clearly superior are generally slow to replace the existing institutional arrangements.(5) Since public policies are changed infrequently, it is imperative that, at this critical juncture when a change in our organ procurement system appears imminent, we explore all of the feasible policy options so that the best policy may be selected, not just a policy that is marginally better than the existing one. Rational choice requires that we simultaneously evaluate all potential organ procurement systems to ensure that the policy selected dominates all other policy altrenatives.(6)

In this article, we present and briefly evaluate all of the currently proposed organ procurement systems of which we are aware. Six such systems, drawn from our review of the extensive literature on this subject, are explored. To aid the analysis, a set of explicit evaluation criteria are proposed. These criteria are founded upon the impacts of the alternative policies on the principal stakeholders in the organ procurement process. Application of these criteria to the alternative policies yields some interesting conclusions about the appropriate direction for public policy in this area. Finally, a consideration of the ethical properties eexhibited by these various alternatives tends to buttress our overall findings.

Organ Procurement Policy Alternatives

The literature on organ procurement policy is both vast and diffuse.(7) It spans a wide range of disciplines and is housed in a variety of publications. Medical journals, health policy journals, law reviews, economics journals, public policy and political science journals, ethics journals, books, magazines, and newspapers all contain articles on this subject. Moreover, this extensive literature spans at least a two-decade period, emerging shortly after human organ transplantation first became feasible.(8)

Our review of this literature yields six alternative policies pertaining to cadaveric organ procurement. These policies are not necessarily mutually exclusive. It is possible (indeed, perhaps advisable) to combine two or more of them in forging an ideal public policy in this area. Nonetheless, each policy offers its own unique set of advantages and disadvantages. Consequently, each should first be evaluated independently on its own merits. Before we can usefully debate combination policies, we must first reach some level of understanding regarding the properties of the individual policies that are to be combined.

Before we discuss these policies, however, it is useful to consider the root causes of the organ shortage. At the most fundamental level, there are only two reasons that organ donation does not occur in specific instances. First, potential donors (or surviving family members) may refuse to donate. And second, the request for donation may fail to occur. The various policies discussed below attempt to improve organ collection rates by addressing one or the other (or both) of these underlying causes of a failure to donate. In evaluating available policy options, then, it is useful to keep these two potential causes of the current shortage in mind.

The alternative procurement systems with which we will deal here are (1) express donation (the current system); (2) presumed consent; (3) conscription (or an organ draft); (4) routine requests; (5) compensation; and (6) a market system. A brief description of each of these alternative systems follows.(9)

Express Donation. Our current organ procurement policy is codified in the National Organ Transplant Act of 1984(10). This act makes it a felony to buy or sell human organs for the purpose of transplantation. The act states: "It shall be unlawful for any person to knowingly acquire, receive or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce."(11) Similar statutes exist at the state level as well.(12)

This body of legislation does not create a new public policy toward organ procurement but, rather, serves to institutionalize the de facto policy that has been in place since organ transplantss first became feasible in the late 1950s.(13) Organ providers (who, due to practical considerations, are generally the families of critically injured accident victims) are not allowed to receive compensation in exchange for granting permission to remove the organs of their deceased relatives.(14) Their decision to allow such removal must, therefore, be based entirely upon their altruistic desire to supply organs to unknown recipients in need of transplant operations.(15) Moreover, for the most part, the incentive for physicians or other health care professionals to request donation is also motivated by altruism because no explicit payment is received for performing this function.(16) Thus, both the incentive to request (demand) and the incentive to donate (supply) depend upon the altruistic inclinations of the parties involved.

It is important to note that this system of altruistic demand and supply has consistently failed throughout its history to yield an adequate number of organs for transplantation. The number of organs donated annually under this policy has fallen short of the number of organs needed by potential transplant recipients for at least the past twenty years.(17) In recent years, this chronic condition of undersupply has grown rapidly worse, and waiting lists of potential organ recipients have lengthened commensurately.(18) Expected waiting times are now measured in years rather than months, and many patients will die because a suitable donor organ cannot be found in time.(19) Thus, the organ shortage, which has persisted for so long, is rapidly growing worse and is now approaching crisis proportions.

Presumed Consent. The second policy we wish to consider is presumed consent.(20) This policy differs from the current system in that, instead of actively requesting permission to remove the organs of the deceased, we presume that there is no objection to such removal. This presumption may be overcome by an affirmative statement to the contrary on the part of the potential donor or, perhaps, the surviving family members.(21) In effect, such a policy constitutes a weak reassignment of property rights in the organs of the deceased from the donor and/or donor's family to the pool of potential transplant recipients. This reassignment is characterized as weak because it allows the potential donor or his or her family to refuse organ donation simply by stating an objection.(22)

The fundamental idea behind presumed consent is that, in general, people are not strongly opposed to organ removal, and, given the opportunity to donate, most would choose to do so. The failure of the current system, then, is seen as being primarily attributable to a pronounced failure to request donations rather than an outright refusal to donate. Then, by removing (or, at least, attenuating) the need to make such a request, it is argued that more organs will be collected.

A number of alternative institutional arrangements exist under this policy for "opting out" of the organ donation process. Such arrangements vary across two dimensions. First, they differ in how difficult it is to make one's opposition to organ donation known. And second, they differ in whether to allow family members or the potential donors or both to object to organ removal. For example, individuals may be forced to register with some central registry their opposition to having their organs removed. Or, alternatively, physicians or others may be required to inform surviving family members of their right to object to organ removal. The stringency of the requirements of opting out (e.g., whether family members are allowed to object) will obviously influence the success of this policy in increasing organ donations. The more difficult it becomes to object to the donation and the fewer the number of parties allowed to object, the greater will be the collection rates under presumed consent.

To some extent, the potential effectiveness of any procurement policy will hinge on the willingness of the public to accept that policy. A recent survey by...