Here is a bibliography that gives a very good rundown of articles and books available on the issues surrounding organ procurement.
Copyright (c) 2012 American Association of Law Libraries
Law Library Journal Spring, 2012
104 Law Libr. J. 285
GENERAL ARTICLE: Donating and Procuring Organs: An Annotated Bibliography *
NAME: Louis J. Sirico, Jr. **
BIO: ** Professor of Law, Villanova University School of Law, Villanova, Pennsylvania.
P1 The need for organs and the inadequate supply present a life-and-death tragedy for those who must have organ transplants in order to live. n1 Academic responses to the problem have taken two avenues. One avenue looks to practical solutions, ranging from compensating donors to establishing systems in which individuals are presumed to consent to donating their organs. The second avenue has focused on the jurisprudential principles underlying the various proposals.
[*286] P2 With respect to the latter, Guido Calabresi has identified four dominant approaches: (1) Doctrinalist: This approach looks to existing rules and doctrines, which hold that individuals own their own bodies and make their own choices concerning whether to donate their body parts; (2) “Law and” viewpoint: Schools such as “law and economics” and “law and philosophy” and groups within those schools analyze the issue from different perspectives and come to different resolutions; (3) Legal process: This analysis focuses on the suitability of different institutions to determine ownership of body parts, particularly in light of the range of values and rights that the issue raises; and (4) Law and status: In assessing rules for allocation of body parts, scholars focus on the impact on groups such as women, racial minorities, the poor, and those with minority sexual orientations. n2 My survey indicates that in the academic literature, a law and economics approach to the issue dominates the scholarship.
P3 This annotated bibliography offers a survey of law review articles dealing with proposed systems for increasing the availability of organs for transplantation as well as related topics. The articles were located by conducting a Westlaw search using the search terms “transplant” and “transplantation.” Because medicine has advanced so rapidly in this field, almost all included articles are from 2000 or later. From that time period, all articles relevant to the topic were included.
P4 The following laws and organizations comprise the current legal framework governing organ donation in the United States.
P5 Uniform Anatomical Gift Act (UAGA). Originally promulgated in 1968 by the National Conference of Commissioners on Uniform State Laws, this Act addresses the critical organ shortage by providing additional ways for making organ donations. n3 The Act is designed to encourage individuals to make anatomical gifts; to honor and respect the autonomy interest of individuals to make or not to make an anatomical gift of their body or parts; and to preserve the current altruistic anatomical gift system by requiring a positive affirmation of an intent to make a gift and prohibiting the sale and purchase of organs. In 1968, all states promptly enacted the law. The current 2006 revision has been adopted by forty-five states. n4
P6 National Organ Transplant Act (NOTA). Passed by Congress in 1984 to increase the supply of transplantable organs and ensure fairness in the allocation and distribution of organs, this Act established the Organ Procurement and Transplantation Network (OPTN) and the formation of Organ Procurement Organizations (OPOs). n5 The Act is notable for expressly forbidding the exchange of human organs for “valuable consideration.” n6
[*287] P7 United Network for Organ Sharing (UNOS). A private, nonprofit organ procurement organization that administers the OPTN. UNOS locates, tracks, procures, and allocates organs on a national level; maintains a national database of all patients awaiting organ transplants; and carries out the mandates of the Department of Health and Human Services (DHHS) and NOTA. n7
P8 Organ Procurement and Transplantation Network (OPTN). Created by NOTA and operated by UNOS under contract with DHHS, OPTN is a private, nonprofit organization that maintains the national waiting list for organs, establishes medical criteria for organ allocation, and sets standards of quality for the acquisition and transplantation of donated organs. n8
P9 Organ Procurement Organizations (OPOs). Private, nonprofit organizations responsible for the recovery, preservation, and transportation of donated organs, and the maintenance of a system to locate prospective recipients for all recovered organs. n9
P10 The following articles offer background information on alternative organ procurement systems and the current legal framework for organ procurement in the United States.
Barnett, A.H., and David L. Kaserman. “The Shortage of Organs for Transplantation: Exploring the Alternatives.” Issues in Law and Medicine 9 (1993): 117-37.
This article offers a brief overview and comparative evaluation of several alternative organ procurement systems. The authors also discuss the various ethical issues involved in each system.
Chen, Roderick T. “Organ Allocation and the States: Can the States Restrict Broader Organ Sharing?” Duke Law Journal 49 (1999): 261-96.
The Final Rule, announced by the DHHS, declares that organs may no longer be distributed according to geographic distinctions. n10 The author of this note believes that the Final Rule does not preempt state law. He further argues that state laws restricting the transfer of organs outside the state violate the dormant Commerce Clause. He then questions whether the application of federal preemption and the dormant Commerce Clause may fail to achieve a sound organ allocation policy, raises policy questions not considered by these constitutional doctrines, and concludes that Congress should provide clearer instructions for allocating organs.
Grandtham, Dulcinea A. “Transforming Transplantation: The Effect of the Health and Human Services Final Rule on the Organ Allocation System.” University of San Francisco Law Review 35 (2001): 751-82.
This comment examines organ allocation, focusing primarily on the debate between the states, which favor local distribution of organs, and the Final Rule, which favors a national, need-based system. The author calls for a quasi-national, need-based system of organ distribution, managed by UNOS, with limited oversight [*288] by the DHHS. She argues that such a system is necessary to overcome the deficiencies inherent in a local distribution system and to provide for more equitable organ allocation.
Gross, Jed Adam. “E Pluribus UNOS: The National Organ Transplant Act and Its Postoperative Complications.” Yale Journal of Health Policy, Law & Ethics 8 (2008): 145-252.
Employing a narrative account of documentary sources, this note offers the social and legislative history of NOTA. It focuses on the concerns, aspirations, and effects that are most prevalent in the source materials. The author argues that NOTA was the product of a specific technological, economic, political, and cultural context and analyzes the motives behind banning commerce in human organs and NOTA’s impact on organ procurement and allocation. According to the argument, NOTA failed to alleviate the organ shortage and thus created pressures for further innovations in organ allocation policy. The author contends that new scientific technologies will largely govern the future of organ allocation, and hopes that they will lessen the organ shortage.
McDaniel, Jeffrey A. “A Decent Proposal? Fundamental Fairness in an ‘Un-Commercial’ Organ System.” Journal of Law and Commerce 19 (2000): 327-48.
According to this comment, states have attempted to circumvent existing regulations under NOTA to exert control over the flow and number of viable organs present in the federally controlled “pool” of commerce. The author explores legal issues regarding whether the constitutional rights of potential organ recipients are adequately protected by the Act. He argues that the Act is inadequate, because it has indirectly created a national commerce in organs, resulting in citizens’ being denied access to a federally controlled product. The author proposes reworking federal law, including the Act, to avoid inequity in allocation, and to more strictly regulate UNOS.
Sirico, Louis J., Jr. “A Primer on Organ Donation.” Journal of Law and Health 17 (2003): 1-10.
This article provides background information on organ donation and encourages education of attorneys and potential donors on the laws regarding organ donation. It also discusses the difficulties in organ allocation faced by UNOS. The author argues that it is an attorney’s responsibility to ensure, through knowledgeable and compassionate discussions with the client and the family, that the client has the opportunity to choose to become a donor while alive, while near death, and after death.
Weimer, David L. “Public and Private Regulation of Organ Transplantation: Liver Allocation and the Final Rule.” Journal of Health Politics, Policy & Law 32 (2007): 9-49.
Here, the rule-making process for organ allocation policy undergoes examination. The author argues that private rule-making appears to be relatively effective in tapping into the technical expertise and tacit knowledge of stakeholders to allow for the adaptation of rules in the face of changing technology and information. According to the analysis, however, the system of representation employed gives less influence to some stakeholders than they would have in public regulatory arenas, thus giving them an incentive to seek public rule-making as a remedy for their persistent losses within the private framework.
[*289] Zee, Jacqueline. “The Revised Uniform Anatomical Gift Act: Bringing California Donation Law Up to Contemporary Medical, Legal, and Bioethical Practices.” McGeorge Law Review 39 (2008): 529-43.
At issue is how the states have applied the Uniform Anatomical Gift Act. According to the article, it is essential to coordinate the states’ organ transplant efforts. The author argues that the states, California in particular, must continue to revise their laws to protect these goals in the face of ongoing medical advancements.
Proposed Solutions to the Organ Shortage
Motivating Potential Donors
P11 The following terms describe several proposals to motivate potential donors in order to increase the supply of transplantable organs.
P12 Express Consent. The system of organ procurement currently employed in the United States. The organ donor must give written consent before death or expressly authorize another person to give consent when that person, usually a family member, is qualified to make the decision after the donor’s death. A contrasting system would presume consent absent a clear contrary statement from the potential donor. n11
P13 Nonfinancial Incentives. Also referred to generally as nonmonetary or noncompensatory incentives, nonfinancial incentives attempt to increase private motivation to donate organs through such incentives as paired organ exchanges n12 or mutual insurance pools. n13 Included in this category are priority incentives and reciprocal altruism. Priority incentives reward living organ donors with priority recipient status if the donor needs an organ in the future. Reciprocal altruism is best explained by the definition of “paired organ exchange” below.
P14 Mutual Insurance Pool. A type of priority incentive that creates a “pool” of willing, living organ donors and rewards members with priority recipient status in the future if donors agree to make their organs available to other members of the pool upon death. n14
P15 Paired Organ Exchange. A type of reciprocal altruism that creates an organ transplant facilitation system to match living donors with recipients. For example, Patient A and Patient B both need kidney transplants but both are incompatible with their respective relatives who are willing to donate. Patient A’s relative is compatible with Patient B, however, and Patient B’s relative is compatible with Patient A. Patient A’s relative then agrees to donate to Patient B, and Patient B’s relative agrees to donate to Patient A. n15
[*290] P16 The articles described below discuss ways to expand the scope of organ procurement through statutory modifications and nonfinancial incentives while maintaining the current system of express consent.
Derco, Lisa M. “America’s Organ Donation Crisis: How Current Legislation Must Be Shaped by Successes Abroad.” Journal of Contemporary Health Law & Policy 27 (2010): 154-82.
According to this note, legislation in other countries may offer guidance to the United States in improving its regulatory system. The author suggests three elements that legislation should contain: (1) the recipient should pay for out-of-pocket expenses; (2) organ procurement organizations should be expanded; and (3) incentives other than direct compensation should be made available in order to entice others to donate, for example, travel and accommodation expenses, tax credits for medical expenses, and employment insurance. The note also discusses alternative ways to increase the number of donors.
Gallagher, Sean T. “The Spanish Model’s Capacity to Save Lives by Increasing Organ Donation Rates.” Temple International and Comparative Law Journal 18 (2004): 403-29.
This comment discusses Spain’s response to its organ donation shortage and analyzes the possibility of applying that policy to other countries, including the United States. The author argues that Spain’s presumed consent laws do not generate as many donations as most believe. Spain’s success in procuring organs, the author believes, is attributable to its system of directly encouraging organ donations among potential donors. He suggests that if such elements of the Spanish model were adopted in the United States, the organ-donation rate would likely increase.
Healy, Kieran. “The Supply and Demand of Body Parts: Do Presumed-Consent Laws Raise Organ Procurement Rates?” DePaul Law Review 55 (2006): 1017-43.
This survey analyzes the laws relating to cadaveric organ procurement and how they affected procurement rates in seventeen countries between 1990 and 2002. The author concludes that no distinctive legal concept of consent is responsible for countries’ achieving high organ-procurement rates. According to Healy, no research demonstrates that presumed consent laws achieve their expected goal. He further argues that contemporary debates about altruism versus self-interest and disputes over presumed and informed consent mask the real solution, which lies in organizational reform, specifically in logistics and process management.
Hurley, Jennifer L. “Cashing In on the Transplant List: An Argument Against Offering Valuable Compensation for the Donation of Organs.” Journal of High Technology Law 4 (2004): 117-37.
At issue is the efficacy of repealing the ban on offering valuable consideration for organs and possible consequences of repeal. This note argues against repealing the ban and advocates promoting organ donation within the existing regulatory framework. Hurley argues that offering financial consideration for organs will lead to exploitation of underprivileged groups and will result in unnecessary ethical and moral problems. The note instead suggests providing nonfinancial incentives.
Kielhorn, Kristi L. “Giving Life After Death: The 2006 Revision of the Uniform Anatomical Gift Act.” Drake Law Review 56 (2008): 809-28.
This note examines the interplay of federal law and compliance issues resulting from Iowa’s adoption of the 2006 revision of the Uniform Anatomical Gift Act. [*291] The author argues for the necessity of having uniformity between state and federal laws. According to the author, the organ shortage will never lessen without a uniform law that complies with and supplements federal law while taking into account changes in technology and medical science.
Kolber, Adam J. “A Matter of Priority: Transplanting Organs Preferentially to Registered Donors.” Rutgers Law Review 55 (2003): 671-739.
Here, several proposals to increase organ donation undergo examination. The author adopts elements of these proposals to formulate a priority incentive system which, he argues, should encourage people to donate without financial or nonfinancial incentives and should reduce everyone’s waiting time for an organ. The author also argues that the current altruistic system leads to unnecessary, preventable pain and death.
Morley, Michael T. “Increasing the Supply of Organs for Transplantation Through Paired Organ Exchanges.” Yale Law and Policy Review 21 (2003): 221-62.
This note examines paired organ exchanges and argues for amending federal law to allow the already-existing registry of patients in need of organ transplants to be used to bring together the families and friends of different patients on the waiting list in order to save lives. The author contends that this system will increase the number of organs available, and that it is the best way to supplement the current procurement system.
Morris, Brian. “You’ve Got to Be Kidneying Me!” Brooklyn Law Review 74 (2009): 543-80.
At issue here are the deficiencies in and lack of remedies available to plaintiffs asserting valid claims to the organs of a cadaveric organ donor, the effect of these shortcomings on organ donation generally, and potential solutions. This note argues that a simple and effective step toward resolving the organ shortage would be to provide a means to enforce and thus protect and expand the minimal rights that are granted under the current regulatory framework for organ donation. Morris contends that these steps would have a positive effect on organ donation.
Morrissey, Rebeckah. “Giving Life: Increasing Organ Donation and Creating an Altruistic Organ Donation Registry.” McGeorge Law Review 42 (2011): 635-40.
A California statute established a donor registry to permit sharing of information about willing donors with procurement organizations and transplant centers. This registry (the Altruistic Living Donor Registrar) allows altruistic donations and thus increases the availability of organs. This article advocates requiring the motor vehicles department to ask anyone seeking a driver’s license to make an affirmative decision as to whether they would like to become organ donors.
Nadel, Mark S., and Carolina A. Nadel. “Using Reciprocity to Motivate Organ Donations.” Yale Journal of Health Policy, Law & Ethics 5 (2005): 293-325.
A reciprocity-based system rewards individuals who sign up to be organ donors with priority recipient status if they ever need an organ. The authors argue that this system would not violate NOTA, and that it is more ethical than a presumed consent system, because it does not violate individual autonomy.
Siegal, Gil, and Richard J. Bonnie. “Closing the Organ Gap: A Reciprocity-Based Social Contract Approach.” Journal of Law, Medicine & Ethics 34 (2006): 415-22.
In this article, the authors suggest promoting a reformulated social understanding of the moral premise of organ donation by emphasizing reciprocal altruism, establishing a national plan for organ transplantation insurance, and gradually [*292] shifting social expectations in the direction of assuming that everyone is a potential donor.
Stimson, Daniel T. “Private Solicitation of Organ Donors: A Threat to the Fairness of the U.S. Organ Transplant System, or a Solution to the National Organ Shortage?” Michigan State University Journal of Medicine & Law 10 (2006): 349-68.
Private solicitation of organ donations is this article’s proposal. The author would encourage donations from individuals who are neither related to, nor close friends with, the recipient. The author addresses critics’ concerns regarding commodification of the human body and exploitation of the poor and contends that permitting private solicitation will increase the supply of organs and remedy inequities that exist in organ allocation.
Undis, David J. “Changing Organ Allocation Will Increase Organ Supply.” DePaul Law Review 55 (2006): 889-96.
Written by the Executive Director of Lifesharers, a nonprofit organization that promotes a quid pro quo system of organ donation, this article proposes an organ allocation system of reciprocal altruism.
Noncompensatory Organ Procurement Systems
P17 Noncompensatory organ procurement includes four proposed systems: presumed consent, required response, routine request, and conscription. Under presumed consent (or opt-out), everyone is presumed to be an organ donor upon death, unless the person had registered a dissent to organ donation. Required response (or mandated choice) requires adults to register their consent or objection. n16 Routine request requires hospital personnel to ask potential donors if they object to transplantable organs being removed after death. n17 Under a system of conscription (or routine salvaging) “physicians do not have to ask for consent, and surviving family members are not allowed to object posthumously.” n18 The following articles explore these proposals.
Borry, Pascal, et al. “Donation After Uncontrolled Cardiac Death (uDCD): A Review of the Debate from a European Perspective.” Journal of Law, Medicine & Ethics 36 (2008): 752-58.
This article reviews some of the medical and ethical issues surrounding the procurement of uncontrolled donation after cardiac death (uDCD) organs, with emphasis on the European situation. The authors address the system of presumed consent in use in most European countries, as well as the Institute of Medicine’s position on uDCD organs. They argue that the Institute of Medicine, which accepted the use of preservation techniques, should have gone further in pursuing a presumed consent system.
Glaser, Sheri R. “Formula to Stop the Illegal Organ Trade: Presumed Consent Laws and Mandatory Reporting Requirement for Doctors.” Human Rights Brief 12, no. 2 (Winter 2005): 20-22.
Presumed consent finds an advocate in this student article. The author argues [*293] that this system is the best method of increasing the legal organ supply, and that it encourages nations to adopt mandatory reporting requirements for doctors who suspect the organs they receive for transplants are products of trafficking.
Liddy, Maryellen. “The ‘New Body Snatchers’: Analyzing the Effect of Presumed Consent Organ Donation Laws on Privacy, Autonomy, and Liberty.” Fordham Urban Law Journal 28 (2001): 815-53.
At issue is whether presumed consent organ donation laws are ethical or constitutional. The author analyzes anatomical gift statutes and the ways in which the current system in the United States already encompasses presumed consent; examines the Supreme Court’s conceptions of the rights of individual and family-based privacy, autonomy, and liberty; and analyzes presumed consent laws in light of the donors’ and their families’ privacy, autonomy, and liberty interests. She concludes that current presumed consent organ donation laws in the United States are both unethical and unconstitutional, (cross-referenced under Ethical, Moral, and Legal Concerns: Ethical Concerns)
Mehlman, Maxwell J. “Presumed Consent to Organ Donation: A Reevaluation.” Health Matrix 1 (1991): 31-66.
This article was the first to propose a system of organ procurement called “routine request,” which requires hospital personnel to ask potential donors if they have any objection to the removal of transplantable organs after death.
Morris, Emily Denham. “The Organ Trail: Express Versus Presumed Consent as Paths to Blaze in Solving a Critical Shortage.” Kentucky Law Journal 90 (2002): 1125-50.
The express consent system of organ procurement used in the United States is compared with the various presumed consent systems used in several other countries. The author argues that the presumed consent system is likely the most successful approach worldwide. She examines the viability of implementing a presumed consent system in the United States and the potential legal and ethical barriers to such a change. The author proposes that the United States place a greater emphasis on organ donation by moving toward a variation of the presumed consent approach.
Orentlicher, David. “Presumed Consent to Organ Donation: Its Rise and Fall in the United States.” Rutgers Law Review 61 (2009): 295-331.
This article reviews the history of presumed consent in the United States and concludes that presumed consent failed because it could not overcome the refusal of family members to give consent to donation. The author argues that this history with presumed consent indicates that other proposed reforms will be needed to address the organ shortage.
Richards, Abena. “Don’t Take Your Organs to Heaven . . . Heaven Knows We Need Them Here: Another Look at the Required Response System.” Northern Illinois University Law Review 26 (2006): 365-412.
In this comment, seven alternatives to the current organ donation system are analyzed. The author argues that the best solution to the current organ shortage is to implement a required response system because (1) it could eliminate the problems of the presumed and informed consent systems while still honoring the wishes of the deceased, (2) it would not raise the same constitutional or moral issues as a presumed consent system, and (3) it has the best chance of eliminating the organ shortage.
[*294] Spellman, David. “Encouragement Is Not Enough: The Benefits of Instituting a Mandated Choice Organ Procurement System.” Syracuse Law Review 56 (2006): 353-81.
After examining the organ shortage crisis, the evolution of anatomical gift law, and the current system of encouraged donation, this note evaluates five alternative organ procurement systems. The author concludes that a mandated choice system is the best alternative because it best protects both the legal rights and the social values of donors. He also argues, however, that this system must be implemented along with a nationwide education program in order to successfully increase the organ supply. Spellman further proposes implementing an effective organ allocation system that would allow for the most rational use of organs.
Wilcox, Samantha A. “Presumed Consent Organ Donation in Pennsylvania: One Small Step for Pennsylvania, One Giant Leap for Organ Donation.” Dickinson Law Review 107 (2003): 935-51.
This comment advocates implementing a presumed consent law. The author emphasizes the similarity between a presumed consent law and other Pennsylvania statutes and demonstrates that the importation of a presumed consent law from abroad is not unconstitutional. After examining the differences between strong and weak presumed consent statutes, she suggests that Pennsylvania should adopt a strong presumed consent statute.
Compensatory Organ Procurement Systems
P18 Market proposals for organ donation range from unregulated free markets (also referred to as open markets or inter vivos sales in which donors and patients can buy and sell organs freely) to various types of regulated markets to futures markets. A futures market permits individuals to sell the right to remove their organs upon death, creating a contractual relationship. n19 The following articles discuss the different types of market systems.
Aziz, Peter. “Establishing a Free Market in Human Organs: Economic Reasoning and the Perfectly Competitive Model.” University of La Verne Law Review 31 (2009): 67-108.
In this note, the author explores the economics of a free market in human organs and argues that such a system is the best solution to the organ shortage.
Cherry, Mark J. “Embracing the Commodification of Human Organs: Transplantation and the Freedom to Sell Body Parts.” Saint Louis University Journal of Health Law & Policy 2 (2009): 359-77.
The author defends the introduction of a market in human organs for transplantation to compensate donors and their families. He argues that human kidneys are commodities. Denying that fact, he maintains, encourages the continuation of dishonest public policy. Next, the author argues that individuals possess authority over their own bodies, and that even if financial incentives do not increase the organ supply, an insurmountable burden of proof must be overcome to justify forbidding individuals from selling their organs.
[*295] Epstein, Richard A. “The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation.” Journal of Legal Studies 37 (2008): 459-98.
In this article, Epstein develops an economic theory of altruism in order to better understand the organ shortage in terms of supply and demand and to predict future demand for organs. He argues that altruism operates like ordinary economic markets, but produces an equilibrium position in which more organs are transferred at lower cash prices. The author defends this economic model against behavioral and traditional objections. According to Epstein, this model properly predicts that the use of financial incentives will not disrupt the operation of organ markets and should be used to redress the worsening organ shortage. He further contends that repealing the total prohibition against organ transfers for valuable consideration will not constrict the organ supply or distort either social practices or donative behavior.
Goodwin, Michelle. “The Body Market: Race Politics and Private Ordering.” Arizona Law Review 49 (2007): 599-636.
This article discusses the flaws in the American altruistic system of organ procurement and advocates a market system. The author proposes a hybrid system that would preserve the altruistic system, but would decriminalize exchanging “valuable consideration” for organs. She also proposes adopting a paired kidney exchange and reallocating government spending.
Harris, Curtis E., and Stephen P. Alcorn. “To Solve a Deadly Shortage: Economic Incentives for Human Organ Donation.” Issues in Law and Medicine 16 (2001): 213-33.
To increase the supply of transplantable organs, this article proposes establishing a government-regulated, posthumous organ market, with economic incentives for the donors. The authors examine and reject several alternatives to a free market, including presumed consent, altruism, and China’s system of procuring organs from executed prisoners. They justify a free market approach by making an analogy to the market for egg donations.
Hughes, J. Andrew. “You Get What You Pay For? Rethinking U.S. Organ Procurement Policy in Light of Foreign Models.” Vanderbilt Journal of Transnational Law 42 (2009): 351-81.
This note analyzes other nations’ successes and failures with alternative organ procurement systems, particularly presumed consent models. The author recommends creating a trial program of regulated open markets for cadaveric organs in one or several states and suggests that the United States use a combination national donor registry with priority for recipients who are also registered as donors. According to the author, these measures would best address the organ shortage within the existing legal and ethical framework.
Kaserman, David. “Markets for Organs: Myths and Misconceptions.” Journal of Contemporary Health Law & Policy 18 (2002): 567-81.
According to this article, there are economic misconceptions about a proposed financial market for organs. The author explores the definition and measurement of the shortage, the likelihood of the emergence of a black market as a result of legalizing organ sales, and the distinction between the use of market forces to procure organs and the use of market forces to allocate organs. According to the analysis, the altruistic system of organ procurement is the reason for the shortage and thus it needs to be changed.
[*296] Love, Andrew J. “Replacing Our Current System of Organ Procurement with a Futures Market: Will Organ Supply Be Maximized?” Jurimetrics Journal 37 (1997): 167-86.
Although a futures market using indirect financial incentives will increase donor incentive and donor autonomy, it will not maximize the supply of organs, according to this note. The author argues, however, that such a futures market is currently the only practical proposal to increase supply. (cross-referenced under Financial Incentives)
Pattinson, Shaun D. “Organ Trading, Tourism, and Trafficking Within Europe.” Medicine and Law 27 (2008): 191-201.
Organ-trading tourism can be defined as the trading of organs involving more than one jurisdiction. According to the author, when European policy makers adopted blanket prohibitions on organ trading, they overreacted to legitimate public health concerns and the evils of organ trafficking. Pattinson advocates a trial of a regulated system of organ trading, which could eventually lead to a limited system of organ tourism.
Ryan, Christopher J. “The Anatomical Wealth of Nations: A Free Market Approach to Organ Procurement.” Michigan State University Journal of Medicine & Law 13 (2009): 427-47.
This student article advocates a quasi-free market organ procurement system consisting of a network of organ procurement agencies that would facilitate the sharing of information between buyers and sellers. After exploring other proposals, such as inmate donations, presumed consent, conscription, routine request, and tax incentives, the author concludes that although these systems would likely reduce the organ shortage, they also raise serious ethical considerations and hence are less preferred.
Sobota, Margaret R. “The Price of Life: $ 50,000 for an Egg, Why Not $ 1,500 for a Kidney? An Argument to Establish a Market for Organ Procurement Similar to the Current Market for Human Egg Procurement.” Washington University Law Quarterly 82 (2004): 1225-49.
This note advocates an organ procurement system in which recipients give financial compensation to donors. The author justifies this approach by comparing it to the current financial compensation system for egg donors.
Steinbuch, Robert. “Kidneys, Cash, and Kashrut: A Legal, Economic, and Religious Analysis of Selling Kidneys.” Houston Law Review 45 (2009): 1529-1607.
The author proposes a kidney procurement system that would pay donors for their kidneys. He analyzes religious thinking on paying kidney donors, with a focus on Judaism, and discusses other significant medical, ethical, and economic arguments both for and against this proposal. Steinbuch details a proposal for creating a system to regulate the sale of kidneys that enlists the existing nonprofit kidney distribution organization to serve as a clearinghouse for both the purchase and distribution of commercial kidneys, without modifying the current system of kidney distribution.
Watkins, Christy M. “A Deadly Dilemma: The Failure of Nations’ Organ Procurement Systems and Potential Reform Alternatives.” Chicago-Kent Journal of International and Comparative Law 5 (2005): 1, http://www.kentlaw.edu/jicl/articles/spring2005/s2005_christy_watkins.pdf (last accessed Feb. 6, 2012).
Six alternative procurement systems undergo analysis here. The author proposes [*297] that two–financial incentives and an organ market–are worthy of a trial. She considers the advantages and disadvantages of these two proposed systems, the effect of the black market on organ donation, the different types of organ sales, and the enhancement of donation through international cooperation.
Woan, Sunny. “Buy Me a Pound of Flesh: China’s Sale of Death Row Organs on the Black Market and What Americans Can Learn from It.” Santa Clara Law Review 47 (2007): 413-44.
This comment proposes the legalization of organ sales as well as the establishment of a privatized institution to supervise the trade. Woan examines China’s former system of harvesting organs from prisoners who are executed as a lesson about why individual rights must be protected. Although the system in the United States is purely altruistic, commercial transactions nevertheless take place. The author argues that the altruistic system has failed and contends that the only reliable way to reduce the growing shortage is through financial incentives.
P19 Financial incentives, also called indirect financial incentives, offer valuable consideration for organs, but are not market-based. n20 Financial incentives attempt to motivate private organ donation by offering organ donors tax credits, college scholarships, health-care coverage, and death benefits, such as estate tax deductions and funeral expense allowances. The following articles explore proposals for financial incentives as a means of increasing the supply of transplantable organs.
Boyd, S. Gregory. “Considering a Market in Human Organs.” North Carolina Journal of Law and Technology 4 (2003): 417-73.
This comment advocates an organ market employing indirect financial incentives alongside the current altruistic system as a solution to the organ shortage.
Calandrillo, Steve P. “Cash for Kidneys? Utilizing Incentives to End America’s Organ Shortage.” George Mason Law Review 13 (2004): 69-133.
Here the author describes the growing organ shortage in America, analyzes current donation and procurement law, and explores both monetary and nonmonetary incentives aimed at eliminating the shortage. He discusses notions of morality, distributive justice, imperfect information, and negative externalities, which, he notes, are routinely offered to justify the law prohibiting sales. Calandrillo proposes financial incentives, nonfinancial incentives, and aggressive educational programs to solve the organ shortage.
Carlson, Patrick D. “The 2004 Organ Donation Recovery and Improvement Act: How Congress Missed an Opportunity to Say ‘Yes’ to Financial Incentives for Organ Donation.” Journal of Contemporary Health Law & Policy 23 (2006): 136-67.
This comment examines the effect of NOTA on the possibility of implementing alternative systems. The author criticizes the Act for failing to authorize demonstration projects utilizing financial incentives in cadaveric organ donation, and for failing to clearly define the scope of the federal prohibition on the exchange of organs for valuable consideration. He argues that a death benefit system is an acceptable complement to altruism and offers several reasons why it is workable within the framework of federal law.
[*298] Chandis, Vanessa. “Addressing a Dire Situation: A Multi-Faceted Approach to the Kidney Shortage.” University of Pennsylvania Journal of International Economic Law 27 (2006): 205-72.
After examining the kidney shortage in the United States and the emergence of the black market, this comment’s author argues that the current altruistic and cadaveric donation systems are ineffective. She criticizes several proposals–an open market, a futures market, and presumed consent–and argues that they are not feasible due to ethical problems and an inability to supply enough kidneys. The author proposes a combination of presumed consent, an expanded education and awareness campaign, and weak economic incentives as an effective and ethically permissible system for increasing the kidney supply.
Clamon, Joseph B. “Tax Policy as a Lifeline: Encouraging Blood and Organ Donation Through Tax Credits.” Annals of Health Law 17 (2008): 67-99.
Here, tax credits are proposed to compensate living organ donors for the expenses related to donation. The author argues that this approach will lighten the financial burden of organ donation without using the ethically controversial mechanism of determining whether a person’s body is property or the market value of organs. He criticizes market systems for commodifying the human body and for the high potential of abuse. The author also criticizes noncompensatory systems for their inability to supply enough organs.
Flamholz, David I. “A Penny for Your Organs: Revising New York’s Policy on Offering Financial Incentives for Organ Donation.” Journal of Law and Policy 14 (2006): 329-75.
This note examines and proposes solutions to the organ shortage in New York. The author argues that the only solution is to increase the number of donors. He suggests moral incentives, direct economic payment, and indirect financial incentives, with emphasis on the latter.
Goodwin, Michele. “Empires of the Flesh: Tissue and Organ Taboos.” Alabama Law Review 60 (2009): 1219-48.
In this article, tissue and organ default rules, particularly presumed consent, face criticism. First, the author argues that presumed consent raises pragmatic concerns, including information problems and opt-out constraints. Next, she notes that presumed consent may be more susceptible to fraud, corruption, and abuse than other procurement systems. The author then discusses incentive approaches to organ procurement and evaluates ethical objections to monetary procurement strategies. She suggests that states experiment with procurement protocols by seeking exemptions to the National Organ Transplant Act.
Graham, Walter K., and Jason P. Livingston. “Perspectives on Financial Incentives to Induce Live Donor Kidney Donation: Scholarships in Exchange for the Gift of Life.” Saint Louis University Journal of Health Law & Policy 2 (2009): 347-58.
This article provides a general overview of the arguments for and against financial incentives for live organ donation with a particular focus on offering college scholarships as an incentive to potential donors. The article discusses pros and cons, but takes no position.
L’Hospital, Dean. “The Medium-of-Exchange Paradigm: A Fresh Look at Compensated Live-Organ Donation.” Human Rights and Globalization Law Review 2 (2009): 1-22.
This article examines the organ procurement systems of India, Iran, and the United States and proposes an alternative approach that combines elements of a [*299] paired-exchange system and an open market system. The author contends that his proposal would increase the supply of transplantable organs while preserving the altruistic aspects of the current system and the dignity of human life and health.
Linford, Jake. “The Kidney Donor Scholarship Act: How College Scholarships Can Provide Financial Incentives for Kidney Donation While Preserving Altruistic Meaning.” Saint Louis University Journal of Health Law & Policy 2 (2009): 265-326.
The author proposes motivating potential living kidney donors by offering them academic scholarships. According to the author, this proposal would reduce the kidney shortage and protect the best aspects of the current altruistic regime.
Little, J. Alex. “The ANGEL Act: A Proposal to Encourage Organ Donation After Death.” Georgetown Journal of Law and Public Policy 3 (2005): 685-709.
In this note the author proposes using tax credits as incentives, creating a national donor registry, enhancing regulation of hospitals and other health-care providers to ensure they are procuring organs, and facilitating decision-making about medical care when someone is very ill. He defends the proposal against ethical and political concerns, and contends that it will procure more organs than the current altruistic system.
Love, Andrew J. “Replacing Our Current System of Organ Procurement with a Futures Market: Will Organ Supply Be Maximized?” Jurimetrics Journal 37 (1997): 167-86. (see entry under Market Systems)
Markmann, Alicia M. “Organ Donation: Increasing Donations While Honoring Our Longstanding Values.” Temple Journal of Science, Technology & Environmental Law 24 (2005): 499-518.
This comment focuses on the need to increase the organ supply while honoring the altruistic nature of the current organ donor system. The author argues for the importance of respecting the ethics and morals underlying the ban on selling organs. She proposes that Congress narrowly define types of permissible consideration and thus provide guidance for states and federal organ donation organizations to develop pilot programs and legislation. The author also suggests that states should provide incentives that would not be a material element in the ultimate decision to donate organs, and, in this way, both increase organ donations and honor the altruistic nature of the donations.
Milot, Lisa. “The Case Against Tax Incentives for Organ Transfers.” Willamette Law Review 45 (2008): 67-90.
The arguments for creating tax incentives for organ donations are analyzed in light of the goals, principles, and practices of the U.S. tax system. The author argues that tax incentives are an inefficient and inappropriate means to encourage increased donations of organs. Using tax incentives to encourage organ donations, she contends, undermines the goals and principles of the tax system.
Molen, M. Lane. “Recognizing the Larger Sacrifice: Easing the Burdens Borne by Living Organ Donors Through Federal Tax Deductions.” BYU Journal of Public Law 21 (2007): 459-93.
This note advocates changing federal tax law to compensate living donors for expenses related to donation. The author argues that the current system of compensation for expenses is ineffective and that a federal tax credit would assist more living donors and provide fair compensation for expenses.
[*300] Parker, Frederick R., Jr., William J. Winslade, and Charles J. Paine. “Organ Procurement and Tax Policy.” Houston Journal of Health Law & Policy 2 (2002): 173-85.
The authors propose a system of tax incentives to meet the increasing demand for transplantable organs. They argue that providing tax incentives for organ donations will increase the number of transplantable organs and drive down Americans’ involvement in the illegal organ trade. The authors propose two measures: first, offer taxpayers a refundable income tax credit during life in exchange for their agreement to become organ donors when they die; and second, clarify the law to remove any potential tax disincentives to organ donors.
Robinson, Shelby E. “Organs for Sale? An Analysis of Proposed Systems for Compensating Organ Providers.” University of Colorado Law Review 70 (1999): 1019-50.
This comment analyzes three models for compensating organ providers–inter vivos payments, a futures market, and a death benefits system–as possible alternatives to America’s altruistic organ procurement system. The author rejects noncompensatory systems as viable alternatives and evaluates the ethical and practical criticisms of compensation systems. The author argues that, ethically and practically speaking, the death benefits system is the most viable of the three proposals.
Siegel, Lauren R. “Re-Engineering the Laws of Organ Transplantation.” Emory Law Journal 49 (2000): 917-55.
Here the proposal is for an incentive-based system. The comment examines several proposed systems, including presumed consent, mandated choice, insurance benefits, open and futures markets, and death benefits. The author proposes a two-part solution. For the present, she advocates weak economic incentives, increased education and awareness, and avoidance of an open market. For the future, she states that science will advance far enough to create organs out of stem cells, effectively rendering donated organs obsolete.
Smith, Jennifer M. “‘Dirty Pretty Things’ and the Law: Curing the Organ Shortage and Health Care Crises in America.” Chapman Law Review 12 (2008): 361-87.
This article proposes compensating organ donors with long-term health-care coverage. Smith argues that this proposal would reduce the organ shortage, reduce the number of Americans without health care, and prevent further exploitation of the poor.
Statz, Sarah Elizabeth. “Finding the Winning Combination: How Blending Organ Procurement Systems Used Internationally Can Reduce the Organ Shortage.” Vanderbilt Journal of Transnational Law 39 (2006): 1677-1709.
This note proposes combining different elements of international organ procurement systems to forge a new system that greatly reduces illegal and ethically unsound methods of donation. Statz suggests a hybrid framework of increased donations, weak economic incentives, and paired organ exchanges.
[*301] Ethical, Moral, and Legal Concerns
Barshes, Neal R., et al. “Justice, Administrative Law, and the Transplant Clinician: The Ethical and Legislative Basis of a National Policy on Donor Liver Allocation.” Journal of Contemporary Health Law & Policy 23 (2007): 200-30.
The authors present an ethical framework for allocating livers and the development of a liver allocation policy. They argue that the current allocation system, which generally gives livers to the sickest people, should be replaced with a more utilitarian system–distributing them to those people who would benefit the most from transplants in terms of life years gained.
Beard, T. Randolph, and David L. Kaserman. “On the Ethics of Paying Organ Donors: An Economics Perspective.” DePaul Law Review 55 (2006): 827-50.
Some of the more common ethical arguments against donor payments receive criticism here. The authors present an approach using the traditional cost-benefit methodology of economics. They argue that ethical issues cannot be resolved on the basis of a cost-benefit analysis alone, but that important public policy questions cannot be answered or ethically evaluated without such information. Because most of the ethical objections to donor payments are illegitimate, the authors argue, the cost-benefit calculations assume heightened importance.
Childress, James F. “Ethical Criteria for Procuring and Distributing Organs for Transplantation.” Journal of Health Politics, Policy & Law 14 (1989): 87-113.
Various proposals for organ procurement and distribution undergo an ethical analysis and assessment in light of moral principles already embedded in U.S. institutions, laws, policies, and practices.
Dooley, Laura G., and Robert S. Gaston. “Stumbling Toward Equity: The Role of Government in Kidney Transplantation.” University of Illinois Law Review, 1998, 703-25.
According to the authors, the kidney donation and transplantation system is fraught with racial inequity, and a market in kidneys will exacerbate this inequity. To prevent the exclusion of the poor, the government must play a critical role in the allocation of kidneys. The authors examine xenotransplantation and a financial market for kidneys, but argue that these options either raise intractable ethical concerns or are unavailable in the short term. They propose a modification of the kidney waiting lists to recognize the racial inequity of kidney distribution by making African Americans a priority.
Evans, John H. “Commodifying Life? A Pilot Study of Opinions Regarding Financial Incentives for Organ Donation.” Journal of Health Politics, Policy & Law 28 (2003): 1003-32.
Evans presents the findings of a pilot study conducted to determine whether people think that families should end life support of a family member in order to harvest organs if various incentive policies are in place. In reviewing the ethical and policy implications of the study’s findings, he concludes that the amount of money received from organ donation is a consideration in making the decision whether to end life support.
[*302] Fauci, Cara A. “Racism and Health Care in America: Legal Responses to Racial Disparities in the Allocation of Kidneys.” Boston College Third World Law Journal 21 (2001): 35-67.
This note addresses the issue of racial disparity in the allocation of transplantable kidneys and offers possible legal solutions. Fauci analyzes various responses to disparities in kidney allocation on the basis of race, including public education, organ donation publicity campaigns, presumed consent to donation laws, the creation of criteria for placement on a UNOS kidney allocation waiting list, alteration of kidney allocation guidelines, and litigation under both the Equal Protection Clause and Title VI of the Civil Rights Act of 1964.
Fry-Revere, Sigrid, Thomas Reher, and Matthew Ray. “Death: A New Legal Perspective.” Journal of Contemporary Health Law & Policy 27 (2010): 1-75.
The precise definition of death continues to be an unsettled issue. According to the authors, the law should not declare a patient dead until all integrated circulatory and brain functions have ceased. However, they argue, individuals or their surrogates should be able to decide when to end care or donate organs based on their own concept of death.
Jacob, Marie-Andree. “On Silencing and Slicing: Presumed Consent to Post-Mortem Organ Donation in Diversified Societies.” Tulsa Journal of Comparative & International Law 11 (2003): 239-79.
In examining the issue of presumed consent as an organ procurement strategy, the author considers whether it is an ethically sound policy for diverse societies. After considering jurisdictional issues, ethical concerns, and societal factors, Jacob argues that a presumed consent system is not an effective method of harvesting organs in a diverse and heterogeneous society. Instead, she advocates an informed consent system.
Lee, Emily C. “Trading Kidneys for Prison Time: When Two Contradictory Legal Traditions Intersect, Which One Has the Right-of-Way?” University of San Francisco Law Review 43 (2009): 507-57.
Under analysis here is a bill proposed by state senators in South Carolina that would have given state prisoners the opportunity to reduce their prison sentence by 180 days by donating a kidney. Lee sees this proposal as initiating a conflict between the criminal justice “market” (plea bargaining) and the human body “market” (prostitution and organ donation), which, the author argues, are two long-standing American legal traditions. She analyzes these “markets” and their respective rules, theorizes on the assumptions underlying each, and applies the rules and assumptions to the bill to determine which long-standing tradition, as a legal matter, should govern. Although Lee is critical of the proposal, she concludes that the rule of the criminal justice “market” would prevail and support the bill’s underlying concept.
Liddy, Maryellen. “The ‘New Body Snatchers’: Analyzing the Effect of Presumed Consent Organ Donation Laws on Privacy, Autonomy, and Liberty.” Fordham Urban Law Journal 28 (2001): 815-53. (see entry under Noncompensatory Organ Procurement Systems)
Mahoney, Julia D. “Altruism, Markets, and Organ Procurement.” Law and Contemporary Problems 72, no. 3 (Summer 2009): 17-35.
Here, implementing financial incentives is the proposal for increasing the organ supply. The author evaluates several arguments against compensating organ [*303] donors and contends that such arguments are either highly contestable or demonstrably wrong. She further addresses questions of institutional design, examines the most popular compensation proposals, and offers preliminary assessments of their promise and feasibility.
McKinney, E. Bernadette, William J. Winslade, and T. Howard Stone. “Offender Organ Transplants: Law, Ethics, Economics, and Health Policy.” Houston Journal of Health Law & Policy 9 (2008): 39-69.
Conflicting concerns beset the issue of providing Texas criminal offenders with access to organ transplants. This article examines the perspectives of attorneys, ethicists, and health policy scholars. It considers the legal and ethical obligations under correctional health policies, economic factors, and associated ethical considerations. The authors conclude that organ transplants should be made available to medically qualified offenders at public expense.
O’Keeffe, Carrie Parsons. “When an Anatomical ‘Gift’ Isn’t a Gift: Presumed Consent Laws as an Affront to Religious Liberty.” Texas Forum on Civil Liberties and Civil Rights 7 (2002): 287-316.
This note analyzes the scope and implications of nonconsensual organ-harvesting statutes in Texas. The author examines the constitutionality of these statutes in light of the Texas Religious Freedom Restoration Act, the Texas Constitution, and the U.S. Constitution. It further explores international norms concerning human rights and organ harvesting. The author concludes that presumed consent is both unconstitutional and immoral.
Price, David. “End-of-Life Treatment of Potential Organ Donors: Paradigm Shifts in Intensive and Emergency Care.” Medical Law Review 19 (2011): 86-116.
To increase the number of available organs, the author calls for a cultural and conceptual shift that would expect medical personnel to discuss organ donation with a patient earlier on the patient’s trajectory toward death. Whether such an earlier discussion would increase donations, Price admits, is not certain.
Raza, Omar. “Understanding Islam: A Comparative Analysis of the Ethical and Legal Standards of Organ Donation.” Windsor Review of Legal & Social Issues 1 (2010): 133-63.
This article surveys fundamental principles of Islamic law and jurisprudence regarding organ donation, contrasts them with Western tradition, and delineates the prospects of practical applications of Islamic law in Ontario, Canada. The author highlights the status of Ontario’s Trillium Gift of Life Network and contrasts benchmarks with the Iranian compensated organ donation model. He argues that the disparity between the supply and demand of both models provides strong arguments for revisiting Ontario’s “altruism only” approach to organ donation.
Satel, Sally L., and Benjamin E. Hippen. “When Altruism Is Not Enough: The Worsening Organ Shortage and What It Means for the Elderly.” Elder Law Journal 15 (2007): 153-204.
Renal failure is a major problem among the elderly. Yet, according to the authors, the current system of kidney allocation discriminates against this group of potential recipients. The authors discuss the dynamics of allocating the scarce supply of transplantable organs and the various schemes for doing so, examine renal failure as a major problem affecting the elderly, explain how donated kidneys can ensure better clinical outcomes for the affected elderly compared with dialysis, consider [*304] the implications of organ donation for Medicare, and evaluate current efforts to restructure the allocation system of donated kidneys. They conclude that allowing some form of compensation for organ donors would increase the supply of transferable kidneys.
Smith, Jennifer M. “Kidney Transplantation: Only for the Well-to-Do?” Campbell Law Review 31 (2009): 333-59.
According to this article, the kidney shortage has a disproportionally negative effect on low-income individuals. The author argues that poor people will not meet the financial criteria necessary to qualify to receive a kidney transplant because they cannot afford the high cost of maintaining a transplant over a lifetime. Along with several other proposals, the author supports a bill introduced in Congress that would require the government to pay eighty percent of the lifetime cost for the post-transplant medications.
Wilson, Chad J. “Working the System: Should Patients in Need of an Organ Transplant Be Able to Join Multiple Waitlists?” Indiana Health Law Review 8 (2011): 229-58.
This note states that transplant wait times are decreased when patients are on multiple lists; these patients are most likely to be financially wealthy. Despite the perceived inequality, the author advocates continuing to permit the practice of multiple listings because it decreases the likelihood that an organ will be wasted and offers more suitable matches between organ and recipient. In addition, the patient’s ability to choose to be on multiple waiting lists recognizes patient autonomy and translates into a better chance of survival.
Alternative Sources of Transplantable Organs: “Strangers” and Children
Hartman, Rhonda Gay. “Gault’s Legacy: Dignity, Due Process, and Adolescents’ Liberty Interests in Living Donation.” Notre Dame Journal of Law, Ethics & Public Policy 22 (2008): 67-106.
This article applies the due process framework prescribed in In re Gault n21 to potential adolescent recipients. In Gault, the Supreme Court held that the Constitution requires the government to treat minors fairly when they are faced with deprivation of their liberty interests and to facilitate their participation in decision-making processes. The author seeks to ascertain the precise impact of Gault’s due process requirement on an adolescent’s living donation and addresses the state’s role in structuring a decision-making process compatible with the unifying principles derived from Gault. She argues that states should develop a statutory scheme in which the adolescent’s donative desires are heard, and the adolescent is given an opportunity to explore those desires along with all information pertinent to donative decision-making.
Herbert, Nicole. “Creating a Life to Save a Life: An Issue Inadequately Addressed by the Current Legal Framework Under Which Minors Are Permitted to Donate Tissue and Organs.” Southern California Interdisciplinary Law Journal 17 (2008): 337-79.
This note addresses the ethically questionable practice of conceiving a child for the purpose of donating his or her organs to a sibling. The current legal framework permits child donors to donate tissue and organs. According to the author, this framework does not adequately protect children and requires modification.
[*305] Kahn, Jeffrey. “Commentary: Making the Most of Strangers’ Altruism.” Journal of Law, Medicine & Ethics 30 (2002): 446-47.
At issue here are ethical considerations in altruistic organ donation by strangers. Although the author would permit anyone to be a donor, any donation should not exceed a certain threshold of risk. The author advocates a national allocation system to ensure that stranger donations will go to the highest priority patient, rather than according to the priority of the donation center.
Ross, Lainie Friedman. “Solid Organ Donation Between Strangers.” Journal of Law, Medicine & Ethics 30 (2002): 440-43.
This article discusses the ethical and policy considerations of altruistic organ donation by donors who have no relationship to the recipients. The author supports organ donations by strangers, but advocates strict regulation to avoid unethical and arbitrary results.
Schenberg, Beth A. “Harvesting Organs from Minors and Incompetent Adults to Supply the Nation’s Organ Drought: A Critical Review of the Substituted Judgment Doctrine and the Best Interest Standard.” Indiana Health Law Review 4 (2007): 319-59.
Courts use two common law approaches to determine whether a minor or incompetent adult may donate: (1) the substituted judgment standard, a subjective determination of what the individual would do if he or she was competent; and (2) the best interest standard, an objective determination of whether the donor will benefit from the procedure. This note argues that the common law standards are inadequate and recommends several criteria the courts should use instead.
When to Harvest
P20 The Uniform Determination of Death Act (UDDA) was drafted in 1980 by the Uniform Law Commissioners and adopted by most states. Its goal is “to provide a comprehensive and medically sound basis for determining death in all situations.” It requires the “irreversible” cessation of the functions of either the entire brain or the heart and lungs before a person can be considered dead. n22 For purposes of organ procurement, determining the moment when a person is considered dead has critical implications for the supply of transplantable organs.
P21 Donation After Cardiac Death (DCD) is an organ-harvesting practice that uses a donor’s organs when the donor is not yet brain dead, but heart and lung functions have ceased. Controlled DCD involves procuring organs when circulatory arrest follows the removal of mechanical ventilation from a critically ill patient after the family refuses further treatment. n23 Uncontrolled DCD (uDCD) involves procuring organs from a patient who dies following unsuccessful resuscitative efforts. n24 DCD is also referred to as donation after circulatory determination of death. n25
[*306] P22 Donation After Brain Death (DBD) is an organ-harvesting practice that uses a donor’s organs when the donor is declared brain dead, even when artificial support enables the donor’s cardiopulmonary function to continue to perfuse and maintain the donor’s organs. n26
Childress, James F. “Organ Donation After Circulatory Determination of Death: Lessons and Unresolved Controversies.” Journal of Law, Medicine & Ethics 36 (2008): 766-71.
Under consideration here are the lessons and debates about the kinds of consent necessary and sufficient for temporary organ preservation in the context of DCD and organ donation itself; on conflicts of obligation, loyalty, and interest in donation after cardiac death and ways to address those conflicts; and on benefit, cost, and risk assessments of uDCD programs, including measures to achieve a more favorable balance of benefits, costs, and risks.
Doig, Christopher James, and David A. Zygun. “(Uncontrolled) Donation After Cardiac Determination of Death: A Note of Caution.” Journal of Law, Medicine & Ethics 36 (2008): 760-65.
This brief article argues that organ recovery from uDCD is unlikely to result in a significant number of organs and that this small gain must be balanced against significant risk of unduly influencing the decision to resuscitate and jeopardizing public trust in the propriety of organ donation and transplantation.
Fidler, Suzanne A. “Implementing Donation After Cardiac Death Protocols.” Journal of Health & Life Sciences Law 2 (2008): 123-49.
This article discusses the legal and ethical issues relating to the transplantation process of DCD, including determining a donor’s death based on the irreversible cessation of cardiopulmonary function, procedures conducted on the donor for the benefit of the recipient, informed consent and the surrogate decision maker, choosing appropriate DCD candidates, and conflicts of interest. The author summarizes general recommendations for donor candidate selection, consent and approval, withdrawal of life-sustaining measures, criteria for determining death, organ recovery, and financial considerations.
Harrington, Maxine M. “The Thin Flat Line: Redefining Who Is Legally Dead in Organ Donation After Cardiac Death.” Issues in Law and Medicine 25 (2009): 95-143.
Under examination here is the practice of donation after cardiac death. This article examines whether these donors are legally dead under the Uniform Determination of Death Act. It further explores whether it is appropriate to apply donation after cardiac death as it is currently practiced, addresses the concern that donation after cardiac death is causing the death of donors, and suggests several approaches to resolve the controversy over the determination of death in these situations. The author argues that this debate should move beyond scholarly journals and into the public arena.
Light, Jimmy A. “The Washington, D.C. Experience with Uncontrolled Donation After Circulatory Determination of Death: Promises and Pitfalls.” Journal of Law, Medicine & Ethics 36 (2008): 735-39.
The author argues that although challenges are numerous, uDCD is a promising source of organs. He would require a system that promptly initiates in situ preservation pending location of families and authorization for organ donation.
[*307] McGregor, Joan, Joseph L. Verheijde, and Mohamed Y. Rady. “Do Donations After Cardiac Death Protocols Violate Criminal Homicide Statutes?” Medicine and Law 27 (2008): 241-57.
After analyzing homicide laws, the UDDA, and the protocols for DCD, the authors conclude that DCD likely violates criminal homicide rules.
Rutherford-McClure, Jennifer. “To Donate or Not to Donate Your Organs: Texas Can Decide for You When You Cannot Decide for Yourself.” Texas Wesleyan Law Review 6 (2000): 241-64.
A provision of the Transportation Code of Texas permits a medical examiner to authorize removal of a decedent’s major organs if the next of kin cannot be contacted within four hours of death. The author of this comment argues that this statute interferes with the quasi-property interest in a corpse, violates the Uniform Anatomical Gift Act, and violates the American notion of personal autonomy. She further argues that Americans should enjoy the freedom to donate organs, much like the right to contract, marry, and have children. She recommends several solutions to comply with federal law and to avoid violating the personal choices of the individual and next of kin.
Legal Rights of Next of Kin
Bonnie, Richard J., Stephanie Wright, and Kelly K. Dineen. “Legal Authority to Preserve Organs in Cases of Uncontrolled Cardiac Death: Preserving Family Choice.” Journal of Law, Medicine & Ethics 36 (2008): 741-49.
A potential donor may die unexpectedly without any recorded expression of his or her wishes about being a cadaveric organ donor. The authors argue that it is ethically permissible to preserve a deceased person’s organs for a reasonable time while seeking a responsible family member to make a decision. The authors find the authority for this step already implicit in most, if not all, governing state statutes. They note that the Uniform Anatomical Gift Act implicitly authorizes this waiting period. Even if courts were to conclude that statutes do not confer the necessary authority, they argue, preserving organs without explicit statutory authority nevertheless would not violate the rights of family members and would not pose any meaningful risk of liability.
Janssen, Anke, and Sjef Gevers. “Explicit or Presumed Consent and Organ Donation Post-Mortem: Does It Matter?” Medicine and Law 24 (2005): 575-83.
This article surveys the different explicit and presumed consent organ procurement systems used for postmortem donation in ten Western European countries, with a focus on the legal role of relatives within the consent process and the role of relatives in practice. The authors find that the difference between the systems of explicit consent and presumed consent is less important than it seems to be at first sight.
Peterson, Kathryn E. “My Father’s Eyes and My Mother’s Heart: The Due Process Rights of the Next of Kin in Organ Donation.” Valparaiso University Law Review 40 (2005): 169-221.
This note analyzes the various common law and statutory rights held by next of kin, considers whether these rights create any sort of liberty or property interest protected by the Due Process Clause, and if so, determines what sort of process the state must provide before it can deprive family members of any right they may have in making, or refusing to make, an anatomical gift of a body organ of a decedent. [*308] Peterson proposes amending the Uniform Anatomical Gift Act to unilaterally establish that the relatives of a decedent have a legitimate claim of entitlement to control the disposition of the deceased’s body organs and to establish a proper procedural framework to ensure that family members are not unjustly deprived of their established constitutional rights.
Wolfman, Samuel. “Live Donor Transplantation–The Incompetent Donor: Comparative Law.” Medicine and Law 27 (2008): 859-98.
Informed consent is a difficult issue in emergency cases involving incompetent donors, that is, donors whose consent cannot be considered legal consent because it is not given with full understanding and out of free will. The author compares three different approaches–Israeli civil law, the U.S. legal system, and the traditional Jewish law system–and argues that none offers a clear solution.
Legal Rights of the Cadaveric Organ Donor
Baginski, Wojciech. “Hastening Death: Dying, Dignity, and the Organ Shortage Gap.” American Journal of Law & Medicine 35 (2009): 562-84.
According to this article, the donor does not receive satisfactory protection under the common law and existing statutory regulations that focus on increasing the number of organs available for transplantation. The author argues that respecting a donor’s dignity at the end of life should be a goal superior to that of increasing the number of organs available for transplantation. He proposes several solutions such as enacting a statute to protect donors’ rights and imposing liability for breach of those rights, creating a broad cause of action for breach of the physician’s duties toward a patient, and introducing “enterprise liability” into the health-care system.
Cronin, Antonia J., and James F. Douglas. “Directed and Conditional Deceased Donor Organ Donations: Laws and Misconceptions.” Medical Law Review 18 (2010): 275-301.
Directed or conditional deceased organ donation permits donors to dictate who will receive their organs. At issue is whether these directives are permissible in the United Kingdom. The authors state that overruling such an individual request conflicts with the “appropriate consent” principle that the U.K.’s Human Tissue Act of 2004 seeks to advance. Appropriate consent means allowing an individual to consent or refuse to be an organ donor. The authors also argue that to ignore the restrictions imposed by the donor may subject the transplant team to criminal liability.
Nwabueze, Remigius N. “Donated Organs, Property Rights and the Remedial Quagmire.” Medical Law Review 16 (2008): 201-24.
This article explores the remedial challenge faced in issues regarding organs during the period between harvesting and transplantation. The author suggests that a property-based approach to organ litigation would be useful.
Powhida, Alexander. “Forced Organ Donation: The Presumed Consent to Organ Donation Laws of the Various States and the United States Constitution.” Alabama Law Journal of Science and Technology 9 (1999): 349-74.
Does the Fourteenth Amendment impose substantive limits on a state legislature’s power to authorize presumed consent to organ donation? This comment argues that presumed consent statutes would violate the interest of personal autonomy protected by the Due Process Clause.
[*309] Human Trafficking
Khan, Fazal, and Brian Lea. “Paging King Solomon: Toward Allowing Organ Donation from Anencephalic Infants.” Indiana Health Law Review 6 (2009): 17-45.
An anencephalic infant is one born missing a major portion of the brain. This article argues that an organ donation from such an infant can be both beneficial and morally justifiable. For the sake of infants in need of organ transplants, the authors advocate a properly tailored transplant policy permitting parents of anencephalic infants to donate their children’s organs for use in transplants.
Morelli, Maria N. “Organ Trafficking: Legislative Proposals to Protect Minors.” American University Journal of International Law and Policy 10 (1995): 917-54.
In this comment, the author provides background on the international organ trade and criticizes existing sources of regulation that attempt to protect children from being involuntary donors in organ trafficking. Morelli endorses several proposals that, she argues, should increase the supply of organs and diminish the need to turn to underground channels for organ procurement. These proposals, along with stricter restrictions in international treaties and domestic laws, she contends, will better protect children.
Panjabi, Ranee Khooshie Lal. “The Sum of a Human’s Parts: Global Organ Trafficking in the Twenty-First Century.” Pace Environmental Law Review 28 (2010): 1-144.
The sale of body organs is often motivated by the poverty of potential donors. The author explains that the poor are put into situations in which they are coerced, duped, or even killed for the harvesting of their organs.
Teagarden, Erica. “Human Trafficking: Legal Issues in Presumed Consent Laws.” North Carolina Journal of International Law and Commercial Regulation 30 (2005): 685-732.
This comment examines the prevalence of organ trafficking in impoverished countries and recommends several solutions. The author compares the organ donation systems of third-world countries with the United States and argues that the U.S. system is too restrictive. She argues that closing the gap between supply and demand for organs in the United States is one of the most effective ways to end organ trafficking. According to her analysis, a presumed consent system coupled with a modicum of due process offers the best way forward.
The Future of Organ Transplantation: Xenotransplantation?
P23 Xenotransplantation consists of transplanting into a patient live tissues or organs retrieved from animals. n27 Other biotechnologies are currently under consideration, for example, artificial organs, but these topics are very expansive and outside the scope and purpose of this bibliography. The following articles explore the legal issues regarding xenotransplantation research and clinical trials.
[*310] Florencio, Patrik S., and Erik D. Ramanathan. “Are Xenotransplantation Safeguards Legally Viable?” Berkeley Technology Law Journal 16 (2001): 937-77.
According to the authors, legislation implementing a post-xenotransplantation surveillance system should withstand constitutional scrutiny because (1) it would not be discriminatory, and (2) although it would violate fundamental rights of recipients, these violations would be justified under existing constitutional doctrine.
Florencio, Patrik S., and Erik D. Ramanathan. “Legal Enforcement of Xenotransplantation Public Health Safeguards.” Journal of Law, Medicine & Ethics 32 (2004): 117-21.
Enforcing compliance with the public safeguards necessary in xenotransplantation would require lifelong collection of tissue and body fluid specimens from xenotransplant recipients. The authors find legal authority for such surveillance in informed consent, the law of contracts, and public health legislation. They also briefly comment on the constitutionality of xenotransplant legislation and conclude that it should be feasible to craft legislation that is both effective and constitutional.
Fovargue, Sara. “‘Oh Pick Me, Pick Me’–Selecting Participants for Xenotransplant Clinical Trials.” Medical Law Review 15 (2007): 176-219.
At issue are the regulatory issues regarding xenotransplantation and the ethical and legal guidance on selecting people for experimental treatments and research. The author explores the propriety of selecting those who are competent, but desperately ill, for the first genetically engineered whole-organ xenotransplants. She seeks a balance between the opportunity for potential subjects to extend or improve their quality of life and the need to limit participation to prevent exploitation for the purpose of providing information to future generations.
Fovargue, Sara, and Suzanne Ost. “When Should Precaution Prevail? Interests in (Public) Health, the Risk of Harm and Xenotransplantation.” Medical Law Review 18 (2010): 302-29.
Acknowledging the risks of xenotransplantation while advocating its use requires a challenging analysis. Here, the authors conclude that the potential risks of xenotransplantation are too great to consider the procedure a viable option for the organ shortage problem in light of other solutions–for example, stem cells and a reformation of the transplant recovery system.
Holland, Jocelyn A. “The ‘Catch-22’ of Xenotransplantation: Compelling Compliance with Long-Term Surveillance.” Houston Journal of Health Law & Policy 7 (2006): 151-82.
This comment analyzes the legal issues regarding informed consent and xenotransplantation. The author argues that the risks associated with xenotransplantation require recipients to consent to long-term surveillance.
Spillman, Monique A., and Robert M. Sade. “Clinical Trials of Xenotransplantation: Waiver of the Right to Withdraw from a Clinical Trial Should Be Required.” Journal of Law, Medicine & Ethics 35 (2007): 265-71.
Federal regulation imposes a life-long surveillance requirement on xenotransplant recipients and, according to the authors, effectively abrogates the right to withdraw from a clinical trial after the transplantation has taken place. They argue that recipients should receive full disclosure of this regulation.
For related research and practice materials, see the following legal topics:
Estate, Gift & Trust LawAnatomical GiftsEstate, Gift & Trust LawPersonal GiftsLifetime GiftsHealthcare LawTreatmentBlood & Organ DonationsUniform Anatomical Gift Act
n1 See SCIENTIFIC REGISTRY OF TRANSPLANT RECIPIENTS, http://www.srtr.org (last visited Feb. 29, 2012) (containing reports on size of waiting lists, number of transplants, and number of deaths of patients on waiting lists).
n2 Guido Calabresi, An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of Body Parts, 55 STAN. L. REV. 2113 (2003).
n3 UNIF. ANATOMICAL GIFT ACT (rev. 2006), 8A U.L.A. 63 (Supp. 2011).
n4 Id. at 42-43.
n5 42 U.S.C. §§ 273-274g (2006).
n6 Id. § 274e(a).
n7 See About Us, UNITED NETWORK FOR ORGAN SHARING, http://www.unos.org/about/index.php (last visited Feb. 3, 2012).
n8 See About OPTN, OPTN: ORGAN PROCUREMENT AND TRANSPLANTATION NETWORK, http://optn.transplant.hrsa.gov/optn/ (last visited Feb. 3, 2012).
n9 See About AOPO, AOPO: ASS’N OF ORGAN PROCUREMENT ORGS., http://www.aopo.org/about-aopo (last visited Feb. 3, 2012).
n10 42 C.F.R. pt. 121 (2011).
n11 Kieran Healy, The Supply and Demand of Body Parts: Do Presumed-Consent Laws Raise Organ Procurement Rates?, 55 DEPAUL L. REV. 1017, 1020-21 (2006).
n12 Michael T. Morley, Note, Increasing the Supply of Organs for Transplantation Through Paired Organ Exchanges, 21 YALE L. & POL’Y REV. 221, 223-24 (2003). See also infra P 15 (offering a definition).
n13 See Gil Siegal & Richard J. Bonnie, Closing the Organ Gap: A Reciprocity-Based Social Contract Approach, 34 J.L. MED. & ETHICS 415, 417-18 (2006). See also infra P 14 (offering a definition).
n15 Morley, supra note 12, at 224.
n16 Abena Richards, Comment, Don’t Take Your Organs to Heaven . . . Heaven Knows We Need Them Here: Another Look at the Required Response System, 26 N. ILL. U. L. REV. 365, 378 (2006).
n17 Id. at 379.
n19 See Steve P. Calandrillo, Cash for Kidneys? Utilizing Incentives to End America’s Organ Shortage, 13 GEO. MASON L. REV. 69, 108-09 (2004).
n20 Id. at 107-08.
n21 387 U.S. 1 (1967).
n22 UNIFORM DETERMINATION OF DEATH ACT (1980), 12 U.L.A. 777 (2008).
n23 See Suzanne A. Fidler, Implementing Donation After Cardiac Death Protocols, J. HEALTH & LIFE SCI. L., Oct. 2008, at 123, 125, 128.
n24 See Christopher James Doig & David A. Zygun, (Uncontrolled) Donation After Cardiac Determination of Death: A Note of Caution, 36 J.L. MED. & ETHICS 760, 761 (2008).
n25 See Fidler, supra note 23, at 131-32.
n26 See id. at 125, 131.
n27 Sara Fovargue & Suzanne Ost, When Should Precaution Prevail? Interests in (Public) Health, the Risk of Harm and Xenotransplantation, 18 MED. L. REV. 302, 305-06 (2010) (providing the definition employed in the United Kingdom and much of Europe).