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Legal & Ethical Safeguards: Protection of Society's Most Vulnerable Participants in a Commercialized Organ Transplantation System

Published online by Cambridge University Press:  24 February 2021

Gloria J. Banks
Gloria J. Banks*
Affiliation:
Widener University School of Law. 1984, Howard University; 1987, Howard University School of Law
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Extract

Legal and ethical questions regarding existing organ transplant procurement policies and practices are numerous and unsettling. They arise because transplantable organs are scarce. The scarcity of such organs has been the hue and cry of several medical and legal scholars. For example, the scarcity creates competition among those who wait, necessitating equitable organ allocation procedures and guidelines. Medical obstacles surround the determination of when, how, and on whom such procedures can be performed successfully. Other obstacles range from finding a suitable donor for proper “matching” with the intended donee, to the time constraints involved in preserving excised organs until transplantation, to the donee's ability to fight off rejection of transplanted organs. There is also the obstacle of locating available organs. As medical technology continues to advance, the number of possible organ sources increases. Currently, these sources have included live human donors, cadavers, mechanical devices, animals, fetuses, anencephalic infants, and “brain-dead” donors.

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Articles
Information
American Journal of Law & Medicine , Volume 21 , Issue 1 , 1995 , pp. 45 - 110
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1995

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References

1 See, e.g., Blair, & Kaserman, , The Economics and Ethics of Alternate Cadaveric Organ Procurement Policies, 8 YALE J. ON REG. 403 (1991)Google Scholar; Guttmann, Ronald D., The Meaning of “The Economics and Ethics of Alternative Cadaveric Organ Procurement Policies.” 8 YALE J. ON REG. 453 (1991)Google Scholar; Schwindt & Vining, , Future Delivery Market for Organs, 11 J. HEALTH POL. POL'Y & L. 483 (1987).CrossRefGoogle Scholar

2 NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, TRANSPLANTATION IN NEW YORK STATE: THE PROCUREMENT AND DISTRIBUTION OF ORGANS AND TISSUES (1988).

3 See infra note 94 and accompanying text.

4 The Uniform Determination of Death Act defines brain death as “either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.” UNIF. DETERMINATION OF DEATH ACT § 1, 12 U.L.A. 340 (Supp. 1991). The prolonged death-like existence reflects a condition where a person is in a persistent vegetative state, incapable of any voluntary movement, and permanently unconscious.

5 See, e.g., In re T.A.C.P., 609 So. 2d 588 (Fla. 1992) (parents petition court for approval to have the organs of their anencephalic infant transplanted into another infant prior to their daughter's legal death); see also Williams v. Hoffman, 223 N.W.2d 844 (Wis. 1974) (husband sue hospital officials for unauthorized use of wife's organs for transplant after he was informed of her premature death).

6 Silver, Theodore, The Case for a Post-Mortem Organ Draft and a Proposed Model Organ Draft Act, 68 UDDA 681 (1988)Google Scholar; Note, Compulsory Removal of Cadaver Organs, 69 COLUM. L. REV. 692 (1969).CrossRefGoogle Scholar

7 See Crespi, Gregory S., Overcoming the Legal Obstacles to the Creation of a Futures Market in Bodily Organs, 55 OHIO ST. L.J. 1 (1994).Google ScholarPubMed

8 This includes a successful extraction of the tissue from the donor and the successful implant of the tissue into the donee. The Massachusetts General Hospital Organ Transplant Team & H.F. Pizer, ORGAN TRANSPLANTS: A PATIENT'S GUIDE (1991).

9 Id.

10 Id.

11 Id.

12 Cohen, Lloyd R., Increasing the Supply of Transplant Organs: The Virtues of a Futures Market, 58 GEO. WASH. L. REV. 1, 3 (1989)Google ScholarPubMed (noting that there are at least twenty-five of such body parts). These parts include “parts of the inner ear, a variety of glands (pancreas, pituitary, thyroid, parathyroid, and adrenal), blood vessels, tendons, cartilage, muscles (including the heart), testicles, ovaries, fallopian tubes, nerves, skin, fat, bone marrow, blood, livers, kidneys, and corneas.” Id. citing Scott, R., THE BODY AS PROPERTY 19 (1981)Google Scholar; Rottenberg, Simon , The Production and Exchange of Used Body Parts, 2 TOWARD LIBERTY 322 (1971)Google Scholar; see also Prottas, Jeffrey, Human Tissues as Medical Treatment, 65 S. CA. L. REV. 445, 449 (1991)Google ScholarPubMed. These numerous body parts are either cellular or structural. Cellular parts of the human body consist of living organs and tissue such as the heart, kidney, lung, liver, skin, spleen, pancreas, and ovaries. Structural parts consist of extracellular tissue such as arteries, bones, blood vessels, cartilage, and the intestinal tract. Id. Another distinction between transplantable organs and tissue “is often made by distinguishing vascularized from non-vascularized transplants. A transplanted organ must be connected to the recipient's circulatory system; transplanted tissue is not.” Id.

13 Id.

14 Prottas, supra note 12, at 444-46. For purposes of this Article, regenerative human cells are readily replenishable such as blood, hair, ovum, skin, bone marrow, and sperm. The transplantation of a partial human liver would also qualify as regenerative tissue due to the liver's ability to regenerate itself. Id. at 445. Nonregenerative human cells are found primarily in solid organs, such as the heart, lungs, and kidneys, and are not replenishable. Id. at 445.

15 See notes 2-5 and accompanying text.

16 Prottas, supra note 12, at 445-46.

17 See infraPart II.C.1.

18 See infraPart II.C.1

19 See infraPart II.C.1

20 The process of blood transfusion was first made possible due to the discovery of the human blood circulatory mechanism in 1628. The earliest blood transfusions were attempted by French and English scientists where they unsuccessfully transfused animal blood into humans. The first recorded successful human blood transfusion was reported in 1795 by Dr. Phyllis Syng Physick. However, James Blundell, a London obstetrician, was officially known as the true father of transfusion process. Lamb, David, ORGAN TRANSPLANTS AND ETHICS 7 (1990)Google Scholar; Schmidt Paul J., The Blood Banking System: Organization, Economics and Regulatory Framework, in LEGAL ISSUES IN TRANSFUSION MEDICINE 5-13 (Clark Gilbert M. ed., 1986).

21 These developments include the discovery of A-B-O blood type groupings in the 1900s- 1920s; the Cohn fractionation methods which provided the process to separate plasma from the whole blood in the 1940s; and the development of blood component therapy in the 1960s which allowed a further breakdown of whole blood into its component parts—red cells, platelets, plasma, and cryoprecipitates—by the renowned scientist, Dr. Charles Hamilton Drew. Id.

22 Id.

23 Schmidt, supra note 20, at 8 (the storage of plasma became widespread after World War I in the late 1940s).

24 Id. at 10.

25 Id.

26 The earliest cases involved threats of criminal liability against pioneering physicians whose patients died during the early attempts of blood transfusions. Supra note 20.

27 Perlmutter v. Beth David Hosp., 123 N.E.2d 792 (N. Y. 1954) In Perlmutter, a hospital was sued under sales provisions of implied warranty and merchantability by patient who contracted hepatitis from a blood transfusion. Court held that the hospital's provision of blood in the transfusion was incidental to a service and thus was not the purchase of a good subject to such sales provisions. Id. Hubbell v. South Nassau Communities Hosp., 260 N.Y.S.2d 539 (1965). In Hubbel, a blood donor sued by patient under negligence action where patient contracted hepatitis from a blood transfusion. Court granted defendant's motion to dismiss for failure to state a cause of action where pleadings failed to allege that the defendant knew or should have known that she was donating infected blood.

28 Kirkendall v. Harbor Ins. Co., 887 F.2d 857 (8th Cir. 1989) (In an action by a patient who had contracted AIDS from a contaminated blood transfusion against the blood bank's insurer, the court held that the defendant's failure to test the contaminated blood on the wake of the availability of such tests did not constitute negligence under Arkansas law); see also Hoemke v. New York Blood Center, 912 F.2d 550 (2d Cir. 1990) (A patient's suit against the physicians, hospital, and blood centers that provided AIDS contaminated blood during surgery, was likewise dismissed).

29 See Perlmutter, 123 N.E.2d at 792.

30 A 1985 multiple organ and tissue transplant infected seven different donees with the HIV virus, resulting in three deaths from AIDS. Lawrence K. Altman, Tracking of Organs Proposed to Halt AIDS, N.Y. TIMES, Dec. 15, 1991, at 38.

31 At a 1993 two-day meeting, representatives from the Federal Center for Disease Control presented their proposal for the organ tracking system to representatives from the organ and tissue transplant community. Id.

32 See infra p. 73.

33 123 N.E.2d 792 (N.Y. 1954).

34 See infra note 222 and accompanying text.

35 Perlmutter v. Beth David Hospital, 123 N.E.2d 792, 794 (N.Y. 1954).

36 Id. The commercialization of nonregenerative human organs could also be considered a service subject to the same nonwarranty protection as the sale of human blood. At least one writer has suggested, however, that sale of human organs for transplantation purposes should be classified as “goods” and regulated under general Uniform Commercial Code warranty provisions. See Chapman, David, Retailing Hu man Organs Under The Uniform Commercial Code, 16 JOHN MARSHALL L. REV. 393 (1983).Google Scholar

37 See infra notes 430-34 and accompanying text.

38 Rottenberg, , supra note 12, at 326; see also Note, The Sale of Human Body Parts, 72 MICH. L. REV. 1182, 1223-25 (1974)Google Scholar, referring to Titmuss, Richard M., THE GIFT RELATIONSHIP 102 (1971)Google Scholar; see also Schmidt, Paul J., National Blood Policy, 1977: A Study in the Politics of Health, in PROGRESS IN HEMATOLOGY 151, 157-58 (1977).Google Scholar

39 Schmidt, supra note 20, at 11-13.

40 Sperm is defined as “[t]he ejaculate from the male; contains spermatozoa.” TABER'S CYCLOPEDIC MEDICAL DICTIONARY (16th ed. 1989).

41 Ovum is defined as the “[f]emale sex cell.” LAWYERS MEDICAL CYCLOPEDIA OF PERSONAL INJURIES AND ALLIED SPECIALTIES 5B, § 37.1a, 4-17 (1972).

42 Artificial insemination involves the fertilization of the egg of the custodial father's sperm (homologous insemination); a third party's sperm (heterologous insemination); or a mixture of the sperm of both (confused), by the injection of such sperm into the woman's uterus by operative procedure. Shapiro, Michael H. & Spece, Roy G. Jr., BIOETHICS AND LAW 499 (1981).Google Scholar

43 Artificial inovulation involves the process of removing an unfertilized egg from a female donor and placing the egg in the reproductive tract of another female. Id. at 499.

44 Embryo transplantation occurs by removing a fertilized egg from the uterus of one woman and surgically implanting the fertilized egg in the uterus of the gestational mother (the mother who will carry the child to term). Id. at 499.

45 The sperm used in artificial insemination may be either fresh sperm (collected from the donor and used within a relatively short period) or cryopreserved sperm (frozen sperm preserved in liquid nitrogen and stored in “sperm banks” for later use). See Wurmbrand, Marcia Joy, Note, Frozen Embryos: Moral, Social, and Legal Implications, 59 S. CA. L. REV. 1079, 1082-88 (1986)Google ScholarPubMed, for an interesting overview of cyropreservation and how it is used in certain reproductive processes.

46 See infra note 222 and accompanying text.

47 In re Matter of Baby M, 537 A.2d 1227 (N.J. 1988).

48 Id.

49 See Susan Garner Eisenman, Father, Biological and Anonymous, and Other Legal Strangers: Determination of Parentage and Artificial Insemination by Donor Under Ohio Law, 45 OHIO ST. L.J. 383, 385 n.25 (1984) (providing a historical overview of the development of artificial insemination, which was first performed in 1884 in the United States, citing, Snowden, K. & Mitchell, G., THE ARTIFICIAL FAMILY 13 (1981))Google Scholar. The most controversial issues regarding artificial insemination were the respective parentage rights and liabilities of participants. Some version of the Uniform Parentage Act of 1979 has been adopted by many states to determine parentage rights to children conceived with unrelated donated sperm. These laws provide a shield against unwanted parental responsibilities for men who supply their sperm through a licensed physician in this process. The Uniform Parentage Act (1979) provides at § 5(b), that “[t]he donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived.” See also CM. v. C.C., 152 N.J. Super. 160, 377 A.2d 821 (1977) and Mclntyre v. Crouch, 98 Or. App. 462, 780 P.2d 239 (1989). (These cases present variations of situations where the sperm donor sues to maintain visitation rights with a genetic child conceived through artificial insemination.)

50 Hecht v. Superior Ct., 20 Cal. Rpt. 2d 275 (1993); see also, Parpalaix v. CECOS, quoted in IAN KENNEDY & ANDREW GRUBB, MEDICAL LAW 622 (1989). In Parpalaix, a French woman sued to recover frozen sperm deposited in a sperm bank by her deceased husband. The couple had married only two days prior to the husband's death from prostate cancer. The court awarded custody of the frozen sperm to the woman due to its determination that the request would not violate any legislation, regulation, or the natural laws of France.

51 Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).

52 Id.

53 Id.

54 Id.

55 20 Cal. Rpt. 2d 275 (Cal. App. 2 Dist. 1993).

56 Id.

57 Id. at 283.

58 Id.; see also Moore v. Regents of University of California, 793 P.2d 479, 595 (Cal. 1990), cert. denied, 499 U.S. 936(1991).

59 See infra Part II.C.l.

60 Crespi, supra note 7, at 22-23.

61 Id.

62 In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988);see also. In re Adoption of Paul, 146 Misc.2d 379, 550 N.Y.S.2d 815 (N.Y. Fam. Ct. 1990); and, In re Adoption of Matthew B.-M., 232 Cal. App. 3d 1239, 284 Cal. Rpt. 18 (Cal. Ct. App. 1991), cert. denied, Nancy B. v. Charlotte M., 112 S. Ct. 1685 (1992).

63 In re Baby M, 109 N.J. 396 537 A.2d 1227 (1988).

64 Id. Parents may legally give their children up for adoption by agreeing to terminate their parental rights. This process involves a waiting period which provides the natural parent with an opportunity to change his or her decision. Existing law does not, however, permit natural parents to waive parental rights by receiving money in exchange for their child.

65 In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988).

66 Childress, James F., Ethical Criteria for Procuring and Distributing Organs for Transplantation, 14 J. HEALTH POL. POL'Y & L. 87, 100-01 (1989).Google ScholarPubMed

67 Id.

68 See In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988); Lieber, infra note 148, at 217 and accompanying notes (the call for legislative involvement resulted in at least five states prohibiting the enforcement of surrogacy contracts that are based on consideration as void as against public policy).

69 Prottas, supra note 12, at 446 (“Because humans have two kidneys and only need one to live normally, living people can donate a kidney for transplantation.”). Id.

70 Prottas, supra note 12, at 445. (The author reports that, “[i]n November 1989, the first liver donation from a living person was performed. In this procedure a part of a woman's liver was removed to be transplanted into her infant daughter. Human livers have the capability to regenerate partially.”) Id.

71 Scott, Russell, The Terrible Imbalance: Human Organs and Tissues For Therapy—A Review of Demand and Supply, 9 J. CONTEMP HEALTH L. & POL. 139 (1993).Google ScholarPubMed

72 Couch, Nathan P., Supply and Demand In Kidney And Liver Transplantation: A Statistical Survey, 4 TRANSPLANTATION 587, 593 (Sept. 1966).CrossRefGoogle ScholarPubMed

73 Scott, supra note 71, at 146, citing Evans, Roger W. et al., The Potential Supply of Organ Donors, 267 JAMA 239, 245 (1992).CrossRefGoogle ScholarPubMed

74 Policy and By-Line Proposals for Public Comment, Unos UPDATE (UNOS Research Dep't, Rich mond, Wa.), Apr. 1, 1994, at 29. This figure was taken from research data compiled by the UNOS Research Department.

75 Id. at 30.

76 Id.

77 Prottas, supra note 12 at 456 (“approximately one third of those awaiting a heart or liver transplant die”).

78 Scientists have made attempts from as early as 1667, to use animal blood, body tissue, parts, and organs for humans in medical procedures such as transplants. LAMB, supra note 20, at 111-13. The earliest attempt to perform a cross-species transplant occurred in 1667, when “Dr. Richard Lower conducted a transfusion of lamb's blood into the veins of a ‘mildly melancholic man,’ with no apparent harm.” Id. at 111, citing Lamb D. & Easton S.M., MULTIPLE DISCOVERY: THE PATTERN OF SCIENTIFIC PROGRESS (1984). Organ transplants between different species are referred to as “heterografts” or “xenografts.” Xenograft is defined as “[a] tissue graft that is transferred from an organism of one species to an organism of a different species.” CHURCHILL'S MEDICAL DICTIONARY 2112 (1989). Xenograft attempts of major organs such as the kidneys, liver and heart from highly developed animals such as the baboon, chimpanzee, and monkey into humans have been most popular. The first unsuccessful attempts to transplant the kidneys from such sophisticated life forms into humans were performed in the early 1960s. Scott, supra note 71, at 152. Attempts to transplant the heart of such animals into humans have received much publicity over the last thirty years. Such xenograft heart transplants were first performed in 1964 by Dr. James D. Hardy at the University of Mississippi. The human recipient survived only a few hours. LAMB, supra note 20, at 112; Scott, supra note 71, at 152. The next series of xenograft heart transplants were performed in the 1970s by Dr. Christian Barnard, where one organ recipient survived a few days. Id. The longest living xenograft heart recipient survived a few weeks in 1984, when the heart of a 7 1/2-month-old baboon was transplanted into 14-day-old “Baby Fae” by physicians at Loma Linda University Medical Center in California. LAMB, supra note 20, at 112.

79 In 1992 and 1993, physicians at a Pittsburgh, Pennsylvania, hospital attempted to use the liver of a baboon for human liver transplants. In both unsuccessful attempts, doctors performed baboon to human liver transplants on patients who suffered from hepatitis B, a disorder which would have destroyed a donated human liver. See Second Baboon-Liver Transplant Conducted, PATRIOT NEWS, January 11, 1993, at B10; Altmann Lawrence K., Man Dying From Hepatitis Is Given A Baboon's Liver, N.Y. TIMES, January 11, 1993, at A12.

80 Physicians experiment with artificial organs to be transplanted into humans in an attempt to offset the ever-increasing shortage in transplantable human organs. The two major human organs which have achieved the greatest success in the world of mechanical automation are the artificial kidney and artificial heart. Rettig, Richard A., Artificial Kidneys and Artificial Hearts, 65 S. CAL. L. REV. 503 (1991).Google ScholarPubMed The development of the artificial kidney and the process of hemodialysis (where “[b]lood is passed through a porous membrane, a salt bath (dialysate) flows outside the membrane in the opposite direction, and toxins in the blood filter across the membrane into the dialysate, which is then discharged”) began in 1944 and continued through the early 1960s by physicians in other countries and the United States. Id. at 504-05 (providing a brief chronology of the artificial kidney). The eventual successful development of the artificial kidney enabled many patients suffering from kidney failure to lead a somewhat normal life when not undergoing hemodialysis treatment. Note, Patient Selection For Artificial and Transplanted Organs, 82 HARV. L. REV. 1322 (1969)CrossRefGoogle Scholar. The allocation of such limited medical treatment in a fair and equitable manner became a major concern of the legal and medical communities as well as the federal government during the late 1960s. Id. at 1332. In 1972, Congress authorized the extension of Medicare coverage to all patients qualifying under social security guidelines when it created the Medicare End Stage Renal Disease program. As of 1989, this comprehensive medical coverage program had cost the government several billion dollars. Id.; Rettig, supra at 506.

81 The success rate of these devices and techniques largely depends upon the use of antibiotics to prevent infections. This life-sustaining equipment is said to have created the wave of living will legislation which swept this country over the last ten years in response to the on going “right to die” controversy. There are at least four invasive mechanical devices and techniques which perform the major internal anatomical functioning of the human body. These devices include (1) cardiopulmonary resuscitation (C.P.R.)— an artificial supply of the heart function when the heart shuts down; (2) mechanical ventilation of respiratory system—a machine which supplants functions of the lungs by providing breathing through artificial means; (3) renal dialysis—an artificial blood filtration system which purifies the body's blood to offset kidney failure; and (4) nutritional support and dehydration—two techniques used to deliver food and liquid to the digestive tract or blood stream so as to bypass the gastrointestinal system upon its failure to properly function. See SHAPIRO & SPECE, supra note 42, at 608-16.

82 The development of the artificial heart for human purposes has met with many defeats over the last twenty-five years. Rettig, supra note 80, at 509-10. As of this date, no patient has survived beyond the 620 days lived by William Schroeder in 1981. The few patients who have been transplanted with artificial hearts in the past have all lived in a significantly diminished life style. Most spent their post-transplant days in the hospital fighting infections, strokes and other complications. Kaskelle Karp survived 65 hours on a bridge artificial heart transplant and died soon after a human heart transplant in 1969, Dr. Barney Clark survived 112 days after a 1982 artificial heart transplant. LAMB, supra note 20, at 115. The most successful use of the artificial heart thus far has been its provision of a temporary bridge to sustain patients awaiting human heart transplants. Rettig, supra note 80, at 511; LAMB, supra note 20, at 115. The first artificial heart transplant occurred in 1969 as a bridge transplant by Dr. Denton Cooley in Texas. Since then, the greatest challenge has been to develop an artificial heart with the capacity of functioning as a permanent human heart replacement. Currently, the use of the artificial heart as a whole replacement of the human heart is considered an experimental treatment far from perfection. Rettig, supra note 80, at 509-10.

83 For purposes of this article and the safeguards proposed herein, the potential vulnerable organ providers have been limited to these two human sources.

84 Rottenberg, supra note 12, at 323; Freier, D.T., ORGAN SELLING FOR TRANSPLANTATION 141, 141-43 (1980).Google Scholar

85 LAMB, supra note 20, at 107; Stason, E. Blythe, The Uniform Anatomical Gift Act, BUS. LAW., July 1968, at 919Google Scholar (A Boston physician by the name of Dr. Joseph Murray is noted as having performed the first successful kidney transplant.).

86 Corneas are nonvascularized and thus have a lower rejection level than whole organ transplants. In 1990, about 38,000 successful cornea transplants occurred. See Prottas, supra note 12, at 452; see also Brams, Marvin, Transplantable Human Organs: Should Their Sale by Authorized by State Statutes?, 3 AM. J.L. & MED. 183, 184 (1977-78)Google Scholar (“Currently, the most effective organ transplantation involves kidneys and corneas, and consequently those body parts are in great demand.”); Rottenberg, supra note 12, at 323 (the first reported cornea transplant was as early as 1817).

87 The one-year survival rate for such transplants is between eighty and ninety percent depending on the degree of immunological matching and the use of immunosuppressive drugs. Id. The one-year survival rate for heart recipients is about seventy-five to eighty percent. Id. The one-year survival rate for liver recipients is also placed at seventy-five percent. Prottas, supra note 12, at 450-51. See also Heart-Transplant Success, U.S. NEWS & WORLD REP., July 2, 1979, at 54; Kawashima, Y., Cardiac Transplantation: Present Status and Future, 51 JAPANESE J. CLINICAL MED. 1393-99 (1993).Google Scholar

88 The first human heart transplant was performed in 1967, by Dr. Christian Bernard on Louis Washansky. Mr. Washansky survived a mere three hours after his transplant. Between 1967 and 1968, over one hundred human heart transplants had been performed. For the next decade, the number of heart transplants declined significantly due to low survival rates of recipients and other medically related complications. By the early 1980s, however, scientific improvements resulted in higher success rates and an increase in heart transplants being performed. See B.D. Colen, Heart Transplant on Wane Decade After 1st Operation: Heart Transplants Declining After 1st Operation, WASH. POST, September 5, 1977, at Al.

89 Stason, supra note 85, at 920.

90 Prottas, supra note 12, at 448.

91 Id.

92 UNOS UPDATE, supra note 74, at 29.

93 The country of Uruguay is reported as limiting live donor transplants to donees and donors who are immediate relatives. See Sam Dillion, Latin Poor Sell Their Body Organs—20 Arrested By Uruguay In Crackdown, MIAMI HERALD, December 2, 1991 at 11 A. Early in medical transplant history, such transplants were always performed between relatives because of the belief that there was a greater chance of “matching” the participants' tissue, thus resulting in a better prognosis. Prottas, supra note 12, at 446-47; LAMB, supra note 20, at 106-07. “Isograft,” an organ transplant between genetic human twins, has been recognized as the most promising and successful tissue match for transplant procedures. FREIER, supra note 84, at 141 (“Identical twins or isograft are still the best donors marred only by technical failures and recurrence of the original disease in the transplant. Over 90% succeed indefinitely without medication.”).

94 The continued success of all homo-allo transplants also depends heavily upon scientists' ability to ward off donee infections from the transplanted foreign tissue of the donor by reinforcing the donee's immunosuppressant capability with pharmaceutical therapy. The discovery of Cyclosporin, an immunosuppressant drug, greatly improved the prognosis of such transplants. LAMB, supra note 20, at 8-10.

95 See infra notes 291-94 and accompanying text.

96 See Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 269 (1990).

97 Arabian, Armand, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES L. & MED. 261 (1994)Google ScholarPubMed (discussing the doctrine of informed consent on the basis of two California Supreme Court decisions).

98 Id. at 263; see also Colton v. New York Hospital, 414 N.Y.S.2d 866 (1979).

99 Arabian, supra note 97, at 263.

100 Scott, supra note 71, at 143.

101 McFall v. Shimp, 10 Pa. D. & C.3d 90 (C.P. Allegheny Co. 1978).

102 See Anderson, Mark F., Encouraging Bone Marrow Transplants From Unrelated Donors: Some Proposed Solutions to a Pressing Social Problem, 54 U. PITT. L. REV. 477,518-19 (1993)Google Scholar; but see Hartman, Rhonda G., The Privacy Implications of Professor Anderson's Proposed Mandatory Registry For Bone Marrow Donation: A Reply, 54 U. PITT. L. REV. 531, 548 (1993).Google ScholarPubMed

103 McFall, 10 Pa. D. & C.3d at 91-92.

104 See Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969); Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979); In re Doe, 481 N.Y.S.2d 932 (App. Div. 1984); Curran v. Bosze, 566 N.E.2d 1319 (111. 1990). For a more detailed analysis of such involuntary incompetent organ transplants, see infra notes 346-66 and accompanying text.

105 Scott, supra note 71, at 145.

106 Cohen, supra note 12, at 8-11.

107 See infra note 268 and accompanying text.

108 See LAMB, supra note 20, at 117.

109 See infra notes 114-22 and accompanying text.

110 See infra notes 152-61 and accompanying text.

111 Prottas, supra note 12, at 454; Rottenberg, supra note 12, at 324.

112 See LAMB, supra note 20, at 117.

113 According to the over 200-year-old common law definition, death occurred upon the “cessation of life, [the] permanent [irreversible] cessation of all vital signs.” BLACK'S LAW DICTIONARY 361 (5th ed. 1979) (emphasis added). Under this definition, also known as the cardiopulmonary definition of death, life was deemed to have ceased when a person's heart stopped beating, lungs stopped breathing, and their pulse stopped pulsating. In re T.A.C.P., 609 So. 2d 588, 591 (Fla. 1992). Courts gave deference to the medical community's professional opinion which placed great weight upon the determination of death based upon whether the heart was still beating and whether the respiratory and circulatory functions were intact. Friloux, C. Anthony Jr., Death, When Does It Occur?, 27 BAYLOR L. REV. 10, 12 (1975)Google ScholarPubMed (citing Gray v. Sawyer, 247 S.W.2d 496 (Ky. 1952) & Vaegemont v. Hess, 280 N.W. 641 (Minn. 1938)). The common law definition of death has been revised to reflect medical technology that prolonged life beyond the boundary of the common law definition. Advanced life support equipment necessitated the enactment by states of the Uniform Definition of Death Act, which defines death as “the cessation of all circulatory, respiratory, and brain function, including the brain stem.” UNIF. DETERMINATION OF DEATH ACT § 1, 12 U.L.A. 340 (supp. 1991). This definition reflects the medical community's use of the terms “brain dead” or “clinically dead” for persons who are unconscious, comatose, and terminally ill without any reasonable prognosis of recovery.

114 Williams v. Hoffman, 223 N.W.2d 844 (Wis. 1974); see also Brown v. Delaware Valley Transplant Program, 615 A.2d 1379 (Pa. Super. Ct. 1992). In Brown, family members brought suit against a hospital for its removal of a relative's heart and kidneys for transplantation purposes without their prior approval. The court found that the hospital was protected under the immunity provision of the UAGA because it had acted in good faith.

115 The husband's claims of assault and battery, and negligence sought “damages for willful and intentional mutilation of a corpse, negligent mutilation of a corpse, and negligence in communicating an erroneous and premature death message.” Williams, 223 N.W.2d at 845-46.

116 Id. at 845.

117 Id.

118 Id. at 849; see also Brown, 615 A.2d at 1379.

119 See Kelly-Nevils v. Detroit Receiving Hosp., 526 N.W.2d 15 (Mich. Ct. App. 1994); Brown, 615 A.2d 1379; Brotherton v. Cleveland, 602 N.E.2d 749 (Ohio Ct. App. 1991).

120 The UAGA only applies to predesignated consensual posthumous anatomical gifts. See Maryland Anatomical Gift Act, MD. ANN. CODE art. ET, § 4.501 (1991). Maryland's Act does “not apply to gifts of parts of the body if the gifts are made during the lifetime of the donor with the intention that the part of the body is delivered to the donee during the lifetime of the donor.” Id. An exception to the predesignated, affirmative consent requirement is sometimes found in state UAGA statutes which allow the routine salvaging of cadaver corneal tissue, under the jurisdiction of the coroner, where there has been no notification or communication of any objection to the donation made by the cadaver while alive or by relatives. Maryland's version of the UAGA provides that:

where there is a need for corneal tissue for a transplant or research, the chief medical examiner, the deputy chief medical examiner... shall provide the cornea upon the request of the Medical Eye Bank of Maryland, Incorporated . . . under the following conditions: (1) The medical examiner has charge of a decedent who may provide a suitable cornea for the transplant or research; (2) an autopsy will be required; (3) no objection by the next of kin is known by the medical examiner; (4) no religious objection made by the decedent before death is known by the medical examiner; and (5) removal of the cornea for transplant will not interfere with the subsequent course of an investigation or autopsy or alter the postmortem facial appearance.

MD. ANN. CODE art. ET, § 4-509.01 (a).

In Brotherton v. Cleveland, 76 Ohio App. 3d 601, 602 N.E.2d 749 (1991), the decedent's family notified the defendant hospital of their refusal to consent to the removal and donation of the decedent's corneal tissue. The court addressed the issue of whether the defendant hospital had a duty to communicate this information to a coroner who, unaware of the family's wishes, removed corneal tissue from the decedent. In denying the family's negligence claim, the court held that no duty existed under the applicable version of the relevant statute. The court refused to retroactively apply a recent amendment to the statute which required hospitals to communicate such information to the county coroner. Similarly, in Georgia Lions Eye Bank, Inc. v. Lavant, 335 S.E.2d 127 (Ga. 1985), cert. denied, 475 U.S. 1084 (1986), the parents of the decedent brought an action for the nonconsensual removal of the corneal tissue of their deceased infant who had died of sudden infant death syndrome. The court addressed the constitutionality of a statute similar to that in Brotherton. The court reversed the lower court's determination that the statute violated constitutional due process requirements by failing to provide the decedent's parents with notice and an opportunity to object. The court held that the statute reflected the state's proper exercise of its sovereign power, in the interest of public health, to authorize a procedure likely to save the lives of hundreds of its citizens on a yearly basis.

121 See generally, Moore v. Regents of University of California, 793 P.2d 479 (Cal. 1990), cert. denied, 499 U.S. 936(1991).

122 See infra notes 326-33 and accompanying text. The presence of a fully informed consent from the patient may shield transplant teams from tort liability. An interesting question which arises here is whether proponents of the “right to die” movement would ordain the proposition that a person has the right to donate vital organs to save the life of another, where they have determined that their life is less valuable. Dr.Kevorkian, Jack, in his book, PRESCRIPTION: MEDICIDE, THE GOODNESS OF PLANNED DEATH (1991)Google Scholar, writes an historical account of the development of his campaign to persuade legislatures and the public to allow death row prisoners to be executed by general anesthesia so that the inmate's organs can be salvaged for transplantation into other unincarcerated individuals.

[A] single healthy condemned inmate could be the salvation of at least six doomed adults by offering two biologically robust kidneys, two “clean” lungs, a heart, and a liver; and in addition, save two more by donating a fresh pancreas and small intestines. That adds up to a total of eight lives, but the precious transfer of life and death need not end there. If the condemned's liver were surgically divided, then two dying infants could also be saved, raising to nine the number of lives salvaged by one inmate. And a bone marrow transplant could save a tenth patient.

Id. at 43. Dr. Kevorkian does seem at least willing to recognize the necessity for a high degree of volunteerism and other legal safeguards to protect inmate's degree of choice in donating organs. He surmises that:

[f]irst, a condemned individual's autonomy of choice must be respected at all times. Second, any initial assent must be firm and unwavering. Third, the right to reverse that assent must be guaranteed. And finally, anyone who manifests uncertainty or has a change of heart after consenting must never again be a candidate for organ donation or experimentation.

Id. at 89. Death row inmates have, for the most part, been unsuccessful in their attempts to donate their organs after execution to others for transplantation purposes. See, e.g., Campbell v. Wainwright, 416 F.2d 949 (5th Cir. 1969) (denying an inmate's request to donate a nonvital organ for transplantation purposes), cert. denied, 397 U.S. 953 (1970); see also "Dead" Man Almost Loses His Kidneys, L.A. HERALD EXAM., Feb. 9, 1984Google Scholar, at A2 (“[a] comatose traffic accident victim who was clinically dead for more than nine hours coughed as nurses were preparing to remove his kidneys for donation, and began responding to other stimuli”).

123 Usually, this legislation also provides immunity from civil and criminal liability for persons operating pursuant to the provisions of the law. See Refusal of Treatment LEGISLATION, A State by State Compilation of Enacted and Model Statutes, 1992, Choice in Dying Inc. This publication reprints every law enacted as of December 1992, relating to living wills, advance directives, and durable powers of attorney on a state-by-state basis. California was the first state to enact living will legislation in 1976. Pennsylvania was one of the last states to enact such legislation in 1992. See Richard E. Shugrue, The Patient Self-Determination Act, 26 CREIGHTON L. REV. 751,765 (1993) (briefly describing the three types of advanced health care documents—living wills, durable powers of attorney, and advance medical directives).

124 When an individual is in such a state as to be deemed a medically qualified declarant varies from state to state. For example, “terminal condition” is defined as “a progressive incurable condition that, without the administration of life-sustaining procedures, will, in the opinion of two physicians, result in death within a relatively short time.” Alaska Rights of Terminally 111 Act, ALASKA STAT. §§ 18.12.010, 18.12.100(11) (1990), or as “an incurable condition caused by injury, disease, or illness, which, regardless of the application of life-sustaining procedures, would, within reasonable medical judgement, produce death, and where the application of life-sustaining procedures serve only to postpone the moment of death of the patient.” District of Columbia Natural Death Act of 1981, D.C CODE ANN. §§ 6-2421, 6-2421(6) (1989). Similarly, the term “permanently unconscious” has been defined “to include permanent coma, persistent vegetative state and irreversible conditions in which the individual is at no time aware of himself [sic] and the environment and shows no behavioral response to the environment.” Connecticut Removal of Life Support Systems Act, CONN. GEN. STAT. §§ 19a-570, 19a-570(4) (1993). The term “persistent vegetative state” has been defined as “a medical condition whereby in the judgment of the attending physician the patient suffers from a sustained complete loss of self-aware cognition and, without the use of extraordinary means or artificial nutrition or hydration, will succumb to death within a short period of time.” North Carolina Right to Natural Death Act, N.C. GEN. STAT. § 90-321(4) (1991).

125 See generally, Shugrue, supra note 123.

126 Id.

127 Blair & Kaserman, supra note 1, at 449-51; Hansmann, infra note 218, at 69.

128 See Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990).

129 See In re T.A.C.P., 609 So. 2d 588 (Fla. 1992).

130 Id.

131 Id. These legal scholars base their proposition on the fact that the organs of anencephalic infants are usually deteriorated beyond use as transplant organs by the time the brain death requirements have been met. See Ashwal, Stephen et al., Anencephaly: Clinical Determination of Brain Death and Neuropathology Studies, 6 PEDIATRIC NEUROLOGY 233, 239 (1990)CrossRefGoogle Scholar. The prognosis of anencephalic infants is fatal within two months after birth. However, properly functioning organs deteriorate at a rapid pace and thus the infant's organs must be removed quickly after birth in order to be used for transplantation purposes. One scholar urges that anencephalic infants (infants born solely with a med-brain and/or brain stem, but without the upper brain or cerebrum and cerebellum) be considered as “dead” although born alive, so as to transplant the anencephalic infant's organs into other more viable infants. Jay A., Friedman, Taking the Camel by the Nose: The Anencephalic as a Source for Pediatric Organ Transplants, 90 COLUM. L. REV. 917 (1990)Google Scholar. However, some have taken the position that the use of anencephalics as organ donors would produce as few as eleven usable organs per year in the U.S. from an average number of 304 live birth anencephalies born annually due to: (1) the fact that half of anencephaly live births are premature resulting in underdeveloped or malformed organs; (2) the dismal success rate of transplants due to inadequate neonatal transplant technology; and (3) the logistical difficulties in transportation, tissue matching and blood type compatibilities in the organ-sharing network. See D. Alan Shevvmon et al., The Use of Anencephalic Infants as Organ Sources, 261 JAMA 1773, 1774-75 (1989).

132 The UDDA defines death as the cessation of all circulatory, respiratory, and brain function, inconsideration, purchase or sell a part for including the brain stem. UNIF. DETERMINATION OF DEATH ACT § 1,12 U.L.A. 340(Supp. 199l); see also In re Baby K, 16 F.3d 590 (4th Cir. 1994), cert. denied, 115 S. Ct. 91 (1994). In Baby K, a federal circuit court was asked by a treating hospital to determine whether the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C.A. § 1395dd (West 1992), required it to provide treatment other than warmth, nutrition, and hydration to an anencephalic infant. The higher court affirmed the lower court's decision, by holding that EMTALA imposed a legal duty upon the hospital to provide respiratory support and other emergency treatment should the infant be presented at the hospital for emergency life-saving treatment by its parents. Here, the infant's mother sought to require life-saving emergency treatment to preserve her daughter's life in spite of the infant's congenital deformity.

133 In reaching its decision, the court recognized that Florida's version of the UDDA applied the whole brain definition of death to situations where a person's cardiopulmonary function was maintained artificially. It adopted the cardiopulmonary definition of death as a matter of common law whenever the brain death definition was inapplicable, or where the cardiopulmonary function was not maintained artificially. The court refused to further expand the common law definition of death to equate anencephaly with death because there was no public necessity or vindication of fundamental rights involved, but instead there existed an utter lack of consensus “as to: (a) the utility of organ transplants of the type at issue here; (b) the ethical issues involved; or (c) the legal and constitutional problems implicated.” T.A.C.P., 609 So. 2d at 595. The court concluded that neither standards of the brain dead or cardiopulmonary definitions of death were supported by the evidence presented below.

134 Id.

135 The determination of a person's fundamental right to life is not diminished simply because the person is near death's door. See In re A.C., 533 A.2d 611 (D.C. App. 1987).

136 Shewmon, supra note 131, at 1774-78.

137 See Blair & Kaserman, supra note 1, at 449-50.

138 Any further expansion of the legal definition of death may lead down the slippery slope of encompassing persons who have mental illnesses or retardation, along with other mentally or socially diminished qualities. T.A.C.P., 609 So. 2d at 594-95. The court in T.A.C.P. discussed various ethical issues as presented by a number of legal commentators, which included the recognition that the use of anencephalic infants as organ donors becomes a realistic “slippery slope” scenario when considering some physicians' suggestions that lesser deformed infants be used for transplantation purposes. Id. (citing Brandon, Beth, Note, Anencephalic Infants as Organ Donors: A Question of Life or Death, 40 CASE W. RES. L. REV. 781, 802 (1989-90)Google Scholar); see also Shewmon, supra note 131, at 1774-78.

139 See infra Part IV.B.5.C.

140 Crespi, supra note 7, at 35.

141 See infra Part II.A (discussing the current organ donation system).

142 Crespi, supra note 7, at 14-15. Potential organ recipients generally must qualify under these criteria in order to be placed upon the list. These criteria have included the consideration of the potential recipient's age, sex, emotional stability for treatment, physical prognosis after treatment, physical health or ability to survive the transplant, the patient's ability to pay, and the patient's proximity to the transplant center with custody of the organ.

143 NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, supra note 2, at 103.

144 Id. at 114-15.

145 Id.

145 Id. at 121.

147 Cohen, supra note 12, at 44-48. Where the rationing of organs in a commercial system is based solely on ability to pay, “the rich may be able to purchase advantages of health that are foreclosed to the poor, and that may seem to some a particularly invidious outcome.” Id. at 44.

148 Id. Scholars who protest commercial surrogacy contracts raise a similar claim that poor women will become the primary suppliers of “wombs for rent” to rich couples. See Lieber, Katherine B., Note, Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered?, 68 IND. L.J. 205, 226 (1992)Google ScholarPubMed (discussing the question of whether the government should intervene to protect women surrogates from potential abuses and concluding that “it would be better for the state to make the practice legal and to set up a regulatory scheme to protect those involved”).

149 See infra Part II1.C.

150 See infra Part III.C.

151 See UNIF. ANATOMICAL GIFT Act, 8a U.L.A. (1987); see also Cowan, Dale H. ET AL., HUMAN ORGAN TRANSPLANTATION: SOCIETAL, MEDICAL-LSEGAL, REGULATORY, AND REIMBURSEMENT ISSUES 15 (1987)Google Scholar (An article written by Professor Arthur L. Caplan, entitled, Obtaining and Allocating Organs for Transplantation, is reproduced in a collection of papers presented at a conference held in 1985 on the Legal and Ethical Issues Surrounding Organ Transplantation. Professor Caplan suggests that the encouraged volunteerism system is no longer effective in meeting the increasing organ shortage. Here, he proposes the institution of a “required request” or “routine inquiry” system for the organ donation system as a means to increase the organ supply.).

152 See, e.g., ALA. CODE, tit. 22, §§ 184(4)-(11) (Supp. 1994); ARK. CODE ANN. §§ 82-410.4-.14 (1987 & Supp. 1994); DEL. CODE ANN. tit. 24, §§ 1780-89 (1987 & Supp. 1994); MD. ESTATES & TRUSTS CODE ANN. §§ 4-501-512 (1991).

153 Crespi, supra note 7, at 10-11; but see Jesse, Dukeminier,Organ Transplantation: A Proposal for Routine Salvaging of Cadaver Organs 279 NEW ENG. J. MED. 413, 414 (1968)Google Scholar. In one of the earlier works in this area, the no property in dead bodies rule is viewed as a major impediment to the organ donation industry.

154 The case which is considered classic is the 1881 English case of Williams v. Williams, 20 Ch. D. 659,659(1881). In this case, the mistress of the deceased sued his estate to pay for cremation of his body, which she had reportedly carried out pursuant to the deceased's testamentary wishes after the surviving widow and children had him buried. In a decision rendered long before the enactment of the UAGA, the court determined that the man's disposition by will could not be enforced, because “there can be no property in the dead body of a human being.” Id. See also Dukeminier, supra note 153, at 414; Foster v. Dodd, 3 L.R.Q.B. 67, 77 (1867).

155 See Brotherton v. Cleveland, 733 F. Supp. 56 (S.D. Ohio 1939), rev'd, 923 F.2d 477 (6th Cir. 1991); State v. Powell, 497 So. 2d 1188 (Fla. 1986), cert. denied, 481 U.S. 1059 (1987); Tillman v. Detroit Recovering Hosp., 360 N.W.2d 275 (Mich. Ct. App. 1984).

156 See supra note 155 and cases cited therein.

157 See supra note 155 and cases cited therein.

158 Thomas H., Murray, On the Human Body as Property: The Meaning of Embodiment, Markets, and the Meaning of Strangers, 20 J. L. REFORM 1055 (1987)Google Scholar.

159 In the notable case of Moore v. Regents of University of California, 793 P.2d 479 (Cal. 1990), cert, denied, 499 U.S. 936 (1991), the California Court of Appeals declined the opportunity to resolve the issue of whether an extracted, diseased spleen was the property of its human provider. The lower court initially held that the patient could sue the defendant hospital and research physicians under a traditional property claim of conversion. The suit was filed to recover the tremendous commercial profit the defendants were gaining from their creation and sale of a genetically altered human cell-line taken from the plaintiff's spleen. The lower court held that Mr. Moore had an “unrestricted right to use, enjoy and dispose of his spleen and thus, this right fitted under the traditional legal notions of property.” Id. at 595. The court of appeals reversed and found that this pronouncement was improper because it delved into a matter which was better suited for the legislature. Id.

160 Crespi, supra note 7, at 21-22 and accompanying notes.

161 Id.

162 Stason, supra note 85, at 924-25 and accompanying notes (listing the thirty-eight states having some form of post mortem donation statute in 1968, and comparing the pertinent provisions thereof); see also, Crespi, supra note 7, at 12; Dukeminier, supra 153, at 415.

163 UNIF. ANATOMICAL GIFT ACT, 8A U.L.A. (1987).

164 Id. §§ 2(a), 3. The UAGA states that “[a]ny individual of sound mind and 18 years of age or more may give all or any part of his body ... for medical or dental education, research, advancement or medical or dental science, therapy or transplantation ....” Id. §§ 2(a), 3.

165 Id

166 Williams, Phillip G., LIFE FROM DEATH THE ORGAN AND TISSUE DONATION AND TRANSPLANTATION SOURCE BOOK WITH FORMS 14-15 (Contemporary Public Health Issues Vol. 2 1989)Google Scholar. The author writes an overview and commentary on the various uniform anatomical gift laws of states. He identifies six states; Connecticut, Delaware, Minnesota, North Dakota, Utah, and Wisconsin, which had provisions allowing minors to donate their organs upon death with parental approval.

167 Id.

168 See infra note 169. Under the 1968 version of the UAGA, a list designating persons within the family or some other legally recognized relationship to the decedent gives such persons in priority status the authority to donate the organs of the deceased for research, transplantation or therapeutic purposes. UNIF. ANATOMICAL GIFT ACT, 8A U.L.A. § 2(b) (1968).

169 Silver, supra note 6, at 693-95; Erik S., Jaffe, Note, “She's Got Bette Davis's Eyes”: Assessing the Non-consensual Removal of Cadaver Organs Under the Takings and Due Process Clauses, 90 COLUM. L. REV. 528, 534-35 (1990)Google Scholar; Dukeminier, supra note 153, at 413. The author states “[t]he law at present requires—to put it in a nutshell—that surgeons obtain consent of the next of kin before removing organs from a cadaver. This requirement is an obstacle to the routine transfer of kidneys and other organs from a cadaver, which has no use for them, to live human beings, who will die without them.” Id.

170 See Stason, supra note 85, at 921 -24. The author recognizes the legal uncertainties of the organ donation laws during the pre-UAGA era as providing a major basis for the adoption of the ensuing model act. Prior to the adoption of the 1968 UAGA, the existing state laws were considered inadequate to clearly define a donor's rights as well as the provision of civil and criminal immunity to those physicians acting in good faith. Id.

171 Silver, supra note 6, at 694 (“The UAGA definitively resolves the ambiguities surrounding state donation statutes and the common law. It does little, however, directly to foster organ donation.”).

172 See UNIF. ANATOMICAL GIFT ACT (1987) prefatory note, 8A U.L.A. 3 (Supp. 1991) (recounting the various shortcomings of the donation system which the 1987 amended UAGA sought to address).

173 Id.

174 Id. § 4(a). The Act, reads, in relevant part:

The [coroner or medical examiner] may release and permit the removal of a part from a body within that official's custody, for transplantation or therapy, if:

(1) the official has received a request for the part from a hospital, physician, surgeon, or procurement organization; (2) the official has made a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent's medical records and inform persons listed in § 3(a) of their option to make, or object to making, an anatomical gift; (3) the official does not know of a refusal or contrary indication by the decedent or objection by a person having priority to act as listed in § 3(a); (4) the removal will be by a physician, surgeon, or technician; but in the case of eyes, by one of them or by an nucleator; (5) the removal will not interfere with any autopsy or investigation; (6) the removal will be in accordance with accepted medical standards; and (7) cosmetic restoration will be done, if appropriate.

Id.

175 Jaffe, supra note 169; see also Crespi, supra note 7, at 16-17 (recognizing that this addition to the amended version has provided a platform for controversial debate, noting that only 14 states had adopted this version as of April 1993).

176 State v. Powell, 497 So. 2d 1188 (Fla. 1986), cert. denied, 481 U.S. 1059 (1987); see also Georgia Lions Eye Bank v. Lavant, 335 S.E.2d 127 (Ga. 1985), cert. denied, 475 U.S. 1084 (1986); Brotherton v. Cleveland, 733 F. Supp. 56 (S.D. Ohio), rev'd, 923 F.2d 478 (6th Cir. 1991).

177 Powell, 497 So. 2d at 1188. The Florida Supreme Court held that the common law recognized interest of relatives in the disposition of deceased family member's dead bodies did not rise to a level of a constitutionally protected liberty interest nor were any due process issues present. The court rejected the argument that there was some type of property interest in the body of the deceased relative.

178 Arthur L. Caplan, Organ Procurement: It's Not in the Cards, HASTINGS CENTER REP., Oct. 1984, at 10.

179 Id.

180 Id.

181 UNIF. ANATOMICAL GIFT ACT (1987), 8a U.L.A. 3, § 5(a) (West Supp. 1991).

182 Id. § 5(b) (requiring that the request be made taking into consideration any sensitive and discreet measures needed to protect surviving family members). See also Caplan, supra note 178, at 10.

183 The UNIF. ANATOMICAL GIFT ACT, 8a U.L.A. 3, § 10 (West Supp. 1991), provides that

  • (a) [A] person may not knowingly, for valuable consideration, purchase or sell a part for transplantation or therapy, if removal of the part is intended to occur after the death of the decedent.

  • (b) Valuable consideration does not include reasonable payment for the removal, processing, disposal, preservation, quality control, storage, transportation, or implementation of a part.

  • (c) A person who violates this section is guilty of a [felony] and upon conviction is subject to a fine not exceeding [$50,000] or imprisonment not exceeding [five] years, or both.

184 Crespi, supra note 7, at 13.

185 State laws falling generally into the presumed consent category include ARK. CODE ANN. § 12-12- 320 (1987) (pituitary gland); CAL. GOV'T CODE §§ 27491.46-.47 (West 1988) (pituitary & corneas); COLO. REV. STAT. § 30-10-621 (1986) (pituitary); CONN. GEN. STAT. ANN. § 19a-281 (West 1986) (pituitary & corneas); DEL. CODE ANN. tit. 29, § 4712 (Supp. 1988) (corneas); FLA. STAT. ANN. § 732.9185 (West Supp. 1989) (corneas); GA. CODE ANN. § 31-23-6 (1985) (eyes and corneas); KY. REV. STAT. ANN. § 311.187 (Michie Supp. 1988) (corneas); MD. EST. & TRUSTS CODE ANN. § 4-509.1 (Supp. 1989) (corneas); MICH. COMP. LAWS ANN. §333.10202 (1989) (corneas); Mo. ANN STAT. § 58.770 (Vernon 1989) (pituitary); N.C. GEN. STAT. § 130A-391 (1989) (corneas); OHIO REV. CODE ANN. § 2108.60 (Baldwin 1987) (corneas); OKLA. STAT. ANN. tit. 63, § 944.1 (West Supp. 1990) (pituitary); TENN. CODE ANN. § 68-30-204 (Supp. 1989) (corneas); TEX. HEALTH & SAFETY CODE ANN. § 693.012 (Vernon pamphlet 1990) (corneas); W. VA. CODE § 16-19-3a(1985) (corneas).

In 1993, a Pennsylvania proposed presumed consent amendment met with vehement opposition in the media and among public officials. See Black, Rick, Pennsylvania Organ Donor Bill: If You Don't Say No, It means Yes, L.A. TIMES, Mar. 31, 1993Google Scholar, at A5. The Pennsylvania Legislature passed a comprehensive Organ Donation Act in December 1994 which provides a weaker variant of presumed consent permitting the removal of corneal tissue for transplantation purposes where there is no notice of any objection from the decedent or family. See 20 PA. CONS. STAT. § 8641 (1994); Daniel Crothers & Catherine G. Uglem, A Proposal For A Presumed Consent Organ Donation Policy In North Dakota, 68 N.D. L. REV. 637 (1992).

186 Crespi, supra note 7, at 16-17 and accompanying notes.

187 National Organ Transplant Act of 1984, Pub. L. No. 98-507,98 Stat. 2339 (codified as amended at 42 U.S.C. §§ 273-74 (1988)).

188 A task force on organ transplantation was established by NOTA to “conduct comprehensive examinations of the medical, legal, ethical, economic, and social issues presented by human organ procurement and transplantation.” Id. § 101(b)(1)(A). These examinations were presented in a comprehensive report of recommendations which have had significant impact on the organ donation industry. See WILLIAMS, supra note 166, at 17-26 (presenting and critiquing the task force recommendations in detail).

189 National Organ Transplant Act of 1984, Pub. L. No. 98-507, tit. II, § 101(b)(1)(A); see also U.S. DEPT. OF HEALTH AND HUMAN SERVICES, TASK FORCE ON ORGAN TRANSPLANTATION, ORGAN TRANSPLANTATION: ISSUES AND RECOMMENDATIONS (1986).

190 National Organ Transplant Act of 1984, Pub. L. No. 98-507, tit. II, § 317.

191 Id. § 372.

192 Id. § 301(a) reads in relevant part, “[i]t 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.” Id. Persons found guilty of violating this provision would be subject to a fine of $50,000 or less or as much as five years imprisonment or both upon conviction. Id. § 301(b). The provision defines “human organ” as “the human kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin, and any other human organ specified by the Secretary of Health and Human Services by regulation.” Id. § 301(c)(1).

193 Id. at tit. IV, § 401; see also Anderson, supra note 102, at 477.

194 See generally. TASK FORCE ON ORGAN TRANSPLANTATION, ORGAN TRANSPLANTATION: ISSUES AND RECOMMENDATIONS (1986).

195 WILLIAMS, supra note 166, at 22-23 (the task force recommends that organ allocation standards be based solely upon objective medical criteria).

196 WILLIAMS, supra note 166, at 19.

197 Id. at 23-24; but see Living Organ Donor Act, 18 IOWA J. CORP. L. 583 (1993) (comprehensive proposals for safeguards to be instituted in an operational live donor organ program).

198 WILLIAMS, , supra note 166, at 21-22; see also Cadaveric Organ Donor Act, 18 IOWA J. CORP. L. 543 (1993)Google Scholar (proposal for a comprehensive, national registry for the donation of cadaver organs through a system of mandated choice, requiring all persons who apply for social security cards, drivers licenses, etc., to designate their organ donation desire).

199 The members of UNOS include transplant centers or other independent organ procurement organi zations, referred to as OPOs. The National Organ Transplant Act of 1984, Pub. L. No. 98-507, tit. II, § 317(b). These members all voluntarily participate in the organ sharing process which places a potential donee on an organ-specific UNOS waiting list. The patients are prioritized and ranked on this national list according to set allocation standards established by UNOS policies. The allocation policies vary depending on the organ requested, a patient's time on the list, the tissue matching of the donee and donor, and other medically related criteria and geographic considerations. See generally. United Network For Organ Sharing, Articles of Incorporation, June 30, 1993. These factors are geared towards ensuring the equitable transplantation of donor organs.

200 In response to this concern, Congress enacted the End Stage Renal Disease (ESRD) program in 1972, which extended federal Medicaid coverage over the costs of kidney transplants and renal dialysis treatment, making them available to all patients regardless of their financial limitations. See Social Security Amendments of 1972, Pub. L. No. 92-603, 86 Stat. 1329 (1972). The ESRD program has cost the federal government billions of dollars. It is this ever-rising cost which has caused many to oppose the extension of such coverage to other organ transplants. NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, supra note 2, at 6-7.

201 See Fragner v. American Community Mut. Ins. Co., 502 N.W.2d 350 (Mich. Ct. App. 1993).

202 InSalgado v. Kirschner, 878 P.2d 659 (Ariz. 1994), the Supreme Court of Arizona was asked to determine whether the state of Arizona could deny an eligible Medicaid recipient life-sustaining transplant coverage under Medicaid due to the majority age of the recipient. The forty-one-year-old patient's request for coverage was denied pursuant to an Arizona statute which limited “[m]edically necessary kidney, cornea and bone transplants and immunosuppressant medications ...” to “eligible persons under the age of twenty-one “ Id. at 2 (citing ARIZ REV. STAT. ANN. § 36-2907(A)(l 1) (1994)). The case was brought against Arizona as a violation of the patient's equal protection guarantees under the Arizona and federal constitutions and as a violation of the federal Medicaid law. See 42 U.S.C. §§ 1396d(a) (1)-(5), (17), (21). The court recognized the existing legal uncertainty of whether federal law required the funding of medically necessary treatments such as organ transplants for Medicaid patients, citing Ellis v. Patterson, 859 F.2d 52, 55 (8th Cir. 1988); Dexter v. Kirschner, 972 F.2d 1113, 1117 (9th Cir. 1992); but see Pereira v. Kozlowski, 996 F.2d 723, 725 (4th Cir. 1993); Pittman v. Secretary, 998 F.2d 887, 891 (11th Cir. 1993). The Arizona Supreme Court concluded that Arizona's voluntary participation in the federal Med- icaid program required it to comply with applicable federal law which required Medicaid states which have decided to cover transplants to offer such services to “all patients who can be treated effectively by the same organ transplant procedure.” Salgado v. Kirschner, 878 P.2d 659 (Ariz. 1994). 203 Silver, supra note 6, at 695.

204 Id.

205 Id.

206 UNIF. ANATOMICAL GIFT ACT, 8A U.L.A. 3 (West Supp. 1991).

207 See, e.g.. OHIO REV. CODE ANN. § 2108.60 (Anderson 1994), which provides:

(B) A county coroner who performs an autopsy, pursuant to § 313.13 of the Revised Code, may remove one or both corneas of the decedent, or a coroner may authorize a deputy coroner, physician or surgeon licensed pursuant to § 4731.14 of the Revised Code, embalmer authorized under § 2108.071 of the Revised Code to enucleate eyes, or eye technician to remove one or both corneas of a decedent whose body is the subject of an autopsy performed pursuant to § 313.13 of the Revised Code, if all of the following apply:...

(4) The coroner, at the time he removes or authorizes the removal of the corneas, has no knowledge of an objection to the removal by any of the following:

  • (a) The decedent, as evidenced in a written document executed during his lifetime;

  • (b) The decedent's spouse;...

  • (c) Any person who acts in good faith under this section and without knowledge of an objection, as described in division (B)(4) of this section, to the removal of corneas is not liable in any civil or criminal action based on the removal.

208 Silver, supra note 6.

209 Id. at 706; but see Schwindt & Vining, supra note 1, at 497.

210 Renihan v. Wright, 25 N.E. 822 (Ind. 1890); see also Silver, supra note 6, at 688-90.

211 Silver, supra note 6, at 740.

212 Id. at 728.

213 Id. at 709-10.

214 Id. at 715 and accompanying notes, citing Note, Compulsory Removal of Cadaver Organs, 69 COLUM. L. REV. 692,697 (1969).

215 Id. at 717-23.

216 Compulsory Removal of Cadaver Organs, supra note 6, at 697.

217 Childress, supra note 66, at 100-01 (the author notes that one of the main arguments for a commercial market in human organs is the claim that such a system will protect and respect the organ provider's freedom of choice); see also The Sale of Human Body Parts, supra note 38, at 1217.

218 Schwindt & Vining, supra note 1, at 487; Hansmann, Henry, The Economics and Ethics of Markets for Human Organs, 14 J. HEALTH POL. POL'Y & L. 57 (1989).Google ScholarPubMed

219 VA. CODE ANN. tit. 32.1, ch. 8, art. 2, § 32.1 -289.1 (Michie 1993) (sale of body parts prohibited). Other states have also enacted such legislation to prevent the brokerage of human organs.

220 See TASK FORCE ON ORGAN TRANSPLANTATION, supra note 189, at 24. The recommendations encouraged individual states to prohibit the sale of cadaver and living humans organs so as to supplement the federal prohibition on interstate sales of organs; see, e.g.,CAL. PENAL CODE § 367f (Deering 1988); FLA. STAT. ch. 873-01 (Supp. 1994); GA. CODE ANN. § 16-12-160 (Michie 1992); ILL. REV. STAT. ch. 720, para. 5/12-20 (1993); KY. REV. STATE. ANN. § 311.171 (Michie/Bobbs-Merrill Supp. 1992); KY. REV. STAT. ANN. § 311.241 (Michie/Bobbs Merrill 1993); LA. REV. STAT. ANN. § 14:101.1 (West Supp. 1994); MONT. CODE ANN. § 72-17-302 (1993); NEV. REV. STAT. ANN. § 201.460 (Michie 1992); N.Y. PUB. HEALTH LAW § 4307 (Consol. 1985); OHIO REV. CODE ANN. § 2108.12 (Baldwin 1994); PA. STAT. ANN. tit. 35, § 10025 (1994); S.D. CODIFIED LAWS ANN. § 34-26-44 (1994); TEX. PENAL CODE ANN. § 48.02 (West 1994); VA. CODE ANN. § 32.1-289.1 (Michie 1992); W. VA. CODE § 16-19-7a (1991); Wis. STAT. § 146.345 (1989).

221 FLA. STAT. § 873.01(3)(a) (1993). A few states have explicitly included prohibitions against the sale of human fetuses, fetal tissue or organs and embryos. See, e.g., O.C.G.A. 2 16-12-160(a) 1993; see alsoNorth Dakota's fetal tissue research and experimentation statute, N.D. CENT. CODE § 14-02.2-02(4) (Michie 1991), which states that “[a] person may not knowingly sell, transfer, distribute, give away, accept, use, or attempt to use any fetus or fetal organs or tissue for a use that is in violation of this section. For purposes of this section, the word ‘fetus’ includes also an embryo or neonate.” Id.; MICH. COMP. LAWS § 333.2690 (1992), states in relevant part, “a person shall not knowingly sell, transfer, distribute, or give away an embryo, fetus, or neonate . . . .” A Florida statue prohibits advertisements offering to sell or purchase the human embryo in exchange for valuable consideration. FLA. STAT. § 63-212 (1993). A number of states also prohibit the sale of aborted human fetuses born dead. One statute provides that” no person shall buy, sell, give, exchange, or barter or offer to buy, sell, give, or exchange, or barter any fetus born dead as a result of a legal abortion or any organ, member, or tissue of fetal material resulting from a legal abortion.” ARK. CODE ANN. § 20-17-802 (Michie 1993)\see also 720ILCS 510/6 (1994); KY. REV. STAT. ANN. § 436-026 (Michie 1985 & Supp. 1994); LA. REV. STAT. ANN. § 9:122 (West 1992); ME. REV. STAT. ANN. tit. 22, § 1593 (West 1993): MASS. GEN. LAWS ANN. ch. 112, § 12J (West 1994); MICH. COMP. LAWS § 333.2689 (1992); Mo. Rev. Stat. § 188.036 (1993); N.M. STAT. ANN. § 24-9A-5 (Michie 1993); N.D. CENT. CODE § 14-02.2-02(1993); OHIO REV. CODE ANN. §2919.14(Anderson 1994); OKL. STAT. tit. 63, § 1-735 (1994); 18 PA. CONS. STAT. § 3216 (1993); R.I. GEN. LAWS § 11-54-1 (1993); TENN. CODE ANN. § 39-15-208 (1993); WYO. STAT. § 35-6-115 (1993). The Georgia statute represents a rather expansive coverage of prohibited commercial activity in this area. It provides, in relevant part, that “[i]t shall be unlawful... for any person, firm, or corporation to buy or sell, to offer to buy or sell, or to assist another in buying or selling or offering to buy or sell a human body or any part of a human body or buy or sell a human fetus or any part thereof.” O.C.G.A. § 16-12-160(a) (1993).

222 PA. STAT. ANN. tit. 35, § 10025 (1993); see IOWA CODE § 142A.8 (1993), Title IV, Subtitle 2, Chapter 142A, UNIFORM ANATOMICAL GIFT ACT, IOWA CODE § 142A.8 (1989); KY. REV. STAT. ANN. § 139.125 (Michie 1991); Maine REV. STAT., Title XI, Chapter 139; 11 M.R.S. § 2-108 (1993); MICH. COMP. LAWS, MCL § 333.9121 (1992), Chapter 333, Article 9, Part 91; Mo. REV. STAT., R.S. MO. § 431.069 (1992), Title XXVIII, Chapter 431; MONT. CODE ANN., Title 50, Chapter 33, Part 1, 50-33-102; NEV. REV. STAT. ANN. § 460.010 (1993), Title 40, Chapter 460, § 460.010; ORC ANN. § 2108.11 (Baldwin), Title XXI, Chapter 2108; R.I. GEN. LAWS § 23-17-30 (1993), Title 23, Chapter 17; S.D. CODIFIED LAWS § 57A-2- 315.1 (1993), Title 57A, U.C.C, Chapter 57A-2, Part 3, South Dakota Codified Laws; VT. STAT. ANN., 9A V.S.A. § 2-108 (1993), Title 9A, Uniform Commercial Code, Article 2, Part 1; W. VA. CODE § 20-2-11 1993, Chapter 16, Article 23, West Virginia Code Annotated; see also Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 729 (1954).

223 See, e.g., O.C.G.A. § 16-12-160(b)(l-6) (1993).

224 42 U.S.C.A. § 274(e) (West 1995).

225 Id. The federal law, as amended in 1988, subsec. (c)(1) of Pub. L. No. 100-607 defines “human organ” as “the human (including fetal) kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and any other human organ (or any subpart thereof, including that derived from a fetus) specified by the Secretary of Health and Human Services by regulation.” Id. at § 274e.(c)(1).

226 42 U.S.C.A. §274e(b).

227 Id. at (c)(2).

228 See Hedges, Chris, Egypt's Desperate Trade: Body Parts for Sale, N.Y. TIMES, September 23, 1991Google Scholar, at A1; see also Blair & Kaserman, supra note 1, at 411 -12 and accompanying notes (citing Kidney Sales Spur Attempt in Britain to Ban the Practice, WALL ST. J., July 10, 1989, at A5 (an Australian woman's attempt to sell one of her kidneys) and Kidneys for Sale: The Issue is Tissue, NEWSWEEK, Dec. 5, 1988, at 38 (a Germany organ brokerage firm solicits kidneys from living donors)). The authors also speak of attempts to sell kidneys in the United States. Id.

229 Blair & Kaserman, supra note 1, at 411-12 (undocumented reports accounted in an Indian publication of black market organ schemes that sold Brazilian and Honduran children to organ traffickers to breed them in organ farms in other countries).

230 This resolution provided, in relevant part,

... [Concerned by the commercial trafficking in the organs of healthy donors, which exploits human distress and puts at increased risk the health of the donors;

Aware that commercial arrangements for organ transplants are nevertheless being undertaken and that to date there has been little success in preventing trafficking in human organs; Anxious to prevent the exploitation of human distress, particularly in children and other vulnerable groups, and to further the recognition of the ethical principles which condemn the buy- ing and selling of organs for purposes of transplantation;

  1. 1.

    1. CALLS UPON Member States to take appropriate measures to prevent the purchase and sale of human organs for transplantation;

  2. 2.

    2. RECOMMENDS that Member States introduce legislation to prohibit trafficking in organs where this cannot effectively be prevented by other measures;

  3. 3.

    3. URGES Member States, in close cooperation with professional health organizations and supervising health authorities, to discourage all practices which facilitate commercial trafficking in organs ....

WORLD HEALTH ORGANIZATION HSUMAN ORGAN TRANSPLANTATION: A REPORT ON DEVELOPMENTS UNDER THE AUSPICES OF WHO 11-12 (1987-91) (a printing of Resolution WHA42.5). This resolution requested that Member States, approximately some 165 countries, report on any such action taken. This publication discusses the reports provided by participating Member States.

231 Id. at 5, Resolution WHA 44.25, May 13, 1991.

232 Id. at 7-11.

233 See also The Sale of Human Body Parts, supra note 38, at 1218-19. The author identifies five different approaches to a commercial organ market: “(1) A present contract for the right to the body ... upon the death of the seller, with remuneration to be paid upon death to named beneficiaries ... (2) A present contract for the right to the body ... upon the death of the seller, with a definite remuneration guaranteed at death to a named beneficiary... (3) A present contract for the rights to the body... upon the death of the seller, with payment to be made at the time of contracting... (4) A present transfer of non-vital organs and tissues from a living seller for present remuneration (5) A sale by the next of kin of the decedent's body parts after the decedent's death.” Id.

234 Cohen,supra note 12, at 33 (author suggests that the payment for organs which are actually fit to use at death is a better alternative to a system which would allow fixed payments to be made at the time of contracting or after death regardless of the fitness and use of the organs purchased).

235 VA. CODE ANN. tit. 32.1, ch. 8, art. 2, § 32.1-289.1 (Michie 1993) (sale of body parts prohibited).

236 Blair & Kaserman, supra note 1, at 421 (“[p]otential organ suppliers could be offered some fixed payment (either cash or in the form of a tax credit) in exchange for entering a binding contract that authorizes removal of one or more of their organs at death.”).

237 See Guttman, supra note 1, at 460-61.

238 Blair & Kaserman, supra note 1, at 431.

239 Hansmann, supra note 218, at 62-63. Lifetime binding contracts may create unreasonable limitations upon the organ providers lifestyle and activities.

240 Schwindt & Vining, supra note 1, at 489.

241 See generally Crespi, supra note 7.

242 Id. at 6.

243 Id. at 6-7.

244 Blair & Kaserman, supra note 1, at 431 -32.

245 See supra notes 181, 182, 186 and accompanying text.

246 Id.

247 Id.

248 Crespi, supra note 7, at 46.

249 Hansmann, supra note 218, at 62; Crespi, supra note 7, at 28.

250 Brams, Marvin, Transplantable Human Organs: Should Their Sale be Authorized by State Statutes?, 3 AM. J.L. & MED. 183, 188 (1977-78Google Scholar); Crespi, supra note 7, at 47; Cohen, supra note 12, at 40-41.

251 Crespi, supra note 7, at 47.

252 Cohen, supra note 12, at 40. 253 Id.

254 Council on Ethical and Judicial Affairs, Financial Incentives for Organ Procurement: Ethical Aspects of Future Contracts for Cadaveric Donors, 5 CODE MED. ETHICS REPS. 208, Rep. 54. at 216 (1994).

255 Hansmann, supra note 218, at 62.

256 See supra notes 181-82 and accompanying text.

257 Hansmann, supra note 218, at 62; Crespi, supra note 7, at 46.

258 Blair & Kaserman, supra note 1, at 421 n.73.

259 Hansmann, supra note 218, at 66; Crespi, supra note 7, at 48 (strongly recommending that market forces alone determine prices of organs at least initially until there is a better sense of whether governmental intervention will be needed).

260 Hansmann, supra note 218, at 62 (recognizing the Schwindt and Vining proposals which suggests that the government be the sole purchaser of human organs); see also Schwindt & Vining, supra note 1, at 489. The Schwindt & Vining proposal is

... that the federal government establish an organized public purchase market with forward deliver. A government buyer (broker) would buy contingent-forward contracts for the delivery of organs from individual sellers. The contract would be activated by the death of the seller. The government would be the only buyer in the market and would pay prices depending on its inventory requirements. Thus prices would vary over time as the government attempted to equilibrate supply and demand.

Id. See also infra at notes 491-505 and accompanying text.

261 Hansmann, supra note 218, at 66; The Sale of Human Body Parts, supra note 38, at 1227. Hansmann proposes that private insurance companies act as the intermediaries who would purchase organs to resell them to the government to be redistributed through the current organ donation system. This approach resembles a form of the hybrid altruistic-commercial market system discussed below.

262 Schwindt & Vining, supra note 1, at 495.

263 Id.; see also Blair & Kaserman, supra note 1, at 421.

264 Cohen, supra note 12, at 2; see also Cohen, Lloyd R., A Futures Market in Cadaveric Organs: Would It Work?, TRANSPLANTATION PROCEEDINGS Feb. 1993, at 60-61.Google ScholarPubMed

265 See Council on Ethical and Judicial Affairs, Financial Incentives for Organ Procurement: Ethical Aspects of Future Contracts for Cadaveric Donors, 5 CODE MED. ETHICS REPS. 208, Rep. 54, at 214 (1994).Google Scholar

266 But see Hansmann, supra note 218, at 62.

267 Id. at 71-72.

268 Blair & Kaserman, supra note 1, at 421 (“we do not advocate a market for organs from living donors”); Brams, supra note 250, at 193 (“perhaps the market system should be restricted to the selling of organs to be removed only upon one's death”); Crespi, supra note 7, at 46 (“[m]y proposal flatly prohibits the sale of organs to be removed while the bearer is still alive”); Council on Ethical and Judiciary Affairs of the American Bar Association, Report 54, supra note 265, at 216 (strongly recommending that “no financial incentives should be allowed for organs procured from living donors”); but see Hansmann, supra note 218, at 74 (“it is not at all obvious that concern for the poor and improvident is a sufficient, or perhaps even a substantial, reason to reject purchases from living donors”).

269 Brams, supra note 250, at 190.

270 Hansmann, supra note 218, at 72.

271 Id.; see also Brams, supra note 250, at 192-93 (questioning whether society should equate the decision to sell one's organ for monetary consideration as raising any different concerns of forced choice than any other important monetary decisions).

272 Hansmann, supra note 218, at 73.

273 See Brams, supra note 250, at 193.

274 Living Organ Donor Act, supra note 197, at 589.

275 Id. at 590.

276 Id. at 591.

277 Id. at 592.

278 See Compassion in Dying v. Washington, 850 F. Supp. 1454 (W.D. Wash. 1994). The federal district court addressed the issue of

whether a constitutional distinction can be drawn between refusal or withdrawal of medical treatment which results in death, and the situation involving competent, terminally ill individuals who wish to hasten death by self-administering drugs prescribed by a physician. In other words, is there a difference for purposes of unwanted treatment which will result in death and committing physician-assisted suicide in the final stage of life?

Id. The court was asked to determine this issue as it applied to “. .. mentally competent, terminally ill adults, who knowingly and voluntarily choose to hasten their death,” in its consideration of the constitutionality of a Washington State criminal statute which prohibited physician-assisted suicide. Finding that no distinction should be drawn between the two approaches, the court held that the statute was unconstitutional due to its “... undue burden on the exercise of a protected Fourteenth Amendment liberty interest by terminally ill, mentally competent adults acting knowingly and voluntarily, without undue influence from third parties, who wish to commit physician-assisted suicide.” The court carried this analysis even further when it held that the statute violated the equal protection clause of the Fourteenth Amendment since the refusal or withdrawal of life sustaining support systems were allowed for certain terminally ill patients, but physician-assisted suicide would be prohibited to others. But see Compassion In Dying v. Washington, _F.3d_, 1995 WL 94679 (9th Cir. 1995) (lower court's decision overturned). The appellate court emphasized that,

[i]n the two hundred and five years of our existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction. Unless the federal judiciary is to be a floating constitutional convention, a federal court should not invent a constitutional right unknown to the past and antithetical to the defense of human life that has been a chief responsibility of our constitutional government.

Id. (1995 U.S. App. LEXIS 4589, *13). See also The Oregon Death With Dignity Act, 1995 Or. Laws Ch. 3 (I.M. No. 16), which legalized the provision of lethal prescriptions by physicians to terminally ill patients. But see Lee v. State, 869 F. Supp. 1491 (D. Or. 1994) (granting a preliminary injunction preventing the operation of Measure 16 until further judicial determination on important constitutional issues is made).

279 Hansmann, supra note 218, at 73-74.

280 Id. at 74; see also infra Part IV.

281 Id.

282 Brams, supra note 250, at 186-87.

283 Id.

284 Id. at 187.

285 Id. at 190; Chapman, supra note 36, at 405. The student author identifies three reasons why a mixed market system is superior,

(1)... because more organs will be available to help needy donees; (2) relinquishment of an organ may be motivated by both a desire for compensation and altruism; and (3) society should not view the sale of human organs any differently than the sale of other necessary commodities, such as food, shelter, and medication.

Id.

286 Chapman, supra note 36, at 404.

287 Id.

288 Brams, supra note 250, at 191.

289 Id. at 192.

290 Chapman, supra note 36, at 411 -16 (the student author suggests that the sale of human organs, unlike the sale of human blood, be considered a sale instead of a service so as to warrant application of standard Section 2, U.C.C. provisions such as the express and implied warranties of goods).

291 The two American cases which are cited as starting the era of the informed consent doctrine are: Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 317 P.2d 170 (Cal. Dist. Ct. App. 1957) and Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960). The Natanson court explained the doctrine as requiring physicians “to disclose and explain to the patient, in language as simple as necessary, the nature of the ailment, the nature of the proposed treatment, the probability of success or of alternatives, and perhaps the risks of unfortunate results and unforeseen conditions within the body.” Id.; see also Katz, Jay, Informed Consent—Must It Remain a Fairy Tale?, 10 J. CONTEMP. HEALTH L. & POL. 69 (1993)Google Scholar (a very comprehensive overview of the historical development of the informed consent doctrine).

292 Id.

293 Szczygiel, Anthony, Beyond Informed Consent, 21 OHIO N.U. L. REV. 171, 191 (1994).Google ScholarPubMed

294 Katz, supra note 291, at 77-79.

295 In Colton v. New York Hosp., a kidney donor who, after a successful kidney transplant to his brother, immediately “went into shock with acute renal failure... a life-threatening, non-specific infection with a perilously high fever... and later found that he was deaf,” sued the attending hospital for negligent advice and treatment. 414 N.Y.S.2d 866, 871 (N.Y. Sup. Ct. 1979). The court recognized that “a kidney transplant in 1972, was concededly an experimental operation, having the obvious risks of tissue rejection, shock, and possibly death—indeed, even if it were performed according to the highest standard of the state of the art as then known.” Id. at 875.

296 The plaintiff contended that he was fraudulently induced to execute a three-page “Request for and Consent to Kidney Transplant” document on the eve of the transplant—an emotional and stressful time. The surgeon had indicated only that the plaintiff's signature was required before the operation could take place. The plaintiff did not read the document prior to signing it, nor did he remember the meeting ever being held. Id. at 870.

297 See Cobbs v. Grant, 502 P.2d 1, 9 (Cal. 1972).

298 The court found that the claim that the surgeon had failed to obtain the plaintiff's informed con sent could not prevail because, “over a ten year span, [plaintiff was] advised by numerous medical specialists who explained the mechanics of the procedure and its risks .... The agreement itself warned of dangers (e.g., death, physical incapacity and illness), and was identical in wording to that signed once before by [plaintift].” Id. at 876. The court concluded that it had been the “parties' manifest intent that the operation take place.” Id.

299 Cobbs, 502 P.2d at 11.

300 Id.

301 Szczygiel, supra note 293, at 196 (noting that “more complex analysis and factual predicate is required when the legal issue changes from a lack of consent to a consent that is based on an inadequate level of disclosure of the risks and alternatives of [a] procedure”).

302 Id. at 190.

303 Id.

304 Id. at 207-08.

305 See Sam Dillion, Latin Poor Sell Their Body Organs—20 Arrested By Uruguay In Crackdown, MIAMI HERALD, Dec. 2,1991, at 11A; Chris Hedges, Egypt's Desperate Trade: Body Parts for Sale, N.Y. TIMES, Sept. 23, 1991 at Al.

306 Szczygiel, supra note 293, at 208 (identifying procedures that are protected by such mandatory disclosure statutes including selective abortion, mastectomy, chelation therapy, artificial insemination, hysterectomy, sterilization, and electro-shock treatment).

307 112 S. Ct. 2791 (1992); see also Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (holding informed consent provisions constitutional); but cf. Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416 (1983) (finding informed consent requirements unconstitutional).

308 112 S. Ct. at 2822-23.

309 Id. at 2823-24.

310 See Cohen, supra note 12, at 26.

311 See Moujan M. Walkow, Case Comment, Legal Competency Not Determinative of Person's Ability to Consent to Medical Treatment—Miller v. Rhode Island Hospital, 625 A.2d 778 (R.I. 1993), 28 SUFFOLK U. L. REV. 271,277 (1994) (citing Friedman, Paul R., Legal Regulation of Applied Behavior Analysis in Mental Institutions and Prisons, 17 ARIZ. L. REV. 39, 76 (1975)Google ScholarPubMed (recognizing that medical and legal competency may require that a rational basis be provided for the patient's decision)); see also Katz, supra note 291, at 87 (recognizing that “decisions by patients, like those of all human beings, are influenced by rational and irrational thoughts, rational and irrational emotions and rational and irrational judgments derived from the world of knowledge, experience and beliefs in which they have lived their lives”).

312 Planned Parenthood of Southeastern Penn. v. Casey, 112 S. Ct. 2791, 2823-24 (1992).

313 Id.

314 Id.

315 Arabian, supra note 97, at 267 (recognizing that, “of those interests guiding the doctrine of informed consent, the principle of personal autonomy must be considered preeminent”). Another, more practical concern is the potential organ donee's interest in having the transplant done in a timely fashion.

316 112 S. Ct. at 2826.

317 Death With Dignity Act, 1995 Or. Laws Ch. 3 (I.M. No. 16); but see Lee v. State, 869 F. Supp. 1491 (D. Or. 1994). The court in Lee issued a preliminary injunction in order to thoroughly consider the constitutionality of Measure 16. As the court noted,

[a]lthough the status quo will be regarded as a hardship by some terminally ill patients who want the “option” of physician assisted suicide to be immediately available, the public interest in protecting vulnerable citizens from the irreparable harm of death is greater. Surely, the first assisted suicide law in this country deserves a considered, thoughtful constitutional analysis.

Lee, 869 F. Supp. at 1502.

318 A qualified Oregon resident “who has voluntarily expressed his or her wish to die[] may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner.” Death With Dignity Act, 1995 Or. Laws Ch. 3 (I.M. No. 16) at §2.01.

319 Id. § 3.02. The Measure defines an informed decision as a decision by a qualified patient, to request and obtain a prescription to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of: (a) his or her medical diagnosis; (b) his or her prognosis; (c) the potential risks associated with taking the medication to be prescribed; (d) the probable result of taking the medication to be prescribed; (e) the feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.

Id.§§ 1.01(7)(a)-(e).

320 Id. § 3.03.

321 The Measure also requires that a waiting period of “no less than fifteen (15) days shall elapse between the patient's initial oral request and the writing of a prescription” and that “[n]o less than 48 hours shall elapse between the patient's written request and the writing of a prescription.” Id. § 3.08.

322 See Lee, 896 F. Supp. at 1491.

323 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990) (holding that a state's requirement of clear and convincing evidence in the determination of whether to terminate life support systems for incompetents was a constitutionally permissible standard even though it might favor the preservation of life over death); Planned Parenthood of Penn. v. Casey, 112 S. Ct. 2791 (1992) (finding mandatory disclosure and informed consent provisions of the Pennsylvania Abortion Control Act permissible even if the state's motive was to prefer childbirth over death).

324 This healthy determination examination would protect physically incompetent organ providers from becoming prey on the open market. The sale of organs of incompetents who suffer from anencephaly or who are in vegetative, comatose conditions would be prohibited under this requirement. Organ donations by such incompetents would be permitted only after there is a legal determination of the patient's death.

325 Cobb v. Grant, 502 P.2d 1, 10 (1972).

326 Id.

327 Arabian, supra note 97, at 289-96.

328 Id.

329 Id. at 291.

330 Id. at 293.

331 Id. at 291-92.

332 Id. See also, e.g., Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990); In re John Doe, 104 A.D.2d 200 (N.Y. App. Div. 1984); Curran v. Bosze, 566 N.E.2d 1319 (111. 1990); In re Guardianship of Richard Pescinski, 226 N.W.2d 180 (1975).

333 See sources cited supra note 332.

334 Arabian, supra note 97, at 295-96.

335 Id.

336 See Cruzan, 497 U.S. at 261; Curran, 566 N.E.2d at 1319.

337 In re John Doe, 104 A.D.2d at 201.

338 Arabian, supra note 97, at 290-93.

339 Id.

340 Id.

341 In re John Doe, 104 A.D.2d at 200 (“The court under its parens patriae authority is empowered to protect the person and property of an individual who is not capable of making decisions in his own best interests. We conclude that the source of any power that a court may have to authorize an incompetent's participation in a surgical procedure to save the life of another is confined to its parens patriae power; thus such authorization may only be given if it is in the incompetent's best interests ....”).

342 Id.; see also In re Terwilliger, 450 A.2d 1376, 1381 (Pa. Super 1982). The court in Terwilliger, when considering a petition to sterilize an incompetent, noted that the “doctrine of inherent parens patriae jurisdiction over incompetents has been extended to decisions involving irrevocable consequences for the incompetent individual.” Id.

343 Griner, Robert W., Note, Live Organ Donations Between Siblings and the Best Interest Standard: Time for Stricter Judicial Intervention, 10 GA. ST. U. L. REV. 589 (1984).Google Scholar

344 Id.

345 Id. at 595 (citing Curran v. Bosze, 566 N.E.2d 1319, 1343 (111. 1990); In re John Doe, 104 A.D.2d 200 (N.Y. App. Div. 1984) (determining that it would be in the incompetent's best interest to donate bone marrow to save the life of a brother who was the only family member involved with the incompetent's treatment and placement decisions).

346 445 S.W.2d 145 (Ky. 1969); see also Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979).

347 The son's I.Q. was at the level of a six year old. Strunk, 445 S.W.2d at 146.

348 Id.

349 Griner, supra note 343, at 591-92.

350 Id. (citing Baron, Charles H. et al., Live Organ and Tissue Transplants from Minor Donors in Massachusetts, 55 B.U. L. REV. 159, 171 (1975)).Google ScholarPubMed

351 Id.

352 Little v. Little, 576 S.W.2d 493,496,498 (Tex. Civ. App. 1979).

353 Id.

354 See generally, Griner, supra note 343, at 590-91; see also Hart v. Brown, 289 A.2d 386 (Conn. Super. Ct. 1972) (substituted judgment test applied in approving kidney transplant from a 7 year old to her twin sister).

355 Griner, supra note 343, at 590-91.

356 Id. at 596-97 and accompanying notes; see also Little, 576 S.W.2d at 493; In re Guardianship of Pescinski, 226 N.W.2d 180 (1975). But see Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969); Hart, 289 A.2d at 386.

357 Id.; see also Curran v. Bosze, 566 N.E.2d 1319, 1326 (111. 1990).

358 Id.; see also Robertson, John A., Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 COLUM. L. REV. 48 (1976).CrossRefGoogle ScholarPubMed

359 Curran, 566 N.E.2d at 1326.

360 Id. at 1326.

361 Id.

362 For example, in Hart v. Brown, 289 A.2d 386 (Conn. Super. Ct. 1972), the court determined that a minor twin organ donor's life with one kidney would not create substantial risks or a diminished lifestyle, even though it recognized that the child would be restricted from participating in violent contact sports. Id. at 388-89. The court also failed to consider the probability whether the donor twin would later suffer renal failure. The court placed some limited weight on evidence that a successful kidney transplant “would be of immense benefit to the donor in that the donor would be better off in a family that was happy than in a family that was distressed and in that it would be a very great loss to the donor if the donee were to die from her illness.” Id. at 389.

363 Id. at 388.

364 See In re Guardianship of Pescinski, 226 N.W.2d. 180 (Wis. 1975) The court in Pescinski refused to use the doctrine of substituted judgment because the doctrine did not appropriately address the best interests of the proposed incompetent organ donor. As the court stated, “an incompetent particularly should have his own interests protected. Certainly no advantage should be taken of him. In the absence of real consent on his part, and in a situation where no benefit to him has been established, we fail to find any authority ... to approve this operation.” Id. at 182.

365 Id.; see also Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979) (rejecting the use of the substituted judgment test in cases seeking to donate the organs of an incompetent and adopting the best interests test as the better approach to such cases).

366 Curran v. Bosze, 566 N.E.2d 1319, 1343 (111. 1990).

367 Griner, supra note 343, at 591, 596-97.

368 Id. at 610.

369 Hansmann, supra note 218, at 62-63.

370 Crespi, supra note 7, at 46-48.

371 In re John Doe, 104 A.D.2d 200, 201 (N.Y. App. Div. 1984).

372 Griner, supra note 343, at 595. The requirement that a close relationship exist in permissible incompetent organ sales may in fact equate to a de facto prohibition against selling the organs of an incompetent. Most close family members would not need to pay for the incompetent's organs unless a mandatory, full commercial system was legalized. It is unlikely, however, that the right to donate one's organs would ever be restricted even in an open market. The goal is to protect incompetents from unwanted medical treatment and the potential abuses of a commercial market while preserving a minimal degree of their personal autonomy and equal protection. See Hansmann, supra note 218, at 78.

373 See Griner, supra note 343, at 610-12.

374 Id. Griner suggests that an exception may exist where the recipient is financially liable for the donor. Id. (citing John Dae, 104 A.D.2d at 201).

375 See Cohen, supra note 12, at 45-48 (discussing social worth in the context of allocating organs for transplantation purposes).

376 Id.

377 See Griner, supra note 343, at 603.

378 Some have argued, however, that the notion that an incompetent's psychological benefit can ever be best served by removing and transplanting an organ into a close relative is highly speculative, if not suspect. Id. at 596-97 (citing Koory, Robert A., Note, Equity-Transplants-Power of Court to Authorize Removal of Kidney from Mental Incompetent for Transplantation into Brother, 15 WAYNE L. REV. 1460, 1467 (1970)).Google Scholar

379 Id. at 602-03.

380 The use of medical criteria in the allocation of organs is permissible so long as all persons who participate in the market system are required to meet the same medical standards regardless of their ability to pay or their perceived social worth indicators.

381 See supra notes 141-50 and accompanying text.

382 Rottenberg, supra note 12, at 333; Schwindt & Vining, supra note 1, at 497; Childress, supra note 66, at 100; Cohen, supra note 12; Chapman, supra note 36.

383 Blair & Kaserman, supra note 1, at 423, 432; Schwindt & Vining, supra note 1 at 486-87 (suggesting that the absence of any property right in the human body directly impacts a donor's incentive to donate organs under the current altruistic system, thereby rendering the current system inadequate to meet the increasing demand for organs); Brams, supra note 250, at 185 (arguing that the shortage of organs under the current system is due to “the public's lack of knowledge about the donor program [and] an unwillingness by many persons to relinquish an organ voluntarily even when all the facts are known”); Cohen, supra note 12, at 12.

384 Blair & Kaserman, supra note 1, at 423,432.

385 See Guttmann, supra note 1; see also The Sale of Human Body Parts, supra note 38, at 1222. The student author notes three economic-related obstacles which may have to be overcome in a market system:

First, the supply of human body parts may be highly inelastic—people may not be willing to part with body parts at any price. Second, supply may not increase either because only those who would have donated will sell, or because those who would have donated will assume that the demand will be met by the sales of others and the number of sellers will not offset those lost donors. Third, the body parts that are sold may be medically less fit than those now donated. Id. at 1222 (the author does attempt to overcome these obstacles).

386 Childress, supra note 66, at 101.

387 The Sale of Human Body Parts, supra note 38 at 1217;Schwindt & Vining, supra note 1, at 490 (arguing that “there are no moral problems with providing monetary incentives to potential organ suppliers given that in the future delivery market they can rationally make a decision”).

388 Brams, supra note 250, at 190; Cohen, supra note 12, at 32-33; Chapman, supra note 36, at 403.

389 Childress, supra note 66, at 101.

390 See supra note 93 and accompanying text.

391 See supra note 93 and accompanying text.

392 Cohen, supra note 12, at 26-32.

393 Id.

394 Hansmann, supra note 218, at 72-74.

395 Council on Ethical and Judicial Affairs, supra note 265, at 208.

396 Id. at 213.

397 Id. at 214-15. 398 W. at 213.

399 Hansmann, supra note 218, at 74 (recommending that the price of organs “not be below a mandated minimum sum”).

400 Council on Ethical and Judicial Affairs, supra note 265, at 213.

401 20 PA. CONS. STAT. § 8622(b)(1) (West Supp. 1995). This provision attempts to escape current prohibition against organ sales by requiring all payments to be made directly to the service provider. In a futures market, such in-kind payments would be made directly to the organ provider's estate, or surviving family members.

402 Council on Ethical and Judicial Affairs, supra note 265, at 214.

403 Cohen, supra note 12, at 34-35.

404 Id. at 35 (suggesting “$5,000 for each major organ such as the liver, kidney, or heart, and substantially lesser amounts for other tissue such as blood, pituitary glands, skin, bone marrow, and corneas”).

405 Council on Ethical and Judicial Affairs, supra note 265, at 215.

406 Id.

407 See Blair & Kaserman, supra note 1, at 431-32; see also supra notes 244-47 and accompanying text.

408 See infra Part IV.B.3.

409 See infra Part IV.B.2b.

410 See supra text accompanying notes 334-40.

411 UNIF. ANATOMICAL GIFT ACT, 8a U.L.A. 3 (1987).

412 Id.

413 Hansmann, supra note 218, at 62-63.

414 See supra notes 239-40 and accompanying text.

415 Hansmann, supra note 218, at 62-63.

416 Crespi, supra note 7, at 6-7.

417 See supra text accompanying notes 268-71.

418 Crespi, supra note 7, at 35 (proposing that “all futures contracts ... be unilaterally terminated by the organ bearer at any time without liability”).

419 See, e.g., Alabama Uniform Anatomical Gift Act (Acts 1969, Ex. Sess., No. 164, p. 230 § 9). Section 22-19-46 of the Alabama Uniform Anatomical Gift Act provides:

[I]f the will, card or other document, or executed copy thereof, has been delivered to a specific donee, the donor may amend or revoke the gift by:

  1. (1)

    (1) The execution and delivery to the donee of a signed statement;

  2. (2)

    (2) An oral statement made in the presence of two persons and communicated to the donee;

  3. (3)

    (3) A statement during a terminal illness or injury addressed to an attending physician and communicated to the donee; or

    • (b) Any document of gift which has not been delivered to the donee may be revoked by the donor in the manner set out in subsection (a) of this section or by destruction, cancellation or mutilation of the document and all executed copies thereof.

    • (c) Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills or as provided in subsection (a) of this section.

Id.

420 See, e.g., N.H. REV. STAT. ANN. § 137-H:7 (Supp. 1991 and H.B. 1108, signed April 20, 1992). The New Hampshire living will statute provides:

[A] person who has validly executed a living will consistent with the provisions of RSA 137-H:3 and RSA 137-H:4 may revoke such document in the following manner:

  • (a) By burning, tearing or obliterating the same or causing the same to be done by some other person at his discretion and in his presence;

  • (b) By oral revocation in the presence of 2 or more witnesses, none of whom shall be the person's spouse or heir at law; or

  • (c) By written revocation, to be signed and dated in the presence of 2 or more witnesses, none of whom shall be the person's spouse or heir at law, expressing the intent to revoke.

    II. Revocation shall become effective upon communication to the attending physician who shall record in the patient's medical record the time and date when he received notification.

Id.

421 Oregon Death With Dignity Act, 1995 Or. Laws Ch. 3, § 3.07 (I.M. No. 16) (1995).

422 Sherman, Jeffrey D., Mercy Killing and the Right to Inherit, 61 U. CIN. L. REV. 803, 847 (1993)Google ScholarPubMed.

423 See Strachan v. John F. Kennedy Memorial Hospital, 507 A.2d 718 (N.J. App. Div. 1986) (determining whether a twenty-year-old suicide victim's organs could be used for organ transplantation). See also Cohen, supra note 12, at 40.

424 Cohen, supra note 12, at 40.

425 See Kent S. Berk, Mercy Killing and the Slayer Rule: Should the Legislatures Change Something?, 67 TUL. L. REV. 485 (1992); Sherman, supra note 423, at 803 (1993). Both authors suggests that the Slayer's Rule should not apply to assisted suicide. They contend such slayers should be allowed to benefit from the estate of the deceased.

426 See supra note 278.

427 See supra note 278.

428 See supra note 278.

429 See Simons, Marlise, Dutch Parliament Approves Law Permitting Euthanasia, N.Y. TIMES, Feb. 10, 1993, at A10.Google ScholarPubMed

430 See supra notes 37-39 and accompanying text.

431 The idea of physicians being party to a market in human flesh may relegate the value of human flesh to something akin to a good or commodity on the open market. One interesting argument suggests that the motivation to earn money when combined with the pressure of supplying needed organs to waiting recipients will result in possible premature determinations of death by physicians of persons who are near death or dying, or for those who are being maintained on life support systems. Childress, supra note 66, at 101. This possible scenario is viewed as creating a lack of trust in doctors by patients who fear that physicians will be inclined to make such premature terminations of treatment. Blair & Kaserman, supra note 1, at 449-50. This claim is rebutted by those who urge that the likelihood of such abuses is relatively low because the great supply of organs will dictate lower prices which will reduce the level of monetary incentives to make premature termination of care. Finally, it is maintained that the attending physicians will have no real incentive to make such determinations because there will be no motive for profit since these commercial transactions will generally benefit the organ brokerage entities or the surviving family members. Blair & Kaserman, supra note 1, at 450-51; see also Hansmann, supra note 218, at 69.

432 Opponents often warn that society's active involvement in the sale of human flesh as a commodity will diminish the overall moral and ethical pillar of society. Childress, supra note 66, at 101 (“opponents insist that a commercial market in organs and tissues is abhorrent to our system of values because it treats human bodies and their parts as commodities.”) This position supposes that society would suffer by eliminating opportunities to express genuine acts of altruism, instead fostering more hedonistic attitudes. Opposite this argument is the contention that the projected increase in organs resulting from a commercial market is largely exaggerated due to the likelihood that a great number of potential organ providers will refuse to sell their organs due to their moral repugnance at the idea of selling human flesh. Cf. Blair & Kaserman, supra note 1, at 439-42 (concluding that the market based system will yield more organs (kidneys) than the current donation system). Others suggest that the projected increase in transplantable organs is faulty due to the likelihood that the commercial organ market will provide greater incentive to persons of ill health to sell their contaminated or diseased organs, thus resulting in a lower supply of quality organs. Id. at 439; Brams,supra note 250, at 192. Proponents rebut this claim by suggesting that although the increase in organs resulting from a commercial organs market may increase the quantity of inferior organs, the overall increase in quality organs will afford physicians the luxury of being far more particular in the organ selection process. Blair & Kaserman, supra note 1, at 442-43; Brams, supra note 250, at 192.

433 Amid proposals to use the organs of death row prisoners for organ donation purposes, market proponents have raised the question of whether such persons should be allowed to sell their organs to benefit surviving relatives or the government. Cohen, supra note 12, at 42; see also Campbell v. Wain-wright, 416 F.2d 949 (5th Cir. 1969), cert. denied, 397 U.S. 953 (1970). Some suggest that permitting death row prisoners to donate or sell their organs would give them one last chance to atone for their crime. Living Donor Act, supra note 197, at 590. It has been proposed that death row prisoners be executed in a manner that will facilitate the retrieval of their organs for transplantation purposes. Id.

Inherent in allowing such organ transactions is the question of whether an organ provider under these circumstances possesses the requisite consent. Some argue that such persons are incapable of formulating any true consent to transfer their organs due to the naturally inherent undue coercion and influence created by their incarceration. Others fear the possibility of the type of governmental improprieties recently reported by the Human Rights Watch-Asia group on China's coerced use of executed prisoners as organ donors. See Schoof, Renee, Report: China Takes Organs of Executed Inmates, September 1, 1994, PATRIOT NEWSPAPER, at A1Google Scholar. One account of the group's report indicated that prior to most executions the prisoners' consent was coerced (in others no consent was obtained) in a manner that would preserve the prisoner's organs for transplantation purposes. Id. Maybe the best approach would be to permit such persons to enter into postmortem organ contracts with proceeds benefiting their nearest relative(s).

434 Caplan, A.L., Requests, Gifts, and Obligations: The Ethics of Organ Procurement, 18 TRANSPLANTATION PROCEEDINGS 49, 52-53 (June 1986)Google ScholarPubMed; Childress.jupra note 66, at 101 (questioning the welfare of the poor and economically disadvantaged in a commercial market); but see Blair & Kaserman, supra note 1, at 444-47 (raising four arguments to rebut the claim that the poor will be exploited in a commercial market: (1) such a claim is unduly paternalistic in nature; (2) the available large supply will result in moderate prices which will be a disincentive to some; (3) any economic coercion of a commercial market is no different than the moral or emotional coercion associated with the current altruistic system; and (4) the loss of lives under the current system outweighs such altruistic concerns).

435 See supra text accompanying notes 379-97.

436 Hansmann, supra note 218, at 62; Childress, supra note 66, at 101. Pennsylvania's recently enacted organ donation statute authorizes the creation of an Organ Donation Awareness Trust Fund to receive public contributions to be expended, in part, “(1)... for reasonable hospital and other medical expenses, funeral expenses and incidental expenses incurred by the donor or donor's family in connection with making a vital organ donation. Such expenditures shall not exceed $3,000 per donor and shall only be made directly to the funeral home, hospital or other service provider related to the donation. No part of the fund shall be transferred directly to the donor's family, next of kin or estate... .”20 PA. CONS. STAT. § 8622(B)(1) (1994). This provision was carefully drafted so that it may not violate state and federal laws prohibiting the sale of human organs.

437 Childress, supra note 66, at 101.

438 These in-kind, bartering proposals are reminiscent of the unethical syphilis research study done on poor, disadvantaged African-Americans in the early 1940s in which syphilis infected research subjects were given placebos as treatment in exchange for the government's provision of a burial plot. The research physicians intentionally withheld the necessary penicillin treatment from patients, most of whom later died from the illness. See Brandt, Alan M., The Experiment and HEW's Ethical Review, HASTINGS CENTER REP., December 1978, at 21-29.CrossRefGoogle Scholar

439 Childress, supra note 66, at 101.

440 Cohen, supra note 12, at 30 and accompanying notes.

441 See supra text accompanying notes 310-15; see also Hansmann; supra note 218, at 74.

442 Hansmann, supra note 218, at 72-73.

443 Hansmann, supra note 218, at 74 (suggesting a six-month waiting period of revocability for organ contracts as a means of protecting indigent organ sellers).

444 Cohen, supra note 12, at 44.

445 Brams, supra note 250, at 186-87.

446 Cohen, supra note 12, at 30 (suggesting that the commercial aspect of the market be limited to the retrieval of organs by some governmental or quasi-governmental agency, and that the distribution of such organs be accomplished in some equitable manner which overcomes the wealth-based distribution objections).

447 Chapman, supra note 36, at 404.

448 A similar “Organ Donation Awareness Trust Fund” was recently provided in Pennsylvania's amended UAGA. The funds collected are used to pay in-kind funeral, medical, and burial expenses for organ donors; and to further research and educational efforts to increase organ donation awareness. 20 PA. CONS. STAT. §8622(1994).

449 See Blumstein, James F., The Use of Financial Incentives In Medical Care: The Case of Commerce in Transplantable Organs, 3 HEALTH MATRIX 1, 22 (1993)Google ScholarPubMed.

450 Cohen supra note 12, at 46-48.

451 See id. at 48-50.

452 Schwindt & Vining, supra note 1, at 489-90.

453 Council on Ethical and Judicial Affairs, supra note 265, at 214-15.

454 Id.

455 An example is provided by the Florida adoption law which provides in relevant part that “[it] is unlawful for any person ... [t]o contract for the purchase, sale, or transfer of custody or parental rights in connection with any child, or in connection with any fetus yet unborn, or in connection with any fetus identified in any way but not yet conceived, in return for any valuable consideration.” FLA. STAT. § 63-212 (1993).

456 See supra note 229 and accompanying text; see also Cohen, supra note 12, at 26, 41-42.

457 Id.

458 Perhaps a limited exception under this prohibition would allow rational, mature minors who are emancipated or close to majority age to sell their organs upon obtaining court approval. This limited exception has also been suggested for the current organ donation system. In a January 1994 report submitted by the Council on Ethical and Judiciary Affairs of the American Medical Association, the question of whether the donation of minor organs should be permitted was raised. In this report, the Council recognized the peculiar vulnerability of minors inherent in parental decisions to donate a child's organs. Accordingly, it recommended that the participation of minors in organ donation should be regulated. The recommendations reflected the following principles: (1) children should only be allowed to donate organs where there is low to moderate risk of physical harm and not at all where a substantial risk is involved; (2) children who are of a mature age should be allowed to make medical treatment decisions such as the donation of an organ, so long as the child is acting on his own free will; (3) immature children incapable of making such medical decisions may donate with parental approval; (4) judicial approval should be obtained for any such donations which involve a substantial risk of harm to the child; and finally, (5) that court or parental approved minor organ donations meet criteria which ensure that the donation is safe, reasonable, necessary, and in the best interest of the child's physical, emotional, psychological and familial well-being. See Council on Ethical and Judiciary Affairs, 5 CODE MED. ETHICS REP. 229 (January 1994)Google Scholar, Report 56 The Use of Minors as Organ and Tissue Donors, at 240-42.

459 Crespi, supra note 7, at 45.

460 See In re John Doe, 481 N.Y.S.2d 932 (A.D. 4 Dept. 1984); Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979); In re Guardianship of Pescinski; 226 N.W.2d 180 (Wis. 1975).

461 Living Organ Donor Act, supra note 197, at 593.

462 See generally In re T.A.C.P., 609 So. 2d 588 (Fla. 1992).

463 See supra notes 121-31 and accompanying text.

464 See supra note 278.

465 See supra note 458.

466 Cohen, supra note 12, at 42.

467 Crespi, supra note 7, at 36,45 and accompanying notes.

468 Cohen, supra note 12, at 42.

469 See supra note 337 and accompanying text.

470 Schwindt & Vining, supra note 1, at 496.

471 Cohen, supra note 12, at 30.

472 Similar concerns have been addressed in the euthanasia debate. See C. Potter, Ann, Will The “Right to Die” Become A License To Kill? The Growth of Euthanasia in America, 19 J. LEGIS. 31, 33 (1993)Google ScholarPubMed (joining the fierce debate of whether the trend from the right to refuse treatment to the right to die to the developing right to active euthanasia resembles the invocation by the National Socialists of Germany of Nazism policies which resulted in the killing of citizens who were socially unworthy, such as the physically infirm, the unproductive and other socially undesirables based on race, religion and ethnicity. She states that “humanity's interest in avoiding a recurrence of anything resembling the National Socialists' genocide program mandates that we observe the correlation between current thought and practices in our country and those in Germany in the first half of this century.”); but see Newman, Stephen A., Euthanasia: Orchestrating “The Last Syllable of Time”, 53 U. PITT. L. REV. 153, 167-69 (1991)Google Scholar (asserting that there is no true correlation between Nazi Germany experiments and the feared, yet unsupported, slippery slope argument against active euthanasia in America today. The author distinguishes the two by pointing out that the Nazi's use of the term “euthanasia” was a misnomer for a practice that clearly reflected the extremist ideology of Nazism which supported the involuntary and compulsory killing of certain “unworthy” persons without any mercy.).

473 See supra text accompanying notes 291-94.

474 See generally Griner, supra note 343.

475 Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979); In re Doe, 481 N.Y.S.2d 932 (App. Div. 1984).

476 Crespi, supra note 7, at 35; see also Council on Ethical and Judiciary Affairs,supra note 265, at 216.

477 Griner, supra note 343, at 613 (recommending that minor and incompetent organ donation cases should be evaluated on a case by case basis, “using a much stricter application of the best interest standard, under narrow circumstances”).

478 See, e.g., Strunk v. Strunk, 445 S.W.2d 145 (Ky. Ct. App. 1969); Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979).

479 Schwindt & Vining, supra note 1, at 496.

480 Id.

481 But see Blair & Kaserman, supra note 1, at 449-50 (discounting this argument based upon projected organ market realities).

482 See supra text accompanying notes 415-17.

483 See also Council on Ethical and Judiciary Affairs, supra note 265, at 216.

484 See supra text accompanying notes 415-17.

485 See supra text accompanying notes 422-29.

486 See supra text accompanying notes 338-40.

487 See supra notes 123-30 and accompanying text.

488 See supra text accompanying notes 418-21.

489 Crespi, supra note 7, at 46-47.

490 Blumstein, supra note 449, at 24 (recognizing that “if any system of commerce is established involving live-‘donor’ organs, safeguards are necessary to assure voluntarism and to bar other uses of body parts via coerced, not induced sale”).

491 See supra notes 423-29 and accompanying text.

492 See id.

493 Childress, supra note 66, at 101 (urging that existing organ donation policies be exhausted before a costly commercial system is adopted).

494 See the discussion provided by Crespi, supra note 7, at 21-22.

495 See Brams, supra note 250, at 191-93; Chapman, supra note 36, at 403-05.

496 Brams, supra note 250, at 186-88.

497 Brams, supra note 250, at 192; Chapman, supra note 36, at 404.

498 Schwindt & Vining, supra note 1, at 488-90.

499 Id. at 488-89 (concluding that a futures market would work best if it were centralized).

500 Id. at 488-90.

501 Chapman, supra note 36, at 403-04.

502 See Council on Ethical and Judicial Affairs, supra note 265.

503 Schwindt & Vining, supra note 1, at 490.

504 Id. at 489.

505 Id. at 495.

506 Cohen, supra note 12, at 26 (“The final morally problematic category [of a market system in human organs] is the sale of that which cannot be sold. Some would assert that one may not purport to sell what cannot be sold, for in the very process of sale that which is purportedly sold is transformed and its value is destroyed or diminished.”).