Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-25T05:20:44.119Z Has data issue: false hasContentIssue false
  • English
  • Français

Transplantable Human Organs: Should Their Sale Be Authorized by State Statutes?

Published online by Cambridge University Press:  24 February 2021

Marvin Brams
Marvin Brams*
Affiliation:
Urban Affairs and Public Policy, University of Delaware
Get access Rights & Permissions [Opens in a new window]

Abstract

Currently, there is a serious shortage of human organs, such as kidneys and corneas, available for transplant to patients who need them. State laws—through the adoption of the Uniform Anatomical Gift Act— support an “altruistic” system of organ donation, in which the supply of transplantable organs depends upon the willingness of individuals to relinquish organs without financial compensation. The author of this Comment, an economist, proposes that state laws should instead support a combined altruistic-market system of organ procurement and distribution. In such a system, not only could individuals give their organs, but those who so desired could sell their organs—to be removed and transplanted upon their death, or possibly even during their life in appropriate cases—with the proceeds going to the donor or his estate. The author contends that statutory authorization of a combined altruistic-market system of organ transfer—for which the current mixed voluntary-commercial blood system provides a precedent—would foster the growth of a new incentive (the receipt of money) to relinquish one’s organs for transplantation. The sale of organs could (1) alleviate the organ shortage, (2) decrease the incidence of organ rejection by the host, and (3) lessen the need to remove organs from living donors. The author confronts various practical and ethical objections to the introduction of a commercial market in human organs, and concludes that the objections are unjustified, or can be addressed effectively through appropriate statutory provisions, or are outweighed by the benefits of a vastly increased supply. He calls for support for his proposal from organized medicine, and suggests that the new system be introduced on an experimental basis in a single state prior to nationwide implementation.

Type
Comment
Information
American Journal of Law & Medicine , Volume 3 , Issue 2 , Summer 1977 , pp. 183 - 195
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1977

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

Certain ideas in this Comment were first conceived by the author’s reading of RottenbergS., The Production and Exchange of Used Body Parts, in INSTITUTE FOR HUMANE STUDIES, II TOWARDS LIBERTY 322 (1971).

Other useful background papers for this Comment include the materials on blood collection and distribution listed in note 12, infra, plus the following: Simmons and Simmons, Organ Transplantation: A Societal Problem, Soc. PROB., Summer 1971, at 36; PUBLIC HEALTH SERVICE/NATIONAL INSTITUTES OF HEALTH, Hew, U.S. KIDNEY TRANSPLANT FACT BOOK (1972); Advisory Committee to the Rental Transplant Registry, The Tenth Report of the Human Renal Transplant Registry, 221 J.A.M.A. 1486 (1972); Advisory Committee to the Renal Transplant Registry, The Eleventh Report of the Human Renal Transplant Registry, 226 J.A.M.A. 1197 (1973); Ryan, Future Stock: The Body’s New Frontiers, NEW YORK, February 10, 1975, at 45; NATIONAL KIDNEY FOUNDATION, THE ORGAN DONOR PROGRAM (1976) (leaflet); AMERICAN KIDNEY FUND, A GUIDE FOR THE DONATION OF ORGANS AND TISSUES (undated leaflet); Raible, Accelerating Life-sustaining Gifts: The Case for Uniform Organ Donor Driver’s License, MEDICOLEGAL NEWS, October 1975, at 3; Note, Patient Selection for Artificial and Transplanted Organs, 82 HARV. L. REV. 1322 (1969).

References

1 “Organ” is usually taken to refer to any dif ferentiated structure consisting of cells and tissues performing a specific function in an organism. In this Comment, “organ” should be understood in that sense, except that it is restricted to organs which the body cannot regenerate once they are removed (for example, the heart or kidneys—in contrast to blood, which some persons might view as an organ). It should also be noted that “organs” refers here only to human organs.

2 The importance of organs to the body’s functioning varies along a continuum. At one end of the continuum is the appendix, which in man’s current state of evolution appears to have no function and perhaps ought not to be considered an organ at all. At the other end are organs without which human life cannot continue, unless their functions can be taken over by machines (hearts and kidneys, for example). Somewhere in between are such organs as the gall bladder, which performs functions but whose removal results in little or no diminution in the body’s healthy functioning, and the eyes, whose failure greatly diminishes one’s interaction with the environment, but has few direct consequences on the rest of the organism.

3 According to the National Kidney Foundation, “progress is also being made in overcoming transplantation problems connected with the liver, pancreas, heart, bone and other tissue.” NATIONAL KIDNEY FOUNDATION, THE ORGAN DONOR PROGRAM (1976) (leaflet).

4 For a unique exploration of some economic, social, and legal problems that might accompany the manufacture and widespread implantation of artificial hearts, see Annas, , Allocation of Artificial Hearts in the Year 2002: Minerva v. National Health Agency, 3 AM. J. LAW & MEDICINE 59 (1977)Google Scholar.

5 In many cases where a patient loses kidney function, physicians turn to living donors. The use of close relatives increases the likelihood of getting a good match (that is, one in which the possibility of physiological rejection of the transplanted kidney by the donee’s body is minimized). For statistics on the use of living kidney donors, see note 22 infra.

6 UNIFORM ANATOMICAL GIFT ACT, § 2(a). The significant substantive provisions of the Act are the following: § I (Definition); § 2 (Persons Who May Execute an Anatomical Gift); § 3 (Persons Who May Become Donees, and Purposes for Which Anatomical Gifts May be Made); § 4 (Manner of Executing Anatomical Gifts); § 5 (Delivery of Document of Gift); § 6 (Amendment or Revocation of the Gift); and § 7 (Rights and Duties at Death). The Act authorizes gifts of the entire body for a variety of purposes such as medical research and education, and gifts of a part or parts of the body for a variety of purposes such as transplantation. Among the documents which can be used for making the gift—including one's will—is a simple card developed by the National Kidney Foundation. This card, which is carried on one’s person, makes a gift of specific organs, of all organs, or of the entire body, and takes effect upon one’s death. It should also be noted that the Act sets forth procedures by which such persons as close relatives of the deceased can donate all or part of a deceased’s body (in the absence of his previously expressed wishes to the contrary).

7 See id., § 3.

8 The National Registry of Long-term Dialysis Patients, using data provided by 546 reporting dialysis centers, reported 17,063 patients on dialysis as of April 1, 1976. These figures may understate the situation greatly, because as many as one-third of all dialysis centers do not report statistics to the Registry. The National Kidney Foundation estimates that 40 to 50 percent of all dialysis patients are transplant candidates awaiting the availability of a suitable kidney. In addition, organizations such as the National Eye Institute and allied local, state, and regional eye banks report a shortage of corneas available for transplant.

9 One author writes: “It is difficult for most people to confront the inevitability of their own death, so much so that most individuals still die intestate. There is a wide gap between acknowledging one’s finitude, understanding the need others have for tissue gifts, and actually making the gift.” Raible, Accelerating Life-sustaining Gifts: The Case for Uniform Organ Donor Driver’s License, MEDICOLEGAL NEWS, October 1975, at 3.

10 For example, as of July 1, 1976, each person applying to the Massachusetts Registry of Motor Vehicles for a driver’s license or for a license renewal receives information concerning the Uniform Anatomical Gift Act and is offered the opportunity to become a donor by filling out appropriate forms. The Registry even attaches to the donor’s driver’s license a small sticker—easily removable by the individual if he has second thoughts—which identifies him as a donor. For a discussion of the role of such programs in the overall context of anatomical gifts, see Raible, supra note 9.

11 Two articles offering creative proposals for alleviating the organ shortage are Ditkerninier, and Sanders, , Organ Transplantation: A Proposal for Routine Salvaging of Cadaver Organs, 273 N. ENG. J. MED. 413 (1968)Google Scholar and Gaylin, , Harvesting the Dead, HARPER’S, September 1974, at 23Google Scholar.

12 For a recent discussion of various legal, political, and policy aspects of blood collection in the United States, see Stewart, , The Battle over Blood Collection, 3 AM. J. LAW & MED. 77 (1977)Google Scholar. There is a close relationship between the subject of blood collection and transfusion, and the subject of organ procurement and transplantation. Pertinent literature on blood includes the following: TITMUSS, THE GIFT RELATIONSHIP: FROM HUMAN BLOOD TO SOCIAL POLICY (1971); Cooper and Culyer, The Economics of Giving Blood, M. Ireland, The Legal Framework of the Market for Blood, 1. Ireland and Koch, Blood and American Social Attitudes, and Johnson, The U.S. Market in Blood (all appearing in THE INSTITUTE OF ECONOMIC AFFAIRS, THE ECONOMICS OF CHARITY: ESSAYS ON THE COMPARATIVE ECONOMICS AND ETHICS OF GIVING AND SELLING WITH APPLICATION TO BLOOD (1973)); Kessel, , Transfused Blood, Serum Hepatitis, and the Coase Theorem, 17 J. LAW & ECON. 268 (1974)CrossRefGoogle Scholar; Culyer, Blood and Altruism: An Economic Review, Drake, Getting People to Give Blood: Ideologies, Practices and Issues, and Havighurst, Legal Responses to the Problem of Poor Quality Blood (all appearing in THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC; POLICY RESEARCH, BLOOD POLICY: ISSUES AND ALTERNATIVES (forthcoming, 1977)).

13 Evidence already exists that financial compensation would provide a strong incentive for some individuals to relinquish an organ, and that there are patients who would be willing to pay for organs. The United Press International once gave an account of several individuals offering one of their kidneys or corneas for sale. One person offered a kidney for §4,700, another a cornea or a kidney for §10,000. Still another offered to auction a cornea or kidney. Some offers drew responses from potential donees, but the physicians in charge reportedly refused to consider such potential donors, much to the consternation of some of the involved parties. Various physicians and hospitals surveyed by UPI reportedly expressed shock at such offers and said that no reputable institution would accept them. A spokesman for one kidney center was reported to have said the center “without question would never consider such a proposal. Such a thing might open up a whole new concept that is abhorrent.” Kidneys and Eyes for Sale as Well as Pints of Blood, Eveningjournal (Wilmington, Delaware), April 14, 1975,at 10, col. 1. The Associated Press gave an account of an individual who advertised to buy a kidney for §3,000 and received about 100 callers. Hospital officials reportedly made it clear they would neither remove a purchased organ from a paid donor nor transplant a purchased organ into a donee. Man Forbidden to Buy Kidney, Morning News (Wilmington, Delaware), September 12, 1974, at 7, col. 5.

14 In this Comment, the word “donor” means “one used as a source of biological material” (definition no. 2, Webster’s New Collegiate Dictionary (1973)), whether the individual relinquishes the organ for direct financial compensation or for purely altruistic reasons. In the field of blood collection and distribution, “donor” refers to both types of motivation, plus a third: the desire to “barter” one’s blood in exchange for a free supply of blood for oneself and specified relatives by agreement with the blood collection agency. (There has been some confusion concerning the appropriate terminology for distinguishing blood donors according to their motivation. See Stewart, supra note 12, at 79 n.9).

It should be remembered that in certain situations organ donors or blood donors may act from a combination of motives.

15 According to one writer, approaches to providing incentives for organ donation include “[ejstate tax credits for those who will their bodies [or organs]” and “guaranteed lifelong health care” for those who relinquish an organ while still living. Raible, supra note 9, at 4.

16 Commerce in human organs inevitably would, in certain situations, take place across state lines or otherw ise “affect” interstate commerce, raising the question of regulation of such sale by the federal government. A full exploration of the possibility of, and potential issues arising from, federal regulation is not within the scope of this paper. Some aspects of federal involvement in a related area—blood collection and distribution—are discussed in Stewart, supra note 12.

17 As pointed out in Part III of this Comment, restriction of the market to only those organs removed after death might decrease the overall need for organ removal from living donors. In Part V, it is suggested that such a restriction would ensure that no living person w’ould be pressured by financial considerations into parting with an organ that he would actually prefer to keep.

18 For example, California has a statute stating that

[e]very person who removes any part of any human remains from any place where it has been interred, or from any place where it is deposited while awaiting interment, with intent to sell it or to dissect it, without authority of law … is punishable by imprisonment ….

CAL. HEALTH AND SAFETY CODE § 7051 (West).

Because the Uniform Anatomical Gift Act does not give “authority of law” to the sale of “any part of any human remains,” the quoted California statute may make a market in human organs unlawful in that state. But problems of interpretation abound. If, while living, an individual authorized the removal of an organ after his death, yet was paid for the organ in advance of his death—that is, before “human remains” existed—would the transaction be considered the selling of “human remains” and thus prohibited by the statute? Again, does the statute bar the sale of an organ to be removed while the donor is still alive? Apparently not.

Similar problems of interpretation doubtless would arise with regard to parallel statutes of other states, such as an old Massachusetts statute which prohibits “buying or selling” or “trafficking in” dead bodies. MASS. GEN. LAWS. ANN. ch. 272, § 72 (West).

19 UNIFORM ANATOMICAL GIFT ACT, § 2(a).

20 See note 5 supra.

21 UNIFORM ANATOMICAL GIFT ACT, § 1(e). Blood is mentioned specifically; sperm cer-tainly qualifies under the term “fluid” in § 1(e).

22 Statistics provided by the American College of Surgeons/National Institutes of Health Organ Transplant Registry show that 25,108 recorded kidney transplants were performed worldwide from January 1, 1953 to May 1, 1976, using the following organ sources: living parent of the donee—3,506 (14 percent); living sibling—3,877 (15.5 percent); cadaver or unrelated living person—17,181 (68.4 percent); living identical twin—86 (0.3 percent); other related living person—458 (1.8 percent). In the United States 15,701 recorded kidney transplants were performed during the same time period, using the following organ sources: living parent—2,494 (15.8 percent); living sibling—3,134 (19.9 percent); cadaver or unrelated living person—9,593 (61.2 percent); living identical twin—70 (0.5 percent); other related living person—410 (2.6 percent).

23 See Stewart, supra note 12, at 80.

24 See id. at 80, 81 & n.17.

25 The relinquishing during one’s life of organs essential to life would, of course, constitute suicide and should be prohibited, except in those situations where “suicide” is not normally prohibited.

26 A sampling of the opinions of persons associated with the National Kidney Foundation suggests that the Foundation would oppose a market in human organs.

27 For examples of attitudes among physicians and other health officials, see note 13 supra.