Legal Issues in Payment of Living Donors for Solid Organs

Vol. 30 No. 2

By

Robyn S. Shapiro is a partner in Michael Best & Friedrich LLP. She has represented clients with respect to bioethics issues, medical staff matters, health information privacy, informed consent, regulatory and licensing matters, and employment and other business issues. She is the director of the Bioethics Center at the Medical College of Wisconsin.

Editor's Note: The following article first appeared in Robyn S. Shapiro, Legal Issues in Payment of Living Donors for Solid Organs, 7 CURRENT OPINION ON ORGAN TRANSPLANTATION, 375-379 (2002). The article is reprinted courtesy of Lippincott Williams & Wilkins, Inc.

The United States continues to experience a chronic shortage of transplantable organs; more than 70,000 Americans are on waiting lists, and more than a dozen die each day because a needed vital organ is not available. Currently, the sale of organs is prohibited in the United States, but proposals have been made over the years to lift this ban.

In 1983, Virginia physician D. H. Barry Jacobs founded International Kidney Exchange, which offered to broker contracts between patients with end-stage renal disease and people willing to sell one kidney. Jacobs planned to procure kidneys from healthy people, including indigent Third World residents, each of whom would sell one kidney at a negotiated price. The person needing the transplant would pay for the cost of the kidney plus $2,000 to $5,000 for Jacobs' brokerage services. Although this enterprise was a business failure, it did generate debate about the ethical implications of financial incentives for increasing the organ supply. That debate resulted in congressional hearings and, ultimately, federal and state legislation on the topic.

Federal Law

The National Organ Transplant Act, 42 U.S.C. § 274e (2002) (NOTA), enacted in 1984, makes it a federal crime to "knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce." NOTA's definition of "valuable consideration" excludes "reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connectin with the donation of the organ." Violations of NOTA carry a $50,000 maximum fine, a maximum five-year imprisonment term, or both.

Legislative history reveals that NOTA passed with very little debate. The Senate Labor and Human Resources Committee simply concluded that "individuals or organizations should not profit by the sale of human organs for transplantation," and that because the law was uncertain on that point, legislation was necessary. Moreover, in its first major report, the Task Force on Organ Transplantation, which was established by NOTA to inquire further into policy issues raised by organ transplantation, summarily reaffirmed NOTA's blanket prohibition of the commercialization of organ transplantation. The Task Force noted, in a conclusory fashion, that "society's moral values militate against rendering the body as a commodity." Because NOTA is limited to transactions that affect interstate commerce, the Task Force report also encouraged individual states to adopt their own legal prohibitions of organ sales, although some legal commentators interpret NOTA as prohibiting intrastate organ sales as well, based on broad judicial construction of Congress's commerce clause power to prohibit activity of a seemingly local nature that could affect interstate commerce. Heart of Atlanta Motel v. United States, 379 U.S. 241 (1984); Katzenbach v. McClung, 379 U.S. 294 (1984).

State Law

State law prohibitions of organ sales are based on the Uniform Anatomical Gift Act, 8A U.L.A. 15 (1983) (UAGA), which was passed by the National Conference of Commissioners on Uniform State Laws in 1968 and adopted by the District of Columbia and all fifty states (with minor variations) by 1973. The original version of UAGA failed to mention commerce in organs explicitly. However, commentators have interpreted it to prohibit the sale of organs, noting that the UAGA drafters intentionally failed to address this issue in light of the difficulty of drafting a provision to forbid payment and the apparent absence of an organ market and in reliance on "the decency of intelligent human beings" to manage the issue. In adopting the 1968 version of UAGA, some states incorporated modifications that do explicitly prohibit organ sales.

In 1987, UAGA was amended to prohibit explicitly the purchase and sale of organs if removal of the organ is intended to occur after death. This prohibition does not cover organ sales by living donors if removal is to occur before death, although some states have modified the 1987 UAGA to include such a provision. The table on page 21 enumerates and describes state laws that address organ sales.

Arguments Supporting Organ Sales by Live Donors

The strongest argument in favor of permitting the sale of human organs is that it would generate an increased supply of a scarce and lifesaving resource. Economists' contention that prohibiting compensation for organs depresses supply is bolstered by decades of reports of people's offers to sell their organs. Twenty years ago, in letters submitted to the U.S. House of Representatives Subcommittee on Health and the Environment during hearings on NOTA, one person stated that he wanted to sell a kidney to finance an education, and another wanted to sell an organ to pay for her daughter's medical treatment.

In addition, some argue that people should be able to dispose of their body parts in whatever way they wish-and that just as bomb disposal experts, fire fighters, and deep sea divers are paid for their dangerous (and sometimes painful) work, those who decide to undertake risk to contribute their organs for the well-being of others should be compensated as well. Indeed, some contend that because hospitals, doctors, laboratories, and pharmaceutical companies charge patients for transplantation-related products and services, it is unfair for donors not to be compensated.

Moreover, as noted by Friedlaender, despite the fact that transplantation using paid living donors is illegal, it occurs; some contend that it would be better to legalize the practice so that it could be regulated appropriately. LANCET (2002). According to news reports, many people in Turkey, India, South America, China, and the Philippines have been paid for their organs by wealthy recipients living in Europe and North America. The United Network for Organ Sharing has estimated that each year, 200 to 300 Americans buy organs from the desperately poor in Third World countries. If organ selling were legalized and regulated in this country, ethically problematic aspects of the practice could be controlled and monitored. For example, caps could be put on the amount of compensation allowed. Economists Adams et al. have estimated that an adequate supply of living kidneys could be recruited at a price of $1,000 per kidney. CONTEMP. ECON. POL. (1999).

Arguments Against Organ Sales by Live Donors

There are five main objections to permitting live organ sales. One is that the relation between buyer and seller would be exploitative and either cause or constitute an unacceptable commodification of the body. A response to this argument, however, is that society permits many practices-such as poorly paid labor-that could be labeled exploitative, and organ sales should not be considered morally more problematic.

A related objection is that paid organ donation would result in unfair disadvantages for would-be recipients who are unable to pay. One response to this objection is that the government or a private organization under government regulation could purchase the organs and distribute them in a fair and equitable way-with no directed donations allowed. Such an approach was chosen for a trial of nonrelated altruistic living kidney donations in Minneapolis. In that system, organs are donated to a pool from which they are allocated to the most suitable recipients according to the same medical criteria as those used for allocation of cadaveric organs.

A third objection to live organ sales is that they would undermine voluntary organ donation. Some have claimed that there is evidence to indicate that marketing in human organs would eventually deprecate and destroy the present willingness of members of the public to donate their organs out of altruism. To support this conclusion, reference is made to the effect of permitted blood sale on the blood market. When states first permitted the sale of blood, the overall blood supply dropped sharply because the decrease in voluntary donations was larger than the increase in paid donations. In response, however, some note that analogous situations demonstrate that this consequence is not inevitable. For example, professional social work and charitable social work coexist.

A fourth objection to live organ sales is that a person's consent for organ donation would not be truly autonomous because of the coercive, manipulative impact of the prospect of receiving money for the organ. As noted, supporters of an organ market respond by pointing out that society often allows people to undertake risks for money when they engage in highly paid hazardous occupations such as coal mining and race car driving. In addition, some claim that people who "voluntarily" donate an organ to a relative are subject to greater coercion than those who sell their organs would be because of internal pressure and pressure from other family members to save the loved one.

A fifth objection is that payments for organs would represent an additional cost that would be passed on to organ recipients, thereby increasing total transplant costs. However, supporters of payment for organs respond that the shortage of transplantable organs inflates the economic returns generated by organ transplant programs currently, and that increased organ supply brought on by financial incentives for donation would decrease the overall costs of transplant procedures.

The Future

In light of the severe shortage of donor organs (an estimated 18,000 to 20,000 additional donated organs are required to meet current demand in the United States), some argue that it may be time to consider legalizing paid living organ donation. For example, members of the International Forum for Transplant Ethics have recommended lifting the ban on kidney sales from living kidney donors pending better justification for the prohibition of such transactions. As noted by Schlitt, it may be possible for a system of paid donation to assure the safety and dignity of the donors and equitable access by potential recipients. LANCET (2002). Elements of an ethically acceptable regulatory approach, as opposed to a complete prohibition of living donor organ sales, might include the following elements:

  • Allowing noncash compensation, such as an income tax deduction, or a reasonable payment for sales arranged through a national regulatory body;
  • Prohibiting organ brokering by third parties;
  • Imposing and monitoring strict donor selection criteria;
  • Imposing and monitoring comprehensive disclosure or risk requirements; and
  • Using the same organ allocation criteria used for cadaveric organ distribution.

Conclusions

Although many steadfastly maintain that money and vital organs occupy distinct moral universes and that the law should not be changed to bridge those domains, it is critical for the issue of paid living organ donation to be discussed openly at this time-both inside and outside the transplantation community.

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