Chapman Law Review
Copyright (c) 2008 Chapman Law Review; Jennifer M. Smith
There is an organ shortage crisis in the world, especially for kidneys and livers, resulting in approximately 6,000 deaths annually in the United States alone. There is also a health care crisis in the United States, with roughly sixteen percent of the population uninsured, resulting in approximately 18,000 deaths annually. In 1984, the National Organ Transplant Act (“NOTA”) banned the acquisition of human organs in exchange for valuable consideration, primarily to prevent the exploitation of poor people–those who are most likely to sell their organs.
Transplant professionals are increasingly pushing to legalize the outright sale of human organs from living donors. This movement is gaining momentum and is likely to garner the necessary support of policymakers to amend NOTA to allow the exchange of human organs for valuable consideration. If such exchange is permitted, this Article posits that living organ donors should be able to receive only non-cash consideration in exchange for their organs–specifically, life-long, comprehensive health care. This would minimize the health care crisis in the United States and continue to prevent the exploitation of poor Americans. This proposal would also effectively reduce the number of deaths in the United States due to the organ shortage while simultaneously reducing the number of deaths caused by the lack of adequate health care. To advance such a proposal, NOTA must be amended to allow for an exchange of human organs for the valuable consideration of life-long, comprehensive health care.
Recently, medical, legal, and economic scholars, as well as transplant physicians and policymakers, have been reviewing the wisdom of the passage of the 1984 National Organ Transplant Act (“NOTA”), which makes it illegal to acquire human organs for valuable consideration. This is because there is an international human organ shortage that is significantly impacting Americans. In the quarter of a century since the enactment of NOTA, there has been a paradigm shift in how organ sales are viewed by Americans. The sale of human organs, once viewed as repugnant to most Americans, is becoming increasingly more acceptable. More scholars, physicians and policymakers are encouraging the development of a commercial market for human organs from living donors.
At the same time, the United States has a health care crisis. A significant percentage of Americans are uninsured, which has a negative impact on the economy. In addition, the death rate of Americans resulting from inadequate medical care due to a lack of health insurance is about three times as great as the death rate due to an inadequate supply of available organs.
This Article proffers a solution that addresses both the organ shortage and the lack of adequate health care for millions of Americans. This Article does not propose that Americans should rush out and sell their body parts to receive health care. Instead, the proposed solution will protect those Americans who choose to participate in the transplantation system as organ donors in a manner that is beneficial to them, while addressing the larger issue of the lack of health care for those who are uninsured.
Part I of this Article discusses the background of organ transplantation. Part II provides the historical development of organ transplantation legislation in the United States and abroad. Part III sets out the current state of the health care system in the United States. Part IV proposes the necessary legislative changes to solve both the organ shortage and national health care crises.
Because numerous lives are at stake, Americans should not stop considering the possible solutions until we have exhausted all reasonable avenues to overcome both the organ shortage and the national health care crises. The challenge is to provide a legally regulated alternative to curtail abuse of our foreign neighbors, whose laws regarding organ transplantation do not afford their citizens adequate protection from the international trafficking of their body parts. We must also avoid implementing a system in which we abuse our own citizens, whose lack of financial stability makes them vulnerable to impairing their own health in the name of a few instant bucks. If we are to implement a system that allows organ sales from live donors, it must include clear safeguards and complete protections for those donors’ continued health and access to health care–that is, life-long, comprehensive health care, which includes preventive care.
In 2006, approximately 6,000 people died while waiting for a life-saving organ transplant; most of them were waiting for a kidney or liver. That same year, over 18,000 people died as a result of inadequate health care due to a lack of adequate health insurance.
For decades, scholars have written countless articles and books on organ donation and transplantation, analyzing the moral, medical, legal and ethical issues surrounding the lack of an adequate organ supply in the United States and abroad. The shortage is not due to a lack of organs, but a lack of willing organ donors. Although advances in medical technology have increased the success rates of transplants, there are many fears associated with organ donation. For example, many potential organ donors assume that doctors will not exhaust every avenue to save a potential donor’s life, so they can harvest the organs needed to save the lives of others. This may seem outlandish, but a transplant surgeon was recently criminally charged with hastening a patient’s death to harvest his organs. Thus, notwithstanding significant medical advances, there has not been a viable solution to the organ shortage crisis in the United States or abroad.
In addition to the organ shortage crisis, the United States has a national health care crisis. Because of rising health care costs, under- and unemployment, and diminishing employer-sponsored plans, the number of uninsured Americans has rapidly increased in the past several years, causing a significant, negative impact on the United States economy because of sickness and premature death.
Notwithstanding both the organ shortage and health care crises, wealthy Americans have always had access to human organs. They often travel abroad to buy human organs, coined “transplant tourism.” They also have health insurance and access to the most advanced health care. It is the low- to moderate-income citizens, and increasingly middle-and upper-income citizens, who often lack health insurance and access to medical care.
This Article was inspired by a newspaper publication, Now for Sale on eBay–Your Kidney? It discussed a recent scholarly article, Introducing Incentives in the Market for Live and Cadaveric Organ Donations, written by two economists, Professors Becker and Elias. Their article argued that “monetary incentives could increase the supply of organs for transplant sufficiently to eliminate the large queues in the organ market, and it would do so while increasing the overall cost of transplant surgery by no more than about 12 percent.” Although others have written about monetary incentives to increase the supply of cadavers, Becker and Elias stress using monetary incentives to encourage more live donations.
With the growing number of people dying due to a lack of available organs, scholars, physicians and policymakers are searching for a cure to the organ shortage. One such cure is to offer financial incentives to live donors. One major problem with offering a monetary incentive for human organs from live donors is the possibility of the rich exploiting the poor. This is especially true as America is rapidly moving from a grave economic downturn to potentially one of its worst recessions since the 1980s. Indeed, the purpose of NOTA was to prevent such exploitation. However, with the organ shortage and the resulting high number of deaths, scholars and others have begun to minimize the concerns surrounding the exploitation and coercion of the poor.
But is an outright payment of cash, which leaves poor people open to exploitation and potential compromise of their own health, the solution? Or, is it possible to meld both national crises–the organ shortage and lack of health care–and come to a concurrent solution that does not bring with it all the ills associated with an outright sale of human organs? This Article proffers a solution to the organ shortage problem, while simultaneously addressing the health care crisis in the United States.
Because of the dire problems related to the organ shortage, there is growing acceptance of trial programs involving cash payment for organs. As Professors Becker and Elias assert, financial incentives will increase the organ supply. This is true, but opponents assert “that the line between selling organs and actually selling people is a rather fine one and that, as in sex trafficking, the marketplace is one in which coercion and exploitation may be unavoidable.”
To date, Americans have frowned upon the outright exchange of cash for organs because of the many ills associated with the purchase of body parts, especially the abuse that would fall primarily on the financially unstable. If this country reverses its current ban on the sale of organs, the potential for exploiting the poor remains great. Yet, offering cash for organs is becoming more of a possibility every day.
Irrespective of whether organs come from living or cadaveric donors, there is no disagreement that there is an organ shortage crisis in the United States and abroad. As a result, thousands of people die annually, often waiting for a non-essential organ–an organ that a living donor can spare–such as a kidney or a piece of a liver, while the transplant waiting lists continue to swell. But what is a feasible and ethical answer to this crisis? This Article seeks to address how we can reduce the number of deaths due to the organ shortage.
This Article focuses mainly on the living donor market, as opposed to the cadaveric market, because living donors are subject to the greatest amount of coercion, fraud, and abuse. Additionally, the best organs come from live donors. Further, because of the large number of annual living donor transplants, legal and regulatory focus on living donations has increased, as have the medical technologies in this area. Finally, a focus on the living donor market is important because some scholars argue that “compensation for living donation has the potential to provide all of the needed kidneys.”
If organ sales are permitted, the supply of human organs from living donors will come largely from the poorer segments of our society. Although some scholars argue that this concern is overly and needlessly paternalistic, poor people are often exploited in the United States and abroad. If the United States is to harvest the organs of living persons, it must ensure that these persons have access to affordable, lifelong, comprehensive health care–as differentiated from health insurance, which often leaves those underinsured with unwieldy medical bills due to co-payments, deductibles and other costs that insurance will not cover and their incomes cannot support.
II. Historical Development of Legislation
A. Birth of the National Organ Transplantation Act
Beginning in the eighteenth century, researchers began experimenting with organ transplantation on humans and animals. By the mid-twentieth century, doctors were performing successful transplants. In 1954 and 1967, the first successful kidney transplant and liver transplant, respectively, were performed in the United States–the first of their kind in the world. Medical advances in the prevention and treatment of organ rejection led to more successful transplants and an increase in demand. Knowing that organ transplantation was possible, legislators began enacting laws to govern transplants and distribution. Although several states had already passed organ donation laws before federal legislation was enacted, the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) drafted the Uniform Anatomical Gift Act (“UAGA”) in 1968 to regulate organ donation among states. By 1973, every state had bought into the UAGA and adopted some version thereof.
In 1983, Dr. H. Barry Jacobs attempted to form a company that would purchase kidneys from healthy, but very poor citizens of Third World countries and sell them to wealthy American recipients. Specifically, his proposal included creating the International Kidney Exchange, in which an indigent Third World resident would set a price for a kidney, which Jacobs would then sell and collect a brokerage fee. Americans were outraged by his proposal; yet wealthy Americans did, and still do, engage in this “transplant tourism”. As a result, Congress passed NOTA in 1984, which banned the sale of human organs.
B. The National Organ Transplantation Act of 1984
(a) Prohibition. It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.
(b) Penalties. Any person who violates subsection (a) of this section shall be fined not more than $50,000 or imprisoned not more than five years, or both.
(c) Definitions. For purposes of subsection (a) of this section:
(1) The term “human organ” means 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.
(2) The term “valuable consideration” does not include the 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 connection with the donation of the organ.
Thus, NOTA makes it a crime to sell human organs. However, NOTA governs only interstate commerce, so it is only violated if an organ sale crosses state lines. Because the states have jurisdiction over organ donation within their boundaries, they needed to enact their own laws to prevent intrastate organ sales. Thus, the NCCUSL amended the UAGA in 1987 to specifically ban the sale of human organs within the individual states. Although the 1968 version of the UAGA was adopted by all of the states, less than half of the states have adopted the 1987 amendment.
C. The Aftermath of the National Organ Transplantation Act
Because of NOTA, people in the United States cannot sell their body parts. Some critics argue that this prohibition is a direct cause of the current organ shortage crisis and the numerous resulting deaths. Others argue that offering monetary incentives to organ donors would increase the availability of organs in the United States. Some blame the crisis on the legal system altogether. Certainly, the law plays a major role in organ transplantation. However, the law is a shield to prevent grave abuses and coercion of potential organ donors–it is not the cause of the organ shortage.
Proponents of organ sales assert that society does not object when people work in dangerous forms of employment for monetary compensation (such as militia, firefighters, miners and policemen); therefore, they suggest that donating an organ should not be considered any more dangerous than those careers. Proponents also assert that allowing organ sales would end the international black market in human organs, which operates unregulated, with the majority of the profits going to brokers, rather than the poor people selling their organs.
Still others believe that, from a philosophical point of view, it may be a misplaced sense of paternalism that is the driving force behind America’s objection to the sale of organs by the poor. Although other less invasive means to assist the poor exist, there are millions of citizens who might welcome an opportunity to alleviate their poverty by selling an organ. Opponents counter, however, that monetary incentives will not alleviate poverty, and there are better ways to help the poor if there is truly an interest in doing so.
Moreover, proponents assert that a thriving legal market for blood, semen, human eggs, and surrogate wombs already exists. Thus, extending markets to include non-essential solid organs such as kidneys and pieces of liver is analogous to these other markets. But, there is also continuous debate as to the degree of risk involved in organ transplantation. It is clear that there is at least some risk involved in the intrusion into a healthy person’s body to remove an organ.
Because of the lack of available donors in this country, approximately eighteen people die every day while waiting for an organ or tissue transplant. Currently, there are approximately 100,000 people on the national waiting list for organs. Every thirteen minutes, another person is added to the list. With the number of waitlist recipients swelling, the distressed who need an organ are seeking desperate measures, and people are willing to sell their organs for a high price. Due to the ease of international access via the internet, public awareness of the proposed sale of organs has increased. In 1999, “eBay reported nearly a dozen kidneys were listed for sale, with one having a price of $10 million.”
With the prohibition of organ sales in almost every international region, a black market in living donor kidneys has developed. The organ shortage is considered to have the greatest impact in the United States, and Americans are increasingly purchasing organs in the black market and returning to the United States for the transplant or post-operative care. Although there are no reliable statistics on organ trafficking, it is believed to be on the upswing.
But how do we increase the organ supply in the United States without exploiting our poor citizens or traveling abroad to foreign regions and exploiting their poor citizens? Because of the extreme levels of poverty in some regions, Americans and others have procured organs from living donors in many Third World countries with no real long-term benefit bestowed upon the donor.
D. Organ Donation Laws Abroad
The organ shortage is an international crisis. Other countries have the same problem as the United States–the demand for organs exceeds the supply. The international consensus with respect to organ donation is that human organs should not be sold. In 1991, the World Health Organization (“WHO”) issued guidelines to avoid the coercion or exploitation of organ donors. The United States and 191 other countries endorsed the guidelines, which were not binding and have been largely ignored. A few years ago, WHO officially acknowledged the ethical and safety risks of organ transplants and the need “to take measures to protect the poorest and vulnerable groups from transplant tourism.” Nevertheless, selling organs is a big business in many countries.
Poorer regions are particularly a target for the black market. This is largely because of the extreme poverty and the resulting desperation, long waiting lists, and the fact that higher quality organs coming from living donors. As shown below, these countries often have no legislation on human organ sales, and any legislation that does exist is either not enforced or fails to protect the country’s poor citizens.
In the Philippines, for example, kidneys may be legally purchased on the open market. Medical teams enter poor neighborhoods to obtain blood and tissue samples for testing, and store the results for later matching when a recipient arrives for a transplant. Although proponents of this system argue that it is a matter of “free choice,” opponents contend that the empirical evidence shows that those who sold their kidneys often later complain of pain and disabilities, but cannot afford to be treated by a physician. Apparently, most Filipinos who sold their kidneys did so to pay off high interest debt, leaving them unable to afford health care. Not long ago, a religious group urged the Philippine government to impose stricter standards because of the lucrative illegal trade that has grown in the Philippines. More recently, the Philippine government banned most organ transplants to foreigners, but human rights groups assert that the legislation must be even tougher to protect the country’s poor.
In Egypt, where half of the population is in poverty and there are no laws regulating organ sales, the poor are selling their organs to pay off debts to avoid jail and for other less compelling reasons, such as “to buy an apartment to get married.” Although some in the Egyptian parliament–the ruling Democratic party–have been working for over a decade to pass laws to ban organ sales and to stop the black market that draws foreign patients from across the world, there has been no success. This is largely due to disagreement between physicians who believe in harvesting organs from brain dead patients, and Islamic clerics who regard it as a forbidden religious practice. But there is no legislation to punish those participating in organ sales that violate Islamic law.
In Thailand, there are two health care systems–one for the rich and one for the poor. The hospitals that treat the rich generally do not accept poor patients because they cannot pay their bills; but these facilities will treat the poor upon the condition that, if they die, their families will donate their organs to the hospital. Not surprisingly, investigations revealed evidence that these hospitals had been harvesting the organs of poor patients who were not yet dead. Nevertheless, physicians and hospital administrators in Thailand are still allowed to broker their own deals in the organ donation arena.
In India, the illegal sale of body parts is growing, despite a government ban that became effective in 1994. An investigation revealed that a significant number of the poorest people in India continue to sell their organs to pay off debt or to buy food. The recipients are often individuals from Western countries. Recently, a kidney ring was exposed in India, in which several doctors, nurses, paramedics, private hospitals, pathology clinics and diagnostic centers were determined to have performed 400 to 500 illegal kidney transplants in the past decade. Many of the donors were day laborers who were initially promised work and were later duped or threatened at gunpoint to undergo the operation. Other donors were bicycle rickshaw drivers and poor farmers who were persuaded to sell their kidneys in violation of the law.
Pakistan’s media has dubbed the country a “kidney bazaar” because of the large number of kidney sales resulting from extreme poverty. While the recipient of a kidney likely pays between $6,000 and $12,000, the donor may net about $2,500 (often less than half that). A senior official at a transplant clinic in Pakistan reported that kidney donors need constant check-ups to keep their blood pressure and sugar under control, but donors report that they do not get follow-up care and often suffer with poor health. As a result of the transplant surgery, they cannot walk, run, or work, and sometimes the money earned from selling the kidney was not enough to pay off the full debt that prompted the sale in the first place.
In 2006, China enacted legislation that banned the sale of human organs. The new law does not allow foreigners visiting on a tourist visas to receive organ transplants. Prior to this new law, China allowed the sale of executed prisoners’ organs to foreigners, oftentimes wealthy Americans. China’s government officials–some who profited greatly from these underground organ sales–initially denied the existence of a black market organ trade, but finally acknowledged it prior to the new law being passed.
Living donor transplant legislation around the world generally includes provisions too broad or too vague to be of any real help. For example, in Romania, Portugal and Germany, the laws provide that there must not be any serious effects upon the donor’s health, although they vary in the degree allowed. The law in Greece provides that there must not be “any manifest serious risk to the life or health of the donor.” Although kidney donation has been deemed a relatively safe procedure for the donor (perhaps dependent upon the facilities and the medical teams), there may be some risk of serious harm, thereby making these legislative enactments useless if applied literally–even a completely healthy donor would be precluded from donating a kidney under these provisions.
The organ shortage problem is complicated by the fact that many poorer nations do not have comprehensive national health care programs. While this is somewhat understandable in non-industrialized countries, Americans are suffering daily as the United States remains the only industrialized country that does not have a comprehensive national health care system. This impacts the organ shortage crisis and must be examined to fully understand how the two crises intersect and whether there is a potential concurrent solution.
III. Health Care in the United States
A. An American Crisis
Public surveys show that “health care is currently the top domestic concern for Americans.” Indeed, in this past election, both national presidential candidates had health care as a part of their campaign agenda. This concern regarding health care is principally due to the significant numbers of Americans who are uninsured.
The number of uninsured Americans has reached peak levels. This increase is attributed to rising “health insurance premiums, a changing labor market, and underfunded health care safety net programs” such as Medicaid and the Children’s Health Insurance Program. The United States has approximately forty-seven million uninsured citizens, which means that about sixteen percent of the population lacks health insurance. Many uninsured individuals have incomes below $25,000, and every racial and ethnic group is impacted. The higher a person’s income, the more likely he or she will have health insurance. Notwithstanding the aforementioned $25,000 figure, studies are showing that “more moderate- and middle-income earners and their families are also [at risk of not having insurance coverage].”
As a result of being uninsured, adults often forego needed medical care or preventive care. The uninsured may go without medical care because they fear medical debt. Unfortunately, when they finally do obtain medical help, they do not get the benefit of the discounts negotiated by insurance companies; therefore, they are left with significant medical bills. They often have to sacrifice basic needs such as food, rent, or heat, to pay medical bills. More than half of uninsured adults are forced to forgo needed medical care and, as a result, are twice as likely to have poor health than those with private insurance. Further, uninsured Americans with chronic conditions, such as diabetes, cancer, or heart disease, have difficulty in managing the condition because they lack health insurance.
In addition to those who are uninsured, there are sixteen million Americans who are underinsured in light of large out-of-pocket expenses relative to their salaries. Even those with health insurance are often subject to large deductibles and co-payments, and unwieldy medical bills. Unlike other countries, health insurance in the United States is often tied to employment. Rising health care costs as well as employers shifting more health care costs to employees have increased the out-of-pocket expenses for employees, thus leaving even moderate-income families with a significant financial strain. Employers are not required to provide health care benefits for their retired workers, but many do so voluntarily. Without these voluntary health benefits packages, many retirees who are ineligible for Medicare due to being under age sixty-five would not have any health insurance.
Recently, the United States Supreme Court declined to review, and thus affirmed, a federal policy that allows employers to reduce or eliminate health insurance expenses for retired workers who reach age sixty-five and qualify for Medicare. In AARP v. EEOC, the American Association of Retired Persons (“AARP”), an advocacy group, brought an action under the Age Discrimination in Employment Act (“ADEA”), alleging that an Equal Employment Opportunity Commission (“EEOC”) proposed regulation would allow employers to decrease health care benefits to retirees when they reach the age of sixty-five, at which time they become eligible for Medicare. The EEOC argued that this regulation would encourage employers to provide increased health care benefits to those who most need it–those who are not eligible for Medicare because they are under age sixty-five. Because of rising health care costs, many employers had ceased paying for health benefits for retirees of all ages because it is not required by law. For this reason, labor unions and many companies celebrated the decision because they believe it will encourage employers to coordinate retiree benefits with Medicare and thus maintain health care benefits for their retirees. Allowing employers to reduce or eliminate health care benefits for those eligible for Medicare will allow employers to significantly reduce their costs and presumably provide greater access to health care for retirees under age sixty-five, who are age-barred from Medicare.
A likely assumption is that those without health insurance are non-working families. But the reality is that those without health insurance are largely from working families, demonstrating that lack of health insurance is a crisis of national proportions.
B. The National Importance of Health Care
America’s health care crisis has morphed from an individual concern to a societal concern. We collectively pay the costs of not insuring all of our citizens. Lack of adequate health care due to the absence of health insurance is the sixth leading cause of death, preceding HIV/AIDS and diabetes. Indeed, not having health insurance has been linked to “increased morbidity and mortality, decreased access to all health care services, lower use of preventive care, delays in seeking out necessary care, and an increased rate of hospitalization for exacerbation of problems that could have been simply managed on an outpatient basis[,]” as well as “developmental and educational deficits for children, reductions in workforce productivity, and significant familial and community stresses.” Not surprisingly, uninsured hospital patients are more likely to die than insured patients. Uninsured citizens have less access to health care than those with insurance. Even if uninsured adults receive preventive care and a chronic condition is diagnosed, there is usually not adequate follow-up care. Moreover, by the time uninsured adults reach age sixty-five and are able to qualify for Medicare, they require more care than their counterparts who have had insurance. In addition, uninsured citizens use the emergency room as their primary source of care. This places a heavy burden on medical facilities because uninsured persons receive billions in care where the provider is not paid. The uninsured receive about $100 billion in health care services annually for diseases that could have been treated more efficiently had there been an earlier diagnosis.
Clearly, critical economic and policy implications are attached to uninsured citizens. The United States has lost hundreds of billions of dollars in economic output because employees are unable to work, take off for sick days, or perform in a subpar manner due to illness. The United States cannot afford to ignore its uninsured citizens or the lack of affordable access to health care for all Americans.
The organ shortage and national health care crises should not be viewed solely as a problem for poor Americans, but for all Americans. The country cannot afford to exploit the poor by harvesting their organs for cash–they are already the most vulnerable in society and the least able to obtain follow up medical care. Likewise, the United States cannot afford to ignore those who are uninsured or underinsured. But is there a possible compromise? The promise of life-long comprehensive health care in exchange for organ donation is a potential solution that will ensure that organ donors will not be exploited to their detriment. Ensuring that all Americans have health care is on the national agenda, and numerous scholars have proposed various cures to the organ shortage crisis. Thus, the importance of both is not exaggerated, and combining the two may be warranted.
A. Other Proposals
There are many proposed solutions to the organ shortage crisis. Some scholars have recommended broadening the educational awareness of the importance of organ donation, as well as making it easier for individuals to donate their organs. While both of these suggestions are necessary, they alone are insufficient. Others have proposed conscription–simply taking organs of the dead without requiring any consent by the deceased or their family members. Obviously, this solution has some constitutional, religious, and ethical objections, and it ignores the fact that living donors not only provide higher quality organs, but they contribute over one-fourth of the total number of organs transplanted. Still others have recommended presumed consent, which is the choice in many European countries. It provides that every person is presumed to be an organ donor, unless they declare a contrary intention. This opt-out approach is tricky at best because it puts the onus on individuals to undo being an organ donor rather than allowing them to choose to be an organ donor. Presumed consent is distinguished from mandated choice, in which an individual must choose whether to be an organ donor. Another proposal involves a multi-strategy approach, combining several of the prior recommendations to provide a newly-formed procurement system. While these solutions may be helpful, they fail to provide an incentive for the donors.
Scholars have also proposed various financial incentives. These include tax benefits to encourage living and cadaveric donations, providing payments to donors in exchange for consent to harvest their organs at death, discounted drivers’ license fees when registering as a donor to obtain their driver’s license, reimbursement of medical care and burial expenses, and health insurance.
One transplant surgeon, Dr. Arthur Matas, has suggested that “[t]he best way to increase the supply of kidneys without drastically changing the existing allocation system is to legalize a regulated system of compensation for living kidney donors,” but maintain existing prohibitions on private sales. “Such a system could be established using the infrastructure already in place for evaluating deceased donors and allocating their organs. The only change required to ease and probably even solve the organ shortage is some form of payment for donors,” which makes sense because all other participants in the transplantation process (e.g. doctors, coordinators, hospitals and recipients) receive a financial benefit, except for the donors. Also, Americans would not be permitted to harvest the organs from Third World countries. Compensation for donors may include a one-time fixed payment, long-term health insurance, college tuition, tax breaks, or a combination thereof. As explained earlier, there is great cause for concern with outright payment of money as an incentive for donors. But considering a non-cash incentive seems sensible.
B. Proposed Legislation
The United States presently has an altruistic system, simply relying upon voluntary or goodwill donors. This system has not been effective in supplying all of the organs needed in the United States, but it has protected poor Americans from exploitation. Financial incentives are usually sufficient to get people to do things they may not otherwise do, such as donating an organ, but payment for organs is not the cure. In seeking organ donors, one must ask what is it that potential donors lack? What is it that many Americans are lacking? What is it that shows up on most presidential national agenda? The answer is a comprehensive national health care program–Americans want affordable health care.
Under our current organ donation system, everyone wins except for the donors and their families. Organ donations provide hospitals, doctors and transplant coordinators with thousands of dollars for each organ donated. Why not allow living donors to donate a kidney or a piece of their liver in exchange for life-long, comprehensive health care? This would include preventive care and certainly any costs associated with the transplant procedure–that is, long-term health care (at no cost to the donor) as distinguished from health insurance.
Even those with health insurance are often left with significant medical debt because premiums, deductibles and co-payments are not affordable. Studies show that sixty-two percent of those with medical debt incurred the debt at the time they had health insurance. Providing health insurance to organ donors who are still unable to pay other health plan fees would result in a meaningless return. Providing the actual service of health care would confer a meaningful benefit upon the organ donor, as opposed to health insurance which, as it stands now, is generally unaffordable.
Because of the current language in NOTA, however, even giving an organ in return for health care would be considered transferring a human organ for valuable consideration. Thus, to move forward with this recommendation, a change in the United States’ current organ transplant legislation is needed. Hopefully, the states will follow the federal government’s lead.
NOTA is presently comprised of several sections relating to organ transplants. The section most pertinent to this Article is the section titled “Prohibition of Organ Purchases.” The language should be amended to exclude health care services from the definition of “valuable consideration”:
(2) The term “valuable consideration” does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ; the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ; or life-long comprehensive and preventive health care for the donor of a human organ.
1. Pros in Favor of Recommendation
The benefits of this recommendation are significant to the donor, the recipient and the government. Providing health care to organ donors will reduce the organ shortage, as well as the number of Americans without health care, while discouraging black market transactions. Further, it will ensure that the donor will benefit from the transaction, as well as the government via substantial health care savings. It will also continue to prevent the further exploitation of the poor. This proposal may also incentivize moderate-income earners to become organ donors because they too find health care inaccessible and unaffordable. This will result in a healthier population of organ donors, which is needed for successful transplants. This incentive may also encourage those who have health insurance to become organ donors if they cannot afford the health insurance plan fees, further increasing the healthy pool of donors.
Some transplant professionals believe that an organ sales market may actually decrease the current organ supply, because potential donors may not want to donate an organ if they can get compensation for it. Although there is the possibility of a diminished supply of organs if there is an organ sales market where donors receive a one-time cash payment, it seems that this would be less of a possibility if there is instead an exchange for lifetime health care.
This recommendation would also allow those who are traditionally uneducated about health issues to have increased access to information through their health care professionals. This would potentially reduce some of the chronic diseases in the United States. Increasing the number of Americans with health care would also reduce the number of sick citizens and cause less of a strain on America’s economy due to sick workers and shorter life spans for workers who previously did not have health care.
Additionally, this proposal can significantly impact the organ shortage. However, it may only make a dent in the forty seven million uninsured and sixteen million underinsured Americans, because the number of those lacking adequate health care greatly outweighs the number of those who need kidney or liver transplants. Nevertheless, it is a progressive move in the healing of both crises.
This recommendation would also ensure that access to organs is not dominated by wealthy Americans. Instead of providing a menial payout of $15,000 to $37,000–as proposed by Professors Becker and Elias–to a poor person to pay off debt in exchange for an organ and little access to follow up care; it will provide a meaningful, long-term return to the donor. Finally, the organ donors get a benefit.
2. Cons Against Recommendation
Offering life-long comprehensive health care for organs has many benefits, but it also has pitfalls. The cost of health care is very high and “health care is big business.” This is primarily why so many Americans lack health insurance. Providing long-term comprehensive health care may not be considered a “fair” trade-off for donating an organ. Based upon the amount of money that has been spent procuring human organs, the figures advanced by Professors Becker and Elias seem low. But if we consider that the market price for organs is much higher than $15,000 or $37,000, the proposal seems more sensible. Further, providing preventive health care will surely result in future health care savings for the United States.
Finally, how will this solution be implemented; who will pay for it; and who will provide the health care? The shortest answer is the federal government in coordination with health care providers. As mentioned earlier, the United States spends billions in health care annually to care for uninsured Americans with diseases in advanced stages and has lost billions in economic input as a result of uninsured Americans. Thus, the funds are already being spent. This proposal assumes that there would not need to be an infusion of new funds, but rather a shift of funds already being spent. From a cost-benefit perspective, this proposal makes sense. Further, the number of potential organ donors could be limited by a designated monetary amount or a designated number of potential donors. Lastly, the United Network for Organ Sharing (“UNOS”) — a private corporation created by NOTA that operates the Organ Procurement and Transplantation Network (“OPTN”) — presumably would continue to be instrumental in the regulation of organ transplantation.
Overturning NOTA to legalize the purchase and sale of human organs for human transplantation will fail our most vulnerable citizens–the poor. Contrary to the opinions of some transplant professionals, protection of the poor is not a needless paternalistic concern. Yet, legalizing the purchase and sale of human organs is becoming more of a possibility every day. Instead of overturning NOTA, Congress should combine the aforementioned legislative change to NOTA to allow for an exchange of an organ in return for life-long, comprehensive health care with some of the other proposals mentioned above, such as raising awareness, education and increased access to donating. This will increase the number of living organ donors, protect their post-transplant health, and assist with preventable health problems. It will also encourage a healthier and wealthier class of donors, because it is not just the poor who are without health care–the groups of uninsured and underinsured Americans increasingly include middle- to upper-income people. There are some promising proposals being advanced regarding health care plans and recommendations to overcome the barrier caused by high premiums for those who cannot afford them. Rising health care costs have pushed many into debt. But this non-cash incentive would increase the number of living organ donors who would receive life-long, comprehensive health care while not forcing people who are trying to pay for their health care into medical debt, thus encouraging healthier Americans and a healthier America–a benefit for all.
There is no question that our current health care system is remarkably inefficient. The United States government spends a greater percentage of its gross domestic product (GDP) on health care than any other industrialized nation, yet – unlike other industrialized nations who insure all of their citizens – 16 percent of our population is uninsured.