American Journal of Law & Medicine

Just Say No to NOTA: Why the Prohibition of Compensation for Human Transplant Organs in NOTA Should Be Repealed and a Regulated Market for Cadaver Organs Instituted

The United States faces a shortage of organs for transplantation; thousands of individuals die each year while waiting for organs. The organ donation system relies on altruism because the National Organ Transplantation Act (NOTA) prohibits donors from receiving valuable consideration for organs to be used for transplantation. This paper contains a proposal for a regulated market for cadaveric organs as a mechanism to increase the number of organs available for transplantation. A regulated market for cadaveric organs is appropriate in the United States for the following reasons: (1) it is consistent with the numerous ways in which bodies are currently treated as commodities; (2) it is unlikely to further disadvantage the poor; (3) it would not expose organ recipients to undue harm; (4) in the current organ transplantation system, everyone except the organ donor, benefits financially; (5) the prohibition in NOTA is inconsistent with laws permitting next of kin to recover for damage to the body of a deceased family member; (6) the protection of the dignitary interests of organs for donation is inconsistent with the current protections of the dignitary interests of human specimens; and (7) permitting a market for organs promotes the American values of autonomy and liberty.

I.   INTRODUCTION
II.  HISTORY OF COMMODIFICATION OF THE BODY AND
     TRANSPLANTATION
     A. Transplantation
     B. The Recognition of Property in Cadavers
        1. The Common Law
        2. Statutory Law
           a. General Guidelines on Post Mortem Donations
           b. Priority of Decedent's Wishes Over the Next of Kin
           c. Presumed Consent Laws & Gifts by Coroners
     C. Sale of Body Parts
        1. Pre-NOTA: Historical Context
        2. National Organ Transplantation Act
        3. State Legislation Post-NOTA
        4. Providing Economic Incentives for Organ Donation
           (Circumventing NOTA)
           a. Body Parts Exempt From NOTA
           b. Sale Not for the Purpose of Human Transplantation
           c. Benefit is not Valuable Consideration
     D. The Administrative System for Organ Allocation and
        Distribution
III. Options for Increasing the Donor Pool
     A. Choice-Based Options
        1. Altruism & Informed Consent
        2. Express Consent
        3. Required Request
        4. Mandated Choice
        5. Presumed Consent With Opt-Out
     B. Incentive-Based Options
        1. Reciprocity Incentives
        2. Compensating for Out-of-Pocket Expenses
        3. Death Benefits
        4. Paired Organ Exchanges
        5. Sale of Organs
IV.  Why the United States Should Permit a Regulated Organ
     Market
     A. A Regulated Organ Market is Consistent With the Numerous
        Ways That Bodies are Currently Treated as Commodities in
        the United States
     B. The Sale of Human Organs is Unlikely to Further
        Disadvantage the Poor
     C. A Market Would Not Expose Recipients to Undue Harm
     D. Everyone Except the Organ Donor Benefits Financially
     E. The Prohibition Against the Sale of Body Parts for
        Transplantation is Inconsistent With Laws Permitting Next of
        Kin to Recover for Damage to the Body of a Deceased Family
        Member
     F. The Protection of the Dignitary Interests Associated with
        Human Organs for Donation is Inconsistent with the Current
        Protections of the Dignitary Interests of Human Specimens
     G. Permitting the Sale of Organs is Consistent with Promoting the
        American Values of Autonomy and Liberty
V.   Proposal for a Regulated Organ Market
     A. Organization of the Regulated Organ Market
     B. Who May Choose to 'Self the Decedent's Organs
     C. Transition Provisions
Table 1. State Presumed Consent Laws
Table 2. Comparison of Laws Prohibiting the Sale of Body
        Parts

I. INTRODUCTION

Organ transplantation saves thousands of lives every year. (1) Unfortunately, many individuals die waiting for transplants due to an insufficiency of organs. (2) Currently, more than 123,000 individuals are waitlisted for organs in the United States. (3) Due to financial and other barriers to becoming waitlisted, the actual number of Americans requiring organs is likely higher. (4) The gap between available organs and the need for organs continues to widen. (5) The supply of organs is limited as only a small number of individuals die in circumstances medically eligible for organ donation, and less than 68% of eligible individuals donate. (6) As a result of long waitlists and limited supply, there is a substantial need to increase organ donations. This paper focuses on increasing consent rates for cadaveric organ donation in the Unites States by repealing current law prohibiting cadaveric donors and their estates from receiving financial compensation. (7)

The current organ donation system in the United States relies on the altruism of donors. The National Organ Transplantation Act (NOTA) prohibits the receipt of any form of valuable consideration in exchange for organs to be used for transplantation. (8) State statutes also prohibit the sale of certain organs and tissue for transplantation; (9) however, state laws vary widely as to what body parts are covered. (10) As paying for organs is prohibited, other methods have been employed in attempts to increase donations. (11) Despite the implementation of these strategies, a severe organ shortage remains. (12)

II. HISTORY OF COMMODIFICATION OF THE BODY AND TRANSPLANTATION

A. Transplantation

Transplantation and transfusion have a long history. Over 3000 years ago, procedures for repairing mutilated noses using autologous skin grafts were devised in India and later depicted in Egyptian papyri. (13) Initial attempts at blood transfusions in the mid-seventeenth century were unsuccessful; (14) it was not until 1825 that blood was successfully transfused between humans. (15) The discovery of blood types and blood incompatibilities in 1901 led to wide use of blood transfusions. (16) Techniques for the transplantation of vessels and organs were also developed around the turn of the nineteenth century. These techniques later became the basis for successful organ transplantation. (17)

Successful human transplants began in the early twentieth century. The first successful corneal transplant occurred in 1905, in the Czech Republic. (18) In 1911, the first testis transplant was conducted in the United States. (19) A landmark was reached in the 1940s when research elucidated the role of the body's immune system and histocompatability in the rejection of transplanted grafts. (20)

In 1947, a temporary kidney transplant enabled a patient to recover from a reversible form of severe kidney failure, revealing the potential for kidney transplants to successfully treat kidney failure. (21) The first long-term successful kidney transplant occurred in 1954, when a kidney was transplanted from a healthy twin to his brother who was suffering from advanced kidney disease. (22) By 1970, more than 3000 kidney transplants had been performed, 1000 of which were performed in 1969. …

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