American Journal of Law & Medicine

Bartering for a Compatible Kidney Using Your Incompatible, Live Kidney Donor: Legal and Ethical Issues Related to Kidney Chains

Kidney chains are a recent and novel method of increasing the number of available kidneys for transplantation and have the potential to save thousands of lives. However, because they are novel, kidney chains do not fit neatly within existing legal and ethical frameworks, raising potential barriers to their full implementation.

Kidney chains are an extension of paired kidney donation, which began in the United States in 2000. Paired kidney donations allow kidney patients with willing, but incompatible, donors to swap donors to increase the number of donor/recipient pairs and consequently, the number of transplants. More recently, transplant centers have been using non-simultaneous, extended, altruistic donor ("NEAD") kidney chains--which consist of a sequence of donations by incompatible donors--to further expand the number of donations. This Article fully explains paired kidney donation and kidney chains and focuses on whether NEAD chains are more coercive than traditional kidney donation to a family member or close friend and whether NEAD chains violate the National Organ Transplant Act's prohibition on the transfer of organs for valuable consideration.



Each year thousands of patients die due to the shortage of kidneys for transplantation. To save their lives, physicians, scientists, and transplant centers have been continually experimenting with new techniques to increase the number of available kidneys. (1) One recent innovation that has been very successful is the use of kidney exchanges to overcome barriers to donation due to immune system or blood type incompatibility.

Since the year 2000, paired kidney donations have allowed patients with willing, but incompatible, live donors to swap donors in order to increase the number of compatible donor/recipient pairs and consequently the number of transplants. (2) More recently, some transplant centers have used kidney chains--which consist of a sequence of kidney matches and also involve willing, but incompatible, donors--to further expand donations. (3) The mechanics of paired kidney donation and kidney chains, together known as kidney exchanges, are fully explained in this Article. (4)

Kidney exchanges have saved hundreds of lives, but they also raise ethical and legal concerns. This Article focuses on two of the most pressing concerns with respect to kidney chains. First, kidney chains are arguably more coercive than traditional direct donation to a loved one because the living donor no longer needs to be compatible with the recipient and, therefore, almost any healthy family member under age sixty can be pressured to donate." Kidney chains are also arguably more coercive because donors may be aware that many recipients are relying on their donation--rather than just one recipient with traditional donation--and because the moral obligation to donate may continue over a period of time, whereas in a traditional donation, a donor can back out right up to the time of donation without violating any promise to the transplant community. (6)

Second, the National Organ Transplant Act ("NOTA") prohibits the transfer of human organs for valuable consideration. (7) This prohibition is supported by ethical and policy considerations, including the dangers involved in the commodification of human organs. (8) Kidney exchanges, as demonstrated by the name itself, involve trading kidneys, which arguably violates the prohibition in NOTA. "Because the donor ... [is] providing his organ in order to obtain a compatible organ for his loved one, it can be argued that the donor is receiving [valuable] consideration for his act." (9) In response to this argument, NOTA was amended to explicitly permit paired kidney donation; however, kidney chains were not included in the amendment. (10) Whether kidney chains violate NOTA therefore remains an open question.

This Article begins with general background on kidney transplants and then explains kidney exchanges, including paired kidney donation and kidney chains. It then focuses on whether kidney chains are more coercive than traditional direct donation to a family member and on whether kidney chains should be found to violate the prohibition on transferring organs for valuable consideration found in NOTA. In interpreting NOTA, this Article discusses not only the language of the statute itself, but also the legislative history, the purpose of the amendment allowing paired kidney donation, and the legal and ethical considerations supporting kidney chains.


The first successful kidney transplant was performed in 1954 when a live donor gave his kidney to his identical twin brother. (11) The transplanted kidney functioned for nine years. (12) The first successful cadaveric donation was performed eight years later in 1962. (13) Despite these successes, early transplants were plagued with poor outcomes. (14) Between forty and fifty percent of patients suffered from kidney failure during the first year after a transplant due to "irreversible rejection." (15) Indeed, "the morbidity and mortality after deceased donor transplants was so great" that many patients preferred to continue on dialysis rather than risk a transplant. (16)

To deal with the problem of rejection, cyclosporine--a potent immunosuppressant drug--was introduced in the early 1980s. (17) Use of this drug dramatically improved patient outcomes and led to a large increase in the number of transplant centers. (18) Continuing advances in medical science, including even better immunosuppressant drugs and surgical techniques, further enhanced the benefits associated with kidney transplantation (19) and made kidney transplants a routine treatment for end-stage renal disease ("ESRD") (20) in more than eighty countries. (21) As of June 30, 2011, kidney transplantation had extended the lives of more than 164,200 patients with ESRD in the United States alone. (22)


While these numbers are impressive, many more people could benefit from kidney transplants if the demand for kidneys did not far exceed the supply. (23) More than 100,000 people are waiting for a deceased donor kidney, (24) but only about 17,000 kidney transplants are performed each year. (25) Approximately 4800 patients will die this year alone waiting for a kidney and another 3700 patients will be removed from the waiting list because they will have become too sick to qualify for a transplant, resulting in the combined deaths of approximately twenty-two patients each day. (26)

Not only is the shortage of kidneys critical, but the situation is likely to get worse. (27) The demand for kidneys is rising, (28) while the number of deceased donor kidneys available for transplantation has remained relatively steady. (29) The reasons for the increase in demand include improvements in immunosuppression drugs, which allow more patients to benefit from transplants; (30) improved diagnostic capabilities; and the rise in ESRD due to increases in type 2 diabetes, high blood pressure, and other causes of chronic kidney disease. (31) At this point, the demand for kidneys is so high that "even if all potential cadaveric organ donors actually donated their organs, the supply of kidneys would be insufficient to meet the growing demand." (32)

Meanwhile, the number of organs from deceased donors has decreased in recent years due to a "substantial decline [] in highway fatalities" and gun control. (33) Transplant physicians have tried to compensate for the shortage of kidneys by using expanded-criteria donor ("ECD") kidneys (34) and kidneys recovered from donations after circulatory death ("DCD"). ECD organs, also known as extended-criteria or marginal organs, are "defined as organs that carry additional risks for transplantation beyond those associated with the standard transplant procedure." (35) The United Network for Organ Sharing ("UNOS") further limited the definition of ECD kidneys to include only kidneys from donors over sixty years old or between the ages of fifty and fifty-nine who have two of the following three risk factors: "stroke, hypertension or abnormal kidney function." (36) DCD, "also known as non-heart-beating, circulatory death, or imminent death organ donation," (37) applies when an organ is taken from a heart-dead donor, (38) rather than from a standard brain-dead patient with a beating heart. (39) Recipients of both ECD and DCD kidneys suffer higher mortality and morbidity than recipients of standard kidneys. (40) Despite the inferior outcomes, (41) some patients chose to receive these kidneys, rather than waiting for a standard kidney donation ("SCD") from a deceased donor because the outcomes in quality and quantity of life with an ECD or DCD kidney are significantly better than continuing with dialysis. (42)

In December 2014, UNOS instituted a new kidney allocation system to assess the quality of deceased donor kidneys in place of using the less accurate SCD, ECD, and DCD metrics. (43) Under this system, all available deceased donor kidneys are assigned a score known as the kidney donor profile index ("KDPI"). (44) This score ranges from 0% to 100% and takes ten factors into account, including whether the kidney was donated after circulatory death. (45) The KPDI score is considered to be a "substantial improvement" in determining how long the kidney is expected to function after a transplant compared to using the ECD, SCD, and DCD terminology. (46)

Using ECD and DCD organs within the KDPI system has extended the donor pool, but the increase has only been moderate and demand still far exceeds supply. (47) To meet the demand for kidneys, scientists are currently working on technological advances, such as "artificial organs, cell transplantation, xenografting, and laboratory-grown organs[,]" which may obviate the need for human kidneys altogether. (48) Until those options are viable, (49) however, the only alternative that can significantly increase the kidneys available for transplantation is using living donors. (50)


Physicians are hesitant to use living donors because removing a kidney involves possible harm to a healthy person who will receive no medical benefit from the operation. (51) However, the benefits of kidney transplantation for recipients are so great that they have been found to outweigh the apparently small risk of harm to donors. Past studies have consistently confirmed that the risk to donors from the transplant procedure is "very low" (52) and that donating a kidney does not appear to have a significant effect on the donor's long-term survival or quality of life. (53) But this conclusion has been called into question by two recent studies. One of the studies found mild renal dysfunction "in 60% of patients after [kidney donation]" and both studies noted that there have been no long-term follow-up studies of kidney donors. (54) While neither study concluded that donating a kidney has a significant long-term negative effect on quality or quantity of life, the authors of both studies recommended that more research be performed to determine if donating a kidney causes a significant increase in "ESRD, cardiovascular, or all-cause mortality over the long-term." (55)

The burdens of live kidney donation have also been reduced by the move to laparoscopic surgery. Laparoscopic removal of donor kidneys has resulted in significantly less pain and a faster recovery time. (56) Not only do the burdens of donation appear to be manageable, but donors also may receive a substantial emotional benefit from saving and improving the life of a patient with ESRD, especially a loved one.

Patients with ESRD could use dialysis to prolong their lives, but kidney transplantation is a much better option. (57) Dialysis is "a blood-cleaning process which filters toxins and rids the body of excess liquid ...," (58) The process, however, is both physically and emotionally taxing. (59) Dialysis requires patients to tether themselves to dialysis machines for approximately four hours, three times each week. (60) The process is not only time-consuming, but also leaves "many too drained to work." (61) Even worse, "only half of dialysis patients survive more than three years." (62) "Many of the 400,000 [patients] tethered to dialysis dream of a transplant as a way back to normal." (63)

The benefits of receiving a transplant are immense. Patients who receive a kidney transplant live an average of ten years longer than those on dialysis, (64) and transplant patients have higher quality, more productive lives. (65) As a significant added benefit, transplants have the potential to save the federal government billions of dollars. Federal Medicare "pays most of the treatment costs for chronic kidney disease," (66) but this coverage costs the government more than thirty billion dollars each year, (67) or approximately six percent of the Medicare budget. (68) The government saves "an estimated $500,000 to $1 million [over a patient's lifetime] each time a patient is removed from dialysis through a live donor transplant." (69) The tremendous benefits of kidney donation in improving quantity and quality of life and saving millions of tax dollars are maximized if the transplant is from a live, rather than a deceased, kidney donor. (70)

"[B]oth short- and long-term graft survival rates are better for recipients with a living (vs. cadaver) donor." (71) The recipient of a kidney from a live donor will have an average of sixteen dialysis-free years, while the recipient of a deceased donor kidney will have only an average of 8.6 dialysis-free years. (72) The reasons for the superior outcomes with living donors include (1) the increased chance of finding a genetically-related donor who is a better tissue match, (73) (2) the ability to schedule the surgery at the optimal time for the recipient, (74) (3) the shortening of the wait for a kidney and therefore the time on dialysis, (75) and (4) the fact that the donor can travel to the transplant site, thereby reducing transit time that can damage the kidney. (76) While living donors "should be donors of last resort," (77) the shortage of deceased donor kidneys, "better outcomes for recipients, low risk for donors, and the right to donate all support the use of living donors." (78) Approximately forty percent of kidney donations are now from living donors. (79)

Thus, finding a willing living donor appears to be the ideal solution for individuals with ESRD who qualify for a transplant, but many are unable to find willing donors and many others have willing donors who are unable to donate their kidneys due to medical concerns or biological incompatibility. (80) Some donors have medical conditions that "pose a threat to the prospective recipient or make donation unusually dangerous to the donor." (81) Others have incompatible blood types or the recipients have antibodies that prevent the donation. (82) Potential recipients with these donors end up on dialysis and on the waiting list for a deceased donor transplant even though they have a live donor willing to give them a kidney.


To determine whether a recipient can receive a donor kidney, both the donor and recipient will be tested for HLA and blood type compatibility. (83) The antigen match between the donor and recipient determines compatibility. Antigens are proteins on the surface of most cells in the human body, (84) and they are important because white blood cells, which form "the backbone of the human immune system," recognize antigens that are foreign to an individual's body. (85) Once an antigen is recognized as foreign, the white blood cells stimulate an immune response (86) and, in this way, protect the body from invaders such as infections and viruses. (87) Because a transplanted organ may also have foreign antigens, the white blood cells may attack the organ and cause the body to reject it. (88)

To be compatible, "two sets of antigens must match;" donor and recipient must be both blood type ("ABO") and human leukocyte antigen ("HLA") compatible. (89) HLAs play a pivotal role in the immune system. (90) Advances in immunosuppressive drugs, however, have made successful transplants possible even if there is an HLA mismatch between the donor and recipient, (91) so long as the recipient is not pre-sensitized. (92) A pre-sensitized patient's immune system has already created antibodies to attack a donor's HLA antigens producing a greater risk of graft rejection and organ failure.

To determine whether a patient is pre-sensitized, labs measure panel reactive antibodies ("PRAs"). (93) A positive PRA cross-match indicates that the recipient has pre-formed antibodies that would react to a donor's organ and result in a high likelihood of graft rejection and organ failure. (94) On the other hand, a negative PRA cross-match indicates that the patient does not have these pre-formed antibodies and therefore "the likelihood of rejection is low." (95) Common causes of sensitization include previous transplants, blood transfusions, and pregnancies. (96) In each of these cases, the patient is likely to have been exposed to foreign antigens and, in response, will have produced substantial antibodies. (97)

Not only must the PRA cross-match be negative, but recipients and donors must also have compatible blood types. (98) While high, multi-drug doses of immunosuppressive drugs may allow recipients to receive kidneys from donors who are HLA incompatible, the same is not true for blood type. In general, physicians will perform transplants only when the donor and recipient have compatible blood types."

To deal with positive cross-matches and incompatible blood types, which make up more than thirty percent of donor-recipient pairs, (100) some hospitals use a blood-filtering technique called plasmapheresis and other desensitizing procedures. (101) These procedures, however, are "labor intensive," technically demanding, and expensive. (102) Many hospitals do not have the resources or expertise to perform them and, in any event, finding donors that have compatible blood types is the preferred choice because this solution results in higher rates of successful transplantation. (103) There is also an advantage to finding a good HLA match between the donor and recipient, rather than relying on "aggressive immunosuppressive regimens to counteract the influence of increased HLA disparity." (104) Recipients who have closer HLA matches with the donor have fewer side effects from immunosuppression drugs. (105)

But patients often do not have the luxury of finding the best kidney donor. "Each year, more patients go on the cadaver waiting list than are actually transplanted. Thus, the waiting list continues to grow and, as a result, the waiting time gets longer." (106) The average wait for a kidney transplant is now more than four years" (107) and waiting translates to more deaths. In a recent three-year period, "more than 20,000 wait-listed [patients were] removed from the waiting list because they died or became too sick to undergo transplant." (108) With so much at stake, distributing the kidneys that become available in a just and equitable manner takes on critical importance. (109)

D. Statutes and Entities Responsible for the Equitable Distribution of Kidneys for Transplantation

There are two main statutes that govern the distribution of human organs: the Uniform Anatomical Gift Act ("UAGA") (110) and NOTA. (111) The UAGA was adopted in 1968 by the National Conference of Commissioners on Uniform State Laws (112) to provide a legal mechanism for individuals to donate their tissues, organs, and/or bodies after death. (113) By 1973, the UAGA had been adopted in some form by every state and the District of Columbia. (114)

Congress passed NOTA in 1984 (115) to "address the nation's critical organ donation shortage and improve the organ matching and placement process." (116) Under NOTA, the Secretary of Health and Human Services ("HHS") was given the task of selecting a nonprofit organization to maintain the Organ Procurement and Transplantation Network ("OPTN"), (117) an organization responsible for creating, inter alia, "a national list of people who need organs ... and medical criteria for allocating the organs." (118) In 1986, HHS selected UNOS--a preexisting, nonprofit entity that had already established a computer registry of individuals waiting for kidneys. (119) UNOS has operated the OPTN continuously since 1986. (120)

When UNOS began operating the OPTN, its responsibilities centered on deceased donor organs. UNOS created and maintains an extensive waiting list for available deceased donor organs and develops policies for allocating those organs. (121) In 2004, HHS expanded UNOS's mission by directing "the OPTN to [also] develop data reporting requirements and guidelines for live donations." (122)

UNOS implements its allocation policies through a point system, (123) which takes into account equity and utility--ensuring that everyone has access to a kidney, while maximizing gains in quality and quantity of life. (124) Under UNOS directives, once a kidney becomes available for transplant, patients on the waiting list are assigned points based on "blood type, HLA antigen match, time spent on the waiting list, the region where the kidney is harvested," and other factors. (125) Each criterion for awarding points has an ethical or medical underpinning that justifies its relevance in allocation. (126)

While UNOS creates the point system for allocating organs, it does not determine which individual patient on the waiting list will actually receive an organ or physically deliver an organ to the patient or transplant hospital. Organs are harvested and distributed by a network of fifty-eight Organ Procurement Organizations ("OPOs") in the United States; (127) each OPO is responsible for its own geographic region. (128) An OPO is defined as "an organization that performs or coordinates the procurement, preservation, and transport of organs and maintains a system for locating prospective recipients for available organs." (129) OPOs are non-profit entities. (130)

When a deceased donor becomes available, (131) the OPO for that region tissue-types the organ and collects other relevant information based on UNOS criteria. (132) The OPO then enters the data about the organ into a computer system, which ranks potential recipients from the wait-list based on the point system created by UNOS. (133) Once the OPO determines the first-ranked patient, it contacts that patient's transplant team. (134)

The final decision about whether to accept a particular organ remains the prerogative of the transplant surgeon responsible for the care of the patient. (135) Each transplant center is also given the freedom to consider some additional criteria, which can affect the allocation of the organ. (136) For example, if a later-ranked patient can no longer be maintained on dialysis, a physician can use his or her medical judgment to assign additional "medical urgency" points to that patient, thereby jumping the patient to a first-ranked position. (137) Physicians can make this decision alone unless there is more than one kidney transplant center in the local area. In that case, physicians at all the local transplant centers "must make a cooperative decision as to whether or not points for medical urgency will be assigned to the patient." (138) By allowing physicians this latitude, the allocation system gains the advantage of taking into account the clinical judgment of physicians as to the best use for the organ. (139) However, to ensure that the policies established by UNOS are generally followed, if a physician chooses not to give a kidney to the patient who ranks first using UNOS criteria, the physician must justify, in writing, what other acceptable criteria the physician used in deciding to allocate the organ to a different patient. (140) Once the appropriate recipient of the organ is determined, the OPO is responsible for harvesting the deceased donor organ and delivering it to the transplant center. (141)

Despite this well-developed system with its emphasis on equitable allocation, the extreme shortage of kidneys for transplantation has resulted in increasing deaths, transplant tourism, and a black market for human kidneys. (142) A wide range of solutions has been proposed to increase the number of available kidneys, (143) but perhaps the most promising interim solution is to take full advantage of paired kidney donation and kidney chains.



About a third of kidney patients that have a willing donor must decline the offered kidney because of blood group or cross-match incompatibility. …

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