Organ Donation Law

Dramatic developments in organ and tissue transplantation have allowed persons with life-threatening illnesses a chance to live. The successful transplantation of kidneys, livers, hearts, lungs, eyes, and skin has been enhanced by better surgical techniques and new drugs, such as cyclosporin, that prevent the body from rejecting a transplanted organ. Success, however, has led to an undersupply of organs for the estimated 30,000 patients each year who need a transplant. Laws have been enacted at the state and local level that attempt to provide a better system of organ donation and distribution and to encourage individuals to volunteer to be organ donors.

The Uniform Anatomical Gift Act that was drafted in 1968 was the first effort at providing a national organ and tissue donation policy. The act created a uniform legal procedure for persons who wish to donate organs and for hospitals and medical institutions that want to accept them. Under this model act, which has been adopted in some form by all 50 states, a person of sound mind, who is at least 18 years of age, may donate all or part of his or her own body. There are several ways for a donor to record the wish to make a donation. The donor may include the donation in a will. If part of a will, the provision becomes effective immediately upon death, unlike other provisions of the will, which need to go through probate before they become effective. In practical terms, however, a will may be ineffective. Time is of the essence in organ donation, and if the will is not read for several days, it may be too late to make an effective donation.

The uniform act provides for a more common form of recording a person's intention to make an organ donation: a donor card that may be carried in a wallet. States also allow this donor information to be imprinted on a driver's license. When a person applies for a driver's license, she or he has the option of including a desire to donate organs. Despite the simplicity of this option, it has not generated the quantity of donors that proponents of the procedure expected.

A written donation must be signed by the donor and witnessed by at least two other people. A donation can be made orally, but it too must be witnessed by at least two other people. A dying patient can communicate his or her wish to donate organs to an attending physician, who can act as one of the witnesses. However, the attending physician cannot be the doctor who removes or transplants the organ.

A person can revoke in writing or orally her or his intent to make an organ or tissue donation. If a dying person is unable to communicate and has not expressed an intent to donate, a family member or guardian can make a gift of all or part of the person's body, within certain limitations. In general, even if a person has expressed the intent to donate, physicians still ask permission of a family member or guardian.

The uniform act forbids the sale of body parts. The recipient cannot pay for the donated organ but must pay for the cost of transportation and transplant. Organs and tissue can only be received by hospitals, surgeons, physicians, educational institutions involved in medical or dental research, a storage facility for these institutions, or any specified individual who needs the organ personally for therapy or transplantation.

A 1986 federal law (42 U.S.C.A. § 1320b–8) requires all hospitals participating in MEDICARE or MEDICAID to implement a "required request" policy. Hospitals are required to discuss with potential donors and their families "the option of organ and tissue donation and their option to decline."

The 1984 National Organ Transplant Act (42 U.S.C.A. §§ 273 et seq.) initiated a national HEALTHCARE policy regarding ORGAN TRANSPLANTATION. The act provided funds to help establish "qualified organ procurement organizations", banned the interstate sale of organs, and created a task force to study organ transplantation policy issues. The 1986 task force report was an exhaustive examination of the medical, legal, social, and economic implications of organ procurement and transplantation. The 1986 required "request law" came from one of the task force's recommendations.

Despite these legal and medical mechanisms that seek to encourage organ donation, demand has continued to exceed supply. In 1996 it was estimated that eight people died every day waiting for a transplant that never came because of the donor shortage. In response, Congress enacted the Organ Donor Insert Card Act in 1996 (Pub. L. No. 104-91, 110 Stat. 1936). The act directed the secretary of the treasury to enclose with each tax refund check in 1997 an organ donor card. It was estimated that these

cards would reach 70 million U.S. families and would result in increased donations.

The location of a potential donee of a transplant has had a significant effect on whether the donee receives an organ. In 1998, for instance, a patient awaiting a kidney transplant could expect to be on a waiting list for only 107 days in Oregon, but as long as 1,680 days in New York. A severely ill patient in one state could die while waiting, even though a patient in another state could receive a transplant before he or she was even sick enough to be hospitalized.

Because of this disparity, the HEALTH AND HUMAN SERVICES DEPARTMENT (HHS) in 1998 issued the Organ Procurement and Transplantation Network, which changed the distribution and allocation of organs by broadening transplant areas. The old system of distribution and allocation allowed organs to be distributed locally first. This policy was based on the belief that local distribution gave states and local medical institutions an incentive to promote organ donation. If the organs were to be distributed regionally or nationally, states and hospitals might conclude that successful promotion of organ donations turned the state into a supplier for other states that were not as successful in encouraging donations.

The new regulations angered a number of states and hospitals. The state of Wisconsin, the University of Wisconsin Hospitals, and Froedert Memorial Lutheran Hospital filed a lawsuit in federal district court, claiming that the regulations would severely reduce the number of organs available to their patients. The plaintiffs alleged that the HHS lacked legislative authority to broaden the regional organ sharing networks. In addition, the plaintiffs claimed that the regulations would injure the hospitals financially because they would have to pay a larger amount of the transplantation network's operating costs. However, in an unpublished decision, a federal district court in Wisconsin dismissed the case because the plaintiffs lacked standing to file the lawsuit.