As organ transplants became increasingly successful, the most significant problem related to them was the shortage of available organs. A large gap separated the high demand for organs and their scarce supply. Experts estimated that by the late 1980s, three people were on transplant waiting lists for every available organ. Given the grossly inadequate supply of organs, many vexing ethical, legal, and political issues surrounded the question of what is the best way to harvest or procure organs.
A number of laws sought to address the problem of organ procurement. The Uniform Anatomical Gift Act (8A U.L.A. 15-16 ), drafted in 1968 and adopted in all 50 states, allows any competent adult to state in writing, including by signing a donor card or checking off an item on a driver's license application, whether he wishes to allow or forbid the use of her or his organs after death. The act also permits next of kin to authorize donation. Such a program, termed encouraged voluntarism, relied on the free and autonomous choice of the individual or surviving family as the basis for organ donation.
Organ donation was also aided by brain-death statutes. These made it possible to declare as dead those who have lost whole-brain function but whose bodies are kept alive through artificial means. Such brain-dead persons become potential organ donors. In fact, most organs are obtained from accident victims who are injured in this way.
The combination of encouraged voluntarism and brain-death statutes did not produced adequate numbers of organs. For example, a 1984 study estimated that of the 20,000 people each year who die of accidents or strokes and are medically suitable organ donors, only 3,000 served as donors. Experts estimated that only 3 percent of those who serve as organ donors are actually carrying a donor card at the time they are pronounced dead.
A number of different problems contributed to this shortage of donated organs. Most people were fearful or uncomfortable with thoughts of death—particularly their own—and consequently did not contemplate organ donation. Others pointed out that some states had not yet enacted statutes that recognize brain death as the definition of death. Also, a general distrust of large, impersonal medical institutions kept many people from committing to organ donation. Many people were afraid that if they carried an organ donor card, they would not receive adequate medical treatment in an emergency. Moreover, medical professionals were generally not required to present the option of organ donation to critically ill or injured patients and their families. As a result, even if a person had a donor card, it might go unnoticed.
When the system of encouraged voluntarism established by the Uniform Anatomical Gift Act failed to increase the number of available organs adequately, some individuals advocated establishing a legal market in organs. Some versions of an organ market would allow living individuals to sell one of their kidneys at a market price. More commonly, organ market advocates proposed
the sale of organs taken only from those who have died—that is, cadaveric organs—usually through "forward contracts" signed when the patient was living. However, the sale of organs was barred by state and federal legislation, particularly the National Organ Transplant Act (42 U.S.C.A. § 274(e) ), which stated, "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." Rather than creating an organ market, Congress afterward sought to establish laws that established "required request" protocols. These protocols would require major hospitals to ask a patient's relatives if the wished to donate the patient's organs (Omnibus Reconciliation Act of 1986, Pub. L. No. 99-509, 100 Stat. 1874, 2009).
Some states went a step further, passing "presumed consent" laws that allowed for the removal of organs unless the next of kin objected or it was known that the potential donor objected to such a procedure while alive. Some of these laws allowed only the removal of corneas under such conditions; others applied only to unclaimed dead bodies. The huge demand for organs was expected to lead to the wider passage of presumed consent laws and the creation of market incentives for organ donation.
- Organ Transplantation - Organ Procurement: Is It Better To Give Or To Sell?
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