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Organ Transplantation

Organ Procurement: Is It Better To Give Or To Sell?

In the early days of organ transplant surgery, during the 1960s and 1970s, the practice was seen as experimental and risky. Patients' bodies often rejected a transplant, and the survival rate in many cases was deemed too low to be acceptable. However, with the development of new surgical procedures and the wide use of new immunosuppressive drugs such as cyclosporine in the 1980s, organ transplantation became a common medical technique available to more and more people. In the 1980s, over 400,000 transplants were performed in the United States. The age range of heart transplant recipients has expanded from forty-five to over sixty at the upper limit, and to infancy at the lower limit.

Results such as these have caused such a demand for organ transplants that there are far more potential organ recipients than available organs. Those who are deemed medically suitable to receive organs are put on long waiting lists, and it is often months or years before they get the organs they need; many others are deemed medically unsuitable and are not even put on waiting lists. Some have criticized the term medically unsuitable as an ARBITRARY and uncertain medical judgment used simply to prevent raising the hopes of those who are unlikely to get a timely transplant.

What should be done about this dire shortage of organs available for transplantation? Three different organ procurement systems have been proposed as a means of alleviating the situation: an organ market, a presumed consent program, and a required request program. All three proposals have their advocates and detractors.

Organ Market Although the sale of human organs was made illegal by the 1985 National Organ Transplantation Act (42 U.S.C.A. § 274(e)), an organ market remains a widely discussed alternative to the generally accepted approach of encouraged voluntarism. Its supporters claim that the system of encouraged voluntarism, which supplies organs free of cost through altruistic donation, has created a rapidly worsening organ shortage.

Typically, advocates of the market system are quick to note that they do not support a market in organs from living donors, nor do they envision donors and recipients haggling in hospital rooms. Instead, they focus on paying potential donors a fixed amount for signing a contract that authorizes the future removal of one or more of their organs at death. This may, for example, occur in the form of a uniform cash payment or tax credit to all individuals who agree to sign a donor form on the back of their driver's license application. This type of arrangement is called a forward market because payment for the organ occurs well before the organ is removed. The amount paid for such donor contracts could be adjusted up or down depending on the demand for organs.

Some of those who call for an organ market take the economist's perspective and claim that it is the best alternative because it would maximize social welfare. The benefits of such a system would include an increase in the supply of organs, and thus the saving of many more lives and the improved health of many more patients. More patients who have to undergo the expensive and time-consuming procedure of kidney dialysis, for example, would be able to instead receive a transplant. Moreover, firms and individuals engaged in the procurement business would have a direct financial incentive to increase public awareness of the facts surrounding organ donation and transplantation.

Advocates claim that a market would also produce a number of indirect benefits. Medical professionals would be able to choose from a greater number of available organs from the dead—termed cadaveric organs—and obtain higher-quality organs that more precisely match the tissue type of the recipient. With more closely matched organs would come less need to rely on living donors, thus avoiding the pain, loss of pay, and risks associated with donor surgery. Moreover, more organs would mean more transplant operations, and with increased frequency, the cost of those operations would fall as hospitals and their staffs become more proficient at conducting and managing them. Organ market supporters also argue that an undersupply of organs leads to a black market, and that this market will only become greater with time. Finally, an increase in the harvesting of cadaveric organs would eventually lead to greater social acceptance of the practice as part of the death process.

Critics see an organ market as not expanding the number of choices available but diminishing them, thereby undermining the ethical goal of individual autonomy and free choice. Even if sales were restricted to organs from those who are dead, they claim, the potential conflicts of interest on the part of physicians, patients, and families would erode the capability of individuals to make decisions about their own bodies. Critics also point out that if the sale of organs from living subjects were permitted, poor people would have economic incentives to sell their body parts, and as a result their own health could suffer.

Detractors of the market approach also claim that it would not increase the supply of organs and that the price of organs would be so high that few people would consent to give away their valuable organs. Some also claim that an organ market would result in lower-quality organs because poorer people, who are generally less healthy, would be more likely to sell organs for profit. Moreover, if organs had to be purchased, poor people would not be able to afford transplants. Market advocates counter that the total costs of organ transplantation would likely fall under a market system, making it more, not less, accessible to poor people.

Presumed Consent Program The presumed consent system of organ procurement is currently used in many European countries. It means that medical professionals are presumed to have a deceased individual's and surviving family members' consent to remove needed organs, unless those individuals have earlier made known their objections to organ removal. Supporters of this system argue that it increases the supply of organs, makes the decision to remove organs much easier, and further removes the physician and hospital from liability.

Critics of the presumed consent system find fault with it for economic, legal, and ethical reasons. Looking at the program in terms of economics, they claim that it does not actually increase the number of organs harvested because it does not impose financial incentives for organ requests. As a result, medical staff still exhibit a reluctance to remove organs and that leads to a continuation of the organ shortage. Critics also claim that a presumed consent system is expensive to create and maintain. It requires the creation of large, centralized registries listing individuals' decisions regarding their own body, and these must be updated continuously. Mistakes inevitably occur, causing unwanted organ removal and expensive lawsuits.

Other critics of the presumed consent system find it legally suspect and charge that if it is implemented in the United States it will violate the DUE PROCESS CLAUSE of the Constitution.

Those who find fault with the ethical premise of presumed consent argue that it removes the moral dignity surrounding donation by making it mandatory. It also detracts from the goal of free choice and autonomous behavior by precluding the individual from making no decision or from leaving the decision to others.

Required Request Program A required request program is a more moderate approach to the problem of organ donation. It seeks to reform the existing system of encouraged voluntarism by requiring that family members or guardians be given the opportunity to make an organ donation when a death has occurred. Such a program would require hospitals to have a specially trained person to approach families and inquire about organ donation at the time death is pronounced. The request would be noted in writing on the death certificate to ensure that medical providers comply with the policy. The required request system would allow for exceptions in cases where a request would not be in the best interests of family members or guardians, with such exceptions also duly noted on the death certificate. Such a system, its advocates claim, would increase freedom of choice by informing individuals of their options.

Proponents of this system point to statistics that indicate that in the U.S. public, the level of altruism regarding organ donation is quite high. In some hospitals, for example, over 60 percent of the families who were asked to donate the organs of loved ones agreed to do so. The problem with the current system, they maintain, is that donor cards do not adequately tap this altruistic sentiment. They also note that a required request system would ensure that donor cards or written directives are honored. With time, such requests would become a routine part of the death process in medical facilities, making them less surprising and less intrusive to family privacy at the time of death.

Critics of the required request system say that it would not do enough to change an already flawed organ procurement system. Moreover, they argue that approaching families in the hours following the death of a loved one imposes too much psychological distress.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Ordinary resolution to Patients' Rights - ConsentOrgan Transplantation - Organ Shortages, Organ Procurement: Is It Better To Give Or To Sell?, Controversial Issues