Steve P. Calandrillo, Cash for Kidneys? Utilizing Incentives to End America's Organ Shortage, 13 Geo. Mason L. Rev. 69 (2004), https://digitalcommons.law.uw.edu/faculty-articles/137
George Mason Law Review
National Organ Transplant Act, organ donation, Uniform Anatomical Gift Act
This article addresses the growing organ shortage in America, analyzes current donation and procurement law, and explores both monetary and nonmonetary incentives aimed at eliminating the worsening crisis.
Part I details the law governing human organ donation. Under both the Uniform Anatomical Gift Act (“UAGA”) and the National Organ Transplant Act (“NOTA”), no donor of a human organ may receive “valuable consideration” for providing it. Congress’ intention was simply that the organ recipient be given the “gift” of life—not one which she had to purchase on the market. In reality, the consequences of the Act bear little resemblance to its initial intent. Organ scarcity has been the unintended result, leading to a thriving global black market in human organ sales.
Part II explores the traditional arguments that scholars and legislators have raised against legalizing the sale of human organs. Notions of morality, distributive justice, imperfect information, and negative externalities are routinely offered to justify the current law prohibiting sales.
Part III explores some of the limitations of the above rationales, offering reasons why properly regulated organ sales may not be as far-fetched or offensive as some initially think. I will offer suggestions for responsible regulation of sales to guard against the abuses and exploitation rampant on the black market, and to ensure that a seller’s decision is truly voluntary, fully informed, competent, and enduring.
Part IV proposes and analyzes incentive-based solutions to cure the organ crisis in America. Monetary incentives short of outright sale by living donors would go far towards boosting organ supply while reducing the concerns raised by open markets in organs. Some scholars have suggested “futures markets,” allowing individuals to receive remuneration today in exchange for agreeing to have their organs donated at death.
A few states have considered tax deductions for donors, and some even offer nominal amounts of money to individuals who opt in to donation when renewing their driver’s licenses. By modifying and combining some of these ideas, I will propose ways that we could dramatically raise organ donor participation rates while staying within the confines of NOTA and UAGA.