Académique Documents
Professionnel Documents
Culture Documents
Alison Shea*
INTRODUCTION
T
here are currently 113,379 people waiting for a lifesaving organ
transplant.1 Despite a record-breaking 33,606 transplants
performed in 2016, a significant organ shortage remains. 2 As ten
minutes pass, another person is added to the waiting list, while twenty-two
others will die today, waiting.3 Besides the unspeakable tragedy inherent to
the senseless loss of life, the organ shortage crisis creates debilitating
problems that permeate different levels of society, creating a broad
spectrum of issues.4 These issues, caused by a failure to properly regulate
organ donation, cause distributive injustice—restricting access to lifesaving
medical treatment based on socioeconomic criteria masqueraded as safety
standards.5
Despite mankind’s fascination with transplantation since the dawn of
time, society has failed to provide functional means for effectively
promoting, acquiring, and distributing organs for transplantation. 6 While
* J.D., 2018, New England Law | Boston; B.A., 2011, Biology/Neuroscience, Salve Regina
University. During the time between the penning and publication of this Note, my mother
died waiting for a kidney transplant. While she was not fortunate enough realize her dream of
becoming an organ recipient, she indeed became an organ donor — a vision of unconditional
love. This Note is humbly dedicated to Susan Shea, my mother; and to Mike (Dad), Mary, and
Charlie Shea, and Dwight Carlone, the family that sustains me. Save a life, please become an
organ donor today: www.organdonor.gov.
1 Data, UNITED NETWORK FOR ORGAN SHARING, https://perma.cc/PF43-X83L (last visited
215
216 New England Law Review [Vol. 52 | 2
I. Background
7
See Alden M. Doyle et al., Organ Transplantation: Halfway through the First Century, 15 J.
AM. SOC. NEPHROL. 2965, 2968–69 (2004).
8 See Lisa M. Derco, America’s Organ Donation Crisis: How Current Legislation Must Be Shaped
TISSUE DONATION FOR TRANSPLANTATION 95 (Jeremy R. Chapman et al. eds., 1997) (quoting
W.N. Gerson, Refining the Law of Organ Donation: Lessons from the French Law of Presumed
Consent, 19 J. INT'L L & POL. 1013, 101332 (1987)).
2018] Harvesting Hope 217
11 See B. EVSLIN ET AL., THE GREEK GODS 7 (Scholastic Inc. ed., 1966) (referencing the
Nobel Prize in Medicine); Shayan, supra note 11, at 135–36 (describing how allogenic skin
grafting became a standard of therapeutic procedure during the 1800’s despite the infrequent
long-term survival of the grafts).
16 See HISTORY OF TRANSPLANTATION – TIMELINE, supra note 12.
17 See Shrestha, supra note 6, at 65.
24 See Shayan, supra note 11, at 137; Duquesnoy, supra note 11 (quoting Tagliacozzi, a
Renaissance-era surgeon, “The singular character of the individual entirely dissuades us from
attempting this work on another person. For such is the force and power of individuality, that
if anyone should believe that he could achieve even the least part of the operation, we
2018] Harvesting Hope 219
30 See Robert A. Montgomery, Renal Transplantation Across HLA and ABO Antibody Barriers:
Integrating Paired Donation into Desensitization Protocols, 10 AM. J. TRANSPLANTATION 449, 449
(2010).
31 See Shayan, supra note 11, at 138.
33 J.E. Murray, Edith Helm (April 29, 1935–April 4, 2011): The World’s Longest Surviving
Integrating Paired Donation into Desensitization Protocols, 10 AM. J. TRANSPLANTATION 449, 449
(2010).
37 See Erika L. Rager, The Donation of Human Organs and the Evolving Capacity for
Transplantation, 65 N.C. MED. J. 18, 19 (2004).
38 See Dorry L. Segev et al., Kidney Paired Donation and Optimizing the Use of Live Donor
The National Organ Transplant Act (NOTA) was enacted in 1984 “to
encourage organ donation and to improve procedures for efficient organ
dissertation, Northeastern University) (on file with the College of Professional Studies,
Northeastern University).
44 See Kathleen S. Andersen & Daniel M. Fox, The Impact of Routine Inquiry Laws on Organ
Donation, 7 HEALTH AFF. 65, 67 (1988).
45 See Derco, supra note 8, at 158–59.
50 See Abena Richards, Don’t Take Your Organs to Heaven…Heaven Knows We Need Them
Here: Another Look at the Required Response System, 26 N. ILL. U. L. REV. 365, 374–76 (2006).
51 See id. at 406.
52 See id.
222 New England Law Review [Vol. 52 | 2
3. Other Legislation
within the bounds of state laws, work together to comprise the organ
collection and allocation system. 68 Organs that are currently transplantable
in the United States include, kidneys, livers, hearts, lungs, pancreata, and
small intestines, with each respective organ following a specific policy. 69
Organ transplantation, however, follows a general schematic determined
by the nature of the transplant: cadaveric or living donor.70
Postoperative Complications, 8 YALE J. HEALTH POL’Y L. & ETHICS 145, 152 (2008).
71 See id.
72 See Rager, supra note 37, at 19.
73 See Lenkel, supra note 43.
74 See Rager, supra note 37, at 19.
75 See Rager, supra note 37, at 19.
76 See Rager, supra note 37, at 19.
77 See Rager, supra note 37, at 19.
78 See Sims, supra note 35, at 14.
2018] Harvesting Hope 225
82 See Waiting List Candidates by Organ Type, UNITED NETWORK FOR ORGAN SHARING,
unacceptable antigens.89
The points assigned to each candidate are then classified according to
an algorithm that quantifies a score determined by the points, regional
availability, anticipated success rate, and other medical factors pertaining
to both the donor and potential candidates (such as the history or presence
of hypertension or diabetes).90 Typically, kidneys are then allocated
according to classification to candidates based upon regions, with each
region and OPO within the region having an equitable opportunity
decided by sequential order.91 However, regional classifications are
prioritized only after extreme candidate characteristics, and those with
CRPA scores of 100% receive national priority.92
Following the surgery, the medical team and hospital that performed
the transplant, as well as the OPO that coordinated the transplant, receive
hundreds of thousands of dollars in payment from the recipient’s
insurance company, Medicare, and/or Medicaid, while the donor’s family
receives no compensation—even when the donor’s family can only afford
to bury their life-saving, heroic loved one in an unmarked grave. 93 These
compensation figures have the potential to exponentially increase because
each deceased organ donor has the ability to save up to eight lives with
solid organ donation and affect up to fifty people through tissue
transplantation.94
Since humans can survive with only one kidney but are normally born
with two, kidney transplantation, like liver transplantation, can be
achieved with a living donor, thus simultaneously presenting additional
opportunities for donation and increased risks for ethical dilemmas. 95
Living organ donation, developed in response to the shortage of deceased
organ donors, provides better post-transplantation success rates for kidney
transplant recipients—the most commonly transplanted living donor
organ.96 Because of the explicit prohibition on the sale of organs
promulgated in NOTA, living donors cannot be compensated for
89 See id.
90 See id.
91 See id.
92 See id.
94 See Transplant Services, The Impact of One Organ Donor, UPMC (Apr. 26, 2015),
https://perma.cc/CJD4-VKAN.
95 See LIVING DONATION, DONATE LIFE AMERICA, https://perma.cc/KT6M-3DQ9 (last visited
Sept. 16, 2019) (differing from heart and lung transplantation).
96 See Eghlim Nemati et al., Does Kidney Transplantation with Deceased or Living Donor Affect
donation.97
Directed donation is the most common form of living donation
wherein the donor names a specific person as the recipient.98 The donor is
typically a relative, friend, or previously unknown person who has come
forward after learning of the recipient’s need for a transplant.99 To donate,
a direct donor is screened through the transplant center and, upon
approval, transplantation surgery is scheduled to sequentially procure the
organ from the donor and secure it within the recipient.100 After the
surgery, the donor’s body will recover within weeks while the recipient is
closely monitored by the transplant team throughout the remainder of the
recipient’s life to ensure that the donated organ is working properly and
immunosuppression therapy is inhibiting rejection.101
1. Failures of UAGA
The UAGA fails to stipulate the exact means in which states should
handle organ transplantation; rather it only established that citizens over
the age of eighteen are entitled to choose to be an organ donor, the legal
recognition of the Uniform Organ Donor Card, and the order of priority for
obtaining next of kin consent in the event that a decedent had not
documented preferences for organ donation.102
2. Failures of NOTA
105 See Tiffanie Wen, Why Don’t More People Want to Donate Their Organs?, THE ATLANTIC
(Nov. 10, 2014), https://perma.cc/8TGP-ETZ6.
106 See Derco, supra note 8, at 172.
111 See Fred H. Cate, Human Organ Transplantation: The Role of Law, 20 J. CORP. L. 69, 80
(1994).
112 Derco, supra note 8, at 160.
113 See Derco, supra note 8, at 160.
114 Derco, supra note 8, at 160.
2018] Harvesting Hope 229
ANALYSIS
121 See Transplant:Region of Center by Transplant Year (2015 - 2016), U.S. Transplants
Performed, Organ Procurement and Transplantation Network, U.S. DEPT. HEALTH AND HUMAN
SERVICES, https://perma.cc/U3UN-DEAV (last visited Sept. 16, 2019).
122 See id.
123 See Lenkel, supra note 43.
124 See Aaron Spital, Ethical and Policy Issues in Altruistic Living and Cadaveric Organ
230 New England Law Review [Vol. 52 | 2
1. Defining Death
While death had previously been a more obvious state, the introduction of
life-support technology and the growing need to harvest organs in a timely
manner to preserve viability prompted the need for a clear definition. 134 In
1968, the Ad Hoc Committee of the Harvard Medical School to Examine
the Definition of Death declared “brain death” as an alternative definition
to determine death in addition to the previously used definition of “when
his or her heart stopped beating and he or she could no longer breath
voluntarily.”135
Prior to this definition, critical organs, such as the heart and lungs,
were often rendered nonfunctional in the recipient’s body while the new
definition allowed doctors to keep a deceased donor on life support to
preserve the viability of the organs. 136 The Ad Hoc Committee, in order to
limit any conflicts of interest, included a provision governing that a
physician responsible for determining a patient’s death could not be
involved in a transplant using organs donated from the patient. 137 While
this definition was circulated in the medical community—resulting both in
acceptance and controversy—in 1981, the President’s Commission for the
Study of Ethical Problems in Medicine and Biomedical Research published
Guidelines for the Determination of Death, which laid the foundation for all
fifty states to define death as the termination of brain activity which could
be made based purely on clinical grounds.138 The guidelines reinforced the
Uniform Brain Death Act of 1980, a model statute defining death as the
irreversible cessation of circulatory or respiratory function or the
irreversible cessation of all brain functioning, including the brain stem,
with the requirement that the determination of death must be made
pursuant to accepted medical standards.139
2. Consent
140 See Laura A. Siminoff et al., Factors Influencing Families’ Consent for Donation of Solid
Organs for Transplantation, 286 AM. MED. ASS’N 71, 71–72 (2001).
141 See Christine S. Chung & Lisa Soleymani Lehmann, Informed Consent and the Process of
Cadaver Donation, 126 ARCH. PATHOL. LAB. MED. 964, 964 (2002).
232 New England Law Review [Vol. 52 | 2
advance directive.142 If consent has been given during life, then upon death,
the wishes of the decedent will be honored and the organs will be
harvested for transplant.143 If, upon death, a decedent’s wishes regarding
organ donation have not been made known, a designated member of
hospital personnel will approach the decedent’s family to provide them
with information about organ donation.144 In these circumstances, the
family is able to provide consent on behalf of the decedent. 145 The hierarchy
of authority assigned to family members varies by state, but is generally
given first to the spouse; absent a spouse, then to an adult child; if there are
no adult children then authorization is given to any adult siblings; in the
event that these family members do not exist or cannot be contacted,
authority will be given to a legal guardian. 146
142 See How Organ Donation Works, DMV.ORG, https://perma.cc/A7XJ-DN5P (last visited
148 See Would You Donate a Kidney? Here’s How It Works, MI BLUES PERSPECTIVES,
150 See BENEFITS OF LIVING DONATION, LIVING KIDNEY DONORS NETWORK, https://perma.cc/
donor transplantation.152
1. Consent
152 See Samuel D. Hensley, Informed Consent in Living Organ Donors, THE CENTER FOR
159 See Test For Living Donation, UNOS TRANSPLANT LIVING, https://perma.cc/6QC2-HBMN
Use of Live Non-Directed Donation, 368 THE LANCET 419, 419 (2006).
168 See I Have a Living Donor Who Doesn’t Match, What Can I Do?, UNITED NETWORK FOR
ORGAN SHARING (2018), https://perma.cc/R4LK-QGJ2.
169 See Kidney Paired Donation for Patients, ORGAN PROCUREMENT AND TRANSPLANTATION
match congruity, the donors and recipients will be swapped so that each
recipient receives a compatible kidney.171 This process can be done within
the same hospital or across multiple hospitals, so long as each recipient
receives a kidney within three weeks of the first transplant. 172 An
illustration of this event is as follows: Tom is medically cleared to be a
kidney donor to his wife, Nancy. 173 While Tom is medically capable of
donating, his ABO blood type is A while his wife’s is B, thus she can only
receive a B or an O type kidney. 174 Several states away, Connie, blood type
O, has been cleared to donate to her sister Barbara, blood type A.175
Although O is the universal donor, Barbara and Connie are tissue type
incompatible, meaning Barbara’s body will likely reject Connie’s kidney
through antibody-antigen reaction. Both pairs have been listed in the
KPD.176 UNOS, realizing Tom is capable of compatibly donating to Barbara,
while Connie is capable of compatibly donating to Nancy, contacts the
respective transplant centers and arranges for Tom and Connie to “swap”
kidneys, providing both of their loved ones with a perfect match. 177
As demonstrated, paired kidney exchange is an effective solution for
incompatible recipients and donors.178 In addition to saving the lives of the
recipients, facilitating paired kidney exchanges removes the recipients
from the cadaveric waiting list, helping to resolve the disparity between
organ supply and demand.179 This can also be achieved through non-
directed living donation.180
Non-directed donation (or “chain donation”) occurs when the donor
does not name a specific recipient and the organ is given based solely on
medical compatibility, sometimes without the donor ever meeting the
recipient.181 In this unique form of donation, an altruistic donor presents to
a transplant center with the desire to donate but without an intended
recipient.182 Upon acquiring medical clearance, the transplant center alerts
178 See C. Bradley Wallis et al., Kidney Paired Donation, 26 NEPHROL. DIAL. TRANSPLANT
182 See Marc L. Melcher et al., Kidney Transplant Chains Amplify Benefit of Nondirected Donors,
the OPO, in turn alerting UNOs, who selects the recipient based on
standard criteria, using the KPD system. 183 Once UNOS has identified the
recipient, the donated organ acts as the missing “link” in a chain of paired
kidney exchanges.184 Chains offer unlimited potential for transplantation
through a domino effect but require an altruistic, non-directed donor to
form.185 The longest kidney chain to date, including thirty-four recipients
and twenty-six hospitals, spanning the continental United States, was
started by the altruistic donation of just one donor.186
Living donor transplantation falls within the scope of NOTA’s
prohibition on the sale of organs, explicitly outlawing donors (living or
cadaveric) from receiving “valuable consideration,” thus creating an ethical
concern of whether a kidney received from a paired kidney exchange
constituted “valuable consideration.”187 In 2007, just one year after the first
kidney chain, Congress passed the Charlie W. Norwood Living Donation
Act, which amended NOTA, to clarify that paired donation does not count
as valuable consideration for purposes of living donor transplantation. 188
Even though this amendment legitimizes paired kidney exchange, it fails to
incentivize living organ donation.189
183 See Living Non-Directed Organ Donation, ORGAN PROCUREMENT AND TRANSPLANTATION
Chains Will Restore Your Faith in Humanity—Here’s How They Work, INSIDER (Oct. 13, 2016, 4:27
PM), https://perma.cc/F66T-J98W.
186 Longest Kidney Chain Ever Wraps up at UW Hospital and Clinics, UW HEALTH (Apr. 14,
2015), https://perma.cc/2Y5J-RHHT.
187 See Derco, supra note 8, at 159–60.
188 Charlie W. Norwood Living Organ Donation Act of 2007, Pub. L. No. 110-144 (2007)
and may feel pressured to donate their organs to gain financial perks. 193
However, other bioethicists argue that, absent a system where valuable
consideration is directly exchanged between donors and recipients, state-
based incentives are reasonable because they can be closely regulated while
also saving lives—especially in the midst of an ever-increasing organ
shortage.194 In 2003, the American Medical Association testified before
Congress, endorsing the initiation of studies to test the effectiveness of
incentivized donation, including financial incentives, because of the
severity of the organ shortage crisis.195 While the ethical boundaries of
financially compensating organ donors remains murky, the benefits are
clear when comparing the incentive systems used in other countries.196
In evaluating the potential outcomes and effectiveness of legislative
schematics, it is imperative to evaluate the techniques and outcomes
employed by other nations.197 One of the most important national systems
to evaluate is the one used by Iran—the only country in the world both
without an organ shortage and that allows the sale of organs. 198 In Iran, the
sale of organs takes place within a state-regulated system, starving the
black market while ensuring the safety of both the donor and recipient.199
Iranian donors independently contact a state-run organization that refers
the donors to transplant centers for evaluation.200 If capable of donation,
the donor receives a government stipend, health insurance, and
compensation from the recipient.201
While the Iranian model is ethically polarizing, its effectiveness is
untouchable.202 After enacting this system in 1988, eleven years later, Iran
no longer had an organ waiting list.203 Additionally, uncompensated
cadaveric donations have increased more than tenfold and the black
market for organ sales is nearly nonexistent. 204 Some drawbacks of the
Iranian model include donor regret, negative health impacts, and
193 See Anya Adair & Stephen J. Wigmore, Paid Organ Donation: The Case Against, 93 ANN.
(2009).
197 See Matas, supra note 4, at 306–07.
200 Derco, supra note 8, at 164 (stating if the recipient is unable to afford compensation, a
disappointment with the value of the stipend.205 The United States can gain
unique perspective from evaluating the Iranian model, and those of other
countries, in determining the most effective means for legislating organ
donation.206
While Iran is the only country to allow for the sale of organs, several
countries, including France, Canada, and the United Kingdom offer some
form of reimbursement to organ donors.207 These statutory schemes range
from requiring travel and accommodation reimbursement (France), federal
incentives for employment insurance, short-term disability, and tax credits
(Canada), and permittable, not mandatory, reimbursement of lost wages,
travel expenses, and accommodation costs (United Kingdom). 208 While
these methods vary in approach and effectiveness, they are in staunch
contrast to the United States where incentives are not just lacking statutory
guidance, but ambiguously outlawed through the NOTA “valuable
consideration” clause.209 Even if the United States does not incentivize
living organ donation, methods could be taken to increase the availability
of cadaveric organ donation.210
Cadaveric organ donation figures can help resolve the organ shortage
crisis because each cadaveric organ donor has the potential to save eight
lives and affect over fifty more lives.211 There are several legislative
methods for increasing cadaveric donation including education, mandated
choice, presumed consent, and incentivized donation. 212
Education is the least controversial and marginally effective method
for increasing cadaveric donation.213 By legislating an increase in budgetary
funds, UNOS can increase awareness regarding organ donation by
promoting organ donation through ad campaigns, informational sessions,
and community outreach.214 Popularizing organ donation is a logical step
towards increasing cadaveric donation, however, it will not solve the organ
205 See Derco, supra note 8, at 165–66 (explaining that many donors expected the stipend to
213 See Tonguc Utku Yilmaz, Importance of Education in Organ Donation, 6 EXPERIMENTAL &
shortage crisis.215
Mandated choice and presumed consent are additional methods for
increasing cadaveric organ donation.216 Mandated choice refers to the
practice of requiring every citizen of majority age to indicate their organ
donation wishes on tax forms or driver’s licenses.217 Upon a person’s death,
the wishes that had previously been determined by the decedent would be
followed by the hospital.218 While this method does not concretely increase
cadaveric availability, it does increase conversations surrounding organ
donation and ensures that the wishes of the decedent are known and
honored.219
Presumed consent, also known as “opt-out,” is a system that is gaining
popularity, and is used by many European nations. 220 Under a presumed
consent regime, the organs of a decedent are harvested unless the decedent
had specifically requested against donation during their lifetime.221
Presumed consent systems are becoming popular in the United States.222
Several states have proposed legislation to enact presumed consent
regimes.223 While some believe presumed consent to be an obvious choice
to increasing the availability of cadaveric organ donors, others argue that
enacting presumed consent will actually decrease the availability of
cadaveric organs because the public perception of automatically harvesting
organs can be inflammatory.224 These opponents argue that the best
method for increasing organ donor availability is through education,
particularly by providing specialized training for hospital personnel
designated to approach families regarding cadaveric donation. 225
Financial incentives for cadaveric donation are similar to those of
living donation, but with the family receiving the incentive rather than the
215 See Rheana Murray, Heartbreaking Video Sends Powerful Message About Organ Donation,
222 See Richard H. Thaler, Opting In vs. Opting Out, N.Y. TIMES (Sept. 26, 2009),
https://perma.cc/HG75-LQ2P.
223 See Madison Park, California, New York Mull Changes to Organ Donor Laws, CNN (May
D. Alternative Methods
229 See Francis L. Delmonico et al., Ethical Incentives—Not Payment—for Organ Donation, 346
https://perma.cc/A6F4-VQ4T.
231 See id.
232 See Center for Bioethics, supra note 60, at 28.
233 See Center for Bioethics, supra note 60, at 28.
234 See Center for Bioethics, supra note 60, at 28.
235 See Center for Bioethics, supra note 60, at 28.
236 See Center for Bioethics, supra note 60, at 28.
2018] Harvesting Hope 241
Stem cell derived organs, like artificial organs, are engineered from a
cluster of stem cells that have been manipulated to grow into organs or
clusters of specialized cells.237 While the scientific community continuously
works to develop organs engineered from stem cells, ethical concerns
surrounding the embryonic origination of the cells often become
politicized, stalling research and creating moral objections to such
practices.238 Similarly, aborted fetuses have been proposed as alternative
organ sources, but moral objections and ethical concerns surrounding the
potential for organ farming (conceiving a child for the purpose of
harvesting its organs) have halted the development of a policy to allow for
organ transplantation.239
While each strategy for increasing the availability of donated organs
has unique concerns surrounding effectiveness, ethical boundaries, and
feasibility, the general consensus amongst the transplant community
supports implementing some strategy to combat the organ shortage
crisis.240
237 See Nicholas Wade, New Prospects for Growing Human Replacement Organs in Animals,
https://perma.cc/2V32-NT8V.
241 See Satel et al., supra note 9, at 217.
242 See Greg Moorlock et al., Altruism in Organ Donation: An Unnecessary Requirement?, 40 J.
Under a single unified system, the United States would have more
ability to provide equitable and closely regulated incentives for both
cadaveric and living organ donation.250 Imposing federal incentives, such
as medical care or income tax benefits, can also be mimicked on a state
level, thus compounding incentives and further promoting organ
donation.251 Maintaining federal incentives in addition to state incentives
allows for a baseline of national fairness and permits use of federal tax
dollars.252 If federal incentives effectively increase the number of organ
donors, even just for kidney donation alone, the government stands to save
billions of dollars from the estimated thirty-four billion dollars that
Medicare spends annually on dialysis treatments (the alternative therapy
to kidney transplantation).253 Even though every dialysis patient is not
necessarily a candidate for transplant (some are medically incapable while
others simply choose not to be), a substantial amount of Medicare
spending could be saved and potentially re-allocated for donor
incentivization and funding for education. 254 Through careful consideration
of international methods, the United States can establish a heavily
regulated yet optimally efficient system for organ donor incentivization
while avoiding the ethical pitfalls and inefficiencies encountered by other
nations.255
https://perma.cc/MP5W-T77K.
254 See id.
255 See David Kaserman, Markets for Organs: Myths and Misconceptions, 18 J. CONTEMP.
While the Iranian model for organ donation has proven to be most
effective in eliminating organ shortages, the ethical concerns and public
perception surrounding the sale of organs are likely to prevent the United
States from adopting a similar system.256 However, in evaluating the
effectiveness of the Iranian model, financial incentives in some form are
required for increasing the availability of donated organs. 257 Navigating the
precarious bioethical terrain, between safely incentivizing donation and
exploiting the poor for the health of the rich, requires careful legislative
consideration and deliberate policymaking. 258
A well-regulated system must provide both the donor and recipient
with respect, benefits, and protection from harm. 259 To achieve this, the
system must respect the autonomy of the donor by providing enough
information required to give informed consent, ensuring that the donor’s
health is promoted throughout the process, and providing gratitude and an
adequately valued incentive through which the donor will feel that the gift
given has enriched the life of the recipient as well as their own life.260 This
system must be arduously regulated by setting clear guidelines for donor
evaluation and selection, protected by adherence to the guidelines set, and
transparent to deter abuse of both the donor and recipient by providing
oversight on a national and potentially international level.261 Once this
system is legitimized and tested, presumed consent can be implemented on
top of financial incentives, to further increase the availability of cadaveric
organ donation.262
wishes.265 This fear, while real to those who harbor it, is not based in reality
because upon death organs are useless to those who previously used them;
and—in some cultures—organs are removed prior to burial rites. The
option then comes to whether these organs should be incinerated upon
death or given to those whose lives depend on the gift.266 Another baseless
fear that could hinder acceptance of presumed consent is the fear that
members of the medical community will not provide the same level of care
to an organ donor in order to harvest the organs of an individual.267 This
fear has become unfortunately popular despite the fact that medical
personnel do not know the status of an organ donor until after expiry. 268
Regardless of the legitimacy of myths concerning organ donation, these
fears will continue to inhibit the supply of organ donors until the public
becomes properly educated about the need for organ donation and the
process behind it.269
I. Education
CONCLUSION
272 See Stu Strumwasser, The Tragedy of American Organ Donations: So Many More People
100,000 Americans will remain waiting, under torturous hope for the gift of
life that may never come. While legislative solutions languish, every day
Americans will be added to the waiting list, while dozens already on it will
perish—dying of hope. The demand for organ donation began with
experiments performed by the most primitive of societies, yet cannot be
satisfied thousands of years later, despite the advanced progression of the
highest form of civilized society—American society. Until the United States
government properly educates, legislates, and regulates organ donation, it
will continue to fail some of its most vulnerable citizens, the sick. The need
for organ transplantation does not discriminate, affecting every
demographic, regardless of age, race, gender, or socioeconomic status. The
United States has the ability to implement an effective system through
which donors are matched with recipients, and death becomes life.