What is LawBrain?
It's a living legal community making laws accessible and interactive. Click Here to get Started »

Organ Transplantation

From lawbrain.com

The transfer of organs such as the kidneys, heart, or liver from one body to another.

The transplantation of human organs has become a common medical procedure. Typical organs transplanted are the kidneys, heart, liver, pancreas, cornea, skin, bones, and lungs. The organ most frequently transplanted is the cornea, followed by the kidney.

The first human organ transplants were performed in the early 1960s, when it became possible to use special tissue-matching techniques and immunosuppressive drugs that reduced the chance that a transplanted organ would be rejected by the host body. By the early 1980s, the new immunosuppressive drug cyclosporine led to great advances in the success rate of organ transplants.

Contents

Organ Shortages

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 [1983]), 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) [1985]), 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.

Controversial Issues

Organ transplants generate increasingly vexing legal and ethical questions as medical technology becomes more complex. Three controversial issues surrounding the subject are conception for organ donation, donor consent, and transplants from terminally disabled infants.

In some instances, a child is conceived expressly for the purpose of using her organs for transplantation in another person, usually a blood relative. In 1990, for example, a California couple gave birth to a child they had conceived solely in hopes that the baby's bone marrow cells would save the life of their teenage daughter, who was dying of cancer. Although the legality of such conceptions was not challenged, the practice raised ethical questions relating to who may give informed consent for the donor child and whether such a practice may be considered child abuse.

The problem of donor consent arose in lawsuits seeking to compel persons to donate organs to relatives. For example, in 1990, an Illinois family with a son who had leukemia brought a lawsuit seeking to compel the boy's half sister and half brother to submit to preliminary medical tests that would have established their suitability to serve as bone marrow donors. A judge, noting the objections of the mother of the half siblings, ruled that such tests would be an invasion of the potential donors' right of privacy. The Illinois Supreme Court later upheld this ruling (Curran v. Bosze, No. 70501 [Ill. filed Dec. 20, 1990]). In its opinion, the court outlined three critical factors in determining the best interests of the donating child: (1) the consenting parent must know the inherent risks and benefits of the procedure, (2) the primary caretaker of the child must be able to provide emotional support, and (3) there must be an existing, close relationship between the donor and the recipient.

The issue of organ donations made by terminally disabled infants came to national attention in 1992 when a Florida couple sought to have the organs of their anencephalic baby, Theresa Ann Campo Pearson, donated for use by other newborns. Anencephaly is a rare and always fatal gestational disorder in which the brain develops a stem, or lower brain, but not a cortex, or upper brain. Though the rest of the anencephalic infant's body is healthy, the disorder causes the child to die soon after birth. Theresa Ann's mother and father sought to have her declared brain dead, but a judge stated that under Florida statutes, a declaration of brain death may be made only if activity in all parts of the brain has ceased (Fla. Stat. ch. 382.009 [1992]). The judge noted that Theresa Ann had lower-brain activity. She died ten days after birth, without having donated her organs.

Critics of this decision argued that because anencephaly is always fatal, the organs of children with this disorder should be used to save other children. Supporters note that if an exception were made for anencephaly, other severely disabled persons might be inappropriately targeted as a source for organs. Others argue that the life of one child, no matter how brief or unsatisfactory, cannot be taken to save another.

Further Readings

Blair, Roger D., and David L. Kaserman. 1991."The Economics and Ethics of Alternative Cadaveric Organ Procurement Policies." Yale Journal on Regulation 8 (summer).

Bryan, Jenny, and John Clare. 2001. Organ Farm: Pig to Human Transplants. London: Carlton.

Caplan, Arthur L. 1992. If I Were a Rich Man Could I Buy a Pancreas? and Other Essays on the Ethics of Health Care. Bloomington: Indiana Univ. Press.

Gerritsen, Tess. 1996. Harvest. New York: Simon & Schuster.

Green, Reg. 2000. The Nicholas Effect: A Boy's Gift to the World. Cambridge, Mass.: O'Reilly & Associates.

Harris, Curtis E., and Stephen P. Alcorn. 2001. "To Solve a Deadly Shortage: Economic Incentives for Human Organ Donation." Issues in Law & Medicine 16 (spring).

Kaserman, David L., and A.H. Barnett. 2002. The U.S. Organ Procurement System: A Prescription for Reform. Washington, D.C.: AEI Press.

Koch, Tom. 2002. Scarce Goods: Justice, Fairness, and Organ Transplantation. Westport, Conn.: Praeger.

Kristof, Nicholas D. 2002. "Psst! Wanna Sell a Kidney?" Chicago Daily Law Bulletin (November 12).

Naylor, Chad D. 1989. "The Role of the Family in Cadaveric Organ Procurement." Indiana Law Journal 65 (winter).

Sylvia, Claire, and William Novak. 1997. A Change of Heart. New York: Little, Brown.

See Also

Contributors

Admin