Chapter 6.B.1 (or 4.B.1) Mandates or Incentives for Organ Donation
This page has notes for Obligations to Give Up Organs and Tissues; Autopsies, Note 3, Note 4, Note 5, Note 6, Note 8 and Note 9 and Financial Incentives for Organ Donation, Note 1 and Note 2.
Obligations to Give Up Organs and Tissues; Autopsies
For background to California's amendment of its cornea removal statute in 1998, see the Senate committee report.
Here is a link to the Revised Uniform Anatomical Gift Act (2006). The Act also expands the list of persons who may consent to organ donation after a person’s death to include adult grandchildren, adults who “exhibited special care and concern for the decedent,” and health care agents. Rev. Unif. Anatomical Gift Act §9(a).
Through June 2011, the Revised Uniform Anatomical Gift Act had been adopted in 44 states and the District of Columbia. Most states removed their organ removal provisions for medical examiners, but some retained their cornea removal provisions. For updates on the enactment status, click here.
As Powell and Brotherton indicate, a decedent's corneas or other tissues cannot be taken over the known objection of the decedent or the decedent's family. In accordance with this principle, a North Carolina court of appeals reversed a summary judgment in favor of the hospital when a decedent's eyes were removed during an autopsy, and the family had authorized the autopsy but (according to the allegations) had expressly stated their opposition to having any organs or tissues removed from the body. Massey v. Duke University, 503 S.E.2d 155 (N.C. App. 1998).
The Ninth Circuit decided a case in which a family sued a hospital and transplant donor network over their removal of a decedent's heart, liver, kidney and pancreas without the family's permission. The decedent was found on the side of the road in California after suffering severe head trauma, and he was misidentified as a resident of New York. When law enforcement officials were unable to locate family members during a 40 hour search, they released the body for organ retrieval. It turned out that the decedent was a tourist from Denmark, and his family brought their claims. The court found for the hospital and transplant donor network, holding that the coroner, rather than the hospital or donor network, had the duty to the family to make a reasonable effort to locate them. (The coroner had been dismissed from the case because the claim against the coroner was not filed in accordance with the requirements of the California Tort Claims Act for money damages from local public entities.) Jacobsen v. Marin General Hospital, 192 F.3d 881 (9th Cir. 1999).
For an argument that presumed consent has been tried and failed in the United States, see David Orentlicher, "Presumed Consent to Organ Donation: Its Rise and Fall in the United States," 61 Rutgers L. Rev. 295 (2009).
In recent years, organ procurement organizations have raised the consent rate by family members by improving the way they discuss the possibility of donation. Patricia A. Webster & Lori Markham, Pediatric Organ Donation: A National Survey Examining Consent Rates and Characteristics of Donor Hospitals, 10 Pediatric Critical Care Med. 500, 503 (2009).
Ultimately, Texas repealed its mandated choice law. Laura A. Siminoff & Mary Beth Mercer, Public Policy, Public Opinion, and Consent for Organ Donation, 10 Cambridge J. Healthcare Ethics 377, 380 (2001).
Life-threatening problems with bone marrow donation occur between 0.1 and 0.3 percent of the time, and the risk of death is about 1 in 10,000. Dennis L. Confer, et al., Bone Marrow and Peripheral Blood Cell Donors and Donor Registries, in Thomas’ Hematopoietic Cell Transplantation: Stem Cell Transplantation 544, 549-551 (F.R. Applebaum, et al., eds. 4th ed. 2004). It is not clear whether the risk of death differs between bone marrow and peripheral cell donation. Id. at 552-553. Because it is less invasive to retrieve stem cells from peripheral blood, recovery time is generally shorter. While researchers have not seen long-term side effects from the drugs used to stimulate peripheral stem cell production, there are concerns that the drugs might raise the risk of leukemia. Derwood Pamphilon, et al., The Use of Granulocyte-Colony-Stimulating Factor in Volunteer Unrelated Hemopoietic Stem Cell Donors, 48 Transfusion 1495 (2008).
In a December 2011 decision, the U.S. Court of Appeals for the Ninth Circuit distinguished between donations of bone marrow stem cells and donations of peripheral blood stem cells for purposes of compensation. On one hand, federal law prohibits payments for bone marrow "or any subpart thereof," 42 U.S.C. § 274e, but it does not prohibit payments for the sale of blood. The court held that peripheral blood stem cell donations should be treated as blood for purposes of the compensation ban. In response to the government's argument that peripheral blood stem cell donations pose greater risk than do other donations of blood, the court observed that there are significant risks from egg donation, and the government permits payments to egg donors.
See also Adam Kolber, A Matter of Priority: Transplanting Organs Preferentially to Registered Donors, 55 Rutgers L. Rev. 671 (2003).
Financial Incentives for Organ Donation
For a recent argument in favor of financial incentives for organ donors, see Julia D. Mahoney, "Making Markets in Forbidden Exchange: Altruism, Markets, and Organ Procurement," 72 Law & Contemp. Prob. 17 (2009).
See also S.A.A. Naqvi, Health Status and Renal Function Evaluation of Kidney Vendors: A Report from Pakistan, 8 Am. J. Transplantation 1444 (2008); Benita S. Padilla, Regulation Compensation for Kidney Donors in the Philippines, 14 Current Opinion in Organ Transplantation 120 (2009); Adibul Hasan S. Rizvi, et al., Regulated Compensated Donation in Pakistan and Iran, 14 Current Opinion in Organ Transplantation 124 (2009).
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