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Erica Anderson, Associate Member, University of Cincinnati Law Review
Over 114,000 Americans are in need of an organ transplant to survive. However, due to the lack of organ donations in America, 20 of these people die every day. Most of these people, approximately 100,000 of them, are desperately awaiting a kidney. Another 12,000 are awaiting a liver. Because these Americans cannot find donations, liver and kidney disease end up killing more Americans than Alzheimer’s, breast cancer, or prostate cancer.
In addition, 7,500 Americans are in vital need of bone marrow, and only 40% receive it, meaning America watches 3,000 people in need of bone marrow die on its watch every year.  Many of these people cannot find donations because only 2% of Americans are registered on the national bone marrow donation registry, and there is only a one in 430 chance that those 2% of people will actually ever donate.
Yet, people and research organizations in need of other body parts, such as eggs, have no problem receiving the donations they need because no shortage of options exists. This lack of shortage is likely due to the fact that Americans can currently profit off of selling body parts such as hair, sperm, eggs, plasma, skin, womb, and even feces.
Research demonstrates that financial incentives motivate people to donate organs. Yet the organs needed to save lives, such as kidneys and bone marrow, are banned from financial compensation under the National Organ Transplant Act (“NOTA”). With a consequent 7,300 seemingly preventable deaths occurring each year, the question becomes—why should NOTA exist if lifting its compensation ban on organs would be life-saving?
A. The National Organ Transplant Act of 1984
In 1983, an increasing demand for human organs, such as kidneys, led to a Virginia physician, Dr. H Barry Jacobs, founding the International Kidney Exchange. This company was essentially a kidney market in which Dr. Jacobs was a broker. Dr. Jacobs would find people interested in selling their kidneys and arrange for a sale to those in need of kidneys. Kidney recipients would directly pay sellers up to $10,000,  and Dr. Jacobs would be paid commission amounting anywhere from $2,000 to $5,000.
The National Kidney Foundation criticized Dr. Jacobs for planning to purchase kidneys from “underdeveloped countries” and making a “travesty of informed consent.” Critics argued Dr. Jacob’s plans were “immoral and unethical” as they “introduce[ed] a temptation and bias of a cash award for consent.”
The legislature quickly responded to these ethical concerns surrounding for-profit markets selling organs. Less than a year after the International Kidney Exchange’s formation, Congress passed NOTA which bans compensation for human organ donations. NOTA’s main goals are to “prevent the human body from becoming a commodity” and “prevent unjust exploitation of the poor who may be willing to put their health at risk by selling their organs.”
NOTA specifically bans “valuable consideration” in exchange for kidneys, livers, hearts, lungs, pancreases, bone marrow, corneas, eyes, bones, and skin or any subpart thereof. The ban on “valuable consideration” does not include payments covering the surgery itself or the costs of travel, housing, and lost wages incurred by the donor, but merely a profit from the organs themselves. Penalties for violating NOTA can include up to a $50,000 fine or five years in prison.
Congress specifically excluded the replenishable tissues of the body from NOTA because the risks involved in donating such tissues are not great enough to warrant a ban. Replenishable tissues are tissues that are plentiful or renewable, such as blood, hair, or sperm. Bone marrow, when donated via peripheral blood stem cell apheresis, is considered replenishable, but its status under NOTA remains unclear. This issue was litigated in the Ninth Circuit case Flynn v. Holder.
B. Flynn v. Holder
When NOTA was created, bone marrow was extracted from bones via “aspiration” which was an invasive process requiring a large needle and anesthesia. However, in the last 20 years, peripheral blood stem cell apheresis, a new technique allowing stem cells to be extracted from blood in donor’s veins, has been introduced and widely used. This technique allows for quick regeneration of donated stem cells.
A variety of plaintiffs, mostly comprised of patients in need of bone marrow, sued the Attorney General of the United States arguing that NOTA’s ban on financial incentives for bone marrow extracted via peripheral blood stem cell apheresis was unconstitutional under the Equal Protection Clause as NOTA allowed compensation for blood, sperm, and eggs, but not bone marrow.
The government argued that the stem cells are a “subpart” of bone marrow and should qualify as a human organ under NOTA, but the court held the government’s argument to be too far of a stretch. If everything that comes from bone marrow had to be considered a “subpart” and qualify as a human organ banned from compensation, then even blood donors could not be compensated for blood donations.
The Ninth Circuit ultimately held that NOTA did not ban compensation for bone marrow donations when donated through the peripheral blood stem cell apheresis as the donation is not a donation of a human organ. NOTA does not criminalize the sale of blood or substances within blood. Since peripheral blood stem cell apheresis is merely the collection of peripheral blood stem cells within the blood, this type of bone marrow donation should not be criminalized.
Critics such as the Department of Health and Human Services (HHS) argue the Ninth Circuit erred in its decision as it frustrated the legal purpose of NOTA.  Consequently, HHS proposed an amendment to NOTA that would change the definition of “human organ” to specifically include “hematopoietic stem cells (HSCs) within peripheral blood as a subpart to bone marrow. Due to subsequent backlash, however, the HHS withdrew its proposed rule to “consider the issue further.” Thus, the legality of compensating bone marrow donors via peripheral blood stem cell apheresis remains uncertain.
The Ninth Circuit’s decision in Flynn sparked major controversy about which tissues and organs can be compensated for and which cannot. For example, some critics feared the decision would lead to a “slippery slope” in which individuals would be paid for other vital body parts. “It could start with parts of organs like livers, which have cells that regenerate.” Alternatively, other commentators praised the decision because “compensation [would] expand the donor pool by at least hundreds and potentially thousands each year.”
The common underlying goal presented in NOTA is to prevent the exploitation of vulnerable populations and the body becoming a commodity. However, allowing organ sales would not actually lead to such issues, and NOTA is directly leading to the deaths of thousands of people in need of organs. As such, NOTA needs to be repealed, or at least amended to not only exclude optional tissues such as hair and sperm, but also vital organs necessary to life.
A. Allowing the sale of human organs will not exploit vulnerable populations
When Dr. Jacobs attempted to create a for-profit kidney market, oppositionists’ concerns were centered around the likelihood that compensation for organs would coerce vulnerable populations, such as low-income individuals, into risking their lives for money. First, this belief is harmful to these groups as it implies that low-income people are irrational and incapable of weighing the pros and cons of organ donation. Further, no one should be entitled to limit the bodily autonomy of low-income people merely because they are low-income.
Second, the compensation that sellers will receive will not be great enough to completely “override their doubts and ethical concerns about becoming a donor” if the state set a maximum price for organs or if the state compensates organ donors rather than allowing wealthy people to drive up the prices. Although this limitation placed on who can buy organs would be a minor limitation on the property right to transfer (as will be discussed in section D), it is not a total ban as NOTA enforces now.
Third, historical demographics of people who sell their eggs demonstrate that economic coercion should not be a serious concern. The majority of people who sell their eggs are not low-income, and the compensation is not an “undue inducement to undergo the medical risks involved.” Most people who sell their eggs are offered around $5,000 to $10,000, but advertisements have shown that they may receive up to $100,000. If low-income people are not selling their eggs, which are considered replenishable, then they are unlikely to sell an irreplaceable organ for an equal or lesser compensation.
B. Allowing the sale of human organs will not place an unconscionable risk on organ sellers
Even in the unlikely case that people do feel coerced into selling their organs, the risks involved in the most common types of organ donation are extremely low. For example, the kidney donation mortality rate is approximately 0.03%, and less than 1 in 10,000 bone marrow donors have fatal results. Additionally, only 0.4% of kidney donors in America need a subsequent blood transfusion, 2.2% require re-admission to a hospital, and 0.5% need a second operation. Kidney donors do experience a heightened risk for the development of diabetes, but the exact risk is unknown and believed to be low. As for bone marrow donors, the most serious risk is associated with the anesthesia required for the surgery. But, for those who donate via the peripheral blood stem cell donation technique, no anesthesia is required. The most common side effects include muscle pain, headaches, and vomiting, which disappear within a couple of days. Despite these statistics, if Congress remains concerned with potential organ sellers being placed at risk, it can simply require “improved screening and testing” to ensure organ sellers are healthy and not at a major risk of serious side effects.
Moreover, Congress’ argument that an organ compensation ban prevents risks that may be placed on individuals enticed by the opportunity for payment is inconsistent with NOTA itself. NOTA allows the sale of eggs, and these sellers suffer greater risks than bone marrow donors do. People who sell their eggs are at risk of ovarian torsions, blood clots, loss of one or both ovaries, kidney failure, and strokes. Although no one keeps track of the long-term health of sellers of eggs, there are also concerns involving sellers becoming infertile or developing cancer, who had no family history of cancer. Additionally, egg selling advertisements are most commonly represented on college campuses and public transportation—locations populated with low-income, unemployed students with thousands of dollars in loan debt and people who may not be able to afford their own transportation.
Society already financially incentivizes individuals to engage in risky, even fatal, behavior, yet does not view such incentivization as coercive. For example, coal miners, firefighters, and military personnel are all incentivized to sell their bodies to dangerous labor. These occupations can be fatal and reduce life spans, yet no one suggests that these occupations should be volunteer only.
C. NOTA should be repealed, or at least amended to exclude bone marrow and kidneys
Because there is no evidence that NOTA is achieving Congress’ goals, NOTA should be repealed or at least amended to exclude bone marrow and kidneys. Bone marrow can be most properly compared to blood under NOTA. Both blood and bone marrow are renewable resources, their collection for donation is safe, and both possess life-saving abilities contrary to eggs and sperm which are merely life-creating. Although some competition exists for blood recipients, bone marrow is scarce. The fight for bone marrow a much longer battle. Thirty-five years ago, before the peripheral blood stem cell apheresis technique was available, bone marrow scarcity may have been associated with the procedure for extraction. Past donors had to be given anesthesia before a long, thick needle was inserted into the bone. And, oftentimes, these donors experienced pain. Now, the peripheral blood stem cell apheresis technique is available which does not require anesthesia, and only requires a thin IV to be placed into a vein in the arm. There is no greater risk to extracting bone marrow than there is to extracting blood. Removing bone marrow from one of the organs banned from compensation by NOTA would stimulate the market for bone marrow, in turn saving lives, at no serious risk to donors.
Although kidneys are not replenishable, and the donation process is risker than the bone marrow donation process, the benefits to excluding kidneys from NOTA outweigh the risks. Because kidneys make up 80% of transplanted organs and 5,000 Americans die every year awaiting a kidney, there are major benefits to the availability of more kidneys—more lives saved. The risks involved with kidney donation cannot possibly outweigh the benefits because the biological reality of kidneys are that humans are born with two, and only need one. One single kidney, functioning anywhere above 75% can fully provide the body with all that the renal system requires for survival. In fact, a single kidney can adapt to filter “just as much as two kidneys.” The human body having a second kidney is merely a “biological insurance policy.”
D. Ultimately, people should have property rights to their bodies
Typical characteristics of property include exclusion, usage, transferability, destruction, and possession. Courts have held that an owner does not need all rights to be present to have property rights to something, but critics argue that the right to sell is “so important that its absence is sufficient to deny the label property.” NOTA directly violates the right for a person to transfer their own organs. Such a violation is possible because, “historically, the rights in a living body have been viewed as a liberty interest, and not as property.”
Nevertheless, some property interests are still present within that liberty interest. The right to possession is demonstrated by the constitutional amendment to prohibit slavery in addition to criminal and tort laws allowing for damages in the case of false imprisonment. The right to use is recognized by contract law through employment agreements in which individuals sell their body’s labor. Finally, the right to exclude is portrayed through civil and criminal laws prohibiting battery. These rights are not absolute, of course, as the state has found a compelling interest in limiting the right to use and exclude. For example, the government can force vaccination and prohibit abortion at a certain fetal gestational stage. The point of it all is—the government decides which property rights humans can possess in relation to their own bodies.
Currently, the government is limited in incentivizing the organ donations because the law does not recognize possessory property rights in human organs. Reconstructing NOTA and other legislation to recognize tissues and organs as personal property would ensure that only the owner of the body “can weigh the risks versus the benefits, the pains versus the pleasures, entailed in deciding whether to . . . sell . . . one’s organs.”
One of NOTA’s primary goals was to “prevent the human body from becoming a commodity.” Yet, the creation of a law that forbids organ sales paradoxically categorizes the human body as commerce under the control of congressional power that “would otherwise be subject to sale on the market.”  Further, Congress fails to recognize that human bodies are already treated as commodities. For example, Congress does not ban models from receiving payment to have pictures of their bodies taken or athletes from receiving salaries to put their bodies on the line in the name of sport. And yet, Congress has decided that selling one’s organs is somehow an impermissible means of commoditizing the body. In truth, Congress’ problem is not with the selling of one’s body, but only with the selling of one’s organs.
Health care systems involved in organ transplantation receive substantial compensation for their services. This compensation may very well be appropriate and deserved, but is it not an ethical red flag that the people whose organs are being removed and transplanted are the only individuals involved in the organ transplantation process to not receive compensation?
Congress should grant individuals with property rights to their bodies, and repeal NOTA. At the very least, Congress should amend NOTA to exclude bone marrow and kidneys. Doing so would not exploit vulnerable populations. There is no evidence of such outcome with other organs which are legal to sell. Further, bone marrow and kidney donation medical procedures are not dangerous. NOTA is not protecting potential organ donors from any physical harm.
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