Organ Transplantation

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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.

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.

Organ Procurement: Is It Better to Give or to Sell?

In the early days of organ transplant surgery, during the 1960s and 1970s, the practice was seen as experimental and risky. Patients' bodies often rejected a transplant, and the survival rate in many cases was deemed too low to be acceptable. However, with the development of new surgical procedures and the wide use of new immunosuppressive drugs such as cyclosporine in the 1980s, organ transplantation became a common medical technique available to more and more people. In the 1980s, over 400,000 transplants were performed in the United States. The age range of heart transplant recipients has expanded from forty-five to over sixty at the upper limit, and to infancy at the lower limit.

Results such as these have caused such a demand for organ transplants that there are far more potential organ recipients than available organs. Those who are deemed medically suitable to receive organs are put on long waiting lists, and it is often months or years before they get the organs they need; many others are deemed medically unsuitable and are not even put on waiting lists. Some have criticized the term medically unsuitable as an arbitrary and uncertain medical judgment used simply to prevent raising the hopes of those who are unlikely to get a timely transplant.

What should be done about this dire shortage of organs available for transplantation? Three different organ procurement systems have been proposed as a means of alleviating the situation: an organ market, a presumed consent program, and a required request program. All three proposals have their advocates and detractors.

Organ Market Although the sale of human organs was made illegal by the 1985 National Organ Transplantation Act (42 U.S.C.A. § 274(e)), an organ market remains a widely discussed alternative to the generally accepted approach of encouraged voluntarism. Its supporters claim that the system of encouraged voluntarism, which supplies organs free of cost through altruistic donation, has created a rapidly worsening organ shortage.

Typically, advocates of the market system are quick to note that they do not support a market in organs from living donors, nor do they envision donors and recipients haggling in hospital rooms. Instead, they focus on paying potential donors a fixed amount for signing a contract that authorizes the future removal of one or more of their organs at death. This may, for example, occur in the form of a uniform cash payment or tax credit to all individuals who agree to sign a donor form on the back of their driver's license application. This type of arrangement is called a forward market because payment for the organ occurs well before the organ is removed. The amount paid for such donor contracts could be adjusted up or down depending on the demand for organs.

Some of those who call for an organ market take the economist's perspective and claim that it is the best alternative because it would maximize social welfare. The benefits of such a system would include an increase in the supply of organs, and thus the saving of many more lives and the improved health of many more patients. More patients who have to undergo the expensive and time-consuming procedure of kidney dialysis, for example, would be able to instead receive a transplant. Moreover, firms and individuals engaged in the procurement business would have a direct financial incentive to increase public awareness of the facts surrounding organ donation and transplantation.

Advocates claim that a market would also produce a number of indirect benefits. Medical professionals would be able to choose from a greater number of available organs from the dead—termed cadaveric organs—and obtain higher-quality organs that more precisely match the tissue type of the recipient. With more closely matched organs would come less need to rely on living donors, thus avoiding the pain, loss of pay, and risks associated with donor surgery. Moreover, more organs would mean more transplant operations, and with increased frequency, the cost of those operations would fall as hospitals and their staffs become more proficient at conducting and managing them. Organ market supporters also argue that an undersupply of organs leads to a black market, and that this market will only become greater with time. Finally, an increase in the harvesting of cadaveric organs would eventually lead to greater social acceptance of the practice as part of the death process.

Critics see an organ market as not expanding the number of choices available but diminishing them, thereby undermining the ethical goal of individual autonomy and free choice. Even if sales were restricted to organs from those who are dead, they claim, the potential conflicts of interest on the part of physicians, patients, and families would erode the capability of individuals to make decisions about their own bodies. Critics also point out that if the sale of organs from living subjects were permitted, poor people would have economic incentives to sell their body parts, and as a result their own health could suffer.

Detractors of the market approach also claim that it would not increase the supply of organs and that the price of organs would be so high that few people would consent to give away their valuable organs. Some also claim that an organ market would result in lower-quality organs because poorer people, who are generally less healthy, would be more likely to sell organs for profit. Moreover, if organs had to be purchased, poor people would not be able to afford transplants. Market advocates counter that the total costs of organ transplantation would likely fall under a market system, making it more, not less, accessible to poor people.

Presumed Consent Program The presumed consent system of organ procurement is currently used in many European countries. It means that medical professionals are presumed to have a deceased individual's and surviving family members' consent to remove needed organs, unless those individuals have earlier made known their objections to organ removal. Supporters of this system argue that it increases the supply of organs, makes the decision to remove organs much easier, and further removes the physician and hospital from liability.

Critics of the presumed consent system find fault with it for economic, legal, and ethical reasons. Looking at the program in terms of economics, they claim that it does not actually increase the number of organs harvested because it does not impose financial incentives for organ requests. As a result, medical staff still exhibit a reluctance to remove organs and that leads to a continuation of the organ shortage. Critics also claim that a presumed consent system is expensive to create and maintain. It requires the creation of large, centralized registries listing individuals' decisions regarding their own body, and these must be updated continuously. Mistakes inevitably occur, causing unwanted organ removal and expensive lawsuits.

Other critics of the presumed consent system find it legally suspect and charge that if it is implemented in the United States it will violate the due process clause of the Constitution.

Those who find fault with the ethical premise of presumed consent argue that it removes the moral dignity surrounding donation by making it mandatory. It also detracts from the goal of free choice and autonomous behavior by precluding the individual from making no decision or from leaving the decision to others.

Required Request Program A required request program is a more moderate approach to the problem of organ donation. It seeks to reform the existing system of encouraged voluntarism by requiring that family members or guardians be given the opportunity to make an organ donation when a death has occurred. Such a program would require hospitals to have a specially trained person to approach families and inquire about organ donation at the time death is pronounced. The request would be noted in writing on the death certificate to ensure that medical providers comply with the policy. The required request system would allow for exceptions in cases where a request would not be in the best interests of family members or guardians, with such exceptions also duly noted on the death certificate. Such a system, its advocates claim, would increase freedom of choice by informing individuals of their options.

Proponents of this system point to statistics that indicate that in the U.S. public, the level of altruism regarding organ donation is quite high. In some hospitals, for example, over 60 percent of the families who were asked to donate the organs of loved ones agreed to do so. The problem with the current system, they maintain, is that donor cards do not adequately tap this altruistic sentiment. They also note that a required request system would ensure that donor cards or written directives are honored. With time, such requests would become a routine part of the death process in medical facilities, making them less surprising and less intrusive to family privacy at the time of death.

Critics of the required request system say that it would not do enough to change an already flawed organ procurement system. Moreover, they argue that approaching families in the hours following the death of a loved one imposes too much psychological distress.

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.


Death and Dying; Fetal Rights.

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Organ Transplantation

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