House and Senate Pass Bill Allowing HIV+ People to Donate Organs

In a week where most of the health law news has been, shall we say, less than hopeful for those of us who like the idea of robust health insurance expansion, as the Washington Blade reports there was one bright spot for progressive health policy: The House and Senate passed the HOPE (HIV Organ Policy Equity Act) which, if signed by the president, will authorize the HHS Secretary and OPTN to investigate and (if the research supports it) allow HIV+ individuals to donate organs to HIV+ individuals. You can read the full text here. The most relevant paragraph is

Clarification

In adopting and using standards of quality under paragraph (2)(E), the Organ Procurement and Transplantation Network may adopt and use such standards with respect to organs infected with human immunodeficiency virus (in this paragraph referred to as HIV), provided that any such standards ensure that organs infected with HIV may be transplanted only into individuals who—(A) are infected with HIV before receiving such organ; and(B) (i)are participating in clinical research approved by an institutional review board under the criteria, standards, and regulations described in subsections (a) and (b) of section 377E; or (ii) if the Secretary has determined under section 377E(c) that participation in such clinical research, as a requirement for such transplants, is no longer warranted, are receiving a transplant under the standards and regulations under section 377E(c).

A few quick reactions: (1) What fascinating co-sponsors across the aisle: Sens. Barbara Boxer (D-Calif.) along with Tammy Baldwin (D-Wis.), Tom Coburn (R-Okla.) and Rand Paul (R-Ky.) as original co-sponsors. In the House, Reps. Lois Capps (D-Calif.) was lead sponsor and Andy Harris (R-Md.) was an original co-sponsor. (2) This is a good step forward, but one wonders whether limiting the potential recipients to HIV+ folks is itself wise. I can easily imagine cirucmstances where an individual who faces death would prefer an HIV+ organ even if it will carry with it a significant chance of HIV infection. Perhaps I don’t know enough about the immunology here and there is something I am missing (and commentators please help educate me and other readers). One might indeed wonder if, in some weird way, the bill now creates a disability discrimination (I say that because the Supreme Court has in its jurisprudence treated HIV as capable of causing a major life impairment under the Americans with Disabilities Act) in favor of those with HIV, because only they are potentially eligible for a certain pool of organs that may become available. That’s probably not actionable (as I understand it the ADA does not protect non-disabled people from discrimination in favor of the disabled), but it is at least quite curious. (3) Is this a portent of things to come from the administration? Relaxation of the much-reviled ban on gay men donating blood? Or will this “win” for the community (and to be clear the HIV+ community and the gay community are by no means isomorphic) going to sop some of the pressure on the blood ban?

I. Glenn Cohen

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

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