I’ve followed the recent colloquy regarding organ transplants in the pages of the Washington Post with great interest. But the suggestions merit a closer look.
In December 2018, there was a front-page article that outlined the asymmetry between supply of and demand for transplantable organs.
That article proposed one potential solution: using organs from so-called “marginal donors”—that is, people who are older, have chronic conditions like diabetes or hypertension, infectious diseases like HIV or Hepatitis C, or a social history that includes incarceration or sex work.
That proposal isn’t new.
Transplant surgeons have been interested in these less-than-perfect organs for years, seeing their use as a means of reducing the number of discarded organs and of addressing the chronic shortage of organs. There is a widely held belief that patients can reasonably decide to accept the trade-offs involved and give meaningful informed consent.
There have been some legal efforts to support this trend. For example, the 2013 HIV Organ Policy Equity (“HOPE”) Act directed the Department of Health and Human Services and the Organ Procurement Transplant Network to establish standards for transplantation of HIV-positive organs. The HOPE Act both extended opportunities for HIV-positive individuals to receive organs but also to donate organs for the first time. However, many people—myself included—would argue that the federal government has, on the whole, created strong disincentives to using organs from marginal donors.
After the initial WaPo article, there was a letter to the editor that argued a “much more tractable solution” than using less-than-perfect organs would be to pay living kidney donors. This was followed by an opinion piece asking “What if we paid people to donate their kidneys to strangers?”
I have two general concerns about these pieces.
First, both of these pieces overlook the fact that there is a significant legal barrier to increasing the supply of transplantable organs in this way. A central provision of the National Organ Transplant Act (NOTA), criminalizes the buying and selling of human organs for transplantation. The legislative history shows this prohibition arose from congresspersons’ deep concerns about commodification and exploitation of donors, which (ironically) were stoked by a proposal to create a kidney brokerage.
Assuming we could overcome the legal barrier to paying for organs imposed by NOTA, there is still a question of whether we should. Public polling has suggested that the public would support compensation, and survey experiments by Halpern et al suggest that offers of payment in exchange for living kidney donation would be neither an undue nor an unjust inducement.
At bottom, a real-world test of regulated payments is needed to show definitively whether this is a viable method of increasing the supply of kidneys for transplantation or not.
My second concern is that these two pieces focus exclusively on kidneys, leaving unaddressed the unmet need for hearts, lungs, livers, and other vital organs.
The opioid epidemic has increased organ transplantation activity in the United States over the last five years. These are unfortunate circumstances, and drug-related deaths should not be relied upon as long-term source of organ donations.
There is, therefore, a critical need to think about increasing the supply of organ donations overall, not just of kidney donations. And, fortunately, although the authors imply otherwise, the various strategies on the table are not mutually exclusive. There are many potential opportunities to revise transplantation law and policy to help address the organ shortage.