When it comes to limits on organ donation, the United States distinguishes between “giving” and “selling.” By not allowing the purchase and sale of organs, the American system explains that donation is the only way to obtain organs. Unlike the case of consent, the U.S. government is arguably more involved than other countries in banning organ trafficking by law. A more libertarian system would allow both forms of organ exchange – giving and selling – and would give individuals the freedom to decide for themselves whether the sale of a body part makes personal sense without government interference. Three human goods in particular seem to guide both our current organ transplant policy and the myriad demands for reform. The first good, and perhaps the most obvious, is health – both the promotion of the health of those who suffer and sometimes die while waiting for organs, and the protection of the health of those who voluntarily become living organ donors. Everyone suffers from the misery of the sick, perhaps especially when a remedy (such as a transplant) is possible but not available. And everyone recognizes the great contribution of organ transplantation to the good of human health and the alleviation of human suffering. In modern societies, the pursuit of health is a goal that unites even those who disagree on many other things.
The Living Kidney Organ Donation Clarification Act (p. 2306) was introduced in the Senate on February 16, 2006. It intends to amend the National Law on Organ Transplantation to clarify that donation of pairs of kidneys and donation on the list of kidneys do not involve the transfer of a human organ for a valid purpose. One way to expand the potential pool of organ donors is to relax the health criteria for donor death. As discussed in more detail in Working Paper No. 3 on Organ Allocation, we use both “standard donors” who meet the highest eligibility standards and “donors with expanded criteria” who meet a more flexible and discretionary standard. The UNOS Board of Directors defines an eligible deceased donor as a person 70 years of age or younger who meets a very long list of health requirements.41 There are two main ways to broaden this definition. First, the age limit could be raised to 75 or 80. Second, some of the health requirements imposed on potential donors could be reduced. Serious diseases such as AIDS would still disqualify the use of organs, but less serious conditions would not.
In the context of organ transplantation, these three human goods are often used, as if an individual voluntarily agreed to donate his organs to death as an act of altruism towards his fellow citizens in need. Sometimes, however, these human goods can come into conflict. At the very least, we must decide what weight we attach to the pursuit of health, the preservation or the blurring of the boundaries of freedom and what human dignity really requires of us. When we look at the range of specific policy proposals in the field of organ transplantation, we must always think about these more fundamental human goods and their relationship with each other. The federal bills, ACOT recommendations, and UNOS proposals described above provide an overview of the overall direction of U.S. policy reform. Federal laws are primarily aimed at supporting living donation, perhaps as a way to increase the supply of organs. The Living Organ Donor Job Security Act and the Living Organ Donor Tax Credit Act propose to eliminate some of the deterrents that could discourage or at least increase the difficulties associated with living donation. The Gift of Life Congressional Medal Act proposes to provide an incentive to donate by appealing to the potential donor`s sense of honor. The law to clarify organ donation from living donors proposes to exclude couple donation and exclude donation from the importance of a valid consideration. These bills are intended to make the gift of living less costly, rewarding and easier.
4. Criteria for dying donors: Some argue that we should separate the question of the definition of death from the question of who is an appropriate donor. This would involve developing clinical and legal criteria to enable the removal of organs from severely weakened and/or nearly dead patients – that is, from patients whose health condition is defined as desperate and/or for whom death is imminent. Instead of endlessly debating the best definition of death, they argue that we should establish protocols for the use of dying donors. Although the reports on the practices of these four countries are very brief, they highlight some major differences from the United States. In this way, we are helping to define more clearly the limits of our national organ policy, particularly with regard to the role of government in organ donation. In the United States, the choice to donate is left to that person or that person`s family, and the decision the person or family makes is to opt for the donation system, not the opt-out. These guidelines significantly limit the government`s power to decide who will donate. In systems that collect donors (such as China) or assume that donors agree unless they explain otherwise (such as Spain), the government plays a much larger role in the determination process.
The same goes for mandatory voting laws (as in Sweden): a government that supports this type of law forces its citizens to make a decision, while in the U.S. system, the government offers each citizen the opportunity to declare themselves a potential donor, but does not require an explicit statement of their intentions. One way to honor or reward living donors would be to give them preferential status as organ recipients if they themselves have suffered organ failure. As discussed in much more detail in Discussion Paper #3, this is already a common practice to some extent: living kidney, liver and lung donors receive additional priority points as potential kidney recipients; Because they have donated organs, they are indeed on the waiting list to receive organs. This policy could be expanded – both by moving living donors even higher in the list of kidneys and by extending the policy to the liver, lungs, heart or other types of organs that a previous donor might need in the future. Presumed consent means that the government assumes that citizens agree to donate their organs upon their death, unless the person or family expressly states otherwise. These policies vary depending on how easily it is possible to “unsubscribe” and who has the power to opt out: a strict law on presumed consent could not allow the person to disconnect before death, meaning that surviving family members would not have the power to prevent organ harvesting if their deceased loved one had remained silent. A more flexible law on presumed consent could allow surviving family members to withdraw, but only if they take the initiative to intervene; Or such a law could require organ supply agencies to inform family members that organs are being harvested, giving them the explicit option to withdraw. In Recommendation 37, ACOT presents the only policy proposal that would clearly lead to a significant change in the guiding principles and governance framework of the current system. It states that the HHS secretary should ask states to test the viability of “presumed consent” laws. As mentioned in Part I, most states have “first-person consent laws.” Some states give family members of a deceased person the legal power to determine whether they want to donate the organs of their deceased family member.
Both types of laws are opt-in policies, in which donation is made only upon request and only with explicit permission to make a donation. (There is a partial exception to this general rule in some state laws. This exception is explained in more detail below. See footnote 42.) The assumption that the absence of an explanation means that the deceased person intends to donate would be a radical change in current practice by converting “opt-in” policies to “opt-out” policies. .