Order Code RL33902
Living Organ Donation
and Valuable Consideration
Updated May 1, 2008
Erin D. Williams
Specialist in Public Health and Bioethics
Domestic Social Policy Division
Bernice Reyes-Akinbileje
Analyst in Health Resources and Services
Domestic Social Policy Division
Kathleen S. Swendiman
Legislative Attorney
American Law Division

Living Organ Donation and Valuable Consideration
Summary
The central issue before Congress with respect to living organ donation is how
to balance the needs of people seeking organs with one another, and with the needs
of potential organ donors. While the majority of organs are harvested from deceased
donors, an increasing number of donations are made by living donors each year. As
new types of programs are developed to help encourage the practice of living
donation, both legal and ethical issues may arise.
The primary federal law governing organ donation in the United States is the
National Organ Transplantation Act (NOTA, P.L. 98-507). It permits living and
deceased organ donation, and prohibits the sale of organs. Specifically, section 301
of NOTA prohibits the exchange of valuable consideration (money or the equivalent)
for organs.
In December 2007, Congress specified in the Charlie W. Norwood Living Organ
Donation Act (H.R. 710; S. 487; P.L. 110-144) that NOTA’s prohibition on the
exchange of valuable consideration for organs does not extend to paired organ
donation (also known as paired donation, or human organ paired donation). Paired
organ donation arises when two or more willing living donors are incompatible with
their intended recipients, but compatible with one another’s recipients. The donors
give their organs to one another’s intended recipients so that each recipient receives
a compatible organ.
Living organ donation generally, and paired and other similar types of organ
donation arrangements specifically, raise or at least touch upon a range of issues.
These include some related to evolving transplantation systems, the directive that
physicians do no harm, risk-benefit ratios, informed consent, type O recipients,
resource allocation, parity, and the possibility of paying for organs.
Prior to the passage of P.L. 110-144, in the 110th Congress, several other
measures were proposed. During the 109th Congress, S. 2306 would have clarified
that for kidneys, paired donation, and another type of organ exchange known as list
donation, were exempt from NOTA’s prohibition on the exchange of valuable
consideration for organs. The impact, if any, of P.L. 110-144 on the legality of list
donation is unclear. In the 108th Congress, S. 573 IS would have exempted familial,
emotional, psychological, and physical benefit from the prohibition.
This report contains background regarding how living donation is included
within the larger organ donation construct, the likely impact that paired organ
donation will have, and that list donation programs would have, on organ supply, the
legislative history and legal interpretation of the term valuable consideration as it is
defined by NOTA, and the various ethical and policy issues related to living
donation, paired donation and list donation.
This report will be updated as needed.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Demand for Transplantable Organs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
United States Organ Procurement System . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Living Donation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Directed Living Donation and Valuable Consideration: Paired Donation
and Other Types of Exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Impact of Living Donation Arrangements on Organ Supply . . . . . . . . . . . . . . . . . 7
Research on Paired and List Kidney Donation Systems . . . . . . . . . . . . 8
Legal Issues Relating to Valuable Consideration and Living Donation
Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Statutory Prohibition in NOTA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Valuable Consideration and Living Donation Arrangements . . . . . . . . . . . 12
Ethical and Policy Issues Related Living Organ Donation, and Paired and
List Donation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Evolving Transplantation Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Ethical Issues Related to Living Donation . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Above All, Do No Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Risk-Benefit Ratios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Informed Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Ethical Issues Related to List Donation: Blood Type O . . . . . . . . . . . . . . . 17
Ethical Issues Related to Directed Donation (Paired and List) . . . . . . . . . . 18
Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Parity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ethical Issues Related to Proposals for Expanding the Organ
Supply: Exchanging Valuable Consideration for an Organ . . . . . . . . 19
List of Tables
Table 1. Number of Organs Recovered and Transplanted from Living and
Deceased Donors in the United States, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . 7
Table 2. Number of Organs Recovered from Living Donors in the United
States, 2000-2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Table 3. Reported Deaths on Waiting Lists for Selected Organs in the United
States, 2000-2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Living Organ Donation
and Valuable Consideration
Introduction
The issue of living organ donation is important to Congress because it represents
one important set of possibilities for balancing the needs of people seeking organs
with one another, and with the needs of potential organ donors. On one side of the
balance, the drive to increase the supply of transplantable organs is fueled by people
awaiting organ transplants. They are, in a sense, competing with one another on
waiting lists for potentially life-saving scarce resources. On the other side of the
balance, the drive to ensure that the transplant system is ethical and equitable
precludes some mechanisms that would increase the supply of transplantable organs.
Some options that have been rejected to date in the United States include paying
healthy persons to donate their organs, and mandating that transplantable organs be
harvested from all cadavers.
To maintain the most ideal balance for the organ transplantation system,
Congress may now wish to clarify whether certain new types of living organ donation
should be adopted to increase the supply of transplantable organs, or prohibited for
ethical and/or equitable reasons.
Demand for Transplantable Organs
The demand for transplantable organs is outpacing the supply at an increasing
rate. In the United States in 1988, there were 16,026 individuals on the waiting list
for an organ transplant.1 By 1995, the waiting list had increased almost 175%, to
43,937.2 Since then, it has more than doubled, and as of April 22, 2008, the waiting
list holds 98,915 individuals, including 75,524 people seeking kidneys.3 Each day,
1 Institute of Medicine, Organ Donation: Opportunities for Action, (Washington, DC:
National Academies Press, 2006) (hereinafter referred to as IOM Report), p. 19.
2 Id. at p. 19.
3 Data is from the United Network of Organ Sharing (UNOS) website, at [http://www.unos.
org/], visited April 22, 2008. Data on the site are continuously updated. Note: In March
2008, questions were raised about the accuracy of the waiting list numbers. See Robert
Stein, “A Third of Patients on Transplant Waiting List Are Not Eligible,” The Washington
Post
, March 22, 2008, p. A01, at [http://www.washingtonpost.com/wp-dyn/content/article/
2008/03/21/ AR2008032102981.html].

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on average, hospitals perform 56 organ transplants, and nearly 19 people die awaiting
organs that never come.4
United States Organ Procurement System
In order to help ensure that organs are equitably distributed, Congress passed the
National Organ Transplant Act of 1984 (NOTA).5 NOTA authorized the Secretary
of the Department of Health and Human Services (HHS) to establish the Organ
Procurement Transplantation Network (OPTN), by contract. Currently, the OPTN
is administered by the United Network for Organ Sharing (UNOS) under contract
with the Health Resources and Services Administration of HHS. The OPTN and
UNOS have established a national system for matching organs and individuals in
need of organs. In addition OPTN and UNOS set policies for United States
transplant centers and organ procurement organizations (OPOs).6 The 1984 NOTA
also prohibited the buying and selling of human organs by making it unlawful to
exchange valuable consideration for human organs for use in transplantation.7 The
1984 Act did, however, allow reasonable payments to be made to living donors for
expenses relating to travel, housing, and lost wages in connection with the donation
of an organ.8
Currently, the United States organ procurement system is composed of 58 OPOs
which provide all the deceased and some living donor organs for the nation’s 254
transplant centers.9 Each OPO has a contiguous geographical service area designated
by the federal government for recovering organs in all hospitals in that region.10 Each
OPO is required to be a member of and provide transplant candidate information to
OPTN, which maintains the master waiting list of individuals seeking transplants in
the United States.11 OPOs may also implement regional organ allocation systems
4 Eric Cohen, Organ Transplantation: Defining Ethical and Policy Issues, President’s
Council on Bioethics Working Paper, June 2006 (hereinafter E.Cohen).
5 P.L. 98-507, 42 U.S.C. 274 et seq.
6 § 201 of NOTA, 42 U.S.C. § 274.
7 § 301 of NOTA, 42 U.S.C. § 274e(a). The statute does not define valuable consideration,
leading to some ambiguity in the case of living donation arrangements where mutual
promises are exchanged to facilitate multiple organ donations. Even though monetary
payments are not involved in such arrangements, legal issues have been raised concerning
application of this prohibition against the exchange of valuable consideration. See legal
discussion, infra, beginning on page 10.
8 § 301(c)(2) of NOTA, 42 U.S.C. § 274e(c)(2).
9 UNOS, Members, at [http://www.optn.org/members/], visited April 23, 2008.
10 Howard M. Nathan et al., “Organ donation in the United States,” American Journal of
Transplantation
, vol. 3, supp. 4 (2003) (hereinafter, H.M. Nathan), p. 29.
11 All U.S. transplant centers and organ procurement organizations must be members of the
OPTN to receive any funds through Medicare. § 1138 of P.L. 99-509, the Omnibus Budget
Reconciliation Act of 1986, 42 U.S.C. 1320b-8. Other OPTN members include independent
histocompatibility laboratories involved in organ transplantation; relevant medical,
(continued...)

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different from the national OPTN system for the purpose of increasing organ
availability and/or organ quality, reducing or addressing an inequity in organ
allocation/distribution unique to a local area, and/or examining a policy variation
intended to benefit the allocation/distribution system overall.12 In 1986, in order to
help increase the organ supply available for transplantation, Congress passed
legislation requiring virtually all hospitals to establish protocols requiring health
professionals to make organ donor requests.13
Living Donation
In 2004 Congress passed the Organ Donation and Recovery Improvement Act,14
the first federal law directly applicable in part to living donors (i.e., living people
who donate an organ they can survive without, such as one of their two kidneys).
Living donation is preferable for transplant recipients, because kidneys recovered
from live donors typically outlast those from deceased donors.15 The law amended
the Public Health Service Act to authorize the HHS Secretary to award grants to
states, transplant centers, qualified organ procurement organizations or other public
or private entities to reimburse travel, subsistence, and incidental nonmedical
expenses incurred by individuals toward making living organ donations.16 The law
also authorized the Secretary to establish and maintain mechanisms to evaluate the
long-term effects associated with living organ donations by individuals who have
served as living donors. For all types of donations, the law created and authorized
funding for donor awareness programs.17
Government oversight of the living donation process is limited, and some OPOs
have organized non-traditional programs for living donors.18 A typical living donor
program allows individuals to receive transplants from living spouses, parents, or
friends who are willing to donate and are biologically compatible.
11 (...continued)
scientific, and professional organizations; relevant voluntary health and patient advocacy
organizations; and members of the general public with a particular interest in donation
and/or transplantation. Profile, About OPTN, at [http://www.optn.org/optn/profile.asp].
12 OPTN Policy #3.1.7 (February 21, 2008), at [http://www.optn.org/PoliciesandBylaws2/
policies/pdfs/policy_3.pdf].
13 § 9318(a) of P.L. 99-509, the Omnibus Budget Reconciliation Act (OBRA) of 1986, 42
U.S.C. § 1320-8.
14 P.L. 108-216, 42 U.S.C. § 273 et seq.
15 Sommer E. Gentry, Dorry L. Segev, and Robert A. Montgomery, “A Comparison of
Populations Served by Kidney Paired Donation,” American Journal of Transplantation, vol.
5, no. 8 (August 2005), (hereinafter, S. E. Gentry) p. 1914.
16 § 3 of P.L. 108-216, 42 U.S.C. § 274f.
17 § 4 of P.L. 108-216; 42 U.S.C. 274f-1. A total of $5 million was authorized to be
appropriated from FY2005 through FY2009, however, the program was unfunded in
FY2005.
18 IOM Report, p. 309; H.M. Nathan, p. 39.

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Questions have been raised about the entire process of living donation and the
multitude of health, financial, and social post-operative risks that the living donor
faces. (For a detailed discussion of these, see the final section of this report.) In part
to help answer some of these questions, in 2007, Congress passed the Charlie W.
Norwood Living Organ Donation Act (H.R. 710; P.L. 110-144). One provision of
the law requires the HHS Secretary to submit annually to the appropriate committees
of Congress a report that details the progress made toward understanding the
long-term health effects of living organ donation. In addition, as discussed in detail
below, this law clarified that human paired organ donation does not violate NOTA’s
prohibition against the exchange of valuable consideration.19
Over time, Congress has considered a range of legislation aimed at encouraging
the practice of living organ donation. For example, H.R. 1993 (109th) would have
amended the Family and Medical Leave Act of 1993 (FMLA) to entitle employees
covered by FMLA to leave in order to provide a living organ donation. A second
bill, H.R. 2472 (109th), would have amended the Internal Revenue Code to allow a
nonrefundable tax credit for a donation of a qualified life-saving organ for
transplantation by a living donor, and amended the Public Health Service Act to
provide that any such tax credit not be deemed valuable consideration for purposes
of the ban against organ purchases. A third, H.R. 4753/S. 2283 (109th), would have
directed the Secretary of the Treasury to design and strike a bronze medal to be
awarded to organ donors and/or their families.
Directed Living Donation and Valuable Consideration:
Paired Donation and Other Types of Exchanges

As described above, in traditional living donation, a specific donor, who is
biologically compatible with his or her intended recipient, donates an organ to that
person. To accommodate willing living donors who are not biologically compatible
with their intended recipients, some other types of directed exchanges — in which
a donor specifies who is to receive his or her organ — have emerged. One is paired
donation
(also known as paired organ donation or human paired organ donation).
In paired donation, two or more donors whose kidneys are incompatible with their
own intended recipients, but compatible with each other’s, trade donations. Each
recipient receives a compatible kidney from a living donor.
P.L. 110-144 clarified that NOTA’s prohibition on the exchange of valuable
consideration for organs does not extend to paired donation. Prior to the passage of
this law, the exchange element of paired donations triggered questions about whether
such arrangements represented the exchange of valuable consideration for an organ.
If so, these arrangements would have been illegal.
P.L. 110-144 contains the following definition of human paired organ
donation:20
19 NOTA, Section 301, 42 U.S.C. §274(e)
20 P.L. 110-144, §2; 42 U.S.C. §274e(c)(4). This law also provides that it shall not be
(continued...)

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(A) An individual (referred to in this paragraph as the ‘first donor’) desires to
make a living donation of a human organ specifically to a particular patient
(referred to in this paragraph as the ‘first patient’), but such donor is biologically
incompatible as a donor for such patient.
(B) A second individual (referred to in this paragraph as the ‘second donor’)
desires to make a living donation of a human organ specifically to a second
particular patient (referred to in this paragraph as the ‘second patient’), but such
donor is biologically incompatible as a donor for such patient.
(C) Subject to subparagraph (D), the first donor is biologically compatible as a
donor of a human organ for the second patient, and the second donor is
biologically compatible as a donor of a human organ for the first patient.
(D) If there is any additional donor-patient pair as described in subparagraph (A)
or (B), each donor in the group of donor-patient pairs is biologically compatible
as a donor of a human organ for a patient in such group.
(E) All donors and patients in the group of donor- patient pairs (whether 2 pairs
or more than 2 pairs) enter into a single agreement to donate and receive such
human organs, respectively, according to such biological compatibility in the
group.
Prior to the passage of the law, OPOs in Washington, D.C., and New England
had implemented two types of programs for the exchange of kidneys.21 One was
paired donation, which was addressed in P.L. 110-114, and the other was list
donation
, which was not addressed in the law.
In a list donation exchange, a donor who is incompatible with an intended
recipient makes a donation to a stranger on the waiting list. In return, the intended
recipient advances on the waiting list for a deceased donor organ. While receiving
a kidney from a living donor may be preferable to receiving one from a deceased
donor, recipients of organs from deceased donors still have a much greater chance of
survival than those who remain on dialysis.22 (Dialysis is a mechanical process
designed to partially perform kidney functions.)23
List donation is similar to paired donation in that it is a directed living organ
donation exchange program that may facilitate increased organ donation. However,
it is different in two distinct ways. First, unlike paired donation, list donation
disadvantages people seeking transplants who have blood type O. (See the “Ethical
and Policy Issues Related Living Organ Donation, and Paired and List Donation”
section of this report for details).
Second, the effect of the passage of P.L. 110-114 on the permissibility of list
donation is unclear. As was the case for paired donation prior to the enactment of
the law, questions have been raised as to whether the exchange element of list
donation violates NOTA’s valuable consideration provision. The effect, if any, of
20 (...continued)
construed to alter or amend the Social Security Act.
21 H.M. Nathan, p. 39.
22 Francis L. Delmonico et al., “Donor Kidney Exchanges,” American Journal of
Transplantation
, vol. 4, no. 10 (October 2004), (hereinafter, F.L. Delmonico), p. 1632.
23 UNOS, definition of dialysis, at [http://www.unos.org/resources/glossary.asp#D].

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the passage of P.L, 110-114 on the legality of list donation is explored in more detail
in the “Legal Issues Relating to Valuable Consideration and Living Donation
Arrangements” section of this report.
Congress has previously considered legislation to clarify that list donation is
permissible for kidneys (S. 2306, 109th). In addition, one version of the Organ
Donation and Recovery Improvement Act (S. 573 IS, 108th) proposed an even
broader exemption: that the definition of valuable consideration not include familial,
emotional, psychological, or physical benefit to an organ donor or recipient.
This report first presents information regarding the impact of living donation
programs on the organ transplantation system. It presents statistics related to the
current system, and estimates the impact that paired and list donation programs
would have on the supply of organs for transplantation, waiting lists, and deaths.
Next, the report presents a legal analysis of NOTA’s prohibition on valuable
consideration as it relates to directed living donation exchange programs. The report
concludes with a presentation of ethical issues involved in living donation, with a
focus on paired and list donation programs.

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Impact of Living Donation Arrangements
on Organ Supply
Living donation provides thousands of organs for transplantation each year. In
2005, the most recent year for which complete statistics are available, 6,903 organs
were provided by living donors, which accounted for nearly a quarter of the 27,990
total organs donated (excluding hearts).24 (See Table 1.) Over 95% of the organs
donated by living donors were kidneys. All of the organs collected from kidney and
other living donors were transplanted, while just under 86% of organs recovered from
deceased donors were transplanted.
Table 1. Number of Organs Recovered and Transplanted
from Living and Deceased Donors in the United States, 2005
Living Donors
Deceased Donors
Total Donors
# Recov.
Organ
(100% recovered
% of Total
Type
were transplanted)
# Transp.
# Recov.
# Transp.
# Transp.
Kidney
6,569
37.2%
13,313
11,102 17,671
Pancreas
2
0.1%
2,045
1,464
1,466
Liver
323
5.1%
6,692
6,040
6,363
Intestine
7
3.9%
184
171
178
Lung
2
0.1%
2,374
2,308
2,310
All Organs
6,903
24.7%
24,608a
21,085a
27,988a
Source: United Network for Organ Sharing, based on OPTN data as of April 21, 2008,
[http://www.optn.org/latestData/rptData.asp]. UNOS data are subject to change due to corrections.
a. Totals exclude deceased heart donors: 2,220 recovered and 2,190 transplanted. Living heart
transplants (domino)25 have occurred in other years, but none in 2005.
The amount of living organ donation has increased over time. The overall
number of living organ donors has risen steadily from 2000 to 2006. (See Table 2.)
Each year, as in 2005, the vast majority of organs given by living donors have been
kidneys. Despite the increase in organ donation, more than 6,000 individuals have
died each year between 2001 and 2006 while awaiting an organ for transplant. (See
Table 3.) More than half of those were awaiting kidneys.
24 United Network for Organ Sharing, based on OPTN data as of August 3, 2007, at
[http://www.optn.org/latestData/rptData.asp].
25 A domino transplant is a procedure in which an organ is removed from one transplant
candidate and immediately transplanted into a second patient, with the first patient receiving
a new organ from a deceased donor. For example, lung transplants are more successful if
accompanied by a donor heart as well as the lungs. A person with a healthy heart and in
need of lungs might donate his or her heart if a heart/lung set became available.

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Table 2. Number of Organs Recovered from Living Donors
in the United States, 2000-2006
Living Organ
Donors
2000
2001
2002
2003
2004
2005
2006b
Kidney
5,494
6,038
6,240
6,473
6,647
6,569
6,434
Pancreas
7
4
1
3
0
2
1
Liver
402
522
363
322
323
323
288
Intestine
3
0
1
4
6
7
4
Lung
36
49
25
29
28
2
5
Heart
0
0
0
0
0
0
1
Totala
5,942
6,613
6,630
6,831
7,004
6,903
6,733
Source: United Network for Organ Sharing, based on OPTN data as of April 21, 2008,
[http://www.optn.org/latestData/rptData.asp]. UNOS data are subject to change due to corrections.
a. Totals may be less than the sums due to patients included in multiple categories.
b. The data for 2006 are incomplete.
Table 3. Reported Deaths on Waiting Lists for Selected Organs
in the United States, 2000-2006
Organ
2000
2001
2002
2003
2004
2005
2006b
Heart
634
673
587
536
476
429
383
Intestine
25
45
53
49
54
55
53
Kidney
3,195
3,441
3,803
3,884
4,090
4,217
4,471
Liver
1,798 2,054
1,911
1,863
1,889
1,889
1,749
Lung
500
507
498
472
492
371
267
Pancreas
36
61
38
47
59
75
76
Totala
6,153
6,724
6,800
6,737
6,914
6,865
6,821
Source: UNOS, current as of April 21, 2008, [http://www.optn.org/latestData/rptData.asp].
UNOS data is subject to change due to corrections.
a. Totals may be less than the sums due to patients included in multiple categories.
b. The data for 2006 are incomplete.
The overall effect that mechanisms for expanding the pool of potential living
organ donors, such as paired and list donation, will or might have on the available
supply of various organs is difficult to measure. This is due largely to the fact that
paired and list donation systems have only been implemented and tested for kidney
donation, which is discussed below.
Research on Paired and List Kidney Donation Systems. The number
of additional kidney transplants likely to result from a national paired and/or list

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kidney donation system depends on a number of things. The number of available
kidneys could be increased by numerous factors — not all of which are necessarily
desirable. These factors include selecting an optimal transplant system (list, paired,
or combination) for the size of the population, lowering the degree of compatibility
required for a transplant, increasing donor willingness to participate in list and paired
donation programs, and avoiding systemic restrictions used to achieve equitable
outcomes among recipients. The studies that have examined these factors are
summarized below.
One study generated data about the type of transplant system that is optimal for
a given population size by comparing paired, list, and combination programs via
computer model. The authors estimated that a pool of 3,584 donor/recipient pairs
could generate 1,871 successful transplants (52%) using a combination paired/list
exchange program, 1,730 (48%) using a paired program alone, and 1,330 (37%)
using a list program alone.26 The same study found that, for small populations of
donor/recipient pairs (less than 100), list donation would generate more potential
transplants than paired donation because list donation uses the entire deceased donor
pool, while paired donation is limited to the incompatible pool.27
A second study investigated factors that influence donors’ willingness to
participate in paired and list exchange programs.28 Willingness to make a paired or
list donation appeared to be directly proportional to the likely magnitude of benefit
to the intended recipient. Of 174 potential donors who had been found medically
incompatible with their intended recipients, 63.8% were willing to participate in
paired donation (in which the intended recipient would receive a kidney immediately
from a live donor), and 37.9% were willing to participate in list donation (in which
the intended recipient would be moved up the list for a kidney from a deceased
donor). Willingness to make a list donation was greatest when the intended recipient
would be moved to the top rather than the top 20% of the waiting list (37.9% vs.
19.0%).
A third study examined the possibility of maximizing paired donations by
lowering the donor/recipient compatibility requirements.29 By doing so, authors were
able to increase the percentage of possible exchanges from 57% to 91.7% of patients
in their database.30 A number of specialized centers report success with incompatible
kidney transplantation using special techniques to make the kidney more compatible
with the intended recipient. The results of these types of transplants are reportedly
26 S. E. Gentry, 1917-1918.
27 Id. at p. 1918.
28 A.D. Waterman et al., “Incompatible Kidney Donor Candidates’ Willingness to
Participate in Donor-Exchange and Non-directed Donation,” American Journal of
Transplantation
, vol. 6, no. 7 (July 2006), p. 1631.
29 Requirements for human leukocyte antigen matching (HLA) were lowered from four
points of compatibility to three.
30 Inessa Kaplan et al., “A Computer Match Program for Paired and Unconventional Kidney
Exchanges,” American Journal of Transplantation, vol. 5, no. 9 (September 2005), p. 2308.

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encouraging,31 but long-term results are not yet available, and therapy is labor
intensive, requires immunosuppressives, and adds an average of $28,000 to the cost
of the transplant.32
A fourth study estimated the impact that ethical restrictions to help ensure that
people of all blood types benefit equitably from list donations would have on the
number of transplants performed.33 The authors proposed certain restrictions on list
donation (and others have proposed avoiding list donation altogether) because people
with blood type O may be disadvantaged by such a system. Donors with blood type
O may give compatible kidneys to recipients with any blood type, but recipients with
O blood type may only receive compatible kidneys from type O donors. For that
reason, type O recipients, who already have the longest mean wait time on the
cadaver waiting list, may have to wait an even longer time for a cadaveric kidney in
a typical list donation program. The ethical dimensions of this issue are discussed
further in the Ethical Issues section of this report.
Study results indicated that restrictions to benefit recipients with blood type O
would decrease annually the number of additional kidneys available from list
exchanges by about one-half (from a range of 844 — 2,155 additional kidneys, to a
range of 414 — 1,150 additional kidneys). The study also indicated that, unless the
restrictions were used, type O recipient candidates in a list exchange program would
experience an increased waiting time that would translate into 15.17 deaths per year
among the group.
31 For example, see Robert A. Montgomery et al., Clinical Results From Transplanting
Incompatible Live Kidney Donor/Recipient Pairs Using Kidney Paired Donation,” Journal
of the American Medical Association
, vol. 294, no. 13 (October 2005), p. 1655.
32 S.E. Gentry, p. 1919.
33 Lainine Friedman Ross and Stefanos Zenios, Restricting Living-Donor-Cadaver Donor
Exchanges to Ensure that Standard Blood Type O Wait-List Candidates Benefit,”
Transplantation, vol. 78, no. 5 (September 15, 2004), (hereinafter, L.F. Ross), pp. 641-646.

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Legal Issues Relating to Valuable Consideration
and Living Donation Arrangements
Statutory Prohibition in NOTA
As enacted, the National Organ Transplant Act of 1984 (NOTA), § 301(a),
prohibited buying or selling human organs “for valuable consideration for use in
human transplantation.”34 The original statute also included a criminal provision
with fines of up to $50,000 and imprisonment for up to five years, or both.35 While
the statute did not define valuable consideration, it did state that the term “does not
include the reasonable payments associated with the removal, transplantation,
implantation, processing, preservation, quality control, and storage of a human organ
or the expenses of travel, housing, and lost wages incurred by the donor of a human
organ in connection with the donation of the organ.”36
The legislative history of the 1984 NOTA did not discuss the meaning of the
term valuable consideration.37 It simply expressed Congress’s intent to criminalize
the buying and selling of organs for profit. For example, the Senate report
accompanying S. 2048 stated that “[i]t is the sense of the Committee that individuals
or organizations should not profit by the sale of human organs for transplantation.”38
The House conference report for that bill reiterated that Section 301 was directed
toward monetary exchanges: “This title intends to make the buying and selling of
human organs unlawful....”39 During congressional hearings in 2003 on incentives
to increase organ donations, strong objections were proffered against the use of
direct monetary incentives to procure organs.40
Living donations of kidneys from a single biologically compatible living donor
to a recipient had taken place before NOTA was enacted in 1984. Since NOTA
specifically allowed certain expense payments to be provided to a living donor, it was
clear that living donations were not precluded by NOTA and that single living
donations did not implicate the § 301 prohibition against the exchange of valuable
consideration. At the time NOTA was enacted, living donation arrangements
involving multiple donors and recipients, such as paired donation and list donation,
34 42 U.S.C. § 274e(a).
35 § 301(b) of NOTA, 42 U.S.C. § 274e(b).
36 § 301(c)(2) of NOTA, 42 U.S.C. § 274e(c)(2).
37 According to one author, the prohibition against selling organs was enacted in part
because of a Virginia physician’s efforts to address the organ shortage by brokering living
donors’ kidneys and earning a profit. Fred H. Cate, Human Organ Transplantation: The
Role of Law, 20 Journal of Corporation Law, 69, at 80 (1994).
38 See S.Rept. 98-382 (1984), at 16-17, reprinted in 1984 U.S.C.C.A.N. 3975, 3982-3983.
39 H.Rept. 98-1127 (1984), at 16, reprinted in 1984 U.S.C.C.A.N. 3989, 3992.
40 Assessing Initiatives to Increase Organ Donations: Hearing Before the House Subcomm.
On Oversight & Investigations of the House Comm. on Energy & Commerce, 108th Cong.,
at 5, 21, 64-67 (2003).

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had not yet been developed as medical options. Thus, Congress did not consider
such practices in enacting the prohibition on giving or receiving valuable
consideration in return for human organs. In recent years, some transplantation
facilities have implemented living donation programs involving multiple recipients
and/or donors,41 however other transplant facilities have hesitated to implement such
multiple living donation programs because of possible legal concerns over whether
such practices could be construed as violating the exchange of valuable consideration
prohibition in NOTA.42 Congress, in December, 2007, enacted P.L. 110-144, the
Charlie W. Norwood Living Organ Donation Act,43 which clarifies that “human
organ paired donation” is not a human organ transfer for valuable consideration and
thus does not violate NOTA.44
Valuable Consideration and Living Donation Arrangements
It has always been clear that living donation arrangements such as paired
donation and list donation do not involve actual monetary payments to the donor or
recipient. The concern that has been raised is whether the donors and recipients in
multiple living donation arrangements have received valuable consideration for their
promises to get something in return for specific acts. Such arrangements arguably
involve some kind of bargain since there are mutual promises on both sides of the
arrangement.45 The argument has been made that where a donor trades his organ for
a compatible organ for his intended beneficiary, the donor receives valuable
41 Johns Hopkins Medical Center began a paired organ donation program in 2001. To date,
at least twenty-two patients have benefitted from the program, and, recently, the first three-
way swap involving 6 people, was completed. Sarah E. Statz, Note, Finding the Winning
Combination: How Blending Organ Procurement Systems Used Internationally Can Reduce
the Organ Shortage, 39 Vanderbilt Journal of Transnational Law 1677, 1704 (2006).
42 Floor statement of Senator Carl Levin on introduction of the Living Kidney Organ
Donation Clarification Act, S. 2306, 109th Cong., February 17, 2006, available at
[http://www.govtrack.us/congress/record.xpd?id=109-s20060216-31&person=300001],
visited March 3, 2007. “Although most ethicists, lawyers and members of Congress
believed that NOTA was never intended to be applied to paired organ donation, most
transplant centers were persuaded against assuming they could aggressively develop such
programs, even though studies claimed that the programs could generate an additional 1,550
kidney transplants every year.” Bill Lawrence, For the Greater Good, UNOS Update, 22
(January-February 2008).
[http://www.unos.org/SharedContentDocuments/Jan_Feb08_NotesFromHill.pdf].
43 An UNOS Press Release regarding passage of this bill stated: “The bill honors the
memory of the late Rep. Charlie Norwood of Georgia, sponsor of the bill in the House. Rep.
Norwood was a lung transplant recipient and a tireless advocate for others in need of
lifesaving transplantation. UNOS also wishes to thank Sen. Carl Levin of Michigan, the
sponsor of the Senate bill.” [http://www.unos.org/news/newsDetail.asp?id=987].
44 P.L. 110-144 defines “human organ paired donation” in Section 2 of the Act, codified to
42 U.S.C. § 274e©). The Act also provides that the Secretary of HHS submit an annual
report to Congress detailing the progress made towards understanding the long-term health
effects of living organ donation.
45 See Michael T. Morley, Note, Increasing the Supply of Organs for Transplantation
Through Paired Organ Exchanges, 21 Yale Law and Policy Review, 221, 255-261 (2003).

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consideration in the exchange of mutual promises to donate organs.46 Now that
Congress has clarified that paired transplants of compatible living donors and
recipients do not violate NOTA’s prohibition of valuable consideration in return for
organ donation, issues may still be raised regarding other kinds of living donation
arrangements such as list donation, because Congress clarified only the legality of
paired donation arrangements.
Two legal opinions issued before Congress’s recent amendment of § 301 of
NOTA regarding paired donation arrangements continue to be relevant to the
question of the legality of other kinds of multiple living donation arrangements, such
as list donation. The Associate General Counsel to UNOS, in 2006, provided a legal
analysis of the applicability of § 301 of NOTA to both paired donation and list
donation arrangements, concluding that “NOTA §301 is legally and historically
inapplicable to today’s living donation arrangements.”47 Elaborating on the
applicability of the § 301 prohibition on the exchange of valuable consideration, the
UNOS legal analysis stated as follows:48
“Valuable consideration” under NOTA § 301 is a monetary transfer or a transfer
of valuable property between donor, recipient and/or organ broker in a sale
transaction. It is not familial, emotional, psychological or physical benefit to the
organ donor or recipient, all of which attach equally to the “living-related kidney
transplants” in yesterday’s terminology and to the multi-party intended recipient
donations, paired donations and similar innovative and highly beneficial living
donation arrangements of today and tomorrow. There is no “valuable
consideration” under NOTA § 301 in any of these living donation arrangements.
The donor receives none, the recipient gives none and none is transferred to a
broker. In fact, there is no “consideration” at all in a living organ donation
arrangement because the donation is a “gift”....
A gift is different from a contract. A contract does not involve donative intent.
“Consideration” and the mutual agreement of the parties are required to make the
contract legally binding. A gift, on the other hand, involves a gratuitous transfer
by the donor and no transfer of money, property or services or agreement not to
exercise rights or to suffer material detriment (“consideration”) by the
beneficiary. For that reason, it is often said that no “consideration” is present in
a gift. A promise to make a gift of an organ is not intended to be legally binding.
The donation of an organ is properly considered to be a gift, rather than a
contractual undertaking. As gifts, living donations may be made conditionally for
a specific purpose. The condition can be construed as “consideration” only if
the happening of the condition will be a benefit to the person who promises to
46 While one may find state court cases stating that “(a)ny act or promise which is of benefit
to one party or disadvantage to the other is a sufficient consideration to support a contract,”
Steinberg v. Chicago Med. Sch., 371 N.E.2d 634, 639 (Ill. 1977), one may also find cases
stating that the fulfillment of a promisor’s condition that is merely for the purpose of
enabling the promisee to receive a gift, does not constitute consideration for a contract. See
Stelmack v. Glen Alden Coal Co., 14 A.2d 127, 128-129 (Pa. 1940).
47 Malcolm E. Ritsch, Jr., Position Statement: Kidney Paired Donations, Kidney List
Donations and NOTA § 301, at 2 (September 18, 2006).
48 Id. at 3.

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give an organ. If, on the other hand, the happening of the condition will not
benefit the promisor and is merely for the purpose of enabling the promisee to
receive a gift, the condition is not “consideration.” [footnotes omitted]
The Associate General Counsel’s analysis concluded that, although list donation
and paired donation involve more than a single set of recipients and/or donors, the
condition in each case benefits the intended recipient rather than the donor. Thus,
these transactions are conditional gifts and do not involve any federally prohibited
exchange of valuable consideration.
In addition, pursuant to a request by the HHS General Counsel, the U.S.
Department of Justice’s Office of Legal Counsel (OLC) rendered an opinion in
March 2007 on the legality of alternative organ donation practices under § 301 of
NOTA. The HHS General Counsel requested the OLC’s opinion so that the
Secretary of HHS would know whether § 301 imposes a barrier to his engaging in
various actions to encourage practices such as paired and list donation. The OLC
concluded at that time that “paired exchanges and living donor transplants for
increased priority in deceased donor allocation do not involve ‘valuable
consideration’ and are therefore not prohibited under NOTA.”49 The OLC opinion
examined relevant statutory provisions, the common law of contracts,
contemporaneous state laws, and case law. While the opinion acknowledged that the
common law understanding of valuable consideration was somewhat vague, the
meaning derived from case law and the context of the term in the NOTA statute
suggested that consideration, to be “valuable,” should be pecuniary. Because § 301
is a criminal provision, “it is therefore appropriate to apply the rule of lenity in favor
of a narrower reading, and thus to understand ‘valuable consideration’ in section 301
of the Act as referring to the buying and selling of organs for monetary gain or to
organ exchanges that are otherwise commercial,” and not to alternative organ
donation practices such as paired and list donation.50
While Congress has made it clear that paired donation arrangements do not
violate NOTA’s prohibition against the exchange of valuable consideration for
human organs, the legality under § 301 of NOTA of current list donation
arrangements and of other, future multiple recipient/donor arrangements remains an
open question. The two legal opinions cited above lend credence to the argument
that such arrangements may not be found to involve illegal exchanges of valuable
consideration for human organs. Further clarification of these issues would be
helpful.
49 Press Release, “Justice Department Finds Paired Donation Consistent with Federal Law,”
April 5, 2007, available at [http://www.unos.org/news/newsDetail.asp?id=830]. This
published opinion will be binding on all U.S. Attorney’s offices.
50 C. Kevin Marshall, “Memorandum for Daniel Meron, General Counsel, Department of
Health and Human Services Re: Legality of Alternative Organ Donation Practices Under 42
U.S.C. § 274e,” (March 28, 2007) at 6. Memorandum is available at [http://www.usdoj.gov/
olc/2007/organtransplant.pdf].

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Ethical and Policy Issues Related Living Organ
Donation, and Paired and List Donation
The central ethical question involved in organ transplantation is how to balance
the needs of people seeking organs with one another, and with the needs of potential
organ donors. This question has given rise to many issues, discussed below,
including those related to evolving transplantation systems, the directive that
physicians do no harm, risk-benefit ratios, informed consent, type O recipients,
resource allocation, parity, and the possibility of paying for organs.
In order to help address the ethical issues, two groups have made
recommendations, and a third has held deliberations. First, the ACOT51 has made a
series of recommendations to the Secretary. Second, the Institute of Medicine (IOM)
issued a report in 2006, Organ Donation: Opportunities for Action.52 Third, the
President’s Council on Bioethics (PCBE), which was created in 2001 to advise the
President on bioethical issues, took up the issue of organ transplantation in its June
2006 and February 2007 meetings.53 Relevant recommendations and discussions
from ACOT, IOM, PCBE and a variety of articles are summarized in the following
sections.
Evolving Transplantation Systems
As new transplantation systems test the boundaries of old regulations, the
primary question arises — does Congress want to maintain direct control over key
components of the system to help ensure that ethical boundaries are not breached, or
does Congress want to delegate more of its authority in order to make the system
more flexible?
Current law permits and defines paired organ donation (P.L. 110-144) and is,
in various instances, both more and less broad than earlier proposals that were made.
It is broader in that it allows paired donations for many types of organs, while many
earlier proposals were restricted to kidneys (H.R. 710 EH and S. 487, 110th). It is
less broad in that it exempts paired but not list donation from the prohibition of
exchange of valuable consideration (S. 2306, 109th), it does not specifically enable
the Secretary to determine that other similar practices are also exempt ( H.R. 710
EAS, 110th), and it does not exempt the broader category of familial, emotional,
psychological, or physical benefits (S. 573 IS, 108th).
ACOT proposed one possible alternative that would enable more flexibility for
developing transplantation systems. The Committee recommended that the HHS
Secretary seek the authority from Congress to promulgate regulations clarifying the
51 ACOT was established under the authority of 42 U.S.C. Section 217a. See the ACOT
website, at [http://www.organdonor.gov/research/acot.htm].
52 IOM Report.
53 Background materials and transcripts from the PCBE’s June 2006 meeting on organ
transplantation are available at the PCBE site, at [http://www.bioethics.gov/topics/
organ_index.html].

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scope of the term valuable consideration, thus allowing for the regulations’ revision
as transplantation technologies and methods evolve.54 This would allow the
Secretary to make modifications as new systems are developed and to develop any
definitions necessary to interpret the regulations.
Ethical Issues Related to Living Donation
In medical practice generally, three primary guiding principles are that a
physician should, above all, do no harm to a patient, that a procedure’s benefits to a
patient should outweigh its risks, and that one must obtain informed consent prior to
medical procedures. The practice of obtaining organs from living donors challenges
all three of these principles. Because P.L. 110-114 will presumably expand the
practice of living organ donation, it raises issues with respect to these three
principles, but not to a greater extent than such issues already raised by the current
practice of living organ donation.
Above All, Do No Harm. The traditional first rule of medicine — above all,
do no harm — would seem on its face to proscribe the practice of removing a heathy
organ from a healthy person, making one a patient solely to benefit another person
who is already a patient. Indeed, one survey of 100 liver transplant surgeons found
that 77% experienced a moral dilemma in placing a living donor at risk.55 Still, 72%
also agreed that transplant centers had a duty to offer their patients the possibility of
transplantation using living donors. IOM considered this point in its report, and
suggested that the Health Resources and Services Administration (HRSA) conduct
a long and full review of living donation.56

Risk-Benefit Ratios. The IOM also noted difficulties with living donation
and the principle that a doctor should not perform a procedure unless the potential
benefits outweigh the risks.57 This calculation is generally made for each patient
independently — it is not ethically acceptable for one patient to bear all of the risks
and another to reap all of the benefits. On this point, IOM noted that a living donor
may gain psychosocial benefits from donating an organ to one in need, which could
arguably outweigh the risks to the donor’s physical health. However, in order to help
ensure that the risk is not too great for a particular donor due to a preexisting medical
condition or the like, IOM recommended that an independent donor advocate be
appointed to assess the risk-benefit ratio.
Even with a donor advocate to make the risk-benefit assessments, one major
factor complicates the assessment of the ratio: little is known about the long term
health and quality-of-life effects of being a living organ donor. This lack of
54 ACOT, Recommendation 36, November 4-5, 2004, at [http://www.organdonor.gov/
research/acotrecssumm36-42.htm].
55 S.J. Colter et al., “Adult living donor liver transplantation: Perspectives from 100 liver
transplant surgeons,” Liver Transplantation, vol 9, no. 6, pp. 637-644 (2003), in IOM
Report, p. 307.
56 IOM Report, p. 308.
57 Id. at pp. 312-315.

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information makes it difficult for professionals to ensure that they consider the full
spectrum of risks to be outweighed by benefits. Therefore, IOM recommended (as
ACOT had before58) that living donor registries be established to enable follow-up
research on the long-term effects of living donation.59 In addition, in June 2006,
HHS solicited public comments from the organ transplant community for living
donation after “several widely publicized living donor deaths” and an increasing
trend in the number of living donations.60
Informed Consent. Ethically justifiable living organ donation presupposes
the competent donor’s voluntary informed consent. ACOT specified that living
donors’ informed consent must be competent, free from coercion, and fully informed
of the risks and benefits as a donor, among other things.61 As IOM noted, obtaining
informed consent is confounded by the same lack of long-term health data that makes
assessing the risk-benefit ratios difficult.62 It is not possible to fully inform potential
living donors (a necessary component of informed consent) without information
about the likely impact of the procedure on long-term health. IOM suggested that
creating a living donor registry would enhance informed consent as well as inform
the risk-benefit analysis.
Further problems in obtaining informed consent are related to the requirement
that it be given voluntarily. Establishing a voluntary process may be complicated if
donors are not legally competent to consent (e.g., children), or if situations are
coercive (e.g., loved ones feel pressured to become living donors). Some potential
donors have expressed relief at discovering that they were incompatible with their
intended recipients. Expanded use of paired exchanges, and the prospect of list
exchanges, may eliminate the incompatibility excuse for potential donors, and may
thus create a coercive situation. IOM’s recommendation that each living donor
receive an advocate is aimed at protecting voluntary informed consent as well as
evaluating the risk-benefit ratio. In addition, IOM recommends that the advocates
address gender disparities in living donation. Women represent 56% to 59% of
living kidney donors each year, and one study suggests that this is due primarily to
the fact that women are asked to donate more often than men.63
Ethical Issues Related to List Donation: Blood Type O
Approximately 46% of the population has the blood type O, yet they represent
51.9% of people awaiting organ transplants, and 52.5% of people awaiting kidney
58 ACOT, Recommendation #42, May 9-10 2005, at [http://www.organdonor.gov/research/
acotrecssumm36-42.htm].
59 IOM Report, p. 276.
60 HHS, HRSA, Federal Register, June 16, 2006, p. 34946.
61 ACOT, Recommendation #1, November 18-19, 2002, at [http://www.organdonor.gov/
research/acotrecsbrief.htm].
62 IOM Report, p. 315.
63 Id. at p. 318.

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transplants.64 More than half have to wait more than five years for an organ (53.2%)
or kidney (54.8%). No other blood type comes close to rivaling these waiting times.
The percentage of people who have to wait more than five years is as follows:
! for blood type A — 28.3% for organs, and 22.8% for kidneys,
! for blood type B — 16.1% for organs, and 20.2% for kidneys, and
! for blood type AB — no recipients have to wait more than five
years.
As noted previously, several authors have expressed concern that individuals
with the blood type O, an already disadvantaged population in the transplantation
system, may be further disadvantaged by a list donation system. Implementing a
system with a disparate impact, particularly one that falls on an already
disadvantaged group, has caused some authors to recommend that list paired
donation have a minimal role on a national level.65 It has caused others to
recommend that the system be modified to protect type O recipients.66
A different set of authors has come out in favor of the list exchange program
despite the impact on people with type O blood.67 They claim that the impact on type
O recipients would be transient. Though some people would be bumped to the top
of the transplant list, their absence from that list when they would have come to its
top (4-5 years later) would eventually balance out the impact of the system.
Current law avoids the type O issue by focusing only on paired, and not list,
donation. Earlier proposals would have raised this issue by explicitly permitting list
donation (e.g., S. 2306, 109th, and S. 573 IS, 108th), or potentially allowing the
practice (H.R. 710 EAS, 110th).
Ethical Issues Related to Directed Donation (Paired and List)
Directed donation, which allows an organ donor to specify the recipient, creates
issues related to the equitable allocation of organs. Paired and list donation (both of
which are types of directed donation) create parity issues regarding what the intended
recipient should be entitled to receive in lieu of the donation. Current law allows a
form of directed donation (paired donation), and thus raise the issues discussed
below.
Allocation. People on waiting lists for organs may wait years for a transplant,
and may die before an organ becomes available. The rules governing who gets an
organ are, therefore, quite important. In general, the ranking on the waiting list
depends on biological matching, medical status, patient location, age of the patient,
64 The statistics in this paragraph are from UNOS, current as of February 9, 2007
[http://www.optn.org/latestData/rptData.asp].
65 S. E. Gentry, p. 1920.
66 L.F. Ross, pp. 641-646.
67 F.L. Delmonico, p. 1632.

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and length of time the patient has been on the waiting list for a transplant.68 By
contrast, directed donation allows the donor to choose who receives their organ (or,
in the case of list donation, who is to advance on the waiting list). The PCBE noted
that this raises the question of whether it is ethical for one person to receive an organ
before another more needy person, simply because someone cares for them enough
to make a donation.69 PCBE also noted that prohibiting such acts of love as living
donation in the name of justice would be perverse.
Parity. Some have suggested that in paired and list donations, the donated and
received organs must be of equal value to ensure an equitable exchange.70 While this
might be possible with a paired exchange, it is almost certainly not the case with a
list donation, because the intended recipient will receive a kidney from a deceased
donor instead of a living one. (Deceased donor organs do not typically last as long
as living donor organs). Other issues related to parity have been raised, such as
whether one donor in a paired exchange may change his or her mind if the other
donor has already undergone surgery. To prevent these scenarios, it has been
suggested that both donors should undergo surgery at the same time.71 Other authors
have suggested that outcome parity cannot be guaranteed in list and paired exchange
programs.72 If one organ fails, the recipient is not necessarily entitled to receive
another.
Ethical Issues Related to Proposals for Expanding the Organ
Supply: Exchanging Valuable Consideration for an Organ

The demand for transplantable organs has inspired a wide variety of proposals
to increase the supply, including some that would allow or encourage forms of
payment for organs. Congress has considered several proposals to give donors
honorific or tax incentives for donating organs.73 The use of financial incentives has
been studied, proposed and debated in the general literature. Various organizations,
including the American Medical Association and UNOS have supported the study of
financial options to encourage organ donations.74 Arguments have been made that
68 For a description of the process, see, UNOS, Fact Sheets, Prioritizing patients for
transplantation [http://www.unos.org/resources/FactSheets.asp].
69 E. Cohen, p. 15.
70 See, for example, Douglas J. Norman, “Commentary” Nature Clinical Practice-
Nephrology
, vol. 2, no. 6 (June 2006), p. 303.
71 Id. at p. 303.
72 F.L. Delmonico, p. 1633.
73 The 107th Congress considered S. 325 and H.R. 708 (which would have given donors a
Congressional medal), and H.R. 1872 and H.R. 2090 (which would have provided tax
credits for donation).
74 See testimony of Dr. Robert M. Sade, 2003 House Hearing, supra, available at
[http://energycommerce.house.gov/reparchives/108/Hearings/06032003hearing946/
Sade1500.htm], visited March 3, 2007; and UNOS press release, OPTN/UNOS Board
Endorses Studies of Incentives to Increase Donation (June 28, 2002), available at
(continued...)

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donors of organs should be treated no differently than donors of tissues75 (such as
human hair, blood plasma, sperm, and eggs). It has also been argued that because the
practice of transplanting organs is profitable for the professional parties involved,
those from whose bodies the organs are harvested should be able to share in some of
the profits.76
There has been resistance to proposals that encourage commodification of
human organs. The IOM conducted an extensive analysis of various types of
financial incentives to encourage donation, such as payment through regulated
futures markets, payment of funeral expenses, providing bereavement counseling, tax
incentives, and providing health insurance.77 IOM concluded that none should be
promoted at this time because of a lack of evidence that these incentives would
improve donation rates, because once put in motion a system of financial incentives
would be difficult to reverse, and because of fears that such systems might
disproportionately affect the poor. This recommendation came as a disappointment
to some who seek to increase the supply of transplantable organs.78
While current law clarifies that paired donation does not violate NOTA’s
prohibition on the exchange of human organs for valuable consideration, it does not
permit the payment of money in exchange for organ donation. To date, Congress has
not considered legislation that would do so.
74 (...continued)
[http://www.unos.org/news/newsDetail.asp?=1].
75 Tissues, such as corneas, plasma, and gametes, are distinct from and regulated under an
entirely different system than organs.
76 See, for example, President’s Council on Bioethics, “On the Body and Transplantation:
Philosophical and Legal Context, Appendix: ‘Organs’ and ‘Tissues’ in the Therapeutic
Transplantation Context,” Staff Discussion Paper, February 15-16, 2007, pp. 2-3.
77 IOM Report, pp. 269-302.
78 See, for example, Richard Epstein, “Kidney Beancounters,” The Wall Street Journal, May
15, 2006, p. A5.