A person in organ failure may need an organ transplant. Many different organs (and other tissues) can be transplanted, including kidneys, hearts, livers, lungs, pancreas, small intestines, corneas, bone marrow, cartilages, tendons, hands, skin, and even faces. Organs for transplant are typically taken from recent deaths, though kidneys, partial livers, and bone marrow can be donated by the living.
In order to have a transplant, a donor organ must be acquired. But there are many more needy transplant recipients than donor organs available and controversy exists over how to improve this situation. The United States currently relies on a system of voluntary donation. Should the system be changed to increase donor organs and if so, how?
The Current Procurement System in the United States
The Uniform Anatomical Gift Act of 1968 made clear people can legally donate organs. The Organ Transplantation Act of 1984 set up an organ procurement and allocation system (since revised many times) to match donor organs with potential recipients.
Our current system relies on first obtaining the explicit consent of the donor or the donor’s family before harvesting an organ. This explicit consent requirement is based on the view that after death the donor’s organs belong to that individual or their family and cannot simply be taken without permission. There are a variety of ways a person who desires to donate an organ can make this wish known. One can communicate organ donation wishes to family or personal physician prior to death. The person could indicate it on a state driver license or in a living will. If a person dies in a hospital and their organs are suitable for donation, but their wishes are unknown, the family may be asked by a physician to consent to allow one or more organs to be available for transplant.
Direct payment for organs from recipient to donor or donor’s family or estate is not allowed in the United States. Officially no one is allowed to buy an organ and laws ban trafficking in organs, but some people think here have been cases of illegal compensation occurring. Incidentally, the donor is not supposed to be held financially responsible for the costs of removing the organ.
Why There is a Shortage of Organs
Determining why there is a chronic shortage of organs may help us take steps to alleviate it. Some people charge that an inefficient distribution system allows some donated organs to be wasted, but even so many critics focus on pointing out problems in the organ acquisition process.
One place to look is the role of the increasing use of seatbelts, motorcycle helmets, airbags, and safer cars in cutting down on motor vehicle deaths and thus contributing to the shortage. But even with decreased motor vehicle accident deaths more organs should be available than are available.
Other factors that have been called “inefficiencies” in the donation process result in potential donations never happening.
- People consider indicating donation wishes but they never get around to it because it is not convenient or not on their minds
- People are confused about what organ donation entails
- People distrust the system and wonder if they or their family will wind up having to pay for it or if organs will be taken while they are still alive.
- People are indifferent to organ donation
- People have imagined or real religious or cultural traditions against donating
Because the above issues are not addressed, and people are not forced to make a decision or indicate a decision, many never indicate a wish to donate.
In cases where a potential donor fails to make clear their wishes, physicians in hospitals vary in aggressiveness in pursuing organs. Some states require physicians to ask the family about organ donation when a patient is near death or has just died, but this can be a difficult topic to discuss and providers may be reluctant to press the issue out of sensitivity to the family’s feelings. The family itself most likely will not take the initiative in bringing up the issue. In some cases the family is asked for permission but declines donation even though the donor had already made clear wishes for donation.
Ethicists point out that under the current system there is little incentive to donate apart from altruism. No one is compensated for the process of consenting or the process of donating and there is no discount off of other healthcare expenses. Sometimes the person or family gets personal satisfaction in feeling that organ donation enables them to continue after death in some sense.
Some critics hold that we should work to improve the existing voluntary donation system because it encourages public altruism and prevents body parts from being bought and sold like “commodities.” Others think that the above-mentioned inefficiencies and lack of incentive show that voluntary donation is a poor way to obtain organs and it should be scrapped in favor of a different system. Thus suggestions for improvement come both from those who wish to work within the existing system and those who wish to replace it.
Suggestions for Working Within the Existing System
Suggestions are made for increasing publicity efforts, educating potential donors more fully, and having hospitals be more aggressive in approaching donors and families, perhaps in a “required request” arrangement where the hospital is required to request organs after a suitable patient death. Some advocate giving some form of compensation for organs as long as the donation is voluntary and the compensation is not seen as payment. For example the donor or family could receive reimbursement or tax credits for funeral or medical expenses. The payments would come from government agencies or hospitals, not from the recipient families.
Debate surrounds talk of compensation of any kind. Advocates of the current system argue that it encourages the civic virtue of “giving” and are concerned that any compensation may function as an incentive or payment. Opponents argue that there are plenty of opportunities for people to give to others outside of organ donation and people should not have to die waiting for organs just so a few donors can feel good about being altruistic.
Sometimes the suggestion is made that we might get more donations if we allowed donors more control over who the donated organs would go to. After all, in the case of other charitable donations, we do allow donors to decide which charity gets the money. But controversy surrounds this concept of restricted donation. Currently most donation is unrestricted (kidneys or partial livers given while alive are exceptions). But some think that allowing restricted donation might result in fewer available organs, rather than more, because many of those who would restrict if they could were going to donate anyway. It might also raise concerns about justice by forcing healthcare workers to go along with racist or anti-Semitic donation restrictions of donors. In the end, most people feel it’s best to keep the organ acquisition and organ allocation/distribution systems distinct.
Centuries ago a person was considered dead after breathing and heartbeat stopped. There was no concept of brain death. In recent decades there arose the realization that shortly after the heart stopped beating the person was still alive because the brain was not yet dead. This has affected the understanding of when it is proper to take a person’s organs. Traditionally, organs were taken after the person’s heart had stopped beating, the blood had stopped circulating, the person’s brain was dead, and the person had been pronounced dead. By this time, however, the organs had already started deteriorating. A recent practice is to take organs a few minutes after the heart stops; the person is declared dead before there is assurance of brain death. This practice has been called “non-beating heart donorship” or “donation after cardiac death.” This could occur after withdrawal of artificial life support from a person who had severe brain damage, for example.
A suggestion made is to somehow get the organs from people even earlier than is done currently in the above examples. For instance, take organs from an unconscious person still on artificial life support whose heart is still beating and who has not been declared dead. More extreme still is the suggestion that organs be harvested from people not on artificial life support but in a persistent vegetative state or irreversible coma. In such cases much of the higher brain has stopped functioning, though the person has certainly not been declared dead.
Critics of these suggestions object that it would amount to euthanizing the person and it could be abused. They say the decision to withdraw life support should be made independently of the question of harvesting organs, and if the person has not been declared dead, whether on artificial life support or not, taking their organs prematurely amounts to murder.
Suggestions for Changing the System
Some critics claim that even increasing efficiency within the current system will not supply enough organs and the voluntary system should be changed in more fundamental ways, for example, to a system of “presumed consent” or to a market-based system.
A presumed consent system (also called “routine retrieval,” “mandatory donation,” and “organ conscription”) allows harvesting organs from someone immediately after death unless they or their family have explicitly “opted out.” The theory is that this would provide more organs than now because it would avoid many of the inefficiencies in the current system where some potential donors fail to consider organ donation, want to donate but never get around to indicating their preferences, etc. Presumably many people who under the current system are not donors would be treated automatically as donors.
This system has been tried in some European countries and has met with limited success, though apprently more modest than anticipated. For this system to bring in more organs hospital staff must be willing to take organs from deceased patients without asking the patient or family. If they are reluctant to do this then it may not significantly increase the number of organs.
Whereas the philosophy behind the current system is that organs belong to the individual donor or family, the philosophy behind presumed consent, in the view of some ethicists, is that organs belong essentially to the community or state, not the individual -- they are a “public resource.” But this might clash with typical “individual rights” thinking in the U.S. and so might not be accepted.
A market-based system would in a sense treat organs like any other item bought and sold. There are a variety of possible ways this could work. Both selling and buying transactions could be through the open market, with sellers selling to individuals, organizations, or institutions, and buyers buying from any such source. Prices could be set by supply and demand. To move to this system in the U.S. would require not only a change in acquisition practices but also a drastic change in the way organ recipients are chosen (the organ distribution/allocation system). An alternative strategy would have buying and selling occurring through the government or other intermediary, with prices either fixed or allowed to float.
Against both the current voluntary donation system and the presumed consent system, advocates of a market system argue that sellers (either organ providers or their families) own their organs and should be able to do with them what they want. The current system violates this basic freedom donors should enjoy. Advocates of a market-based system note that currently everyone involved in an organ transplant (physicians, nurses, other hospital staff, etc.) -- except the donor, arguably the most important contributor involved -- gets paid for their services.
Critics of a market system would claim that it would probably be mostly unworkable because organs have such a short shelf life that you don’t have time to make the transaction work like it should in a typical market, with advertising, shopping, comparing, entertaining competing offers, bidding, etc. Matching up buyers and sellers would have to take place extremely quickly. And it’s not like this could be done privately, outside of healthcare institutions, because you would need experts to ascertain whether the organ was viable and near enough to be flown in. Other questions arise. What is the buyer doesn’t pay for the organ after the transplant? Should a seller get paid if the organ turns out not to be viable for a buyer? Who gets the money, if the seller is dead?
But even worse, they would charge, the system would be open to abuse and injustice. Poor people might be priced out of transplants, which would go the richest rather than the neediest. Poor people might sell their organs, even die to do it, to help their families financially.
Advocates would point out that poor people are already priced out of transplants, which in the United States can cost hundreds of thousands of dollars. In other countries poor people already sell kidneys, whether legally or through the black market, so this would really be nothing new. And with an incentive to sellers, the supply would be high, so prices would be low.
Most ethicists think a full-blown market system is unlikely to be adopted in the United States and that changes to the existing system to provide some sort of compensation for organ donation have a much better chance.
Return to top of the page