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Paid Organ Donation and the Constitutionality of the National Organ Transplant Act


John A. Robertson


University of Texas Law School

January 9, 2013

Hastings Constitutional Law Quarterly, Vol. 40, No. 2, p. 221 , Winter 2013
U of Texas Law, Public Law Research Paper No. 350

Abstract:     
A person can buy a handgun for self-defense but cannot pay for an organ donation to save her life because of the National Organ Transplantation Act’s (NOTA) total ban on paying “valuable consideration” for an organ donation. This article analyzes whether the need for an organ transplant, and thus the paid organ donations that might make them possible, falls within the constitutional protection of the life and liberty clauses of the 5th and 14th amendments. If so, government would have to show more than a rational basis to uphold NOTA’s ban on paid donations.

The article begins with an examination of Flynn v. Holder, a 2012 9th Circuit case, that found that NOTA ban paying for bone marrow donations by aspiration was constitutional under rational basis review, even though bone marrow was renewable tissue and donation involved comparable risks to the paid blood, sperm, and egg donations which are excluded from NOTA’s ban.

It then argues that some form of heightened scrutiny should apply to laws banning paid bone marrow, kidney, and cadaveric donations as well as bans on paid kidney and cadaveric donations. It bases that argument on the resurgence of constitutional interest in self-defense seen in the Second Amendment handgun cases and in a substantive due process right to life and liberty. Together those developments form the basis of a constitutional right of medical self-defense (a negative right to use a safe and established medical treatment when reasonably necessary to protect a person’s life), despite the narrow test for recognition of new rights contained in Washington v. Glucksberg and Abigail Alliance v. Eschenbach.

Applying heightened scrutiny to four situations involving paid organ donation, the article shows that banning paid donation may be rational based on speculation or conjecture about harm to donors, unsafe organs, crowding out of altruism, exploitation of the poor, or moral distaste at paying for body parts. But those concerns hardly satisfy the heightened scrutiny that interference with a person’s right to life should require. A highly regulated private system of paying donors should be found constitutional when government is unwilling to act.

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Date posted: January 24, 2013  

Suggested Citation

Robertson, John A., Paid Organ Donation and the Constitutionality of the National Organ Transplant Act (January 9, 2013). Hastings Constitutional Law Quarterly, Vol. 40, No. 2, p. 221 , Winter 2013; U of Texas Law, Public Law Research Paper No. 350. Available at SSRN: http://ssrn.com/abstract=2205975

Contact Information

John A. Robertson (Contact Author)
University of Texas Law School ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1307 (Phone)
512-232-2399 (Fax)
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