Modern Models of Organ Donation: Challenging Increases of Federal Power to Save Lives

Abstract:     
Much of today’s scholarship on noninformed consent organ donation models has focused on either presumed consent or paid donation systems. Recently, however, individual states and foreign countries have begun to rethink their organ donation procedures in an attempt to increase donation rates.

Looking specifically at the informed consent model and the brand-new Israeli incentive program, this note first examines the success rates of these programs as potentially viable alternatives to traditional organ donation models. Next, this note argues that adopting these programs at the federal level will not violate the United States constitution under First Amendment and Fourteenth Amendment challenges, respectively. However, successfully avoiding these constitutional traps will require Congress to carefully craft any new potential legislation. This note also briefly discusses new third-party donor-preference programs as an alternative to avoid the United States’ ban on valuable consideration for organ donation under the National Organ Transplant Act.

Number of Pages in PDF File: 30

Keywords: Organ donation, Health law, Constitutional Law, First Amendment, Fourteenth Amendment, Israel, United States, Federalism, NOTA, Constitution, Health, Organ, Informed Consent, Presumed Consent, Mandated Choice

Accepted Paper Series