The Kidney Donor Scholarship Act: How College Scholarships Can Provide Financial Incentives for Kidney Donation While Preserving Altruistic Meaning
Florida State University - College of Law
June 16, 2009
St. Louis Journal of Health Law & Policy, Vol. 2, p. 265, 2009
In the United States, lives are lost on a daily basis due to a serious shortfall in the availability of kidneys for transplant. The debate over possible solutions has primarily taken place at two theoretical poles. Market advocates argue that it is morally irresponsible to let potential transplant recipients suffer or die when a market will likely reduce or eliminate the shortfall in transplantable kidneys. Advocates of exclusive altruism, on the other hand, prefer the status quo which allows only uncompensated donation, arguing that a market in kidneys would inevitably exploit vulnerable populations while simultaneously causing altruistic donation to wither away. The question that remains in the breach between these positions is whether a limited or regulated system of commodification might increase the supply of transplantable kidneys while preserving altruistic giving and protecting potentially vulnerable populations from exploitation. This paper proposes an academic scholarship incentive for living kidney donors as a means of addressing the shortfall in kidneys in a way that protects the best aspects of the current altruistic regime.
Any change in the current altruistic donation regime will require legal change, and therefore any proposal must be acceptable to society in general and transplant professionals in specific. The paper reviews a series of attitudinal surveys which suggest in the aggregate that the less an incentive resembles a direct financial compensation, the more likely it is to increase, rather than decrease, the supply of kidneys for transplant. The paper also surveys ethnographies of altruists, including interviews with organ donors, which suggest that the altruism is not as fragile as some scholars contend. The paper then presents data which indicates the scholarship incentive possesses potential to preserve a rhetorical middle ground between unrewarded gifting and unrestrained commodification because providing financial incentives in the form of a scholarship occupies a different rhetorical space than that of a raw financial incentive. Legal and social institutions frame educational scholarships within the rhetoric of gifting. Educational institutions and scholarship donors frame their relationship in gift rhetoric, even though the donation of a financial gift to a qualified university can provide the donor with significant tax and reputation benefits. Likewise, while the tax code states that scholarships are subject to taxation when there is a quid pro quo involved, scholarships are almost universally treated as something other than market transaction. An incentive program that naturally leads to a discussion of financial incentives in terms of gift language preserves the rhetoric of altruism and protects space for altruistic meaning.
The proposed scholarship incentive can also mitigate the coercive power of commodification. Research into brain morphology and decisional heuristics suggest that the delayed nature of the proposed scholarship incentive will protect the decisional capacity of donor populations in a way that an upfront cash payment cannot. Given that the scholarship incentive will primarily attract donors between the ages of eighteen and twenty-five, the paper offers some evidence to suggest that emerging adult populations have sufficient decisional capacity to make informed choices about whether to donate, and that the scholarship program would not impair that capacity. Finally, the paper discusses the obstacles to the scholarship proposal embedded in the current statutory regime, and argues that the tax treatment of scholarships generally provides a framework for an exception to the current exclusive altruistic regime for this scholarship program in specific.
Number of Pages in PDF File: 62
Date posted: June 16, 2009 ; Last revised: December 19, 2010