31 Pages Posted: 26 Sep 2010
Date Written: 2009
Goodwin argues that organ and tissue transplant regimes typically operate in isolated legal regimes. Further complicating the challenge in parsing out the trade in body parts is that it is wedged between two legal processes, altruistic organ donation and legalized tissue implantation. In this essay, the author argues against tissue and organ (T&O) default rules like presumed consent and offers a departure from the conventional scholarship addressing T&O supply and demand. The author makes three distinct normative evaluations. First, the author proposes compensating relatives for providing human tissue and bone for transplantation and medical research. The author then highlights the neglected distinction between organs and tissues. Second, the author proposes using incentives to promote living organ donation. The author argues that ex ante compensation models will generally result in better outcomes for donors because of better information-sharing and the costs and burdens associated with participation in organ procurement will be better understood. By contrast, the author argues that default compulsory or compulsory-like consent rules are far more problematic. The author demonstrates why associating incentives with living donations might help to resolve the organ supply problem in the United States and emphasizes incentives for cadaveric donations. Finally, Goodwin considers how we might begin to create frameworks that move the discussion of incentives for human biological materials beyond hypothetical treatments in the literature to actually testing them at the state level. To this end, the author stresses the importance of considering federalism to address localized concerns regarding compensation regimes.
Keywords: Law, Society, Economics, Medicine, Health Care, Torts, Remedies
Suggested Citation: Suggested Citation
Goodwin, Michele, Empires of the Flesh: Organ and Tissue Taboos (2009). Alabama Law Review, Vol. 60, No. 5, p. 1219, 2009; Minnesota Legal Studies Research Paper No. 10-49. Available at SSRN: https://ssrn.com/abstract=1669739