The Case Against Tax Incentives for Organ Transfers

24 Pages Posted: 23 May 2012

See all articles by Lisa Milot

Lisa Milot

University of Georgia School of Law

Date Written: Fall 2008


Each year some 6,700 Americans die while awaiting an organ transplant. On its face, this fact seems almost inconsequential, representing less than 3% of American deaths annually. However, for the nearly 100,000 patients on the transplant wait list (and their families), nothing could be more consequential. What is more, the demand for transplantable organs is sure to rise as (1) more diseases become subject to prevention or cure, making organ failure the first sign of medical problems; (2) the success rate for transplants increases, leading to wider use; and (3) barriers to inclusion on the wait list are removed.

In this article, I leave to one side the much-debated question about whether it is ethical to permit individuals to sell and buy organs. Instead, I examine the arguments for creating tax incentives for organ donations in light of the goals, principles and practices of our tax system and conclude that currently tax incentives are an inefficient and inappropriate means to encourage increased donations of organs.

First, I argue that allowing such incentives would be directly contrary to our current tax treatment of donations in that it would allow an item never included in the tax base to offset income included in it. Second, using the progressive nature of our tax system to reduce the value of any such incentives to low income taxpayers (or to deny individuals whose income falls below a certain level the incentive at all) is paternalism and cannot be justified by a reduction in the possible coercive effect of such incentives. Third, I contend that opaque means-tax incentives rather than direct payments-should not be employed where the end is as hotly contested as is the commodification of our bodies.

In Part II of this article, I provide a brief overview of the current system of organ procurement in the United States, the systemic changes proposed to increase permissible harvesting of organs, and proposed financial and non-financial incentives for organ donation. Part III focuses on the broad goals and principles of our tax system and how tax incentives work. Part IV reviews the primary rationales for using tax incentives to encourage organ donations and argues that they undermine the goals and principles of the tax system. In addition, it raises additional questions in an effort to help guide future debate and policy-making in this field.

Keywords: organ transplants, organ donations, tax, tax incentives, organ procurement, health, tax law

JEL Classification: I10, K34

Suggested Citation

Milot, Lisa, The Case Against Tax Incentives for Organ Transfers (Fall 2008). Willamette Law Review, Vol. 45, pp. 67-90, 2008, Available at SSRN:

Lisa Milot (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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