Yale Law Journal Forum, November 2014, pp. 117-130
14 Pages Posted: 11 Nov 2014
Date Written: November 9, 2014
The persistently dire global shortage of transplantable human organs has renewed debate about ending the ban on compensation for organ donation. This Essay contributes to that debate by exploring the regulatory implications of establishing a legal market for cadaveric organs wherein the donor’s estate would be permitted to sell the decedent’s organs posthumously and distribute the proceeds to the donor’s heirs or beneficiaries. Drawing insight from the time-tested experience of inheritance law in implementing donative intent, this Essay offers suggestions for the development of registration procedures and default rules for the posthumous sale of human organs. It argues that registration procedures must be sufficiently secure to prevent fraud and undue influence, but that security features should be narrowly tailored and non-burdensome in order to avoid creating a procedural deterrent to donor registration. For individuals who die without registering their anatomical intent, it argues that default rules should respect the autonomy, privacy, and religious liberty interests of non-donors by presuming that decedents prefer to prohibit the postmortem sale of bodily remains absent an affirmative indication of intent to donate.
Keywords: organ, donation, transplant, donative, intent, intestacy, inheritance law, Wills act
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