The Administrative Law Implications of Quasi-Governmental Organ Allocation

Abstract

Congress created the Organ Procurement and Transplantation Network (“OPTN”), a quasi-governmental agency, to allocate the nation’s supply of deceased-donor organs. But, this agency is a shell. The Human Resources & Services Administration contracts with a private, non-profit corporation (the United Network for Organ Sharing or “UNOS”) to operate the OPTN and to develop allocation policies — based, in large part, on the medical science developed by its own membership — in light of normative mandates from Congress and the Department of Health & Human Services. The District Court for the Eastern District of Pennsylvania skirted several fundamental questions about the legitimacy and constitutionality of this arrangement when it temporarily restrained the OPTN/UNOS from treating a ten-year-old lung transplant candidate differently than adults in her position on the lung waitlist; a subsequent transplant mooted her claim, leaving consideration of its merits to another day. This Article picks up where that transplant candidate’s story left off and is the first to critically examine the OPTN/UNOS vis-à-vis issues of quasi-governmental regulation, political oversight, judicial deference to scientific agencies, and notice-and-comment rulemaking outside the scope of the Administrative Procedure Act.

Keywords: judicial deference, executive oversight, state action, resource allocation, organ transplantation, quasi-government, administrative law

JEL Classification: K00