Donate Today so Your Loved One Can Receive a Future Live Donor Kidney: Are Kidney Vouchers Enforceable Contracts?

Journal of Health & Biomedical Law, XIV (2018) 101-138

Albany Law School Research Paper No. 17 for 2018-2019

38 Pages Posted: 6 Sep 2018 Last revised: 15 Oct 2018

Date Written: August 27, 2018

Abstract

The kidney voucher program was started by the National Kidney Registry (NKR) in December 2014. Under the program, live donors can donate a kidney in return for a voucher that entitles their intended recipients to a live donor kidney from the end of a future kidney chain. The purpose of the program is twofold. First, it allows live donors to donate when it is convenient or possible for them to do so. For example, the first voucher donor was 64 years old and had a four-year-old grandson with one poorly functioning kidney. Under the kidney voucher program, the grandfather could donate his kidney before he was too old to donate and provide an advantage for his grandson, who was not expected to need a kidney for ten to fifteen years. Second, voucher donors will help alleviate the shortage of live donors needed to start kidney chains.

To make the kidney voucher program a success, live donors must trust that their intended recipients will receive kidneys when they need them. Viewing the voucher as an enforceable contract would help engender this trust. This article addresses the major legal and policy issues related to whether vouchers should be considered enforceable contracts. The article first confronts whether kidney vouchers violate the proscription in the National Organ Transplant Act (NOTA) against trading organs for valuable consideration. The article demonstrates that, with the current safeguards in place, the legislative history of NOTA supports the legality of trading a live donor kidney for a voucher that entitles the intended recipient to an end-of-chain kidney. The article also tackles the issues of whether a voucher agreement can be considered binding given that the live kidney donor cannot be compelled to donate even if he or she agrees to do so and whether the voucher agreement is illusory because the NKR does not guarantee that the intended voucher recipient will ever receive a kidney. The article concludes that the voucher agreement is binding, discusses the policy implications of reaching this conclusion, and makes some suggestions to deal with the policy concerns.

Keywords: live kidney donor, kidney, donor, kidney chains, voucher, transplant, kidney paired donation, unilateral contract, illusory contract, third party beneficiary, intended recipient, intended recipient, duty of good faith, duty of fair dealing, vague terms, NEAD chains, National Organ Transplant Act

JEL Classification: I00, I10, I12, I18, I19, Z18, Z19

Suggested Citation

Tenenbaum, Evelyn, Donate Today so Your Loved One Can Receive a Future Live Donor Kidney: Are Kidney Vouchers Enforceable Contracts? (August 27, 2018). Journal of Health & Biomedical Law, XIV (2018) 101-138; Albany Law School Research Paper No. 17 for 2018-2019. Available at SSRN: https://ssrn.com/abstract=3239221

Evelyn Tenenbaum (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

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