Kidney Paired Donation and the 'Valuable Consideration' Problem: The Experiences of Australia, Canada, and the United States

(2017)Transplantation, 101(9), 1996-2002

U. of Adelaide Law Research Paper No. 2018-113

Posted: 10 Sep 2018 Last revised: 2 Feb 2019

See all articles by Bernadette Richards

Bernadette Richards

University of Adelaide - School of Law

Maeghan Toews

Independent

Mark Giancaspro

Adelaide Law School

Date Written: September 3, 2018

Abstract

As organ donation rates remain unable to meet the needs of individuals waiting for transplants, it is necessary to identify reasons for this shortage and develop solutions to address it.The introduction of kidney paired donation (KPD) programs represents one such innovation that has become a valuable tool in donation systems around the world. Although KPD has been successful in increasing kidney donation and transplantation, there are lingering questions about its legality. Donation through KPD is done in exchange for—and with the expectation of—a reciprocal kidney donation and transplantation. It is this reciprocity that has caused concern about whether KPD complies with existing law. Organ donation systems around the world are almost universally structured to legally prohibit the commercial exchange of organs. Australia, Canada, and the United States have accomplished this goal by prohibiting the exchange of an organ for “valuable consideration,” which is a legal term that has not historically been limited to monetary exchange. Whether or not KPD programs violate this legislative prohibition will depend on the specific legislative provision being considered, and the legal system and case law of the particular jurisdiction in question. This article compares the experiences of Australia, Canada, and the United States in determining the legality of KPD and highlights the need for legal clarity and flexibility as donation and transplantation systems continue to evolve.

Keywords: Kidney, Paired Donation, Valuable Consideration, Australia, Canada, United States

JEL Classification: K00, K30, K32, K39

Suggested Citation

Richards, Bernadette and Toews, Maeghan and Giancaspro, Mark, Kidney Paired Donation and the 'Valuable Consideration' Problem: The Experiences of Australia, Canada, and the United States (September 3, 2018). (2017)Transplantation, 101(9), 1996-2002, U. of Adelaide Law Research Paper No. 2018-113, Available at SSRN: https://ssrn.com/abstract=3243424

Bernadette Richards

University of Adelaide - School of Law ( email )

Adelaide, South Australia 5005
Australia

Mark Giancaspro

Adelaide Law School ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

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