Stealing Organs?

97 Indiana Law Journal (forthcoming 2022)

U of Alabama Legal Studies Research Paper No. 3836696

65 Pages Posted: 30 Apr 2021

Date Written: April 29, 2021

Abstract

Every nine minutes, a new person joins a waitlist for an organ transplant, and every day, seventeen people die waiting for an organ that will never come. Because the need for organ transplants far outstrips the number of available organs, the policies and rules governing organ allocation in the United States are critically important and highly contentious. Recently, proponents of a new allocation system—one focused more on sharing organs across the nation instead of allocating organs primarily to local transplant candidates—have gained ground. Bolstered by two separate lawsuits in the past five years, advocates of greater national sharing have succeeded in changing the allocation rules for lungs and livers, with policies for other organs in development.
This Article engages with the debate over whether national or local patients should receive priority under organ allocation systems. Focusing specifically on liver allocation, it provides an innovative empirical analysis of the primary arguments and evidence that those in favor of national allocation policies have used to support their preferred policies—that the sickest patients should receive donated organs first, regardless of their location. While this argument is both ethically and intuitively appealing, those opposed to greater national organ sharing have argued that measures of “sickest patients” are both flawed and subject to manipulation. Greater national organ sharing can also exacerbate existing inequities in the organ transplant system as wealthy urban areas generally import organs from poorer and more rural parts of the country.
Analyzing a dataset of every patient waitlisted for a liver between 2002 and 2017, this Article reveals, for the first time, a deeply troubling reality. The results of the analysis suggest that transplant professionals have routinely manipulated the waitlist priority of their patients. Moreover, this manipulation occurs more often in areas of the country that argue most vehemently in favor of national allocation policies. This Article argues that these recent policy changes favoring greater national organ sharing are extensions of the manipulative tactics revealed by the empirical analysis. Given the results of the empirical analysis, the Article argues that the time has come to formalize local priority in organ allocation policy by amending the National Organ Transplant Act. This amendment would roll back recent changes to promote greater national organ sharing that have been justified with manipulated evidence and prevent organs from moving from poorer to wealthier areas of the country. This rollback represents an important first step in combating inequities in the transplant system.

Keywords: Organ donation, organ allocation, UNOS, OPTN, health law, healthcare law, law and economics, empirical legal studies

Suggested Citation

McMichael, Benjamin J., Stealing Organs? (April 29, 2021). 97 Indiana Law Journal (forthcoming 2022), U of Alabama Legal Studies Research Paper No. 3836696, Available at SSRN: https://ssrn.com/abstract=3836696

Benjamin J. McMichael (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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