Altruism's Limits: Law, Capacity, and Organ Commodification
University of California, Irvine School of Law
Rutgers Law Review, Vol. 56, No. 2, Winter 2004
This article explores the clandestine private organ negotiation process. It scrutinizes the mechanics of the United States' organ procurement and transplantation systems, which, although driven by volunteerism, consistently demonstrate significant racial disparities. More specifically, it argues that transplantation negotiations transpire in the shadows of law almost as much as in the face of the law. Private organ negotiations occur in the shadows of law as organ sales to individuals are prohibited by federal statute. Corporate transactions in body parts ostensibly occur in the shadows of law as well, engendering a lack of transparency and public awareness about those negotiations. Patients who buy organs, rather than endure the waitlist process that can take years, and their corporate counterparts (whose purchases of body parts from hospitals and organ procurement organizations is seemingly ignored), contribute to the growing body of "underground" organ sales or black market negotiations and transactions. Individual private negotiations, while violating federal law, arguably fulfill its legislative mission - the procurement and transplantation of organs to dying Americans.
This article asserts that two processes currently coexist in organ transacting: the private and public. Public organ transactions can be characterized by volunteerism, transparency, adherence to federal guidelines, and the traditional procurement and allocation processes, which involve registration to donate and a waitlist procedure for transplant patients. The private process locates itself in the shadow of the law; the transactions occur independent of regulations or standards, lack transparency and may be more difficult to trace. Private negotiations and transactions cannot be classified as uniform because the players or participants are not a singular homogenous group. Rather, they have differing interests, needs, and motivations.
Number of Pages in PDF File: 104
Keywords: commodification, private ordering, organs, race, choice
JEL Classification: A00, H00, I00, I11, I3, J78
Date posted: January 30, 2007