A Federal Organ Grab Without Consent

November 2, 2006 • Commentary
This article appeared in the New York Post on November 2, 2006.

Just last week, seven New York funeral home directors pleaded guilty to stealing organs from thousands of bodies, including that of broadcaster Alastair Cooke. Bizarrely enough, the federal government’s looking to get in on the same action.

At a meeting today and tomorrow, the Department of Health and Human Services Advisory Committee on Organ Transplantation is expected to recommend that states adopt policies of “presumed consent” for organ donation.

In other words, authorities could harvest organs from your dead body without prior permission from you or your family.

If the government is really concerned with getting donor organs, it shouldn’t rationalize stealing them, it should amend the National Organ Transplant Act to give people incentives for donating them.

The situation is dire. Some 93,000 Americans are now on the list to receive donated organs; last year, fewer than half got them. Twenty Americans fdie every day waiting for an organ that never comes.

No one seems to doubt that paying people to donate their organs after they die would dramatically increase the number of organs available — but government bodies hesitate to allow it.

Sometimes, this reaches the height of Orwellian doublespeak. At last month’s meeting of the President’s Council on Bioethics, Dr. Peter Lawler declared that the very idea that people own their organs was an “offense [to] dignity.”

HHS and the President’s Council are considering presumed consent because appeals to altruism aren’t producing enough donations. So why won’t they consider letting donors get compensation? It could be cash, tax deductions, lower insurance premiums or health‐​care benefits.

Right now, the National Organ Transplant Act prohibits all of the above. This 1984 law makes it a crime “to knowingly acquire, receive or otherwise transfer any human organ for valuable consideration for use in human transplantation.”

In banning the sale of organs, Congress was reacting to abuses involved in black‐​market organ sales in developing countries. Since then, Congress has considered several incentives; in 1986, it decided to pass a “required request” provision that obliges hospitals to ask relatives about donating organs whenever anyone who could serve as a donor dies. This did boost donations, but not enough to keep pace with growing demand.

Some fear that legalizing payment for organs will lead to people being murdered and plundered for the riches of their innards. It’s a fair concern, but paradoxically, more of a worry when payments are prohibited than when they’re allowed. The current ban has created a thriving black market that wouldn’t exist if there were a legal means of buying organs.

The Organ Procurement and Transplantation Network, created by Congress in 1984, could maintain the exclusive right to broker the sale of cadaver organs and keep the arrangements strictly confidential. Hospitals and others with legitimate interests in buying organs could be barred from accepting them without proof that their owners had expressed a desire to sell or donate them. The OPTN could use the revenues it received for organs to cover funeral expenses or simply contribute them to the estates of the deceased.

If direct payments cause queasiness, Congress could legalize insurance incentives or tax breaks for those who agreed to donate their organs. Insurance companies could provide discounts for organ donors, as they do for non‐​smokers.

Each of these proposals has its pros and cons, but HHS and the President’s Council should at least consider having Congress amend the Transplant Act to allow incentives before rushing to suggest that governments go cannibalizing the dead.

About the Author