Property Interests in Cadaverous Organs: Changes to Ohio Anatomical Gift Law and the Erosion of Family Rights

I. INTRODUCTION II. THE ORIGINS OF ANATOMICAL GIFT LAW IN THE UNITED STATES AND IN OHIO A. English Ecclesiastical and Common Law B. Early Ohio Common Law III. STATUTORY CODIFICATION OF OHIO COMMON LAW A. The Uniform Anatomical Gift Act B. The Donor's Rights prior to the Adoption of SB188 into law C. The Next of Kin's Rights prior to the Adoption of SB188 into Law D. Ohio Code Provisions Relating to Property Rights IV. CASES INTERPRETING OHIO'S ANATOMICAL GIFT LAWS A. Brotherton v. Cleveland B. Criticism of Brotherton v. Cleveland V. SENATE BILL 188: OHIO'S NEW ANATOMICAL GIFT LAW A. A New Property Right Is Created B. Public Relations and Administrative Problems with the New Law VI. AN EQUITABLE SOLUTION A. Acknowledging Next of Kin's Property Right VII. CONCLUSION I. INTRODUCTION In Ohio, over 3000 patients are waiting to receive healthy organs for the purpose of organ transplantation. (1) However, only 574 patients actually received the needed organs and underwent transplant operations in 2001. (2) The national ratio of supply and demand for healthy organs mirrors the crisis situation in Ohio with over 80,000 patients waiting for organs and only 12,580 transplants performed in 2001. (3) Of these transplanted organs, organs from living donors now exceed cadaverous organ donations by 418 transplants. (4) Because of this dramatic organ shortage, legislatures, Organ Procurement Organizations (OPO), hospital staff, and scholars have all sought to find ways to create and implement a more effective organ donor system in the United States. These efforts have focused on improving one or both of the two distinct areas in the transplantation process: procurement and distribution. Procurement is the process by which doctors and OPO representatives work to secure a healthy organ from either a brain-dead individual or a living donor for purposes of transplantation. All states currently implement procurement operations on an encouraged volunteerism basis meaning that a donor or donor's family must voluntarily consent to the donation of specified organs prior to their removal and transplantation. (5) The distribution scheme then determines how the limited available organs are equitably allocated among those in need considering such disparate factors as biological compatibility between donor and donee, age of donee, gravity of donee's medical condition, geographical location of donor and donee, and time donee has spent on a waiting list. (6) Although the debates surrounding the equitable distribution of organs are worthy of examination, this note focuses solely on the procurement side of the problem. (7) In particular, this note examines how Ohio anatomical gift laws have been interpreted to grant a property right to the next of kin in the decedent's cadaverous organs. Ohio is one of three states (8) that recognizes the next of kin's right to make an organ donation as hinging on a property right. Commentators have vigorously debated whether granting property rights to either the donor/decedent or the next of kin hinders or facilitates the procurement process. These arguments often revolve around the moral, ethical, and practical consequences of granting a person property rights in cadaverous organs and the apprehension, in the case of some, or confidence, in the case of others, that an organ market would inevitably result. (9) The issue of property rights in organs is especially topical in Ohio where Senate Bill 188 (10) (SB 188) was passed into law on December 13, 2000 (11) amending Ohio's anatomical gift laws. SB 188 made several statutory changes to Ohio law, but three are particularly noteworthy in the context of the property rights debate. First, SB 188 created a property right in the donee, or recipient of the donated organ, that did not heretofore exist. …