Gifts of the Heart . . . and Other Tissues: Legalizing the Sale of Human Organs and Tissues

"We buy and sell body parts all the time; we just don 't call it that. * I. INTRODUCTION Imagine a scenario in which a young individual tragically dies, but in a way diat preserves almost all of her internal organs.2 Further, imagine that after she is declared brain dead at the hospital, her family decides to donate her organs.3 Despite this magnanimous decision which will save others' lives, the family must bear all expenses for the funeral and other final expenses4 because, under current law, the family is prohibited from receiving anything in compensation for the donation.5 Yet, at the same time, thousands of dollars are changing hands between doctors, hospitals, medical transport companies, and insurance companies in completely legal business transactions for these donated organs.6 This scenario is actually not imaginary at all, but is the established system of organ and tissue transfer under current law. Federal and state laws prohibit the receipt of consideration for an organ donation.7 However, to say that organs are not being bought and sold is to ignore reality.8 While most people are somewhat aware of black market transactions in various human tissues - mostly internal organs - fewer are aware that a massive and legitimate industry has been built around the trade of human remains.9 The same federal and state laws that prohibit donors from receiving compensation for their organs and tissues facilitate this industry by providing recovery of costs to anyone who removes, stores, transports, processes, or transplants the organ or tissue.10 Understandably, these provisions are essential to facilitate organ donations as doctors, hospitals, medical transportation companies, and tissue banks need to earn money to operate. However, given that the demand for organs11 and tissues12 is greater than die supply, diese same doctors, hospitals, and medical companies inflate die costs of dieir "services" to capture the entire value of the organ.13 Despite the billions of dollars changing hands in transactions for human tissues and organs,14 the donors themselves are prohibited from receiving any compensation.15 This Comment argues that the donors, as the most rightful owners of the value of dieir organs and tissues, have a right to participate in this industry. The literature advocating the removal of restrictions on human-organ and tissue sales has mostly done so on die grounds diat it is justified by die need to eliminate die organ shortage.16 While this is a valid consideration, it sidesteps die educai objections to die sale of human organs and tissues by arguing that die ends justify die means, and any ediical objections to organ sales are outweighed by die practical need to save lives. In contrast, this Comment attempts to focus more direcdy on the ethical dilemma by considering die question whedier an individual should have die right to claim die value of his or her own body. Ultimately, this Comment concludes diat while strong societal interests justify the prohibition of inter vivos sales, no such interests exist to prevent postmortem transfers. Subsequently, the current law merely transfers wealth from donors to doctors, hospitals, and medical companies and reduces individual autonomy by eliminating the contractual power of donors to control the future use of their organs. Thus, amending die law to allow postmortem organ sales would result in a more equitable legal structure and likely save more lives. Part II of this Comment outlines the current statutory and jurisprudential frameworks surrounding the law's treatment of organ transplantation and the human body more generally. Part III briefly discusses various proposals for organ and tissue sales and their criticisms. Part IV discusses the societal interests supporting the prohibition on organ and tissue sales. Part V analyzes these arguments in light of the current legal structure and argues that an individual should have the right to capture the market value of the rights to her body upon her death since this would provide for a more equitable distribution of wealth and would increase autonomy. …