Third Place Winner 2005

Organ Transplants, the Uniform Anatomical Gift Act and Probate Law:
Is it time for a new approach?
by Chris Suffecool
Arizona State University
 “Man is an intelligence in servitude to his organs.” ~ Aldous Huxley
On March 21, 2005, a New Delhi woman killed herself so that her teenage sons could have her eyes. Her children had been blind since birth, and her hope was that a corneal transplant could help give them the gift of sight. If the corneas cannot be used for her sons, the family does not want them used by anyone else.[1]
On January 25, 2005, a man from Raleigh, North Carolina was hit by a car, pronounced dead and taken to the morgue. 2 hours later, his condition was upgraded from “dead” to “serious”, when it was discovered he was still alive.[2]
The first of these stories indicates that people can recognize a valuable property right in their own body, and can try to make sure that loved ones receive that property upon their deaths. The second story is a good example of why people are often reluctant to become organ donors, which helps to create a fairly severe shortage.[3] These fears have been memorialized in short stories by popular authors as well, which doesn’t help encourage people to become organ donors.[4]
In order to help address this shortage of organs, the National Conference of Commissioners on Uniform State Laws prepared the Uniform Anatomical Gift Act in 1968. They later amended it in 1987 to address some of the problems with the language and to help encourage even more organ donation.[5] The Uniform Anatomical Gift Act (U.A.G.A.) was enacted by all 50 states as the respective State Anatomical Gift Acts.[6]
This paper will discuss these gift acts, their shortcomings, and recommendations for altering them to make human organs more like regular tangible property that can be contracted for, bequeathed, and exchanged for valuable consideration should the person make a futures  contract to do so. It will discuss the ethical concerns of such a system, ways to make it as viable as possible, and also contains a discussion as to who should pay for such a system.
I. Trusts and Estate Law’s current approach to the human body as property.
  The law’s approach to property devisable at death has long allowed a decedent to pass down all of his real and tangible property to whomever he may choose.[7] This right is generally unrestricted, but there are a few things that a person may not do with property upon death. One of the most important things a person may not do is destroy (or be buried with) valuable property. The law generally looks down on this kind of public waste.[8] For this reason, Trusts and Estates Attorneys are likely to advise their clients that they should not include such clauses in their wills.
  This general prohibition against wasting property does not apply, however, to the human body itself. Historically, the law said that there were no rights to a human body as a property interest.[9] But as the law developed, it began to move away from such a rigid approach. Over the course of time, the United States Courts began to recognize a “quasi-property right” to a deceased body, whereby the heirs of the decedent needed to have custody of, arrange burial for and protect the body from disturbances after burial.[10] While this law helped define the rights of the descendants of the decedent, the law regarding organ and tissue donation varied greatly from state to state. This was the impetus behind the production of, and subsequent amendment to, the Uniform Anatomical Gift Act.[11] The Act was original published in 1968 and was later amended in 1987 to make it clearer and to further encourage organ donation.[12]
  And though it is now possible for anyone of sound mind over the age of 18 to consent to having her organs donated after death, that person is not allowed to contract to have her organs removed and used for transplantation in exchange for valuable consideration.[13] And while this  area of law appears settled, it is inadequate on two levels. First, there is a severe organ shortage which the U.A.G.A. has failed to remedy. Second, it does not allow for people to have the freedom to pass down their own personal property as they see fit. For this reason, Trusts and Estates lawyers should lobby for a change to the system that would allow for such exchanges.
II. The State Anatomical Gift Acts and the shortage of organs
  A. Organ transplants: then and now.
    Medical science has made great strides in the past 50 years, and one of the biggest has been to make organ transplantation a relatively common and safe procedure.[14] On December 23, 1954, Doctor Joseph Murray demonstrated that organ transplantation was possible when he successfully removed one of Ronald Herrick’s kidneys and transplanted it into his identical twin brother, Richard.[15] The surgery was a success, as Richard’s body didn’t reject the foreign tissue because they were identical twins. Other transplants proved more difficult, and had limited success until the introduction of the anti-rejection drug Cyclosporine.[16] When Cyclosporine was introduced in 1983, it made possible surgeries that would not have succeeded in the past, and the demand for organ transplant surgeries (and therefore organs themselves) rose steadily.[17]
    Each year about 25,000 organ transplants are performed. However, about 6000 people die waiting for organs that have not become available because of the national shortage of organs.[18] This shortage is a crisis that does not need to exist. And yet, despite many efforts and different approaches to the problem, the organ shortage has not been resolved. Many different approaches have been offered to help address the problem, but nothing has worked as of now. The problem is not the general availability of organs, for there are plenty of healthy organs that, if removed in time, could help cover the shortage.[19] The problem appears to be people’s  willingness and desire to donate.[20] There is not enough emphasis on donation in the first place, and a national, federally funded organ donor information network would be a great place to start. If people were more aware of the shortage of organs and the facts about being donors, it is possible that more would sign up to become organ donors. Though this has not yet been proved, it is likely that a national campaign to improve education would help alleviate the shortage.
  B. Myths and donation.
    Dispelling the myths and falsehoods associated with organ donation would be a good place to start and would help encourage people to become donors. The government’s organ donation web site has a web page that addresses some of the misconceptions people hold regarding transplants.[21] Among the myths dispelled are that Doctors won’t try to save your life if you are near death and an organ donor, that organ donation disfigures the body, that it costs money for the family of the donor to donate, and that rich and famous people get preferential treatment when it comes to the availability of organs.[22] And rather than find out the facts, people will read the stories like the one mentioned above about the alive man who was in the morgue and this might be enough to keep them from signing up to become an organ donor. Whatever advertising campaigns and information the federal and state governments have distributed, the amount of donors still remains at an insufficient level.[23] The State Anatomical Gift Acts (S.A.G.A.s) were supposed to help remedy this shortage, but have not been very successful.[24]
  C. S.A.G.A.s prove unsuccessful
    Even with the amendments proposed and enacted by some states, the shortage of organs remains a pressing concern.[25] There are several causes why the S.A.G.A.s did not remedy the shortage. Among them are the fears of the public about organ removal and transplantation, religious desires to have the body remain intact, and doctors who fail to honor the wishes of the  decedent and instead honor the wishes of the decedent’s family.[26] The S.A.G.A.s have attempted to make donating organs as easy as possible. Usually all that is required is a document of gift that authorizes the removal of whatever organs the donor seeks to give, and a general anatomical gift will allow access to all usable organs.[27] One of the problems with this system is a general lack of encouragement for people to become donors. Although it is easy for a person to become a donor, it is not usually suggested to them on a regular basis. Doctors are required by many S.A.G.A.s to ask patients about becoming organ donors when they arrive at the hospital, but even when they do, they don’t necessarily listen to their requests.[28] The failure of Doctors to abide by the wishes of the decedent is an obstacle that needs to be addressed, but is a health care issue and beyond the scope of this paper. It is not the main cause of the shortage of organs, but will help with the supply to some degree.[29]
    Another problem is that some of the States chose not to enact some of the more controversial provisions of the U.A.G.A., namely those that would allow the next of kin to donate the decedent’s organs absent any signs to the contrary, such as an express refusal to become a donor, or membership in a religion or organization that indicates the deceased would prefer to have his or her body remain intact after death.[30] Some states refused to enact these controversial provisions likely because they recognized the right of self-determination after death, and that it would be invasive to remove people’s organs without their consent, even though they have passed.In balancing the interests of the deceased and the public interest to healthy organs that could be used for transplant, the States came down squarely on the side of self-determination and bodily integrity after death unless the person consented to organ removal or did not have a refusal on record. This refusal can be an indication on a driver’s license or even an oral statement made at the time of a terminal illness.[31]
    This paper will not argue that the states should amend the S.A.G.A.s to allow for a presumption of donation or that the refusal laws should be changed to make it more difficult to refuse to donate, as these controversial provisions seem to violate the fundamental right to direct the distribution of property upon death, as well as the right to post-mortem bodily integrity. Because a person has a right to direct what should be done with his or her body, the unauthorized removal of organs seems to be a grievous interference with that right. The presumption should lie that a person wants to be buried or cremated intact, unless there is either express consent, complete lack of refusal or an important state issue that overrides that right, such as the need for an autopsy.[32]
III. Remedying the Shortage:
  A. The solution.
    The answer to the problem of a lack of organ donations is to offer valuable consideration for donors to leave their organs for transplantation after death. Similar proposals have been discussed before, and states such as Pennsylvania have tried to sidestep federal law in order to offer monetary incentives for organ donation.[33] The Pennsylvania program has been a success, though the data is somewhat limited.[34] Though there are many potential pitfalls and ethical concerns, the right to pass down property must include the human body and all parts thereof, and a system should be put in place that allows for this to happen. This system will involve balancing the costs of transplants and the value of organs as to the donee. This will simultaneously cure two defects in the system: It will provide more incentive for people to donate (and therefore help curb the organ shortage) and it will also give financial help to the donor’s beneficiaries. It is this latter part that is even more controversial, but this situation needs  to be looked at from the donor’s point of view and not that of the donor’s heirs/beneficiaries. Just as when Doctors accede to the wishes of the family of the decedent over the decedent’s personal wishes regarding body disposal and organ donation, focusing on the heirs’/beneficiaries’ thoughts and feelings about selling organs for valuable consideration misses the point. The question needs to focus on what an organ is worth to the medical community and the donee, and what threshold level of payment will encourage enough people to donate organs to eliminate the shortage of viable organs. If a middle ground can be found, all parties will benefit and the tricky ethical questions can be resolved.
  B. The history of the right to sell organs.
    As discussed before, a person cannot be buried with a valuable piece of tangible property because of the general prohibition against public waste. And yet, every day, people are buried with their bodies intact and potentially lifesaving, valuable organs are allowed to be buried with them. This discord is justified by the idea that there is some sort of fundamental right to bodily integrity that supersedes the public right to avoid waste of valuable resources. Presumably, this logic would mean that if someone had a $100,000 diamond ring lodged in his spleen (for whatever reason), he could be buried with it, because of his right to bodily-integrity.
    The worth of an organ to a person hoping for a transplant is practically immeasurable. It can mean a new lease on life. The National Organ Transplant Act was enacted by Congress in 1984 in order to establish a national system of distribution and it also banned the sale of organs for valuable consideration.[35] The reasons for this ban was the fear of a national organ market that would enable the wealthy to buy organs from the poor and thereby endanger the health of one  segment of the population for the benefit of the other. The policy considerations for this are clear and well supported.[36]
    This fear is particularly clear when it comes to the extraction and sale of transplants from live human beings. Such fears are well known and have even been memorialized in our modern urban legends.[37] The other fear is that the wealthy will be able to afford such transplants to the detriment of those who are not as well off.[38] For this reason, the right to do with one’s body as one wishes is overridden by public policy concerns, for the same reason that prostitution is illegal. It is the government’s way of protecting people from themselves. As of now, it is illegal to exchange organs for valuable consideration, whether the donor is alive or dead.[39]
  C. The difference between the living donor and the deceased donor.
    While this blanket prohibition against contracting to sell organs works to the public’s benefit concerning live donors, it is inadequate when applied to the deceased. When a potential donor is dead, they can no longer hurt themselves by contracting to have an organ removed in exchange for valuable consideration. This removes one of the main concerns about the sale of organs, that people would put themselves in precarious medical situations in exchange for cash. Even though the person is dead, they still may contain within them valuable property that could benefit many different people. When they are alive, their use of the organ is, of course, not public waste, but upon death, the failure to use that organ is public waste. Death is the central event that converts the organs into unused property that should be used. Encouraging clients to bequeath this property is beneficial to everyone involved and simply does not present most of the dangers that having a donor sell live organs does.
    The main danger that exists is still one of market forces. If the sale of a deceased person’s organ were performed in an open market, it is likely that the rich would still be able to remain healthy while the poor would suffer. A system like this is probably not going to be approved by a majority of states, and so must be assumed to be nonviable. This is despite the fact that the wealthy have superior access to medicine and doctors in our current insurance system. Those inequities are firmly entrenched in our health care system, while the introduction of an open market for organs is likely to be met with wide public disapproval. For this reason, it is necessary to keep in place NOTA’s standard organ distribution system, which has largely remained an equitable distribution system that takes into account several factors when deciding who is the first to receive a donated organ.[40]
  D. A philosophical and economic argument for a revised system.
    The key to solving the organ shortage is to find a system that satisfies all of the parties involved. The system must be ethically acceptable to a majority of the population and must provide enough economic incentive to cause a sharp increase in donor availability. A perfect system would keep the costs down as much as possible while increasing the donation of organs as much as possible. Donors would be able to capitalize on a piece of valuable property for the benefit of their beneficiaries, while the amount of viable organs would increase substantially. It would also help to avoid the problem of public waste. The government should be encouraging the use of these potentially lifesaving organs with more vigor than they currently are. Because the current system is quite obviously not working, the government has a duty to remedy the situation. Trusts and Estates attorneys should be lobbying for this change on grounds of the right to bequeath property and to avoid asset depletion. In order to maximize the wealth of clients and  contribute to the economic security of their beneficiaries, attorneys should be lobbying for a system that maximizes assets and minimizes wealth loss of all kinds.
    A perfect balance can be achieved, but it will take time and research to figure out the particulars. The balance should lie at that exact point wherein costs are kept down but donations increase. For example, survey evidence could be used to find out a threshold amount that would cause the majority of people to become donors. A survey might ask:
    1) Are you and organ donor? (If they are a donor, questions about offering others compensation should be asked, as well as whether they would be more likely to seek compensation if it were offered, even though they are not to receive any at this point in time.)
    2) If not, why not?
    3) Are you aware of many of the urban legends/myths surrounding organ donation?
    4) Would you be more likely to donate if you could be assured that none of these myths were true? (Assuming that they are afraid, this question might dispel some of those fears, which would help to encourage donation.)
    5) (If they don’t really have any reasons for not being a donor.) Would you be interested in becoming a donor?
    6) (If still no.) If you knew that you could provide for your beneficiaries by becoming an organ donor would you be more likely to become a donor? (skip to question 10 if the answer is no)
    7) (If yes to question 6.) How much money would have to be given to your beneficiaries in order for you to become an organ donor?
    8) Would this same amount be sufficient even if your organs were not viable? Meaning that if your organs are viable your descendants will receive the money, but if they are not they will receive no compensation?
    9) If not, how much would it take in such a speculative situation? (End here, unless answer to question 6 was no.)
    10) What if your descendants/beeficiaries were to receive no compensation for your being an organ donor, but part of your funeral expenses would be taken care of? Would you be more interested in such a system? Why or why not?
    A survey of this type would allow attorneys and lawmakers to get a general idea of the costs associated with providing compensation for donation. Based on this, the economics of the system could be established, and costs could be accounted for in designing the system. In order to facilitate a change in the system, Trusts and Estates attorneys should implement this kind of survey in their dealings with clients. The sooner the appropriate information is gathered, the sooner changes can be made to the system.
  E. Actual donation, or speculative viability?
    One of the key questions in designing the system is whether or not the it should be based on the speculative viability of organs. That is, which is a better approach: to give guaranteed money to all donors regardless of whether their organs are actually used, or to promise compensation only if the organs are actually used? There is no doubt that the former approach would have greater costs, but the second system might not provide enough incentive for people to become donors. The survey information could help to figure out which of these approaches would be more economically viable.
    In terms of fairness, an across the board incentive is preferable, as it would encourage as many people as possible to become donors. Even if the amount were as low as $500 per person  who became an organ donor, this might create enough incentive to have thousands of people become organ donors and effectively end the shortage of viable organs. Such an achievement might be worth the high cost required to have the requisite number of organs available for transplant. However, this might be prohibitively expensive, and would definitely give extra money to the beneficiaries of potential donors who did not actually donate anything at all.
    It appears that a speculative system is the best approach. Individual payments to donor’s beneficiaries might be more expensive, but overall costs would be reduced. Not many people who die are viable candidates to have their organs used in transplants, especially the elderly.[41] For example, if, based on survey evidence, it would cost $500 to encourage a person to become a donor whether or not that person’s organs were actually used, and only 1 in 50 people’s organs were used, that would be a waste of $24,500. If, however, it would cost $10,000 to encourage someone to donate organs, but their beneficiaries would only receive the money if the organs were actually used, the cost would only be $10,000, which is a savings of $14,500 over the previous method.
    In order to keep costs down, a threshold level needs to be set. Other than cost containment, the less that has to be offered means it is more likely that people will want to donate out of kindness rather than money. The goal here is always a middle ground. The intent is not to coerce or bribe people into becoming organ donors, but to simply give them a little nudge in the right direction. We want them to benefit for donating something of incredible value, but we also want every party in the system to come out ahead.
  F. Responsibilities of the Attorneyin dealing with the client
    It should be the responsibility of Trusts and Estates lawyers to discuss donation options with their clients and to inquire into the willingness of clients to donate. A good time to bring this up is when discussing the idea of the living will. Such subjects are emotional and personal, sometimes more so than discussion about the distribution of monetary assets after death. The subject should be brought up in a respectful manner, and the attorney should explain the client’s options with regards to both of these issues. Upon establishing the need or desire for a living will and power of attorney, the next step should be to discuss organ donation and present a range of options. This duty and responsibility falls on the Trusts and Estates attorney because of his or her unique duty to assist the client in all matters related to management of affairs after death.
    The attorney should present three options. The first is to not become a donor, the second is to become a donor for no incentive, and the third is to become a donor with a financial incentive to be paid after death and upon use of the organs in a transplant procedure. The Attorney should explain, of course, the possible benefits and drawbacks of each of these options, and should provide the client with as much information as possible to help the client make an informed decision. Relevant information may include pamphlets from the government regarding organ donation, the need for it and also the myths and misconceptions typically associated with it. This step alone will help increase the number of donors on a national scale if every Trusts and Estates attorney were to discuss this with his or her clients.
    A possible document of gift could read something like this, should the client choose to donate in exchange for consideration:
      I, _____________________, do hereby express my intent to become an organ donor in exchange for a sum of $5000 (or whatever the number turns out to be based on the above mentioned survey  evidence) to be paid to ___________________________ should any of my organs be used for donation.
      Should my organs not be used, I understand that no sum shall be paid to ____________________
      Signed, _________________________ (date)
V. Who should pay?
  Such a system will save money in the long run by allowing people to receive healthy organs. These organs will help remove chronically sick patients who are a financial burden from the institutions that treat them.[42] This is yet another powerful argument for changing the current system. As it is, the costs for treating a patient with a kidney ailment for a long period of time are much greater than the cost of a transplant surgery and subsequent followups.[43] If the system can be altered to promote more donations, the relative cost will be kept low, and in the long run will cost less money.[44]
  The problem is that right now, those who have organs that aren’t functioning properly are paying (either out of pocket, or through insurance) for their health care. One way of making the transition would involve simply having people pay extra money to their insurance companies and then have the insurance companies make the payment to the decedent’s heirs. The insurance companies would likely be interested in such clauses and could have them added in to any contract. Their interest would stem from the idea that it is less expensive for them to pay for a surgery and follow-up appointments than it is to pay for continuing medical treatment.[45] Because most insurance companies will have to pay for the transplant surgery anyway, they might as well do what they can in order to save money, which is to do whatever is possible to encourage people to become donors and improve the health of their clients.
  The insurance companies’ involvement would slightly complicate some things, however. For example, it might have been preferable to make the funds available for clients if their organs were removed and not used in a successful transplant. So long as the organs were removed for the purpose of transplant, the decedent’s beneficiaries would be entitled to receive the funds. But if that were the case, who would make the payout to the donor’s family? The insurance company has insured the donee. The donor’s insurance company may be able to cover the cost, but would likely be reluctant to do so, as there is no possible benefit for them to do so. They would have to make a payment to the donor’s beneficiaries. In order to cover this cost, the insurance company would likely have to raise the donor’s premiums, which would not work for two reasons. One, this would offset the payment to donor’s beneficiaries. Secondly, this raise of premium would be based on a speculative payout, so if the donor’s organs were not to be used in a transplant surgery, the potential donor would have paid extra money into the system and effectively denied his beneficiaries of assets they could have had.
  For this reason it is advisable to have the system remain one dependent on future events. If the transplant takes place, then the donee’s insurance company can foot the bill and make the payment to the donor’s beneficiaries. The only danger lies in an economic imbalance wherein the costs of the surgery and aftercare plus the payout to the donor’s family exceed the cost of the continuing care of a person minus the organ transplant. But given the general economics of long term care for those with serious organ defects, this danger is unlikely to materialize, especially when it comes to the need for kidneys (the second most common transplant surgery after corneal transplants.) [46][47]
  The question then becomes when the insurance contract should be entered into. It is not advisable to have a system where the provision is written into the contract prior to the patient  needing an organ transplant. This is true on both sides of the equation. Once the event is triggered that an organ transplant may be necessary, the insurance company and the patient should work out an addendum to the contract wherein payments are slightly increased. This money will be pooled in order to make the payout to the donor of the organs. Once the amount paid in has reached the amount that will be paid out to the donor’s beneficiaries or his funeral expenses, the excess payments can be halted. If a donor’s organ becomes necessary prior to the threshold amount being reached, the insurance company will pay the fee for it. The insurance company should have no qualms in doing this, since it will save them money in the long run. They will no longer have to pay for ongoing medical care (except for follow-up visits, but it will still be less expensive in the long run.)
  If there is an insurance contract formed and the chain of events unfolds where an organ transplantation actually comes to pass, and the donor has a document of gift that requires payment, the insurance company should pay the funds to the persons named in the gift document. The question then arises as to what should happen to funds collected if the donor had not made a document of gift that requires payment. At that point in time, the donee would have already paid additional funds into an insurance contract in order to pay a potential donor.
  There are a few possible uses of these funds that would help sustain the system. If insurance companies were reluctant to enter into such contracts for any reason, these funds might serve as additional incentive for them to support the system. Second, if the funds are not paid out to a donor, the presumption could lie that the funds would go back to the donee’s family. The problem with this approach is that payments back to the donee would be based upon donor’s status as a donor who agreed to gift for nothing or one who agreed to gift in return for  consideration. This might discourage some donors from accepting consideration in exchange for donation.
  The insurance companies might also have a good claim to keep the extra money. This is because they could potentially lose money on different types of transplant surgeries, and this might offset those costs. It is entirely possible that a surgery for certain types of transplants might be more expensive (due to complexity and complications) than continuing medical treatment without surgery would be. So whatever money the insurance company receives as extra is not really extra, but offsets whatever loss might occur from having to pay a donor’s beneficiaries or his funeral expenses when the cost of the transplant plus this payout is greater than the cost of ongoing treatment.
  But if it were determined that the insurance companies would not need these payments in order to avoid a loss, then perhaps the best use of the excess payments would be to funnel them into some sort of general fund that would support a public organization that could disseminate information regarding organ transplants and the need for donors. This would help to reinforce the system as a whole and would increase organ donations across the board. Once again, this would be in the interest of the insurance companies, as an increase in the number of donors will help keep the cost down in the long run, and would further reduce the shortage of organs.
  An insurance based system is viable and could eventually reduce costs and increase organ donations on a national level.
VI. Amending NOTA and other potential pitfalls.
  A. NOTA.
    The National Organ Transplant Act has done a good job of preventing the emergence of a black market for the purchase and sale of human organs.[48] The act should remain in place in order to prevent such a market from appearing, but should be amended to allow the exchange of organs for valuable consideration once death has occurred.
    There is a possibility, however remote, that someone might take her own life hoping that her organs might be used for transplant and that the funds might benefit her beneficiaries. This is yet another argument to find a good threshold amount of funding in order to prevent suicide. If the amount is too high, the likelihood that a person would commit suicide rises. The possibility of suicide also rises when the amount paid is guaranteed and not based on a successful transplant of organs. If the amount paid out is kept low, and the payment is only distributed upon successful transplantation, the danger of suicide is lessened.
    There is also the option of amending the NOTA to include a clause that would make it impossible for a decedent’s family to receive funds for organ donation if he killed himself. This may serve to discourage people from killing themselves, but seems fundamentally unfair to those who should benefit from organ donation in exchange for consideration, the decedent’s beneficiaries. It would be particularly unjust in a situation where someone killed himself for reasons other than the possible proceeds from organ donation, his organs were successfully transplanted and his family received no payment for the donation or his funeral costs were not partially or fully covered. The dangers that such an amendment to the law would punish the wrong people make it preferable to seek an alternative method of preventing unnecessary death.
    Another concern is that some families might be motivated to withdraw treatment in order that the donor’s organs could be harvested and they might benefit. This is a problem with no easy solution. Simply adding a clause to the NOTA amendment that would disallow payment to  beneficiaries who caused the donor’s death might solve the potential problem. This could be worded similarly to any of the many state statutes that don’t allow spouses who murder their spouses to profit or benefit from such an act.[49] Such statutes may not always work, but they are a good first step. This is yet another situation where reducing the payment amount as far as possible (while still ensuring donation, of course) will discourage anyone from considering such a heinous idea. Also, such a problem can be avoided by properly crafting living wills. The Terri Schiavo case indicates the need for living wills on a national level, and if they are properly crafted, will likely prevent donors beneficiaries’ from being able to act in a manner that would benefit them by harming the donor.
  B. Another cost that can be avoided.
    Yet another justification for altering the current system is the health, economic and emotional costs of living donors. In 2001, for the first time ever, live human donations exceeded those from cadavers.[50] This is an unnecessary burden upon our health care system that might be reduced should the number of decedent donors increase.[51] If we can increase the number of living donors, then we can decrease the number of living donors, saving money and health on both sides of the organ donation equation.
  C. A suggestion for gradual implementation.
    There might be some initial philosophical reluctance to paying money for organs, even if the donor is dead and the money goes to the donor’s beneficiaries. For this reason it might be advisable to gradually implement the system by first only providing a credit that can be applied to funeral expenses of the donor. This is the system that is currently in place in Pennsylvania.[52] If  this system is more morally acceptable to the majority of people, it should be implemented. Eventually the move should be made to a freer market in which the donor can direct where the money goes and to whom it goes. This move should be made based on the underlying property interest retained by donor in her own body. Where this line should be drawn can be debated at another time. It is sufficient for now that a property right be recognized in a donor’s body and that such property can be exchanged for consideration subject to certain restrictions and guidelines.
VII. Conclusion.
  A national system of allowing people to exchange their organs for valuable consideration after death would benefit all interested parties. Donors would get the satisfaction of helping other people and additional assets for their beneficiaries. The supply of organs would reach unprecedented levels and would benefit the overall public health. This, in turn, would drive down costs. Insurance companies would benefit by receiving periodic payments and having their overall expenditures reduced in the long run. The plan is beneficial to the donor, potential donees, the donor’s beneficiaries, the insurance companies and the public health system.
  Although there are many concerns about the exchange of organs for valuable consideration, most of those only occur when the person seeking to sell her organ is still alive. A black market that allows the wealthy to purchase organs at the expense of the poor was one fear that led Congress to enact the NOTA.[53] But so long as the regular guideline criteria are still used, there is no danger of an unfair distribution of organs. The current system does an adequate job of selecting the best candidates for transplants, and that should not change. The system is beneficial  to many because the available organ supply would trickle down to those who need them but would normally be left out because of the priority of those above.
  While the possibility exists for a person to commit suicide in order that her beneficiaries receive the insurance payment for organ donation, keeping costs down and making payment contingent upon a successful transplant will help obviate this danger.
  In the end this appears to be a viable system. Trusts and Estates attorneys should perform two duties in this area. First, they should lobby congress and the local states in order to try and get the law changed. Second, they owe a duty to each of their clients to assist them in every way possible when it comes to matters of post-death property. For this reason they should also take the time to sit down with their clients and make sure they have the proper information so that they may make an informed decision. Through implementation of this change in law and the dissemination of information regarding organ donation, the supply of viable organs will increase and all parties will benefit.
End Notes:
[1] (visited March 25, 2005)
[2] (visited March 25, 2005)
[3] (visited March 25, 2005) (According to the Department of Health and Human Services, 17 people a day die waiting for an organ transplant. Also, the site points out some of the common myths that prevent people from becoming organ donors, such as the idea that a doctor will not try to save your life with as much vigor if he or she knows you are an organ donor:
[4] King, Stephen. Everything’s Eventual. Scribner, 2002. See “Autopsy Room Four,” a story in which a man is paralyzed by a snake bite, with no signs of life, and is about to be sawed open for an autopsy.
[5] U.A.G.A. (1987)
[6] (visited March 25, 2005)
[7] See A.R.S. § 14-2602 (2004) for an example of a statute that allows such passage.
[8] (visited March 25, 2005)
[9] (visited March 25, 2005) As Blackstone said in regards to early English law: “no property right exist[s] relative to a dead body.”
[10] See Whaley v. County of Tuscola, 58 F. 3d 1111 (6th Cir. 1995)
[11] Id.
[12] Id.
[13] See A.R.S. §36-849 (an example of a state statute providing that a person shall not sell or purchase a part of the body for valuable consideration, if such is to occur after death. A violation of this particular statute is a felony.)
[15] See Jennifer L. Hurley: Cashing In On the Transplant List: An Argument Against Offering Valuable Compensation for the Donation of Organs (4 J. High Tech. L. 117)
[16] Id.
[17] See David E. Jeffries, The Body as Commodity: The Use of Markets to Cure the Organ Deficit, 5 IND. J. GLOBAL LEGAL STUD. 621, 624 (1998)
[20] See Lisa Wayne L. Anderson & Janolyn D. Copeland, Legal Intricacies of Organ Transplantation: Regulations and Liability, 50 J. Mo. B. 139, 139 (1994) (noting that 70% of people surveyed would be willing to become donors. However, it is not clear how many of those who were willing to become donors were actually donors.)
[21] (visited March 25, 2005)
[22] Id.
[23] Id.
[24] See United Network for Organ Sharing, U.S. Facts About Transplantation (visited March 25, 2005)
[25] See Jennifer L. Hurley: Cashing In On the Transplant List: An Argument Against Offering Valuable Compensation for the Donation of Organs (4 J. High Tech. L. 117)
[26] See (discussing physicians’ failures to honor the wishes of the decedent and instead honor the family’s wishes.)(visited March 25, 2005)
[27] See A.R.S. § 36-842
[28] Id. See also,
[29] (visited March 25, 2005)
[30] Compare comment to U.A.G.A. § 2(a) with A.R.S. § 36-842 (2004)
[31] See A.R.S. § 36-842
[32] See A.R.S. § 36-3224 (as an example of a state statute that allows people to either consent or refuse an autopsy, but indicates that an autopsy may be required under state law.)
[33] 20 Pa.C.S. § 8622 (2004)
[34] (visited March 25, 2005)
[35] (NOTA)(visited March 25, 2005)
[36] See Curtis E. Harris, To Solve a Deadly Shortage: Economic Incentives for Human Organ Donation, 16 ISSUES L.& MED. 213 (2001). (noting that a Virginia man had established, in 1983, a company that served to broker organs for a fee, which led to the enactment of the NOTA.)
[37] See (wherein a gang of thieves would drug business travelers, remove their kidneys and sell them on the black market.)(Visited March 25, 2005)
[38] (visited March 25, 2005)
[39] (NOTA)(visited March 25, 2005)
[40] Id.
[41] Individuals over the age of 65 account for 73% of all deaths in the United States, but only 5% of organ donations. The CRT also notes that part of this is attributable to what they call “highly restrictive” standards regarding age and health of potential donors that “contribute more to the problem than the solution” (visited March 25, 2005)
[42] See (Noting that if you had to pay each donor $10,000 per kidney, and that raised donations from 6000 to 9000 per year, it would save the government over $210 million a year. This is because the cost would be $90 million, but each additional kidney would save the government $100,000 in health care costs. At these rates, it would only take an increase of 666 donors nationwide in order to break even. And if the cost per donor could be reduced even further, it would take even less donors to break even, cost wise.)(visited March 25, 2005)
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] (in 1999 there were 45,897 corneal transplants and 12,032 kidney transplants.)(visited March 25, 2005)
[48] (there is no current black market for organs)(visited March 25, 2005)
[49] See Burns Ind. Code Ann. § 29-1-2-12.1 (2004) (an example of a statute that disallows those who commit murder from benefiting in the form of devised or descended property)
[50] (visited March 25, 2005)
[51] Id.
[52] 20 Pa.C.S. § 8622 (this has established a trust fund that is completely funded voluntarily by the people of the state of Pennsylvania. They are offered an option at the DMV to donate a dollar into the trust fund. The trust fund helps pay funeral and other expenses for organ donors and their families, up to $3000 per donor)
[53] See Jennifer L. Hurley: Cashing In On the Transplant List: An Argument Against Offering Valuable Compensation for the Donation of Organs (4 J. High Tech. L. 117)