You Get What You Pay For?: Rethinking U.S. Organ Procurement Policy in Light of Foreign Models

The U.S. organ transplant system is in crisis due to the paucity of transplantable organs.  Such a shortage exists because otherwise viable organs are too often buried along with the bodies in which they reside.  Organs are wasted because the existing U.S. organ transplant system sets up barriers to organ donation—chiefly the legal presumption of unwillingness to donate (“voluntary donation”) and the National Organ Transplant Act’s ban on the transfer of organs for valuable consideration.  This Note surveys the qualified successes of Austria, Belgium, Brazil, and France with their various “presumed consent” models of organ procurement.  It also considers other proposals, including monetary and non-monetary incentives for organ donation.  In light of the limitations of these proposals, this Note concludes with two recommendations: (1) the creation of a trial program of regulated open markets for cadaveric organs in one or several states; and (2) the implementation of a national donor registry with a system of priority based on willingness to donate.  These measures would best address the organ shortage within the existing U.S. legal and ethical framework.

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