Forced organ donation: the presumed consent to organ donation laws of the various states and the United States Constitution

The issues presented in this Comment pertain to whether there are substantive limits imposed by the Fourteenth Amendment upon the state legislatures which would defeat the recent, tentative steps of many states to pass laws authorizing presumed consent to organ donation. The final and perhaps least effective presumed consent law creates a presumption of consent to organ donation. The potential organ donor makes the choice whether to donate or not during his lifetime. This form of the presumed consent law would probably have the least impact on increasing the number of available donor organs. It permitted the coroner to harvest the eyes and corneas of deceased individuals if the coroner was unaware of objections from either the decedent or the family of the decedent. Presumed consent statutes should be found unconstitutional because they infringe upon a family's property interest in a deceased relative's corpse. However, due to the family's property interest in a relative's deceased body, as set forth in the next section, the result is that presumed consent statutes are unconstitutional. In order to find the presumed consent law unconstitutional, the Court would have to find that either: (a) the Fourteenth Amendment's liberty component included the family's right to determine what happens to a relative's body after death, or (b) that the property component included a vested state law property interest in the dead body.     

Government's role in organ transplantation policy

This paper initially considers ways of thinking about organ transplantation: Should it be treated as a catastrophic disease or as an ordinary and accepted medical procedure? The analysis then shifts to the role the government has played in influencing organ transplantation policy. The federal government's involvement initially stemmed from its role as payer for end-stage renal disease services. In recent years, the rationale for intervention has changed, and the mechanism for implementing regulatory oversight has shifted to a private network run for the government by the United Network for Organ Sharing (UNOS). The government has delegated much policymaking authority to UNOS, although the author demonstrates that this is not required by the applicable legislation. The article raises questions about the relationship between UNOS and the federal government, about potential conflicts between UNOS guidelines and state laws under the Uniform Anatomical Gift Act, and about the ideological stance undergirding much of current federal policy in the organ transplantation arena.     

Regulations and organ transplantation in Turkey.

The concrete expression of ethical values in legal arrangements may require a long period. In our experience, this period can sometimes be quite brief when it comes to bioethical issues, as it can be seen in the legal arrangement in Turkey concerning organ transplantations. Turkey can be considered a fortunate country with respect to legal arrangements for organ transplantation in that laws on organ transplantation in Turkey date back to twenty years ago. At the time this law went into effect, the ethical discussion on this issue were yet to begin. The rationale behind the law was to prevent physicians from legal prosecution due to organ transplantation. Yet, the attempt to place organ transplantation into a certain legal framework alleviates our ethical concerns.     

关于器官移植活动中涉及的犯罪现象的刑事法律认定

本文论述了器官移植活动中涉及的犯罪现象,其中包括合法化下的犯罪和非法状态下的犯罪现象,指出了如何对器官移植活动中引发的故意伤害罪,盗窃、侮辱尸体罪等进行法律认定。针对目前器官移植中可能出现的犯罪倾向,建议通过刑事立法对这一领域进行规制,促进器官移植的健康发展。     

论我国器官移植立法过程中应坚持的基本原则

传统立法过程中需要遵循一些基本原则，这些立法基本原则也适用于我国的器官移植立法．但很显然．我国器官移植立法在遵循传统立法基本原则的同时，也要坚持一些特有原则。这是我国器官移植法立法科学性的内在需要．     

论我国器官移植立法过程中应坚持的基本原则

传统立法过程中需要遵循一些基本原则,这些立法基本原则也适用于我国的器官移植立法.但很显然,我国器官移植立法在遵循传统立法基本原则的同时,也要坚持一些特有原则。这是我国器官移植法立法科学性的内在需要。     

The politics of organ transplantation: a parable of our time

This paper reviews the historical development of federal government policy for kidney, heart, and liver transplantation. It examines several political dimensions of whole organ transplantation: the role of the print and broadcast media; the management of organ procurement; the certification of transplant centers; the evaluation of new surgical procedures; and the issues of financing, distributive justice, and rationing of scarce medical resources. The author finds that the media, though powerful in affecting transplant policy, have not been subjected to critical analysis. Organ procurement modifications, driven by a need orientation toward closing the gap between actual and desired levels of performance, may have adversely affected performance. The case of liver transplantation suggests the need for improved institutions and mechanisms for evaluating new surgical procedures. Finally, states that confront the need to meet a binding budget-balancing requirement may allocate funds away from expensive medical procedures that benefit the few toward basic services that benefit the many; the Oregon and Virginia Medicaid programs exemplify this point.     

Is there a rationale for regionalizing organ transplantation services?

This paper explores issues in the designation of centers to provide organ transplantation procedures and aftercare, a decision faced increasingly by policymakers, planners, and payers. As background for consideration of the regionalization of organ transplantation services, an array of models of regionalization of health services, ranging from full-scale vertical integration to market-enhancing information provision, is described. In the United States, regionalization has mainly followed the designation model within the certificate-of-need system; vertical integration has been adopted only in limited ways. Next, the authors' review of current approaches to the regionalization of organ transplantation centers by public and private payers indicates that designation of centers is increasing, although the empirical evidence concerning the classes of hospitals upon which designation decisions rest is weak. The authors then review the literature on the relationship between volumes and outcomes on surgical services with particular reference to organ transplantation, which on the whole suggests that a relationship between volumes and outcomes exists. Original empirical analysis of data on kidney transplants that were secured from the Health Care Financing Administration is then presented. The study of the effects of hospital and surgeon volumes on graft and patient survival and of the effect of volume on charges found no systematic influence of hospital or surgeon volumes on graft or patient survival. Some evidence that charges are lower for larger centers was found. The authors conclude that the evidence implies that using volume as the provider characteristic upon which to base designation of transplantation centers is problematic, at least for kidney transplants. Steps policymakers might take to ensure quality of transplantation services is discussed in the final section.     

Laypeople's ethical concerns about a New Israeli organ transplantation prioritization policy aimed to encourage organ donor registration among the public

A new policy recently enacted in Israel promises preferred status in receiving organs for transplantation to individuals who register to be organ donors and to their close family members. Proponents believe it will increase the supply of organs for transplantation from the deceased. Ethical issues were raised in government committees appointed to discuss the policy before its approval, but discussions among laypeople were not solicited. This study aimed to elicit laypeople's views about the policy by conducting thirteen group interviews and thirty-six individual interviews. Participants included religious and nonreligious people, immigrants, and Arabs. Some participants thought the law would contribute to fairness by prioritizing those willing to give, but others articulated ethical concerns that were not emphasized by scholars, in particular that the policy would add to the erosion of social solidarity, increase divisiveness, and enable people to abuse the system. Mistrust in the health care system emerged as a prominent reason for not registering as an organ donor. Implications about the importance of transparency in the organ transplantation system as a basis for an information campaign, social norms regarding organ donation, and the public's involvement in policy issues on organ donation are discussed.     

Public and private regulation of organ transplantation: liver allocation and the final rule

The allocation of cadaveric organs for transplantation in the United States is governed by a process of private regulation. Through the Organ Procurement and Transplantation Network (OPTN), stakeholders and public representatives determine the substantive content of allocation rules. Between 1994 and 2000 the U.S. Department of Health and Human Services conducted a rule making to define more clearly the public and private roles in the determination of organ allocation policy. Several prominent liver transplant centers that were losing market share as a result of the proliferation of transplant centers used the rule making as a vehicle for challenging the local priority for organ allocation inherent in the OPTN rules. The process leading to the final rule provides a window on the politics of organ allocation. It also facilitates an assessment of the strengths and weaknesses of private rule making. Overall, private rule making appears to be relatively effective in tapping the technical expertise and tacit knowledge of stakeholders to allow for the adaptation of rules in the face of changing technology and information. However, the particular system of representation employed may give less influence to some stakeholders than they would have in public regulatory arenas, giving them an incentive to seek public rule making as a remedy for their persistent losses within the framework of private rule making.     

"Body property": challenging the ethical barriers in organ transplantation to protect individual autonomy

One of two articles related to the current organ shortage, this article advocates the need for legislation to recognize organs and tissues separated from the body as a distinct category of personal property. After addressing the legislative history of organ procurement and psychological barriers to donor consent, the article examines the importance of separating the lifetime rights of ownership in our own bodies from postmortem rights. Ultimately, the author proposes a futures market approach to this problem in which individuals before death, or surviving family members after death, are permitted sell the decedent's organs in a private contract.