Incentives for Organ Donors

Apologies for this unusually long post: to make sense of this you have to look at bits of Federal legislation. The one sentence summary is that Senator Arlen Specter is preparing to propose an amendment to the National Organ Transplant Act to allow States to offer some (limited) incentives for organ donation...

The Wall Street Journal has an editorial today on incentives for organ donors: Wait-Listed to Death: Improving incentives for organ donations.
It is written in support of an amendment to the National Organ Transplant Act of 1984 being proposed by Senator Arlen Specter, part of which famously stated:

"TITLE 111-PROHIBITION OF ORGAN PURCHASES
SEC. 301. (a) It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce."

The WSJ editorial observes that under current interpretation of the Act,
"Kidney transplant recipient Sally Satel has noted that burial and cremation expenses can be provided when a body is donated to science -- as long as it isn't used to save the life of a current patient."

Because the phrase "valuable consideration" could include much more than cash payments, the NOTA has already been amended to make clear that it does not preclude kidney exchange. The Charlie W. Norwood Living Organ Donation Act [Public Law 110-144] signed into law in December, 2007, amends the sentence of the NOTA quoted above by saying
"Section 301 of the National Organ Transplant Act (42 U.S.C.274e) is amended—(1) in subsection (a), by adding at the end the following:‘‘The preceding sentence does not apply with respect to human organ paired donation.’’"
(Note: the phrase "paired donation" is used in official circles to avoid the use of the word "exchange" in kidney exchange, to further separate it from any involvement with "valuable consideration.)

The amendment to be proposed by Senator Specter includes a further amendment of that sentence. (I don't think the proposed bill is on the web yet, this is a quote from a preliminary version that crossed my desk.)
"Section 301 of the National Organ Transplant Act4 (42 U.S.C. 274e) is amended—5 (1) in subsection (a), by striking the last sentence and inserting ‘‘The preceding sentence does not apply with respect to human organ paired donation or a government incentive to increase the supply of donated human organs.’’" (emphasis added). The proposed amendment also increases penalties for non-governmental buying and selling of organs for use in transplantation.

The WSJ notes that the amendment is motivated in part by the fact that
"After Pennsylvania passed a pilot program in 1994 to pay burial expenses for organ donors, state employees refused to implement the law for fear of federal prosecution."

However the italicized portion of the amended sentence is arousing some opposition because it seems to open the door to other sorts of government incentives, of a kind recently opposed by Pope Benedict and by the National Kidney Foundation.

Debate over the proposed bill looks likely to be a public forum in which issues of repugnant transactions will play a visible role.

Partly in anticipation of this (and after I posted the above), Sally Satel informs me that I've been working from an early draft of the proposed amendment. The new draft includes a summary stating
"A BILL
To prohibit human organ trafficking, to prohibit the misuse of immigration and government identification documents in furtherance of organ trafficking, to prohibit attempted organ trafficking, to mandate restitution for victims of organ trafficking, to create a civil remedy for victims of organ trafficking, and to clarify that laws that honor and reward organ donation are not preempted by Federal criminal law and acceptance of such government benefits is not criminal." (emphasis added)

The relevant parts of the bill (see para 3 below) now appear to rule out cash transfers even from government programs (although I'm not a lawyer...)"

"‘‘(2) GOVERNMENTS ENCOURAGING ORGAN DONATION.—This section and section 301 of the National Organ Transplant Act (42 U.S.C. 274e) shall
not—
‘‘(A) apply to actions taken by the Government of the United States or any State, territory, tribe, or local government of the United States to encourage organ donation; or
‘‘(B) prohibit acceptance of such a government benefit.
‘‘(3) CERTAIN STATE LAWS.—This section shall be construed to preempt any State law that authorizes the payment of cash to induce organ donation or otherwise authorizes the sale or purchase of a human organ for use in human transplantation.’’"