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The Waiting Game: How States Can Solve the Organ-Donation Crisis

Posted by on Saturday, March 30, 2019 in Notes, Volume 72, Volume 72, Number 2.


Thousands of patients in the United States live in limbo every day waiting for a lifesaving organ transplant, and the gap between the number of people who need a transplant and the number of available organs widens every year. Every state currently allows individuals to unilaterally indicate their intent to donate their organs upon death, but in practice, family members are frequently allowed to override the express intentions of decedents. In addition, the current U.S. “opt-in” system fails to reach its full potential because many eligible decedents never express their desires to become or not to become organ donors, and family members refuse to consent to donation or cannot be contacted in time. This Note argues that states should again take the lead in organ-donation regulation to solve the organ-shortage crisis and proposes a twofold solution for states to adopt. First, states should switch to a presumed-consent, or opt-out, model. Second, states should implement a monitoring and enforcement mechanism through which state attorneys general and state health departments enforce first-person authorization. Organ procurement organizations should be required to adopt bylaws requiring their strict compliance with decedents’ wishes, and a failure to do so would give state attorneys general grounds to sue for breach of 501(c)(3) status obligations. The result would be to increase the supply of viable organs for transplant by interpreting an individual’s failure to opt out as a desire to donate and to enforce this choice by not allowing anyone to override it.

Meredith M. Havekost