Academic journal article Houston Journal of International Law

Organ Procurement: Various Legal Systems and Their Effectiveness

Academic journal article Houston Journal of International Law

Organ Procurement: Various Legal Systems and Their Effectiveness

Article excerpt


Throughout the world, organ transplantation has emerged as an important medical advancement in solving the problem of end-stage organ failure. Over the years, the success rates of these transplants have significantly improved, providing the critically ill with a chance for a new life.(1) For example, medical science has developed immunosuppressant drugs which greatly increase compatibility between donated organs and their recipients.(2) Other advancements include preservation techniques that extend organ life outside of the donor's body, more effective recipient registries, and increases in capable transplant teams.(3) Some new technologies are raising ethical and legal concerns among commentators. For example, British transplant surgeon Dr. Hany Riad pioneered elective ventilation, a process by which dying patients are sustained by respirators for brief periods to keep their internal organs alive.(4) Although the practice was made unlawful, causing scarcity in available organs, both the British Medical Association and the British Transplantation Society believe the practice is ethical so long as the donor's relatives give consent.(5)

Despite the advancements, the demand for organs significantly exceeds the available supply in countries around the world.(6) This organ shortage is the most devastating obstacle that organ transplant patients face. As technology continues to expand, the number of patients diagnosed as potential organ transplant recipients increases.(7) The disparity between supply and demand often leads to unethical and illegal methods of procuring needed organs. In many instances, the impoverished members of society supply organs for the privileged classes who can afford them.(8) Poor people are often coerced to sell their kidneys through unethical and unsafe procedures for a meager fee.(9) The organ deficit forces medical providers to decide which patients will receive life sustaining organs and which will not.(10) Desperate patients purchase organs on the black market when they feel they can no longer afford to wait for an organ to be supplied through legal channels.(11)

In recognition of the human rights abuses that are occurring to satisfy the demand of anxious organ recipients, many countries are passing laws to protect the exploited.(12) Recently, several European countries met in Spain to sign a treaty to protect living donors.(13) The council agreed that donor consent was necessary for any organ procurement law and that financial gain in the organ market was highly unethical.(14) The World Health Organization has also condemned the trade of human organs, asking member nations to fight organ trafficking.(15) Reports of underground organ brokers preying on children has spurred the United Nations to investigate allegations of an international kidnapping ring in Latin America.(16)

Fortunately, a sufficient quantity of potentially transplantable organs does exist to satisfy the demand for nearly every type of transplant.(17) The challenge is implementing an organ procurement policy that will maximize the supply while at the same time safeguarding human rights. Part II of this comment explores a controversial Brazilian law that was designed to increase the supply of transplantable human organs. This law was later repealed.(18) The advantages and disadvantages of the law will be presented as will the reaction from lawmakers, scholars, the medical community, and the public. Part III describes several different approaches to organ procurement in use throughout the world. Part IV outlines the strengths and weaknesses of various organ procurement policies. Part V examines the market system of organ procurement in more detail and describes various proposals that have been advanced in favor of adopting such a system. Part VI concludes that a market system may well be a viable solution to the desperate shortage of organs.


The demand for organs overwhelmingly exceeds supply in the Brazilian organ market. …

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