Organ Conscription: How the Dead Can Save the Living
Schwark, David, Journal of Law and Health
I. INTRODUCTION II. HISTORY OF ORGAN DONATION IN THE UNITED STATES A. The Uniform Anatomical Gift Act B. The National Organ Transplantation Act C. Consequences of the Acts 1. Organ Shortage 2. Black Market III. POSSIBLE SOLUTIONS A. Organ Market B. Routine Request C. Presumed Consent IV. PROPOSED SOLUTION A. Organ Conscription B. Concerns 1. The Fifth Amendment 2. Religion 3. Commodification 4. Loss of Autonomy V. CONCLUSION
On his third tour of duty in Afghanistan, just two weeks before he was scheduled to return home, Army Ranger Corporal Ben Kopp was mortally wounded while fighting the Taliban. (1) His heroic actions saved the lives of at least six of his fellow Rangers. (2) However, his heroism did not end there. Because he was an organ donor, Corporal Kopp may save, improve, or prolong the lives of seventy-five more people. (3) One of those fortunate people, Judy Meikle, was desperately in need of a heart transplant. (4) Now, because of Corporal Kopp's heroism, Judy says that everything has improved since the transplant) "I don't think there can be a better tribute to Jill's [Ben's mother] generosity and Ben's--literally in my case-- Ben's big brave heart, than to have his heart keep beating inside me." (6) Corporal Kopp's mother explained, "To experience that joy along with my sorrow--that's got to be what a miracle feels like." (7)
Although many Americans are not capable of the heroism required to risk their lives in the military, anyone can be a hero by donating his or her organs when he or she passes away. Unfortunately, very few Americans donate their organs: According to the U.S. Department of Health and Human Services, only 8,019 people who died in 2006 donated their organs. (9) That represents only 0.33%, or three in 1,000, of the people who died in 2006. (10) This low number has led to a current organ waiting list of 110,127 people. (11) On average, eighteen people die each day while waiting for an organ. (12) Often, after waiting on a list for an organ, people are removed from the waiting lists because their conditions have deteriorated to the point where organ transplantation would not save them. (13) In 2010, new entrants on the waitlist are likely to wait ten years for that organ. (14)
This deficit is the result of two factors. First, the Uniform Anatomical Gift Act and the National Organ Transplant Act prohibit the sale and purchase of any organ or tissue for valuable consideration. (15) Not only does this discourage donation, but it also takes away a crucial property right from individuals, the right to exchange for valuable consideration. (16) Second, some estimate that 30% of Americans do not even know how to become organ donors. (17) These facts indicate that the current system of voluntary, altruistic donation has failed.
Recently, Israel, another country struggling with organ deficits, decided that its voluntary, altruistic system was not working and changed it. (18) Now, the families of the deceased organ donors are permitted to receive up to $13,400 that can be used to memorialize the deceased. (19) In doing so, Israel has become the first country in the world to allow deceased organ donors to be rewarded. (20) This plan, however, may not go far enough towards alerting the problem of organ shortages. (21)
A mandated organ donation system that compensates the families of the donors is the best way to ensure that people waiting for organs do not die needlessly, and also ensures that individuals' Fifth Amendment rights are not violated. Mandating donation would guarantee the availability of organs, which could prevent hundreds of deaths each year.
Although mandatory donation may seem like an extreme government measure, without it, people will continue to die because of a lack of organs. Therefore, to ensure that individuals are not unduly burdened by the taking of their organs, there must be just compensation. …