Kidney Allocation and the Limits of the Age Discrimination Act
Eidelson, Benjamin, The Yale Law Journal
Thousands of people die waiting for a kidney transplant every year in the United States. (1) Less well known, however, is that many people who do receive kidneys from deceased donors gain only a few years of life, because they were relatively old and in poor health to begin with. (2) Meanwhile, younger people who receive kidneys from older decedents often outlive their new organs, eventually returning to the waiting list for a second transplant. (3)
After years of planning and consultation, the Organ Procurement and Transplantation Network (OPTN), the government-chartered body responsible for allocating cadaveric organs in the United States, has proposed a new regime to address these misalignments and make better use of the scarce supply of kidneys. (4) The crux of the proposal, which was released for public comment in September 2012, is straightforward. Rather than simply giving kidneys to the patients who have been waiting the longest, the new system will allocate the highest-quality kidneys to the people for whom a transplant promises the most years of additional life. (5) The OPTN's Kidney Transplantation Committee estimates that this new system of "longevity matching" will wring an extra 8,380 years of life out of the nation's supply of cadaveric kidneys each year. (6)
Critics have charged the plan with age discrimination, since it will deliberately allocate high-quality kidneys to younger candidates at the expense of older candidates with equal or greater medical need. (7) These allegations raise significant legal and moral questions, and the debate they have sparked offers a revealing vantage point on the ways discrimination is conceptualized within and outside the law.
As a constitutional matter, age discrimination is insulated from judicial scrutiny by the Supreme Court's longstanding conclusion that the aged do not constitute a "suspect class." (8) Federally funded programs, however, are expressly forbidden from engaging in age discrimination by the Age Discrimination Act (ADA) of 1975. (9) Although this statute "has seldom been cited or litigated," (10) there is little question that the organ transplantation network is subject to its requirements. Indeed, federal officials warned that an earlier version of the OPTN proposal, which would have directly matched candidates with organs of comparable age, could violate the ADA. (11) The OPTN responded by scrapping the draft plan, acknowledging that it "may be perceived as age discrimination." (12) While the new proposal does away with direct pairing of donors and recipients by age, it continues to take account of age in calculating a patient's "estimated post transplant survival" score, which in turn determines her access to high-quality kidney. (13) Some have called for Congress to intervene and exempt the new plan from the ADA altogether if necessary to ensure its legality. (14)
In Part I of this Comment, I consider whether this new scheme violates the ADA. This analysis traverses largely uncharted terrain, interpreting a statute that "has been virtually forgotten since its enactmento." (15) My conclusions are correspondingly tentative. What is clear, however, is the narrow conception of wrongful discrimination that animates the law. In essence, the ADA asks how closely a proposed age-based means fits a program's ends, deeming age classifications impermissibly discriminatory if the fit is too loose.
In Part II, I explore a symbolic dimension to discrimination claims that the ADA therefore fails to squarely confront. As recent scholarship has recognized, to claim that a practice is wrongfully discriminatory is often not to allege that it is instrumentally irrational, but to assert that its public meaning denigrates the equal worth of some persons. Disputes over discriminatory rationing are thus not only about forswearing arbitrary inferences, as the ADA imagines, or about equitable distribution, as many bioethicists seem to suppose, but are also a site of contestation over how to publicly respect people as equals. …