Encouraging Living Kidney Donations

Every year, 126,000 people in the United States are diagnosed with end-stage renal disease (ESRD), which requires dialysis or a kidney transplant as treatment. About 43,000 of these patients will die prematurely because they cannot get a transplant.

Dialysis typically gives an ESRD patient only five more years of life, but a transplant from a living donor generally increases life expectancy by 12 to 20 years. Although kidney transplants could benefit 50 percent of patients diagnosed with ESRD—extending the lives of 63,000 people per year—only about a third of those patients receive new kidneys annually. Experts predict that present numbers of deceased kidney donations will not increase substantially, making expansion of living donor transplants the only practicable solution to ending the kidney shortage.

The 1984 National Organ Transplant Act (NOTA) governs living kidney donation at the federal level. This law, along with the U.S. Department of Health and Human Services’s accompanying regulation, created the Organ Procurement and Transplantation Network, which maintains “a national system for the uniform matching of organs with potential recipients.”

NOTA bans the trade of “any human organ for valuable consideration,” criminalizing the sale of organs for transplantation. Although some scholars argue that the ban contributes to the kidney shortage, others caution that legalization would lead to exploitation and coercion of donors.

Advocates of living donation claim that the relative ease of donating a living kidney warrants revisions to the NOTA ban. These advocates emphasize that a donor’s remaining kidney compensates for the one lost and that donors need only make minor lifestyle changes after the procedure. Most laparoscopic surgeries, the preferred operation for donating kidneys, involve small incisions, require short recovery times, and have less than a 1 percent fatality rate.

This week’s Saturday Seminar highlights proposals to encourage living kidney donations.

Racial Inequality

• In a paper published in the American Journal of Nephrology, Kimberly Harding of Monarch Innovation Partners and several coauthors explain the health disparities that African Americans experience in ESRD and kidney transplantation. They note that African Americans are overrepresented on kidney waiting lists, wait longer for a transplant than white Americans, and have less access to living donor kidneys. Harding’s team advocates policy interventions for culturally sensitive patient education about living kidney donation, “health insurance benefits that cover the costs of transplant-related immunosuppressant medications for life,” and elimination of the out-of-pocket costs associated with living donation.

Kidney Chains and Vouchers

• In an article published in the Journal of Health and Biomedical Law, Albany Law School’s Evelyn M. Tenenbaum contends that kidney voucher programs are a “binding contract that can be enforced by the courts.” A kidney voucher program is an asynchronous trade in which a donor gives a kidney in exchange for a voucher that allows the named recipient to “obtain a live donor kidney at the optimal time,” even if the optimal time is years later. Tenenbaum argues that voucher programs are enforceable once the donation occurs because the agreements are unilateral contracts, a type of agreement that is binding once people perform the action that they promised. According to Tenenbaum, recognizing kidney vouchers as enforceable contracts will reassure donors, who must trust that the vouchers will be honored for the program to operate effectively.
• NOTA should be amended to allow payments to some kidney donors, William and Mary Law School’s Nathan B. Oman argues in a Law and Contemporary Problems article. He proposes allowing financial compensation for initial donors in a type of exchange called a non-simultaneous extended altruistic donation (NEAD). A NEAD chain is an extended string of kidney transplants that connects a series of prospective donors. If, for example, donor A wishes to give a kidney to incompatible recipient A, a NEAD chain can connect recipient A with donor B or donor C, who also wishes to give a kidney to a recipient who is not a compatible match. Donor A, however, could be a match with recipient B, and donor B may be a match with recipient C, and so on. Importantly, the first donor on a NEAD chain does not desire or expect to receive a kidney in exchange for the donation. The current prohibition on cash incentives, Oman argues, limits the number of potential altruistic donors who would start a NEAD chain. He claims that allowing payment for these initial donors would “increase the number of life-saving transplants without creating a full-fledged market in human organs.”

Benefits for Donors

• In an essay in The Regulatory Review, Damini Kunwar, a recent graduate of the University of Pennsylvania Law School, analyzes a proposed rule from 2019 by the Health Resources and Services Administration. Aiming to increase living organ donation by reducing financial barriers, the proposal would expand reimbursement of living donors’ expenses to include costs such as lost wages and childcare. Opportunities for the public to submit comments on the proposed rule closed in February 2020, but the agency has not yet issued a final rule.
• In a recent episode of the Taboo Trades podcast, Kimberly D. Krawiec of Duke University School of Law discusses advocacy for living kidney donors with Waitlist Zero’s Josh Morrison. Morrison argues that a public service model is the best way to increase kidney donation. He proposes giving living organ donors a benefit analogous to the G.I. Bill by offering benefits such as lifetime health insurance and an annual stipend. Morrison contends that this model could provide incentives to donors without commodifying people through a direct exchange.
• Should a federal tax credit exist to prompt organ donations? In a recent article published in Tax Notes, Sally Satel and Alan D. Viard of the American Enterprise Institute propose a federal tax credit of $50,000 for living donors and $5,000 for deceased donors. They argue that such a credit could encourage donation and reduce government expenditures by up to $10 billion annually. Although critics contend that a tax credit “commodifies the body,” Satel and Viard suggest that financial recognition would be a more universal public policy solution that could prompt organ donation and affirm donors with dignity for “contributing to the public good.”

Direct Compensation for Donors

• The United States should establish a regulated “living kidney vendor program” through which the government can buy and sell kidneys, argues Kristine D. Kuenzli of the United States Air Force Academy in an article in the Journal of Law and Commerce. Kuenzli proposes repealing the provisions of NOTA that prohibit organ purchases to enable the government to make payments for kidneys. “Kidneys should be the exception to NOTA because of the biological realities of the kidney,” she argues, noting that people can function normally with just one kidney. In addition to the need for government control of the proposed donor system, Kuenzli outlines other essential regulations, including a government-set price for kidneys and a minimum age requirement to donate.
• In a recent article published by the Osgoode Hall Law Journal, Nicola Lacetera of the University of Toronto discusses the ethics of financial incentives in markets for organs, blood, and other body parts and the balance between economic efficiency and morality in these transactions. In a survey of about 3,000 people, Lacetera found that 50 percent of participants initially supported payments for donations, a proportion that increased to 70 percent when participants were informed that permitting monetary compensation for donors could facilitate a significant increase in transplants. Lacetera cautions, however, that continued research is necessary to inform policymakers on how to increase organ donation in ways that are morally palatable to the public.