Chapter 6.B.1  Mandates or Incentives for Organ Donation

In addition to additional facts for McFall v. Shimp, this page has notes for p.634, note 3, p.634, note 4, p.635, note 6, and p.638, notes 1 and 2.

Mc Fall v. Shimp

In Alan Meisel & Loren H. Roth, Must a Man Be His Cousin's Keeper?, 8(5) Hastings Center Rep. 5 (1978), the authors provide some information about Shimp's decision to decline donation.  Newspaper accounts reported strong pressures from Shimp’s wife and mother for him not to donate and that Shimp explained his refusal in terms of the risks of anesthesia, concerns that the procedure would aggravate existing aches and pains, and the possibility that his job-related exposure to chemicals might interfere with the regeneration of his bone marrow.

p.634, note 3

Like the Sixth Circuit in Brotherton, the Ninth Circuit has also held that states must provide due process of law to family members before taking a decedent's corneas.  In that case, the coroner removed corneas without the knowledge of the parents and without an attempt to notify them and request consent.  Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002).  While the court expressed great concern with an absence of pre-removal process, it left for future proceedings exactly what process is due.  Before the Newman litigation commenced and in response to an article in the Los Angeles Times about alleged trafficking in corneas by the Los Angeles County Coroner’s Office, California amended its cornea removal statute to require consent by the decedent or a surrogate decisionmaker.  1998 Cal ALS 887; Senate committee report.  The current statute can be found at Cal. Gov’t Code § 27491.47 (2007).  (Mr. Newman had been under the custody of the Los Angeles County Coroner’s Office when his corneas were taken.)  But California still permits retrieval of organs and other tissues in coroners’ cases in the absence of consent if there is no known objection.  Cal. Health & Safety Code § 7151.5 (2007).

In response to Brotherton and Newman, the Revised Uniform Anatomical Gift Act (2006) removes authority for coroners to release corneas or other tissues or organs.  See the discussion of Sections 22 and 23 in the Summary of the Changes in the Revised Act.  The Act also expands the list of persons who may consent to organ donation after a person’s death to include adult grandchildren, adults who “exhibited special care and concern for the decedent,” and health care agents.  Rev. Unif. Anatomical Gift Act §9(a).

As Powell and Brotherton indicate, a decedent's corneas or other tissues cannot be taken over the known objection of the decedent or the decedent's family. In accordance with this principle, a North Carolina court of appeals reversed a summary judgment in favor of the hospital when a decedent's eyes were removed during an autopsy, and the family had authorized the autopsy but (according to the allegations) had expressly stated their opposition to having any organs or tissues removed from the body. Massey v. Duke University, 503 S.E.2d 155 (N.C. App. 1998).

p.634, note 4

The Ninth Circuit decided a case in which a family sued a hospital and transplant donor network over their removal of a decedent's heart, liver, kidney and pancreas without the family's permission. The decedent was found on the side of the road in California after suffering severe head trauma, and he was misidentified as a resident of New York. When law enforcement officials were unable to locate family members during a 40 hour search, they released the body for organ retrieval. It turned out that the decedent was a tourist from Denmark, and his family brought their claims. The court found for the hospital and transplant donor network, holding that the coroner, rather than the hospital or donor network, had the duty to the family to make a reasonable effort to locate them. (The coroner had been dismissed from the case because the claim against the coroner was not filed in accordance with the requirements of the California Tort Claims Act for money damages from local public entities.) Jacobsen v. Marin General Hospital, 192 F.3d 881 (9th Cir. 1999).

California also will allow removal of organs in the absence of objection or consent when someone dies in the hospital, and the hospital is unable to locate a family member, guardian or health care agent, as long as the hospital has made a reasonable effort for at least 12 hours to locate a representative of the decedent.  Cal. Health & Safety Code § 7151.5(b) (2007).  States that allow organ retrieval in the absence of objection or consent for decedents under the custody of coroners or medical examiners often also allow organ retrieval in the absence of objection or consent for decedents under the custody of public health officers.  See, e.g., Cal. Health & Safety Code § 7151.5(c) (2007); Hawaii Rev. Stat. § 327-4(b) (2006); Minn. Stat. § 525.9213(b) (2006); Mont. Code Ann. § 72-17-215(2) (2005); N.D. Cent. Code, § 23-06.2-04(2) (2006); W. Va. Code § 16-19-4(b)  (2007).

p.635, note 6

In a study of the number of potential organs retrievable from brain-dead persons, researchers found that the lack of consent to a donation request was the primary reason for the gap between the number of potential donors and the number of actual donors.  Ellen Sheehy, et al., Estimating the Number of Potential Organ Donors in the United States, 349 New Eng. J. Med. 667, 667, 672 (2003).

p.638, note 1

In January 2004, Wisconsin enacted a state tax deduction for live organ donors that passes muster under federal law.  Organ donors can deduct up to $10,000 from adjusted gross income for travel expenses, lodging expenses, or lost wages that are not reimbursed.  (A donor can claim the deduction only once).  Wis. Stat. § 71.05 (10) (i) (2006).  Under federal law, "valuable consideration" may not be paid for a human organ, but valuable consideration does not include "the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ."  42 U.S.C. § 274e (c) (2).  With regard to the concern that payments will have a coercive effect on poor people, why is Wisconsin’s approach particularly good?

p.638, note 2

For empirical evidence on organ selling by living persons in a country where the practice is prohibited by law, see Madhav Goyal, et al., Economic and Health Consequences of Selling a Kidney in India, 288 JAMA 1589 (2002) (finding that the sale of a kidneydoes not lead to a long-term economic benefit and may be associated with a decline in health”).

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