Yesterday marks the thirtieth anniversary since passage of the National Organ Transplant Act (NOTA) and, as noted by Eric Posner over at Slate, no one is celebrating. Instead, the growing gap between kidney need and supply, documented by Phil Cook and mehere and depicted in the figure above right, has prompted increasing calls for changes to NOTA’s ban against valuable consideration in exchange for a human organ. Once the province of a small number of “kooky” academics, today even many transplant professionals join the call for reform. Recently, for example, the President of the American Society for Transplantation called on the association to consider “incentives, including but not limited to financial ones,” for organ donation and a widely-circulated letter from bioethicists and health experts to President Obama and other top government officials calls for pilot studies of benefits to organ donors.
On this anniversary of the statute, it’s worth revisiting NOTA’s legislative history (which I discuss in more detail here). Although NOTA is today most often discussed in connection with its prohibition of “valuable consideration,” it is important to remember that such a ban was not the central purpose of the statute, and was added to the statute relatively late. Original drafts of NOTA addressed only the development of a national organ procurement and distribution system. The prohibition on compensated organ donation was added later, in response to a Washington Postarticle about the plans of H. Barry Jacobs, a Virginia physician whose medical license had previously been revoked for Medicare fraud, to establish a for-profit organ brokerage.
Perhaps because the “valuable consideration” language was a late addition to the statute in response to a specific concern, NOTA’s legislative history addresses the term “valuable consideration” only with respect to that concern, and does not provide much insight into the term’s breadth beyond the commercial exchange context. Indeed, a careful reading of the legislative history of NOTA suggests that Congress paid little, if any, attention to the possible meanings of and ambiguities in the phrase “valuable consideration.”
This apparent lack of Congressional attention to statutory language that, while of little import at the time, has assumed great significance in the face of the persistent kidney shortage, matters a great deal. Concerns about running afoul of NOTA regularly impede innovations designed to address the kidney shortage, despite the lack of a clear congressional intent to prohibit these transactions. For example fears of violating NOTA put a halt to Pennsylvania’s planned pilot program to reimburse funeral expenses and have caused uncertainty about the validity of specific practices, such as kidney swaps, that bear little resemblance to the commercial transactions Congress appeared to have in mind when passing the statute.
In short, a vast academic literature addresses “valuable consideration” under NOTA. Commentators debate the meaning of the term and what Congress must have intended with this ambiguous language. But my analysis suggests that Congress, in passing NOTA, only considered the term “valuable consideration” in the context of a very specific and immediately salient threat involving for-profit, commercial exchanges.
Congress could give us all a nice NOTA birthday gift by amending the statute to specifically permit the types of innovations currently being proposed from a number of NOTA critics, none of which involve the type of profit-seeking kidney brokers that originally prompted the “valuable consideration” ban. Barring that, as I previously discuss in this earlier series of posts, uncertainty regarding NOTA’s scope is likely to continue to impede innovation, exacerbate the kidney shortage, and produce unnecessarily high rates of death and disability from kidney failure.
In “celebration” of the anniversary, I plan to be back this week with a few more NOTA-related posts.