Professor Reid Kress Weisbord’s article astutely addresses the growing problem of demand outpacing supply for organ donations needed for lifesaving medical procedures. Professor Weisbord’s discussion of the debate surrounding whether compensation should be allowed for posthumous organ donations to encourage higher donation rates focuses on the parameters of a proposed regulatory system to respect the wishes of the donor. This respect for the decedent’s preference for whether their organs may be sold by his or her estate forms the foundation of the article and is referred to by Professor Weisbord as “anatomical intent.”
The article describes a system that would allow compensation for organ donations by striking a balance that both encourages donation by avoiding unnecessary hurdles, and yet still deters fraud and undue influence. Professor Weisbord addresses this balancing act by suggesting specific parameters for registration of anatomical intent that are “sufficiently secure to protect the donor but sufficiently simple to avoid deterring willing donors from registering their intent,” and default rules when no expression of anatomical intent has been made that “respect the autonomy, privacy, and religious liberty interests of non-donors by presuming that the decedent prefers to prohibit the postmortem sale of his or her bodily remains absent an affirmative indication of intent to donate.”
Professor Weisbord models his proposed registration process on the current gratuitous organ donation system, which includes over half of organ donor registrations coming from DMV registration, but he notes that security would have to be heightened to counter the increased incentives for abuse that a for-profit organ donation system could create. The article also notes that an over secure system can fall victim to inertial forces and procrastination, and uses the example of will formalities that while protecting the testator from undue influence also contributes to a majority of Americans dying without executing a will. Professor Weisbord suggests solutions that include adding security to the current system of organ donation registration and borrowing the less burdensome protections provided through will formalities to create “efficient procedures [that] would strike a sensible balance between security and simplicity.” A suggested system for organ donor registration is provided that would require in-person registration at a state DMV, and periodic re-registration of anatomical intent. Other protections suggested include requiring a one-on-one interview of the registrant by a DMV official that is recorded to both confirm and document anatomical intent.
In addressing default rules for when anatomical intent is not recorded prior to death, the article explores the benefits and drawbacks of opt-in versus opt-out default rules. In exploring whether majoritarian defaults, like those used in inheritance law, would be helpful in this context, the article notes that survey results show that a majority of individuals are in favor of organ donation. However, Professor Weisbord pays due respect to minoritarian views against organ donation, which often arise out of deeply rooted religious views or other convictions, in arguing that the default should be actual intent, and thus a person must affirmatively opt-in through registration for their organs to be sold after their death.
I highly recommend this article, which makes a well-reasoned argument for respecting donative intent and encouraging organ donation through a regulated commercial market of posthumously donated organs.
[Special thanks to the outstanding assistance of Jennifer Wissinger, J.D. Candidate May 2015, Texas Tech University School of Law, for her assistance in preparing this review.]