1 See infra Part I.

2 See infra Part II.

3 See infra Part II.

4 See infra Part II.

5 See infra Part III.

6 See infra Part III.

7 National Organ Transplant Act of 1984 §301, 42 U.S.C. § 274e (2012).

8 See infra Part III.

9 Morley, Michael T., Note, Increasing the Supply of Organs for Transplantation Through Paired Organ Exchanges, 21 Yale L. & Pol'y Rev. 221, 255 (2003)Google Scholar.

10 See infra Part IV.

11 Joshua J. Augustine et al., Kidney and Pancreas Transplantation, in Primer on Transplantation 129, 129 (Donald Hricik ed., 3^rd ed. 2011) (“the first successful kidney transplantation [was] performed between identical twin brothers by Dr. Joseph Murray and colleagues at the Peter Bent Brigham Hospital in Boston”); Ommen, Elizabeth S. et al., Medical Risks in Living Kidney Donors: Absence of Proof Is Not Proof of Absence, 1 Clinical J. Am. Soc'y Nephrology 885, 885 (2006)CrossRefGoogle ScholarPubMed (“In 1954, the first successful kidney transplantation was performed using a kidney from a living donor: the identical twin of the recipient.”); Williams, Kristy Lynn et al., Just Say No to NOTA: Why the Prohibition of Compensation for Human Transplant Organs in NOTA Should Be Repealed and a Regulated Market for Cadaver Organs Instituted, 40 Am. J.L. & Med. 275, 278-79 (2014)Google Scholar (“The first long-term successful kidney transplant occurred in 1954, when a kidney was transplanted from a healthy twin to his brother who was suffering from advanced kidney disease.”).

12 Kallich, Joel D. & Merz, Jon F., The Transplant Imperative: Protecting Living Donors from the Pressure to Donate, 20 J. Corp. L. 139, 140 (1994)Google ScholarPubMed.

13 Id. at 140.

14 See Dicken S. C. Ko & Francis L. Delmonico, Medical Evaluation of the Living Donor, in Kidney Transplantation 99, 99 (6th ed. 2008).

15 Susan V. Fuggle & Craig J. Taylor, Chapter 10: Histocompatibility in Renal Transplantation, in Kidney Transplantation, supra note 14, at 140, 140 (“Forty percent to 50 percent of cadaver grafts were lost … as a result of immediate or early graft failure owing to irreversible rejection in the first year, and, thereafter, there was an insidious decline in graft function.”); see also E-mail from Dr. Bernard Lytton, M.B.F.R.C.S., Donald Guthrie Professor of Surgery Emeritus, Yale Univ. Sch. of Med., to Evelyn M. Tenenbaum (Oct. 9, 2015) (on file with author) (noting that early kidney transplants also failed due to “problems of infection arising from the large doses of steroids that were given to supplement the immunosuppressive drugs,” and that consequently “[a]fter a few years, the dose of steroids was greatly reduced with a commensurate improvement in outcomes”).

16 Ko & Delmonico, supra note 14, at 99 (“[M]any dialysis patients were hesitant to consider a transplant unless a related donor was available.”).

17 See Ayres, Ian et al., Unequal Racial Access to Kidney Transplantation, 46 Vand. L. Rev. 805, 852 (1993)Google ScholarPubMed (“The introduction of cyclosporine in 1984 revolutionized transplantation, markedly improving results in renal transplantation, and for the first time making heart and liver transplants practical.”)

18 See Augustine et al., supra note 11, at 129 (“The introduction of cyclosporine in the early 1980s was associated with … a proliferation of transplant centers, and the serious development of extrarenal organ transplantation.”); Williams et al., supra note 11, at 279 (“The discovery of cyclosporine led to an explosion of organ transplants in the 1980s and 1990s.”).

19 See Augustine et al., supra note 11, at 129 (attributing some of the current success of kidney transplantation to “[g]eneral advances in medical science, including improvements in surgical techniques and the development of effective antimicrobial agents”); Garcia, Guillermo et al., The Global Role of Kidney Transplantation, 28 Nephrology Dialysis Transplantation 1, 2 (2012)CrossRefGoogle ScholarPubMed (noting that in the last twenty years, there has been a “progressive improvement in clinical outcomes” for kidney transplant recipients due to a better understanding of immunosuppressant drugs and organ matching).

20 Sheldon, Stephen & Poulton, Kay, HLA Typing and Its Influence on Organ Transplantation, in Transplantation Immunology 165 (Hornick, Philip & Rose, Marlene eds., Humana Press 2006)Google Scholar (“The surgical event of kidney transplantation has been developed to the point of becoming a relatively routine procedure.”); see also Christine DiMaria & Marijane Leonard, End-Stage Kidney Disease, Healthline (Nov. 24, 2015), http://www.healthline.com/health/end-stage-kidney-disease#Overview1 [http://perma.cc/L6MG-S526] (indicating the necessity of transplantation because “[a] diagnosis of end-stage renal disease means that you are in the final stage of kidney disease and your kidneys are not functioning well enough to meet the needs of daily life”).

21 Garcia et al., supra note 19, at 1 (noting that kidney transplantation “is now routine clinical practice in more than 80 countries[,]” with the “largest numbers of transplants [being] performed in the [United States], China, Brazil, and India”).

22 U.S. Dep't of Health & Human Servs., United States Organ Transplantation 13 (2012), http://srtr.transplant.hrsa.gov/annual_reports/2011/pdf/2011_SRTR_ADR.pdf [http://perma.cc/P27F-BJV7] (“As of June 30, 2011, 164,200 adults in the US [sic] were surviving with a functioning kidney graft ….”).

23 See, e.g., Morley, supra note 9, at 221 (noting that “[e]ach year, thousands of preventable deaths occur due to an inadequate supply of organs for transplantation”); Kevin Sack, Transplant Brokers In Israel Lure Desperate Kidney Patients to Costa Rica, N.Y. Times (Aug. 17, 2014), http://www.nytimes.com/2014/08/17/world/middleeast/transplant-brokers-in-israel-lure-desperate-kidney-patients-to-costa-rica.html?_r=0 [http://perma.cc/563Z-DVWT] (“The supply of transplantable organs [worldwide] is estimated by the World Health Organization to meet no more than a tenth of the need.”)

24 See, e.g., Smith, J. M. et al., Kidney, Pancreas and Liver Allocation and Distribution in the United States, 12 Am. J. Transplantation 3191, 3191 (2012)CrossRefGoogle ScholarPubMed (“As of June 15, 2012, more than 99 000 [sic] people were waiting for a deceased donor kidney ….”); National Data Query, U.S. Dept. Health & Human Servs., https://optn.transplant.hrsa.gov/converge/latestData/step2.asp, (choose “Waiting List” under Category; then choose “Candidates” under Count; then follow “Overall by Organ” hyperlink) (last visited Jan. 27, 2016) (listing 100,679 waiting list candidates in need of kidney transplants as of January 22, 2016).

25 See Kevin Sack, 60 Lives, 30 Kidneys, All Linked, N.Y. Times (Feb. 18, 2012), http://www.nytimes.com/2012/02/19/health/lives-forever-linked-through-kidney-transplant-chain-124.html?_r=0?register=facebook [http://perma.cc/2UAB-CJFT] (“While about 90,000 people are lined up for kidneys, fewer than 17,000 receive one each year, about 4,500 [sic] die waiting ….”).

26 See Morley, supra note 9, at 221 (“On an average day [in 2001], 15 people die[d] waiting for an organ that could have saved their lives—that's someone every 96 minutes.”); Organ Donation and Transplantation Statistics, Nat'l Kidney Found., https://www.kidney.org/news/newsroom/factsheets/Organ-Donation-and-Transplantation-Stats [http://perma.cc/A6B8-DL7U] (“In 2014, 4,761 [sic] patients died while waiting for a kidney transplant. Another 3,668 [sic] patients became too sick to receive a kidney transplant.”).

27 See Smith et al., supra note 24, at 3191 (“[T]he numbers of kidney and liver transplants have increased over the years, but this increase has not kept pace with the growing number of patients who need these transplants.”).

28 See Augustine et al., supra note 11, at 129 (“The number of patients wait-listed for a deceased donor kidney transplant has grown steadily over the past two decades.”); Lobas, Kelly, Living Organ Donations: How Can Society Ethically Increase the Supply of Organs?, 30 Seton Hall Legis. J. 475, 482 (2006)Google Scholar (“[T]he number of people with [ESRD] … has increased in the past twenty years causing the need for more organ procurement.”).

29 See U.S. Dep't of Health & Human Servs., supra note 22, at 12 (“Organ donation numbers are relatively flat and the waiting list continues to grow.”); Israni, Ajay K. et al., Incentive Models to Increase Living Kidney Donation: Encouraging Without Coercing, 5 Am. J. Transplantation 15, 15 (2005)CrossRefGoogle ScholarPubMed (“Despite the enormous demand for cadaveric kidneys, the number of renal transplants from cadaveric donors performed in the United States has remained relatively unchanged at approximately 9000 per year for the last 7 years.”); Sack, supra note 23 (“In the United States, the number of kidney transplants has remained static for a decade at 16,000 to 17,000 a year.”).

30 See Hippen, Benjamin & Matas, Arthur, Incentives for Organ Donation in the United States: Feasible Alternative or Forthcoming Apocalypse?, 14 Current Opinion Organ Transplantation 140, 141 (2009)CrossRefGoogle ScholarPubMed (“[I]mprovements in immunosuppression … has increased the number of patients who might benefit from transplantation compared with dialysis.”).

31 Health Pol. Pol'y & L. Garcia et al., supra note 19, at 2 (“The number of people known to have ESRD worldwide is growing rapidly, as a result of improved diagnostic capabilities and also the global epidemic of type 2 diabetes and other causes of chronic kidney disease (CKD).”) see also Rosen, Lara et al., Addressing the Shortage of Kidneys for Transplantation: Purchase and Allocation Through Chain Auctions, 36 J. Health Pol. Pol'y & L. 717, 718 (2011)Google ScholarPubMed (“[T]he current epidemic of obesity contributes to higher rates of diabetes and hypertension, which are important risk factors for ESRD.”); Sack, supra note 25 (noting that causes of kidney failure include “diabetes or high blood pressure or genetic disorders”).

32 Israni et al., supra note 29, at 15; see also Adams, Patricia L. et al., The Nondirected Live-Kidney Donor: Ethical Considerations and Practice Guidelines, 74 Transplantation 582, 582 (2002)CrossRefGoogle ScholarPubMed (“It is now evident that the annual number of available, deceased donors will not resolve the ongoing organ shortage.”); Ghods, Ahad J., Ethical Issues and Living Unrelated Donor Kidney Transplantation, 3 Iranian J. Kidney Diseases 183, 186-87 (2009)Google ScholarPubMed (“[E]ven if the organs of all potential brain-dead donors are utilized, the supply of kidneys would still be inadequate to meet the escalating demand.”).

33 Rosen et al., supra note 31, at 720 (suggesting that the “substantial decline (cumulatively 22 percent) in highway fatalities since 2005” will decrease the deceased donor organs available for transplant); see also Lobas, supra note 28, at 482 n.45 (“The supply of suitable organs decreased due to fewer deaths achieved by new laws requiring seat belts, controlling access to guns, and enforcement of Driving Under the Influence Laws.”).

34 See Hippen & Matas, supra note 30, at 141 (“[M]uch of the recent increase [in organs for transplantation] is accounted for by organs from extended-criteria donors, which offer significantly shorter graft survivals.”); Gretchen Reynolds, Will Any Organ Do?, N.Y. Times (July 10, 2005), http://www.nytimes.com/2005/07/10/magazine/will-any-organ-do.html [http://perma.cc/EGM8-RWXX] (“[T]ransplanting of what doctors refer to as ‘marginal’ or ‘extended criteria’ organs, organs that would once have been considered unusable, has increased considerably in the last several years.”).

35 Kulkarni, Sanjay & Cronin, David C. II, Ethical Tensions in Solid Organ Transplantation: The Price of Success, 12 World J. Gastroenterology 3259, 3260 (2006)CrossRefGoogle Scholar.

36 Reynolds, supra note 34 (“The UNOS classification … defines a marginal kidney as one that comes from a deceased person over 60 or one over 50 with two of three characteristics: stroke, hypertension or abnormal kidney function. The definition does not mention [other factors that might inhibit kidney function, like] smoking, diabetes, hepatitis, alcoholism, obesity or drug use.”); see also Persson, Marie Omnell et al., Kidneys from Marginal Donors: Views of Patients on Informed Consent, 17 Nephrology Dialysis Transplantation 1497, 1497 (2002)CrossRefGoogle ScholarPubMed (“The concept of marginal donors includes older donors, donors with complicating diseases, non-heartbeating donors and sometimes infants. There is no standard definition.”); Glossary, U.S. Dept. Health & Human Servs., http://optn.transplant.hrsa.gov/resources/glossary/#E [http://perma.cc/639X-CKD2] (defining an expanded criteria kidney as “[a] kidney donated for transplantation from any brain dead donor over the age of 60 years; or from a donor over the age of 50 years with two of the following: a history of hypertension, the most recent serum creatinine greater than or equal to 1.5 mg/dl, or death resulting from a cerebral vascular accident (stroke)”).

37 Rady, Mohamed Y. et al., Organ Procurement After Cardiocirculatory Death: A Critical Analysis, 23 J. Intensive Care Med. 303, 303 (2008)CrossRefGoogle ScholarPubMed.

38 See Cerutti, Chelsea A., Comment, Donation After Cardiac Death: Respecting Patient Autonomy and Guaranteeing Donation with Guidance from Oregon's Death with Dignity Act, 75 Alb. L. Rev. 2199, 2201 (2011)Google Scholar (noting that kidney donations under the umbrella of DCD include individuals who have sustained “irreversible cessation of circulatory and respiratory functions”).

39 See Morrissey, Paul E. & Monaco, Anthony P., Donation After Circulatory Death: Current Practices, Ongoing Challenges, and Potential Improvements, 97 Transplantation 258, 258 (2014)CrossRefGoogle ScholarPubMed (“Originally called non-heart-beating donation and later donation after cardiac death, the current terminology (donation after circulatory death) more precisely reflects identification of the cessation of peripheral blood flow by the absence of peripheral pulses and blood pressure over asystole to declare death.”).

40 See Rady et al., supra note 37, at 303 (“[R]ecipients of marginal organs recovered from DCD can also suffer higher mortality and morbidity than recipients of other types of donated organs.”); Cerutti, supra note 38, at 2202 (“[O]rgans procured from brain-dead donors have a higher rate of transplantation success than those received from DCD donors”).

41 Compare Morrissey & Monaco, supra note 39, at 260 (“DCD kidneys show comparable function and survival to [standard kidneys] after the immediate postoperative period ….”), with Nagaraja, Pramod et al., Impact of Expanded Criteria Variables on Outcomes of Kidney Transplantation from Donors After Cardiac Death, 99 Transplantation 226, 226 (2014)CrossRefGoogle Scholar (illuminating that there may be “inferior long-term graft survival with kidneys from expanded criteria” donors as compared to that from standard criteria donors).

42 See Carter, Jonathan T. et al., Expanded Criteria Donor Kidney Allocation: Marked Decrease in Cold Ischemia and Delayed Graft Function at a Single Center, 5 Am. J. Transplantation 2745, 2745 (2005)CrossRefGoogle ScholarPubMed (noting that “non-ideal” donors such as “older donors, those with chronic conditions such as hypertension or diabetes, and/or those who donate after cardiac death” offer kidney recipients “significant survival benefit[s] over continued dialysis”); Ojo, Akinlolu O. et al., Survival in Recipients of Marginal Cadaveric Donor Kidneys Compared with Other Recipients and Wait-Listed Transplant Candidates, 12 J. Am. Soc. Nephrology 589, 589 (2001)Google ScholarPubMed (“Notwithstanding the diminished graft survival of marginal kidneys, renal transplantation improves quality of life.”); Schnitzler, Mark A. et al., The Expanded Criteria Donor Dilemma in Cadaveric Renal Transplantation, 75 Transplantation 1940, 1940 (2003)CrossRefGoogle ScholarPubMed (“Outcomes of expanded criteria donor … kidney transplants are known to be superior to dialysis but inferior to transplant with a standard donor.”).

43 See Chopra, Bhavna & Sureshkumar, Kalathil K., Changing Organ Allocation Policy for Kidney Transplantation in the United States, 5 World J. Transplantation 38, 39 (2015)CrossRefGoogle ScholarPubMed.

44 See U.S. Dept. Health & Human Servs., The New Kidney Allocation System (KAS) Frequently Asked Questions 5 (2014), http://optn.transplant.hrsa.gov/converge/ContentDocuments/KAS_FAQs.pdf [http://perma.cc/A6JY-WDYQ].

45 Id. at 6 (listing the ten factors as: age, weight, height, ethnicity, history of hypertension, history of diabetes, cause of death, serum creatinine, hepatitis C virus status, and DCD status).

46 Chopra & Sureshkumar, supra note 43, at 39-40 (“In the new KAS [Kidney Allocation System], an attempt is made to move away from the terms such as SCD, ECD and DCD. Instead the KDPI will be a more accurate way of assessing the donor risk index in a graded manner.”); see also U.S. Dept. Health & Human Servs., supra note 44, at 9 (noting that kidney recipients will be given an expected post-transplant survival (EPTS) score, and that “[t]he candidates with the top 20% EPTS scores will receive offers for kidneys from donors with KDPI scores of 20% or less before other candidates at the local, regional, and national levels of distribution”).

47 Hippen & Matas, supra note 30, at 141 (noting only a modest increase in the number of available organs due to the use of extended-criteria organs).

48 Olbrisch, Mary Ellen et al., Psychosocial Assessment of Living Organ Donors: Clinical and Ethical Considerations, 11 Progress Transplantation 40, 45 (2001)CrossRefGoogle ScholarPubMed.

49 Id. (noting that these technological innovations “offer hope over the long run”).

50 Kulkarni & Cronin, supra note 35, at 3260 (“One of the major ways transplant centers have attempted to increase the number of transplants performed is through increasing the numbers of living donors.”).

51 See Ko & Delmonico, supra note 14, at 99 (“Live kidney donors present unique ethical, legal and social implications that must be addressed carefully to protect the health and rights of the donor.”); Olbrisch et al., supra note 48, at 40 (noting that transplant programs have been reluctant to use living donors because “living donation requires invasive surgery on a healthy person with associated risks of morbidity and mortality”); Truog, Robert D., The Ethics of Organ Donation by Living Donors, 353 New Eng. J. Med. 444, 444 (2005)CrossRefGoogle ScholarPubMed (“Organ donation by living donors presents a unique ethical dilemma, in that physicians must risk the life of a healthy person to save or improve the life of a patient.”).

52 Lobas, supra note 28, at 489 (noting that “occurrences of short-term risks are ‘very low’”); see also Mjøen, Geir et al., Long-term Risks for Kidney Donors, 86 Kidney Int'l 162, 162 (2014)CrossRefGoogle ScholarPubMed (noting that the perioperative mortality for living kidney donors during organ retrieval is approximately 0.03%); Ramcharan, Thiagarajan & Matas, Arthur J., Long-Term (20-37 Years) Follow-Up of Living Kidney Donors, 2 Am. J. Transplantation 959, 959 (2002)CrossRefGoogle ScholarPubMed (“Perioperative mortality after living kidney donation has been estimated to be 0.03%; morbidity, including minor complications, < 10%.”).

53 See Gentry, Sommer E. et al., Kidney Paired Donation: Fundamentals, Limitations, and Expansions, 57 Am. J. Kidney Diseases 144, 148 (2011)CrossRefGoogle ScholarPubMed (“A recent study of more than 80,000 living kidney donors between 1994 and 2009 … showed no increased mortality in donors after the perioperative period. Other research has suggested that living kidney donors do not have an increased risk of [ESRD] or hypertension.”); Ibrahim, Hassan N. et al., Long-Term Consequences of Kidney Donation, 360 New Eng. J. Med. 459, 459 (2009)CrossRefGoogle ScholarPubMed (“The overall evidence suggests that living donors have survival similar to that of nondonors and that their risk of [ESRD had] not increased…. Most donors who were studied … had an excellent quality of life.”); Rosen et al., supra note 31, at 729 (“Studies that assess donor health have not found any evidence of long-term deterioration of remaining kidney function ….”).

54 Patel, Nilay et al., Renal Function and Cardiovascular Outcomes After Living Donor Nephrectomy in the UK: Quality and Safety Revisited, 112 BJU Int'l E134, E138 & E140 (2013)CrossRefGoogle ScholarPubMed (noting that, in this study, “mild renal dysfunction occur[ed] in 60% of patients after [kidney donation]” and that there was “little evidence demonstrating the safety” of expanding living donor acceptance criteria); see also Mjøen, supra note 52, at 162 (finding other studies of long-term effects to “have included control groups less healthy than the living donor population and have had relatively short follow-up periods”).

55 Mjøen, supra note 52, at 162 (clarifying that “[f]ollow-up studies of living organ donors have not reported increased cardiovascular and all-cause mortality,” but suggesting that there may be a significant increase in ESRD, cardiovascular, and all-cause mortality over the long-term and recommending that further long-term studies be performed); Patel et al., supra note 54, at E140 (concluding that “[the researchers] were unable to determine whether mild renal dysfunction subsequently led to the development of cardiovascular disease in the long term”).

56 Augustine et al., supra note 11, at 139 (“The laparoscopic approach has been associated with less postoperative pain, less blood loss, quicker convalescence, and quicker return to work compared with open nephrectomy.”); Hartmann, Anders et al., The Risk of Living Kidney Donation, 18 Nephrology Dialysis Transplantation 871, 872 (2003)CrossRefGoogle ScholarPubMed (“Recovery after surgery is faster with laparoscopic nephrectomy, and reports so far also clearly show that post-operative pain related to nephrectomy is reduced.”); Ramcharan et al., supra note 48, at 962 (“[L]aparoscopic donors needed less pain medication, were discharged from the hospital sooner, drove sooner, and felt fully recovered sooner, as compared with donors having an open nephrectomy.”).

57 See also Ramcharan et al., supra note 48, at 959 (explaining that “patients with [ESRD] have two options for treatment: dialysis or transplant …”); Rosen et al., supra note 31, at 718 (stating that “(ESRD) requires treatment either with dialysis or the transplantation of a kidney to prolong life …”).

58 Barbara Turnbull, Kidney transplant chains shorten the wait for wellness, TheStar.com: Health & Wellness Blog (February 24, 2012), www.thestar.com/life/health_wellness/2012/02/24/kidney_transplant_chains_shorten_the_wait_for_wellness.html [http://perma.cc/NNH6-YN8E].

59 Rosen et al., supra note 31, at 718 (describing dialysis as “physically and emotionally debilitating”).

60 Sack, supra note 25.

61 Id. (noting that dialysis “saps the productivity of caregivers as well as of patients”).

62 Id.

63 Id.

64 Delmonico, Francis L. et al., Donor Kidney Exchanges, 4 Am. J. Transplantation 1628, 1632 (2004)CrossRefGoogle ScholarPubMed (“The comparative rate of mortality that is associated with dialysis versus transplantation is substantial at every age group ….”); Garcia et al., supra note 19, at 2 (“Kidney transplantation improves long-term survival compared to maintenance dialysis…. [T]ransplanted 20-39 year old patients of both sexes were predicted to live 17 years longer than those remaining on the transplant waiting list, an effect that was even more marked in diabetics.”); Wallis, C. Bradley et al., Kidney Paired Donation, 26 Nephrology Dialysis Transplantation 2091, 2091 (2011)CrossRefGoogle ScholarPubMed (“Patients fortunate enough to receive a kidney transplant, on average, live 10 years longer than those who remain on dialysis …”).

65 153 Cong. Rec. 5437 (2007) (statement of Rep. Norwood) (“While dialysis extends patients' lives, their condition often prevents them from being fully engaged in their community and career. Dialysis is life-extending, but not life-bettering.”); see also Garcia et al., supra note 19, at 2 (“Pre-emptive transplantation is associated with a 25% reduction in transplant failure and 16% reduction in mortality compared to recipients receiving a transplant after starting dialysis.”); Rosen et al., supra note 31, at 717 (claiming that kidney transplantation “offer[s] improved quality of life and increased longevity,” as compared to dialysis).

66 Sack, supra note 25, at 20; see also Kallich & Merz, supra note 12, at 140 (“The federal government has been the primary payer for renal transplantation since the inception of the End Stage Renal Disease (ESRD) program in 1973.”).

67 Sack, supra note 25 (explaining that “[c]overage for kidney disease costs the government more than $30 billion a year”).

68 Hippen & Matas, supra note 30, at 141 (“In 2006, the Federal Government spent $22.7 billion, or 6.4% of the Medicare budget, on the care of 506,256 people with kidney failure [which is equal to] 0.6% of all Medicare beneficiaries in the [United States].”).

69 Sack, supra note 25; see also Garcia et al., supra note 19, at 2 (explaining that “the costs of transplantation exceed those of maintenance dialysis in the first year post-transplantation,” but “the costs are much reduced compared to dialysis in subsequent years, especially with the advent of inexpensive generic immunosuppression”); Conference Call, U.S. Dep't of Health & Human Servs., Advisory Comm. on Organ Transplantation (March 7, 2013), www.organdonor.gov/legislation/acotmarch2013notes.html [https://http://perma.cc/RE5D-SEAP] (“Every time someone is transplanted with a live [kidney] donor who would otherwise not get a donation, Medicare saves something like half a million dollars.”).

70 Israni et al., supra note 29, at 15 (“[T]ransplantation is both more effective and less costly than long-term hemodialysis.”).

71 Ramcharan & Matas, supra note 52, at 959; see also Israni et al., supra note 29, at 15 (arguing that increased living donor donation will “improve the overall efficacy of transplantation because organs harvested from living donors typically produce better outcomes for recipients”); Ko & Delmonico, supra note 14, at 99 (“Living related donor grafts still have a 10% to 12% better survival rate at [one] year and a significantly higher probability of function thereafter.”); Wallis et al., supra note 64, at 2091 (“[I]t is now clear that a living kidney donor transplant is better than a kidney from a deceased donor”).

72 Wallis et al., supra note 64, at 2091.

73 Lobas, supra note 28, at 491; see also Olbrisch et al., supra note 48, at 40 (“A genetically related donor is more likely to be HLA compatible with the recipient, possibly allowing for lower doses of immunosuppressant medications to prevent rejection.”).

74 Olbrisch et al., supra note 48, at 40 (“Surgery can be scheduled at an optimal or convenient time, which may reduce risks for the recipient.”).

75 Ramcharan & Matas, supra note 52, at 959 (“[T]he long wait on dialysis is avoided. Favorable patient and graft survival rates are inversely related to prolongation of the wait on dialysis.”).

76 Olbrisch et al., supra note 48, at 40-41 (“[M]inimal transit time reduces [the risk that inadequate blood supply] will damage to the organ.”).

77 Ross, Lainie Friedman, The Ethical Limits in Expanding Living Donor Transplantation, 16 Kennedy Inst. Ethics J. 151, 167 (2006)CrossRefGoogle ScholarPubMed.

78 Kallich & Merz, supra note 12, at 139.

79 Ko & Delmonico, supra note 14, at 99 (noting that in the United States, from 2000-2004, “the number of live donor kidney transplants surpassed that of cadaver donors”); Rosen et al., supra note 31, at 720 (“The 40 percent of kidneys that are now transplanted from living donors come overwhelmingly from family members or close friends.”); Sack, supra note 23 (“Living donors account for about 40 percent of the roughly 80,000 kidney transplants performed worldwide each year, according to the W.H.O.”).

80 153 Cong. Rec. 5439 (2007) (statement of Rep. Norwood) (“Currently, an estimated 6,000 individuals nationwide have offered kidneys to family members and friends, only to have the donation rejected because they are incompatible.”).

81 Morley, supra note 9, at 226; see also Olbrisch et al., supra note 48, at 41 (“Certain chronic and life-threatening conditions run in families; therefore the reluctance of family members to put themselves at risk once a family member is afflicted is understandable.”).

82 Sack, supra note 25 (noting that “about a third of transplant candidates with a willing donor find that they are immunologically incompatible”).

83 Dan Davis & Rebecca Wolitz, The Ethics of Organ Allocation (President's Council on Bioethics, Working Paper, Sept. 2006), https://bioethicsarchive.georgetown.edu/pcbe/background/davispaper.html [https://http://perma.cc/8WSC-JAYY] (“In tissue typing, organ donor-recipient compatibility for HLA and blood type (ABO) and [antibodies] are assessed.”).

84 Ayres et al., supra note 17, at 808; Morley, supra note 9, at 227.

85 Morley, supra note 9, at 227; see also Ayres et al., supra note 17, at 808 n. 9 (“These antigens are the key determinants that enable immunologically active cells to recognize ‘self’ from ‘foreign’ tissues, sparing the former and destroying the latter.”).

86 Sheldon & Poulton, supra note 20, at 158 (“Because HLA antigens act as the markers that serve to communicate the identity of self or non-self within the immune system, any transplanted HLA disparity may act as the stimulus for an immune response.”).

87 Ayres et al., supra note 17, at 815 (“Unless suppressed by drug therapy, the immune system will attack tissue that it recognizes as foreign, but ignore ‘self’ tissue.”); Morley, supra note 9, at 227 (describing how white blood cells “protect the body by identifying and destroying foreign cells–that is cells with foreign antigen signatures”).

88 Ayres et al., supra note 17, at 815 (“If kidney tissue bearing specific antigens is transplanted into a person whose tissue does not bear those antigens, then the immune system of the recipient will attack the transplanted tissue in a process known as rejection.”); Morley, supra note 9, at 227 (“Histocompatibility refers to the ability of an organ to be transplanted into a recipient's body without triggering an adverse reaction (rejection) from the recipient's immune system.”).

89 Morley, supra note 9, at 227 (“For a kidney to be histocompatible with a potential recipient, only two sets of antigens much match–ABO and [HLA].”).

90 Sheldon & Poulton, supra note 20, at 157 (“[HLA] molecules are expressed on the surface of virtually all nucleated cells and play a pivotal role in the fundamental necessity of the immune system to distinguish self from non-self.”); Morley, supra note 9, at 228-29 (stating that there are six HLA antigens relevant to organ transplantation).

91 Gaston, Robert S., Addressing Minority Issues in Renal Transplantation: Is More Equitable Access an Achievable Goal?, 2 Am. J. Transplantation 1, 2 (2002)CrossRefGoogle ScholarPubMed (“In cadaveric transplantation, it now appears that only the complete absence of HLA mismatches confers a significant survival benefit.”); Julie R. Ingelfinger, Risks and Benefits to the Living Donor, New Eng. J. Med. 447, 447 (2005) (“Advances in immunosuppression have changed the criteria for donation of a kidney by a living person, and someone who is … [not] a close HLA match can now donate.”); see also Ko & Delmonico, supra note 14, at 106 (claiming that because “results with HLA-mismatched living donors are generally superior to even well-matched cadaver donors,” it is likely that “the quality of the kidney and short preservation time outweigh the benefit of matching.”); Morley, supra note 9, at 229 (explaining that if all six of a patient's HLA antigens match the donor, the patient is given priority to receive the organ).

92 Sheldon & Poulton, supra note 20, at 166 (“If sensitization to any HLA specificities is identified, these can be highlighted as ‘unacceptable antigens’ and avoided as mismatches with any potential donor.”); Roth, Alvin E. et al., Kidney Exchange, 119 Q.J. Econ. 457, 461 (2004)CrossRefGoogle Scholar (“Prior to transplantation, the potential recipient is tested for the presence of preformed antibodies against HLA in the donor kidney. The presence of [such] antibodies, called a positive crossmatch, effectively rules out transplantation.”).

93 Davis & Wolitz, supra note 83 (“PRA values are laboratory measures of a patient's level of ‘sensitization’ to [HLA].”); Ross, supra note 77, at 168 n.2 (“A blood test measures the level of anti-human antibodies in the blood…. If a patient has a high PRA, then his blood contains antibodies that will reach a large portion of the population.”).

94 Davis & Wolitz, supra note 83 (clarifying that “a positive cross-match is a contraindication” for a kidney transplant because the likelihood of rejection is so high).

95 Id.

96 Sack, supra note 25; see also Gentry, S.E. et al., Expanding Kidney Donation Through Participation by Compatible Pairs, 57 Am. J. Transplantation 2361, 2362 (2007)Google Scholar (“[A]ntibody-mediated rejection may occur in a mother who receives a kidney from her offspring or the father of her child due to exposure in utero to paternal HLA antigens.”); Sheldon & Poulton, supra note 20, at 167 (“Following a poorly matched kidney transplant, a patient can become highly sensitized, developing antibodies reactive with more than 50% of the donor population.”).

97 Sack, supra note 25 (“Some [recipients], because of previous transplants, blood transfusions or pregnancies, may have developed antibodies that make them highly likely to reject a new kidney.”).

98 Ayres et al., supra note 17, at 817 (“Another type of antigen matching relevant to transplantation concerns blood group (ABO) compatibility.”); Davis & Wolitz, supra note 83 (“Blood type is a key factor in the process of ‘tissue typing’ both organ donors and potential recipients.”); Sheldon & Poulton, supra note 20, at 165 (noting that rejection “can be prevented by ensuring that both donor and recipient are ABO blood group compatible”).

99 SeeSmith et al., supra note 24, at 3195 identical to the donors … Morley, supra note 9, at 228 (“ABO grouping is the primary determinant for solid organ transplantation.”); Smith et al., supra note 24, at 3195 (noting that standard criteria donor kidneys go “first to candidates with ABO blood groups identical to the donors ….”). But see Chopra & Sureshkumar, supra note 43, at 40 tbl.3 (explaining that in an effort to decrease wait times for B blood group candidates, post-2014 kidney allocation guidelines allow A2 and A2B blood type donors to donate to B blood type recipients).

100 Glorie, Kristiaan M. et al., Coordinating Unspecified Living Kidney Donation and Transplantation Across the Blood-Type Barrier in Kidney Exchange, 96 Transplantation 814, 814 (2013)CrossRefGoogle ScholarPubMed (“[M]ore than 30% of living [kidney] donors are incompatible with their intended recipient”).

101 Annelies E. de Weerd et al., ABO-Incompatible Kidney Transplant Recipients Have a Higher Bleeding Risk After Antigen-Specific Immunoadsorption, Transplant Int'l, 25, 25 (2014); Sack, supra note 25, at 20; see also ABO Incompatibility in Transplants, Cedars-Sinai, http://www.cedars-sinai.edu/Patients/Programs-and-Services/Comprehensive-Transplant-Center/Kidney-and-Pancreas/Conditions-and-Treatments/ABO-Incompatibility-in-Transplants.aspx [https://http://perma.cc/F3F4-J57C] (“Plasmapheresis removes the plasma portion of the blood. This is where the antibodies are that seek and destroy ABO incompatible organs…. After at [sic] the last plasmapheresis treatment, the kidney recipient receives an intravenous infusion of immune globulin to replace the antibodies the body needs to fight infections and to help prevent the harmful antibodies from returning.”).

102 Gentry, Sommer E. et al., A Comparison of Populations Served by Kidney Paired Donation and List Paired Donation, 5 Am. J. Transplantation 1914, 1919 (2005)CrossRefGoogle ScholarPubMed (noting that desensitization protocols are “labor intensive, immunosuppressive and costly,” with a course of plasmapheresis adding $28,000 to the transplant event on average); see also Sack, supra note 25 (describing plasmaspheresis as “taxing and expensive” for the recipient as it may involve several treatments).

103 Joshua J. Augustine et al., supra note 11, at 141 (“Most agree that donor exchange programs [to achieve an ABO match] are superior to desensitization protocols in that the cost of therapy is significantly reduced and rejection rates are substantially lower.”).

104 Sheldon & Poulton, supra note 20, at 166.

105 E.g., id. at 166 (emphasizing that “aggressive” immunosuppressive treatments can increase “susceptibility to post transplant complications including infection and cancers”).

106 Ramcharan & Matas, supra note 52, at 962; see also Rosen et al., supra note 31, at 717 (“Unfortunately, the waiting list for kidney transplants is long, growing, and unlikely to be substantially reduced by increases in the recovery of cadaveric organs.”).

107 See 153 Cong. Rec. 5437 (2007) (statement of Rep. Norwood) (“[M]ost transplantees wait for over four years before receiving a kidney.”); Sack, supra note 23 (noting “the median wait time” for an adult to receive a kidney is “more than four years”); Sack, supra note 25 (highlighting that when a living relative donor is not available “it might take five years to crawl up the waiting list for an organ from a deceased donor”).

108 U.S. Dep't of Health & Human Servs., supra note 22, at 12; see also Hippen & Matas., supra note 30, at 141 (underlining how a longer wait time correlates to an increased likelihood of death and that in 2005, 8% of all waitlisted patients died prior to transplantation).

109 Davis & Wolitz, supra note 83 (stressing that for many individuals, access to an organ will mean the difference between life and death).

110 Unif. Anatomical Gift Act (Nat'l Conference of Comm'rs on Unif. State Laws 2006).

111 National Organ Transplant Act of 1986 § 301, 42 U.S.C. § 274e (2012); see generally Boyer, J. Randall, Comment, Gifts of the Heart … and Other Tissues: Legalizing the Sale of Human Organs and Tissues, 2012 BYU L. Rev. 313 (2012)Google Scholar (giving a detailed overview of the legal framework surrounding organ transplants).

112 Unif. Anatomical Gift Act (Nat'l Conference of Comm'rs on Unif. State Laws 2006).

113 See Hansmann, Henry, The Economics and Ethics of Markets for Human Organs, 14 J. Health Pol. Pol'y & L. 57, 58 (1989)CrossRefGoogle ScholarPubMed (noting additionally that the UAGA specifies that when a decedent's wishes are not known, the next of kin decides whether to donate).

114 Id.; see also Williams, Kristy Lynn et al., Just Say No to NOTA: Why the Prohibition of Compensation for Human Transplant Organs in NOTA Should Be Repealed and a Regulated Market for Cadaver Organs Instituted, 40 Am. J.L. & Med. 275, 282 (2014)Google Scholar (noting that the UAGA was subsequently revised in 1987 and again in 2006).

115 42 U.S.C. § 274e; see also Boyer, supra note 111, at 316 (clarifying that “NOTA deals only with organ donations, while the UAGA focuses on postmortem donations of a wider variety of human tissues”).

116 Smith et al., supra note 24, at 3191.

117 42 U.S.C. § 274(b)(2)(A) (instructing the Secretary of HHS to contract with a “private nonprofit entity that has an expertise in organ procurement and transplantation … for the establishment and operation of an Organ Procurement and Transplantation Network”); see also Davis & Wolitz, supra note 83 (noting that “OPTN is a private, not-for-profit entity, as is UNOS”)

118 42 U.S.C. § 274(b)(2)(A)(i)-(ii); see also Glazier, Alexandra K. & Sasjack, Scott, Should It Be Illicit to Solicit? A Legal Analysis of Policy Options to Regulate Solicitation of Organs for Transplant, 17 Health Matrix 63, 88-89 (2007)Google ScholarPubMed (“In 1984, Congress authorized the [OPTN] to set national organ allocation policies through NOTA.”).

119 Ayres et al., supra note 17, at 813-14.

120 Morley, supra note 9, at 234-35.

121 Davis & Wolitz, supra note 83 (explaining that UNOS promulgates the “organ procurement and allocation policies” that “define the algorithms utilized in organ allocation throughout the [United States] on an organ by organ basis”).

122 Rosen et al., supra note 31, at 731.

123 Davis & Wolitz, supra note 83 (noting that UNOS's policies are developed using “point-based” variables and criteria).

124 Id. (emphasizing that organ allocation processes must be “equitable,” “based on sound medical judgment,” and “seek to achieve the best use of organs”); see also Chopra et al., supra note 43, at 39 (“[A] balance between equity and utility was necessary in the designing of the new [kidney allocation scheme], such that there is access for transplant to every one while maximizing the benefit of this scarce resource.”); Glorie, Kristiaan et al., Allocation and Matching in Kidney Exchange Programs, 27 Transplant Int'l 333, 337 (2014)CrossRefGoogle ScholarPubMed (highlighting that “maximum utility is generally interpreted as achieving the maximum number of transplants” but defining “fairness and justice is less straightforward”).

125 Roth et al., supra note 92, at 461.

126 Davis & Wolitz, supra note 83 (“[E]ach criterion [developed by UNOS] has an ethical correlate, a principle or precept justifying its moral relevance in the allocation.”).

127 Id.; see also Hansmann, supra note 113, at 66 (noting that “organs are harvested and distributed” by regional OPOs that “effectively have local monopolies on the supply of organs”).

128 See Glazier & Sasjack, supra note 118, at 86 (“Since the federal government designates only one OPO per geographical region with no overlap, an OPO policy of refusing to facilitate deceased directed donations made to solicitors would effectively prevent deceased donors and their families within that OPO's region from making such donations.”).

129 Requirements for Certification and Designation and Conditions for Coverage: Organ Procurement Organizations, 42 C.F.R. § 486.302 (2014); see also Morley, supra note 9, at 233 (“When a patient dies, the OPO is responsible for obtaining consent from the patient's family (unless the decedent had previously consented to organ donation) and removing the organ from the donor.”).

130 42 C.F.R. § 486.303(b); see also Glazier & Sasjack, supra note 118, at 87 (clarifying that OPOs receive Medicare funding but are not government entities).

131 Morley, supra note 9, at 233 (“When a doctor or nurse identifies a hospitalized patient who may make a suitable cadaveric organ donor, she contacts the OPO for her region.”).

132 Davis & Wolitz, supra note 83 (describing that “[w]hen a potentially transplantable organ becomes available,” the OPO tissue-types the organ, determines “the size and condition of the organ” and collects “ other data relevant to the matching process”); Kolber, Adam J., A Matter of Priority: Transplanting Organs Preferentially to Registered Donors, 55 Rutgers L. Rev. 671, 681 (2003)Google ScholarPubMed (“UNOS issues allocation guidelines for regional OPOs to follow.”).

133 Davis & Wolitz, supra note 83 (“[D]ata relevant to the matching process are specified and entered into a UNOS-maintained database by the OPO that is managing the donor.”).

134 Id. (“The transplant team for the first-ranked patient has one hour to make the decision as to whether to accept or reject the organ ….”).

135 Organ Procurement & Transplantation Network, Policies, 54 (Sept. 1, 2015), http://optn.transplant.hrsa.gov/ContentDocuments/OPTN_Policies.pdf#nameddest=Policy_08 [https://http://perma.cc/5H39-BZC5].

136 Davis & Wolitz, supra note 83 (“Transplant centers enjoy considerable latitude in establishing select standards ….”).

137 Organ Procurement & Transplantation Network, supra note 135, at 72 (“[A] candidate's transplant physician may use medical judgment to transplant a candidate out of sequence due to medical urgency.”); see also Smith et al., supra note 24, at 3197 (“In contrast to point systems for other organs, the kidney point system assigns no points based on medical urgency for regional or national allocation of kidneys … [however,] at the local level, the candidate's physician has the authority to use medical judgment to assign medical urgency points ….”); Morley, supra note 9, at 230 n.41 (“While the seriousness of a patient's medical condition is not taken into account in allocating kidneys on the regional or national level, local OPOs can take patients' medical statuses into account in allocating kidneys on the local level.”).

138 Davis & Wolitz, supra note 83.

139 Id. (“[W]hether a patient is added to or removed from the [wait] list, whether an organ is accepted for transplant, and in some cases, whether a patient's need for an organ is medically urgent—are left to the prudential, clinical judgment of the individual clinicians.”); see also Kolber, supra note 132, at 681 (“[T]he flexibility of our distribution system, which combines clinical indicators with policy considerations, makes it relatively easy to add a new policy consideration to the mixture without overhauling the entire system.”).

140 Galen, Eric F., Note, Organ Transplantation at the Millennium: Regulatory Framework, Allocation Prerogatives, and Political Interests, 9 S. Cal. Interdisc. L.J. 335, 377–78 (1999)Google ScholarPubMed (noting that “when a transplant physician accepts an organ for transplantation but chooses to transplant the procured organ into another patient, he must submit documentation to a regional UNOS audit committee within thirty days” explaining why the patient for whom the organ was initially offered did not receive the procured organ).

141 Morley, supra note 9, at 233-34.

142 Ghods, supra note 32, at 186 (estimating “organ trafficking accounts for 5% to 10% of the kidney transplants performed annually throughout the world”); Morley, supra note 9, at 221 (noting that the “well-documented organ shortage has led, in some parts of the world, to a thriving black market in organs”); see also Sander S. Florman, Opt Out of the Black Market for Organ Transplantation, N.Y. Times, Feb. 2, 2010, at A27 (“Despite the law [prohibiting the sale of organs] and the intense approval process [for live donors], a black market for live-donor organs operates in the United States, undermining the very basis for the doctor-patient relationship: honesty and trust.”).

143 Morley, supra note 9, at 221 (including presumed consent laws, national organ drafts, and parent-guardian proxy consent policies as some of the solutions addressing the inadequate supply of transplantable organs).

144 Glorie et al., supra note 100, at 814 (“Due to blood type and cross match incompatibility, more than 30% of living donors are incompatible with their intended recipient.”); Montgomery, R.A., Renal Transplantation Across HLA and ABO Antibody Barriers: Integrating Paired Donation into Desensitization Protocols, 10 Am. J. Transplantation 449, 449 (2010)CrossRefGoogle ScholarPubMed (“Based on mathematical simulations, it has been estimated that there are currently about 6000 patients in the United States on the deceased donor list who have a willing, but incompatible live donor.”).

145 Segev, Dorry L. et al., Utilization and Outcomes of Kidney Paired Donation in the United States, 86 Transplantation 502, 509 (2008)CrossRefGoogle ScholarPubMed (“Paired donation offers the best transplant option for many patients with incompatible live donors and could substantially expand the donor pool if fully used in the United States”); see also Gentry et al., supra note 102, at 1915 (hypothesizing that paired kidney donation is the most efficient and cost effective way to transplant an incompatible donor-recipient pair).

146 See Montgomery, supra note 144, at 452 (“[Paired kidney donation] involves matching a potential kidney recipient who has a willing but incompatible donor to another incompatible pair.”); Segev et al, supra note 145, at 502 (“[Paired kidney donation] allows pairs of recipients and their willing but incompatible live donors to find reciprocal matches and undergo transplantation by exchanging donors.”).

147 Gentry et al., supra note 53, at 146; see also Montgomery, supra note 144, at 452 (“The pairing results in both recipients receiving a compatible kidney.”).

148 Montgomery, supra note 144, at 452; see also Gentry et al., supra note 53, at 144 (“For incompatible pairs, the highest match rates generally are for cross-match positive pairs with low to moderate candidate sensitization and also pairs with type A donor and type B candidate or vice versa.”).

149 Delmonico et al., supra note 64, at 1628 (noting that paired kidney donation “avoid[s] the risk of ABO or crossmatch incompatibility, and yield[s] an additional donor source for patients awaiting a deceased donor kidney”).

150 Gentry et al., supra note 53, at 146.

151 Rees, Michael A. et al., A Nonsimultaneous, Extended, Altruistic-Donor Chain, 360 New Eng. J. Med. 1096, 1096 (2009)CrossRefGoogle ScholarPubMed (explaining that paired donations are performed simultaneously in an effort to avoid the possibility that “after one donor has given a kidney to the other pair's recipient, that recipient's coregistered donor will fail to donate a kidney in return”).

152 Gentry et al., supra note 53, at 146.

153 Wallis et al., supra note 64, at 2091 (“[Paired kidney donation] was first suggested by Felix Rapaport in 1986 and in 1991, the first kidney exchange was performed in South Korea. Several years later, in 1999, the first paired exchange took place at University Hospital in Basel, Switzerland.”).

154 Id.

155 Id.

156 See Gentry et al., supra note 53, at 145 (“As a result [of paired kidney donation], many hundreds of transplants have resulted from this modality, and [paired kidney donation] programs are active in many countries: the Netherlands, Korea, Canada, the United Kingdom, and Romania.”).

157 Montgomery, Robert A. et al., Domino Paired Kidney Donation: A Strategy to Make Best Use of Live Non-Directed Donation, 368 Lancet 419, 419 (2006)CrossRefGoogle ScholarPubMed (noting that in paired donation programs, “more than 50% of the incompatible pairs in the pool remain unmatched” and that the recipients in these pairs will generally have hard-to-match blood types and HLA sensitization); Montgomery, supra note 144, at 449 (noting that “as many as 50% of patients with incompatible donors will fail to find a match in a [paired kidney donation] pool”).

158 Gentry et al., supra note 102, at 1914 (“Most medically eligible incompatible pairs can theoretically be transplanted using desensitization protocols.”); Montgomery, supra note 144, at 449 (“There are currently three options available to patients who have an incompatible live donor: desensitization, [paired kidney donation], and a combination of these two modalities.”).

159 Montgomery, supra note 144, at 454 fig.4; see also Gentry et al., supra note 102, at 1920 (“Patients who remain unmatched after [paired kidney donation] could enter a second pool in which a more immunologically compatible donor is sought … [in an effort] to reduce the intensity and cost of desensitization.”); Segev et al., supra note 141, at 508 (noting that for those who are “difficult-to match and difficult-to-sensitize,” the goal of paired kidney donation is to find a match with a “more immunologically favorable barrier which can be crossed with a less intensive desensitization regimen”); Wallis et al., supra note 64, at 2094; (“Another protocol combines the advancing technique of desensitization with [paired kidney donation] matching to enable transplantation of patients who are highly sensitized.”).

160 Gentry et al., supra note 53, at 146 (explaining that due to these restrictions, the largest paired kidney donation only involved six donors and six recipients).

161 E.g., Ashlagi, I., Nonsimultaneous Chains and Dominos in Kidney-Paired Donation – Revisited, 11 Am. J. Transplantation 984, 984 (2011)CrossRefGoogle ScholarPubMed (“A sequence of matches initiated by a [sic] NDD is called a chain.”).

162 Gentry et al., supra note 53, at 146.

163 Adams et al., supra note 32, at 583 (contrasting patient-relative donors, or “directed donors,” to NDDs, who do not know or select the donee); Olbrisch et al., supra note 48, at 43 (explaining that an NDD “is someone who wishes to donate an organ to be used by any recipient who needs it, without knowledge of the recipient's need or distress,” and pointing out that most blood donors are also NDDs);.

164 See Montgomery et al., supra note 157, at 420 fig.1.

165 See Wallis et al., supra note 64, at 2094.

166 Gentry et al., supra note 53, at 147.

167 Montgomery et al., supra note 157, at 419.

168 Montgomery, supra note 144, at 454-55.

169 Wallis et al., supra note 64, at 2095.

170 Id.; see also Gentry et al., supra note 53, at 146 (“Each [NDD] can enable 2 or more transplants with 1 donation.”).

171 Rhonda L. Rundle, A Daisy Chain of Kidney Donations, Wall St. J., Sept. 23, 2008, at D1-D2

172 Woodle, E.S. et al., Ethical Considerations for Participation of Nondirected Living Donors in Kidney Exchange Programs, 10 Am. J. Transplantation 1460, 1460 (2010)CrossRefGoogle ScholarPubMed.

173 Rundle, supra note 171, at D2.

174 Montgomery et al., supra note 157, at 419; see also Glazier & Sasjack, supra note 118, at 65 (contrasting NDDs with directed donors, who are “the norm among living donors,” as “two-thirds of living donations are directed to biological relatives [with] many of the rest donate[d] to a spouse”); Lobas, supra note 28, at 494 (“[W]hen an individual outside the family makes a donation, others suspect hidden payments, mental illness, external pressure to donate and lack of proper informed consent of the actual risks involved.”).

175 Montgomery et al., supra note 157, at 419; see also Conference Call, supra note 69 (hypothesizing that “[n]on-directed donations have [ ] grown due to press coverage and education on donations”).

176 Ghods, supra note 32, at 185 (“[A]ltruistic nonspousal living unrelated donors has grown from 47 in 1991 to 1341 in 2004 … and still continues to increase.”); Gentry et al., supra note 96, at 2362 (noting that, in the United States, “over 400 people have come forward to be live donors with no particular recipient in mind, and this number is increasing every year”).

177 Rundle, supra note 171, at D2; see also Adams et al., supra note 32, at 584-85 (“If assessment of the donor reveals psychopathology, severe mental illness, or donor vulnerability that may impair judgment, further referral for appropriate intervention is necessary, and the individual should not be considered as a potential donor. Of the 38 denied at the University of Minnesota, 8 (21%) were denied for psychosocial reasons.”); Ross, supra note 77, at 164 (recommending that NDDs “be held to stricter medical criteria” than that of donors with a biologic or spousal relationship, because “intimacy can justify greater risk-taking”); Truog, supra note 51, at 445 (“The radical altruism that motivates a person to make a potentially life-threatening sacrifice for a stranger calls for careful scrutiny.”); Wallis et al., supra note 64, at 2096 (explaining that NDDs “require special interviewing and psychological evaluations to ensure proper intentions in the kidney donation process”)

178 E.g., Wallis et al., supra note 64, at 2094 (“While many programs choose to allocate [NDD] kidneys to the deceased donor list, others seek to multiply the gift [by having them] initiate a chain of transplants.”); see also Montgomery et al., supra note 157, at 419 (“In the context of [the kidney shortage], health professionals have attempted to make the best use of kidneys from [NDDs].”); Rees et al., supra note 151, at 1100 (“If an important benefit to an altruistic donor is psychological, then arguably there is more psychological benefit to be derived from helping a chain of many patients than from helping only one patient.”).

179 See Ashlagi, supra note 161, at 984 (“Nonsimultaneous chains can be longer than simultaneous chains, since the larger number of operating rooms and surgical teams required by a long chain do not need to be assembled simultaneously.”).

180 Wallis et al., supra note 64, at 2094.

181 See Ashlagi, supra note 161, at 984-85 (noting that “[n]onsimultaneous chains can be longer than simultaneous chains” and that “nonsimultaneous chains facilitate more transplants”).

182 Montgomery, supra note 144, at 455 fig.5.

183 Id.

184 Wallis et al., supra note 64, at 2094; see also Gentry et al., supra note 53, at 147 (stating that waiting donors in a NEAD chain are referred to as “bridge donors”); Ashlagi, supra note 161, at 984 (explaining that bridge donors can extend the NEAD chain to yet unidentified patients who will become known at a later time).

185 Fumo, D. E. et al., Historical Matching Strategies in Kidney Paired Donation: The 7-Year Evolution of a Web-Based Virtual Matching System, 15 Am. J. Transplantation 2646, 2647 (2015)CrossRefGoogle ScholarPubMed.

186 Ashlagi, supra note 161, at 985 (“The NDD initiates a [NEAD] chain consisting of several segments. Each segment is a short simultaneous chain, where the last donor of each segment becomes a bridge donor.”).

187 D.E. Fumo et al., supra note 186, at 2647.

188 Wallis et al., supra note 64, at 2094.

189 See Sack, supra note 25; see also Press Release, Univ. of Md. Med. Ctr., UMMC Participates in Longest Kidney Swap Chain in US History (April 15, 2015), http://umm.edu/news-and-events/news-releases/2015/ummc-participates-in-longest-kidney-swap-chain-in-us-history [http://perma.cc/TLJ4-3YHH] (claiming that, as of April 2015, another NEAD chain is expected to consist of 35 donors and 35 recipients when it is completed).

190 Wallis et al., supra note 64, at 2095 (“[B]oth DPD and NEAD chains … bypass the need for reciprocal matching, providing higher quality matches to participants and allowing more pairs to profit.”).

191 Rees et al., supra note 151, at 1100 (“In addition to increasing the quantity of living-donor transplantations, NEAD chains may improve the quality of matches.”).

192 Ashlagi, supra note 161, at 984 (“[W]hen a chain begins with a NDD, the cost of a break in the chain” is reduced because “no patient-donor pair needs to give a kidney before they receive one.”).

193 Rees et al., supra note 151, at 1099 (“If for some reason, the [NDD] donates to the recipient in Pair 1, but the donor in Pair 1 then fails to donate to the recipient in Pair 2, the outcome will be unfair, but Pair 2 will not have been irreparably harmed and can still enter into a new paired donation or chain.”); Healy, Kieran & Krawiec, Kimberly D., Custom, Contract, and Kidney Exchange, 62 Duke L.J. 645, 658 (2012)Google ScholarPubMed (“[N]o individual in the chain is irreparably harmed [if a donor reneges because] no pair has lost a kidney prior to receiving one, and each thus always retains the ‘bargaining chip’ of the donor's kidney, enabling them to participate in future swaps and chains.”).

194 Rees et al., supra note 151, at 1098; see also Wallis et al., supra note 64, at 2097 (arguing that the utility benefits of NEAD chains outweigh the risk that a bridge donor will renege).

195 Rees et al., supra note 151, at 1098.

196 Healy & Krawiec, supra note 194, at 657-58 (stating that there is no national database for NEAD-chain statistics, nor are donor-reneging rates known). But see Ashlagi, supra note 161, at 992 (2011) (noting that the use of NEAD chains is becoming increasingly common).

197 Ashlagi, supra note 161, at 988.

198 Woodle et al., supra note 172, at 1465 (noting that “substantial waiting periods that [bridge donors] will face may increase the likelihood of backing out”).

199 Rundle, supra note 171, at D2 (“In [NEAD chains] there's an increased chance that a would-be donor might be injured or get sick or otherwise be prevented from donating.”); see also Healy & Krawiec, supra note 194, at 657 (describing one case in which a donor reneged after a year claiming a change in economic circumstance).

200 Wallis et al., supra note 64, at 2094.

201 Id.

202 Gentry et al., supra note 53, at 147 (“If during a long waiting period some of these bridge donors withdraw or become medically ineligible to donate, the bridge donor's potential contribution will be lost.”).

203 Id. at 145 fig.1 (describing a NEAD chain that ends with a donation to the DDWL, also known as a “closed chain”).

204 Id. at 147 (“Combining desensitization with [paired kidney donation] allows a recipient to find a donor to whom he or she can be more easily desensitized than the intended donor.”); Wallis et al., supra note 64, at 2094 (describing one combination kidney chain that involved a 13-way exchange involving multiple NDD chains and desensitization).

205 Rees et al., supra note 151, at 1099.

206 See id. at 1099 (stating that some physicians recommend that NDD organs be allocated to the patients with the highest ranking, according to the UNOS point system instead of initiating a NEAD chain).

207 See Ross, supra note 77, at 166 (“From a utilitarian perspective, it makes sense to consider using the [NDD] as a catalyst for a cascade exchange because it can maximize the number of transplants performed.”).

208 Gentry et al., supra note 53, at 147 (“NEAD chains also shift the benefit of [NDDs] away from recipients on the deceased donor waiting list in favor of recipients with living donors.”).

209 Rees et al., supra note 151, at 1100.

210 Id.

211 Turnbull, supra note 58 (“It takes a team of computer scientists to [determine the participants in] these chains, which are based on complex mathematical modeling, … to make the best connections ….”); see also Gentry et al., supra note 49, at 149 (noting that “correct optimization algorithms” are “mathematically intricate”).

212 Wallis et al., supra note 64, at 2095.

213 Conference Call, supra note 69; see also Sherry F. Colb, Donor Chains and the Legality of Compensating Kidney Donors: Critically Assessing our Moral Intuitions, Justia, (Mar. 7, 2012), http://verdict.justia.com/2012/03/07/donor-chains-and-the-legality-of-compensating-kidney-donors [https://http://perma.cc/9ZUQ-WZS2] (noting that kidney chains are managed “through the help of a database and programs [of] a kidney registry formed for this purpose”); Paired Donation Networks, Kidney Link http://www.kidneylink.org/PairedDonationPrograms.aspx [https://perma.cc/FM59-G8Q6] (listing several organizations and their respective contact information).

214 Wallis et al., supra note 64, at 2095; see also Gentry et al., supra note 53, at 149 (“The best algorithms, known as optimization algorithms, guarantee that no better set of matches could have been found.”).

215 Gentry et al., supra note 53, at 149 (“Depending on the priorities of the program, a better set of matches might be one in which more recipients underwent transplant, or, alternatively, one in which the same number of recipients were matched, but with more highly sensitized recipients.”); see also Wallis et al., supra note 64, at 2095 (listing possible factors determining matches, which include, but is not limited to, blood type compatibility, HLA sensitization, age, travel distance, wait-time on dialysis).

216 Wallis et al., supra note 64, at 2095.

217 E.g., Rees et al., supra note 151, at 1100.

218 Gentry et al., supra note 53, at 149 (“Greater public awareness of this modality also should translate to greater numbers of pairs registered and therefore greater benefits to all participants because most donors who are incompatible with their intended recipients are willing to participate in [paired kidney donation].”); Gentry et al., supra note 96, at 2361 (“Efforts to expand [paired kidney donation] have included: a proposal for a nationwide [paired kidney donation] registry and match run ….”).

219 Wallis et al., supra note 64, at 2095 (“The simplest way quantity and quality of [paired kidney donation] matching is improved is through increasing pool size … the number of potential matches will exponentially increase as the paired donor pool increases.”).

220 Conference Call, supra note 69 (“The greatest benefit for candidates can be achieved in a single well-functioning registry that encompasses the successful aspects of currently operating registries.”).

221 Id. But see Wallis et al., supra note 64, at 2097 (“[Paired kidney donation] is likely to remain in the hands of smaller regional programs that have the advantage of driving innovation, but the disadvantage of limited pool sizes is that by definition they will not provide the greatest number of opportunities for patients with incompatible, but willing living donors.”).

222 Conference Call, supra note 69 (“Any time an OPTN committee approves an allocation change, it takes three and a half years to program it into their computers – that is not the pace of [paired kidney donation].”).

223 Gentry et al., supra note 53, at 150.

224 Conference Call, supra note 69; see also Malia Wollan, The Great American Kidney Swap, N.Y. Times (April 30, 2015), http://www.nytimes.com/2015/05/03/magazine/the-great-american-kidney-swap.html [https://http://perma.cc/CT8Q-EJSL] (“Last year in the United States, 544 kidneys were transplanted through … paired exchange programs, and many other countries are beginning to adopt them.”).

225 Colb, supra note 214 (“[Individuals] within a chain are able to achieve matches much more quickly than they otherwise would have been, and the chains accordingly save lives”).

226 Wallis et al., supra note 64, at 2097.

227 Truog, supra note 51, at 444.

228 Kallich & Merz, supra note 12, at 151; see also Lobas, supra note 28, at 495 (contrasting the fact that “using living donors requires physicians … to cause harm to one patient for no therapeutic benefit in order to benefit another” against the Hippocratic oath).

229 Lobas, supra note 28, at 489 (listing some of the potential short-term complications of kidney donation including “allergic reactions to the anesthesia, pneumonia, blood clots, hemorrhaging, the need for blood transfusions, [and] infection of the wound or urinary tract”).

230 Id. (listing some of the potential long-term medical risks, including “increased risk of high blood pressure, increased incidence of kidney failure,” and the possibility that if the remaining kidney is injured, the individual will be without a working kidney).

231 Ghods, supra note 32, at 188.

232 Id.

233 Olbrisch et al., supra note 48, at 46.

234 Kallich & Merz, supra note 12, at 151.

235 Spital, Aaron, Ethical Issues in Living Organ Donation: Donor Autonomy and Beyond, 38 Am. J. Kidney Diseases 189, 189 (2001)CrossRefGoogle ScholarPubMed (“Respect for autonomy (i.e. self-governance) is a fundamental value of Western societies.”).

236 Kallich & Merz, supra note 12, at 151.

237 Allen, M. B. et al., What Are the Harms of Refusing to Allow Living Kidney Donation? An Expanded View of Risks and Benefits, 14 Am. J. Transplantation 531, 531 (2014)CrossRefGoogle ScholarPubMed (encouraging empirical studies be performed to fully “understand the interests of patients who wish to donate a kidney”).

238 Id. at 531 (“Over 5500 living kidney donor transplants take place each year in the United States, and directed donation by spouses and close family members accounts for 87% of living kidney transplants since 1988”).

239 Id. at 532.

240 Id. (emphasizing how “the strains of chronic dialysis treatment” may result in disability, loss of income and inability to provide childcare).

241 Ghods, supra note 32, at 184 (“An ethical consensus developed around the world that all organ donations have to be altruistic, meaning that there should be no payment for people who are willing to have their organs … used for transplantation.”); see also Delmonico, Francis L. et al., Ethical Incentives – Not Payment – for Organ Donation, 346 New Eng. J. Med. 2002, 2004 (2002)CrossRefGoogle Scholar (“[A] market system of organ donation fosters class distinctions (and exploitation), infringes on the inalienable values of life and liberty, and is therefore ethically unacceptable.”).

242 Delmonico et al., supra note 241, at 2002; see also Spital, supra note 237, at 189 (“Because living organ donation carries risk of harm for the donor, before accepting a volunteer it is essential to be sure that his offer is genuine.”).

243 Gentry et al., supra note 96, at 2369.

244 Ghods, supra note 32, at 187.

245 Id.

246 Id.; see also Ommen et al., supra note 11, at 893 (“It is not paternalism but protection of [physicians'] own core beliefs that prevents [them] from facilitating a donation that … may cause substantial harm to the donor.”).

247 Spital, supra note 237, at 193.

248 See id. at 189 (“[B]efore accepting a volunteer as an organ donor, we must first ask: how can we be sure that his offer reflects his own values and goals, i.e. that he is indeed acting autonomously?”).

249 Id. at 191 (“In a true situation of coercion what controls, and thus deprives one of autonomy is the forced will of another person substituted for one's own will or desire.”).

250 E.g., Glannon, Walter & Ross, Lainie Friedman, Do Genetic Relationships Create Moral Obligations in Organ Transplantation?, 11 Cambridge Q. Healthcare Ethics 153, 154 (2002)CrossRefGoogle ScholarPubMed (noting that an altruistic act is one that is “freely chosen, rather than done out of duty or obligation”); Lobas, supra note 28, at 494 (“To make a truly voluntary decision, self-imposed internal pressures or external familial pressures must not control an individual's decision-making.”).

251 Morley, supra note 9, at 248 (“It has been suggested that this ideal of voluntary consent cannot be achieved with regard to living organ donation because of the inherently coercive nature of situations where a parent, sibling, or child is in dire need of an organ.”).

252 Id.; Truog, supra note 51, at 444 (“With directed donation to loved ones or friends, worries arise about the intense pressure that can be put on people to donate, leading those who are reluctant to do so to feel coerced.”); Russell, Sue & Jacob, Rolf G., Living-Related Organ Donation: The Donor's Dilemma, 21 Patient Educ. & Couns. 89, 95-96 (1993)CrossRefGoogle ScholarPubMed (noting that when “approaching a family member about donating an organ … [e]ven in the best of circumstances, some degree of coercion may be inevitable”).

253 Hardwig, John, Is There a Duty to Die?, 27 Hastings Ctr. Rep. 34, 37 (1997)CrossRefGoogle Scholar.

254 Kallich & Merz, supra note 12, at 145.

255 Lobas, supra note 28, at 494 (“This coercion [to donate] results from family mores that all but force a family member to sacrifice anything, even an organ, for another member of the family.”); Kallich & Merz, supra note 12, at 145 (“[F]amilial social mores regarding self-sacrifice to assist members of a family unit govern organ donation.”).

256 Glannon & Ross, supra note 252, at 155.

257 Lobas, supra note 28, at 494.

258 E.g., id.; Kallich & Merz, supra note 23, at 145.

259 Ghods, supra note 32, at 187 (arguing that pressure to donate a kidney can be “external, ie, the pressure is brought by another person such as a family member, or it can be internal, arising out of a sense of duty”).

260 Kallich & Merz, supra note 12, at 153 (“The potential donor may not be able to deal with the guilt of not donating when he or she is revealed as medically suitable for donation.”); Morley, supra note 9, at 249 (“[G]uilt would likely stem from the fact that the potential donor feels, at least in part, that morality requires one to donate a nonvital organ when necessary to save the life of a family member.”).

261 Spital, supra note 237, at 191 (listing several survey answers in which parents claimed they would accept a great amount of personal medical risk if a child needed a nonvital organ donation).

262 Id. at 190 (questioning how family members who refuse to donate could face their respective ill relatives and families).

263 Morley, supra note 9, at 249.

264 Lobas, supra note 28, at 494.

265 Spital, supra note 237, at 190 (citing research conducted on organ donors about informed consent finding that “78% of the donors interviewed said they knew right away they would donate and 62% were classified as having made an immediate choice”).

266 Id.

267 Davis & Wolitz, supra note 83.

268 Spital, supra note 237, at 192.

269 Id. at 191.

270 Morley, supra note 9, at 250 (“A patient is not coerced into a decision when she acts in accordance with her personal moral beliefs … acting so as to avoid such feelings of guilt is evidence of autonomy, not coercion.”).

271 Spital, Aaron, Intrafamilial Organ Donation Is Often an Altruistic Act: A Response, 12 Cambridge Q. Healthcare Ethics 116, 116-17 (2003)CrossRefGoogle Scholar (“What motivates caring parents to donate an organ … is the deep love and concern they have for their children, not a sense of obligation …. [O]ne human being chooses to risk her life to save another, not out of a sense of duty but rather because of love and concern.”).

272 Spital, supra note 237, at 192 (“[W]hen the welfare of a loved one is at stake, many people choose to donate simply because the person they wish to help is of such great importance to them.”).

273 E.g., Adams et al., supra note 32, at 586 (“[D]onor is usually rewarded because a loved one or friend has enjoyed improved health and quality of life from the donation.”); Delmonico et al., supra note 241, at 2003 (“Spouses and siblings who act as living donors experience the personal reward of seeing that the recipient's well-being is restored.”); Glannon & Ross, supra note 252, at 155 (claiming that a person can derive a “psychological benefit” from saving a life by donating an organ; however, family members do not donate “on the condition that [they] will receive some psychological benefit in return”); Spital, supra note 273, at 117 (noting that in the case of a donor parent, “one human being chooses to risk her life to save another … without any expectation of reward other than the hope of seeing her child restored to health”).

274 Olbrisch et al., supra note 48, at 52.

275 Allen et al., supra note 239 at 532.

276 Davis & Wolitz, supra note 83.

277 Kallich & Merz, supra note 12, at 146.

278 See id. (“[W]ithout appropriate safeguards, a family member can easily be coerced into making a decision to donate.”).

279 See Israni et al., supra note 29, at 18 (noting that donors should be “fully informed of the risks and benefits to themselves and to the potential recipient”); Kallich & Merz, supra note 12, at 154 (suggesting that the transplant community “implement a series of policies and procedures that protect a prospective donor's right to make an informed choice to donate, free (as much as possible) from the known pressures to donate an organ to those in need of a transplant”).

280 See Spital, supra note 244, at 190 (“Informed consent is designed to ensure autonomous choice by protecting people from exploitation and by requiring understanding.”).

281 Id. at 192.

282 Id. (“I believe that … all [potential donors] should be evaluated in private by an experienced mental health professional who has no vested interest in the welfare of the intended recipient or the transplant program.”).

283 Id. at 193 (“[D]onation presents a conflict of interest for transplant centers because they stand to benefit from the procedure.”).

284 See Russell & Jacob, supra note 254, at 96 (suggesting that counseling be “provided for those who choose not to donate … to alleviate any guilt” and that there be a “two-week waiting period before the operation during which the donor would have the opportunity to withdraw consent”).

285 See supra Part I.

286 See Israni et al., supra note 29, at 18 (emphasizing that donors should be competent, mentally and physically stable and informed of the potential risks and benefits to both themselves and the potential recipient).

287 See id. (“At many transplant centers both the recipient and the potential donors are informed that results of the donor's evaluation will only be revealed to the donor.”).

288 Id.; see also Ghods, supra note 32, at 187 (“All potential donors should receive information that the transplant physician is prepared to offer a medical excuse for not donating even when no excuse exists.”); Kallich & Merz, supra note 12, at 152 (“Occasionally, physicians will provide a technical excuse (such as a poor match) for potential donors expressing their desires not to proceed with the act.”); Rosen et al., supra note 31, at 728 (“If a potential donor chooses not to proceed with the evaluation or donation process, the center may state that the donor did not meet the program's criteria for donation ….”).

289 Russell & Jacob, supra note 254, at 97.

290 See Israni et al., supra note 29, at 18 (“Transplant centers should provide committed donors with every opportunity to change their mind up until the time of the surgery itself.”).

291 Russell & Jacob, supra note 254, at 96.

292 NEAD chains also increase the risk of black market sales of kidneys because incompatibility is no longer a concern. This article will focus only on coercion related to donations to family members or close friends, which accounts for most donations.

293 Wallis et al., supra note 64, at 2097 (“[S]ome argue that [paired kidney donation] places donors under even greater pressure to donate because it eliminates incompatibility as an excuse to avoid donation.”); see also Ross, Lainie Friedman et al., Ethical Issues in Increasing Living Kidney Donations by Expanding Kidney Paired Exchange Programs, 69 Transplantation 1539, 1542 (2000)Google ScholarPubMed (acknowledging that “all exchanges increase the potential for coercion because they eliminate the easy medical excuses for donors”).

294 Definitions of Types of Living Donation, Living Donor 101 (March 4, 2012), www.livingdonor101.com/typesoflivingdonation.shtml [https://perma.cc/22YR-P9XQ].

295 Id.

296 See Olbrisch et al., supra note 48, at 46 (suggesting that coercion can result if “a recipient's family [reaches a consensus] about who is the most appropriate donor within the family system”).

297 See Woodle et al., supra note 172, at 1465 (arguing that “[h]onor systems are ethically problematic because they are inherently coercive”).

298 See supra Part II.

299 Woodle et al., supra note 172, at 1465.

300 See Wallis et al., supra note 64, at 2097 (“[S]ince NEAD chains create a situation where bridge donors' incompatible recipients have already received transplants, some argue that this inappropriately limits the donor's ability to withdraw and by its very nature is coercive.”).

301 See Woodle et al., supra note 172, at 1466 (noting that if individuals “become cognizant that several individuals are dependent on their kidney donation[,]” this “may subject them to an increased degree of perceived coercion”).

302 See Ashlagi, supra note 161, at 984.

303 Rees et al., supra note 151, at 1098; see also Ashlagi, supra note 161, at 984 (“NEAD chains create ‘bridge donors’ whose incompatible recipients receive kidneys before the bridge donor donates, and so risk reneging by bridge donors.”); Wallis et al., supra note 64, at 2097 (explaining that while a NEAD chain “has the potential for ‘bridge’ donor reneging,” this “controversial risk of inequity has been justified by a belief that nonsimultaneous chains would provide greater utility”).

304 See Definitions of Types of Living Donation, supra note 296 (“[I]n Paired/Chain donation, the loss of one person means the collapse of the entire Pair/Chain, and the subsequent disappointment of many people instead of just one.”).

305 See supra Part II.

306 Woodle et al., supra note 172, at 1466.

307 See Healy & Krawiec, supra note 194, at 656 (showing that a bridge donor's promise to donate “has sometimes proven insufficient in circumstances in which [the bridge donor has] time to consider, and reconsider, their voluntary commitment [to donate]”).

308 Woodle et al., supra note 172, at 1462.

309 Healy & Krawiec, supra note 194, at 669.

310 Woodle et al., supra note 172, at 1466.

311 Truog, supra note 51, at 444; see also Definitions of Types of Living Donation, supra note 296 (noting that “Paired/Chain Donation removes [incompatibility] as a viable reason not to donate”).

312 Definitions of Types of Living Donation, supra note 296.

313 National Organ Transplant Act of 1986 § 301, 42 U.S.C. § 274e(a) (2012); see Hansmann, supra note 113, at 59.

314 42 U.S.C. § 274e(a); see also, Boyer supra note 111, at 332 (“[B]oth NOTA and the UAGA allow parties involved in the ‘removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ’ to collect ‘reasonable payments’ for the services they provide.”).

315 42 U.S.C. § 274e(c)(2)

316 Wallis et al., supra note 64, at 2091; see also Roth et al., supra note 92, at 461.

317 See 153 Cong. Rec. 18209 (2007) (statement of Sen. Levin) (noting that NOTA's prohibition on transfers of organs for valuable consideration had “been interpreted by a number of transplant centers to prohibit [paired kidney donation]”); 153 Cong. Rec. 5437 (2007) (statement of Rep. Inslee) (“[C]linical efforts in the direction of paired donation have been severely hampered by concerns over the legal status of such activity.”).

318 Morley, supra note 9, at 246 (“[B]ecause a donor in a paired organ exchange trades his organ for a compatible organ for his loved one, some may argue that the donor receives ‘valuable consideration.’”).

319 See 153 Cong. Rec. 5439 (2007) (statement of Rep. Dingell) (supporting an amendment to NOTA clarifying that paired kidney donations do not violate NOTA's prohibition on transferring organs for “valuable consideration”).

320 Kolber, supra note 132, at 699.

321 S. Rep. No. 98-382, at 4 (1984).

322 See H.R. Rep. No. 98-1127, at 16 (1984) (Conf. Rep.).

323 Healy & Krawiec, supra note 194, at 662.

324 Id. at 662-63.

325 See Definitions of Types of Living Donation, supra note 296 (“The largest barrier to the spread of Paired Donation was the concern that it violated NOTA's ‘no compensation’ clause for living donors.”); Healy & Krawiec, supra note 194, at 661 (explaining that the fear that paired kidney donation violated NOTA motivated Congress to amend NOTA).

326 Charlie W. Norwood Living Organ Donation Act, Pub. L. No. 110-144, 121 Stat. 1813. The legislation was named in honor of Representative Charlie W. Norwood, who was a longtime advocate of organ transplantation, following his death on July 9, 2007. See 153 Cong. Rec. 33289 (2007).

327 National Organ Transplant Act of 1986 § 301, 42 U.S.C. § 274e(a) (2012).

328 See Gentry et al., supra note 53, at 148 (“Uncertainty about whether [paired kidney donation] constituted valuable consideration persisted until the US [sic] Congress passed legislation explicitly exempting [paired kidney donation] from NOTA in 2007.”).

329 153 Cong. Rec. 18209 (2007) (statement of Sen. Levin). The Senate broadened the language in the amendment to include paired organ donation, instead of paired kidney donation, in case paired donation was extended to other organs. 153 Cong. Rec. 33289 (2007).

330 153 Cong. Rec. 18209 (2007) (statement of Sen. Levin).

331 Healy & Krawiec, supra note 194, at 661.

332 42 U.S.C. § 274e(c)(4)(C). (“Subject to subparagraph (D), the first donor is biologically compatible as a donor of a human organ for the second patient and the second donor is biologically compatible as a donor of a human organ for the first patient.”)

333 Id. at § 274e(c)(4)(D). (“If there is any additional donor-patient pair as described in subparagraph (A) or (B), each donor in the group of donor-patient pairs is biologically compatible as a donor of a human organ for a patient in such group.”).

334 Id. at § 274e(c)(4)(E).

335 Although Domino Paired Donation (DPD) chains could meet the criterion for a “single agreement” because the donations in a DPD chain are simultaneous, DPD chains do not have reciprocal matching and therefore would not meet the criteria in § 274e(c)(4)(C)-(D).

336 42 U.S.C. § 274e(a).

337 153 Cong. Rec. 33289 (2007) (statement of Sen. Levin).

338 153 Cong. Rec. 32019 (2007) (statement of Rep. Inslee).

339 153 Cong. Rec. 32060 (2007) (statement of Rep. Deal).

340 See generally, Healy & Krawiec, supra note 194, at 655-56 (arguing that NEAD chains “harness the logic of the gift” by fostering positive feelings of paying-it-forward).

341 See supra Part IV(A).

342 See supra Part III(A).

343 Healy & Krawiec, supra note 194, at 658.

344 Id. at 667.

345 Id. at 663 (“[A] mere promise alone to make a gift of an organ is not intended to be legally binding.”).

346 Id. at 645 (emphasizing that there is no “obligation to reciprocate directly with the giver”).

347 Id. at 648.

348 Id. at 660.

349 See supra Part III.

350 Healy & Krawiec, supra note 194, at 655 (“As a rule … a gift that is immediately reciprocated is not a gift at all.”).

351 Id. at 660.

352 Id.

353 Id. at 648.

354 See Morley, supra note 9, at 255 (“Because the donor in a paired organ exchange would be providing his organ in order to obtain a compatible organ for his loved one, it can be argued that the donor is receiving consideration for this act.”).

355 Id. at 257 (“While no money changes hands in a paired organ exchange, the heart of the concept is still based on the bargain.”).

356 Morley, supra note 9, at 258.

357 Definitions of Types of Living Donation, supra note 296; see also Glorie et al., supra at 124 (noting that there are differences in the quality of kidneys).

358 See Hansmann, supra note 113, at 76; see also, e.g., 153 Cong. Rec. 5439 (2007) (statement of Rep. Norwood) (differentiating paired donation from commercial transactions by stating that the valuable consideration clause was meant “to outlaw the buying and selling of organs, which everyone agrees is proper”).

359 See Delmonico et al., supra note 241, at 2002; see also Boyer, supra note 111, at 329 (arguing that one of Congress's main motivations in passing NOTA was to prevent the buying and selling of human organs).

360 153 Cong. Rec. 18209 (2007) (statement of Sen. Levin).

361 153 Cong. Rec. 32060 (2007) (statement of Rep. Inslee).

362 153 Cong. Rec. 5436 (2007) (statement of Rep. Dingell).

363 See Boyer, supra note 111, at 327, 330 (adding that “every country in the world, with the exception of two, have laws that prohibit the sale of human organs”).

364 153 Cong. Rec. 5440 (2007) (statement of Rep. Linder) (explaining that paired organ donation is a “critically important vehicle for giving the gift of life to others”).

365 Morley, supra note 9, at 257 (defining “market inalienable” as “selling something so precious that no man should part with it”).

366 Dickens, Bernard M., Morals and Legal Markets in Transplantable Organs, 2 Health L.J. 121, 130 (1994)Google ScholarPubMed (“The presence of a monetary price … for a service once considered to be beyond price is seen to debase the service, and reduce it from a priceless gift given as a token of love, esteem and dedication to a mere incident of commerce.”); see also Morley, supra note 9, at 257 (noting that “one may not purport to sell what cannot be sold, for in the very process of sale that which is purportedly sold is transformed and its value is destroyed or diminished”).

367 Boyer, supra note 111, at 330.

368 Nelson v. Brown, 164 Ala. 397, 405 (1910) (marriage); Cohen, Lloyd R., Increasing the Supply of Transplant Organs: The Virtues of a Futures Market, 58 Geo. Wash. L. Rev. 1, 26-27 (1989)Google ScholarPubMed (friendship); Hansmann, supra note 113, at 75 (parenthood).

369 See Dickens, supra note 369, at 127 (“Societies are frequently uncomfortable when market forces enter areas of activity that are traditionally considered to be the sphere of morally-inspired initiatives ….”).

370 Id. at 128.

371 Hansmann, supra note 113, at 77.

372 See Dickens, supra note 369, at 128 (“Certain functions that are expected to be discharged through family allegiance and moral commitments are, perhaps increasingly, coming to be discharged through commercial services that many feel are questionable or even inappropriate ….”).

373 Hansmann, supra note 113, at 71 (noting that payment has routinely been made to living donors for “replenishable” body products such as blood, sperm, skin and hair).

374 Morely, supra note 9, at 247; see also Hansmann, supra note 113, at 77 (explaining how market transactions involving intra-family donations might strain family relations).

375 153 Cong. Rec. 5439 (2007) (statement of Rep. Dingell) (“Paired transplantation is a way to solve the dilemma faced by people who want to become living organ donors for a family member or friend, but are unable to do so because they are biologically incompatible.”); 153 Cong. Rec. 5437 (2007) (statement of Rep. Norwood) (promoting paired donation to help “those who want to give a kidney to a loved one [but] feel they cannot help because they are not biologically compatible with the patient in need”).

376 See 153 Cong. Rec. 5440 (2007) (statement of Rep. Gingrey).

377 See, e.g., Philips Elec. & Pharm. Indus. Corp. v. Thermal & Elecs. Indus., 450 F.2d 1164, 1170 n.7 (3d Cir. 1971) (finding that the term “printed” in a patent statute could “include documents duplicated by modern methods and techniques including … microfilming”); Cain v. Bowlby, 114 F.2d 519, 522 (10th Cir. 1940) (finding that “or other public conveyance” in a statute included trucks even though at the time of the enactment of the statute “trucks were unknown”).

378 D'Aleman v. Pan Am. World Airways, Inc., 259 F.2d 493, 495 (2d Cir. 1958).

379 Id. (“The statutory expression ‘on the high seas’ should be capable of expansion to, under, or, over, as scientific advances change the methods of travel. The law would indeed be static if a passenger on a ship were protected by [DOHSA] and another passenger in the identical location [in a plane] were not.”).

380 New York v. Jones, 461 N.Y.S.2d 962, 965-66 (N.Y. Cty. Ct. 1983).

381 Id. at 966 (“[T]o adopt the defendant's position would be to bind inflexibly the administration of justice to the level of technology extant at the time of the enactment of the statute while technological advances thereafter would be unavailable to law enforcement officials if they did not fall within the terminology of a dated statute.”).

382 E.g., 153 Cong. Rec. 5440 (2007) (statement of Rep. Inslee)

383 Id.

384 153 Cong. Rec. 5440 (2007) (statement of Rep. Kingston).

385 153 Cong. Rec. 5437 (2007) (statement of Rep. Inslee).

386 153 Cong. Rec. 5440 (2007) (statement of Rep. Gingrey).

387 Proverb, anonymous source.