¹ Breo, , Is ‘Baby Fae’ Transplant Worth It? Experts Mixed, Am. Med. News, Nov. 9 , 1984, at 1Google Scholar, col. 3.

² Id. at 42, col. 2 (quoting Houston heart surgeon Denton-Cooley, M.D.).

³ Id. at 42, col. 1 (quoting Minnesota transplant surgeon John Najarian, M.D.).

⁴ Id. at 41, col. 1 (quoting Houston heart surgeon and artificial heart pioneer William DeVries, M.D.).

⁵ President of the American Association for the Advancement of Science.

⁶ Breo, supra note l,at l, col. 3 (quoting Elmer Stackman, then President of the American Association for the Advancement of Science).

⁷ Id. at 43, col. 2 (quoting Leo Henikoff, M.D., pediatric cardiologist and President of Rush-Presbyterian Medical Center, Chicago. He is also a member of the Judicial Council of the American Medical Association.).

⁸ Id. at 43, col. 4 (quoting William Braun, M.D., specialist in transplant immunology at the Cleveland Clinic).

⁹ Transplantation is defined as: "Grafting; implanting in one part a tissue or organ taken from another part or another person.” Stedman’s Medical Dictionary 1472 (4th Unabridged Lawyer’s Ed. 1976).

¹⁰ See generally Katz, J. & Capron, A.M., Catastrophic Diseases: Who Decides What? 35-50 (1975)Google Scholar (for a brief historical review of kidney transplantation).

¹¹ Other organs include the pancreas, heart and lungs as a block, and cornea.

¹² In 1982, 5358 patients underwent kidney transplantation; approximately 100 patients underwent heart transplants (7 of which underwent simultaneous heart-lung transplants); less than 100 liver transplants were performed. Health Care Financing Administration, Department of Health and Human Services, reported in Koop, , Increasing the Supply of Solid Organs for Transplantation, 98 Pub. Health Rep. 566 (1983)Google ScholarPubMed. In 1983 there were 6,138 kidney trans plants, 163 liver transplants, 172 heart transplants, 37 simultaneous heart-lung transplants, and 150 pancreatic transplants (data supplied in Organ Transplants, H.R. Rep. No. 769, 98th Cong., 2nd Sess. 3 (1984) [hereinafter cited as Organ Transplants].

¹³ Koop, supra note 12.

¹⁴ Blood can be maintained or “banked" in proper storage for up to twenty-one days.

¹⁵ With respect to liver transplantation, see generally Office of Health Technology Assessment, National center for Health Services Research, Public Health Service Assessment of Liver Transplantation 1983, reprinted in Organ Transplantation: Hearing Before the Comm. On Labor and Human Resources, 98th Cong., 1st Sess. 38 (1983)Google Scholar [hereinafter cited as 1983 Senate Hearings]; see also National Institutes of Health, Consensus Development Conference: Summary on Liver Transplantation, reprinted in 1983 Senate Hearings at 82Google Scholar; for heart transplants, see Copeland, Mammana, Fuller, Campbell, McAleer, & Sailer, , Heart Transplantation: Four Years Experience With Conventional Immunosuppression, 250 J.A.M.A. 1563 (1984)CrossRefGoogle Scholar; for kidney transplantation, see Roberts, Maxwell, & Gross, , Cost-Effective Care of End-Stage Renal Disease: A Billion Dollar Question, 92(1) Ann. Intern. Med. 243 (1980)CrossRefGoogle ScholarPubMed.

¹⁶ Organ Transplants: Hearings on H.R. 4080 Before the Subcommittee on Investigations and Oversight of the House Comm. of Science and Technology, 98th Cong., 1st Sess. 105-06 (1983) (prepared statement of Dr. G. Melville Williams) [hereinafter cited as 1983 House Hearings].

¹⁷ Starzl, Iwatsuki, Van Thiel, Gartner, Zitelli, Malatack, Schade, Shaw, Hakala, Rosenthal, & Porter, , Evolution of Liver Transplantation, 2 Hepatology 614 (1982)CrossRefGoogle ScholarPubMed; see also Najarian, & Asher, , Liver Transplantation, 311 New Eng. J. Med. 1179 (1984)CrossRefGoogle ScholarPubMed. The authors question how much of the improvement is due to cyclosporine, taking into account factors such as operating on younger patients, better organ retrieval techniques, decreased operative blood loss, and improved operative techniques.

¹⁸ Copeland, supra note 15, at 1563-66.

¹⁹ Food & Drug Admin., U.S. Dep'T of Health & Human Services, HHS News, Pub. No. 83-19 (Sept. 2 , 1983)Google Scholar.

²⁰ Problems relating to the various definitions of death are discussed in Section IV(A)(1) of the text.

²¹ For example: Should the excess harvested organs be distributed locally to a transplant group that has not been cooperative in sharing their excess harvested organs?

²² See Prottas, , Obtaining Replacements: The Organizational Framework of Organ Procurement, 8 J. Health, Pol., Pol'y and Law 235 (1983)CrossRefGoogle ScholarPubMed.

²³ The federal government spends over $70,000,000 annually to fund 110 OPAs. See Organ Transplants, supra note 12.

²⁴ See generally 1983 House Hearings, supra note 16 (testimony of transplant surgeons and organ procurement personnel).

²⁵ National Organ Transplant Act, Pub. L. No. 98-507, 98 Stat. 2339 (1984).

²⁶ Koop, supra note 12, at 566.

²⁷ Id. at 571.

²⁸ This may include asking questions such as: even if kidney transplantation is shown to be a cost-effective way of treating end-stage renal disease, should society be supporting other organ transplants? Should society support the use of liver transplantation to treat an individual with alcohol-induced liver disease or should we only use transplants for treatment of diseases over which we have no control?

²⁹ 1983 Senate Hearings, supra note 15, at 2.

³⁰ Caplan, , Organ Transplants: The Costs of Success, 13 Hastings Center Rep. 23 (Dec. 1983)Google Scholar. Arthur Caplan is associate for the humanities at the Hastings Center (Institute of Society, Ethics and the Life Sciences, Hastings-on-Hudson, N.Y.).

³¹ Van Thiel, Schade, Starzl, Iwalsuki, Shaw, Gavalet, & Dugas, , Liver Transplantation in Adults, 2 Hepatology 637 (1982)CrossRefGoogle ScholarPubMed.

³² 1983 Senate Hearings, supra note 15, at 70.

³³ Id. at 71.

³⁴ Id. at 71-72.

³⁵ Roberts, , Cost-Effective Care of End-Stage Renal Disease: A Billion Dollar Question, 92(1) Ann. Intern. Med. 243 (1980)CrossRefGoogle ScholarPubMed.

³⁶ 1983 Senate Hearings, supra note 15, at 109 (statement of Carolyne K. Davis, Ph.D., Administrator, Health Care Financing Administration). See also Staff of Senate Comm. on Finance, 97th Cong., 1st Sess., Report on End-Stage Renal Disease (ESRD) Program Under Medicare 2 (Comm. Print 97-9 1981); Staff of Senate Comm. on Finance, 97th Cong., 2d Sess., Report on Proposed Prospective Reimbursement Rates for the End-Stage Renal Disease (ESRD) Program Under Medicare (Comm. Print 97-12 1982).

³⁷ 1983 Senate Hearings, supra note 15, at 109.

³⁸ Id. at 110.

³⁹ Copeland, supra note 15, at 1566.

⁴⁰ Id.

⁴¹ The Civilian Health and Medical Program for the Uniform Services (CHAMPUS) is responsible for providing medical care for dependents of active duty personnel if the military medical system cannot provide such care.

⁴² Copeland, supra note 15, at 1566.

⁴³ Uniform Anatomical Gift Act, 8A U.L.A. 15 (1985) (Proposed Official Draft 1968) [hereinafter cited as UAGA].

⁴⁴ Id. at 16.

⁴⁵ Id.

⁴⁶ Overcast, Evans, Bowen, Hoe, & Livak, , Problems in the Identification of Potential Organ Donors, 251 J.A.M.A. 1559-60 (1984)CrossRefGoogle ScholarPubMed (investigating why demand continues to outpace supply) [hereinafter cited as Potential Organ Donors]. Cf. Overcast, Merriken, , & Evans, , Malpractice Issues in Heart Transplantation, 11 Am. J.L. & Med. 363 (1985)Google Scholar.

⁴⁷ Testimony of David A. Ogden, M.D., President, National Kidney Foundation, 1983 House Hearings, supra note 16, at 238.

⁴⁸ See generally Gallup Organization, Attitudes and Opinions of the American Public Toward Kidney Donation. Executive summary reprinted in 1983 House Hearings, supra note 16 at 238-48. Personal interviews were conducted of a nationally representative sample of almost 1,600 persons aged 18 years and over. Almost all of those interviewed (93%) had heard of organ transplantation, and 76% were aware of organ donor cards. There was no difference between those who were aware of donor cards and those who were not as to whether they would want their own kidneys donated. It is interesting to note that 83% of those aware of organ transplantation indicated that they were very or somewhat likely to donate the kidneys of a relative, but that only 40% were somewhat or very likely to donate their own kidneys after death (the term “donate" in the context of a living individual refers to an expression of donative intent). Fewer than half of the individuals who were somewhat or very likely to donate their own kidneys after their death had told family members of their wishes, and fewer than one-third had signed an organ donor card. Fewer still had told close friends (18%), a doctor (5%), or indicated their intention in a will (4%).

The various reasons given by all respondents for not wanting their kidneys donated were: "I never really thought about it.” (20%); "I don't like the idea of somebody cutting me up after I die.” (20%); "They might do something to me before I'm really dead.” (15%); and “It is against my religion.” (7%).

⁴⁹ Potential Organ Donors, supra note 46, at 1560.

⁵⁰ All States and the District of Columbia except Delaware, Florida, Hawaii, Nebraska, Nevada, and Pennsylvania. Id.

⁵¹ Colo. Rev. Stat. § 42-2-106(5) (1981).

⁵² Potential Organ Donors, supra note 46, at 1560.

⁵³ All States and the District of Columbia except Michigan, North Dakota, and Wyoming. Id.

⁵⁴ National Kidney foundation (35 states), Lion’s Eye Bank (29 states), Hospitals (21 states), Organ Procurement Program (18 states). Id.

⁵⁵ Id. at 1561.

⁵⁶ Id.

⁵⁷ All states except California, Colorado, Florida, and Wyoming. Id.

⁵⁸ Id.

⁵⁹ Id.

⁶⁰ Id. at 1562.

⁶¹ Starzl, , Implied Consent for Cadaveric Organ Donation, 251 J. A.M. A. 1592 (1984)CrossRefGoogle ScholarPubMed.

⁶² See Chapman, , Retailing Human Organs Under the Uniform Commercial Code, 16 J. Mar. 393 (1983)Google ScholarPubMed.

⁶³ Kidneys and Eyes for Sale as Well as Parts of Blood, Evening Journal (Wilmington, Delaware), April 14, 1975, at 10, col. 1. Financial compensation is a strong incentive. United Press International gave an account of several people offering to sell their kidneys or corneas. One offered to sell a kidney for $4,700 and another offered a kidney or cornea for $10,000. Physicians caring for the patients refused to consider such offered organs. Chapman, supra note 62, at 401 n.49; see also Shapiro, M. & Spece, R. Jr., Cases, Materials, and Problems on Bioethics and Law 823-24 (for several newspaper quotes)Google Scholar.

⁶⁴ Brams, , Transplantable Human Organs: Should Their Sale Be Authorized By State Statutes? 3 Am. J.L. & Med. 183, 186-87 (1977)Google ScholarPubMed (emphasis in original) (citation omitted).

⁶⁵ See, e.g., Cal. Health and Safety Code §7051 (West 1970) (“Every person who removes any part of any human remains from any place . . . with intent to sell it . . . without authority of law ... is punishable by imprisonment. . . .”).

⁶⁶ Titmuss, R., The Gift Relationship: From Human Blood to Social Policy (1971)Google Scholar.

⁶⁷ Kessel, , Transfused Blood, Serum Hepatitis, and the Coase Theorem, 17 J. Law & Econ. 265 (1974)CrossRefGoogle Scholar.

⁶⁸ Id.

⁶⁹ Brams, supra note 64, at 192.

⁷⁰ For simplicity “donors" refers both to voluntary and paid individuals.

⁷¹ Chapman, supra note 62, at 416 n.145.

⁷² Caplan, supra note 30.

⁷³ Id. at 25.

⁷⁴ Brams, supra note 64, at 192 (emphasis in original).

⁷⁵ Titmuss, supra note 66.

⁷⁶ 1983 House Hearings, supra note 16, at 346-47.

⁷⁷ H.R. 3774, 97th Cong., 1st Sess. (1981).

⁷⁸ 1983 House Hearings, supra note 16, at 746-47 (testimony of Dr. Jeffrey M. Prottas).

⁷⁹ This Article does not present an in depth analysis of state legislative activities regarding organ donation. However, the approaches taken by several states are of interest. The Virgina legislature sought to address the need for cadaveric organs, particularly pituitary glands, in an effort to harvest growth hormone for dwarves. The proposed state statute removed the actual consent requirement under certain circumstances, thus creating a presumption of consent. H.B. 87 (Virginia 1980).

The first opposition voice was the Anti-Defamation League (ADL) of the B'nai B'rith. Norman Olshansky of the ADL reminded the legislature’s Committee on Health, Welfare and Institutions of the traditional position of Orthodox Jews who object to autopsy and other post-mortem surgery as “mutilation" of the dead. Religious principles could be violated by the proposed law, he argued. Judy Goldberg, lobbyist for the Virginia chapter of the American Civil Liberties Union (ACLU), raised another objection, resting on the potential the bill raised for abridgment of the right to put religious beliefs into practice, a right traditionally protected by the First Amendment to the Constitution.

An additional Constitutional question involved the Fourteenth Amendment “due process" clause. Court decisions have recognized the proprietary interests of the next of kin in the disposition of dead bodies. To remove the need for explicit consent could violate Constitutionally mandated procedural protections to such “rights to property.” The ADL and ACLU were joined by the Interfaith Social and Legislative Action Group (ISLAG) composed of clergy of various faiths who lobbied against the bill. See Lombardo, , Consent and ‘Donations’ From the Dead, 11 Hastings Center Rep. 9, 9-10 (Dec. 1981)Google Scholar. Proponents were equally vocal and emotions ran high. A newspaper account went so far as to characterize the debate as one of dwarves versus Collins, Jews., “Harvest of Dead" Bill Advances in Richmond, Washington Post, January 23 , 1981, at C-1Google Scholar, col. 1. A legislative compromise eventually passed. Va. Code § 32.1-289,297.1 (1985).

Delaware legislation promotes recognition of potential organ donors by requiring health facilities to document upon admission whether a patient is a prospective organ donor. Del. Code Ann. tit. 16, §§ 1018, 1126; tit. 31 § 2824 (1984).

In Illinois, an Experimental Organ Transplantation Procedure Board determines the financial eligibility of organ transplant recipients for state grants of up to $200,000 pertransplant. The grants are paid directly to teaching hospitals and medical centers performing transplants within the state. Ill. H.B. 2321 (New Laws 1984), cited in 102 Hospital Law Manual 14 (attorney’s ed. December 1984).

⁸⁰ Approximately seventeen pieces of legislation have been introduced to address various aspects of organ transplantation. H.R. Rep. No. 98-382, 98th Cong., 2nd Sess. 3 (1984).

⁸¹ The Subcommittee on Investigation and Oversight of the Committee on Science and Technology held hearings on April 13, 14, and 27, 1983, and November 7 and 9, 1983. 1983 House Hearings, supra note 16. The record of the first three days of Subcommittee hearings are published as Committee on Science and Technology, H.R. Doc. No. 16, 98th Cong., 1st Sess. (1983).

⁸² H.R. 4080, 98th Cong., 1st Sess. (1983).

⁸³ The grants were to be $5,000,000 for fiscal year 1984, $10,000,000 for fiscal year 1985, $15,000,000 for fiscal year 1986, and $20,000,000 for fiscal year 1987.

⁸⁴ H.R. 4080, 98th Cong., 1st Sess. (1983).

⁸⁵ 42 U.S.C. § 1395(1982).

⁸⁶ H.R. 4080, 98th Cong., 1st Sess. (1983).

⁸⁷ Id.

⁸⁸ H.R. 4080, 98th Cong., 1st Sess. (1983) provides that:

⁸⁹ 42 U.S.C. § 1395(y)(a) (1982).

⁹⁰ The federal jurisdiction is based on the Commerce Clause of the United States Constitution. U.S. Const, art. I, § 8, cl. 3.

⁹¹ See Veatch, , Medical Ethics, 252 J.A.M.A. 2296, 2298 (1984)Google Scholar.

Veatch notes that Virginia physician, Dr. H. Barry Jacobs established the International Kidney Exchange, Ltd., in September 1983, to broker human kidneys. Organ “brokerage" has been strongly opposed by the International Transplantation Society and the American Society of Transplantation Surgeons. Personal communication by this author with Dr. Jacob’s office on October 23, 1984 revealed that the exchange never went into operation and Dr. Jacobs has withdrawn from this activity. In response to public disapproval of such sales activities, the Virginia legislature banned sales within the State. Virginia H.B. 231 (New Laws 1984), cited in 102 Hospital Law Manual 14 (attorney’s ed. December 1984).

⁹² Subcommittee on Health and the Environment of the Committee on Energy and Commerce on July 29, 1983 (oversight hearing on national policies regarding transplantation of organs); on October 17 and 31, 1983 (H.R. 4080); and on November 14, 1983 (payment for immunosuppressive drugs).

⁹³ H.R. 4474, 98th Cong., 1st Sess. (1983).

⁹⁴ H.R. 5580, 98th Cong., 2nd Sess. (1984).

⁹⁵ H.R. 4474, 98th Cong., 2nd Sess. (1984).

⁹⁶ A total of $30,000,000 for fiscal year 1985 and 1986 was proposed.

⁹⁷ The task force is to be comprised of twenty-two members as follows:

⁹⁸ H.R. 5580, 98th Cong., 2nd Sess. (1984).

⁹⁹ M. Shapiro & R. Spece, Jr., supra note 63, at 72-3.

¹⁰⁰ S. 1728, 98th Cong., 1st Sess. (1983).

¹⁰¹ The task force shall asssess the nature and extent of public and private efforts that are needed to create a highly visible, well defined, and effective program of organ procurement, and shall develop a plan for the establishment of a comprehensive organ donor network and organ procurement system.

[The Plan is to include:]

• (1) an analysis of the factors that affect and determine the availability of organs for transplantation;

• (2) mechanisms [for identifying donors, matching with recipients, and transportation of organs];

• (3) provisions for education and training of members of the medical community, including physicians, nurses, hospitals, and emergency personnel;

• (4) education of [general public, clergy, law enforcement officials, fire department personnel];

• (5) [data collection];

• (6) [research on transportation of organs];

• (7) recommendations for appropriate mechanisms to provide financial support for an organ procurement system, and for amounts necessary to support such a system;

• (8) an assessment of the appropriate role for the federal government in the establishment and maintenance of an organ procurement system; and

• (9) provisions for the establishment of an authoritative permanent entity to make recommendations to private and public insurers concerning the appropriateness of insurance reimbursement for particular transplant procedures.

See id.

¹⁰² See id. The twelve members of the Task Force would be: Secretary of Health and Human Services (or designee); Surgeon General of the United States (or designee); Director of the National Institutes of Health (or designee); six individuals who represent the medical community, the religious community, the public safety community, and the health insurance community; and three individuals who have personal experience with respect to organ procurement.

¹⁰³ 1983 Senate Hearings, supra note 15.

¹⁰⁴ S. 2048, 98th Cong., 1st Sess. (1983).

¹⁰⁵ See id. The seventeen members would be: Secretary of Health and Human Services (or designee); Surgeon General of the United States (or designee); Director of National Institutes of Health (or designee); Administrator of Health Care Financing Administration (or designee); Seven individuals who represent health professionals with expertise in the field of organ transplantation, including physicians, nurses, and hospital and emergency care personnel; two individuals who represent private health insurers; four individuals who represent the clergy, patient advocacy organizations, and voluntary organizations; and two individuals who have experience with respect to organ procurement.

¹⁰⁶ The task force shall assess the nature and extent of public and private efforts that are needed to create a widely known, well defined, and effective organ procurement system, and shall develop a plan to assure the establishment of a national organ donor network and organ procurement system which emphasizes involvement by the private sector and provides for the coordination of existing organ procurement programs and services.

[The plan shall include:]

• (1) [factors that affect availability of organs];

• (2) [identification of potential organ donors and mechanisms to facilitate prompt availability of organs];

• (3) [provisions for education of health professionals, et al., as in S. 1728, 98th Cong., 1st Sess. (1983) (see 1983 Senate Hearings, supra note 15)];

• (4) [provisions for education of general public, et al., as in S. 1728, 98th Cong., 1st Sess. (1983) (see 1983 Senate Hearings, supra note 15)];

• (5) identification of barriers to the donation of organs to pediatric patients, including [identification of donors and recipients; evaluation of current health services; cultural factors; ethical and economic issues];

• (6) [research];

• (7) [barriers to interstate transportation];

• (8) [insurance reimbursement for transplantation];

• (9) [insurance reimbursement for immunosuppressive drugs]; and

• (10) [assessment of need for additional medical centers to perform transplant procedures and expeditious establishment of such centers].

See id.

¹⁰⁷ S. 2048, 98th Cong., 1st Sess. (1983) [emphasis added].

¹⁰⁸ S. 2048, 98th Cong., 1st Sess. (1983).

¹⁰⁹ Id. S. 2048 was passed by the Senate and modified the Task Force to add an additional two members to the group representing health professionals with expertise in the field of organ transplantation.

¹¹⁰ S. 2040, 98th Cong., 1st Sess., 130 Cong. Rec. 78 (1984).

¹¹¹ National Organ Transplant Act, Pub. L. No. 98-507, 98 Stat. 2339 (1984).

¹¹² 20 Weekly Comp. Pres. Doc. 42 (Oct. 19, 1984).

¹¹³ UAGA, supra note 43, at § 7 (Commissioners’ Comment).

¹¹⁴ Death was defined as: "[t]he cessation of life; the ceasing to exist; defined by physicians as the total stoppage of the circulation of the blood, and the cessation of the animal and vital functions consequent thereon, such as respiration, pulse, etc.” Black’s Law Dictionary 488 (4th. ed. 1968).

¹¹⁵ The Ad Hoc Committee of The Harvard Medical School To Examine The Definition of Brain Death, A Definition of Irreversible Coma, 205 J.A.M.A. 337 (1968)CrossRefGoogle Scholar. The criteria are:

• 1) lack of response to external (painful) stimuli;

• 2) lack of spontaneous respiration while off a respirator for three minutes;

• 3) lack of pupillary and other reflexes, as well as lack of eye movement to caloric stimulation; and

• 4) flat electroencephalogram (EEG) for at least ten minutes.

¹¹⁶ Powner, , Brain Death Certification: A Review, 5 Critical Care Med. 230 (1977)CrossRefGoogle ScholarPubMed; Schneck, , Brain Death and Prolonged States of Impaired Responsiveness, 58 Den. L.J. 609 (1981)Google ScholarPubMed.

¹¹⁷ Death is defined as: "[t]he cessation of life; permanent cessation of all vital functions and signs. Numerous states have enacted statutory definitions of death which include brain- related criteria.” Black’s Law Dictionary 360 (5th ed. 1979).

¹¹⁸ Medical Consultants on The Diagnosis of Death To The President’S Commission For The Study of Ethical Problems in Medicine And Biomedical And Behavioral Research, Guidelines/or the Determination of Death, 246 J.A.M.A. 2184 (1981)CrossRefGoogle Scholar [hereinafter cited as Medical Consultants, Guidelines].

¹¹⁹ Barclay, 246 J.A.M.A. 2194 (1981) (editorial).

¹²⁰ Medical Consultants, Guidelines, supra note 118, at 2185.

¹²¹ Id. .

¹²² Id. at 2186.

¹²³ President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: A Report on the Medical, Legal and Ethical Issues in the Determination of Death (1981) [hereinafter cited as President’s Commission: Defining Death].

¹²⁴ Unif. Determination of Death Act, 12 U.L.A. 270 (Supp. 1985) [hereinafter cited as UDDA].

¹²⁵ Cal. Health and Safety Code § 7180 (West 1982); Colo. Rev. Stat. § 12-36-136 (1981); D.C. Code Ann. § 6-2401 (1981); Ga. Code Ann. § 31-10-16 (1982); Idaho Code § 54-1819 (1981); Me. Rev. Stat. Ann. tit. 22, §§ 2811-2813 (1983); Md. Health Gen. Code Ann. § 5-202 (1982); Miss. Code Ann. §§ 41-31-1, 41-36-3 (Supp. 1981); Mo. Ann. Stat. § 194.005 (Vernon 1982); Mont. Code Ann. §50-22-101 (1983); Ohio Rev. Code Ann. § 2108.30 (Page 1982); Pa. Stat. Ann. tit. 35, § 10201-10203 (Purdon 1982); R.I. Gen. Laws § 23-4-16 (Supp. 1982); Vt. Stat. Ann. tit. 18, § 5218 (1981).

¹²⁶ See UDDA, supra note 124, at 271.

¹²⁷ Medical Consultants, Guidelines, supra note 118, at 2184.

¹²⁸ UDDA, supra note 124 at 271 (Commissioners’ Prefatory Note).

¹²⁹ Stuart, Veith, , & Cranford, , Brain Death Laws and Patterns of Consent to Remove Organs for Transplantation from Cadavers in the United States and 28 Other Countries, 31 Transplantation 238 (1981)CrossRefGoogle ScholarPubMed (List of states and dates of legislative enactment cited therein).

¹³⁰ President’s Commission: Defining Death, supra note 123, at 60.

¹³¹ Id. at 60 n.5 and accompanying text.

¹³² 8 U.L.A. 600 (1972).

¹³³ President’s Commission: Defining Death, supra note 123, at 80.

¹³⁴ UAGA, supra note 43, § 7(b) at 59.

¹³⁵ Id. at 60-61 (Commissioners’ Comments).

¹³⁶ Id.

¹³⁷ Dukeminier, & Sanders, , Organ Transplantation: A Proposal for Routine Salvaging of Cadaver Organs, 279 New Eng. J. Med. 413 (1968)CrossRefGoogle ScholarPubMed.

¹³⁸ Id. at 416.

¹³⁹ Id. at 418.

¹⁴⁰ Colo. Rev. Stat. §42-2-106(5) (1981).

¹⁴¹ 1983 House Hearings, supra note 16, at 103 (testimony of G. Melville Williams, M.D.).

¹⁴² § 1(1) If any person either in writing at any time or orally in the presence of two or more witnesses during his last illness has expressed a request that his body or any specified part of hs body be used after his death for therapeutic purposes. . . . [T]he person lawfully in possession of his body after his death may, unless he has reason to believe that the request was subsequently withdrawn, authorize the removal from the body of any part or, as the case may be, the specified part, for use in accordance with the request.

§ 1(2) Without prejudice of the foregoing subsection, the person lawfully in possession of the body of a deceased person may authorize the removal of any part from the body for use for the said purposes if, having made such reasonable inquiry as may be practicable, he has not reason to believe

• a) that the deceased had expressed an objection to his body being so dealt with after death, and had not withdrawn it or,

• b) that the surviving spouse or any surviving relative of the deceased objects to the body being so dealt with.

Reprinted in Kennedy, , The Donation and Transplantation of Kidneys: Should the Law Be Changed?, 5 J. Med. Ethics 13, 14 (1979)CrossRefGoogle Scholar.

¹⁴³ Professor of Law, King’s College, University of London, England.

¹⁴⁴ Kennedy, supra note 142, at 13-21.

¹⁴⁵ Id. at 15.

¹⁴⁶ Id. at 16.

¹⁴⁷ Sells, , Let’s Not Opt Out: Kidney Donation and Transplantation, 5 J. Med. Ethics 165, 167 (1979)CrossRefGoogle Scholar (quoting the McKlennan Report, advisory group on amending the Human Tissue Act of 1961 (Cmnd. 4106) (HMSO London, 1969)).

¹⁴⁸ Kennedy, supra note 142, at 20.

¹⁴⁹ Director, Renal Transplant Unit, Royal Liverpool Hospital, Liverpool, England.

¹⁵⁰ Sells, supra note 147, at 165-69.

¹⁵¹ See generally Stuart, supra note 129.

¹⁵² Id. at 239 (Argentina, Belgium, Canada, Denmark, Finland, France, Germany, Great Britain, Greece, Ireland, Italy, Japan, Norway, Puerto Rico, South Africa, South Korea, Switzerland and Thailand).

¹⁵³ Id. at 240 (Austria, Czechoslovakia, Denmark, Finland, France, Greece, Israel, Italy, Norway, Poland, Spain, Sweden and Switzerland).

¹⁵⁴ Id. (Finland, Greece, Italy, Norway, Spain and Sweden).

¹⁵⁵ Id. (Austria, Czechoslovakia, Denmark, France, Israel, Poland and Switzerland).

¹⁵⁶ The European equivalent of the National Conference of Commissioners on Uniform State Laws in the United States.

¹⁵⁷ Veatch, R.M., Death, Dying and the Biological Revolution: Our Last Quest for Responsibility 259-60 (1976)Google Scholar.

¹⁵⁸ Rosner, , Organ Transplants: The Jewish Viewpoint, 3 J. Thanatology 233-41 (1975)Google ScholarPubMed; see generally Rabinovitch, N.L., What is the Halakhah [jewish law] for Organ Transplants, Jewish Bioethics 351-57 (Rosner, F. & Bleich, J. eds. 1979)Google Scholar [Hereinafter cited as Rosner & Bleich].

¹⁵⁹ Rosner & Bleich, supra note 158, at 355.

¹⁶⁰ Id. at 363 n.37 and accompanying text (citing Isaac Yehuda Unterman, former Chief Rabbi of Israel).

¹⁶¹ Id. at 370.

¹⁶² Stuart, supra note 129, at 240.

¹⁶³ Pope Pius XII, Allocution to a Group of Eye Specialists, (May 14, 1956), reprinted in ASHLEY, B. AND O'ROURKE, M., Health Care Ethics: A Theological Analysis 311 (1978)Google Scholar.

¹⁶⁴ See P. Ramsey, PATIENT AS Person 188, for an interesting hypothetical problem (heart donation from living father to son) considered during a seminar on Religion and Law at the University of Texas and Presbyterian Theological Seminary, Austin, Texas.

¹⁶⁵ See generally Fellner, & Schwartz, , Altruism in Disrepute: Medical Versus Public Attitudes Toward the Living Organ Donor, 284 New Eng. J. Med. 582 (1971)CrossRefGoogle ScholarPubMed.

¹⁶⁶ Strunk v. Strunk, 445 S.W.2d 145, 149 (Ky. 1969).

¹⁶⁷ See Robertson, , Organ Donation by Incompetents and the Substituted Judgment Doctrine, 76 Colum. L. Rev. 48, n.14 (1976)CrossRefGoogle ScholarPubMed (and cases cited therein).

¹⁶⁸ 445 S.W.2d 145 (Ky. 1969).

¹⁶⁹ Id. at 146.

¹⁷⁰ Annas, G., Informed Consent to Human Experimentation 86 (1977)Google Scholar.

¹⁷¹ 445 S.W.2d at 150.

¹⁷² 576 S.W.2d 493 (Tex. Ct. App. 1979).

¹⁷³ Given the absence of a substantial factual basis for making the donation decision, can this be considered an ethical decision at all, let alone a correct one?

¹⁷⁴ Lausier v. Pescinski, 67 Wis. 2d 4, 226 N.W.2d 180 (1975); In re Richardson, 284 So.2d 185 (La. Ct. App. 1975).

¹⁷⁵ 67 Wis. 2d 4, 226 N.W.2d 180 (1975).

¹⁷⁶ Id. at 8, 226 N.W.2d at 182.

¹⁷⁷ Id. (Days J., dissenting)

¹⁷⁸ Id.

¹⁷⁹ Id. at 10, 226 N.W.2d at 183.

¹⁸⁰ Robertson, supra note 167, at 55 n.42.

¹⁸¹ Id. at 54 n.33.

¹⁸² Should the courts look into family reasons for refusal before allowing donation by incompetents? Why are the courts so sure that there will be a benefit to the incompetent? Surely the other family members in Lausier didn't consider the opportunity to donate a kidney of benefit to themselves.

¹⁸³ Robertson, supra note 167, at 51.

¹⁸⁴ Id. at 51-52.

¹⁸⁵ Id. at 63.

¹⁸⁶ Robert Treat Paine chair in Social Ethics at the Episcopal Theological School, Cam bridge, Massachusetts.

¹⁸⁷ Fletcher, J., Humanhood: Essays in Biomedical Ethics 33 (1979)Google Scholar.

¹⁸⁸ Harrington Spear Paine Professor of Religion, Princeton University.

¹⁸⁹ Ramsey, P., The Patient as Person xii (1970)Google Scholar.

¹⁹⁰ A work which embodies the civil and canonical law of the Jewish People. Black’s Law Dictionary 1305 (Rev. 5th ed. 1979).

¹⁹¹ See Cohen, A., The Teachings of Maimonides (1968)Google Scholar.

¹⁹² Rosner & Bleich supra note 158, at 365.

¹⁹³ C.M. Cunningham, The Morality of Organic Transplantation (1944), cited in B. Ashley and M. O‘rourke, supra note 163, at 311.

¹⁹⁴ B. Ashley & M. O'Rourke, supra note 163, at 315.

¹⁹⁵ Fletcher, supra note 187, at 78.

¹⁹⁶ Id. at 74.

¹⁹⁷ Ramsey, supra note 189, at 186-87.

¹⁹⁸ Fellner & Schwartz, supra note 165, at 584.

¹⁹⁹ Sadler, Davison, & Carroll, , The Living Genetically Unrelated Kidney Donor, 3 Seminars in Psychiatry 86-101 (1971)Google ScholarPubMed [hereinafter cited as Sadler].

²⁰⁰ Fellner & Schwartz, supra note 165 (quoting Sadler, The Living Unrelated Kidney Donor. Presented at the 122nd annual meeting of the American Psychiatric Association, Miami, Florida (May 5-9, 1969)).

²⁰¹ Organ Transplants, supra note 12, at 15 (testimony of Robert Ettinger, President of the American Society of Transplant Physicians, submitted to Committee on Energy and Commerce, U.S. House of Representatives).

²⁰² , J. & Crosnier, J., Moral and Ethical Problems in Transplantation in Human Transplantation 37-38 (Rappaport, F. T. And Dausset, J. eds. 1968).Google Scholar

²⁰³ Id.

²⁰⁴ Fellner & Schwartz, supra note 165.

²⁰⁵ Id. at 583 (emphasis added).

²⁰⁶ Id. The more educated individuals expressed a greater willingness to donate.

²⁰⁷ These objections were:

• (1) Success with kidney transplants from unrelated donors is too low to justify expanded use.

• (2) Since there is always some risk to live donors, kidney transplantation should be limited to deceased donors.

• (3) There are important moral questions about removing organs from a living individual.

• (4) It is unnatural to put one person’s organs into the body of another person.

• (5) It is upsetting to the family of the deceased to have his body dissected for transplant work.

• (6) Loss of a kidney may be psychologically disturbing to people who serve as transplant donors.

Id.

²⁰⁸ GALLUP, Report of the American Institute of Public Opinion, January 17, 1968, cited in Fellner & Schwartz, supra note 165, at 584.

²⁰⁹ Sadler, supra note 199; see also Steinbrook, , Kidneys for Transplantation, 6 J. Health Pol., Pol'v & L. 504, 513 (1981)CrossRefGoogle ScholarPubMed.

²¹⁰ Breo, supra note 1, at 1, col. 4.

²¹¹ Id.

²¹² Dr. Barnard stated that he did so “not because I'm so convinced I'm on the wrong track, but [because] I got emotionally involved with the chimp.” Id. at 11, col. 3.

²¹³ 1983 House Hearings, supra note 16, at 123 (statement of Dr. Thomas E. Starzl).

²¹⁴ N.Y. Times, Oct. 28, 1984 at 1, col. 2.

²¹⁵ Breo, , Interview with ‘Baby Fae’s’ Surgeons, Am. Med. News, Nov. 16 , 1984, at 13Google Scholar, col. 4.

²¹⁶ Id. at 13, col. 1.

²¹⁷ Id. at 18, col. 4.

²¹⁸ See Breo, supra note 1, at 42, col. 1.

²¹⁹ Id.

²²⁰ Id.

²²¹ Id.

²²² Id. at l, col. 4.

²²³ Breo, supra note 215, at 19, col. 3.

²²⁴ Id.

²²⁵ Ashley, O'Rourke, supra note 163, at 158.

²²⁶ Blumstein, , Rationing Medical Resources: A Constitutional, Legal and Policy Analysis, 59 Tex. L. Rev. 1345 (1981)Google ScholarPubMed [hereinafter cited as Blumstein]; Blumstein, , Distinguishing Government’s Responsibility in Rationing Public and Private Medical Resources, 60 Tex. L. Rev. 889 (1982)Google Scholar.

²²⁷ Rosenblatt, , Rationing “Normal" Health Care: The Hidden Legal Issues, 59 Tex. L. Rev. 1401 (1981)Google ScholarPubMed; Rosenblatt, , Rationing “Normal" Health Care Through Market Mechanisms: A Response to Professor Blumstein, 60 Tex. L. Rev. 919 (1982)Google Scholar [hereinafter cited as Rosenblatt].

²²⁸ Blumstein, supra note 226, at 1400.

²²⁹ Id. at 1363.

²³⁰ Rosenblatt, supra note 227, at 1419-20.

²³¹ J. Katz & A.M. Capron, supra note 10, at 178.

²³² Id. at 179-80.

²³³ 42 U.S.C. § 1395 (1982).

²³⁴ 42 U.S.C. § 1396 (1982).

²³⁵ Wilson’s disease is an error of metabolism whereby the body builds up excess copper stores which are deposited in the liver as well as in other organs.

²³⁶ Fiscal Fight Nearly Blocked Liver Transplant, Am. Med. News, Nov. 16 , 1984 at 10Google Scholar, col. 1.

²³⁷ Id. at 10, col. 3.

²³⁸ What Price Transplanted Organs?, Med. World News, June 28 , 1968, at 28Google Scholar, 35.

²³⁹ 1983 House Hearings, supra note 16.

²⁴⁰ 1983 Senate Hearings, supra note 15.

²⁴¹ Id. at 237.

²⁴² Id.

²⁴³ Mr. Charles Fiske is a medical school administrator in the field of mental health. 1983 Senate Hearings, supra note 15, at 138-50.

²⁴⁴ Gunby, , Media-Abetted Liver Transplants Raise Questions of “Equity and Decency,” 249 J.A.M.A. 1973Google Scholar (1983).

²⁴⁵ Mr Charles Fiske stated:

1983 Senate Hearings, supra note 16, at 212-18.

As Gunby pointed out, “[a]fter reading from hospital notes on his daughter’s condition, he told [Charles Fiske] the pediatricians that her favorite toy is a stuffed musical goose that plays the song ‘You Are My Sunshine,’ and concluded: ‘Please don't take my sunshine away.” Gunby, supra note 244, at 1973.

²⁴⁶ 1983 Senate Hearings, supra note 15, at 91 (statement of C. Everett Koop, M.D., Surgeon General, Public Health Service).

²⁴⁷ Gunby, supra note 244, at 1982.

²⁴⁸ See supra note 236, at 10, col. 4.

²⁴⁹ 1983 Senate Hearings, supra note 15, at 348 (statement of Dr. Robert M. Veatch).

²⁵⁰ Gunby, supra note 244, at 1982 (quoting Dr. Robert M. Veatch).

²⁵¹ 1983 Senate Hearings, supra note 15, at 347-48 (statement of Dr. Veatch).

²⁵² Outka, , Social Justice and Equal Access to Health Care, 2 J. Religious Ethics 11 (1974)Google ScholarPubMed.

²⁵³ 1983 House Hearings, supra note 16, at 355 (testimony of Dr. James Childress).

²⁵⁴ See supra notes 6-8 and accompanying text.

²⁵⁵ There were twenty-one citations to cyclosporine alone during a one month period and many additional citations to transplantation and related subheadings. 25 Index Medicus 290 (October 1984).

²⁵⁶ Willard Gaylin, M.D. is President of Hastings Center.

²⁵⁷ Gunby, supra note 244, at 1981.