Corpse and Kelo

The gap between organ transplantation need and donations has grown, so shows this article. About 100,000 patients await a transplant. About 15,000 donors are available. Few patients survive the long waiting lists.

The corpse is a chattel (movable personal property). Chattel is subject to eminent domain. For example, a government took fixtures and may take vehicles.

Kelo, a recent Supreme Court case, allows condemnation of property for private use. In its 124 uses of the word, property, it never uses the term, real property, implying applicability of the decision to all property, including chattel. Taking a corpse in eminent domain has great benefit, and serves a noble public purpose by 1) drastically lowering the cost of care of the recipient after transplantation; 2) transforming a moribund patient into a tax payer, back at work. The value to the recipient and to the family is infinite, has no measurement.

Government deference to superstitious, religious objection by the family of the donor violates the Establishment Clause. A law does not violate the Free Exercise Clause (of religion) if it does not single out religious activity or belief, but is “neutral and of general applicability" (Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990)).

The Florida Supreme Court upheld the constitutionality of the corneal removal statute (Florida Statute 765.5185 allowing removal of cornea), even against the wishes of the family (State v. Powell, 497 So. 2d 1188 (Fla. 1986))." The U.S. Supreme Court has let these laws stand without ruling on their constitutionality. See Georgia Lions Eye Bank Inc. v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985); cert. denied 475 U.S. 1084, 106 S.Ct. 1464, 89 L. ed 721 (1986)."

The evidence establishes that this increase in the quantity and quality of available corneal tissue was brought about by passage of the statute and is, in large part, attributable to the fact that [the law] does not place a duty upon medical examiners to seek out the next of kin to obtain consent for cornea removal (Florida v. Powell).

These statutes have been considered very effective. For example, substantial increases in corneal transplants occurred after such a statute was passed in Georgia: from 25 in 1978 to more than 1,000 in 1984 (National Conference of Commissioners on Uniform State Laws, 1987)," so reports, the Board on Health Policy. The opt out, presumed consent approach gets detailed reviews here and here.

What would happen if this statute were passed by all the states, in order to continue receiving federal health funds?

"Organ removal by surgeons.

(1) If a patient needs an organ transplant, a surgeon not involved in the care of either donor nor recipient of the organ, upon request of a recognized Organ Procurement Organization, will provide the organ of a decedent whenever the following conditions are met:

a) The decedent has not affirmed an objection in a will or other writing, when an adult. The driver license will assert the refusal to consent to organ donation (opting out), and no longer the consent to organ donation. The surgeon must presume consent in the absence of presentation of a writing indicating withholding of consent to donate all organs after death.

b) The removal of the organ will not interfere with an investigation or autopsy.

c) The corpse will be returned to the estate. The fair market price of the corpse and reasonable burial costs will be paid to the estate.

No civil or criminal action is permitted against any involved surgeon, nor any assistant, nor any ancillary personnel, nor any employer, nor any hospital for failure to obtain consent of the next of kin, nor for any act of negligence, nor for any intentional tort, such as interference with the right of burial, in the removal of any organ from the corpse of the decedent.

The estate should be compensated with the market value of the corpse, and reasonable funeral costs."

The real world experience of Europe and of Asia has answered with cross-sectional naturalistic studies, comparing equivalent nations' rates of transplantation, with and without presumed consent laws. Longitudinal experience yields the same result, when rates of transplantation increase in the same location after the passage of presumed consent laws.

"...rates of heart and lung donation were at least twice as high in the two countries with presumed-consent legislation (Belgium and Austria) as in the two countries that rely on a policy of explicit consent from the donor's next of kin (Germany and The Netherlands)." (J Transpl Coord. 1996 Dec;6(4):174-7).

"The impact of the presumed consent law and a decentralized organ procurement system on organ donation: quadruplication in the number of organ donors." (Transplant Proc. 1991 Oct;23(5):2685-6). And, "There was no change in the number of suitable donors, but there was an increase in the number of liver recovery surgeries and liver transplantation, and a lower refusal rate among suitable donors." (Transplantation. 2006 Nov 15;82(9):1234-7).

Kelo may over-rule the Uniform Anatomical Gift Act, and the AMA Ethical standard on presumed consent (CEJA Report, based on PA Med Society Resolution 2-A-04). This report throws AMA support behind presumed consent for organ donation if studies show a positive effect on the procurement of organs. "It is not known whether implementation of ethically appropriate models of presumed consent or mandated choice for deceased donation would positively or negatively affect the number of organs transplanted. Therefore, physicians should encourage and support properly designed pilot studies, in relatively small populations, that investigate the effects of these policies. Unless there are data that suggest a positive effect on donation, neither presumed consent nor mandated choice for deceased donation should be widely implemented."

Now, that worldwide experience has proved effective, the AMA no longer has an excuse.