Under Section 301(a) of the National Organ Transplant Act (NOTA) of 1984, it is a federal crime for “any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.”

Congress adopted NOTA with noble intentions, seeking to prevent a situation in which only wealthier patients could afford to buy organs that would mainly come from low-income “suppliers.” Unfortunately, the ban on donor compensation has made it difficult to address the nation’s transplant organ shortage.

For decades, the transplant community has mounted educational efforts, improved its procurement efforts at the time of death of potential donors, and tried a variety of other approaches to increase the supply of transplant organs. Yet, the number of living and deceased donors has not risen significantly. More potent enticement for donors is needed.

We believe the prohibition on financial compensation for organ donation is responsible for tens of thousands of needless deaths. Fiscal imperatives also compel reform. Dialysis costs Medicare about $100,000 per patient per year. With nearly 600,000 dialysis patients in the country, the total expenditure represents approximately 7% of the entire Medicare budget.

Tax credit / It is time to try another approach. Then-congressman Al Gore (D–TN), who spearheaded the adoption of NOTA, spoke at the time of using “a voucher system or a tax credit to a donor’s estate” if “efforts to improve voluntary donation are unsuccessful.” Unfortunately, this sensible idea has long been forgotten by lawmakers, at least at the federal level.

Several states have adopted tax incentives for organ donors, but those incentives appear to be too small and too poorly publicized to significantly increase donations. It is likely that larger and better publicized incentives would have significant effects. A 2016 cost–benefit analysis published in the American Journal of Transplantation concluded that a payment of $45,000 to donors would eliminate the waiting list for kidneys.

We propose a $50,000 federal tax credit for living donors willing to save the life of a stranger by donating a kidney, and a $5,000 federal tax credit for deceased donors of kidneys, intestines, pancreases, livers, and lungs. The credit would be refundable in cash for people who do not owe income tax, and it would not be phased out at high income levels. There would be no change in NOTA’s restriction on payments by organ recipients and other private individuals and organizations; it would still be illegal for recipients to buy organs.

The credit would be available only for a qualified donation in which the donors’ kidneys would be distributed to people on the waiting list. People who want to donate a kidney to a relative or other specific person would not receive the tax credit.

Prospective donors hoping to receive the tax credit would be carefully screened for physical and emotional health, as all donors are now, and a six-month waiting period before the procedure could be implemented to deter donations that might be impulsive or done under duress.

As an additional safeguard against ill-considered donations by financially desperate individuals, no credit would be provided in the year of donation. A living donor would receive a $5,000 annual tax credit the first five years after his donation, with the remaining $25,000 credited in the sixth year after the donation. If the donor dies before the full credit is received, the remainder would be claimed on his or her final income tax return, benefiting the donor’s estate.

This proposal would not only save lives, but it would also be fiscally responsible. Such a program would reduce tax revenue by several billion dollars a year, but it would save the government tens of billions of dollars a year by reducing the number of people on dialysis, thereby reducing Medicare expenditures.

Commodification? / Although some have objected that a tax credit for donors would “commodify the body,” those concerns are misplaced. Recipients would not be allowed to buy organs; instead, donors would receive compensation from the government for contributing to the public good. When a transplant is performed, the surgeons and hospitals are paid, as are the agencies that obtain and transport the organs in the case of cadaveric organs. Currently, the only entity in the entire process that does not receive any compensation for its contribution is the donor, who bears a modicum of risk and myriad costs as well.

At the heart of the “commodification” claim is the concern that donors will not be treated with dignity. But our healthcare system provides dignity when it respects the capacity of individuals to make decisions in their own best interest while protecting their health and expressing gratitude for their sacrifice. The true indignity is to continue the status quo while thousands of people die each year for want of an organ.

Readings

  • “A Cost–Benefit Analysis of Government Compensation of Kidney Donors,” by P.J. Held, F. McCormick, A. Ojo, and J.P. Roberts. American Journal of Transplantation 16(3): 877–885 (October 2016).