Living Organ Donation and Valuable Consideration

Publication Date: March 2007

Publisher: Library of Congress. Congressional Research Service


Research Area: Health

Keywords: Organ donation

Type: Report


The central issue before Congress with respect to the possibility of living organ donation is how to balance the needs of people seeking organs with one another, and with the needs of potential organ donors. While the majority of organs are harvested from deceased donors, an increasing number of donations are made by living donors each year. As new types of programs are developed to help encourage the practice of living donation, both legal and ethical issues may arise.

Two types of programs to expand the practice of living donation have recently been proposed: paired and list donation. In both types of arrangements, willing living donors who are incompatible with their intended recipients agree to donate their organs to an unknown recipient. In exchange, their intended recipient either receives an organ (paired donation), or a higher spot on the waiting list (list donation). Both systems have been implemented for kidney transplantation in limited areas, in part due to concerns that they may run afoul of the National Organ Transplantation Act (NOTA, P.L. 98-507) prohibition on the exchange of valuable consideration for an organ (? 301). Both types of programs also raise or at least touch upon a range of issues, including those related to: evolving transplantation systems; the directive that physicians do no harm; risk-benefit ratios; informed consent; type O recipients; resource allocation; parity; and the possibility of paying for organs.

In February 2007, the Senate passed the Living Kidney Organ Donation Clarification Act (S. 487) by unanimous consent. In March 2007, the House passed a companion measure, H.R. 710, by a vote of 422-0. The bills would amend the National Organ Transplant Act to clarify that kidney paired donation does not involve the transfer of a human organ for valuable consideration. During the 109th Congress, S. 2306 would have done the same for both kidney paired donation and kidney list donation. In the 108th Congress, S. 573 IS would have exempted familial, emotional, psychological, or physical benefit from the definition.

This report contains background regarding how living donation is included within the larger organ donation construct, the likely impact that paired and list donation programs would have on organ supply, the legislative history and legal interpretation of the term valuable consideration as it is defined in section 301 of the National Organ Transplant Act (P.L. 98-507), and the various ethical and policy issues related to living donation, paired kidney donation, kidney list donation and legislation proposed on the topic.

This report will be updated as needed.