LEGISLATIVE STRATEGIES FOR ENCOURAGING ORGAN DONATION: PROVIDING PROTECTION AND INCENTIVES TO LIVING ORGAN DONORS

ANNIE HILLS

J.D., MAY 2020, Indiana University Robert H. McKinney School of Law.

An organ isn’t the only thing you will lose if you become a living organ donor. A recent study found that more than a third of living kidney donors reported lost wages in the first year following donation. Tim Nagel of Wisconsin experienced this difficulty first hand after donating a kidney to his sister in 2014. After being unable to work during his nine weeks of recovery time, Nagel faced $6,000 in lost wages and was prepared to sell his tractor, snowmobile, and guns to make up for the deficit. Although Nagel eventually recovered his lost wages through a fundraiser put on by his friends and family, the Wisconsin resident believes the government “should make it easier for people to donate.”

Several states have enacted laws that provide rights and protections to living organ donors; however, no consistent national policy currently exists for these individuals. Meanwhile, the number of people on the organ waiting list continues to exceed the number of donors and transplants. The Sydney School of Public Health examined this widening gap and found that several barriers and concerns deter potential living donors, including fears about surgical and health risks, lack of knowledge about organ donation, and financial loss. The organ shortage crisis has not gone unnoticed by members of Congress. Both Democratic and Republican Representatives have proposed legislation to try and increase the number of living donors in the United States; however, these efforts have been unsuccessful.

The first piece of proposed legislation is the Living Donor Protection Act. U.S. Representatives Jerrold Nadler and Jaime Herrera Beutler introduced the Living Donor Protection Act (“LDPA”) to protect the rights of living organ donors. The LDPA is a response to the growing disparity between the number of patients in need of transplantation and the availability of transplantable organs. The LDPA aims to protect living organ donors and promote organ donation in three easy and economical ways. First, the LDPA prohibits insurance companies from denying coverage or increasing premiums of life or disability insurance for living organ donors. Second, the LDPA clarifies that organ donation surgery qualifies as a serious health condition under the Family Medical Leave Act (“FMLA”). Third, it requires the Secretary of Health and Human Services (“HHS”) to update education materials on the benefits of organ donation. Nadler and Beutler introduced the LDPA to Congress in 2014, 2016, 2017, and 2019.

With a similar motive as was behind the Living Donor Protection Act, U.S. Representative Matt Cartwright introduced the Organ Donor Clarification Act (“ODCA”). Cartwright’s proposed legislation intends to remove existing barriers that organ donors face under current law and to provide incentives to potential donors in hopes of encouraging more Americans to consider donating. The buying and selling of organs is illegal under the National Organ Transplant Act of 1984 (“NOTA”), but Cartwright’s legislation seeks to clarify that certain types of payments and/or reimbursements relating to organ donation would not violate NOTA. Additionally, the ODCA would allow government-run pilot programs to test the effectiveness of providing non-cash incentives to promote organ donation. Cartwright proposed the legislation in 2016 and 2018, but the bill has never passed committee. [Read entire Article here].

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