The gift of life and "diseases of language": recovering a lost distinction in effectuating the purpose of the national organ transplant act's prohibition on the transfer of human organs for valuable consideration

Temple Law Review

Volumn 80, Issue 4, 2007, Pages 1067-1091

  Jones, Rick K ^a  

^a EAST STROUDSBURG UNIVERSITY   (United States)

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EID: 67649664372     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (150)

1. There is a funny story told of a divorce attorney engaging a new client for the first time. Lawyer: Let me ask you some questions. Do you have any grounds for the divorce? Client; Yes, of course. I have a house in town and one on the beach too. Lawyer: No, what I mean is, do the two of you have a grudge? Client: Well, of course, and a very large one too. We can park three cars in it. Lawyer: Let's get more basic. Does your spouse beat you up or anything like that? Client: No way. I get up at 6 [a.m.] every morning. My spouse needs two alarm clocks just to get up by 7 [a.m.]. Lawyer: OK, then just tell me why you want a divorce. Client: It's simple. We just cannot communicate. John Barkai, Teaching Negotiation and ADR: The Savvy Samurai Meets the Devil, 75 NEB. L. REV. 704, 724-25 n.51 (1996) (quoting GERALD CLAY & FLETCHER KNEBEL, BEFORE YOU SUE: HOW TO GET TO JUSTICE WITHOUT GOING TO COURT (William Morrow ed., 1987)). While the difficulties of communication can be humorous, they also can be tragic. On March 27,1977, 582 people were killed at Santa Cruz de Tenerife, Canary Islands, after two jumbo jets collided on a runway. One pilot misunderstood the control tower and began takeoff prematurely. As that jet approached takeoff speed, it collided with another jet that entered the wrong runway after its pilot misunderstood the taxiing instructions. Id. at 725.
2. KEY ISSUES IN ORGANIZATION COMMUNICATION 235 (Dennis Tourish & Owen Hargie eds., 2004).
3. See Barkai, supra note 1, at 726 (describing process in which speakers "code" thoughts into speech and listeners seek to "decode," or interpret, that message). The threat of miscommunication involved in this coding and decoding process is easily evident from the childhood game of "whisper down the lane" in which a message whispered to one child completely changes by the time it is whispered to the last child in a group. Id. at 725.
4. In fact, it may be thornier. Regarding statutes, one commentator observed: [T]here may be identifiable elements in the ascertainment of meaning that have only an infrequent counterpart outside the law. This .... refers ... to the special social, substantive, constitutional, equitable, and procedural assumptions that comprise the broad legal context in which the normal principles of communication are considered to operate and of which those principles take implied account. These include the many tacit assumptions relating to the nature, goals, methods, and constitutional limitations of the prevailing legal system; that is, the general social and legal context in which statutes are necessarily read. REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 29 (1975).
5. NORMAN J. SINOER & J.D. SHAMBLE SINGER, STATUTES AND STATUTORY CONSTRUCTION § 45.01, at 4 (7th ed. 2007).
6. Id. at 4-5. Noting the "relational" aspect of communication, Singer adds: Words comprise the connecting link in the relationship between persons endeavoring to convey ideas to others and persons to whom the ideas are to be conveyed, or, in the case of a statute, between a legislative body and members of the public. In the process of communication there are thus two essentially distinct and separate stages at which the word symbols which comprise the media or vehicles of communication are "used[]"-once by the party or parties on the sending end of the communication and again by the party or parties on the receiving end. Id. at 5.
7. The Quotations Page, Quotation Details, http://www.quotationspage.com/ quote/1119.html (last visited Aug. 1,2008). Writer Denis Ledoux explained: "Lightning dazzles the eye. The sky is split open. Sometimes it makes our hair stand on end. A lightning bug, on the other hand, is a small, friendly flicker in our back yards, not enough light to illuminate even the smallest corner." Denis Ledoux, The Lightning Bug, EZINEARTICLES. COM, available at http://ezinearticles.com/?The-Lightning- Bug&id=1332785 (last visited Aug. 1,2008).
8. DlCKERSON, supra note 4, at 43. For detailed discussion of Dickerson's "diseases of language," see id. at 43-53; see also infra notes 91-98 for a discussion about the limits of language when interpreting statutes.
9. See National Organ Transplant Act § 301, 42 U.S.C.A § 274e (West 2003 and Supp. 2008) (prohibiting transfer of valuable consideration in exchange for human organ offered for transplant).
10. A. CONS. STAT. § 8622(b)(1) (2005). See infra Part II.B for a discussion of current law governing organ donation and allowing for compensation in return for such donation.
11. S.C.A. § 274e. See infra Part Π.C for a discussion of this prohibition.
12. A. CONS. STAT. §8601-8642.
13. S.C § 274 (2000).
14. National Organ Transplant Act § 301(a), 42 U.S.C. § 274e (West 2003 & Supp. 2008).
15. COMM. ON INCREASING RATES OF ORGAN DONATION, INST. OF MED. OF THE NAT'L ACADS.. ORGAN DONATION: OPPORTUNITIES FOR ACTION 15 (James F. Childress & Catharyn T. L¡verman, eds., 2006) [hereinafter OPPORTUNITIES FOR ACTION],
16. Id.
17. Id.
18. Donor Alliance, The Difference It Makes, http://www.donoralliance.org/ info-page-14 (last visited Aug. 1,2008).
19. OPPORTUNITIES FOR ACTION, supra note 15, at 25. The Institute of Medicine continued as follows: A 10-year overall increase in life expectancy is reported for kidney transplant recipients compared with the life expectancy for individuals on transplant waiting lists. Transplant recipients not only experience gains in life expectancy but also enjoy improvements in the quality of their lives. A literature review of 218 independent studies involving approximately 14,750 transplant recipients demonstrated statistically significant improvements in physical functioning, mental health, social functioning, and overall perceptions of quality of life following transplantation. These improvements are particularly striking when they are contrasted with the pretransplant conditions of patients requiring a transplant, such as the health complications and difficulties associated with long-term dialysis and other medical interventions. Moreover, many individuals face imminent death without a transplant. The lack or inferiority of alternative therapies should be considered when post-transplant quality-of-life data are evaluated. Id. at 25-26 (citations omitted).
20. National Donor Memorial, http://www.donormemorial.org (last visited Aug. 27,2008).
21. LifeShare Transplant Donor Services of Oklahoma, Donor Stories: How David Lived, http://www.lifeshareoklahoma.org/lifestories/?idxs24 (last visited Aug. 1,2008).
22. Id. Transplantable organs that can be donated include the kidneys, heart, pancreas, liver, lungs, and intestines. OrganDonor.Gov, What Can Be Donated, http://www.organdonor.gov/donation/ what-donate.htm (last visited Aug. 1 2008). Tissues that can be donated include bone, corneas, heart valves, skin, veins, and tendons. Id.
23. The 2006 report on organ donation published by the Institute of Medicine of the National Academies stated as follows: The number of organ donors has increased each year since 1988 .... Furthermore, there has been a steady increase in the number of organs recovered .... However, the growth of the waiting list has been much more dramatic, with approximately 5,000 more candidates for transplantation each year than in the prior year. The net result is a widening gap between the supply of transplantable organs and the number of patients on the waiting list-hence, the increasing need for donated organs. OPPORTUNITIES FOR ACTION, supra note 15, at 45-46 (citation omitted). As of August 27,2008, UNOS reports 99,338 waiting list candidates for organ transplants. United Network for Organ Sharing, http://unos.org (last visited Aug. 27,2008).
24. OPPORTUNITIES FOR ACTION, supra note 15, at 15 (footnote omitted).
25. Id. at 16, 229-62. See infra Part II.E for a discussion of efforts to use incentives to increase donations.
26. REVISED UNIF. ANATOMICAL GIFT ACT § 1 (amended 2007), 8a U.L.A. 8 (2003 & Supp. 2007); UNIF. DETERMINATION OF DEATH ACT § 1,12A U.L.A. 593 (2003). "The current U.S. system of organ donation, recovery, allocation, and transplantation has developed and evolved during the past 50 years" along with the development of immunosuppressive medications. OPPORTUNITIES FOR ACTION, supra note 15, at 18. "[N]umerous subsequent pharmacologic, surgical, and clinical advances have continued to improve the rates of graft survival and reduce the potential for organ rejection." Id.
27. UNIF. ANATOMICAL GIFT ACT § 1 (1968).
28. See The National Conference of Commissioners on Uniform State Laws, UAGA Summary. http://anatomicalgiftact.org/DesktopDefault.aspx?tabindex= l&tabid=67 (last visited Aug. 27, 2008) (providing history of UAGA). The NCCUSL is comprised of state commissioners from each state, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands. Id. "The original [UAGA] was promulgated in 1968, shortly after Dr. Christian Barnard's successful transplant of a heart in November, 1967." Id. The UAGA was amended in 1987 but only adopted in twenty-six states, creating an increased lack of uniformity. Id. A revised UAGA was adopted in 2006 and has, as of August 27, 2008 been enacted by thirty-three states and the District of Columbia. The National Conference of Commissioners on Uniform State Laws, Uniform Anatomical Gift Act, Enactment Status Map, http://anatomicalgiftact.org/DesktopDefault.aspx?tabindex=2&tabid=72 (last visited Aug. 27, 2008).
29. See 8a U.L.A. 8,13 (Supp. 2007) (commenting on how revision to Act allows person eighteen or over to donate organs for transplant upon death and that this gift cannot be rescinded by another party without donor's consent). The revised UAGA also provides circumstances under which a minor may be eligible to donate. REVISED UNIF. ANATOMICAL GIFT ACT § 4(1).
30. See id. §§ 2(1), 4 (indicating that donor's parents, guardian, or agent may donate deceased's organs).
31. Act of June 30, 1972, Pub. L. No. 164, 1972 Pa. Laws 508, repealed by Act of Dec. 1. 1994. Pub. L. No. 1994-102,1994 Pa. Laws 665.
32. sect; 1,12A U.L.A. 593 (2003).
33. Uniform Law Commissioners, A Few Facts About the Uniform Determination of Death Act, http://www.nccusl.org/nccusl/uniformact-factsheets/uniformacts-fs- udda.asp (last visited Aug. 27, 2008).
34. OPPORTUNITIES FOR ACTION, supra note 15, at 18.
35. NAT'L CONFERENCE OF COMM'RS ON UNIFORM STATE LAWS, UNIFORM DETERMINATION OF DEATH ACT WITH PREFATORY NOTE 1 (1980), available at http://www.law.upenn.edu/ bll/archives/ ulc/fnact99/1980s/udda80.pdf [hereinafter UDDA PREFATORY NOTE] (internal quotation marks omitted).
36. Id. The UDDA has been criticized on several different bases. James M. DuBois, Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death, 27 J.L. MED. & ETHICS 126,126 (1999). Some have argued, for example, that brain death is essential to death and so there is no reason to include the circulatory-respiratory criteria in the definition of death. Id. Others debate how the term " irreversibility" is to be understood in the UDDA. Id. at 127. Finally, there is fear that the UDDA resulted from "ethical gerrymandering" that attempted to increase the availability of organs for transplantation insofar as it allowed for Non-Heart-Beating Organ Donation ("NHBD"). Id. (internal quotation marks omitted). James DuBois defends the UDDA against these criticisms in several interrelated ways, including: (1) that "[a] single coherent underlying concept or definition of death may be compatible with two . . . criteria for determining death"; (2) that "brain death is not essential to death," it is only "one set of criteria for meeting the definition of death"; and (3) that the legal definition of death should be sufficiently vague to allow for different philosophical and theological conceptions of death and the varying normative implications of these conceptions. Id.
37. See UDDA PREFATORY NOTE, supra note 35, at 1 (describing need for statute because common-law standard does not appreciate these new medical techniques).
38. See id. (noting discrepancy between biomedical practice and common-law standard). The UDDA "is silent on acceptable diagnostic tests and medical procedures. It sets the general legal standard for determining death, but not the medical criteria for doing so. . . . [relying on the medical profession for new] acceptable medical practices and to utilize new biomedical knowledge, diagnostic tests, and equipment." Id. at 2.
39. See UNIFORM DETERMINATION OF DEATH ACT § 1,12A U.L.A. 593 (2003) (indicating that death is determined by common-law standard or by loss of brain function).
40. UDDA PREFATORY NOTE, supra note 35, at 2 (noting that entire brain includes neocortex and brain stem); see also UNIFORM DETERMINATION OF DEATH ACT § 1 (defining death as "irreversible cessation" of "circulatory and respiratory functions" or "all functions of the entire brain, including the brain stem").
41. See UNIFORM DETERMINATION OF DEATH ACT § 1, 12A U.L.A. 593 (passed in 1980); Uniform Death Determination Act, 35 PA. CONS. STAT. ANN. §§ 10202-10203 (West 2003) (passed in 1982). Pennsylvania adopted the UDDA in substantially similar form as drafted by the NCCUSL. Compare 35 PA. CONS. STAT. ANN. §§ 10202-10203 (listing statute as enacted), with UNIFORM DETERMINATION OF DEATH ACT § 1 (listing NCCUSL version of statute).
42. National Organ Transplant Act, Pub. L. No. 98-507, 98 Stat. 2339 (1984) (codified as amended in scattered sections of 42 U.S.C.).
43. S.C. § 274(b)(2)(A) (2000). The Act indicated that the OPTN should be a private, nonprofit entity. Id. § 274(b)(1); see also Organ Procurement and Transportation Network. About OPTN, http://www.optn.org/ optn (last visited Aug. 1, 2008) (describing private, nonprofit organization created as result of Act).
44. OPPORTUNITIES FOR ACTION, supra note 15, at 20; see also MICHELE GOODWIN, BLACK MARKET: THE SUPPLY AND DEMAND OF BODY PARTS 97 (2006) (noting that failure to comply with OPTN may result in loss of federal Medicaid and Medicare funding for OPOs). The national transplant system functions as follows: Currently, the organ donation and transplantation system in the United States is coordinated by 58 OPOs serving unique geographic areas (donor service areas). When a donated organ becomes available, the organ allocation algorithms developed by OPTN-UNOS identify a potential recipient on the basis of multiple factors, including severity of disease; geographic proximity; and blood, tissue, and size matches with the donor. Ongoing efforts are made to ensure impartiality in the allocation process. OPOs are charged with working with individuals, families, and hospital staff to explore consent for and facilitate organ donation; evaluating the medical eligibility of potential donors; coordinating the recovery, preservation, and transportation of donated organs; and educating the public about organ donation. OPPORTUNITIES FOR ACTION, supra note 15, at 20-21 (citation omitted).
45. United Network for Organ Sharing, Who We Are-The OPTN. http://www.unos.org/ who We Are/the OPTN.asp (last visited Aug. 1, 2008). The HRSA is an agency of the U.S. Department of Health and Human Services. The agency promotes access to health care for the uninsured or underinsured. Health Resources and Services Administration, About HRSA, http://www.hrsa.gov/ about/default.htm (last visited Aug. 1,2008).
46. See United Network for Organ Sharing, supra note 45 (noting that UNOS's contractual responsibilities under OPTN contract include analyzing and publishing waiting list, organ matching, and providing guidelines). Through the OPTN, UNOS "collect[s] and manage[s] data about every transplant event occurring in the United States"; "facilitate[s] the organ matching and placement process using UNOS-developed data technology and the UNOS Organ Center"; and "bring[s] together medical professionals, transplant recipients and donor families to develop organ transplantation policy." United Network for Organ Sharing, Who We Are, http://www.unos.org/ whoWeAre/ (last visited Aug. 1,2008) (emphasis omitted).
47. National Organ Transplantation Act § 301(a), 42 U.S.C.A. § 274e (West 2003 & Supp. 2008).
48. Id. § 274e(a) (emphasis added). The historical background on the restrictions on human organ transfers dates to September 1983. H. Barry Jacobs, a doctor whose Virginia license was revoked in 1977, created a company to connect kidney donors with recipients. Susan Hankin Denise, Note, Regulating the Sale of Human Organs, 71 VA. L. REV. 1015, 1015 (1985). The organ recipient would pay the price of the kidney plus a $2000 to $5000 service fee to Jacobs. Id. Virginia responded to Jacobs's idea by prohibiting the sale of human organs; Congress and several states followed suit. Id.
49. S.C.A. § 274e(b).
50. Id. § 274e(c)(2) (emphasis added). On December 21, 2007, NOTA section 301(a) was amended to address human organ paired donation. See infra note 108 for a discussion of human organ paired donations.
51. Act of Dec. 1,1994, Pub. L. No. 1994-102,1994 Pa. Laws 665 (codified as amended at 20 PA. CONS. STAT. § 8601-8642 (2005). For an account of Governor Casey's heart and liver transplant, see generally ROBERT P. CASEY, FIGHTING FOR LIFE (1996). Act 102 was incorporated as an amendment to the state's Anatomical Gift Act. 20 PA. CONS. STAT. ANN. § 8601-8642 (West 2005 & Supp. 2007).
52. See Pennsylvania Department of Health, Act 102 of 1994, http://www.dsf.health.state.pa.us/ health/cwp/view.asp?A=174&Q=244786 (last visited Aug. 1, 2008) (describing intended purpose of Act). Key components of Act 102 are (1) to increase the requirements placed on hospitals regarding the organ donation process, 20 PA. CONS. STAT. § 8617 (2006); (2) to increase public awareness of organ donation, id. § 8622(b)(3); (3) to establish a fifteen-member Organ Donation Advisory Committee, id. § 8622(c); and (4) to create the Governor Robert P. Casey Memorial Organ and Tissue Donation Awareness Trust Fund, id. § 8622(a). Act 102 was amended in 2000 to rename the trust fund after Governor Casey, who died earlier that year. Act of Dec. 20, 2000, Pub. L. No. 2000-120, 2000 Pa. Laws 881. The success of Pennsylvania's Act 102 provisions was recently documented. LEGIS. BUDGET & FIN. COMM., A PERFORMANCE EVALUATION OF PENNSYLVANIA'S ORGAN AND TISSUE DONOR AWARENESS PROGRAM, HR-698, 1st Sess., at S-8 (Pa. 2007), available at http://lbfc.legis.state.pa.us/ reports/2007/291.PDF [hereinafter LB&FC REPORT]. In June 2007, Pennsylvania's Legislative Budget & Finance Committee reported as follows: While difficult to quantify the impact of [the Act 102 program] in dollar terms, it is possible to make a "cost-per- donor" calculation (that is, the amount spent for each of the more than 4.0 million Pennsylvanians who joined the state registry since the program began.) Even when the full $6.2 million amount spent in the program is used in this calculation, the amount spent per donor is only $1.55. In contrast, one recent analysis reported by the Institute of Medicine found that with the cost savings of transplantation, society should be willing to spend up to $1,900 to register a single organ donor. Pennsylvania's accomplishments are all the more significant considering that about two-thirds of the money invested in the program comes from voluntary donations made by Pennsylvania citizens. Id. at S-8 to S-9.
53. See Act of Dec. 20, 2000, Pub. L. No. 2000-120 (codified as amended at 20 PA. CONS. STAT. § 8622(a)) (changing name of Organ Donation Awareness Trust Fund to the Governor Robert P. Casey Memorial Organ and Tissue Donation Awareness Trust Fund).
54. A. CONS. STAT. § 8621(a). Subsequent legislation, Pennsylvania's Act 1998-74, directed PennDOT to provide the same opportunity to applicants for a renewal vehicle registration to donate to the fund. Act of Jun. 18, 1998, Pub. L. No. 1998-74, 1998 Pa. Laws 529 (codified as amended at 20 PA. CONS. STAT. § 8621(b)).
55. A. CONS. STAT. § 8622(b)(1). The other three possible uses are for organ procurement organization grants, the Project Make-a-Choice Program, and a secondary school awareness program.
56. Id. § 8622(b).
57. See supra notes 58-60 and accompanying text for discussion of the growing interest in using incentives to encourage organ donation.
58. See OPPORTUNITIES FOR ACTION, supra note 15, at 250 (noting recent support from prominent organizations for studies and pilot programs which explore the possibility of offering financial incentives for organ donation).
59. In 1949, Frank and Anna Greenwall established the Greenwall Foundation, which awards grants in the fields of arts and humanities and bioethics. The Greenwall Foundation, http://www.greenwall.org (last visited Aug. 1,2008).
60. OPPORTUNITIES FOR ACTION, supra note 15, at 3.
61. Id.
62. Id. at 239 (emphasis added).
63. Id. at 231 (citations omitted); see also id. at 249-51 (providing listing of some incentives being considered and implemented). "Required request" is a policy "ensuring that all potential donor families are asked about donation." OPPORTUNITIES FOR ACTION, supra note 15, at 101.
64. Id. at 244.
65. Id. The percentages from the same question in a 1993 survey showed that twelve percent of respondents were more likely to donate, five percent of respondents were less likely to donate, and seventy-eight percent of respondents were neither more nor less likely to donate. Id.
66. Id. at 247.
67. OPPORTUNITIES FOR ACTION, supra note 15, at 247.
68. Id. at 247-48.
69. Id. at 248.
70. Id. It is this lost distinction that this author believes needs to be recovered to effectuate the statutory purpose of the federal prohibition under section 301(a) of the National Organ Transplant Act. 42 U.S.C.A. § 274e (West 2003 & Supp. 2008). For further discussion of the distinction between gifts and commercial activity, see infra Part IV.
71. See OPPORTUNITIES FOR ACTION, supra note 15, at 248 ("For example, would families question whether their decision to donate was motivated by the desire to save the life of others or by the funeral benefit? Would this affect the meaning that they find in donation?").
72. Id. at 248-49.
73. Id. at 248-50.
74. Id. at 249.
75. LB&FC REPORT, supra note 52, at 121.
76. OPPORTUNITIES FOR ACTION, supra note 15, at 248, 250. In the end, the IOM concluded, however, that "a pilot study of the effect of financial incentives should be undertaken only if other, less controversial strategies of increasing organ donation have been tried and proven unsuccessful and if, as a result, policy makers have become inclined to implement such a strategy." Id.
77. C.L. Bryce et al., Do Incentives Matter? Providing Benefits to Families of Organ Donors, 5 AM. J. TRANSPLANTATION 2999,2999 (2005).
78. Id. at 3002 tbl.2.
79. Id. A large majority, however, indicated that $300 would be "too little" to pay in helping to defray funeral expenses. Id. at 3003 fig.l.
80. Bryce et al, supra note 77, at 3005.
81. Id. Other relevant organizations and observers have supported the idea of further investigating the use of financial incentives in organ donation. See LB&FC REPORT, supra note 52, at 121-26 (summarizing views of organ donation of key organizations and individuals regarding financial incentives). Some, on the other hand, maintain positions strictly opposed to any form of incentives for organ donation. See id. (summarizing views of opponents of use of financial incentives for organ donation).
82. The ACOT assists the Secretary of the U.S. Department of Health and Human Services ("HHS") in "[e]nhancing organ donation, [ejnsuring that the system of organ transplantation is grounded in the best available medical science, [a]ssuring the public that the system is as effective and equitable as possible, and thereby [i]ncreasing public confidence in the integrity and effectiveness of the transplantation system." OrganDonor.Gov, U.S. Department of Health and Human Services, Advisory Committee on Organ Transplantation, http://www.organdonor.gov/research/acot.htm (last visited Aug. 27,2008). For more information on the composition and expertise of the ACOT, see id.
83. ADVISORY COMM. ON OROAN TRANSPLANTATION, U.S. DEP'T OF HEALTH & HUMAN SERVS., SUMMARY NOTES FROM FALL MEETING (2004), available at http://www. organdonor.gov/ research/acotll-2004.htm [hereinafter ACOT FALL 2004 MEETING NOTES]. ACOT considered the legality of fourteen different organ donation incentive options, one of which was the payment of funeral expenses for deceased donors. ADVISORY COMM. ON ORGAN TRANSPLANTATION, U.S. DEP'T OF HEALTH & HUMAN SERVS., SUMMARY NOTES FROM SPRING MEETING (2004), available at http://www.organdonor.gov/research/acot5-2004.htm [hereinafter ACOT SPRING 2004 MEETING NOTES]. While ACOT did not find funeral benefits to be unquestionably acceptable under the N0TA prohibition, it found that a funeral-benefit program would be an "ideal" study and voted to keep the funeral-benefits concept under consideration. Id. The fourteen potential incentives for organ donation considered by ACOT were as follows: "[p]ayment for organ procurement-related expenses (i.e., removal, transportation, quality control, processing, etc.)"; "[p]ayment for lost wages experienced by living donors"; "[p]ayment for travel and subsistence expenses for living donors"; "[c]ongressional commemorative medal for organ donors"; "[p]referred status"; "[p]aired exchange"; "[p]ayment of funeral expenses for deceased donors"; '[t]ax deduction to a person previously designated by a deceased donor"; "[r]efundable credit to individuals who donate their organs at death"; "[i]nsurance policy to be received by a person or organization designated by the donor following successful donation"; "[g]uaranteed lifetime health insurance coverage for living donors"; "[b]onuses paid to individuals and organizations involved in organ procurement"; "[I]iving donor/deceased donor exchange"; and "[d]irect cash payment." Id. app. A.
84. ADVISORY COMM. ON ORGAN TRANSPLANTATION, U.S. DEP'T OF HEALTH & HUMAN SERVS., RECOMMENDATIONS 36-41 (2004), available at http://www.organdonor.gov/research/ acotrecs36-41.htm.
85. Id. In further explanation of the proposed amendment, ACOT stated: The Secretary's authority should be limited to legitimate and beneficial practices that are intended to increase the supply of human organs, without creating a commercial market for the purchase or sale of human organs or posing a risk of coercion of a potential donor or donor family. In addition, the Secretary should be required to obtain an appropriate independent ethical evaluation before excluding any practice from the prohibition on valuable consideration. ... Regulatory authority is both more flexible and more responsive to innovation than an expanded statutory list of practices that are not included in the term "valuable consideration." Id:, see also LB&FC REPORT, supra note 52, at 126 (noting lack of response to ACOT's proposal).
86. Reed Dickerson writes that "the job of writing a clear statute remains formidable.... due to several important, and largely curable, diseases of language." Reed Dickerson, The Diseases of Legislative Language, 1 HARV. J. ON LEGIS. 5,6 (1964).
87. See supra notes 55-56 and accompanying text for a discussion of the history of Pennsylvania's funeral-expense program and other organ donor initiatives.
88. LB&FC REPORT, supra note 52, at 126. Neverthelses, Pennsylvania's OPOs have disagreed. The Legislative Budget and Finance Committee Report noted: General counsel to one of Pennsylvania's two OPOs argued the point in a March 28, 2000, letter to DOH, concluding that the NOTA prohibition is limited only to the selling of organs for profit and that "it is inconsistent with the express language of [NOTA], as well as the legislative history, to broaden the prohibition well beyond its express words to somehow prohibit the reimbursement of a portion of the funeral expenses of an organ donor." Id. (quoting Letter from General Counsel, Pennsylvania OPO, to Pennsylvania DOH (Mar. 28, 2000) (emphasis in original). OPO counsel pointed to NOTA section 301(a)'s status as a criminal statute in arguing that it "should be strictly construed and strictly limited to pure commercial transactions in human organs." LB&FC REPORT, supra note 52, at 126. "To do otherwise 'would violate the basic tenets of statutory construction and criminalize conduct that [was] never expressly addressed.'" Id. (quoting Letter from General Counsel, Pennsylvania OPO, to Pennsylvania DOH, supra).
89. In late March 2007, however, the Department of Justice issued a memorandum opinion addressing the interaction between NOTA section 301(a) and the practice of kidney-exchange agreements. Legality of Alternative Organ Donation Practices Under 42 U.S.C. § 274(e), 31 Op. Off. Legal Counsel (Mar. 28, 2007), available at http://www.usdoj.gov/olc/2007/ organtransplant.pdf [hereinafter Legality of Alternative Organ Donation Practices].
90. Thinkexist.com, John Marshall Quotes, http://en.thinkexist.com/quotes/ John-Marshall (last visited Aug. 27,2008).
91. The terms interpretation and construction are, for the most part, used interchangeably in this Article. Moreover, this Article is not intended to engage the full scope of the discussion regarding the interpretation and construction of statutes. For an illustration of how voluminous the discussion of statutory interpretation is, see the extensive list of articles addressing the topic at, for example. SINGER & SINGER, supra note 5, § 45:01, at 2 n.l.
92. CONG. RESEARCH SERV. OF THE LIBRARY OF CONG., STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS 3 (2006) [hereinafter STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS].
93. SINGER & SINGER, supra note 5, § 45:2, at 15.
94. STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS, supra note 92, at 2.
95. Id.
96. Felix Frankfurter, Some Reflections on the Reading of Statutes. 47 COLUM. L. REV. 527, 528 (1947)). Frankfurter continued: If individual words are inexact symbols, with shifting variables, their configuration can hardly achieve invariant meaning or assured definiteness. Apart from the ambiguity inherent in its symbols, a statute suffers from dubieties. It is not an equation or a formula representing a clearly marked process, nor is it an expression of an individual thought to which is imparted the definiteness a single authorship can give. A statute is an instrument of government partaking of its practical purposes but also of its infirmities and limitations, of its awkward and groping efforts. Id. Such "diseases of language," as originally described by Reed Dickerson, include ambiguity, vagueness, precision, and generality-all in the extreme. Dickerson, supra note 86, at 6-14. For example, ambiguous language may include a word that is equivocal-that is it has '"different significations equally appropriate'" or is '"capable of double interpretation."' Id. at 6 (quoting III Oxford English Dictionary E263 (James A.H. Murray ed" 1933)). Ambiguities can be: (1) semantic, in that their "uncertainties of meaning[] . . . are traceable to the multiplicities of dictionary meanings. which exist independently of context"; (2) syntactic, which are "uncertainties of modification or reference within the particular statute"; or (3) contextual, where there is simply an internal inconsistency or uncertain implication within the context of the statute. Id. at 7-8. Language is vague, however, "to the degree to which, independently of equivocation, [it] is uncertain in its respective applications to a number of particulars." Id. at 10. "[T]he uncertainty of vagueness lies in marginal questions of degree." Id. For example, the word "he" in a sales agreement could equally refer to the seller or the buyer and is, therefore, ambiguous in that it is not apparent which of the two is intended. The term is not vague because it plainly refers to a male person. There is no degree of "maleness" needed to understand what is anticipated by the term "he." Conversely, while the word "intentional" in the same sales agreement would clearly denote the idea of "deliberate," it raises the question as to what degree of deliberateness is anticipated. The term, consequently, is not ambiguous-there is no "either-or" question-but is vague because it is unclear as to the extent or amount of the concept envisioned. Dickerson, supra note 86, at 10. Vagueness, too, may be either semantic or contextual. It is possible that vagueness may be desirable depending on the extent to which it is "desirable to leave the resolution of uncertainties to those who will administer and enforce the statute." Id. at 11. "A term is 'general' when it is not limited to a unique referent and thus can denote more than one." Id. at 12. "[C]lasses denoted in a statute should be neither broader nor narrower than those appropriate to carrying out the legislature's objectives." DICKERSON, supra note 4, at 52; Dickerson, supra note 86, at 12. Finally. "[o]ver-precision and over-particularity not only needlessly circumscribe the actions of those who are affected by the statute but make it harder to read, understand, and administer." Dickerson, supra note 86, at 12.
97. National Organ Transplant Act § 301(a), 42 U.S.C.A. § 274e (West 2003 & Supp. 2008).
98. See supra note 50 and accompanying text for a list of the examples of what is not included in the term "valuable consideration."
99. See STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS, Supra note 92, at 5-6 (citing Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991)). "'[W]here a common law principle is well established, . . . the courts may take it as a given that Congress has legislated with an expectation that the principle will apply except "when a statutory purpose to the contrary is evident.'"" Id. at 6 n.21 (omission in original) (quoting Astoria, 501 U.S. at 108).
100. RESTATEMENT (SECOND) OF CONTRACTS § 71(1) (1979).
101. See id. § 71(2) (explaining requirement of mutual promises).
102. See id. § 71 cmt. b (noting that requirement of bargain for valid consideration implies requirement of mutual inducement). In fact, other areas of federal law that use the term valuable consideration use it to describe things of value that serve as an inducement for a contract, deal, transfer, sale, business arrangement, or the like. See, e.g., 15 U.S.C. § 1679b(b) (2000) (barring credit repair organizations from charging or receiving money or other valuable consideration for performance of any service that credit repair organization has agreed to perform for any consumer before such service is fully performed); 22 U.S.C. § 4341(7) (2000) (defining "profits" as cash and other valuable consideration); 29 U.S.C. § 1802(7) (2000) (defining "farm labor contractor" as someone who receives valuable consideration); 42 U.S.C. § 1382b(c)(l)(C)(iii)(I) (2000) (using valuable consideration as threshold for determining ineligibility for supplemental security income benefits); 47 U.S.C. § 338(e) (2000) (barring satellite carriers from accepting monetary payment or other valuable consideration for carrying local television broadcast stations); 47 U.S.C. § 508(a) (2000) (requiring disclosure of valuable consideration given to broadcast station employees).
103. RESTATEMENT (SECOND) OF CONTRACTS § 71, cmt. b (using following example as illustration; "A receives a gift from B of a book worth $10. Subsequently A promises to pay B the value of the book. There is no consideration for A's promise. This is so even though B at the time he makes the gift secretly hopes that A will pay him for it.").
104. S. REP. NO. 98-382, at 2 (1984), reprinted in 1984 U.S.C.C.A.N. 3975,3976 (emphasis added).
105. Id. at 4,1984 U.S.C.C.A.N. at 3978 (emphasis added).
106. Id. at 16,1984 U.S.C.C.A.N. at 3982 (emphasis added).
107. Id. at 1-2,4,16,1984 U.S.C.C.A.N. at 3975-76,3978,3982.
108. See POSITION STATEMENT: KIDNEY PAIRED DONATIONS, KIDNEY LIST DONATIONS AND NOTA § 301, at 6 (2006), available at http://www.unos.org/SharedContentDocuments/WMCD-1297256-v9-UNOS-Revised- NOTA-301-Position-Paper.pdf (noting that Congress's intent in enacting NOTA was to criminalize purchase and sale of organs for profit, as in commercial business transaction). Associate General Counsel to UNOS also concluded that paired kidney donations involved conditional gifts-not transfers induced by valuable consideration-and were, therefore, not restricted by section 301(a) of the NOTA, Pub. L. No. 98-507, 98 Stat. 2339 (1984) (codified as amended at 42 U.S.C.A. § 274e (West 2003 & Supp. 2008)). POSITION STATEMENT, supra, at 3-6. These transactions work, counsel concluded, within the basic gift framework and any incidental emotional or psychological benefit to the donor in "desiring to help a family member, friend, or someone else for whom the donor feels a personal bond or from the donor's desire to benefit an unidentified fellow human being," is an inherent component of donative intent in any type of gift and is not to be confused with "consideration. " Id. The Senate, by unanimous consent, passed the Living Kidney Organ Donation Clarification Act, S. 487, 110th Cong. (2007), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110-cong- bills&docid=f:s487es.txt.pdf, in February 2007. ERIN D. WILLIAMS ET AL., CRS REPORT FOR CONGRESS, LIVING ORGAN DONATION AND VALUABLE CONSIDERATION (2007), available at http://opencrs.cdt.org/document/RL33902 (summarizing legislative history). The House responded by passing a companion measure, the Charlie W. Norwood Living Organ Donation Act, H.R. 710, 100th Cong. (2007), by a unanimous vote. WILLIAMS ET AL., supra. Together, the bills sought to amend NOTA to the effect that kidney paired donation would not constitute the transfer of a human organ "valuable consideration." Id. The Norwood Act has since become law, excluding human organ paired donation from the prohibition in NOTA section 301(a). Charlie W. Norwood Living Organ Donation Act, § 2, Pub. L. No. 110-144 (2007).
109. S.C.A. § 274e. As discussed supra in Part II.C, violations of the NOTA section 301(a) prohibition are subject to criminal penalties of a possible $50,000 fine, five years' imprisonment, or both. "Where the primary purpose of a statute is expressly enforceable by fine, imprisonment, or similar punishment the statute is always construed as penal." SINGER & SINGER, supra note 5, § 59:1, at 113.
110. See id. § 59.3, at 126-31 (citing State v. Cox, 908 P.2d 603, 618 (1995) (discussing strict construction of penal statutes); Cleveland v. United States, 531 U.S. 12, 25 (2000) (discussing need to resolve ambiguity of criminal statute in favor of less harsh alternative); United States v. Fruit Growers Express Co., 279 U.S. 363, 369 (1929) (noting that defendant is entitled to reasonably strict construction of statutory language)).
111. W. § 59:3, at 133.
112. Id. Strict construction is a means of assuring fairness to persons subject to the law by requiring penal statutes to give "clear[] and unequivocal[]" warning in language that people generally would understand, concerning "actions [that] would expose [them] to liability for penalties and what the penalties would be." Id. § 59:3, at 138.
113. Legality of Alternative Organ Donation Practices, supra note 89. The DOJ addressed two forms of kidney exchange. The first was the "Living Donor/Deceased Donor Exchange," where a living donor donates a kidney to an unknown, compatible recipient on the list for a deceased donor in exchange for the living donor's intended (but incompatible) recipient receiving some priority on the deceased-donor waiting list, thereby shortening his waiting time. Id. at 1. Second was the "Paired Exchange," where an OPO "matches two or more incompatible donor/recipient pairs where each living donor is compatible with another living donor's intended recipient." Id.; see also LB&FC REPORT, supra note 52, at 126-29 (summarizing DOJ opinion on kidney exchange).
114. Legality of Alternative Organ Donation Practices, supra note 89, at 1-2.
115. See supra notes 89, 97-98 and accompanying text for a discussion of the lack of insight as to the scope of NOTA section 301(a) prior to the DOJ's March 2007 memorandum opinion.
116. Legality of Alternative Organ Donation Practices, supra note 89. at 6.
117. Id. at 7 (internal quotation marks omitted) (quoting Dowling v. United States, 473 U.S. 207, 214 (1985)).
118. Id. at 2.
119. Id. at 3. The kidney exchanges were not specifically excluded from "valuable consideration" and were still permitted by DOJ. Id. at 2-7.
120. Legality of Alternative Organ Donation Practices, supra note 89, at 5. The fact that NOTA section 301(a) is founded on Congress's authority under the Commerce Clause was seen by DOJ to "further suggest[ ] that 'valuable consideration' involves some sort of commercial transaction." Id. at 3 (citing United States v. Lopez, 514 U.S. 549,561 (1995)); see also U.S. CONST, art. I, § 8, cl. 3 (granting Congress authority to regulate commerce among states).
121. Legality of Alternative Organ Donation Practices, supra note 89, at 6.
122. Id. at 6-7.
123. Id. at 7 (quoting Dowling v. United States, 473 U.S. 207,214 (1985)).
124. Id. at 6-7.
125. Id. at 6.
126. Legality of Alternative Organ Donation Practices, supra note 89, at 6-7.
127. See id. at 7 (concluding that kidney-exchange programs, scenarios possibly covered by NOTA section 301(a), do not violate that provision of statute).
128. A. CONS. STAT. § 8622(b) (2006).
129. Legality of Alternative Organ Donation Practices, supra note 89, at 6. The proposed program would provide a $300 payment directly to a funeral home on behalf of an organ donor's family. See supra notes 52-56 and accompanying text for a discussion of Pennsylvania's legislative efforts to encourage organ donation.
130. Legality of Alternative Organ Donation Practices, supra note 89, at 6-7.
131. See supra notes 60-75 and accompanying text for a discussion of the IOM report and the distinction between a sale and a gift.
132. See supra notes 69-72 and accompanying text for the IOM report's conclusion that organ donation operates within a gift model, rather than a commercial transaction model.
133. C.J.S. Gifts § 1 (1996).
134. Id. § 8 (emphasis added).
135. RESTATEMENT (SECOND) OF CONTRACTS § 71 cmt. b (1979). See supra notes 99-103 and accompanying text for a discussion of consideration.
136. See 38A C.J.S. Gifts § 8 (noting that in gift exchange, benefit is gratuitously made in response to gift of donation).
137. See 3 RICHARD A. LORD, WILLISTON ON CONTRACTS § 7.18, at 350-51 (4th ed. 1992) [hereinafter WILLISTON ON CONTRACTS] (explaining that with gratuitous conditional promises, benefit is gratuitously made on condition of gift of donation). Williston explains: "[I]f A were to promise to pay $5000 to B should B's house burn down within a year, he has made a gratuitous conditional promise; if B's house were to burn down within the year, A would not be liable on his promise because it was gratuitous." Id. at 348. Corbin explains as well: "[w]hether something is a consideration [as opposed to merely a condition] depends upon whether it is bargained for by the promisor in exchange for the promise." 2 JOSEPH M. PERILLO & HELEN HADJIYANNAKIS BENDER, CORBIN ON CONTRACTS § 5.34, at 194 (rev. ed. 1995). In fact, Pennsylvania's Superior Court has held that a gift is still a gift even though it is made with the understanding and stipulation that the donor's funeral expenses will be paid with a part of the gifted property. Reynolds v. Maust, 15 A.2d 853,855 (Pa. Super. Ct. 1940).
138. See supra notes 99-103 and accompanying text for a discussion of gift transactions and consideration.
139. See Stanley Becker & Julio Jorge Elías, Introducing Incentives in the Market for Live and Cadaveric Organ Donations 11 (George Stigler Ctr.. of the Econ. & the State, unpublished working paper, 2002), available at http://home.uchicago.edu/~gbecker/ MarketforLiveandCadavericOrgan Donations-Becker-Elias.pdf (classifying transaction as "donation," although still advocating that donors should be compensated for "risk of death, . . . time lost during recovery, and a monetary compensation for risk of reducing quality of life"). Nobel Prize-winning economist Gary Becker estimated that the market price of a liver could be approximately $37,600. Id. at 16. Given this, it would appear unreasonable to conclude that a $3000 payment could or would induce, in fact, the transfer of a human organ theoretically valued approximately ten times more than the payment given under Pennsylvania's Act 102. See 20 PA. CONS. STAT. § 8622(b) (2006) (providing for funeral expenditures paid to donors that do not exceed $3000).
140. WILLISTON ON CONTRACTS, supra note 137, § 7:18, at 348-49. Williston explains it this way: If a benevolent man says to a tramp, 'If you go around the corner to the clothing shop there, you may purchase an overcoat on my credit,' no reasonable person would understand that the short walk was requested as the consideration for the promise; rather, the understanding would be that in the event of the tramp going to the shop the promisor would make him a gift. Yet the walk to the shop is in its nature capable of being consideration. It is a legal detriment to the tramp to take the walk, and the only reason why the walk is not consideration is because on a reasonable interpretation, it must be held that the walk was not requested as the price of the promise, but was merely a condition of a gratuitous promise. Id. § 7:18, at 348-50 (citation omitted).
141. Id. § 7:18, at 350-51.
142. WILLIAM H. PAGE, PAGE ON CONTRACTS § 274 (1905).
143. See WILLISTON ON CONTRACTS, supra note 137, § 7:17, at 331 (noting that motive is not essential and cannot by itself serve as consideration).
144. United Network for Organ Sharing, National Transplant System: The First 20 Years (Sept. 29, 2006), available at http://www.unos.org/news/ newsDetail.asp7ids708.
145. Case law has historically drawn distinctions between gifts and other transactions. For example, judicial precedents have distinguished gift transactions from loans, sales, and trusts, among other things. See 38A C.J.S. Gifts §§ 6-9, at 186-88 (1996) (noting that law has historically drawn distinctions between gifts and other transactions such as loans, sales, and trusts).
146. For example, the Kansas State Attorney General found, in 2000, that a $300 tax credit for the donation during a taxable year of one or more body parts is valuable consideration in violation of federal law without discussing the meaning of the term. Op. Kan. Att'y Gen. No. 2000-18 (2000), available at http://ksag.washburnlaw.edu/opinions/2000/2000-018.htm. Yet, the opinion recognized that "[w]ith the exception of reasonable payments for the costs associated with the procurement of the organs, the federal statute prohibits the payment of valuable consideration for the transfer of human organs used in human transplantation." Id. (footnote omitted). The Kansas State Attorney General also admitted that "NOTA legislative findings indicate that Congress intended to reflect our society's moral value in attributing organ donation to altruistic motives and clearly set out to prevent human organs from becoming commodities in a for-profit marketing of human organs." Id. The opinion appears to implicitly accept the premise that all "payments" are valuable consideration because the limited examples of exclusions from the prohibition are for certain payments. The logical extension then is that because a $300 tax credit is a payment and not expressly excluded from NOTA, it is prohibited. On the other hand, ACOT has discussed a broader concept of "valuable consideration," having reported that "[w]hen lawyers say valuable consideration it means something specific. It does not simply mean money, as many lay persons think. In the general common law it refers to anything having worth, whether monetary or intrinsic, which induces or motivates an agreement or a contract." ACOT SPRING 2004 MEETING NOTES, supra note 83 (internal quotation marks omitted). "Under this definition, any incentive designed to motivate an anatomic gift, not merely those with direct monetary value, would constitute valuable consideration." Id. (internal quotation marks omitted). Additionally, at the May 2007 ACOT meeting, the March 2007 DOJ memorandum opinion was discussed, with discussion focusing on the monetary aspect of DOJ's analysis of "valuable consideration" and reporting that "[t]he [DOJ] ruling stated that the prohibition [on the transfer of human organs for valuable consideration] is mainly for 'pecuniary gain [that is] readily convertible into monetary value.'" ADVISORY COMM. ON ORGAN TRANSPLANTATION, U.S. DEP'T OF HEALTH & HUMAN SERVS.. SUMMARY NOTES FROM MAY MEETING (2007), available at http://www.organdonor.gov/ research/acot05-2007.htm.
147. See ACOT SPRING 2004 MEETING NOTES, supra note 83 (noting that there are serious consequences to lack of clarity on meaning of term "valuable consideration"). ACOT listed these consequences as follows: · Uncertainty about legal consequences could deter transplant centers and OPOs from engaging in beneficial practices aimed at increasing organ donation[;] · Uncertainty about federal preemption of state law could deter state legislative action to create incentives intended to increase organ donation[;] · Risk of criminal prosecution for innovative programs that provide incentives to increase donation[;] · Federal preemption of state laws that create incentives to enhance donation on the grounds that the state law conflicts with the federal prohibition[; and] · Loss of potential donors. Id.
148. A. CONS. STAT. § 8622(b) (2006).
149. The point is there is not an unavoidable conflict between NOTA section 301(a), 42 U.S.C.A. § 274e (West 2003 & Supp. 2008), and Pennsylvania's Act 102, 20 PA. CONS. STAT. § 8622(b) (2006), triggering the superseding impact of federal law. "The Supremacy Clause of the Constitution provides that valid federal law supersedes inconsistent state law," but absent explicit preemptive federal language, courts will not imply preemption without a direct conflict between federal and state law- that is, where the implementation of state law would necessarily frustrate congressional purposes. STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS, supra note 92, at 18-19 (citation omitted) (emphasis added).
150. For example, regarding the future of Pennsylvania's funeral-benefit program, the LB&FC recommended that the state advisory committee develop a proposal for the funeral-benefit program that expressly "underscore[s] the noncommercial nature, purpose, and intent of the . . . benefit." LB&FC REPORT, supra note 52, at S-31 to S-33. The report further recommended that the program obtain donor family attestation to full compliance with section 301 of NOTA and require periodic state assessment to ensure that Act 102's provisions for funeral benefits are being implemented so as not to frustrate the purposes of NOTA section 301(a). Id.