Relates to the term valuable consideration as it relates to the prohibition of sales and purchases of human organs

Public Health Law §4307 prohibits the sale or transfer for "valuable consideration" of a human organ for use in human transplantation. A violation of this statute is a class E felony. Since an organ received by a designated donee could be considered to be "valuable consideration" for the donor's agreement to donate his or her organ to another, the statue leaves open the possibility that physicians and others participating in "paired kidney exchanges" may be prosecuted for a felony.

A similar prohibition exists in federal law. While that law could continue to deter "paired kidney exchanges" even if this bill is passed, New York State should eliminate the potential for local and state prosecution for such conditional donations and continue to position itself as a leader in the transplantation field.

Justification

Clarifying that paired kidney exchanges and other similar conditional live organ donations do not constitute valuable consideration in violation of PHL §4307 could save dozens of lives each year. Thousands of individuals die on the national organ transplant waiting lists each year while waiting for an acceptable cadaveric organ. One option for individuals on the waiting lists is to identify a potential live organ donor who is willing to donate an organ to them. Most often, live organ donors are individuals who have a pre-existing close relationship to the potential recipient, such as a spouse, parent, adult child, sibling, or other close relative or friend. However, in many cases, individuals who are willing to donate their organs to a family member or friend are not a "good match" for the intended recipient. In such cases, the intended recipient must remain on the waiting list and hope that they receive an organ before the malfunctioning organ undermines their health and quality of life to the point where they are incapacitated or die.

In recent years, transplant centers and surgeons have been experimenting with offering potential live donors the option of exchanging donated kidneys with other potential paired live donors-donees when the respective donors are not a "good match" for their intended donee, but are a good match for the other donor's intended donee. To ensure that the organ transplants are consummated for both sets of donors-donees and reduce the potential for an unfair research, the operations are performed at the same time. This type of exchange not only benefits the two intended donees and their families through the transplant of a viable organ, but also benefits all patients on the waiting list by shortening the waiting list and increasing the chances for all potential donees to receive a viable organ sooner rather than later.

While paired kidney exchanges and other similar conditional donations hold great promise for saving lives and reducing the time most patients are on the national waiting list, many physicians and centers are considered to be "valuable consideration" for the donated kidney, and therefore, violate the prohibition against the sale, purchase, or transfer of human organs for "valuable consideration." While arguments can be made that such exchanges are not "valuable consideration," the lack of universal agreement on the application of this provision to "paired kidney exchanges" and potential for criminal prosecution by district attorneys based upon their interpretation(s) of this law, serve as a significant deterrent to physicians, centers and potential donors participating in such exchanges. This bill would eliminate the ambiguity in the statute so that physicians transplant centers, and donors can participate in such exchanges without fear of state or local prosecution. The bill would also authorize the Commissioner of Health, with the advice and consent of the Transplant Council, to adopt rules and regulations to impose appropriate limitations and safeguards on such conditional donations to ensure that such arrangements are fair, equitable and protect the health, safety and welfare of the donors as well as the donees.

Legislative history

A9008 (2007-2008)

Effective date

This act shall take effect immediately.