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American Bar Association




In America alone almost 100,000 people are suffering while waiting for organ transplants, and more than 7,300 of these patients will die waiting. Given that tens of thousands of useable cadaveric organs are buried or incinerated every year, the organ shortage is a social, political and legal problem, one that is inherent in the conceptual design of the current organ system. While the system is supposed to turn on individuals’ autonomous choices, it instead depends on default outcomes and the decisions of next of kin. While we tend to think about the organ choice as one of altruism (viz. -- "giving the gift of life"), it is not clear that cadaveric organ donations are actually altruistic, nor is it clear why promotion of altruism should be a goal of our organ system.

Most importantly, the status quo system facilitates free riding by alienating the decisions to give and take organs. In contrast, original empirical research suggests that respondents intuitively understand the relationship between these two decisions, and that many will decline to free ride when given the opportunity to think of themselves as potential takers of organs. Even worse, the current system creates an injustice, violating basic principles of reciprocity, by giving scarce organs to those who have refused to contribute organs themselves. As a result, these free riders take organs that could save the lives of others. The bottom line: Under any such system that allows rampant free riding, the fact of a shortage should be unsurprising.

This essay proposes an integrated system for procuring and distributing cadaveric organs, based on the notion of a cooperative project. Under this paradigm, individuals would join the organ system as both potential suppliers of cadaveric organs and potential recipients of organs. This cooperative system should operate on an opt-out basis, so that all persons would be participants, unless they chose to remove themselves, and would depend on a national donor registry. This approach respects autonomy, resolves the injustice, reflects the value of cooperation, and holds promise for minimizing the shortage.

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