LETTING TIME SERVE YOU:  BOOT CAMPS AND ALTERNATIVE SENTENCING FOR FEMALE OFFENDERS


THE GIFT OF LIFE: CAN THE ORGAN 
PROCUREMENT PHILOSOPHIES FROM SPAIN AND 
IRAN HELP ELIMINATE THE ORGAN SHORTAGE IN 

THE UNITED STATES? 

Emily Steeb 

“Hope lives where these two worlds come together, creating miracles 
out of tragedy.”1 

I. INTRODUCTION

Drake was only four years old when tragedy struck.2 After an 
unfortunate accident following a day in the pool with his family, he was 
rushed to the hospital for emergency care.3 Five days later, Drake’s parents 
and siblings received his grave prognosis.4 Their son and brother’s “fate had 
been determined[, so his family] worked to help someone else’s fate.”5 Being 
healthcare providers themselves, and understanding the importance of doing 
so, Drake’s parents immediately opted to gift his organs.6 Drake ultimately 
gave the gift of life to two individuals who had been undergoing dialysis 
while patiently awaiting kidneys; one of the recipients was a father of four, 
much like Drake’s own father.7 His parents later reflected that, in the face of 
this untimely heartbreak, they had to decide how they would handle the 
situation: “We decided to allow our tragedy to be someone else’s miracle.”8 

But not everyone makes this decision when given the opportunity. In 
fact, there are currently more than 121,000 patients on the transplant waiting 
lista number that grows daily.9 The men, women, and children on this list 

1 ASS’N OF ORGAN PROCUREMENT ORGS., http://www.aopo.org (last visited Feb. 8, 2014). 
2Drake, Our 4-Year-Old, Gave His Kidneys and Became a Miracle for Others, DONATE LIFE, 
http://www.donorrecovery.org/stories/drake-pettit-kidneys-donation/ (last visited Feb. 12, 
2014) [hereinafter Drake]. 
3 Id. 
4 Id. 
5 Id. 
6 Id. 
7 Drake, supra note 2. 
8 Id. 
9 UNITED NETWORK FOR ORGAN SHARING, http://www.unos.org/#tab-1 (last visited Feb. 12, 
2014). Of the 121,133 on the transplant waiting list, only 77,201 are actively waiting for an 
organ. Id. “Some transplant candidates are temporarily classified as ‘inactive’ by their 
transplant center because they are medically unsuitable for transplantation or need to complete 

http://dx.doi.org/10.18060/7909.0024



312 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
face a daily struggle to live; their fate depends solely on the altruistic donation 
of organs by others. Unfortunately, less than 27,000 transplants took place 
between January and November in 2013.10 Because of the stark disparity 
between these two numbers, which effectively represent supply and demand, 
an average of eighteen people die every single day waiting for transplants 
they will never receive.11  

The United States has attempted to address its organ shortage through 
legislation.12 Most notably, this legislation has prohibited the buying and 
selling of organs13 while at the same time establishing a national organ 
sharing system designed to ensure fairness in the allocation of organs for 
transplant.14 However, instead of exhibiting the intended effects, the 
country’s transplant waiting list has more than quadrupled since the passage 
of this legislation due in large part to a lack of donors.15 Current legislation 
in the United States is not effectively curtailing the organ shortage; instead, 
it is permitting the transplant waiting list to grow. If tolerated, this scheme 
will result in exponentially more suffering and loss for the country’s citizens.  

The United States is not alone in its failure to meet the demand for 
organs; few nations have been able to do so.16 Nevertheless, many countries 
have approached their shortages differently than has the United States.17 
Some countries have even been more successful in various respects.18 A 
fundamental shift in policy to that resembling successful organ procurement 
schemes abroad is necessary to remedy the woefully inadequate scheme in 
the United States. 

This Note investigates the potential for the United States to adopt 
policies from two of the most efficacious organ procurement programs 
abroadthose of Spain and Iran. Part II discusses the difference between the 
various types of organ donors, the causes of the escalating organ shortage, 
and the inevitable consequences of this escalation. Part III explores the 
 
                                                                                                                 
other eligibility requirements.” Glossary, U.S. DEP’T. OF HEALTH & HUMAN SERVICES, 
http://optn.transplant.hrsa.gov/resources/glossary.asp (last visited Feb. 12, 2014). 
10 UNITED NETWORK FOR ORGAN SHARING, supra note 9. 
11 The Need is Real: Data, U.S. GOV’T INFO. ON ORGAN AND TISSUE DONATION AND 
TRANSPLANTATION, http://organdonor.gov/about/data.html (last visited Feb. 12, 2014). 
12 Policy Management, ORGAN PROCUREMENT AND TRANSPLANTATION NETWORK, 
http://optn.transplant.hrsa.gov/policiesAndBylaws/nota.asp (last visited Feb. 13, 2014). 
13 42 U.S.C.A. § 274e(a) (West 2007). 
14 OPTN, UNITED NETWORK FOR ORGAN SHARING, http://www.unos.org/donation/index.php? 
topic=optn (last visited Feb. 22, 2014). 
15 Wait-Listed to Death: Improving Incentives for Organ Donation, WALL ST. J., Dec. 17, 
2008, at A20, available at http://online.wsj.com/news/articles/SB122948107890913051. 
16 Christian Williams, Combatting the Problems of Human Rights Abuses and Inadequate 
Organ Supply Through Presumed Donative Consent, 26 CASE W. RES. J. INT’L L. 315, 322 
(1994). 
17 See Sydney Lupkin, Organ Donation Rates: How the U.S. Stacks Up, ABC NEWS (Jun. 18, 
2013), http://abcnews.go.com/Health/organ-donation-rates-us-stacks/story?id=19437070. 
18 See id.  



2015] THE GIFT OF LIFE 313 
 
current legislation in the United States; the policy considerations behind, and 
the public perceptions of, this legislation; and the problems remaining despite 
this legislation. Part IV describes the advantages and disadvantages of both 
the Spanish Model and the Iranian Market. Part V concludes with a 
discussion of whether and how organ procurement policies from either 
country could be successfully implemented in the United States.  

II. THE ORGAN SHORTAGE DEBACLE 

No matter how the issue is framed, the supply of organs in the United 
States is simply not meeting the demand.19 Waiting lists are packed with 
patients seeking kidneys, hearts, lungs, livers, pancreases, and intestines.20 
But individual donors are not meeting this overwhelming cry for help.21 In 
fact, the shortage is actually expected to increase in future years.22 Such 
results will ultimately exacerbate the host of negative consequences currently 
plaguing the nation.23 

A. Donor Classification 

Organs can be procured from both living24 and cadaveric25 donors. 
Although cadaveric donors have consistently outnumbered live donors,26 
both types are vital in eradicating the organ shortage in the United States. 

Beginning with the first successful kidney transplant in 1954,27 
donation of organs by living individuals was “born out of necessity and 

 
                                                                                                                 
19 DAVID L. KASERMAN & A. H. BARNETT, THE U.S. ORGAN PROCUREMENT SYSTEM: A 
PRESCRIPTION FOR REFORM 2 (Marvin H. Kosters ed., 2002); see UNITED NETWORK FOR 
ORGAN SHARING, supra note 9. 
20 See UNITED NETWORK FOR ORGAN SHARING, supra note 9. 
21 See id. 
22 The Solution, ORGANIZE, http://www.organalliance.org/the-solution/ (last visited Oct. 26, 
2013); see ARTHUR CAPLAN, ET AL, TRAFFICKING IN ORGANS, TISSUES AND CELLS AND 
TRAFFICKING IN HUMAN BEINGS FOR THE PURPOSE OF THE REMOVAL OF ORGANS 19–20 (2009), 
http://www.coe.int/t/dghl/monitoring/trafficking/docs/news/organtrafficking_study.pdf. 
23 See KASERMAN & BARNETT, supra note 19, at 31. 
24 Richard D.M. Allen et al., The Living Organ Donor, in ORGAN AND TISSUE DONATION FOR 
TRANSPLANTATION 162 (Jeremy R. Chapman et al. eds., 1997). 
25 Mark Deierhoi, Organ Recovery from Cadaveric Donors, in ORGAN AND TISSUE DONATION 
FOR TRANSPLANTATION, supra note 24, at 152. 
26 Organ and Tissue Donation from Living Donors, U.S. DEP’T OF HEALTH & HUMAN 
SERVICES, http://www.organdonor.gov/about/livedonation.html (last visited Oct. 26, 2013); 
see Data, U.S. DEP’T OF HEALTH & HUMAN SERVICES, http://optn.transplant.hrsa.gov/latest 
Data/step2.asp? (under “Choose Category,” select “Donor;” select “All Donors by Type” 
hyperlink) (hereinafter Data I). 
27 History, U.S. DEP’T OF HEALTH & HUMAN SERVICES, http://www.unos.org/donation/index 
php?topic=history (last visited Oct. 26, 2013). 



314 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
remains a necessity.”28 While the kidney is the most commonly transplanted 
organ, living individuals can also donate parts of their livers, lungs, 
pancreases, and intestines.29 The majority of living donors participate in 
directed donation, a process allowing the individual to select the transplant 
recipient;30 this generally occurs among kin or between close friends.31 
However, individuals can also participate in non-directed or altruistic 
donation, whereby they are matched with potential recipients in need.32 
Regardless, individuals who wish to donate must be medically evaluated to 
determine whether their organs can even be used.33 Suitable living donors are 
generally healthy, physically fit, and free from diabetes, cancer, high blood 
pressure, and most other ailments.34 Moreover, three conditions must be met 
before a transplant employing a living donor can occur: (1) the chance of 
success must be high; (2) the risk involved must be both low and acceptable 
to the donor, recipient, and physician; and (3) the organ must be volunteered 
from an individual who has given informed consent.35 Though organ 
donation by living individuals poses unnecessary risk,36 approximately 6,000 
donors in the United States choose to undergo such surgeries every year.37  

Eligibility for cadaveric donation rests upon an individual consenting 
to organ donation through enrolling in their state’s donor registry prior to 
death.38 Potential donors generally arrive at the hospital through illness, like 
aneurysms and strokes, or accident, like severe head trauma.39 After the 
cessation of cardiac or brain activity,40 cadavers undergo screening for 
various health risks, similar to that of the living donor.41 Once potential 
donors are identified through their status as an organ donor and their overall 
health, permission is generally sought from next-of-kin.42 Though current 
law does not require this practice, refusal by the family will usually terminate 
organ collection effortseven if this contradicts the donor’s wishes.43 From 
 
                                                                                                                 
28 Allen et al., supra note 24, at 162. 
29 Organ and Tissue Donation from Living Donors, supra note 26. 
30 UNITED NETWORK FOR ORGAN SHARING, LIVING DONATION: INFORMATION YOU NEED TO 
KNOW 3 (2013), http://www.unos.org/docs/Living_Donation.pdf. 
31 Organ and Tissue Donation from Living Donors , supra note 26. 
32 UNITED NETWORK FOR ORGAN SHARING, supra note 30, at 3. 
33 Organ and Tissue Donation from Living Donors , supra note 26. 
34 Id. 
35 Allen et al., supra note 24, at 162. 
36 Organ and Tissue Donation from Living Donors, supra note 26. 
37 Id.; see Data I, supra note 26. 
38 Organ Donation: The Process, U.S. DEP’T OF HEALTH & HUMAN SERVICES, http://www. 
organdonor.gov/about/organdonationprocess.html#process7 (last visited Oct. 26, 2013). 
39 Id. 
40 See generally Robert M. Sade, Brain Death, Cardiac Death, and the Dead Donor Rule, 107 
J. S.C. MED. ASSOC. 146 (2011). 
41 Deierhoi, supra note 25, at 152–53. 
42 KASERMAN & BARNETT, supra note 19, at 9. 
43 Id. at 9–10. 



2015] THE GIFT OF LIFE 315 
 
identification to transplantation, potential donors are kept on life support 
systems in order to keep their organs stable and functioning.44 Unfortunately, 
organs from living donors may be of higher quality than those from cadaveric 
donors since the former had not previously been maintained on artificial 
support.45 Regardless, cadaveric donation supports roughly 22,000 
transplants in the United States annually.46 

B. The Escalating Shortage 

Despite the fact that more than 14,000 altruistic individuals in the 
United States are willing to donate their organs each year,47 more than 
121,000 candidates remain on the waiting list.48 The waiting list, which has 
experienced constant growth over the years, is expected to continue 
increasing rapidly in future years, while the number of donors will likely 
remain relatively constant under current policy.49  

One reason for the intensifying shortage stems from an increased 
capacity to perform transplantations.50 Technological advances have allowed 
for not only more transplantations, but also more successful 
transplantations.51 The discovery of cyclosporine in 1983 notably contributed 
to such success due to its immunosuppressive qualities that reduce the risk of 
a recipient’s body rejecting the transplanted organ.52 Recent years have seen 
more effective medications, enhanced surgical techniques, and improved 
organ preservation methods.53 As improved technology has become more 

 
                                                                                                                 
44 See Deierhoi, supra note 25, at 156. 
45 James R. Rodrigue, et al, Psychological Considerations of Living Organ Donation, in 
BIOPSYCHOSOCIAL PERSPECTIVES 59, 60 (James R. Rodrigue ed., Kluwer Academic/Plenum 
Publishers 2001). 
46 See Data, U.S. DEP’T OF HEALTH & HUMAN SERVICES, http://optn.transplant.hrsa.gov/latest 
Data/step2.asp? (under “Choose Category,” select “Transplant;” select “Transplants by Donor 
Type” hyperlink) (hereinafter Data II). This number refers to all of the transplants that result 
from cadaveric donors. See id. This number is larger than the number of individual cadaveric 
donors due to the fact that multiple organs can be harvested from each cadaver. Cf. Data I, 
supra note 24 (cadaveric donors have approximated 8000 in recent years), with Data II, supra 
note 45 (cadaveric transplantations have approximated 22,000 in recent years). 
47 See Data I, supra note 26. 
48 See Data, U.S. DEP’T OF HEALTH & HUMAN SERVICES, http://optn.transplant.hrsa.gov/latest 
Data/step2.asp? (under “Choose Category,” select “Waiting List;” under “Count,” select 
“Candidates;” select “Overall by Organ” hyperlink) (hereinafter Data III). Choosing to view 
only “candidates,” rather than “registration,” produces only the number of individuals waiting 
for one or more organs. Id. This number does not refer to the number of individuals who are 
waiting for multiple organs. Id.  
49 See The Solution, supra note 22; The Need is Real: Data, supra note 11.  
50ARTHUR CAPLAN, ET AL, supra note 22, at 19–20. 
51 KASERMAN & BARNETT, supra note 19, at 30. 
52 Id.  
53 Id. at 40. 



316 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
commonplace in the modern world, transplantation facilities have 
proliferated across the country, allowing individuals in rural areas to be just 
as eligible to obtain transplants as those in urban areas.54 Such technology 
also allows physicians to accept patients for transplantation in far worse 
condition than past technologies permitted.55 Modern technology has 
contributed substantially to the increased number of individuals waiting for 
an organ transplant; this effect can only be expected to intensify as 
technology improves. 

Several other factors have also contributed to the organ shortage. For 
example, modern medicine and lifestyle changes have yielded longer 
lifespans, and aging populations are more prone to afflictions that lead to 
organ failure than are their younger counterparts.56 Furthermore, the 
increasingly sedentary lifestyle of many individuals in the United States, 
coupled with the amplified consumption of processed foods, has triggered 
the emergence of dangerous diseases that lead to organ failure.57 In the same 
vein, this sort of lifestyle, which often leads to obesity, has been known to 
shrink the donor pool by disqualifying potential donors.58  

Kidneys are expected to increase in demand in the coming years, as the 
number of patients with diabetes has been projected to double from the year 
2000 to 2030.59 When taken in consideration with the aging population and 
increased prevalence of obesity, this diabetes pandemic will likely have a 
significant effect on the incidence of end-stage renal disease.60 The amplified 
prevalence of end-stage renal disease will ultimately elicit an even louder cry 
for kidneys than the country is currently experiencing. 

Though it is seldom considered, patients who have already received 
transplants often require re-transplantation as their transplanted organs age.61 
As the number of patients who have received transplants continues to grow, 
and those patients’ organs continue to age, the number of required re-
transplantations will also increase.62 It follows, then, that the organ shortage 
will not likely be slowing down any time soon.63 

 
                                                                                                                 
54 See ARTHUR CAPLAN, ET AL, supra note 22, at 20. 
55 Id. 
56 Id. 
57 Id.; David R. Jacobs, Jr., Fast Food and Sedentary Lifestyle: A Combination that Leads to 
Obesity, 83 AM. J. CLIN. NUTR. 189, 190 (2006). 
58 See Obesity Reduces Organ Donor Pool, NAT’L KIDNEY FOUND. (May 10, 2012), 
http://www.kidney.org/news/newsroom/nr/Obesity-Reduces-Organ-Donor-Pool.cfm; Kate 
Yandell, Transplant Centers Struggle With Donors’ Obesity, N.Y. TIMES (Aug. 6, 2012, 3:37 
PM), http://well.blogs.nytimes.com/2012/08/06/transplant-centers-struggle-with-donors- 
obesity/?_r=0. 
59ARTHUR CAPLAN, ET AL, supra note 22, at 20. 
60 Id. 
61 Id. 
62 Id. 
63 See id. 



2015] THE GIFT OF LIFE 317 
 
C. Consequences of the Organ Shortage 

Consequences of the organ shortage can be thought of as “symptoms 
of the failure of organ supply and demand to equilibrate.”64 While the 
shortage already affects millions of men, women, and children throughout 
the United States on a daily basis, its consequences can only be expected to 
worsen as the shortage continues to grow. 

Because the demand of organs cannot be met by the supply, many 
individuals will never even see their names on the waiting list.65 However, 
even those fortunate enough to make the list will experience lengthy waiting 
periods, which have negative consequences of their own.66 Not only is the 
patient required to suffer for a longer period of time, but there is also a 
considerable monetary expense associated with keeping patients alive while 
they wait.67 In addition, the transplant success rate often drops during this 
period due to deterioration of the patients’ health and ability to withstand 
transplantation.68 Studies have shown that longer waiting periods also have a 
negative impact on the results of transplantation, at least as far as kidneys are 
concerned.69 And, most alarmingly, longer waiting periods too often result in 
death of the suffering patients who otherwise could have lived.70  

Due to the fact that requests for kidneys comprise over eighty percent 
of the organ transplant waiting list,71 it is important to note that alternatives 
to kidney transplantations, such as dialysis, are both less successful and less 
cost-effective.72 As the organ shortage grows, more individuals will be forced 
to remain on dialysis for longer periods of timesome indefinitely.73 This 
results in a lower quality of life for individuals forced to remain on the 
waiting list.74 Moreover, the bodies of individuals placed on dialysis before 
receiving a kidney transplant are more likely to reject transplanted kidneys.75 
Research has indicated that, over a five-year period, successful kidney 
transplants are more cost-effective than maintaining a patient on dialysis.76 
While dialysis is cheaper than transplantation in the short-term, the costs of 
transplantation fall sharply after the surgery and recovery are complete.77 For 

 
                                                                                                                 
64 KASERMAN & BARNETT, supra note 19, at 40. 
65ARTHUR CAPLAN, ET AL, supra note 22, at 21. 
66 Id. 
67 KASERMAN & BARNETT, supra note 19, at 33. 
68 Id. 
69 See ARTHUR CAPLAN, ET AL, supra note 22, at 21. 
70 Id.; KASERMAN & BARNETT, supra note 19, at 33. 
71 See Data III, supra note 48. 
72ARTHUR CAPLAN, ET AL, supra note 22, at 21. 
73 See KASERMAN & BARNETT, supra note 19, at 34. 
74 Id. at 35. 
75 Id. 
76 Id. at 34–35; ARTHUR CAPLAN, ET AL, supra note 22, at 21. 
77ARTHUR CAPLAN, ET AL, supra note 22, at 21. 



318 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
the vast majority of the waiting list, kidney transplantation is the best and 
only option for recovery. 

The ever-increasing organ shortage has led individuals across the 
country to desperation;78 the harsh choices made by some will likely grow 
more common as the shortage escalates. For example, patients in dire need 
of an organ, who have little chance at receiving one, are more likely to turn 
to the black market to survive.79 Individuals have resorted not only to the 
trafficking of organs, but also to the trafficking of humans for organ 
retrieval.80 Trafficking rings in both donor countries, like Egypt and India, 
and recipient countries, like the United States, work together to recruit and 
match individuals in order to make a profit.81 In this way, wealthy individuals 
can reduce their time on the waiting list to a fraction of what it would have 
been otherwise.82 The growing disparity between the supply and demand of 
transplantable organs will ultimately allow the black market to flourish.83  

It is clear that, if it is allowed to continue growing, the organ shortage 
in the United States will produce a multitude of unfavorable results. Under 
current policy, the waitlist will progress on its upward trajectory while the 
number of donors will remain relatively constant.84 The implementation of a 
successful organ procurement system could diminish the consequences of the 
organ shortageand, ultimately, the organ shortage itself. 

III. THE UNITED STATES AND ALTRUISTIC DONATION 

The United States currently utilizes an altruistic model for organ 
procurement.85 Under this model, individuals are encouraged to volunteer 
their organs for transplantation without any sort of compensation or 
incentive. Accordingly, individuals must “opt in” to become a donor by 
taking concrete action to declare their donorship.86 This policy promotes 
 
                                                                                                                 
78 See id.; KASERMAN & BARNETT, supra note 19, at 38. 
79 See ARTHUR CAPLAN, ET AL, supra note 22, at 21; KASERMAN & BARNETT, supra note 19, at 
38. 
80ARTHUR CAPLAN, ET AL, supra note 22, at 21–22. 
81 F. Ambagtsheer & W. Weimar, A Criminological Perspective: Why Prohibition of Organ 
Trade is Not Effective and How the Declaration of Istanbul Can Move Forward, 12 AM. J. 
TRANSPLANTATION 571, 572 (2011). 
82 See ARTHUR CAPLAN, ET AL, supra note 22, at 22. 
83 Id. 
84 See The Need is Real: Data, supra note 11. 
85 Marie-Chantal Fortin et al., The Enigmatic Nature of Altruism in Organ Transplantation: A 
Cross-Cultural Study of Transplant Physicians’ Views on Altruism, 3 BMC RESEARCH NOTES 
216, 216 (2010); Alexander Tabarrok, Life-Saving Incentives: Consequences, Costs and 
Solutions to the Organ Shortage, LIBRARY OF ECON. AND LIBERTY (Aug. 3, 2009), 
http://www.econlib. 
org/library/Columns/y2009/Tabarroklifesaving.html [hereinafter Tabarrok, Life-Saving 
Incentives]. 
86 Richard H. Thaler, Opting In vs. Opting Out, N.Y. TIMES, Sept. 27, 2009, at BU6,  

http://dx.doi.org/10.1111/j.1600-6143.2011.03864.x
http://dx.doi.org/10.1186/1756-0500-3-216


2015] THE GIFT OF LIFE 319 
 
many of the same guidelines as policies in other organized democracies 
supporting organ transplantation.87 

A. Current Legislation 

Both the Uniform Anatomical Gift Act (UAGA)88 and the National 
Organ Transplant Act (NOTA)89 govern the altruistic organ donation and 
procurement schemes in the United States. While these two pieces of 
legislation were drafted in order to combat the organ shortage, it nevertheless 
continues to grow.90 As decades of failure have proven, current legislation 
will not solve the organ shortage. 

1. The Uniform Anatomical Gift Act 

In 1968, the National Conference of Commissioners on Uniform State 
Laws (NCCUSL) formulated the UAGA in order to remedy the emerging 
organ shortage by increasing the number of cadaveric donors;91 every state 
had adopted this Act by 1972.92 Promulgated at the state level, the UAGA 
governs the organ donation process.  

Under the 1968 Act, any sound-minded individual of at least eighteen 
years of age could consent, prior to death, to the post-mortem donation of his 
or her organs for medical research or organ transplantation.93 Such consent 
might be expressed through either a will or an organ donor card signed by 
two witnesses.94 The Act also provided a list of those who might consent to 
donation if the deceased individual did not declare a preference in the 
matter.95  

In 1987, the UAGA was revised to allow more flexibility in organ 
retrieval following a report documenting inadequacies of the 1968 Act.96 
Most notably, the 1987 Act specified that “[a]n anatomical gift that is not 
 
                                                                                                                 
available at http://www.nytimes.com/2009/09/27/business/economy/27view.html?_r=0.  
Individuals can take such concrete action by either donating an organ or enrolling in their 
state’s donor registry within their lifetime. Organ Donation: The Process, supra note 37. 
87 Sam Crowe & Eric Cohen, Organ Transplantations Policies and Policy Reforms, 
President’s Council on Bioethics (2006), available at http://permanent.access.gpo.gov/lps 
92649/organ_donation.html. 
88 UNIF. ANATOMICAL GIFT ACT (1968), superseded by UNIF. ANATOMICAL GIFT ACT (1987), 
superseded by UNIF. ANATOMICAL GIFT ACT (2006). 
89 Nat’l Organ Transplant Act of 1984, Pub. L. No. 98–507, 98 Stat. 2339 (codified as amended 
in scattered sections of 42 U.S.C). 
90 KASERMAN & BARNETT, supra note 19, at 11–12. 
91 Id. at 11. 
92 Crowe & Cohen, supra note 87. 
93 UNIFORM ANATOMICAL GIFT ACT §§ 2(a), 3 (1968). 
94 Id. § 4(a)–(b). 
95 Id. § 2(b). 
96 See UNIFORM ANATOMICAL GIFT ACT Prefatory Note (1987). 



320 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
revoked by the donor before death is irrevocable and does not require the 
consent or concurrence of any person after the donor’s death.”97 This 
explicitly ruled out the need for hospitals to seek consent from surviving 
family members when the donor had previously expressed consent.98 
Hospitals, then, had a duty to honor the donor’s wishes upon death.99 In 
practice, however, hospitals continued to seek consent of surviving family 
members regardless of whether the donor had executed consent prior to 
death; families that denied consent halted all organ procurement efforts.100 
Despite the 1987 Act, neither wills nor donation cards controlled in the 
ultimate decision of whether to donate an individual’s organs post-mortem.101 

The 1987 Act made several other revisions to the 1968 Act. For 
example, making an anatomical gift no longer required two witnesses, and 
the buying and selling of organs was explicitly prohibited.102 The 1987 Act 
also instigated the practices of “routine inquiry” and “required request.”103 
Routine inquiry required hospital personnel to ask patients upon admittance 
if they would consider being organ donors,104 while required request involved 
hospital personnel discussing the possibility of organ donation with surviving 
family members if the deceased individual did not declare a preference in the 
matter.105 Despite significant improvements, only twenty-six states adopted 
the 1987 Act.106 

The NCCUSL revised the UAGA for a third time in 2006. This Act 
attempts to improve the older Acts by, for example, easing the process of 
expressing consent by indicating preferences on drivers’ licenses.107 It also 
expands the list of those authorized to make an anatomical gift from an 
individual who died without indicating a preference in the matter.108 The Act 
broadens the pool of potential organ donors by allowing minors eligible to 
obtain drivers’ licenses to be donors.109 In respecting the decedent’s wishes, 
it clearly bars the potential to disregard an individual’s explicit refusal to 
make an anatomical gift.110 Criminal penalties have also been imposed for 
the misrepresentation of an anatomical gift for the purposes of selling 

 
                                                                                                                 
97 Id. § 2(h). 
98 KASERMAN & BARNETT, supra note 19, at 11. 
99 See id. at 10. 
100 Id. 
101 Id. 
102 UNIFORM ANATOMICAL GIFT ACT §§ 2(b), 10 (1987). 
103 Id. § 5. 
104 See id. § 5(a). 
105 Id. § 5(b). 
106 UNIFORM ANATOMICAL GIFT ACT Prefatory Note (2006). 
107 Id. § 2(6). 
108 Id. § 9(a). 
109 Id. § 4(1)(b). 
110 UNIFORM ANATOMICAL GIFT ACT § 7(d). 



2015] THE GIFT OF LIFE 321 
 
organs.111 Thus, the 2006 Act attempts to broaden the occasions for 
individuals to make anatomical gifts, while, at the same time, respecting the 
wishes of those who refuse to donate and imposing harsher penalties for those 
who violate the law. Most importantly, however, the Act upholds the 
provision in the 1987 Act that precludes persons other than the donor from 
revoking the anatomical gift.112 Forty-seven states have adopted the 2006 
Act.113 

2. The National Organ Transplant Act 

While state law focuses primarily on the organ donation process, 
federal law establishes standards for the procurement, allocation, and 
transplantation of organs.114 Congress enacted NOTA in 1984 in order to 
increase the available supply of organs, ensure the fairness of organ 
allocation, and prevent the formation of organ markets.115  

NOTA first required the Secretary of the Department of Health and 
Human Services to create an administrative unit responsible for its 
implementation.116 Thus, the Division of Organ Transplantation was 
established.117 Its responsibilities include (1) providing funding for private, 
nonprofit organizations operating to procure and allocate organs, (2) 
increasing awareness of organ donation, and (3) promoting research in the 
area of organ donation and transplantation.118 As a result, the Division of 
Organ Transplantation oversees contracts for the Organ Procurement and 
Transplantation Network (OPTN) and the Scientific Registry, as well as 
grants to Organ Procurement Organizations (OPOs).119  

 The OPTN was also created under NOTA,120 and is operated by a 
contract with the Department of Health and Human Services.121 Its primary 
task is to establish and maintain a national listing of all transplant candidates 
in conjunction with a computerized system for allocation.122 The OPTN also 
 
                                                                                                                 
111 Id. § 17. 
112 Id. § 8(a). 
113 Legislative Fact Sheet – Anatomical Gift Act (2006), UNIFORM LAW COMM’N., 
http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Anatomical%20Gift%20Act%
20(2006) (last visited Nov. 9, 2013). 
114 Crowe & Cohen, supra note 87. 
115 KASERMAN & BARNETT, supra note 19, at 12. 
116 42 U.S.C.A. § 274c (West 2013). 
117 Fred H. Cate, Human Organ Transplantation: The Role of the Law, 20 IOWA J. CORP. L. 69, 
77 (1994). 
118 KASERMAN & BARNETT, supra note 19, at 12. 
119 Cate, supra note 117, at 77. 
120 42 U.S.C.A. § 274(a) (West 2008). 
121 COMM. ON ORGAN PROCUREMENT AND TRANSPLANTATION POL’Y, ORGAN PROCUREMENT 
AND TRANSPLANTATION 22 (Florence Poillon & Beth Gyorgy eds., 1999). 
122 42 U.S.C.A. § 274(b)(2)(A) (West 2008); KASERMAN & BARNETT, supra note 19, at 12–
13. 



322 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
implements standards of quality for the procurement and transportation of 
organs while assisting in the equitable distribution of organs.123 Among its 
primary goals, the OPTN seeks to “work actively to increase the supply of 
donated organs.”124 Like the OPTN, the Scientific Registry was created under 
NOTA to establish a database of organ recipients for the purpose of 
facilitating research regarding organ transplantation.125 The Scientific 
Registry is also operated by a contract with the Department of Health and 
Human Services.126 Together, these organizations attempt to facilitate and 
improve the organ transplantation process. 

NOTA regards OPOs as the cornerstone of the organ procurement and 
distribution system.127 Among the various duties allocated to them, OPOs 
must (1) work closely with organ transplant facilities in specific geographic 
areas in order to identify potential donors, (2) conduct systematic efforts to 
acquire all usable organs, (3) arrange for the acquisition and preservation of 
donated organs under standards consistent with those adopted by OPTN, and 
(4) equitably allocate such organs.128 OPOs also attempt to increase public 
awareness through community outreach.129 Through procurement 
coordinators, OPOs are able to reach out to families of recently deceased 
individuals to discuss the potential of organ donation.130 OPOs then work 
closely with the United Network for Organ Sharing (UNOS) to match donor 
organs to recipients.131 There are currently fifty-eight OPOs in the United 
States, each covering a specific geographic region.132 

UNOS is a private, nonprofit organization that manages OPTN and the 
Scientific Registry through contracts with the Department of Health and 
Human Services.133 Accordingly, UNOS is responsible for operating the 
computerized allocation system that assigns organs to patients.134 After organ 
procurement, the OPO associated with the organ enters information into a 
centralized system operated and maintained by UNOS and initiates the 
 
                                                                                                                 
123 42 U.S.C.A. §§ 274(b)(2)(D)–(E) (West 2008). 
124 Id. § 274(b)(2)(K). 
125 42 U.S.C.A. § 274a (West 2014); KASERMAN & BARNETT, supra note 19, at 13. 
126 COMM. ON ORGAN PROCUREMENT AND TRANSPLANTATION POL’Y, supra note 121, at 31. 
127 KASERMAN & BARNETT, supra note 19, at 13. 
128 42 U.S.C.A. §§ 273(b)(3)(A)-(C), (E) (West 2004). 
129 Organ Procurement Organizations, U.S. DEP’T OF HEALTH & HUMAN SERVICES, 
http://organdonor.gov/materialsresources/materialsopolist.html (last visited Nov. 9, 2013) 
[hereinafter OPOs I]; COMM. ON ORGAN PROCUREMENT AND TRANSPLANTATION POL’Y, supra 
note 121, at 33. 
130 See KASERMAN & BARNETT, supra note 19, at 13; OPOs I, supra note 128; Organ 
Procurement Organizations, DONORS WANTED: NAVIGATING THE PATH TO ORGAN AND TISSUE 
DONATION, http://journalism.berkeley.edu/projects/transplants/opo.html (last visited Nov. 9, 
2013) [hereinafter OPOs II]. 
131 OPOs II, supra note 130; see KASERMAN & BARNETT, supra note 19, at 13–14. 
132 OPOs I, supra note 129; KASERMAN & BARNETT, supra note 19, at 13. 
133 OPTN, supra note 14. 
134 KASERMAN & BARNETT, supra note 19, at 13. 



2015] THE GIFT OF LIFE 323 
 
matching program.135 This produces a graded list of potential recipients based 
on, for example, blood type, medical urgency, and time spent waiting.136 
Every OPO has access to such information based on their required 
memberships with UNOS and OPTN.137 Thus, UNOS ensures that organs are 
allocated fairly and efficiently.138 

NOTA’s final objective is to prohibit the buying and selling of human 
organs.139 Specifically, the Act labels it a felony to “knowingly acquire, 
receive, or otherwise transfer any human organ for valuable consideration for 
use in human transplantation.”140 The Act clarifies that “‘valuable 
consideration’ does not include the reasonable payments associated with the 
removal, transportation, implantation, processing, preservation, quality 
control, and storage of a human organ . . . .”141 Accordingly, healthcare 
personnel involved in transplant services may be compensated for their work; 
only donors and recipients are proscribed from engaging in a commercial 
transaction.142 

B. Policy Concerns 

Current legislation has been molded around three fundamental values 
that citizens and policymakers in the United States hold dear. The first of 
these is health.143 When crafting organ donation, procurement, and allocation 
laws, legislatures strive to promote the health of patients waiting to receive 
the gift of life.144 This principle is remarkably vexing; transplantation has 
been perfected through modern medicine, yet it remains utterly unattainable 
for many.145 As one might expect, “the pursuit of health is an aim that unites 
even those who disagree about much else.”146  

The next fundamental value is freedom.147 Freedom governs 
individuals’ decisions when it comes to expressing or refusing consent for 
organ donation.148 Accordingly, the United States promotes an “opt-in” 

 
                                                                                                                 
135 COMM. ON ORGAN PROCUREMENT AND TRANSPLANTATION POL’Y, supra note 121, at 34. 
136 Id. 
137 Id. at 32; Howard M. Nathan et al., Organ Donation in the United States, 3 (Suppl. 4) AM. 
J. OF TRANSPLANTATION 29, 29 (2003). 
138 Crowe & Cohen, supra note 87. 
139 42 U.S.C.A. § 274e(a) (West 2007). 
140 Id. §§ 274e(a)–(b). 
141 Id. § 274e(c)(2). 
142 KASERMAN & BARNETT, supra note 19, at 14. 
143 Crowe & Cohen, supra note 87. 
144 Id. 
145 Id. 
146 Id. 
147 Id. 
148 Crowe & Cohen, supra note 87. 

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324 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
policy so no one is required to donate his or her organs.149 Even though such 
a requirement would have noteworthy positive effects on the promotion of 
patient health─the previous fundamental value─it appears as though freedom 
is generally more influential and accepted than health in the creation of organ 
donation laws.150  

The final value that legislatures take into consideration is dignity.151 
Because humans possess dignity, they are worthy of protection and entitled 
to freedom.152 Yet, while dignity undoubtedly fosters the other two values, it 
serves as a boundary on both as well.153 For example, even though one 
individual freely choosing to donate all of his or her organs while living 
would save the lives of many others at the expense of only one, such an act 
would fall beneath the dignity of human beings.154 The value of dignity 
would suggest, then, that the needs of the many do not outweigh the needs of 
the one when it comes to organ transplantation policy.155  

Because Americans deem these principles central to their rights as 
human beings, it is unlikely that future legislation will disregard them in any 
way. It is the job of the legislature to balance health, freedom, and dignity to 
best serve the United States. 

C. Public Perception 

Citizens in the United States are seemingly comfortable with the 
current structure of organ donation and procurement laws. Not only is the 
awareness of organ transplantation programs very high among the general 
public,156 but research also indicates that organ donation is perceived as 
socially desirable.157 Despite such encouraging data, societal attitudes 
including cultural values and religious beliefs are cited as contributing to the 
organ shortage.158 Studies show that, while public education has greatly 
benefited the white majority, it has failed to address the needs and concerns 
of the substantialand growingminority population.159 Minorities tend to 

 
                                                                                                                 
149 Id.  
150 Id. 
151 Id. 
152 Id.  
153 Id. 
154 Crowe & Cohen, supra note 87.  
155 Id. 
156 William J. Minniefield et al., Differences in Attitude Toward Organ Donation Among 
African Americans and Whites in the United States, 93 J. NAT. MED. ASSOC. 372, 378 (2001).  
157 Karen L. Smith & Judith B. Braslow, Public Attitudes Toward Organ and Tissue Donation, 
in ORGAN AND TISSUE FOR TRANSPLANTATION, supra note 24, at 34. 
158 Id. at 35. 
159 Id.; Minniefield et al., supra note 156, at 378. In fact, more than half of the growth of the 
U.S. population between 2000 and 2010 can be attributed to the immigration of Asian and 



2015] THE GIFT OF LIFE 325 
 
have an inherent distrust of the white majority, of which most healthcare 
providers are a part.160 Some minority individuals even fear they will not 
receive adequate medical attention if doctors believe organ procurement is 
possible.161 Misconceptions about religious teachingsfor example, that the 
body must remain intact post-mortemhave also been cited as a barrier to 
organ donation.162 Additional efforts through community outreach must be 
made in order to address minority concerns regarding organ donation policy. 
Regardless, tremendous support for organ donation endures.163 

D. Where Are We Lacking? 

Despite the comprehensive set of laws designed to eliminate the organ 
shortage, it lives on. To its credit, the current system not only encompasses 
the values important to policymakers and citizens alike, but it also allows 
individuals to have complete control over whether they will make an 
anatomical gift. However, organ procurement laws in the United States are 
based solely on altruistic ideals.164 Such a scheme, though admirable, has not 
led to desirable results for the country.  

The existing problem may not necessarily stem from poor legislation, 
but rather the flawed implementation of workable legislation. As mentioned 
previously, hospitals have long been known to neglect the expressly stated 
wishes of potential donors when the opinions of surviving family members 
oppose such action.165 This specifically violates the 2006 UAGA, which 
nearly every state has adopted.166 However, this clear disregard for the law 
may stem from hospitals’ efforts to maintain favorable relations with the 
public, not from the desire to disregard the wishes of potential donors.167 The 
image of hospitals callously stripping a body of its workable organs at the 
resistance of grieving loved ones does little to encourage trust in the organ 
procurement system, even if such organ procurement is required by law.168 
Moreover, because most cadaveric organ donors are the result of spontaneous 
illness or accidentsituations that leave loved ones little time to 

 
                                                                                                                 
Hispanic individuals. 2010 Census Shows America’s Diversity, U.S. CENSUS BUREAU (Mar. 
24, 2011), http://www.census.gov/newsroom/releases/archives/2010_census/cb11-cn125. 
html. 
160 Smith & Braslow, supra note 157, at 37. 
161 See Minniefield et al., supra note 156, at 378; Smith & Braslow, supra note 157, at 37. 
162 Allison Pond, American Organ Donations Hindered by Religious and Cultural Myths, in 
ORGAN DONATION 89 (Greenhaven Press, 2013); see Smith & Braslow, supra note 157, at 37. 
163 See Smith & Braslow, supra note 157, at 37; Minniefield et al., supra note 156, at 379. 
164 See Tabarrok, Life-Saving Incentives, supra note 85. 
165 See supra Part III.A.1. 
166 Id. 
167 Interview with Sam Davis, Dir. of Prof’l Serv., Ind. Organ Procurement Org., in 
Indianapolis, Ind. (Jan. 24, 2014). 
168 Id.  



326 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
adjusttheir surviving family members are more likely to attempt to control 
the situation by halting all efforts to invade the decedent’s body.169 These 
roadblocks are often compounded by misunderstandings concerning whether 
an individual can recover from brain death.170 Loved ones often hold out hope 
that, because the decedent is still warm and breathing, he or she stands a 
fighting chance.171 Such unbridled optimism occurs despite the decedent’s 
lack of brain activity and inability to breath without aid.  

This conundrum is not easily solved. It is important to note that the 
2006 UAGA imposes no penalties for hospitals’ refusal to procure 
anatomical gifts when the surviving family objects. Enforcing current law 
could help alleviate the magnitude of the organ shortage. However, bypassing 
the wishes of surviving family members does not seem to be acceptable to 
the general public. This negative reaction has prompted healthcare 
professionals to take the families’ wishes into account before procuring 
expressly donated organs.172 

Because the current system has continued to fail for nearly forty years, 
many argue that mere modification is unlikely to yield positive results.173 The 
United States must alter the way it approaches organ procurement in order to 
rid itself of the shortage plaguing the nation. 

IV. LEADERS ABROAD 

 When considering how best to improve its own organ 
procurement debacle, the United States would be prudent to seek out 
successful systems abroad. Varying schemes could provide useful models for 
the United States in reshaping its own scheme. Two leaders abroadSpain 
and Iranoffer novel approaches to their corresponding organ shortages. 
Since both systems have yielded positive results for their respective 
countries, the United States should investigate whether certain aspects of 
these schemes could advantage its own citizens. 

A. The Spanish Model 

Spain has, arguably, the best organ transplant system in the world.174 
In fact, the country leads the world in organ donation rates with 
 
                                                                                                                 
169 Id.  
170 Id.  
171 Interview with Sam Davis, Dir. of Prof’l Serv., Ind. Organ Procurement Org., in 
Indianapolis, Ind. (Jan. 24, 2014). 
172 Id.  
173 See KASERMAN & BARNETT, supra note 19, at 45. 
174 See Grace Wong, Spain Leads the World in Organ Donations, in ORGAN DONATION, supra 
note 162, at 42; Sarah Boseley, Spain’s Family Bonds Lie at the Heart and Soul of Great 
Healthcare, THE GUARDIAN (Mar. 30, 2011), http://www.theguardian.com/world/ 
2011/mar/31/spain-health-family-transplant; Lupkin, supra note 17. 



2015] THE GIFT OF LIFE 327 

approximately thirty-four deceased donors per million citizens.175 This 
number easily outstrips the United States, which boasts only twenty-six 
deceased donors per million citizens.176 Since the organ procurement laws in 
Spain are producing notably positive results, perhaps using the scheme as a 
model could benefit the United States as well. 

Unlike the United States, which employs an “opt-in” policy, Spain 
utilizes an “opt-out” policy known as presumed consent.177 Under a 
presumed consent model, presumption is shifted in favor of organ donation; 
an individual who has not explicitly refused to become an organ donor prior 
to death is presumed to have no objection to organ donation after 
deathunless his or her family specifically objects.178 While such laws may 
have mildly contributed to increased organ donation rates in the country, they 
are by no means responsible for Spain’s success.179 Two realities illustrate 
this point. First, a number of countries throughout the world have 
implemented assorted versions of the presumed consent model.180 If 
presumed consent alone was responsible for an increased organ donation rate, 
one would expect that all countries utilizing such a model would mirror 
Spain’s booming donation rates as well. However, this is not the case. Austria 
and Luxembourg, for example, have both implemented presumed consent, 
yet neither have organ donation rates as successful as those in Spain.181 In 
fact, very few countries exceed the number of donors, per million citizens, 
supplied by the United States, despite its “opt-in” policy.182 The second 
illustration of Spain’s achievement beyond the implementation of presumed 

175 Wong, supra note 174, at 42; Mary Helen Spooner, More Countries Hoping to Copy 
Spain’s Organ-Donation Success, 169 JAMC 952 (2003); Boseley, supra note 174. 
176 Lupkin, supra note 17. 
177 KASERMAN & BARNETT, supra note 19, at 46; Lupkin, supra note 17. 
178 See KASERMAN & BARNETT, supra note 19, at 45.  
179 Wong, supra note 174, at 43; Kenneth Gundle, Presumed Consent for Organ Donation: 
Perspectives of Health Policy Specialists, 3 STANFORD UNDERGRADUATE RESEARCH JOURNAL 
28, 28 (2004); Presumed Consent Note Answer to Solving Organ Shortage in U.S., 
Researchers Say, JOHNS HOPKINS MEDICINE (Nov. 29, 2011), http://www.hopkinsmedicine. 
org/news/media/releases/presumed_consent_not_answer_to_solving_organ_shortage_in_us_
researchers_say; Muireann Quigley et al., The Organ Crisis and the Spanish Model: 
Theoretical Versus Pragmatic Considerations, 34 J. MED. ETHICS 223, 233 (2008). 
180 KASERMAN & BARNETT, supra note 19, at 46. The author specifically mentions Austria, 
Belgium, Finland, France, Greece, Italy, Norway, and Sweden, in addition to Spain. Id. 
Croatia, Hungary, Luxemburg, and Slovenia are mentioned as well in a different source. 4; 
Quigley et al., supra note 179, at 223. 
181 See Legislation Within the Eurotransplant Region, supra note 179; Council of Europe, 
International Figures on Donation and Transplantation – 2011, NEWSLETTER TRANSPLANT 
(Sept. 2012), available at http://www.transplant-observatory.org/Documents/NEWSLETTER 
2012.pdf. 
182 See Council of Europe, supra note 181. While numbers differ from source to source, it 
appears that only Spain, Portugal, and Belgium exceeded the United States in number of organ 
donors, per million people, as of 2011. See id. 

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328 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
consent lies in the country’s timeline. While Spain’s organ donation rates 
surged throughout the 1990s, the country’s organ procurement legislation has 
remained unmodified since 1979.183 If the dramatic increase was a result of 
presumed consent legislation, it should have begun in the 1980sa decade 
before the impressive upturn actually began. Thus, it is unlikely that 
presumed consent contributed substantially to Spain’s organ donation rate.  

In response to the country’s continuing organ shortage, the Spanish 
Model was born.184 Rather than blaming its shortage on a lack of suitable 
donors, Spain realized the need to turn potential donors into actual donors.185 
Accordingly, the National Transplant Organization (ONT) was created as an 
attachment to the Spanish Department of Health in 1989.186 Due to the 
complexity of organ donation and transplantation, the ONT emphasized the 
necessity to involve as few individuals as possible within each hospital.187 
These local teams were to interact with other local teams, as well as 
coordinators at the regional and national levels.188 Thus, the transplant 
coordinating network was conceived at three levels: national, regional, and 
local (or hospital).189 Most transplant coordinators are medical 
doctorsspecializing in either intensive care or nephrologywho work 
part-time to coordinate tasks involving transplantation at their individual 
hospitals.190  

The Spanish Model supports five philosophies in its implementation, 
all of which contribute to its success.191 First, decentralization obliges each 
region to take responsibility for its own decisionswhether they result in 
success or failure.192 Second, all coordinators are required to make organ 
procurement an absolute priority, despite it being a part-time commitment.193 
Third, cooperation dictates that issues affecting multiple regions should be 
discussed at the Interregional Council, which comprises all national and 
regional coordinators, so they might be resolved quickly.194 Fourth, the ONT 
 
                                                                                                                 
183 Rafael Matesanz & Blanca Miranda, A Decade of Continuous Improvement in Cadaveric 
Organ Donation: The Spanish Model, 15 J. NEPHROLOGY 22, 26 (2002) [hereinafter Matesanz 
& Miranda, Continuous Improvement]. 
184 Rafael Matesanz, Factors Influencing the Adaptation of the Spanish Model of Organ 
Donation, 16 TRANSPLANT INT’L 736, 736 (2003). 
185 Matesanz & Miranda, Continuous Improvement, supra note 183, at 23. 
186 Rafael Matesanz & Blanca Miranda, The Spanish Experience in Organ Donation, in 
ORGAN AND TISSUE DONATION FOR TRANSPLANTATION, supra note 24, at 362 [hereinafter 
Matesanz & Miranda, The Spanish Experience]. 
187 Id. at 362–63. 
188 Rafael Matesanz et al., Organ Procurement and Renal Transplants in Spain: The Impact 
of Transplant Coordination, 9 NEPHROL. DIAL. TRANSPLANT. 475, 476 (1994). 
189 Id. 
190 Matesanz & Miranda, Continuous Improvement, supra note 183, at 23. 
191 Matesanz et al., supra note 188, at 476. 
192 Id.  
193 Id.  
194 Id. 

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2015] THE GIFT OF LIFE 329 
 
functions as a service agency; it is responsible for maintaining registries and 
waiting lists, promoting organ procurement, arranging transplants, 
developing statistical data, and keeping patients and donors informed.195 
Finally, all coordinating teams are required to maintain relationships with 
social agenciessuch as the mediathat have potential influence on organ 
procurement.196  

As implied above, the ONT devotes considerable attention to its 
relationship with the media in an effort to ensure that organ donation and 
transplantation are depicted in a positive light.197 As demonstrated by the 
corresponding failure in the United States, keeping the public correctly 
informed can play a role in donation rates. In particular, Spain wants its 
citizens to be aware of the ONT’s transplant hotlinea twenty-four hour 
phone service, operated by trained professionals, that is used to address any 
question or doubt concerning organ donation, procurement, or 
transplantation from anyone in the country.198 The ONT also holds periodic 
conferences between media journalists and transplantation experts to aid in 
the dissemination of accurate information.199 Hence, the ONT has effectively 
used the media as a tool to communicate with the general public. 

The key aspect to Spain’s success, however, is its family-based 
approach to organ procurement through the use of local-level transplant 
coordinators.200 During the sensitive time surrounding the death of a loved 
one, transplant coordinators are required to discuss the potential for organ 
donation with the grieving family.201 Spain recognizes that, in addition to 
their attitude toward organ donation, a family’s answer hinges on the way the 
option is presented.202 Accordingly, the ONT requires that only specially 
trained stafftypically transplant coordinatorsmake the approach.203 
Because potential donors are at their fingertips, each hospital coordinator 
must “identify potential donors and . . . zealously attempt to turn potential 
donors into actual donors.”204 This occurs in every hospital with an intensive 
care unit, rather than only those with transplant units, in order to increase 
potential donor detection.205  

According to Rafael Matesanz, founder of the ONT, the family-based 
 
                                                                                                                 
195 Id.  
196 Id.  
197 Matesanz & Miranda, Continuous Improvement, supra note 183, at 24. 
198 Id.; Matesanz et al., supra note 188, at 476. 
199 Matesanz & Miranda, Continuous Improvement, supra note 183, at 24. 
200 Id. at 26. 
201 Blanca Miranda et al., Organ Donation in Spain, 14 [Suppl. 3] NEPHROL. DIAL. 
TRANSPLANT. 15, 17 (1999). 
202 Id. at 20. 
203 Id. 
204 Sean T. Gallagher, The Spanish Model’s Capacity to Save Lives by Increasing Organ 
Donation Rates, 18 TEMP. INT’L & COMP. L.J. 403, 411 (2004). 
205 Matesanz & Miranda, Continuous Improvement, supra note 183, at 26. 

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330 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
approach only works with close adherence to specific guidelines.206 First, as 
stated above, the staff responsible for approaching the family requires special 
training.207 The hurried request for an organ is not nearly effective as an 
understanding doctor calmly egaging a grieving family.208 Second, the 
approach needs to be carefully prepared, especially in regards to the time and 
location.209 Before this meeting, it is essential the family understand that, 
despite being sustained by life support, their relative is dead.210 Third, the 
staff needs to conduct itself in a manner as to avoid potential errors in 
presentation. This includes refraining from demonstrating the urgency of the 
situation,211 getting angry with the family,212 and interrupting the family.213 
After utilizing this approach, studies have shown that “most families believe 
that donation provides a positive outcome from death and helps with the 
grieving process . . . .”214 Indeed, all donor families indicated they would 
donate again, and nearly one-third of the families who refused donation 
would have changed their mind after one year’s time.215 

The Spanish Model thrives due to its efforts to perfect every stage of 
the organ procurement process. Spain’s consistently high organ donation 
rates indicate that there is a way to increase the number of donors through 
public policy, donor identification, and open communication with the general 
population. Furthermore, the founder of the ONT expressly believes that the 
Spanish Model can be extrapolated to other countries.216  

B. The Iranian Market 

“Although Iran clearly does not serve as a model for solving most of 
the world’s problems, its method for solving its organ shortage is well worth 
examining,” writes Benjamin Hippen, a transplant nephrologist in North 
Carolina.217 Iran happens to be the only country in the world that can boast a 
legal organ marketfor kidneys, in particularand no waiting list.218 
 
                                                                                                                 
206 See id. 
207 Matesanz & Miranda, The Spanish Experience, supra note 186, at 370. 
208 See id.  
209 Id.  
210 Id. This is a common problem in the United States; many individuals do not agree that brain 
death is actual death when the individual is still sustained on life support. Id.  
211 Id.  
212 Matesanz & Miranda, The Spanish Experience, supra note 186, at 371. 
213 Id. 
214 Id.  
215 Id. 
216 Matesanz & Miranda, Continuous Improvement, supra note 183, at 27. 
217 Benjamin E. Hippen, Organ Sales and Moral Travails: Lessons from the Living Kidney 
Vendor Program in Iran, 614 POL’Y ANALYSIS, CATO INSTITUTE 1 (Mar. 20, 2008), 
http://www.cato.org/pubs/pas/pa-614.pdf. 
218 Saeed K. Dehghan, Kidneys for Sale: Poor Iranians Compete to Sell their Organs, THE 
GUARDIAN (May 27, 2012), http://www.theguardian.com/world/2012/may/27/iran-legal-



2015] THE GIFT OF LIFE 331 
 
Contrary to popular belief, transactions do not take place haphazardly at the 
local bazaar; rather, they are subject to tight regulation by the government 
and detailed guidelines by a special nonprofit organization.219 Though it is 
far from perfect, the United States has much to learn from the Iranian system. 

Iran adopted its current schemethe living unrelated donor program 
for renal transplantationin 1988.220 Before the adoption of this program, 
the vast majority of transplants were conducted using the organs of a living 
related donor.221 Cadaveric transplantations were few and far between during 
this period, despite religious permission.222 Because no official legislation 
had been passed regarding cadaveric transplantation, Iranians were hesitant 
to procure organs from willing decedents.223 As a result, Iran experienced 
organ shortages in the period before the passage of its living unrelated donor 
program. Consequently, Iran was forced to seek out alternate methods to 
remedy its organ shortage that did not involve cadaversnamely, its living 
unrelated donor program. 

Nearly a decade later, Iran passed legislation regarding the 
permissibility of cadaveric transplantation; cadaveric donation has since 
grown to thirteen percent of total transplants.224 Despite this increase, 
however, Iran will continue to experience underutilization of cadaveric 
donors until it overcomes certain barriers, such as inadequate public 
awareness and misconceptions regarding IslamIran’s official religion.225 
Accordingly, the alternative method that Iran embracedthe kidney 
marketis still necessary for Iran to overcome its potential for an organ 
shortage. 

As mentioned previously, Iran’s system is highly regulated, mandating 
specific procedures in each stage of the process. The Dialysis and Transplant 
Patients Association (DATPA) is the non-profit organization largely 

 
                                                                                                                 
trade-kidney. Note that the kidney is generally the most sought out organ for transplantation, 
and it is one of the few organs that can be taken from a living donor. See Living with an Organ 
Transplant, WEBMD, http://www.webmd.com/heart-disease/living-with-an-organ-
transplant/getting-an-organ (last visited Jan. 3, 2014). 
219 See Alex Tabarrok, The Meat Market, WALL ST. J. (Jan. 8, 2010), 
http://online.wsj.com/news/articles/SB10001424052748703481004574646233272990474 
[hereinafter known as Tabarrok, The Meat Market]. 
220 B. Larijani et al., Ethical and Legal Aspects of Organ Transplantation in Iran, 36 
TRANSPLANT PROCEEDINGS 1241, 1242 (2004). 
221 Id.  
222 Behzad Einollahi, Cadaveric Kidney Transplantation in Iran: Behind the Middle Eastern 
Countries?, 2 IRANIAN J. OF KIDNEY DISEASES 55, 55 (2008).  
223 Id. Legislation regarding cadaveric transplantation occurred in 2000, long after the birth of 
the living unrelated donor program. Id.  
224 Id.  
225 Id. Other barriers include improper attitudes of the medical community, different 
conceptions concerning brain death, and a substandard network for cadaveric transplantation. 
Id.  

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332 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
responsible for the organ market in Iran.226 Volunteers with end-stage renal 
disease staff DATPA; they receive no incentives for their time and effort in 
matching recipients and vendors.227 Because of its reliance on DATPA, the 
Iranian system makes no use of brokerage agencies, and there is little room 
for negotiation between recipients and vendors.228 “DATPA serves as an 
alternative to the for-profit organ brokers who are such a pernicious feature 
of illegal organ trafficking in other countries.”229 As a result, Iran has 
significantly reduced the possibility that fervent brokers, zealous 
procurement agencies, or desperate physicians will take advantage of 
potential organ vendors in the country.230 

After identification and evaluation by transplant surgeons and 
nephrologists, potential kidney recipients are initially advised to seek a 
biologically related living donor.231 Only patients whose relatives are unable 
or unwilling to donate are referred to DATPA.232 At this point, the national 
inconsistency regarding cadaveric donation comes into play. If the recipient’s 
transplant center has an active cadaveric donor program, the recipient will be 
forced to remain on the waiting list for up to six months.233 If, after six 
months, the recipient has not received a transplant, DATPA will identify an 
immunologically compatible kidney vendor for the recipient.234 If the 
recipient’s transplant center lacks a cadaveric donor program, which most do, 
DATPA can immediately begin its search for a suitable match.235 The 
government affords all costs associated with renal transplantations,236 and 
only government university hospitals are allowed to perform transplantation 
procedures at this time.237 

 
                                                                                                                 
226 Jennifer Monti, The Sale of Human Organs Should be Allowed, GALE CENAGE LEARNING, 
http://ic.galegroup.com/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?failOver
Type=&query=&prodId=OVIC&windowstate=normal&contentModules=&mode=view&dis
playGroupName=Viewpoints&limiter=&currPage=&disableHighlighting=false&source=&s
ortBy=&displayGroups=&search_within_results=&action=e&catId=&activityType=&scanI
d=&documentId=GALE%7CEJ3010608215&userGroupName=cobb90289&jsid=a9afc5146
30333cf65559a81aa90305e (last visited Jan. 3, 2014). 
227 Ahad J. Ghods & Shekoufeh Savaj, Iranian Model of Paid and Regulated Living-Unrelated 
Kidney Donation, 1 CLIN. J. AM. SOC. NEPHROL. 1136, 1137 (2006). 
228 Id.; Hippen, supra note 217, at 3. 
229 Hippen, supra note 217, at 4. 
230 Id. 
231 Id. at 3. 
232 Id.  
233 Id. This situation only occurs at a transplant center in Shiraz University. Ghods & 
Shekoufeh, supra note 226, at 1137. Usually recipients can elect to circumvent this 
requirement by traveling to Iran’s capital, Tehran, for transplantation. Hippen, supra note 217, 
at 3. 
234 Ghods & Shekoufeh, supra note 227, at 1137.  
235 See id.  
236 Ghods & Shekoufeh, supra note 227, at 1137; Hippen, supra note 217, at 4. 
237 Larijani et al., supra note 220, at 1242. 

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2015] THE GIFT OF LIFE 333 
 

Individuals seeking to sell a kidney are responsible for contacting 
DATPA.238 Once identified by DATPA, they must undergo a rigorous 
evaluation process at the transplant center to determine suitability.239 
Psychological testing accompanies physical testing, and transplant 
nephrologists carry out the selection of potential vendors.240 Physicians 
reserve the right to veto a vendor’s candidacy, should they deem it 
necessary.241 In effect, DATPA mitigates difficult conflicts of interest 
between vendor and recipient by separating the role of identifying vendors 
from the role of screening them.242 This eliminates the possibility that 
physicians will confuse judgment regarding a vendor’s candidacy with 
professional incentives to perform more transplants.243 It is important to note 
that, in order to prevent transplant tourism, noncitizens are not allowed to 
participate in transplantation as either a vendor or a recipient when the 
alternate party is a citizen.244  

After suitability has been confirmed and the transplantation has been 
performed, vendors are compensated in two ways. First, the Iranian 
government provides the vendor a fixed amount for the procedure.245 The 
government also affords each vendor limited health insurance coverage for 
the entire year following the procedure; such coverage extends only to 
conditions stemming from the surgery itself.246 Second, the vendor receives 
additional compensation from either the recipient or, if the recipient is 
impoverished, a charitable organization.247 This transaction is arranged by 
DATPA before the procedure.248 Receipt of remuneration from both sources 
guarantees that impoverished and wealthy transplant recipients receive equal 
treatment in the Iranian system.249 The transplant team receives no portion of 
either paymentthey both flow directly to the vendor.250 The government 
also provides immunosuppressive medications at a greatly reduced price for 
transplant recipients following the procedure; charitable organizations have 
been known to provide these medications to impoverished individuals when 

 
                                                                                                                 
238 Hippen, supra note 217, at 3. 
239 See id.; Larijani et al., supra note 220, at 1242. 
240 Ghods & Shekoufeh, supra note 227, at 1139. 
241 Hippen, supra note 217, at 4. 
242 Id. 
243 Id.  
244 Ghods & Shekoufeh, supra note 227, at 1138. Noncitizens may, however, utilize the system 
so long as both parties are of the same nationality and permission has been obtained through 
the ESRD Office of the Ministry of Health. Id. 
245 Hippen, supra note 227, at 4. As of 2008, this amount was roughly $1200. Id. 
246 Id. 
247 Id. As of 2008, this amount ranged between $2300 and $4500. Id. 
248 Id. 
249 Monti, supra note 226. 
250 Ghods & Shekoufeh, supra note 227, at 1138. 



334 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
necessary.251 

Iran’s waiting list for kidneys was eliminated just eleven years after the 
implementation of its organ-vending program.252 However, it should be noted 
that the prevalence of patients with end-stage renal disease is lower in Iran 
than in more-developed countries.253 This is, in part, due to the inaccessibility 
of medical treatment in Iran; as a result, many potential patients go 
undiagnosed.254 The lower prevalence of end-stage renal disease results in 
fewer transplant candidates, allowing the waiting list to be eliminated far 
more quickly than it could be eliminated elsewhere.255 Accordingly, the renal 
transplant activity of twenty-five to twenty-eight per million citizens has 
eliminated the waiting list in Iran, while much higher activities have not 
achieved the same results in other countries.256 The frequency of end-stage 
renal disease is on the rise in Iran,257 so only time will tell whether the 
transplant activity provided by the living unrelated donor program can keep 
its waiting list at bay.  

Unfortunately, Iran lacks a national transplant registry that can track 
both short- and long-term results of this system.258 As a result, there has been 
much concern and skepticism regarding the success of the Iranian system.259 
The only information available to those interested in learning about the 
system consists of vastly contradictory reports in medical literature and 
anecdotal accounts.260 Without a uniform policy to conduct and accurately 
report follow-up investigations, it is virtually impossible to reconcile the 
encouraging and worrisome accounts.261 Iran recognized this deficiency in 
its current system and has moved to create such a registry through the Iranian 
Network for Organ Procurement.262  

As one may have expected, darker tales of the Iranian system have 
emerged. Opponents of the living unrelated donor program argue that 
poverty, unemployment, and a lack of social support encourage the vending 

 
                                                                                                                 
251 Id. 
252 Hippen, supra note 217, at 4. 
253 Ghods & Shekoufeh, supra note 227, at 1139. The prevalence of patients with end-stage 
renal disease is 1505 per million citizens in North America while it is only 370 per million 
citizens in Iran. Id. at 1140. 
254 Id.  
255 Id. 
256 Id. at 1140. 
257 T. Malakoutian et al., Socioeconomic Status of Iranian Living Unrelated Kidney Donors: 
A Multicenter Study, 39 TRANSPLANTATION PROCEEDINGS 824, 825 (2007). 
258 Id. at 1139. 
259 See Hippen, supra note 217, at 5. 
260 Id. 
261 Id. at 5–6. 
262 Larijani et al., supra note 220, at 1243. 

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2015] THE GIFT OF LIFE 335 
 
of kidneys.263 Consistent with this claim is the discovery that financial gain 
has been implicated as the driving force behind vendors’ participation in the 
program.264 Whatever the incentive to sell, some maintain that vendors 
benefitted financially from the transaction,265 while others have found that 
the remuneration from vending kidneys proved to be wholly insufficient.266 
One study even concluded that vendors, if given another chance, “would 
prefer to beg or obtain a loan from usurers rather than sell a kidney.”267 
Opponents also argue that vendors are not given adequate postoperative care, 
leading to complications down the line that the futile one-year insurance plan 
will not cover.268 Some vendors have even reported a diminished quality of 
life post-transplant.269 However, as discussed previously, these accounts only 
depict one side of the story. Without a national transplant registry to publish 
accurate results, those looking for information about Iran’s system are only 
hearing the loudest voices. 

Regardless of the conflicting reports regarding the success of the 
system, the United States may be able to learn from the principles of the organ 
market employed in Iran. None can deny that the system eliminated the 
country’s waiting list for the world’s most sought-after organ. Despite the 
vast differences between the two countries, the United States should examine 
Iran’s living unrelated donor program in hopes of implementing more 
effective policies to end its own organ shortage as well. 

V. BRINGING IT HOME 

Though Spain and Iran have both employed noteworthy systems in 
effort to eradicate their respective organ shortages, not every foreign practice 
can be implemented effectively in the United States. The different aspects of 
these systems must be examined in order to determine whether they are 
compatible with current legislation, policy, and beliefs in the United States. 

A. Implementing the Spanish Model 

The Spanish Model comprises two components: presumed consent and 
the family-based approach. Both components have contributed to Spain’s 
overall success, but whether they could be realized in the United States is still 
 
                                                                                                                 
263 Javaad Zargooshi, Iranian Kidney Donors: Motivations and Relations with Recipients, 165 
J. OF UROLOGY 386, 390 (2001) [hereinafter Zargooshi, Motivations and Relations with 
Recipients]. 
264 Malakoutian et al., supra note 257, at 825. 
265 Id. 
266 Zargooshi, Motivations and Relations with Recipients, supra note 263, at 390.  
267 Id.  
268 Larijani et al., supra note 220, at 1244. 
269 Javaad Zargooshi, Quality of Life of Iranian Kidney “Donors,” 166 J. OF UROLOGY 1790, 
1796 (2001) [hereinafter Zargooshi, Quality of Life]. 

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336 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
up for debate. 

Presumed consentan assumption that individuals are willing to 
donate their organs after death absent express refusal270is the method for 
organ procurement opposite the altruistic donation method employed by the 
United States. Though presumed consent is not considered to be the sole 
reason for Spain’s success,271 conservative estimates reveal that, in the 
United States, “roughly twice as many organs would be available each year 
if consent to donation were obtained for every person who does and whose 
organs are viable for transplantation.”272 This option does not seem 
unrealistic at first glance. There are many instances where individuals simply 
failed to consent to organ donation prior to death. This happens not because 
the individuals did not want to make an anatomical gift, but because they 
were not presented with the opportunity. Individuals in the United States 
typically avoid discussions about the possibility of death until it is too late. 
Allowing a presumed consent model would effectively shift the burden from 
healthcare providers in obtaining consent, to individuals in documenting 
refusal.273 

In order for presumed consent to be effective, the scheme must address 
the reasons individuals in the United States do not donate their organs after 
death.274  

Accordingly, for presumed consent laws to . . . [increase] the 
organ supply, the following conditions [need] to be true: (a) 
people generally want to donate their organs, but (b) 
people’s wishes to donate are frustrated because they do not 
get around to documenting their preferences while alive, and 
family members often are unreachable to give consent in the 
short time which organs must be removed for 
transplantation.275 

In the United States, however, contacting the family is not the problem; 
instead, families are generally unwilling to permit donation of their deceased 
loved ones’ organs.276 While the wishes of the family may not accurately 
reflect what the decedent would have wanted regarding his or her making of 
an anatomical gift, general sentiment in the United States has indicated that 
familial consent will continue to be necessary in execution, even if not by 

 
                                                                                                                 
270 David Orentlicher, Presumed Consent to Organ Donation: Its Rise and Fall in the United 
States, 61 RUTGERS L. REV. 295, 296 (2009). 
271 See supra Part IV.A. 
272 Orentlicher, supra note 270, at 298. 
273 Id. at 299. 
274 Id. at 309. 
275 Id.  
276 Id.  



2015] THE GIFT OF LIFE 337 
 
law.  

Even operating under the assumption that surviving family members 
will have the opportunity to object, presumed consent may still increase 
organ donation rates.277 Such laws could “function as a signaling device to 
the population in general and next of kin in particular.”278 By indicating that 
organ donation is the preferred choice, familial consent may come more 
easily. Presumed consent laws would also change the construct under which 
healthcare providers and organ procurement coordinators operate in 
obtaining consent from family.279 Instead of seeking permission from 
surviving family members, healthcare providers could ask whether the family 
has any reason to believe the decedent would decline to make an anatomical 
gift.280 This question makes simple refusal more difficult and less likely. 

Though presumed consent seems to present several advantages over the 
current altruistic donation scheme, it is unlikely to succeed in the United 
States. Some organs would undoubtedly be procured from individuals who 
simply failed to decline donation prior to death. This would violate the 
fundamental principal of freedomthe freedom to express or refuse consent 
for organ donation.281 The United States currently recognizes the value of 
freedom to be more important than the value of health, which would be 
promulgated by presumed consent laws.282 In addition to grossly violating 
policy in the United States, presumed consent seems to thwart the public trust 
in organ procurement by healthcare providers. Many individuals believe that 
presumed consent laws will encourage healthcare providers to administer 
inadequate care to, or prematurely declare dead, suffering individuals in order 
to drive down the transplant waiting list.283 Public trust is essential to 
hospitals effectively procuring and allocating organs. Seeing as healthcare 
providers in the United States already struggle with the stigma of callously 
robbing corpses of their organs, it is unlikely that presumed consent would 
improve the matter. As applied to the United States, the undesirable aspects 
of presumed consent would likely negate the positive results it could possibly 
achieve elsewhere. 

On the contrary, the heart and soul of Spain’s successits family-
based approach using trained transplant coordinators within each 
hospitalhas real potential for implementation in the United States. Both 
countries’ organ procurement infrastructures include organizations designed 
specifically to encourage the donation, and facilitate the procurement, of 

 
                                                                                                                 
277 Kieran Healy, Do Presumed-Consent Laws Raise Organ Procurement Rates?, 55 DEPAUL 
L. REV. 1017, 1028–29 (2006). 
278 Id. at 1028. 
279 Id.  
280 Id.; Orentlicher, supra note 270, at 310. 
281 See supra Part III.B. 
282 See id.  
283 See Orentlicher, supra note 270, at 320–22. 



338 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
organs. In terms of achievement, however, Spain’s system trumps the United 
States.  

The function of OPOs in the United States is quite similar to that of the 
ONT in Spain, as both are responsible for the organ procurement in their 
respective countries. However, while each OPO serves a geographic region 
with the United States,284 the ONT requires each individual hospital in Spain 
to employ a transplant coordinator responsible for the organ procurement in 
that specific hospital.285 The disconnect between the OPOs and the hospitals 
through which they operate in the United States sharply contrasts with the 
fluidity of service offered by transplant coordinators in Spain. Another 
advantage Spain has over the United States in this regard is that each 
transplant coordinator is part of a small, permanent team in each hospital.286 
Even procurement coordinators that work consistently with one hospital in 
the United States are still not part of the team within that hospital. 
Realistically, a procurement coordinator could be forced to work with a 
different medical team for each death the hospital reports. This may result in 
less consistency than would the approach offered by the ONT. Not 
surprisingly, the Spanish Model focuses on “better management and 
coordination among hospitals”287a strategy that could potentially aid the 
United States. 

Spain’s approach to obtaining consent from the surviving family 
members of potential organ donors involves the use of specially trained, 
carefully prepared transplant coordinators.288 The ONT places an emphasis 
on having only the transplant coordinator at each hospital breach the topic of 
organ donation to grieving families in order to ensure that the proper 
information is provided in a respectful way. The United States, on the other 
hand, currently has no mandated training program for procurement 
coordinators. Despite this national deficiency, some OPOs have initiated 
their own informal programs to train procurement coordinators,289 and there 
is now a graduate academic program in the Midwest tailored to future 
procurement coordinators.290 Spain’s approach is sensible considering the 
request for donation must be made quickly, yet delicately, after the passing 
of the decedent. The trend toward this method in the United States speaks to 

 
                                                                                                                 
284 See supra Part III.A.2. 
285 See supra Part IV.A. 
286 See id.  
287 Brendon Nafziger, Could the ‘Spanish Model’ for Organ Transplants Save 20,000 Lives?, 
DOTMED NEWS (Apr. 1, 2010), http://www.dotmed.com/legal/print/story.html?nid=12141. 
288 See supra Part IV.A. 
289 Interview with Sam Davis, Dir. of Prof’l Serv., Ind. Organ Procurement Org., in 
Indianapolis, Ind. (Jan. 24, 2014). 
290 See Master of Science in Biomedical Science Human Donation Science, UNIVERSITY OF 
TOLEDO SCHOOL OF MEDICINE, http://www.utoledo.edu/med/donation_science/ (last visited 
Feb. 10, 2014). 



2015] THE GIFT OF LIFE 339 
 
its necessity across the board.  

The ONT has also had great success in the realm of public education 
by communicating with the public through the media. Given the power of the 
media in the United States, it would only make sense that the country might 
employ a similar strategy. Though public perception regarding organ 
donation appears positive overall,291 there is definite room for improvement. 
Minorities, in particular, could benefit from public education regarding organ 
donation.292 The ONT’s regular contact with the media helps increase 
donation rates by encouraging the public to perceive organ donation in a 
favorable light. Some individuals in the United States only encounter the 
general topic of organ donationin a neutral, impersonal lightwhen 
renewing their driver’s license every few years, which is not enough to have 
a positive impact on the situation. The regular communication between 
Spain’s ONT and the general public allows not only for the dissemination of 
information, but also keeps the issue in the forefront of the public’s mind. 
Such a tactic could be useful in the United States as well. 

Implementation of the Spanish Model in the United States should begin 
with the placement of a procurement coordinator, whose sole duty it would 
be to oversee organ donation, within each hospital in the country. 
“[T]ransplant coordinators are . . . widely accepted as the main cause of the 
spectacular increase in organ donation registered in Spain . . . and the real 
key to success achieved by the Spanish Model.”293 Placing a specialized 
procurement coordinator within each hospital would allow the United States 
to increase the likelihood of identifying all potential donorsan aim that 
emulates Spain’s philosophy behind organ procurement.294 Instead of relying 
on each hospital to contact its designated OPO after every death, a 
procurement coordinator located within the hospital would already be aware 
of the situation to facilitate the organ procurement process.  

The United States is in a good position to institute such a change, as 
specialized organ procurement coordinators are currently employed by OPOs 
across the country. However, this is not to say that OPOs would be 
unnecessary moving forward; they would still be responsible for coordinating 
the allocation and transportation of organs within each geographic region. 
The only change would be the placement in each hospital of procurement 
coordinators, who would then cooperate with their specific OPO to facilitate 
the transplantation process. Procurement coordinators within each hospital 
would be responsible for all organ procurement efforts in that hospital, 
keeping such efforts concentrated within the work of one expert rather than 
many untrained individuals. They would be able to tailor how they approach 

 
                                                                                                                 
291 See supra Part III.C. 
292 See id. 
293 Matesanz & Miranda, Continuous Improvement, supra note 183, at 26. 
294 See id. at 22. 



340 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
organ procurement to each particular hospital, as opinions and practices vary 
across the country. Not only does this scheme increase the consistency and 
efficiency of organ procurement, but it also ensures that hospitals will be 
unable to disregard the requirement to report each death to an OPO when 
organ procurement is otherwise possible. When it comes to organ 
procurement, Spain’s notion to limit procurement teams to only a few 
individuals within each hospital is ideal, and the United States would be wise 
to abandon its current scheme of dispatching procurement coordinators from 
each OPO to hospitals across a geographic region, and follow this approach. 

Modeling the tactic employed by Spain, the United States should also 
implement policy mandating the training of organ procurement coordinators 
so the approach of surviving family members can be as organized and 
effective as possible. When coupled with the placement of a procurement 
coordinator in each hospital, this would drastically improve consistency in 
the approach taken to procure organs. Policy would do well to include a 
provision requiring uniformity among the OPOs in the form of certification 
of their procurement coordinators. This certification program may also 
encourage the diffusion of ideas regarding the effective family-based 
approach and how to successfully implement it in the United States. 
Overcoming the resistance by grieving family members to permit organ 
donation has long been one of the most daunting obstacles facing the 
elimination of the organ shortage.295 Development of a certification program 
to address methods of minimizing this resistance should have a positive 
impact on the transplant waiting list, much like it has in Spain. 

The United States should also try to increase donation rates by using 
media coverage to its advantage like Spain has done. More information about 
organ donation needs to be disseminated to the public at largeand minority 
populations, in particularin order to have any influence on the organ 
shortage. OPOs should be responsible for regularly reaching out to the media 
not only to encourage organ donation, but also to dispel any myths about the 
process. This could be in the form of press conferences, brochures, television 
commercials, or anything else that would receive public attention. 
Considering that OPOs are responsible for increasing community awareness, 
this implementation from the Spanish Model would be neither far-fetched nor 
implausible.296 If nothing else, this practice would keep organ donation in the 
forefront of the public’s mind like it has done the Spanish population. This 
practice may also encourage surviving family members to offer consent more 
freely for the donation of decedents’ organs by either stimulating 
conversation about the topic prior to death, or rendering individuals more 
comfortable with the idea of donation after death. There are several agencies 
throughout the country that dedicate time and energy to the advertisement of 

 
                                                                                                                 
295 See Orentlicher, supra note 270, at 329. 
296 OPOs I, supra note 129. 



2015] THE GIFT OF LIFE 341 
 
altruistic donation.297 These efforts could be enhanced if the fifty-eight OPOs 
throughout the country reached out to the media within their geographic 
regions to, at the very least, promote awareness of the organ shortage and 
implore altruistic donation.298  

While presumed consent may not succeed in the United States’ organ 
procurement infrastructure, the family-based approach encompassed in the 
Spanish Model would be a welcome addition. OPOs provide the perfect 
foundation from which to build upon in the United States. Procurement 
coordinators, certified in the family-based approach, could be placed in every 
hospital throughout the country in order to maximize the number of organs 
procured. Meanwhile, OPOs would promote community outreach by 
collaborating with the media in an effort to encourage altruistic donation. In 
this way, the United States may be able to experience the increase in organ 
donation that Spain has seen under the Spanish Model.  

B. Employing the Iranian Market 

While the scheme is quite radical, with its organ market, Iran has 
managed to eradicate the country’s waiting list for the world’s most sought-
after organthe kidney. This market exists alongside both a living related 
donor program and a cadaveric donor program.299 Current legislation in the 
United States prevents this practice,300 which would be beneficial to both 
donors and recipients. The prohibition of life-saving practices merely entices 
individuals to break the law through use of the black market.301 Insofar as 
organ markets demonstrate potential to alleviate organ shortages and to 
decrease the time spent on waiting lists, more attention ought to be paid to 
possible applications in the United States.302 

At the start, it should be noted that organ markets are raucously 
condemned in the United States by countless individuals in opposition to 
commodification of the human body. This practice was denounced at the state 
level by the UAGA,303 and at the federal level by NOTA.304 The buying and 
selling of organs “is held to be exploitative and degrading, morally analogous 

 
                                                                                                                 
297 See Coalition on Donation, THE GIFT OF A LIFETIME, http://www.organtransplants.org/ 
donor/coalition/ (last visited Feb. 10, 2014); DONATE LIFE, http://donatelife.net (last visited 
Feb. 10, 2014). 
298 OPOs I, supra note 129. 
299 Hippen, supra note 217, at 7. 
300 See supra Part III.A. 
301 Abby W. Schachter, The Case for Legal Organ Sales: How Legalizing the Trafficking of 
Human Organs Would Save Lives and Protect the Poor, REASON.COM (Nov. 11, 2011), 
http://reason.com/archives/2011/11/11/the-case-for-legal-organ-sales. 
302 This Note discusses an organ market in terms of living donors only. Deceased donation 
would still be altruistic, as it is currently in the United States. 
303 UNIFORM ANATOMICAL GIFT ACT § 16 (2006). 
304 42 U.S.C.A. § 274e(a) (West 2007). 



342 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
to slavery, as well as incompatible with basic human values, such as human 
dignity . . . .”305 Activists claim that organ markets would undermine the 
current system of altruistic donation, increase inequality, and degrade 
participants.306 

Despite such condemnation, the dire organ shortage has inspired a shift 
in the transplant community; individuals are calling for a closer look at tightly 
regulated organ markets as a potential solution.307 Some individuals have 
even called for a market similar to that in Iran.308 Not only would this 
profoundly increase the supply of organs, but it would also facilitate the 
matching process.309 In addition, transplants involving organs procured from 
living donors, as opposed to cadaveric donors, are typically more successful 
in the long-term due to their higher quality.310 Clearly, an organ market 
presents several advantages over the current policy of altruistic donation, 
which relies heavily on cadaveric donors. Moreover, there is no reason why 
an organ market could not exist alongside current altruistic donation policy 
as it does in Iran.311 

Three main arguments are used to advance the idea of an organ market 
in the United States. The first argument involves the autonomous right of 
adults to do as they wish with their own bodies.312 This right encompasses 
each individual’s personal choice to sell his or her organs. The second, and 
most straightforward, argument refers to the alleviation of the organ shortage, 
as mentioned above.313 The third, and least considered, argument centers on 
consistency in lawmaking. 314 “[T]here appears to be no fundamental 
difference between selling organs and other widely accepted practices, 
particularly selling one’s own ‘risky [labor]’ . . . .”315 Many forms of risky 
labor, such as coal mining or military service, are inherently more dangerous 
than organ vending; yet these actions are considered heroic instead of 
condemned.316 Since both types of behavior produce positive outcomes, it is 
 
                                                                                                                 
305 MARK J. CHERRY, KIDNEY FOR SALE BY OWNER: HUMAN ORGANS, TRANSPLANTATION, AND 
THE MARKET 3 (Georgetown University Press, 2005). 
306 Danny Frederick, A Competitive Market in Human Organs, LIBERTARIAN PAPERS, Nov. 7, 
2010, at 2, available at http://www.academia.edu/226008/A_Competitive_Market_in_ 
Human_Organs. 
307 Arthur L. Caplan & Daniel H. Coelho, Introduction, in THE ETHICS OF ORGAN 
TRANSPLANTS: THE CURRENT DEBATE 194–95 (Arthur L. Caplan & Daniel H. Coelho eds., 
1998). 
308 See Schachter, supra note 301. 
309 Frederick, supra note 306, at 1. 
310 Id. at 3. 
311 Hippen, supra note 217, at 8. 
312 The Sale of Human Organs, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, Oct. 17, 2011, 
http://plato.stanford.edu/entries/organs-sale/. 
313 Id.  
314 Id.  
315 Id.  
316 Id.  



2015] THE GIFT OF LIFE 343 
 
inconsistent to allow individuals to be paid for one activity over the other. 

An organ market in the United States could function far more 
proficiently than that in Iran “by working to ensure optimal outcomes and 
minimize risk for vendors and recipients alike.”317 Existing OPOs could be 
used to facilitate this concept by providing services similar to DATPA, such 
as identifying and screening potential vendors. Though transplant centers 
typically perform this function for living altruistic donors in the United 
States, Iran has proven that the clear separation between OPOs and transplant 
centers would be most effective. OPOs would first identify and screen 
potential donors, then, if acceptable, transplant centers would be responsible 
for the medical evaluation. This separation would relieve the conflict of 
interest between the OPOs, which work toward increasing the number of 
organs procured, and the transplant centers, which work to ensure safety of 
all parties.318  

 The Iranian organ market depends on the government and 
charitable organizations to provide compensation to organ vendors through 
DATPA. Like DATPA, OPOs throughout the United States could act as 
intermediaries between vendor and recipient in determining compensation; 
this would serve as a safer alternative to the use of seedy brokers. Instead of 
requiring the government to issue a fixed payment to every organ vendor, the 
market in the United States could likely rely on the combination of an organ 
recipient’s predetermined payment and a charitable organization’s fixed 
feesuch a fixed fee would replace the government’s payment in Iran. The 
country is ripe with charitable organizations that would be willing to support 
vendors and recipients from all backgrounds.319 The amount of remuneration 
would be arranged prior to transplantation, like in Iran, and administered 
through the OPOs following transplantation. Opponents of organ markets 
claim that such a scheme would restrict accessibility to transplants by the 
poor due to an inability to pay for the organs.320 However, the success in Iran 
speaks to the contrary. While Iran utilizes charitable organizations to make 
up the difference between the organ’s cost and the amount the impoverished 
recipient cannot afford, the United States may be able to rely on the 
government for such compensation. The government has been known to 
provide assistance to needy individuals outside of transplantation through the 
use of food stamps, subsidized housing, and the like; subsidization for organ 
procurement would operate no differently. In this way, wealthy and 
impoverished individuals alike will be able to obtain organs necessary for 
survival. 

Another improvement the United States could make in its incorporation 

 
                                                                                                                 
317 Hippen, supra note 217, at 8. 
318 Id. at 9. 
319 See id. at 10. 
320 KASERMAN & BARNETT, supra note 19, at 75. 



344 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
of the Iranian Market takes the form of improved healthcare for vendors 
postoperatively. Vendors in Iran are currently offered one year of 
postoperative care for ailments stemming from the transplant itself.321 Due to 
the fact that Iran currently has no system of tracking the results of its 
transplantations, the long-term effects of kidney vending have yet to be 
discovered. In fact, even in the United States, complications following live 
kidney donation is difficult to accurately ascertain due to lack of a national 
standard.322 Thus, it should be standard that vendors receive transplant-
related healthcare for a longer period than is allowed in Iran. This time period 
should be limited to seven years so as to allow unforeseen or lingering 
complications to be resolved, while at the same time controlling the time 
individuals can receive free healthcare so as to not make this an incentive to 
sell an organ. After more data is collected regarding the time long-term 
complications are likely to stop occurring, this extension of healthcare 
coverage should be revisited to more accurately reflect the data. 

The creation of a tightly regulated organ market would be feasible in 
the current infrastructure, but, although it would likely shorten the transplant 
waiting list, it would not likely be a viable solution for the United States at 
this time. The opposition is so strong that, even if made legal, organ markets 
would still be condemned by the general public. In fact, a “culturally shared 
form of extreme dislike can sometimes mean certain transactions become 
illegal . . . .”323 Though this may not necessarily be the case, the perception 
that organ markets would exploit the economically vulnerable engenders 
dignitary harmthis harm “unfairly spreads out and compromises every 
member of the same group.”324 A perceived violation of the fundamental 
value of dignity would be contrary to public policy in the United States. 
Though organ markets would promote the fundamental value of health, this 
value has less standing than that of freedom or dignity325values with which 
all individuals have a right to live their lives. 

 
                                                                                                                 
321 See supra Part IV.B. 
322Post-Operative Complications, LIVING DONOR 101, http://www.livingdonor101.com/ 
postoperative-complications.shtml (last visited Mar. 9, 2014). There are three reasons that 
complications following kidney donations are difficult to track. First, transplant centers across 
the country are inconsistent as to whether they should only “consider issues that result in re-
hospitalization or occur within a certain time period.” Id. Second, some donors seek care at 
outside facilities, which takes their ailments off the grid. Id. Finally, not all transplant centers 
report their data to OPTN, despite the fact that it is required by law. Id.   
323 Corydon Ireland, Ethicists, Philosophers Discuss Selling of Human Organs, HARVARD 
GAZETTE, Feb. 14, 2008, http://news.harvard.edu/gazette/story/2008/02/ethicists- 
philosophers-discuss-selling-of-human-organs/. 
324 Id.  
325 See supra Part III.B. 



2015] THE GIFT OF LIFE 345 
 

VI. CONCLUSION 

Under current legislation in the United States, the organ shortage will 
undoubtedly continue to grow, much as it has for nearly forty years. Change 
is necessary in order to save the lives of countless individuals whose lives 
could so easily be saved through access to a greater supply of organs. The 
best hope the United States has to reduce its organ shortage, while at the same 
time maintaining all of the fundamental values that its citizens hold dear, is 
to adopt the family-based approach utilized in the Spanish Model.  

Though presumed consent and organ markets have been successful in 
their own right abroad, these schemes are unlikely to succeed in a country 
where health, freedom, and dignity guide legislation and policy. Instead, 
current policy should be enhanced by provisions requiring the placement of 
a certified organ procurement coordinator in each hospital in the country, so 
as to maximize the identification of potential donors. These procurement 
coordinators should be able to effectively approach and communicate with 
surviving family members of potential organ donors in order to increase the 
chances of their supplying the consent necessary for altruistic donation. 
Additionally, through further communication with the media, OPOs should 
be able to dispel any myths about organ donation currently preventing 
individuals from becoming organ donors, while at the same time providing 
the necessary information required for individuals to choose altruistic 
donation. Implementation of these aspects of the Spanish Model in the United 
States would likely have a positive impact on the organ shortage plaguing the 
nation. 

Though the organ shortage may not ever completely be eliminated in 
the United States, this workable framework can easily be applied to existing 
infrastructure in order to reduce the disparity between supply and demand. 
Implementation of the successful family-based approached utilized in the 
Spanish Model has the potential to encourage individuals throughout the 
United States to altruistically donate both their organs while living, and their 
loved ones’ organs after death. Change that has the potential to save lives 
should be given the chance to succeed. With any hope, the mindset adopted 
by Drake’s parents and siblings after his tragic passing will become 
commonplace throughout the United States. When tragedy strikes, allow it to 
become a miracle for others: give the gift of life.