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Hastings Constitutional Law Quarterly

Abstract

Organ transplant is a well-established medical therapy that saves thousands of lives. Yet many people who could survive with transplants die on waiting lists. With ever expanding indications for transplant, the supply of organs will never meet demand. But many more organ transplants could occur than do.

Under the National Organ Transplant Act ("NOTA"), the United States government prohibits the use of money in any form of organ donation scheme. By making it a federal felony to provide valuable consideration for organ donations, many proposed organ brokerages and exchanges have not been allowed to come to fruition. Valuable consideration includes not just direct monetary benefits to the donating' party, but also scholarships, help with rent or home mortgages, or donations to a charity of one's choice. Although there has been more literature recently assessing the rationales behind this policy, the underlying policy itself has not seriously been challenged.

This article analyzes the constitutionality of NOTA when applied to privately run regulated systems that strive to meet objections to payment for organs. Specifically, this article examines potential constitutional attacks to NOTA under both the Second Amendment's right to self defense and the Fourteenth Amendment's Due Process Clause. In addition, this article evaluates potential payment programs if NOTA were required to pass strict scrutiny, rather than mere rational basis.

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