In my last post, I began discussing a new form of cross border kidney exchange, Reverse Transplant Tourism (or “RTT”), that Mike Rees and I propose in a recently published paper. To recap, RTT envisions a kidney swap between a biologically incompatible US pair and a foreign compatible pair who nonetheless have no practical access to transplantation for economic reasons. In the example chosen, Mexico, the state health care system pays for dialysis and transplantation, but not the immunosuppression necessary to prevent the body’s rejection of a transplanted kidney. As a result, transplantation is realistically available only to Mexican citizens with independent access to such drugs – i.e. they are wealthy enough to pay for it themselves or have access to philanthropic aid.
RTT proposes to leverage the substantial cost savings of transplantation over dialysis to pay for immunosuppressant drugs for Diana, in exchange for an agreement by Carlos and Diana to enter into a kidney swap with Amanda and Bob. Thus, as shown in the accompanying figure, Amanda transplants to Diana, Carlos transplants to Bob, and the money saved from Bob’s ongoing dialysis is used to pay for the immunosuppressant drugs that Diana otherwise could not get.
Bob has a new kidney, Diana has a new kidney, Bob’s insurance company saves money, and the Mexican government is on the hook for no more than its usual expenses. Everyone is happy. Who could possibly object to such a welfare-improving transaction?
Arguably, someone familiar with the National Organ Transplant Act (“NOTA”), though as we detail at great length in the paper, neither the statute’s text, legislative history, nor underlying policy goals suggest that NOTA was meant to apply to RTT. NOTA prohibits the knowing acquisition, receipt, or transfer of “any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” NOTA does not define the term valuable consideration and, as we detail in the paper and I have discussed in previous posts, the Act’s legislative history provides almost no guidance regarding the meaning of the term beyond the obvious legislative concerns of “buying,” “selling,” and “commerce” in human organs. Indeed, a careful reading of the legislative history of NOTA (which I undertake in the paper) suggests that Congress paid little, if any, attention to the possible meanings of and ambiguities in the phrase “valuable consideration.”
That leaves an analysis of the possible public policy goals animating NOTA’s ban against valuable consideration. In our paper, Mike and I analyze those public policy goals and demonstrate that RTT does not run afoul of any of them. In fact, RTT actually minimizes some public policy concerns better than current transplant practices do.
In my next post, I’ll discuss the public policy goals that might have animated NOTA in more detail, and demonstrate why those public policies suggest that RTT does not violate NOTA.