In my last two posts, I introduced a new form of cross border kidney paired donation – Reverse Transplant Tourism (or “RTT”) — that Mike Rees and I propose in a recently published article. To recap, under RTT a biologically incompatible US pair, Amanda and Bob, engages in a kidney swap with a compatible Mexican pair, Carlos and Diana, who have no practical access to transplantation because the Mexican public health care system pays for transplantation but not immunosuppression. RTT leverages 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.
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. But NOTA (The National Organ Transplant Act), which prohibits “valuable consideration” for the acquisition, receipt, or transfer of any human organ lurks in the background. Why does RTT not violate NOTA? We argue that RTT passes muster under NOTA due to a combination of three unusual characteristics of the exchange: (1) Carlos’s perfect-world donative intent, (2) Carlos’s altruistic motivation, and (3) the medical necessity of the benefit received in the swap (Diana’s immunosuppression).
First, let me explain the concept of “perfect world donative intent,” which we think is very important to an analysis of the legality of RTT or any other transplant transaction. RTT differs in one important respect from other inducement schemes that arguably qualify as valuable consideration under NOTA: RTT does not provide an inducement to donate an organ. Rather, RTT provides an inducement for someone who, in a perfect world free of financial and immunological barriers, would altruistically donate an organ to a friend or family member, to instead donate that same organ to someone else. Once this is recognized, it becomes clear how and why RTT does not run afoul of standard objections to inducements to donate.
Second, Carlos’s motivation for the exchange is altruistic: He wants to benefit Diana rather than himself. These two factors distinguish RTT from other common proposals to increase the organ supply through inducements, such as financial incentives that accrue directly to the donor.
Finally, the benefit in question—Diana’s immunosuppression—is incidental to and medically necessary for the transplant to succeed. For all of these reasons and others, we believe that RTT is sufficiently similar to currently accepted practices, such as kidney-paired donation and NEAD (non-simultaneous, altruistic donor) chains, that it does not violate NOTA.
In sum, the need for transplantable kidneys far exceeds supply. In the face of NOTA’s restrictions on valuable consideration, creative solutions to the organ shortage are needed. It is even better when those solutions also reduce the costs associated with end stage renal disease.
RTT accomplishes both of those goals. Instead of non-U.S. kidney donors being offered money through a black-market middleman in exchange for one of their kidneys, we believe that RTT would provide a legal and ethical exchange of living-donor kidneys through kidney-paired donation. In this way, the donors will not receive money for their kidneys, but rather will receive a transplant for someone they love.
You can read the full paper here.