National Organ Transplant Act of 1984

The National Organ Transplant Act (1984 Pub.L. 98–507), approved October 19, 1984, and amended in 1988 and 1990, outlawed the sale of human organs and provided for the establishment of the Task Force on Organ Transplantation; authorized the Department of Health and Human Services to make grants for the planning, establishment, and initial operation of qualified Organ Procurement Organizations (OPOs); and established the formation of the Organ Procurement and Transplantation Network and Scientific Registry of Transplant Recipients. It was sponsored by Rep. Al Gore and Sen. Orrin Hatch.

Before NOTA was put in place, there was no clear jurisdiction on what property rights were for a human corpse. Instead, America applied a “quasi-right” to a corpse. This meant that the relatives of a deceased person had a possessory right long enough to decide how to bury or dispose of the corpse. This does not mean a property right which means they do not have a right to transfer, devise, possess, and lease the human organs and tissues.

Due to a shortage in organs but a growing demand for transplantations, people began to use other means to purchase organs outside of a hospital setting. The organ market began to become a commercial market. H. Barry Jacobs, the head of a Virginia company, announced in 1983 a new plan to buy and sell human organs on the market. This plan put healthy, human kidneys in the price range of up to $10,000 plus a $2,000 to $5,000 commission fee for Jacobs. This brought the issue out into the open. NOTA was a response to this proposal making it criminal to transfer human organs for valuable consideration for the purposes of a human transplantation.

At the time NOTA was passed, there was an 80% survival rate for kidney transplants. A new drug, cyclo-sporin that had been introduced had also increased the survival rate of liver transplant patients from 35% to 70% in a patients first year of undergoing a liver transplant. This made it clear that the legislation was aware of a growing need and also growing shortage of organs when NOTA was passed.

NOTA made it illegal to compensate organ donors, but did not prevent payment for other forms of donations (such as human plasma, sperm, and egg cells). Although bone marrow is not an organ or a component of an organ, the act made paying bone marrow donors illegal. At the time the act was passed, donating bone marrow involved a painful and risky medical procedure. In the years after the act was passed, a new procedure (apheresis) made it possible to harvest bone marrow cells through a non-surgical procedure similar to blood donation. In 2009, a public interest law firm (The Institute for Justice) sued to allow donors to be compensated for giving bone marrow. The firm argued that the development of apheresis meant that donors who gave bone marrow through blood donation should be allowed to receive compensation. The organization predicted that allowing compensation would increase the pool of available donors, and claimed that 3,000 Americans die each year while waiting for compatible marrow donors. Critics argued that allowing compensation could reduce donation, increase the risk of disease, and lead to exploitation of the poor. In December 2011, the Ninth Circuit Court of Appeals ruled unanimously that donors giving bone marrow via apheresis were eligible for compensation. In November 2013, the federal government proposed a regulation that would change legal definitions to cover bone marrow regardless of how it is obtained. This would have the effect of keeping the ban on compensating donors in place. As of July 2014, the proposal was still under review.

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