You're dying of kidney failure, and your wife is dying of massive injuries sustained during a car crash. Just as she passes away, she tells you to take her kidneys after she is gone. She dies. Are the kidneys yours?
Two weeks back, New York's Court of Appeals said "no." The court was adjudicating the strange case of Peter Lucia, who never got to see the legal turmoil his kidneys would cause. Lucia suffered a stroke in 2002, and his wife Debra found him brain dead on the floor of the family den. The two had never discussed organ donation, but Debra did what she thought Peter would have wanted. Peter's lifelong friend, Robert Colavito, was suffering from renal disease and would die shortly without a transplant. She gave him Peter's kidneys.
Americans have no choice but to donate through an organization; it is illegal to exchange kidneys privately, and the federal government has designated an organ procurement organization for every American locality. The New York Organ Donor Network is the organization with a monopoly on Long Island organs, and that's who Debra worked with. The Network helped her with the paperwork, and Peter's left kidney was air-lifted to Florida, where Colavito waited.
As Colavito lay in the hospital, prepped for surgery, a nurse told him to "wait five minutes." A doctor returned with the news that the kidney was damaged and unusable. Lucia called the New York Donor Network and asked where her husband's second kidney was; she had expected that both would go Colavito. The agency explained that it had given away the organ, and it was being transplanted into someone else at that very moment. (As it turns out, the organization was either lying or mistaken: The kidney wouldn't be transplanted for three more days.)
Colavito never found a suitable kidney, and he died last June. But before succumbing to disease, he filed a highly controversial lawsuit against the New York Donor Network. He accused the organization of appropriating his property—of stealing, in effect, his kidney.
In March of 2005, U.S. District Court Judge Dora L. Irizarry dismissed the case, writing that while courts may recognize a spouse's 'quasi-property right" in human remains, that right "encompasses only the power to ensure that the corpse is orderly handled and laid to rest, nothing more." Colavito appealed, and in mid-December, The New York Court of Appeals agreed that he had no legal claim on the kidney. The court quoted centuries old common law in its decision, ultimately ruling that Colavito "has no common law right to the organ." The New York Donors Network could not have stolen Colavito's kidney, because Colavito never owned it. Debra Lucia thought she had given Colavito the kidneys, but they weren't hers—or her husband's—to give.
So can you give your spouse a kidney after you die? It depends. As it turns out, Lucia's kidney were useless to Colavito—the two weren't compatible. (Lucia says she never would have consented to the kidneys' removal had she been informed that Colavito couldn't use them.) Colavito had also sued under a New York public health law that allows directed donation and applies absent a property right, and he might have won had the kidney been a match. But the court was adamant that even if it were to decide that Colavito had been wronged, it wouldn't be because he owned the organ.
The Colavito case is just one more manifestation of the increasingly bizarre proprietary status of human body parts. Every corpse has a legal value of zero, but transplantable organs and tissues grow more valuable every day. Body parts aren't legal property to the people born with them, but can be distributed by doctors, universities, biotech companies, and procurement agencies for profit or otherwise.
Courts and legislatures typically link their resistance to corporeal property rights with the supposedly corrupting power of markets. A legal regime that gives Debra Lucia the right to gift her husband's organs might well give her the right to sell them. As the amicus brief filed by the United Network for Organ Sharing (UNOS) and others put it "The laws and regulations surrounding deceased organ donation, allocation and transplantation have purposefully established a legal infrastructure that excludes property law concepts….Instead, organs are donated for transplantation voluntarily (not sold or appropriated) and are regulated as a scarce national resource."
The culture that has evolved in support of organ donation in the United States is heavily invested in a narrative of gift exchange, and property rights are perceived as contrary to that narrative. But as the Colavito case dramatically demonstrates, if organs are gifts, they are gifts of a bizarre kind. The United Anatomical Gift Act designates to whom the gift can be given (typically organ procurement agencies) and for what purposes (therapy, education, or research.) A gift is a transfer of property, but with the status of the body as property in flux, the ability to gift is severely curtailed.
Perhaps that goes some way in explaining why the pathetically inadequate rise in organ donation hasn't kept pace with the spike in charity of all sorts. Nearly 300,000 new charities popped up in the years between 1996 and 2004, a number that underscores both a willingness to give and, more to the point, the way people want to give. Giving has become democratized and decentralized. Charities have splintered and succeeded because givers have individualized ideas of who they want to help. That individuals instead of elites decide who benefits may be disturbing to some, but trends in donation indicate that people give more when they have control over who is getting it.
By contrast, organ donation stands as a sort of command economy of gifting: Donors have little say over where their organs go after they die, and procurement professionals prefer that donations simply go to the centralized donor list compiled by the UNOS. Anonymous donations are prized as pure, but run contrary to the sort of relationship-building that motivates cultures of gifting in the first place.
The New York Organ Donor Network assures that in fighting ownership rights, it is preventing the emergence of a system no one wants. Skeptics might ask what the absence of those rights means within system we already have. As Debra Lucia asked the Long Island Press last year, "Is it a donation or a confiscation?"
Kerry Howley is an associate editor of reason.