Despite years of advocacy and legal activism from libertarian-leaning academics, the federal government continues to bar Americans from selling their kidneys. Now a service dog trainer and a personal injury attorney are teaming up to take this prohibition down.
Last month, New Jersey man John Bellocchio filed a lawsuit in U.S. District Court for the Southern District of New York against U.S. Attorney General Merrick Garland, challenging the constitutionality of a decades-old federal ban on compensating organ donors.
“Risks are associated with the donation of an organ, yet individuals are wrongfully excluded from being provided with any incentive or compensation for the potential risks that may occur in giving their organ to another,” reads his complaint. “There is no valid constitutional or public policy rationale why one should not be able to receive a profit from such a transaction.”
For Bellocchio—the owner of Fetch and More, which places service dogs with veterans and other low-income clients—the issue of organ sales is personal. His company works primarily in Appalachia, he says, where he’s encountered many clients who are desperate for a new kidney or some extra cash.
“My colleagues and I saw that there was an enormous need both for kidneys and for money,” he tells Reason. “I think what was sort of an esoteric or ephemeral constitutional question became very real for me.”
According to his lawsuit, Bellocchio also recently experienced financial distress that led him to look into options for selling his kidney. Through that research, he learned that doing so would put him on the wrong side of the 1984 National Organ Transplant Act (NOTA), which makes it a crime for anyone to “acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.”
Violators of this ban face a maximum fine of $50,000 and up to five years in prison.
That prohibition has left the 90,000 patients in need of a kidney on the national transplant list dependent on either finding a donor who is both a physical match and altruistic enough to part with an organ for free or waiting for the exact right stranger to die unexpectedly while they are still young and healthy. Due largely to those constraints, it’s estimated that between 5,000 and 10,000 people die for want of a kidney transplant each year. Many more are left to undergo expensive, draining dialysis treatment.
Medicare, which covers kidney patients of all ages, spent $81 billion on patients with chronic kidney disease in 2018. Medicare-related spending on patients with end-stage renal disease totaled $49.2 billion that same year.
These preventable deaths, high treatment costs, and perceived injustice of prohibiting people from voluntarily using their own body as they see fit has led a small but enthusiastic cadre of legal scholars and policy wonks to try to amend or overturn the ban on organ sales.
That includes Lloyd Cohen, a professor at George Mason University’s Antonin Scalia Law School, who has been making the case for a market in organs in journal articles and media appearances since the early 1990s.
Because of his long history of public advocacy on this issue, Cohen is usually the first stop for people looking to get more involved in the fight to end the organ war.
“My name is out there in this literature [as] one of the promoters of a market in transplant organs,” he says. “What happens is every once in a while, every three months, six months, somebody gets it in his head that this is a good idea. And they start doing research and they find my name and then they get in touch with me.”
That includes Bellocchio, who reached out to Cohen a few months ago hoping the law professor might represent him in a lawsuit challenging the federal ban on organ sales.
Cohen, who teaches but doesn’t practice law, declined to take up Bellocchio’s case. But he was able to connect him with someone who was more than eager to do so.
At the time Bellocchio reached out to him, Cohen had been corresponding with Matthew Haicken, a personal injury attorney in New York City. Like Bellocchio, Haicken became interested in the issue of kidney sales after knowing a few clients who were undergoing dialysis treatment.
“I Googled what it was and I saw videos and it just seemed awful. The more I learned about it and just how inefficient the system was. It’s always seemed ridiculous to me,” he says. Soon enough, he was reading Cohen’s writings and watching his interviews (including one video he did with John Stossel for Reason.)
His growing interest in the issue also dovetailed with his desire to do some public interest pro bono work. “I was brainstorming and I thought, hey, why not the organs issue?” he says. “As a personal injury lawyer, I’m always thinking about what is life worth, what is suffering worth, what are body parts worth?”
Once Cohen introduced Haicken to Bellocchio, the former agreed to represent him on a pro bono basis, and the two were off to the races.
Bellocchio’s lawsuit makes two constitutional claims: The first is that a ban on kidney sales violates his freedom of contract as protected by the Fifth and 14th Amendments of the U.S. Constitution. The second is his right to privacy under the 14th Amendment.
His lawsuit cites Supreme Court precedent on birth control and abortion, arguing that “the decision to have a portion of one’s own body extracted and sold to one in need is an extremely personal one and must be afforded the same privacy rights that have frequently been extended to matters of personal, bodily autonomy as mentioned above.”
This most recent challenge likely faces an uphill battle according to Ilya Somin, another law professor at George Mason University.
“Much as I wish it were otherwise, I fear the lawsuit has little, if any chance of succeeding. Under current Supreme Court precedent, laws restricting economic transactions are subject only to very minimal ‘rational basis’ scrutiny,” writes Somin at The Volokh Conspiracy (which is hosted by Reason). “I believe that precedent should be reversed, or at least significantly revised. But that is unlikely to happen any time soon.”
Past efforts to challenge the ban on organ sales have also come to naught.
Cohen says about a decade ago he worked briefly with Sally Satel, a physician and scholar at the American Enterprise Institute to try and assemble a legal challenge to the ban on compensating kidney donors.
Satel tells Reason that she and Jeff Rowes, an attorney with the Institute for Justice, had collaborated briefly on the idea, but it eventually morphed into a narrower (successful) challenge to the NOTA’s ban on compensating people who give renewable bone marrow.
On the legislative front, Rep. Matt Cartwright (D–Penn.) has proposed a bill that would clarify which types of payments to kidney and other organ donors count as legal reimbursement of expenses under NOTA, and not illegal compensation. Cartwright last introduced this bill in July 2020, but it stalled in committee.
Former President Donald Trump also issued an executive order that expands the definition of kidney donors’ legally reimbursable expenses to include the costs of travel, child care, and lost wages.
Libertarian ideas about bodily autonomy have proven surprisingly successful in recent years at liberalizing drug laws. They’re starting to move the conversation on things like sex work as well. The prohibition on kidney sales remains stubbornly stalled, however.
Satel—who once received a donated kidney from former Reason Editor in chief Virginia Postrel—chalks up the lack of progress to people’s own instinctual distaste at the idea of a market for organs, and the narrow appeal of kidney disease as an issue.
“Unfortunately, because it’s so niche, there’s only one major interest group and that’s the National Kidney Foundation,” which she says remains opposed to compensating kidney donors.
Cohen says much the same thing: “It doesn’t have an interest group that can coalesce. It’s not like a race or religion. People who themselves have had some bad luck or people in their family who’ve had bad luck and have kidney disease.”
Both Haicken and Bellocchio hope that their lawsuit can be that catalyst for change.
“I’ve been contacted by people all over the country. People are very positive about it,” says Haicken. “I have gotten some hate mail, but that’s mostly been from my friends and family.”
Only time will tell if they’ll be successful. It would be a great thing if they were, says Cohen.
“There are organs that can be restoring people to life and health instead of being fed to worms,” Cohen tells Reason. “Not because people have a fundamental objection to giving up their organs, but because it is illegal for them to get any compensation.”
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