by: Begley Law Group

by Thomas D. Begley, Jr., CELA

[Article originally published in Straight Word]  Attorneys preparing Wills for clients should always also prepare a Living Will or Health Care Power of Attorney and ask the client if he or she is willing to make an organ donation.

Every ten minutes someone is added to the National Transplant Waiting List. On average, 92 transplants take place each day in the United States. One organ donor can save eight lives. As of August 2017, 116,000+ men, women and children are on the National Transplant Waiting List. Only three in 1,000 die in a way that allows for organ donation. While 95% of U.S. adults support organ donation, only 54% are actually signed up as donors. Other statistics on organ donation are that:[1]

  • In 2016, 33,611 transplants were performed;
  • Organs people were waiting for as of July 2017 included:
    • Kidney—82.9%
    • Liver—12.3%
    • Heart—3.4%
    • Lung—1.2%
    • Other—2.5%
  • The waiting list by ethnicity as of July 2017 was:
    • Caucasian—41.7%
    • African American—29.2%
    • Hispanic—19.5%
    • Asian—7.7%
    • Other—2.2%
  • Transplant recipients by ethnicity in 2016 were:
    • Caucasian—56%
    • African American—21%
    • Hispanic—16%
    • Asian—5.2%
    • Other—21.8%
  • In 2016, 41,335 organs were donated. Over 80% were from deceased donors and 20% from living donors. It is interesting to note that 5,976 living donors donated 5,976 organs while only 9,971 deceased donors donated 35,360 organs.
  • One donor can donate up to live-saving organs: heart, lungs (two), liver, pancreas, kidneys (2), intestines,

The three most common ways to make an organ donation are by a notation on a Driver’s License, a Living Will or Health Care Power of Attorney, and an Organ Donation form.

Clients often have concerns about agreeing to become organ donors:[2]

  • Level of Care. The decision to be an organ donor will in no way affect the level of medical care for a sick or injured person. The team of doctors and nurses involved in treating the patient is not involved with the recovery/transplant team, which is called only after death has occurred.
  • There is never a charge to the family of the donor for organ recovery. All associated recovery costs are paid by the state sharing network. Organ and tissue donation should not interfere with customary funeral plans, including those with open casket viewings.
  • There is no marring of the body during the organ or tissue recovery. The organs and tissues are removed with dignity, in a sterile surgical procedure like that performed on a living patient.
  • Can Organ Transplants be “Bought” by the Wealthy and Powerful? The answer is “no.” Organs are computer matched according to compatibility of donor and recipient tissue, determined by various tests, waiting time, and the medical need of the recipient. Social or financial data are not part of the computer database and, therefore, are not factors in the determination of who receives an organ.
  • Most major religions support organ donation and consider it the greatest gift that a person can give.
  • Age Limit. There is no definitive age limit for organ donation. Organs have been procured from donors as young as a few days to adults in their 90s. A patient’s medical history is more important than the age of the donor. If a patient has a normal-functioning organ and is in good health, then organ donation can be an option.

Wait times for organ transplants can range from four months, for a heart, to five years, for a kidney. Twenty-two people die every day waiting for a transplant. A recent study showed that state policies during the past two decades had little or no effect on closing the gap between supply and demand.[3] The study found the following shortcomings:

  • Health Insurance. Organ recipients’ health insurance covers medical cost for the donors’ surgeries. If the recipient has the financial means, he or she can reimburse the donor for travel and lodging costs, but they cannot by law pay for anything else. Donors are then responsible for their post-medical care costs, lost wages, spousal travel and lodging costs, and even the possibility of losing their job—between $5,000 to $20,000 in additional costs on average, which makes donation financially challenging.
  • Tax Credits. Some state policies try to offset the burden with tax credit for those who donate an organ, but it equates to only about $600—a small share of the donor’s costs.
  • A 2012 study showed it would take $10,000 to motivate someone to donate an organ. However, the American Transplant Foundation feels that financial incentives would give transplants a bad name. The organization says incentives are needed, but it is more about making it financially feasible for a friend or a loved one to donate an organ. Pure monetary rewards for donated organs could quickly pave the way for the poorest people being exploited.

The author feels that state laws should provide for a mandatory opt in for organ donation, unless the decedent opts out. This would not make a difference for living donors, but would significantly help overall.

[1] www.organdonor.gov/statistics-stories.

[2]NJ Sharing Network, www.NJSharingNetwork.org.

[3] Organ Donation: State Efforts Have Done Little to Close the Supply Gap, Kaiser Health News, www.khn.org.