Los Angeles Times Op-Ed
March 11, 2004
Are we shocked that a University of California official has been caught allegedly trading in body parts? We shouldn't be; UCLA is simply the canary in the coal mine. It's an open secret that there has long been a commercial trade in human bodies.
An underground, illegal market has developed largely because of inconsistent federal policies and practices, including poor oversight of university hospitals, organ procurement organizations and biotechnology companies that engage in the exchange of body parts.
By and large, this black market serves a public good by supplying lifesaving and beneficial materials — such as heart valves and knees — to a demanding public. But without regulation and monitoring, it's not surprising that mistakes, fraud and abuse occur, as they did in the California case of infected tissues being sold to hospitals for knee transplants in 2002, or the 1997 scandal in which the Los Angeles coroner's office was found to have sold more than 500 pairs of corneas in one year to the Doheny Eye & Tissue Transplant Bank.
In the Doheny case, more than 80% of the donors, who were unwittingly placed in the stream of commerce, were black or Latino. The coroner's office received up to $335 per pair of corneas, which Doheny resold at $3,400 per pair. The coroner was not alone in this behavior; 29 states permitted the nonconsensual removal of eye tissues from cadavers. Most of the 29 still have presumed consent laws.
Currently, the Uniform Anatomical Gift Act and the National Organ Transplantation Act prohibit companies and private citizens from purchasing body parts from individuals. An individual cannot receive "payment" for donating an organ or other body part. Although hints of the existence of a market involving individual sellers are clearly apparent in sperm and ova sales, lawmakers have been slow to address this new, expanded marketplace. Such inaction drives the underground sales.
Although the laws allow "service" fees to be exchanged between hospitals and organ procurement organizations for body parts and cadavers used to promote research, those fees have come to resemble illegal payments. Hospitals, organ procurement organizations and universities have become middlemen in the human-parts supply industry, violating the spirit and legislative intent of the regulations, because they are selling body parts that will be used commercially and not for research. For-profit tissue banks and biotechnology firms engage in research, but their function is dual-purpose and, ultimately, they are beholden to shareholders who are interested in profits.
Federal oversight has been lax at best, and courts are seemingly unprepared to deal with the reality of a growing body market. State and circuit court decisions on the question of who owns the body have been inconsistent.. Both individuals whose cell lines had been stolen and people who have donated family members' cadavers have sought legal remedies. State courts in Georgia and California have ruled against their claims for compensation for nonconsensual appropriation of body parts, while the federal 6th and 9th circuit courts have recognized at least a quasi property-right interest in the body.
In the UCLA case, do the sold body parts now belong to the tissue banks, UCLA or the new owners, or can they revert to the families? Can the families be compensated for their loss? Courts are stumped. Federal law proscribes individual ownership, yet a billion-dollar-a-year corporate industry thrives on buying, refashioning and selling body parts. From where, federal officials should ask, do they obtain the body parts?
Instead of ignoring the growing human-tissue industry, Congress, through the Food and Drug Administration, should regulate and monitor these exchanges. The essential elements of an informed system would include donor protections, an option for donor compensation, recourse for misrepresentation and mandatory annual reporting of donor/provider information, including race, gender and age data to prevent predatory practices. Finally, the federal government must also clarify its role in funding programs that sell body parts.
While the challenge to overhaul altruistic donations occupies lawmakers, private actors have developed a thriving black market. Thus the challenge, it seems, is whether to refashion altruism or introduce other supply alternatives with standards and regulations.
Michele Goodwin is the director of the Health Law Institute, DePaul University College of Law.