Sunday, December 10, 2023
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NOTA is the cornerstone of the federal system for organ transplantation[2] In response to Jacobs' proposal, NOTA included language that made it a crime "for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce." At the time, Congress was exceptionally concerned about the rise of an organ market and mindful of the potential inequities that could arise if destitute donors were coerced into selling their organs. The Senate Report accompanying NOTA stated that "human body parts should not be viewed as commodities."[3]
For the past 20 years, the prohibition against buying and selling organs in the United States has quoted NOTA as mantra. Efforts to provide financial incentives as a means of increasing cadaveric donation, for example, have failed because of clear Congressional intent that organs not be placed in a commercial market. However, one commentator has argued that the "very existence of a law forbidding alienation of organs paradoxically portrays the human body as 'an article of commerce' that lies within the purview of Congressional power and would otherwise be subject to sale on the market."[4]
While society has not shunned the sale of hair, sperm, blood, and other replenishable body parts, the question of whether society should venture into the commercialization of human organs remains unsettled; not so much because of a growing desire of individuals to sell their organs for transplantation, but partially because of the explosion of the biotechnology industry. Yes, a growing number of patients are waiting for an organ transplant, and alternatives to increase the donor supply are in constant demand. However, simply stated, advances in biotechnology have generated uses and needs for bodily tissues that were unfathomable until recent years. And although federal and state laws ban the buying and selling of organs for transplantation, they have not exclusively banned their use in research, education, and commercial endeavors, all of which have increased their value.[5]
Advancements in biotechnology and genetic research have also yielded a potential billion-dollar market for cells and other cellular by-products. The main reason such cells and by-products have become so valuable is because human-made organisms are patentable. In a 1980 ruling by the United States Supreme Court, human-made microorganisms were considered patentable subject matter because a new organism was created that had "markedly different characteristics from any found in nature."[6] All of which raises the question, if one can profit from the exchange of certain body parts, some so infinitesimal as to be unrecognizable by the human eye, why not other parts?
