Making Transplants Easier

Novelist Grace (Peyton Place) Metalious, who died in Boston in 1964, willed that her body be given to either Dartmouth or Harvard medical schools. But Massachusetts law required the consent of the next of kin for any such donation. Grace's family said no, and the bequest was not carried out. This led a five-judge New Hampshire court, which ruled on a second disputed clause in the will, to note in passing: "The need for appropriate statutory provision to implement the desires of the dying to aid the living is increasingly urgent." Now that doctors are attempting or gan transplants with ever increasing frequency, the need has become even more urgent. Aware of the shortage of transplant organs, legislators across the nation are acting with unaccustomed speed to make it easier to donate organs after death. Last year Massachusetts changed the law that stood in the way of Grace Metalious' gift. At least 35 states from Maine to Hawaii have introduced legislation based on a model law, the Uniform Anatomical Gift Act. Last week, the Governor of Vermont signed a bill closely resembling the Uniform Act, which was drafted last year by the National Conference of Commissioners on Uniform State Laws (a group of lawyers appointed by state Governors). So far, the legislatures of 16 other states have passed similar statutes.

Rapid Decisions. Unlike his car, his home or his stocks, a man's body has, traditionally, not been considered property that may be bought or sold--or willed. While some states permitted such donations, others gave greater weight to the wishes of a dead man's relatives. As in the Metalious case, the next of kin, who have a recognized authority to provide a decent burial, could often manage to have the gift of a body revoked.

The Uniform Act establishes the right of any person of sound mind, 18 or over, to donate his body--effectively preventing relatives from vetoing the gift after death. Moreover, the legislation should make possible the rapid legal decisions that are necessary for organ transplants. For one thing, it allows a man to donate his body through any "written instrument," not necessarily a will, thus providing a way around the delay of probate. The law also permits survivors to donate a man's organs; to avoid time-consuming quarrels, it lists relatives in an order that determines whose wishes will prevail (spouse, adult children, parent, etc.). Anyone who wants to donate organs may carry a card that will, when he dies, be satisfactory authorization for transplant surgery.

The model law's framers made no attempt to resolve what has been one of the most controversial points--the question of when a man is considered dead. Because doctors are only now starting to agree on a scientific definition of death, none is included in the act. Instead, the decision is left to the dying man's physician. To avoid a conflict of interest--and overly hasty removal of organs--the attending physician who declares a man dead may not be on the team that performs a transplant.

Moderate Solution. Some boosters of transplant surgery feel that the Uniform Act does not go far enough. UCLA Law Professor Jesse Dukeminier Jr., for one, believes that gifts alone will never produce enough organs to meet the growing demands. He suggests a statutory alternative that would permit surgeons to routinely remove a cadaver's organs for transplants unless they are notified that either the deceased or his relatives had expressed objections.

For most Americans, Dukeminier's approach is likely to sound far too radical. In the Christian tradition, as Columnist Max Lerner observed last week, "you wanted your body whole for the day of resurrection." This is no doubt one source of the religious and psychological reservations that many people have about organ donations. Until their attitudes change--and until doctors demonstrate greater success with transplants--the Uniform Act will provide a moderate solution that encourages donations but at the same time recognizes the intent of the dead and the feelings of their survivors.

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