The Gift of Life and “Diseases of Language”: Recovering a Lost Distinction in Effectuating the Purpose of the National Organ Transplant Act’s Prohibition on the Transfer of Human Organs for Valuable Consideration
Volume 80, No. 4, Winter 2007
By Rick K. Jones [PDF]

Communicating is not easy. We know how to speak and to converse, but to take the fullness of our thoughts and completely convey them to another through words and actions, and have them received and appreciated in equal fullness, is more than a little tricky. In fact, George Bernard Shaw once said “[t]he single biggest problem in communication is the illusion that it has taken place.” Despite this, however, people regularly strive to make known and exchange their thoughts, feelings, and ideas through the sounds, words, and combinations thereof that comprise language.

As a medium of communication, the law is no different. The text of a statute “communicate[s] the will of society, articulated by the legislature as society’s agent for that purpose, to society’s members, telling them how they should or should not behave or what consequences should or might attach to certain actions or events.” Law uses language to communicate societal rules, and people look to that same language to interpret those rules and to grasp how they are to be observed. Clarity in the language of law is vital–as is care in listening to what a legislature has said when interpreting and construing statutory language. Mark Twain famously recognized that “[t]he difference between the right word and the almost right word is the difference between lightning and a lightning bug”; in a statute, that difference may be the difference between help denied and help given, between liability and nonliability, or perhaps between imprisonment and freedom. Language itself, however, can be an obstacle to clear statutory communication. Reed Dickerson wrote, for example, in The Interpretation and Application of Statutes, that “language remains subject not only to inherent limitations but to serious and not easily curable diseases. . . . [such as] ambiguity, overvagueness, overprecision, overgenerality, and undergenerality.”

“Valuable consideration” is a phrase contained within the federal law of organ donation that has impacted a Pennsylvania law intended to benefit organ donor families. Pennsylvania law allows for the payment of a funeral benefit on behalf of the family of an organ donor, but federal law prohibits the transfer of human organs for valuable consideration. The question is and has been whether the payment of a funeral benefit associated with, and made subsequent to, the donation of a human organ constitutes a transfer of that human organ for “valuable consideration” in violation of federal law.

This Article will address this question, examining the federal prohibition on organ transfers in relation to Pennsylvania’s statutory provision allowing for a funeral benefit. It will begin with an overview of the history of organ donation in Pennsylvania prior to the development of Pennsylvania’s Act 1994-102 and will outline the national framework for organ donation, including enactment of the National Organ Transplant Act in 1984 (“NOTA”). The Article will then look at discussions regarding the scope of the federal prohibition in light of developing support for allowing–at least on a trial basis–certain financial incentives, such as a funeral benefit, to help increase organ donation. It will consider the federal statutory language, taking into account pertinent rules of interpretation and construction, and will examine the March 2007 U.S. Department of Justice memorandum opinion analyzing the federal prohibition as applied to kidney-exchange programs. Finally, this Article will advance the idea that a lost distinction exists in the law of organ donation regarding the nature of gifts and commerce that needs to be recovered in effectuating the purpose of NOTA section 301(a) and its prohibition on the transfer of human organs for valuable consideration.

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