Friends,

The purpose of this message is to encourage patients who would like to receive a kidney transplant to consider reimbursing some of the expenses of potential kidney donors.  Hopefully, this will increase the number of donated kidneys and save a significant number of lives.

There is considerable uncertainty among kidney failure patients about what expenses of potential kidney donors they are legally allowed to pay.   I put the question to two lawyers on my distribution list [Kimberly Krawiec and Ward Kallstrom (who has retired from the bar and is no longer a licensed attorney)] and here is my (nonlawyer) conclusion that has been informed by their replies (but they are in no way responsible for errors that I may have introduced into the analysis).

The problem originates with Section 301 of the National Organ Transplant Act (NOTA) which reads:

(a) Prohibition.  It shall be unlawful 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.

And that statement is immediately followed by a threat:

(b) Any person who violates subsection (a) shall be fined not more than $50,000 or imprisoned not more than five years, or both.

This threat has been sufficient to discourage most patients seeking a kidney from offering to financially reimburse potential kidney donors.  However, this is not necessarily an appropriate response because NOTA goes on to say:

(2) The term "valuable consideration" does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control,  and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.

Thus, it appears that NOTA permits a kidney recipient (or anyone else) to reimburse a significant portion of the expenses of a kidney donor, in particular: lost wages, travel, and housing.

Furthermore, the federal government has set up a program to reimburse donor expenses -- the National Living Donor Assistance Center –- which  adds “dependent care” to the list of allowable expenses specified in NOTA.

Also, the private National Kidney Registry has removed two disincentives to kidney donation (with the evident acquiescence of the federal government):

Pet care, i.e.,  reimbursement for pet-sitting or kennel expenses; and

Legal support to help fight unlawful employment termination and insurance discrimination.

If patients seeking a kidney transplant offer to reimburse potential kidney donors for these expenses, it will likely significantly increase kidney donations and the number of lives saved.  Both the kidney recipient and the kidney donor should keep good records so they can show they are following the law and not reimbursing a given expense twice.  

Each life saved is precious, but it should never be forgotten that the number of people who need a transplant kidney is huge.  One very knowledgeable expert suggests at least half of those on dialysis should be on the kidney waiting list – that is 275,000 patients (= ½ X 550,000).  To save all of those lives, a much greater level of compensation than that outlined above is needed.   An important step in that direction is the End Kidney Deaths Act, currently under consideration by Congress, which would allow the government to offer nondirected kidney donors $50,000 over five years.  Furthermore, to save the lives of half the patients on dialysis, my co-authors and I estimate compensation of about $100,000 per donor would be needed.