The successful development of organ transplantation brought with it a new challenge—how to share the scarce organs that are donated. To resolve this challenge, Congress contracted out to the United Network for Organ Sharing, a non-profit corporation composed of transplantation stakeholders, the responsibility of developing, implementing, and administering organ allocation policies under the oversight of the Department of Health and Human Services. However, increased scrutiny due to ongoing litigation between transplantation stakeholders has called into question the accountability and objectivity of this quasi-governmental agency. This Comment argues that the delegation of organ allocation policymaking to the United Network for Organ Sharing violates the Fifth Amendment Due Process Clause. When private actors are delegated regulatory authority that rises to state action, the protections of the U.S. Constitution apply. The Supreme Court has further recognized that due process is violated where self-interested state actors are delegated regulatory authority without sufficient agency oversight. This Comment argues that (1) the United Network for Organ Sharing should be considered a state actor subject to constitutional constraints, (2) the individual members of its Board of Directors are self-interested, and (3) the Department of Health and Human Services does not have sufficient oversight over the United Network for Organ Sharing to mitigate potential self-interest. To ensure fundamental fairness, this Comment proposes relegating the United Network for Organ Sharing to an advisory committee for the purposes of developing organ allocation policies. Such a proposal empowers the Secretary of the Department of Health and Human Services to maintain substantive control of organ allocation policymaking, thus satisfying the due process inquiry. This proposal also balances mitigation of perceived conflicts of interest and maintenance of stakeholder participation in policymaking.
Sean F. Driscoll,
The Short Circuit: Privatized Organ Allocation Policymaking Violates Fundamental Fairness,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol70/iss4/5