Organ Harvest from the Legally Incompetent: An Argument Against Compelled Altruism

Abstract

Organ transplants may offer the best hope of long term survival for individuals afflicted with certain cancers or other debilitating diseases. The hope that a transplant may inspire in an organ recipient should not, however; be the determinative factor when the proposed source of the organ is incompetent. Competent adults are not compelled to act altruistically by undergoing a surgical invasion for the benefit of third parties. Children and mentally incompetent adults should likewise be protected from such compelled altruism. Case by case adjudication of petitions to harvest organs from incompetents are inevitably driVen by a concern for the recipient and an unwarranted deference to parental authority, and not by concerns for the autonomy and well being ,of the incompetent donor. This Note argues that organ harvests from legal incompetents should be statutorily prohibited.