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Prior to the end of the eighteenth century, there was little social conflict on the question of how one should deal with dead bodies, so the law had little impact on the treatment of cadavers. Everyone agreed that protocol was to dispose of the bodies with dignity. In nineteenth-century England, the situation changed. The shortage of cadavers for medical applications led to the illegal disinterment of corpses by “resurrectionists” and even to murder to acquire bodies for sale to medical schools and practitioners. The Anatomy Act of 1832 terminated these practices, since the act provided for the orderly donation of bodies to medical schools by those in lawful custody.

Although the successful transplantation of human bones began in 1878, it was only when the process of rejection began to be understood during World War II that real progress was made. In 1951, doctors succeded with the first major and vital organ transplant: the kidney. Over the past thirty-five years, there have been extraordinary developments in the transplantation of human organs and tissue. Improvement in technique, routine use of ventilators and respirators, and most importantly, development and refinement of immunosuppressant drugs—particularly the introduction of cyclosporine-A in 1980, and prednisone and OKT-3 several years later—have combined to make the transplantation of human tissue almost routine.

Current Realities

With improved survival rates has come an enormous increase in the frequency of organ transplants. By the end of 2004, the cumulative number of transplant procedures in the United States had increased to about 190,000 kidneys, 35,000 hearts, 65,000 livers, 850 heart-lung combinations, 11,700 lungs, and 3,900 pancreases. The total organ transplants conducted annually number about 25,000.

Nevertheless, in the wake of this medical miracle has come a tragic and growing shortage in the supply of transplant organs. Researchers have offered and adopted numerous solutions, including advertising campaigns, presumed consent laws, and requiring hospitals to request donation. Although some increase in organ procurement has resulted, the essential problem remains: the majority of organs that would be suitable for transplantation are not harvested.

The failure of the current system is not merely one of principle in the sense that it is offensive that anyone would suffer and die while resources that might restore that person to health are wasted. The failure is increasingly one of numbers, as well. Each year, thousands of sick patients die while the organs that could restore them to health and extend their lives are buried and burned.

The waiting lists for organ transplants are substantial and increasing. In 2003, 40,083 people, or about 110 per day, joined the United Network for Organ Sharing (UNOS) National Transplant Waiting List, and 34,991, or about 96 per day, were removed, principally because of death and transplantation. Though large, the numbers on the waiting lists represent a serious understatement of the true shortage in transplant organs.

The size of the waiting lists is artificially constrained, especially in the case of the kidney, because entry onto the lists employs an endogenous and arbitrary definition of clinical suitability. More than 378,000 Americans suffer from chronic kidney failure and need an artificial kidney machine to stay alive. The number of Americans with kidney failure has been rising steadily since dialysis became available. While a large proportion of these patients would probably benefit from a kidney transplant if one were available, there is a limited supply of available kidneys and most of those on dialysis have little chance of receiving one. Medical judgments determine who is in most need of an organ and who can profit most by receiving one, and the names of the others never appear on the waiting list.

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