Senate Bill S4318

                                 BILL NUMBER:  S4318

 TITLE OF BILL :
An act to amend the public health law, in relation to anatomical gifts


 PURPOSE OF BILL :
The purpose of this legislation is to make it clear that the statutory
prohibition against the sale or purchase of human organs does not
prohibit "paired kidney exchanges" and other possible conditional live
organ donations.

 SUMMARY OF SPECIFIC PROVISIONS :
This bill would amend Public Health Law §4307 to clarify that a live
organ donor can make his or her donation of an organ conditioned upon
a designated individual receiving a similar organ from another live
donor without either organ being considered to be "valuable
consideration" that would make such a transfer a class E felony.

Public Health Law §4307 prohibits the sale or transfer for "valuable
consideration" of a human organ for use in human transplantation. A
violation of this statute is a class E felony. Since an organ received
by a designated donee could be considered to be "valuable
consideration" for the donor's agreement to donate his or her organ to
another, the statue leaves open the possibility that physicians and
others participating in "paired kidney exchanges" may be prosecuted
              

for a felony.

A similar prohibition exists in federal law. While that law could
continue to deter "paired kidney exchanges" even if this bill is
passed, New York State should eliminate the potential for local and
state prosecution for such conditional donations and continue to
position itself as a leader in the transplantation field.

 JUSTIFICATION :
Clarifying that paired kidney exchanges and other similar conditional
live organ donations do not constitute valuable consideration in
violation of PHL §4307 could save dozens of lives each year.
Thousands of individuals die on the national organ transplant waiting
lists each year while waiting for an acceptable cadaveric organ. One
option for individuals on the waiting lists is to identify a potential
live organ donor who is willing to donate an organ to them.  Most
often, live organ donors are individuals who have a pre-existing close
relationship to the potential recipient, such as a spouse, parent,
adult child, sibling, or other close relative or friend.  However, in
many cases, individuals who are willing to donate their organs to a
family member or friend are not a "good match" for the intended
recipient. In such cases, the intended recipient must remain on the
waiting list and hope that they receive an organ before the
malfunctioning organ undermines their health and quality of life to
the point where they are incapacitated or die.

In recent years, transplant centers and surgeons have been
experimenting with offering potential live donors the option of
exchanging donated kidneys with other potential paired live
donors-donees when the respective donors are not a "good match" for
their intended donee, but are a good match for the other donor's
intended donee. To ensure that the organ transplants are consummated
for both sets of donors-donees and reduce the potential for an unfair
research, the operations are performed at the same time. This type of
exchange not only benefits the two intended donees and their families
through the transplant of a viable organ, but also benefits all
patients on the waiting list by shortening the waiting list and
increasing the chances for all potential donees to receive a viable
organ sooner rather than later.

While paired kidney exchanges and other similar conditional donations
hold great promise for saving lives and reducing the time most
patients are on the national waiting list, many physicians and centers
are considered to be "valuable consideration" for the donated kidney,
and therefore, violate the prohibition against the sale, purchase, or
transfer of human organs for "valuable consideration."  While
arguments can be made that such exchanges are not "valuable
consideration," the lack of universal agreement on the application of
this provision to "paired kidney exchanges" and potential for criminal
prosecution by district attorneys based upon their interpretation(s)
of this law, serve as a significant deterrent to physicians, centers
and potential donors participating in such exchanges. This bill would
eliminate the ambiguity in the statute so that physicians transplant
centers, and donors can participate in such exchanges without fear of
state or local prosecution. The bill would also authorize the
Commissioner of Health, with the advice and consent of the Transplant
Council, to adopt rules and regulations to impose appropriate
limitations and safeguards on such conditional donations to ensure
that such arrangements are fair, equitable and protect the health,
safety and welfare of the donors as well as the donees.

 LEGISLATIVE HISTORY :
A9008 (2007-2008)

 EFFECTIVE DATE :
This act shall take effect immediately.