The Administrative Law Implications of Quasi-Governmental Organ Allocation

Abstract

Congress created the Organ Procurement and Transplantation Network, a quasi-governmental agency, to allocate the nation’s supply of deceased-donor organs. But, this agency is a shell. The Human Resources & Services Administration contracts with a private, non-profit corporation to operate the Network, and to develop allocation policies — based, in large part, on the medical science developed by its own membership — in light of normative mandates from Congress and the Department of Health & Human Services. The District Court for the Eastern District of Pennsylvania skirted several fundamental questions about the legitimacy and constitutionality of this structure, when it temporarily restrained the Network from treating a ten-year-old lung transplant candidate differently than adults in her position on the lung waitlist; a subsequent transplant mooted her claim, thus leaving its merits to another day.This Article picks up where her story left off. Congress charged the Network with allocating organs “equitably” in the face of a permanent and ever-increasing demand-supply gap. Executive oversight of the administration and development of these allocation policies should not be tolerated. The Network’s policies are rich in expertise and carefully scrutinized by the only relevant community: transplant candidates and providers. And, even when constitutional issues are implicated, courts should withhold prospective relief — despite the potentially irreparable harm to individual litigants — until, on the merits, they find it necessary to destabilize this fair and functioning system.