DECRIMINALIZING PROFITABLE HUMAN ORGAN EXCHANGE FOR ORGAN SOURCES; IMPROVING OUR NATION’S EXCHANGE PARADIGM USING THE MILLIAN HARM PRINCIPLE

Zachary C. Meeks, Faulkner University School of Law

Abstract

The National Organ Transplant Act (NOTA) and the Uniform Anatomical Gift Act (UAGA) lack jurisdictional legitimacy in prohibiting a profitable human organ exchange. The primary focus of this note is explaining this lack of legitimacy, not the advocacy of particular forms of profitable exchange. Using John Stuart Mill’s harm principle, I will show why imposing criminal liability for profitable human organ exchange remains outside the scope of legitimate government coercion in a free society. The legislative paternalism of NOTA and UAGA illegitimately restrict the liberty of desperately ill people in procuring a life-saving organ and the liberty of people who desire to obtain monetary value for their organs in life or after death. Eliminating these statutes would remove the greatest obstacle. Part I addresses the current law and how it affects the organ exchange process. Part II introduces John Stuart Mill’s harm principle through his work in On Liberty and will address the boundaries of legitimate government coercion. Part III analyzes the type of conduct Mill considers a justifiable harm giving the government jurisdiction to regulate. Finally, Part IV discusses whether profitable exchange for a human organ would qualify as a justifiable harm under Mill giving the government jurisdiction for regulation.