A decade later, these proposals have advanced to an entirely new level of understanding and debate, illustrated by recent testimony delivered by the AMA before the House Energy and Commerce Subcommittee (AMA 2003). Some of these new policy initiatives have moved to the pilot phase of experimentation. The state of Pennsylvania (which houses several of the nation's most prestigious transplant centers) provides a case in point. Its State Act 102, which became effective in March 1995, was initiated under the late governor Robert Casey, who himself was a liver and heart recipient. This legislation offers a comprehensive approach to public outreach and donor motivation, strategies that other states and federal agencies have duplicated. An earlier and controversial component proposed offering partial financial assistance to donor kin for funeral costs (Nathan 2000). Although this section of the act failed to win full support in the legislature, it evolved at one point into a proposal for a three-year pilot project designed to test the effectiveness of three thousand dollars in funeral assistance to donor kin.12 This sort of cash payment remains a highly experimental strategy (and one that to date has failed to evolve into official practice); this proposed component of Act 102 nevertheless marks an important watershed in policy responses to organ scarcity anxiety. More recently, Wisconsin passed legislation that reimburses living donors for travel expenses and lost wages, an example other states are certain to follow.
States have tried a variety of other approaches to increase organ donation within their own borders. Many currently use donor card campaigns as a means to raise donor awareness; the most common strategy entails offering this card when residents register for or renew a driver's license. This approach targets especially the nation's youth, thus capturing the attention of the very segment of the population that defines the ideal donor category. More specifically, these are young people whose organs are free from diseases associated with advanced age, and for whom the incidence of deaths from automobile, motorcycle, and bicycle accidents is particularly high (such accidents often result in head traumas and, thus, potentially, brain death).13 What most Americans fail to realize, however, is that the donor card has long served merely as a reflection of a desire, not the promise, to donate, for it is surviving kin who ultimately decide whether or not a loved one's organs will be offered for transplantation. In response, recently many states have also passed legislation that transforms the donor card into an advanced directive so that procurement staff can legally override the desires of surviving kin. Also, nearly all states have long-established laws that require hospital personnel to report all cases of potential brain death to their local procurement offices (but enforcing these laws is another matter entirely). In such instances, health care workers may fail to comply because they are unaware of the law, they do not embrace the definition of brain death, or they are too deeply disturbed by the idea of shifting their attention from keeping a patient alive to monitoring the physiological status of a brain dead donor.
In response to these sorts of limitations, some reformers now advocate for presumed consent laws: such legislation means that unless one has registered one's opposition to organ donation, one can be categorized automatically by hospital personnel as a donor, thus bypassing the objections of kin (AMA Council on Ethical and Judicial Affairs 1994; C. Cohen 1992). As evidence of the great potential of presumed consent, advocates point to Spain, where this approach is believed to have altered radically the size of the nation's donor pool.14 As the foregoing discussion makes clear, however, the United States presents significant barriers to such reforms, perhaps the most significant being that, unlike a country with socialized medical care, each of the fifty states passes its own legislation relevant to donor registration and brain death criteria. Thus, one can become an organ donor more rapidly in Pennsylvania (which houses several of the nation's largest transplant centers and among the most active organ procurement organizations [OPOs]) than in, say, Idaho (a predominantly rural state far less involved in organ transfer).15
A more mundane approach—mundane because it has required no specific legislation to bring it into effect—involves a loosening of medical criteria that allow a larger pool of dying hospitalized patients to qualify for donor status. In the context of my own research I have watched how procurement staff have shifted various medicalized boundaries so that those who might have been excluded ten years ago are now considered viable candidates for donation. For instance, in the early 1990s brain dead patients greater than seventy years of age were categorized as too old to donate, their organs considered too spent for safe reuse.16 A commonsense approach dictated, too, that it would be unfair to transplant into an already chronically ill person an old and thus inferior organ. By 1995, however, procurement professionals had begun to take aged donors more seriously, the argument being that an old organ was better than none at all. As Gretchen Reynolds explains, an ever-increasing demand for organs “has led transplant specialists to quietly begin to relax the standards of who can donate…[such that] the transplanting of what doctors refer to as ‘marginal' or ‘extended criteria' organs, organs that once would have been considered unusable, has increased considerably in the last several years” (2005: 38). Formerly, prisoners, for instance, were automatically excluded because of fears of incipient HIV and hepatitis infections, yet by the mid-1990s I witnessed discussions of their viability as donors, and the procurement staff whom I observed had begun to make special efforts to collect reliable social and medical histories on some dying prisoners. The new value placed on prisoners' bodies has been extended in turn to include arguments that those willing to donate kidneys might then receive shortened sentences or death-row clemency as a reward for this act of goodwill (Ayres 1998; Bartz 2003; Bell 1998; Guttmann 1992; cf. Waldby 2000).
An even more unsettling intervention within the realm of organ transfer involves a recent, albeit still limited, shift to obtaining organs from what are referred to as “non-heartbeating cadavers” or “non-heartbeating donors” (NHBDs), and the procedure itself as “donation after cardiac death” (DCD).17 This protocol, which has expanded the boundaries of death, concerns specifically those patients who are maintained on ventilators yet who fall outside the criteria for brain death, their failing health instead indicating signs of imminent cardiac arrest. Their potential donor status is dependent on there being a do not resuscitate (DNR) order entered in their medical chart. At the moment the heart stops beating (either on its own or after the patient is disconnected from a ventilator), medical staff make no attempt to restimulate it but, rather, rapidly prepare the patient-turned-donor for the surgical removal of his or her organs (DuBois 1999; Greenberg 2001; Institute of Medicine 1997). One of the most publicized cases to date involved fourteen-year-old Nicholas Breach, a child under the care of staff at Children's Hospital in Philadelphia, who suffered from an inoperable brain tumor and had declared his desire to be an organ donor. As Nick's family explained to a reporter for the New Yorker, in order for Nick “to become a donor, it was not enough for their son to die with his body more or less intact. He would have to have the right kind of death, with the systems in his body shutting down in a particular order” (Greenberg 2001: 36). The understanding was that his ultimate demise had to be carefully orchestrated if his organs were to remain viable for transplantation. During his final days at home, Nick's parents kept a death watch over him; when he stopped breathing, they initiated cardiopulmonary resuscitation (CPR) to maintain their son in a condition that would then allow hospital staff to deliver him to surgery. (Their