I. Glenn Cohen, Organs Without Borders? Allocating Transplant Organs, Foreigners, and the Importance of the Nation-State (?), 77 Law & Contemp. Probs. 175 (2014).
Abstract: Most of the discussion of market or non-market forms of allocating and procuring organs takes as its unit of analysis the nation state, or, less commonly a particular state or province, and asks what should the system look like as to this unit. In this article, the second of two articles I contribute to this issue of Law and Contemporary Problems, I want to expand the viewfinder and examine an issue that has received peculiarly little attention in the scholarly and policy discourse: the desirability of treating the nation state (or its subdivisions) as the right level of distribution for organs, whether through market systems or non-market allocation systems. I will show that when we flirt with using a more global viewfinder, a series of difficult (and thus far largely unexplored) ethical and regulatory questions arise relating to the inclusion of "outsiders." At the very end of this article I explore what relevance this analysis may have to allocation within the nation-state as well. A large number of questions could be discussed under this title, but for this article I largely limit myself to two related questions. For both I will use the U.S. as the "home country" for rhetorical clarity, but the basic issues are the same for any home country. The first issue is: Should the U.S. allow "foreigners" to be on the list of those eligible to receive organs in the U.S. when they become available, and, if so, at what level of priority? Surprisingly the current law allows them to be listed to receive organs and if they are so listed it prohibits any discrimination against them for priority based on their being foreign. Second: should the U.S. maintain its own organ distribution network that is limited to the nation state instead of participating in a more globalized system? I should emphasize that my interest here is organs that come to recipients through typical government-run (or at least government-approved) organ allocation systems rather than foreigners who come to U.S. centers and bring their own living donor. I first describe the two issues and then offer a normative analysis of each. This cluster of issues applies equally to the current U.S. distribution system with its hostility to markets and any of the potential alterations discussed in other articles in this issue of Law and Contemporary Problems. That is, even if we introduce market elements of one form or another to the U.S. organ allocation system -- as I discuss in my companion article in this issue and as do other authors -- we will still have to answer the two questions I am interested in this article: Should non-U.S citizens who are non-residents be allowed to have access to U.S. organs in the domestic system, and should the U.S. as a whole join larger inter-country organ allocation systems? At the end of this paper, I make some comments about what this analysis implies as to organ sharing within a nation state, for example between U.S. states or geographic regions. Let me emphasize a terminological point here. I am using the term "foreigner" in a specific sense to refer to someone who is non-U.S. resident and a non-U.S. citizen. There are several intermediate cases between "foreigner" and citizen-resident, particularly the non-U.S. citizen who is a U.S. resident (like this author at the present moment!), citizen non-residents (e.g., expatriates), legal versus illegal residents (sometimes referred to as documented versus undocumented aliens) as well as various degrees of residency (visa versus permanent resident versus asylum seeker). A full ethical analysis would pick out each of these possibilities and run the analysis for each, but doing so would require a fuller theory of the importance of citizenship versus residency for benefits and burdens of home country law and policy than I intend to tackle in this article. Parts of the analysis I offer suggests resident non-citizens, whether in the U.S. legally or illegally should be treated quite differently for this analysis, but those implications and this category of persons are not my main concern in this article. Instead, in this article I am interested in the relative priority for home country organ allocation of two groups: "Insiders" to the nation state (resident citizens) and "foreigners" (non-resident non-citizens).