Andrew Wancata


In the United States and many countries throughout the world, selling non-regenerative organs for monetary gain constitutes a serious criminal offense. Notwithstanding this strong ban on the sale of organs, United States citizens are permitted to sell other "parts" of their bodies, including blood, sperm, and eggs ("ova"), for market value because current statutes do not consider reproductive cells and other regenerative tissue "organs" or even within the ambit of "parts." Rather, in most contexts, regenerative cells and tissue are though of as "products" of the human body. In fact, the United States remains one of only a few industrialized nations that allow the sale of human reproductive cells ("gametes"). Given the similarities between the unfortunate stories above, however, such a "Products vs. Organs" distinction is no longer tenable in this age of rapidly-developing medical research. The incongruous management of alienation of human body parts needs to be reconciled with traditional principles of property law. This note seeks to bring the legal status of gametes into line with that of organs using the framework of property rights. This note will argue that, since the law justifiably prohibits people from selling organs, it should likewise bar them from selling any parts of their bodies - even the products thereof (specifically sperm and ova) - as disposable personal property. This note will conclude with the proposition that a system of total market-inalienability and uncompensated donation of human body parts will best fulfill the economic goal of supplying organs and gametes to those in need of them while simultaneously protecting donors from any coercion of sale. Part II of this note will begin by surveying the philosophical and doctrinal underpinnings of property law as they relate to human beings and their bodies and will continue with an exploration of the impact, both theoretical and actual, of commodification on market behavior. Then, through case study at both the federal and state levels, Part II will assess the historical judicial hesitance against recognizing any outright property interests in the human body or its components. Part III will describe the current state of the law prohibiting market sales of human organs and factual data regarding organ donations. It will then move to a discussion of contemporary policies for and against the sale of "non-regenerative" organs. Part IV will explain why sales of gametes are contrastingly permitted in the United States and will position arguments supporting the sale and purchase of sperm and ova as distinguishable from organs. Finally, Part V will compare and analyze the preceding arguments and will argue that the statutory prohibition on monetary compensation for organs should extend uniformly to gametes. This paper will conclude with the proposition that the law should authorize only profit-less donations of either organs or gametes and only allow reimbursement costs to donors for expenses incident to the donation procedures.