Currently, 42 U.S.C. 274e(a) makes it “unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration.” There are, of course, arguments that this prohibition ought to be dropped and that allowing the sale of say kidneys would dramatically increase supplies. On the whole, I find myself persuaded by the pro-kidney selling arguments. I am curious, however, about the other legal consequences of making kidneys saleable. Consider bankruptcy.
When a person files for bankruptcy, the law automatically creates a bankruptcy estate consisting of “all legal or equitable interests of the debtor in property as of the time of the commencement of the case.” 11 U.S.C. 541(a)(1). Of course, the homestead exemption allows debtors to keep some property, but the size of the bankruptcy estate matters a great deal because it provides a baseline for computing the rights of creditors in bankruptcy. If kidneys were saleable, they would seem to follow under the language of 541. In the absence of a specific provision in the homestead exemption, a debtor who wanted to hang on to his or her kidneys in a Chapter 7 would have to forego protecting some otherwise exempt asset to keep them. Do you want to keep your car or your kidneys? Of course such a choice might not be such a bad thing. After all, the debtor got in bankruptcy at least in part by borrowing money, and their ability to do so is enhanced by the presence of assets to satisfy the debt. Kicking kidneys into the bankruptcy estate would presumably enhance the credit worthiness of a lot of marginal debtors with few other valuable assets. Normally, of course, the trustee in bankruptcy gets to liquidate the debtor’s non-exempt assets, regardless of the debtor’s wishes. Would the Bankruptcy Code require the force sale of organs?
This, of course, leads to the question of whether or not folks should be able to hypothecate (ie grant an security interest in) their kidneys. Perhaps they already can.