Harvey Ferguson, Jr., R.Ph., J.D., LL.M. Candidate
State statutes dealing with organ procurement and allocation have as their central objective the expansion of the available supply of organs and tissues for transplantation, therapy, education, and research. State lawmakers have generally viewed their role in this area as two-fold. First, legislators have passed various statutes designed to facilitate organ donation and allocation. To meet this initial goal, lawmakers have adopted laws prescribing the manner and method in which individuals and decedent’s family members may lawfully donate organs and tissues. See, e.g., Texas Anatomical Gift Act, Texas Health & Safety Code, Ch. 692. Second, the Legislature has addressed the government’s role in educating its citizens about the ever-increasing need for gifts of organs and tissues. Education and awareness have been seen as a logical step toward bridging the gap between supply and demand. Toward achieving this latter objective, Texas has enacted the Anatomical Gift Education Program (AGEP) in 1999. Texas Health & Safety Code, Ch. 49.
Under the AGEP, the Texas Department of Health (TDH) is required to develop a statewide program to educate Texas residents about anatomical gifts. Texas Health & Safety Code, § 49.001(a). The program is to include information about the laws governing anatomical gifts and the procedures for becoming an organ, eye, or tissue donor or donee, as well as information on the benefits of organ, eye, or tissue donation. Id.
The program was designed to be funded through the collection of a voluntary donation when residents obtain or renew their Texas driver’s licenses or personal identification cards. Section 521.421(g) of the Transportation Code requires the Texas Department of Public Safety (DPS) to collect an additional fee of $1.00 for the issuance or renewal of a license to fund the AGEP, if the person applying for or renewing a license opts to pay the additional fee. The fees collected under § 521.421(g) are remitted to the comptroller, who is required to maintain the identity of the source of the fees. Chapter 522.422(c) of Transportation Code contains the same language applicable to persons obtaining or renewing a personal identification card. Donations are currently collected by the DPS through its on-line driver’s license and I.D. card renewal systems. The DPS also collects funds directly through its field and regional offices as residents obtain or renew driver’s licenses and identification cards.
In May of 2002, the AGEP introduced its first media campaign. It produced informative posters for display statewide in the offices of the DPS. The awareness campaign sponsored by the program is designed to increase organ and tissue donations by encouraging people to sign a donor card and to share the decision with their families. The AGEP also produced a television campaign in selected Texas cities. Susan Ristine with the TDH AGEP indicated that the program is now working on a targeted advertising campaign directed at particular population groups.
In 1999, an amendment to the Texas Anatomical Gift Act created a public multi-disciplinary task force on organ allocation to examine issues surrounding current organ allocation policy and to implement an optimum organ allocation policy. The primary focus of the Task Force was to develop an optimum organ allocation system for the citizens of Texas. After a series of monthly meetings beginning in August 1999, the Task Force released its report entitled Organ Allocation in Texas in December 2000. The full report can be found at: http://www.tdh.state.tx.us/kidney/sb862rpt/default.htm. The Task Force readily understood that one way to address the current problems with organ allocation is education. Its report made various recommendations designed to address “key catalysts and barriers to organ donation.” On the issue of funding, the Task Force suggested that the Legislature should provide general revenue funding for the AGEP so it may develop broad-based and effective information and multimedia campaigns sustained on an annual basis. In the view of the Task Force, the current $1.00 contribution method of funding could be retained as a long-term supplementary source of funding, but it is not adequate to initiate the scale of programs thought necessary to have any significant impact on increasing public support and awareness.
In addition to the AGEP, Section 521.401 of the Texas Transportation Code requires the DPS to provide a means to distribute donor cards to interested individuals in each office authorized to issue driver's licenses or personal identification certificates. These donor cards are to be furnished to the DPS by qualified organ or tissue procurement organizations or eye banks. In addition, the DPS and other appropriate state agencies, in cooperation with qualified organ, tissue, and eye bank organizations are required to pursue the development of a combined statewide database of donors. This statute represents another effort by the Texas Legislature to foster the public policy goals of providing an adequate supply of viable organs and tissues for donation. Section 521.401 is designed to make donor cards readily available and to facilitate the identity of donors.
The state of Texas has moved toward improving its laws to increase the supply of viable organs and tissues for transplantation. In the last few years, the state has also started to fund its own education program. More could be done to provide revenue for the AGEP and assist it in coordinating educational programs across Texas. The question now is whether the current laws are enough to increase supply of organs for transplantation. Will the establishment of the AGEP make a noticeable increase in organ donations? If not, what will be the solution? The Task Force made its opinion clear in its December 2000 Report. It wrote that with respect to organ donation, “We are losing this battle; therefore, bold changes are necessary.” The Task Force acknowledged that its efforts to reformulate a just and fair organ allocation plan “will go for naught unless we increase organ donation in our state.” In the last several legislative sessions, the Texas Legislature has actively considered and enacted ways to increase the organ donor pool in Texas. It appears that more will need to be done. Instead of being discouraged by the current crisis in organ donations, it should be a call to action.
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