Vanderbilt Law Review

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Access to medical care is an issue of acute and increasing importance in the United States, a country in which the most promising of ground-breaking technologies may be available to only the privileged few. Although debate about the problem of unequal access to medical care typically centers on financial obstacles to advanced therapies and the obvious inequity of allowing patients' ability to pay to drive treatment decisions, issues of equitable access for patients of both genders and all racial and ethnic backgrounds increasingly have come into focus.

These concerns about equitable access animate the ongoing debate about how government should regulate the transplantation of kidneys. More than 100,000 people in the United States suffer from kidney failure-what doctors call "end-stage renal disease" (ESRD). While kidney failure may be treated with dialysis,' kidney transplantation is the preferred treatment: studies show that transplant recipients are more likely to return to work, avoid hospitalization, and enjoy a greater sense of well-being than patients on dialysis. Kidney transplants constitute more than three-fourths of the solid organ transplants performed in this country and have success rates routinely as high as eighty percent. A severe shortage of transplantable kidneys, however, limits the availability of this preferred treatment.' For example, in 1990, while more than 18,000 Americans were registered on waiting lists, fewer than 8200 received renal transplants.

Federal regulations control the allocation of scarce donated kidneys among prospective recipients. Since 1972, Medicare has covered the costs of virtually all kidney transplants. To qualify for Medicare reimbursement, transplanting hospitals must abide by rules promulgated by the federal Organ Procurement and Transplantation Network (OPTN). Current OPTN policies for cadaveric kidney allocation give strong preference to potential recipients who are genetically similar to the donor as determined by the identification of antigens located on the surface of cells. For example, if a harvested kidney has all the same antigens as a potential recipient on the waiting list, then that patient will receive the kidney-even if other dialysis patients have waited longer for a transplant.

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