Organ Transplantation Eligibility: Discrimination on the Basis of Cognitive Disability

Congress passed the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 in response to the extensive history of discrimination Americans with disabilities have faced. These federal statutes provide that no individual is to be precluded from enjoying the programs provided by certain entities solely on the basis of their disability. However, this is difficult in regards to organ transplantation and individuals with cognitive disabilities. The issue lies where a physician is faced with the difficult decision in pursuing their moral and ethical obligations to preserve life while determining whether a specific cognitive disability is a contraindication for organ transplantation. This Note advocates for federally implemented guidelines, supplementing current federal antidiscrimination statutes, which would be more stringent on healthcare providers and provide clarity to physicians to prevent discrimination in determining whether an individual with a cognitive disability should receive an organ transplant. This Note provides the background of the applicable federal antidiscrimination statutes and judicial interpretation of the applicable statutes as well as the difficulties in procuring an organ transplant and the risks subsequent to an organ transplant procedure. Additionally, this Note discusses public policies and how some states have taken steps to deter discrimination. This Note will also provide an analysis of physician discretion in evaluating organ transplant eligibility and how absolute discretion presents the opportunity for discrimination. Lastly, this Note provides solutions, including judicial intervention and policy reform implementing a spectrum of risk classification, and mandatory disclosure of the reasons for transplantation refusal