June 1st 2025 | Siddharth Dhadi
Edited by Peyton Mikolayek
Fifteen-year-old patient Marcus Edsall-Parr has been on the waiting list for a kidney transplant for a decade. After ten years of missed classes, no sports, restrictive diets, and thrice-a-week dialysis sessions, his doctors informed him they had found a match, and that he was first in line to receive a kidney. However, the kidney did not go to him but instead went to a middle-aged man 3,557 spots down the line [1]. To prevent such unfairness, the National Organ Transplant Act (NOTA) of 1984 established the Organ Procurement and Transplantation Network (OPTN) to ensure equitable allocation of organs; it is overseen by the Department of Health and Human Services (HHS) and is operated by the United Network for Organ Sharing (UNOS). The act also mandates a national system for organ allocation based on medical need and fairness, with UNOS as the federal contractor [2]. In 1998, codified in the Code of Federal regulations, it requires organs to be allocated based on objective medical criteria (e.g., urgency, compatibility) rather than arbitrary factors [3]. These laws and codes collectively sought to emphasize transparency and accountability in the organ allocation process. Yet, today, the organ transplant system is characterized by a malignant deviation from its legal mandate under NOTA and OPTN regulations, which violates federal administrative law, due process under the 5th amendment, and equal protection under the 14th amendment and ultimately necessitates comprehensive legal reform.
The organ transplant system was designed to prioritize fairness and ensure that donated organs are allocated to the patients who need them most, based on a national registry and strict federal rules. The system operates under a national registry managed by UNOS, a federal contractor overseeing the transplant system. Patients awaiting organs (e.g., kidneys, livers, hearts, lungs) are ranked on waiting lists based on factors such as medical urgency, compatibility, and time spent waiting. The sickest patients are prioritized to receive organs first. Every state has at least one nonprofit organ procurement organization (OPO), which is responsible for identifying potential donors, recovering organs from deceased donors, and distributing them to patients. When an organ becomes available, the OPO uses an algorithm to generate a prioritized list of potential recipients, tailored to each organ based on compatibility and medical need. The OPO offers the organ to the doctor of the first patient on the list. If the doctor accepts, the organ is allocated to that patient. If the doctor declines, for instance, due to factors like donor age or organ size, the OPO moves to the next patient on the list. This process continues sequentially, with the OPO working down the list until a doctor accepts the organ for their patient. The goal of this highly-organized, federally-mandated system is to ensure that the organ goes to the highest-ranked, compatible patient.
Historically, deviations from the waiting list— known as out-of-sequence allocations— were rare and only allowed as a last resort to prevent an organ from going to waste (e.g., if the organ was about to deteriorate.) Such deviations were reviewed by UNOS and a peer review committee to ensure compliance with federal codes and principles of fairness.
Since organs have limited viability outside the body (kidneys can remain viable for up to 48 hours), the allocation process is designed to place organs within this window and prioritizes nearby patients to minimize transport time. However, OPO officials are increasingly ignoring the official rankings by skipping over hundreds or even thousands of higher-priority patients when distributing kidneys, livers, lungs, and hearts [1]. These organs often go to recipients who are less critically ill, have waited far less time, or— in some cases— are not even on the transplant list at all. In fact, 20% of transplants skipped the waiting list in the last year, up from merely 3-4% a few years ago. At the same time, there have been over 1,200 deaths in five years among skipped patients near the top of lists. Under congressional pressure to distribute more organs, the nonprofit organizations that oversee donations routinely prioritize convenience over fairness. They employ shortcuts to direct organs to preferred hospitals, which then compete for better access—often at the expense of equity [1].
Such misguided allocation, however, violates the federal administrative code. The organ transplant system’s widespread bypassing of prioritized waiting lists violates the National Organ Transplant Act (NOTA) and the OPTN Final Rule [3], which mandate equitable allocation based on medical need and transparency. In fact, the United Network for Organ Sharing (UNOS), tasked with enforcing these rules, has acted arbitrarily and capriciously under the Administrative Procedure Act of 1946 [4] by failing to curb out-of-sequence allocations (19% of transplants last year), tolerating undocumented “open offers,” and closing over 99.5% of cases without action, despite evidence of disparities and patient deaths (e.g., over 1,200 skipped near the top of lists). The Department of Health and Human Services (HHS) under President Biden, which is responsible for overseeing UNOS, has neglected its NOTA duty by allowing systemic drift by delaying intervention until 2025 under the new administration, and failing to address pressures driving OPOs to prioritize expediency over fairness. Beyond violating federal law, this allocation failure undermines public trust, exacerbates inequities like favoring white and Asian patients [1], and necessitates urgent reforms, such as implementing stricter oversight, limits on open offers, and enhanced transparency to restore the system’s integrity.
The organ transplant system’s misallocation also violates the Due Process Clause of the Fifth Amendment, as applied to federal actions through Bolling v. Sharpe, which established that the federal government must adhere to due process principles akin to those required of states under the Fourteenth Amendment [5]. In Bolling v. Sharpe, the U.S. Supreme Court held that racially segregated public schools in Washington, D.C., violated the Fifth Amendment’s Due Process Clause. Decided on the same day as Brown v. Board of Education, this pivotal ruling affirmed that the federal government is bound by constitutional prohibitions on discrimination despite the Fifth Amendment’s lack of an explicit Equal Protection Clause, which applies only to the states under the Fourteenth Amendment [6]. By systematically bypassing prioritized waiting lists (20% of transplants last year), UNOS and OPOs deprive patients like Marcus Edsall-Parr of a fair opportunity to receive life-saving organs and undermine procedural due process. This arbitrary deviation from the OPTN Final Rule of 1998 [3] lacks transparent justification, denies patients notice or a chance to contest being skipped, and results in unequal treatment that disproportionately harms non-white and less-educated patients [1]. In Goldberg v. Kelly, the Supreme Court held that due process requires fair procedures when terminating critical benefits, a principle applicable to organ allocation given its life-or-death stakes [7].
Lastly, misallocation potentially violates the Equal Protection Clause of the Fourteenth Amendment, which prohibits states from denying any person equal protection under the law. By bypassing prioritized waiting lists in 20% of transplants, OPOs and UNOS disproportionately allocate organs to white, Asian, and college-educated patients; this exacerbates racial and socioeconomic disparities [1]. This discriminatory impact, favoring certain groups over others without a compelling justification, contravenes equal protection principles. In Grutter v. Bollinger, the Supreme Court emphasized that racial classifications must serve a compelling state interest and be narrowly tailored. In this case, bypassing waitlists lacks a legitimate basis and unfairly harms marginalized groups [8]. Similarly, Yick Wo v. Hopkins established that unequal application of facially neutral laws violates equal protection when it results in discriminatory outcomes, as seen in the transplant system’s skewed allocations [9]. Even if the allocation is algorithmically managed, it cannot, under Yick Wo v. Hopkins, lead to disproportional benefit or harm to certain groups. The failure to address these disparities, despite evidence since 2022, suggests a systemic denial of equal protection under the law by the organ allocation system.
As medical knowledge continually progresses, we must take a step back and ensure that organ transplant systems allow for equal treatment under law.
Sources:
[1] Rosenthal, B. M., Hansen, M., White, J. “Organ Transplant System ‘in Chaos’ as Waiting Lists are Ignored.” The New York Times, February 26, 2025. https://www.nytimes.com/interactive/2025/02/26/us/organ-transplants-waiting-list-skipped-patients.html
[2] 42 U.S.C. § 274
[3] 42 C.F.R. § 121
[4] 5 U.S.C. § 706
[5] Bolling v. Sharpe, 347 U.S. 497 (1954)
[6] Brown v. Board of Education, 347 U.S. 483 (1954)
[7] Goldberg v. Kelly, 397 U.S. 254 (1970)
[8] Grutter v. Bollinger, 539 U.S. 306, (2003)
[9] Yick Wo v. Hopkins, 118 U.S. 356, (1886)
JHULR 
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