In New Paper, Prof. Tenenbaum Concludes Kidney Vouchers Are Enforceable Contracts

Should kidney vouchers be considered legally binding? The answer is yes, according to Albany Law School Professor Evelyn Tenenbaum, who reaches the conclusion in a new paper published in Suffolk University Law School's Journal of Health & Biomedical Law.

In the article, "Donate Today so Your Loved One Can Receive a Future Live Donor Kidney: Are Kidney Vouchers Enforceable Contracts?," Professor Tenenbaum addresses the major issues surrounding the validity of the kidney voucher program, which was started by the National Kidney Registry in 2014 to allow individuals to donate a kidney before—10 to 15 years, for example—their intended recipient would need a transplant; in exchange, the donor receives a voucher for their intended recipient to receive a live donor kidney from the end of a future kidney chain.

She concludes that the kidney voucher program does not violate the National Organ Transplant Act (NOTA), which bans trading organs for valuable consideration. And she argues that vouchers are binding contracts even though the kidney donor cannot be compelled to donate, and the voucher agreement is not illusory even though there is no guarantee that the intended recipient will ever receive a kidney. The paper also examines the policy implications of Professor Tenenbaum's conclusions and ways to deal with the consequent concerns.

"As Ralph Waldo Emerson stated, '[o]ur distrust is very expensive.' There is probably no place where this statement applies better than live kidney donation. The entire kidney exchange program depends on the trust of donors who are willing to put their lives in the hands of transplant programs for the benefit of others," she writes.

Professor Tenenbaum's article is her latest in a series tackling live kidney donors, vouchers, and donor chains. She previously published "Swaps and Chains and Vouchers, Oh My!: Evaluating How Saving More Lives Impacts the Equitable Allocation of Live Donor Kidneys" (2018) and  "Bartering for a Compatible Kidney Using Your Incompatible, Live Kidney Donor: Legal and Ethical Issues Related to Kidney Chains" (2016), both in the highly regarded American Journal of Law & Medicine.

Professor Tenenbaum's courses at Albany Law include: Applied Health Policy; Bioethics Seminar; Fraud and Abuse in the Health Care Industry; Health Law; Public Health Policy: Law, Finance, and Ethics; and Torts. She also is faculty advisor to the Domenick L. Gabrielli National Family Moot Court Competition.

In addition, she is a Professor of Bioethics at Albany Medical College and serves as a member of the Ethics Review Committee at Albany Medical Center.