Tenenbaum Examines Legal, Ethical Challenges Behind Complex Human Organ

By John Caher

AS THE ONLY ORGAN IN THE BODY that can grow cells and regenerate itself, the liver is a splitable resource for trans-plantation, creating the potential for one donor liver to save two lives. But that potential, with its Solomonic medical, legal and ethical challenges, is largely unrealized.
 Albany Law School Professor Evelyn M. Tenenbaum proposes a mechanism and model that she and her co-author, Jed Adam Gross of the Department of Clinical and Organizational Ethics at the University Health Network in Toronto, believe balances the medical and legal issues in an ethical, life-saving way.

 “My co-author and I hope to change U.S. policy related to split liver trans-plants,” Tenenbaum said. “Implementing mandatory liver splitting for those livers that are suitable for splitting—about 12%—could save hundreds of additional lives each year.”

 Their article, “Splitting Deceased Donor Livers to Double the Transplant Benefits: Addressing the Legal, Ethical and Practical  Challenges,” was published in May 2023 in Health Matrix: The Journal of Law-Medicine at Case Western Reserve School of Law. It is a virtual tutorial or template on how to implement a successful and morally sound policy of mandatory splitting (some-thing already generally required in Italy, the United Kingdom, and South Korea) in appropriate cases: adopt more flexible criteria for allocation of split livers; establish a separate waiting list for those receptive to a split liver graft; evaluate transplant centers specifically on their success with split liver transplants; and require informed consent at three separate intervals.

 The authors begin simply: the supply of human livers available for transplant is not meeting the needs of patients under-going liver failure. About 1,200 people in the U.S. die annually while waiting for a liver and another 1,200 are removed from the waitlist when they become too sick.

 “The high demand for donor livers compared with the low supply has resulted in thousands of patients dying while on the transplant waiting list and others enduring long illnesses prior to receiving a suitable liver,” the authors wrote with the assistance of Tenenbaum’s research assistant, Rachel Meyer ’22, who is now clerking at the Appellate Division, Third Department.
 Split liver transplantation has been available since the 1980s and proved a game-changer for children. Juvenile donors  are rare and adult organs are usually too big. But that resource is underutilized for adult recipients because transplant teams feel compelled to provide a patient with a whole organ if one is available, according to the authors.

 “Mandatory splitting would take the choice of whether to split out of the physicians’ hands so the physician’s only role would be to advise his/her individual patient on whether or not to accept a hemiliver graft,” Tenenbaum and Gross argue.

 They acknowledge that not everyone is a good candidate for a split liver and note that relatively few surgical teams are experienced in the procedure. “Because patients risk additional complications if they receive a split liver graft, physicians rarely choose hemiliver transplantation for their patients except when the whole donor liver is too large for the transplant recipient,” Tenenbaum and Gross wrote.

 The authors devote considerable attention to the issue of consent, quoting Benjamin Cardozo’s famous comment in Schloendorff v. Society of New York Hospitals: “[E]very human being of adult years and sound mind has the right to determine what shall be done with his own body; and a person who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” They would require the first consent at the outset, when a person goes on the wait list, the second when the person is high on the list and the procedure seems imminent and a third just prior to the operation.

 Tenenbaum, who is also a Professor of Bioethics at Albany Medical College, had written several articles on kidney trans-plants and in researching those papers stumbled on split liver transplants. She was fascinated and “the more I researched, the more fascinated I became.” She met Gross, a transplant bioethicist, at a Health Law Professors Conference. They decided to combine his practical experience and her academic experience and co-author the article.

 A graduate of Northwestern University and Cornell Law School, Tenenbaum was a Section Chief and an Assistant Solicitor General in the Attorney General’s Office and also served as a consultant to the New York State Department of Health. She teaches and studies bioethics, civil rights, health law, health policy and torts at Albany Law School. She has also taught business law at the Cornell School of Hotel Administration, Hunter College and Sage Evening College.