Second, and more significantly, the growing use of AUKPD and NEAD chains reinforces the notion, explored more fully in Part IV, that the Norwood Act provides a nonexclusive exemption, or safe harbor, from the definition of valuable consideration. There is no suggestion that Congress intended its failure to specifically exempt any activity to be read as a condemnation of that activity.
The text and legislative history of both NOTA and the Norwood Act, along with current transplant practice, thus suggest that RTT is prohibited only if it involves the transfer of a human organ in exchange for valuable consideration. We address the legality of RTT under NOTA's prohibition against valuable consideration in part IV, below.
In this part, we consider whether NOTA's ban on valuable consideration applies to each of these expenses by examining the statute's text and legislative history, as well as the Norwood Act's amendments to NOTA.
As previously discussed, NOTA prohibits the knowing acquisition, receipt, or transfer of "any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce." (29) Although the term "valuable consideration" is not defined, NOTA specifically excludes certain payments from the definition:
The term "valuable consideration" does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.
It may appear, at first glance, that these reimbursements are also excluded from NOTA's prohibition against "valuable consideration," based on the plain language of the statute.
A skeptic could argue that, when Carlos agrees to donate his kidney through RTT so that Diana can receive the immunosuppression and medical transport necessary to complete her transplant, Carlos has received valuable consideration in exchange for his kidney.
Yet, Congress has explicitly exempted KPD from NOTA's prohibition against the exchange of valuable consideration for transplantable organs (though, as discussed in part IV.C., many members of the Norwood Act Congress argued that an explicit exemption was unnecessary).
The Ambiguous Phrase "Valuable Consideration:" What Did Congress Mean?
As we illustrate in this section, neither the text nor legislative history of NOTA provide meaningful insight into the phrase "valuable consideration" in a setting, such as RTT, that involves no commercial buying or selling of human organs.
Although NOTA is today most often discussed in connection with its prohibition of valuable consideration, it is important to remember that such a ban was not the central purpose of the statute, and was added to the statute relatively late.
Perhaps because the "valuable consideration" language was a late addition to the statute in response to a specific concern, NOTA's legislative history addresses the term "valuable consideration" only with respect to that concern, and does not provide much insight into the term's breadth beyond the commercial-exchange context.