This editorial appears in the January Issue of the American Journal of Bioethics
Courtwright’s target article rightly recognizes the ethical tension between maintaining national priority rankings and making rapid decisions to avoid organ nonuse. His defense of AOOS acknowledges the need for flexibility within a complex system and gestures toward policy reforms that might strengthen legitimacy. We share the aspiration for a system that maximizes both organ utilization, fairness in distribution and procedures, and commitment to public trust. However, we contend that AOOS in its current form risks more than it resolves, particularly in the domains of equity, transparency, and patient involvement. These risks challenge the optimistic reading of AOOS as a benign or “rescue” mechanism for increasing transplant rates and reducing organ nonuse. We describe the concerns below and outline potential future directions to maintain the integrity of the organ allocation system.
AOOS Does Not Reflect Evidence-based Practice
Despite the considerable rise in AOOS use, from 2% to 20% of kidney transplants within a few years, nonuse rates have not declined commensurately. Courtwright acknowledges this, noting that the relationship between AOOS and nonuse remains uncertain, and that counterfactual scenarios in which nonuse would be higher than currently observed are possible. Yet, these statements only underscore how the utilitarian justification for AOOS rests on speculative assumptions rather than clear evidence that more organs are being transplanted as a result. As such, the immense shifts in practice are not easily justified. Moreover, purely utilitarian positions are further challenged by the implementation of Organ Procurement Organization performance measures tied to decertification, where the effective date of reform (2020) coincided with the rapid rise in AOOS.
Moreover, the concentration of AOOS activity in high-volume and risk-tolerant centers indicates that the mechanism already advantages certain institutions and their patients. When a policy benefits those who are most able to navigate the system, including large transplant centers, it cannot be ethically defended by utility alone, even if the data supported efficiency of AOOS at a future time. In a publicly regulated system that relies on equitable access to scarce resources, efficiency must be pursued without compromising justice.
AOOS Compromises Transparency
Proponents of AOOS suggest that bypassing patients without their knowledge does not meaningfully undermine patient autonomy, in part because candidates generally do not participate in real-time offer decisions. This position highlights two central problems in organ transplantation: first, patients are seldom informed or active participants in deciding about whether organs are accepted on their behalf. Some of this stems from reasonable logistic challenges describing the quality and fit of the organ with the patient need. However, part of this approach enshrines deference solely to clinicians, and misconstrues the nature of consent in transplantation. Informed decision-making is dynamic: preferences around organ quality, risk, and timing evolve over time as patients spend months or years on a waitlist. Interactive options, including decision-aids and supportive prompts can promote opportunities for real-time feedback and patient engagement. If patients are not told when they are bypassed or why, they cannot meaningfully revise their consent, adjust their expectations, or hold their clinical teams accountable to their stated priorities. Additionally, it is the practice of some transplant centers to screen patients that fit specific criteria for AOOS organs. These may include body habitus, cardiac risk, distance from transplant centers, preemptive status, amongst others. If ineligible patients are unaware of measures necessary to become a candidate for an AOOS offer, they are excluded from the opportunity to make informed decisions in their care. Such informational asymmetry does not merely inconvenience patients; it enacts a hierarchical model of care that has long been critiqued for silencing the voices of those most affected by transplant decisions.
AOOS primarily reflects clinician and center preferences rather than patient values. Courtwright suggests that informed content at the time of evaluation for transplant somehow negates the need to inform patients regarding organs declined on their behalf. Consent for evaluation can be years prior to a patients first organ offer and as informed consent should be an iterative process, the notion that a patient will understand changing organ acceptance practices, including AOOS, without ongoing education and engagement lacks evidence. The moral legitimacy of transplant allocation relies on public trust and on processes that reflect patient and public expectations regarding fairness. These are sometimes, but not always, reflected in the judgments of professional stakeholders. At present, public opinion regarding AOOS remains unclear, although press coverage and recent public debate suggest that the policy may not be broadly favored. When any policy or directive is violated one-fifth of the time, it undermines the legitimacy of the underlying policy itself. Future research should examine this more thoroughly to promote procedural justice and public engagement as a means of fostering trust.
Equity Considerations
The opacity of AOOS also creates space for strategic behavior and implicit bias. Courtwright acknowledges the risk that AOOS might benefit well-connected or well-resourced individuals, yet suggests the concern is largely hypothetical. Yet, early studies have shown that the beneficiaries of AOOS tend to be patients who are already structurally advantaged, including those who are White, older, more educated, and treated at better-resourced transplant centers. Courtwright recognizes that inequities persist particularly along racial, gender, and socioeconomic lines, and describes these disparities as “complex” and “center-specific.” The concern that AOOS exacerbates these disparities, while introducing no guardrails, is concerning. A national system with a history of disparate outcomes must treat emerging disparities seriously. Without robust, ongoing oversight, the possibility of preferential treatment, whether intentional or not, cannot be dismissed. Ethical concerns persist for a system that relies on the benevolence of insiders to police themselves is ill-equipped to govern scarce, socially donated organs.
Technocratic Considerations
Courtwright further asserts that AOOS may have a path forward to be technically authorized within federal regulation, where procedural justice concerns are mitigated. Yet legitimacy demands more than regulatory permissibility. The documented variation in AOOS thresholds reveals a system in which can rules shift based on geography, institutional resources, and professional norms rather than consistent, publicly justified criteria. Legal authorization cannot compensate for moral inconsistency, and compliance with existing rules does not ensure that the rules themselves are fair.
Courtwright correctly points to HRSA’s interpretation of the “wastage clause” in the Final Rule as authorization of AOOS only in specific conditions where a transplant center’s designated recipient cannot receive a transplant and the center finds another patient on the list to avoid nonuse. This is a narrow interpretation of the wastage clause, and HRSA has explicitly stated that OPO’s are not authorized to allocate based on the notion that not doing otherwise would result in nonuse. However, the Final Rule does provide flexibility to OPO’s to test allocation systems that would improve the efficiency of organ placement. Given that most kidney AOOS occur following procurement, placement efficiency is essential to identify transplant centers willing to accept organs that other centers have declined and to do so with the intent of successfully placing organs for transplant.
An Expedited Task Force was initiated by the OPTN to address concerns around the increase in AOOS. This work would have likely led to testing allocation models to specifically address efficiency in organ placement and potentially lead to a codified alternative allocation system—like already in place for liver expedited placement—that could potentially improve kidney placement. The transplant community has acknowledged the issue AOOS far before the general media published on the topic. Currently, the clear goal of HRSA is to track and identify AOOS transplants under clear definitions. Whether this will lead to a reduction in AOOS and its impact on transplant rate and organ nonuse remain to be determined.
Procedural Justice: Opportunity for Improvement
We strongly support the call for a constructivist approach that meaningfully includes the perspectives of affected communities in shaping allocation policy. Yet, for such reform to be ethically credible, guardrails must be established before AOOS continues to expand, and a public process, beyond tokenistic, must be carried out. (Ladin and Hanto 2011)Guardrails should include clear equity monitoring with consequences when disparities widen, mandatory patient notification, and opportunities for preference revision when bypassed, and governance structures that meaningfully include patient and public stakeholders in defining the boundaries of AOOS use. Only within such a framework could AOOS shift from a technocratic workaround to a practice that respects democratic accountability.
Despite shortcomings, the U.S. transplant system has long been held up as a paradigm of transparent, publicly vetted governance in the allocation of scarce medical resources. Its legitimacy derives not only from the lives it saves, but from the principled, evidence-based procedures through which those organs are distributed. AOOS challenges that foundation. By enabling departures from national priority rankings without public deliberation and without individual patient notification, AOOS introduces a shadow process that coexists with, and at times overrides, the very mechanisms that the transplant community has painstakingly developed to ensure fairness. Even if these bypasses are intended to prevent nonuse, any practice that allows some individuals privileged access to expedited pathways outside the standard framework risks fracturing the shared moral commitments that sustain donation and allocation.
Embedding opaque exceptions within a rule-governed system is not a neutral act. Once introduced, such exceptions can expand, normalize, and ultimately weaken the authority of evidence-based allocation itself. Courtwright is right to emphasize the need for dynamic policy in a rapidly evolving field, but ethical innovation must proceed through public justification rather than quiet accretion of discretionary allowances. Without transparency and oversight, AOOS may inadvertently foster a culture in which bending rules becomes both easier and more institutionally rewarded, particularly at well-resourced centers that already enjoy structural advantages. In a system tasked with stewarding a public gift of donated organs, even the perception that rules are negotiable for some undermines trust for all. Indeed, some of the recent unexplored harms of AOOS may be an increase in litigation and a decrease in public trust and organ donation. These should be examined and addressed.
Looking ahead, the path forward must include robust equity surveillance capable of identifying distributional harms early, transparency measures that give patients meaningful awareness and voice in how organs are allocated, and participatory governance that elevates public values alongside clinical expertise. These safeguards are essential prerequisites for AOOS to achieve legitimacy within a national framework grounded in principles of utility, justice, and respect for persons. As innovations in organ utilization continue to emerge, from expanded criteria donors to xenotransplantation, the transplant community must resist the temptation to sacrifice accountability for convenience. We must ensure that flexibility is not unevenly accessible and that innovation does not become a conduit for inequity.
The foundational question is not merely whether AOOS increases the number of organs used (where current data suggests it does not). The foundational question remains whether AOOS strengthens or weakens the ethical principles upon which our allocation system rests. If we prioritize expediency at the expense of justice, we risk eroding the public trust that sustains the transplant system. A truly sustainable transplant system must aim not only to increase transplantation, but to do so in a manner that honors the values of fairness, transparency, and shared responsibility that have long guided our collective stewardship of the gift of life.
Keren Ladin, PhD & Sanjay Kulkarni, MD