by Craig Klugman, Ph.D.

Last week, the U.S. House of Representatives passed the HOPE Act (HR 698), a companion bill to one passed by the U.S. Senate (S 330) back in June. The HIV Organ Policy Equity Act would permit the harvesting of organs from people infected with HIV to be transplanted to other individuals with HIV. Previously no organ could be taken from a person infected with HIV.

The Act calls for regular reviews of research on HIV-infected organs to maintain quality standards. This bill also updates language such as that which calls for testing of organs for the “etiologic agent for acquired immune deficiency syndrome” (AIDS) to say “human immunodeficiency virus (HIV)” since we presumably now know what causes AIDS.

This Act will open a new source of organ donors and a new hope for HIV positive patients in need of an organ. Potential donors infected with HIV now have an opportunity to offer a gift of life. For HIV positive patients in need of an organ, there is now a new chance of continued life.

One of the challenges this bill evokes is a change in equity in the national distribution of organs. Since HIV infected organs are only available to HIV infected patients, those patients in a sense, have a protected source. Thus, the chances that they receive an organ are higher than for someone who is not infected. This is an overall increase in the number of organs donated, but makes them available only to a select group of patients.

An article in the June issue of the American Journal of Transplantation estimates approximately 494 potential donors with HIV each year, enough to provide an organ to nearly every HIV positive patient on the transplant list annually. That also means there would be nearly 500 fewer people competing for the organs available to everyone in the larger pool. Basically, in addition to blood type and protein factors, HIV status would be another factor in matching. If one accepts organ donation as a good, then this move makes sense.

There are some potential risks to this change. First, it is possible that an HIV infected organ could accidentally be implanted into an HIV negative patient. Testing, labeling, and tracking should minimize this potential harm. The second is potential HIV infection to health care workers who harvest, transport, and transplant the organs. However, this risk is no greater than any general surgery and decades of experience with universal precautions should minimize this risk as well. Third, there are different strains of HIV, different drugs and the virus mutates quickly. By introducing a different strain, there could be an exacerbation of the patient’s illness or a greater chance for the virus to develop resistance to an antiretroviral therapy.

From a justice standpoint, this bill appears to be a win-win: Increase the number of organs available, save more lives. It may also potentially provide a model for future rethinking about transplant. Why not open donation to other categories of previously banned donors? For example, a patient with active cancer might be permitted to donate to other patients with cancer. Or death row inmates could donate to other inmates. Formerly forbidden sources of organs may be tapped as long as the risks they pose to potential recipients can be outweighed by the benefits. By placing those organs in people with similar risk (prisoners) or disease profiles (cancer patients), this balance may be more equitable.

One must be reminded though, that transplant policy does not always follow ethical analysis and logical consideration. After all, the FDA still prohibits men-who-have-sex-with-men (MSM) from donating blood, tissue, or organs during their entire lifetime even though IV drug users, sex workers and other groups have much shorter bans (see this American Journal of Bioethics issue on this topic). Given that at least some of the new potential HIV-infected donors may also be MSMs, what is not clear is how the two policies will coordinate. Perhaps the rule will be that organs taken from a cadaver are after “a lifetime” and thus not under the ban. The original ban on MSM donation came about out of fear of HIV transmission. But if organs can be transplanted, then could not blood from a person with HIV be given to a patient infected with HIV? In the sense of treating likes-alike, these policies should also be reconsidered.

The HIV Organ Policy Equity Act is currently awaiting President Obama’s signature. This move creates new precedence in organ transplant and donation policy that may require rethinking our current programs.