Copyright (c) 1999 Albany Law Journal of Science & Technology
Albany Law Journal of Science & Technology
COMMENT: FORCED ORGAN DONATION: THE PRESUMED CONSENT
TO ORGAN DONATION LAWS OF THE VARIOUS STATES AND THE
UNITED STATES CONSTITUTION
9 Alb. L.J. Sci. & Tech. 349
Alexander Powhida *
The United States Constitution mandates that "no State shall... deprive any person of life, liberty, or property, without due process of law...." 1 This clause of the Fourteenth Amend ment has been held by the Supreme Court of the United States to govern both procedural and substantive aspects of due process. 2 Although the amendment was apparently adopted with the intent to secure the constitutionality of the Civil Rights Act of 1866, 3 the Supreme Court has read the amendment literally, thereby apply ing the broad concepts written into the text beyond the issue of race equality and equality of treatment. 4
The issues presented in this Comment pertain to whether there are substantive limits imposed by the Fourteenth Amendment upon the state legislatures which would defeat the recent, tenta tive steps of many states to pass laws authorizing presumed con sent to organ donation. Section III of this Comment analyzes the historical foundations of presumed consent laws. Section IV con siders a sampling of the relevant state statutes, Section V ana lyzes the cases that have dealt with this issue, and Sections VI and VII examine the constitutional ramifications of these laws. In conclusion, Section VIII of this Comment attempts to predict the result of a challenge to these laws in the Supreme Court.
II. Organ Shortage
The societal problem of organ shortages coupled with medical science's increasing ability to successfully transplant organs has precipitated the laws at issue in this Comment. Medical science has continually ...
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