The Organ Procurement and Transplantation Network will today begin its review of what's become known as the Under 12 Rule, a little-known organ transplant policy that a Pennsylvania couple brought to national attention after arguing that it had been pushing their dying 10-year-old to the bottom of the adult lung transplant waiting list.
Lawyers for Sarah Murnaghan, who is dying of cystic fibrosis, convinced federal Judge Michael Baylson on June 5 that the Under 12 Rule was discriminatory, prompting a temporary restraining order against Health and Human Services Secretary Kathleen Sebelius to prevent her from enforcing it for Sarah.
Baylson's ruling forced OPTN to create a second database entry for Sarah with a fake birthday to trick the organ transplant system into thinking she was 12. The following day, another child in Sarah's hospital, Javier Acosta, 11, won the same reprieve.
But not everyone is celebrating.
"It is unlikely that the courts are the best place to make these decisions," said R. Alta Charo, a law and bioethics professor at the University of Wisconsin-Madison. "The reasons for giving priority to one category of patients over another is usually due to a complicated combination of factors."
Charo said she has not heard of any other court rulings overriding an OPTN decision, but she hopes Baylson's ruling will not set a precedent. (Courts have intervened in medical decision-making before, Charo said, citing the Terri Schiavo case in which doctors, lawyers and family members battled for more than a decade over whether to remove Schiavo's feeding tube and let her die.)
Several medical, legal and health experts have condemned Baylson's ruling, arguing that existing lung allocation practices –- including the Under 12 Rule -- are based on medical evidence, and that allowing Sarah and Javier to be given special priority is unfair to other candidates on the list.
A joint statement by the American Society of Transplant Surgeons and the American Society of Transplantation said that the existing policy was formulated from the best information available, and to change or obfuscate it would be "unwise" without the calculative approach mandated in the National Organ Transplantation Act.
As it stands now, lung transplant candidates older than 12 are assigned a lung allocation score, or LAS, based on a complex mathematical formula that includes the patient's age and size. For transplant patients younger than 12 -- of which there are 20 nationally compared with about 1,600 adults -- the LAS is not used. Instead, patients are broken into "priority 1" and "priority 2." It's this difference that has been called discriminatory.
"I don't think that it's reasonable to call them discriminatory if they're established based on medically relevant facts," said Dr. Margaret Moon, a pediatrician and bioethicist at Johns Hopkins Berman Institute of Bioethics. "We can't ask the judge, and we can't ask Congress to determine medical facts."