Constitutional Challenges to Liver Transplant Policy

Liver transplant candidacy determination can be contentious. When transplantation is declined for reasons perceived as violating fundamental rights or discriminating against a protected class-for example, age, race, religion, nationality-the case may involve a constitutional claim. Judicial review of such cases may result in decisions with sweeping implications for transplant policy.

We reviewed all published court opinions involving liver transplantation in 2 legal databases (Lexis Nexus and WestLaw). We included all cases that involved a denial of liver transplant candidacy in violation of constitutional rights.

The search returned 1562 cases: 290 involved the denial of insurance coverage for a transplant due to a patient's failure to abstain from drinking, 273 cases involved incarcerated inmates who were denied a liver transplant, 2 involved a constitutional claim for patient requesting a bloodless transplant for religious reasons, and 2 cases arose from age discrimination in transplant criteria. These cases highlight legal pitfalls related to the First Amendment (religious freedom), Eighth Amendment (cruel and unusual punishment), and the Fourteenth Amendment (equal protection and due process).

The risk of a constitutional claim highlights concrete steps needed to ensure the equity of transplant policy. These include efforts to standardize transplant candidacy criteria across payers for candidates with alcohol-related liver disease and advanced age. Efforts to constrain emerging liabilities related to the citizenship of transplant candidates and the definition of donor service areas are also discussed.