Paging King Solomon: Towards Allowing Parents to Donate Organs of Anencephalic Infants

This Faculty Working Paper has been updated and posted within the Faculty Scholarly Works Series. It is currently available here.


This article attempts to demonstrate that organ donation from anencephalic infants can be both beneficial and morally justifiable. Section I discusses the biological and physical manifestations of anencephaly. Section II introduces the current need for infant organs for transplantation, the possibility that anencephalic organs could address some of that demand, and the basic ethical positions both for and against the allowance of anencephalic organ transplantation. Section III discusses the dead donor rule, the legal obstacle which currently makes anencephalic organ donation legally problematic. Section IV discusses possible legal approaches to permitting organ transplants from anencephalic donors: the abandonment of the dead donor rule would cause too many undesirable consequences; the classification of anencephalic infants as non-persons offends society’s general ethical norms and creates slippery slope problems that are in the realm of possibility; however, the classification of anencephalic infants as persons born into a state of death permits anencephalic organ donation without denying anencephalic infants personhood status and opening Pandora’s box. Section V lays out legal safeguards necessary to prevent the abuse of an anencephalic organ donation scheme in the event that mankind perfects its ability to intentionally create anencephalic human organ donors. Section VI addresses potential class-related social concerns posed by anencephalic organ donation while arguing that a facially just transplant policy should not be tainted by independent social problems, such as lack of medical care for the poor. This article closes by advocating, for the sake of infants in need of organ transplants, a properly tailored transplant policy allowing parents of anencephalic infants to donate their children’s organs for use in transplants.