Access to organs for transplantation: An analysis of the Brazilian legal criteria and context

This study analyzed the production of the Brazilian Transplantation Program (BTP) and the role of federal legislation in promoting equity in access to organs. Information was collected through literature review and analysis of reports and legal documents (from 1963 to 2007). Even though the public system performed 15,132 transplantations in 2006 (65% were corneal transplants), it was identified: a context of scarcity (69,053 persons in waiting line in 2007 – 49% waiting for a kidney), regional inequalities (frequency of transplantation six times lower in North – less developed - then in Southwest region – more developed) and stagnation in productivity since 2004 (rate of organ donation has even dropped after that year). The debate about equity considered John Rawls´ principles of justice and Amartya Sen´s multidimensional health equity approach. Ethical principles suggested by Nikola Biller-Andorno and Roberto Andorno were also used to analyze legal criteria for organ allocation. After 1988, national laws established as basic access criteria: a solidarity principle (since the organ trade was forbidden) and an equality principle (through a waiting list system). Executive regulations have added principles of compassion (imminence of death) and efficient distribution (biological compatibility). In general, legal criteria were considered to be oriented toward equity, although two significant threats had been identified: a) lack of formal regulation of the weighs associated to some allocation criteria (present only in computer programs) and b) breakage of hierarchy between regulations in the establishment of a new allocation criterion based on severity of disease. The correction of these problems will favor justice of the processes, transparency, social control and, consequently, equity. The observation of inequality of access despite the adoption of reasonably equitable legal criteria suggests that it is needed more attention to the level of opportunities which is being offered by the public health system throughout the country.