Why Is it Legal for Rich Foreigners to Come to America for Organ Transplants?

It's a shocking image, one meant to jar sleepy subway commuters on their morning ride: Amid the sneakers and stilettos of urban partygoers stands a pair of bare feet, wearing the toe-tag of a corpse.

Every 15 hours, a New Yorker dies waiting for an organ, the tagline reads. Become an organ donor.

What the ad doesn't say and most donors don't know is that a growing number of the state's deceased donor organs aren't going to New Yorkers at all, but to Saudi sheikhs and other mega-wealthy 1 percenters with no ties to the United States. They actually take holidays here for the sole purpose of obtaining the organs.

Sound illegal? It's not.

The same 1984 law that prohibits you from selling your kidney or a nub of your liver while you're alive enshrines the right of wealthy foreigners to receive them once you're dead. So long as recipients pay full price for the procedure and wait on the same list as everyone else, they can procure a liver, kidney, heart, lung, pancreas, or length of intestine at a top-flight transplant center in their pick of major American cities where hundreds of locals will die waiting for those same organs each year.

"Originally, it was no big deal, because there was no great shortage of organs," explained Doctor Gabriel Danovitch, a former committee member of the United Network for Organ Sharing (UNOS), the nonprofit that manages the country's deceased donor organs under contract with the Health Resources and Services Administration (HSRA).

But all that has changed dramatically in the last 30 years. Today there are more than 120,000 Americans waiting for new organs—the vast majority of whom come from deceased donors—and close to 10,500 are waiting in New York state alone.

"When we went to change the rule, we were told clearly by the UNOS legal representation that we could not exclude [people who enter the country solely for transplants]," Danovitch said. "We couldn't say, 'No, you can't have foreigners here.'"

To be clear, jetting in from abroad can't buy you a better spot on the line—that was part of the purpose of the original National Organ Transplant Act (NOTA). But the growing numbers are concerning enough to those within the medical community that the government recently changed the way it disaggregates data about non-resident transplant patients to isolate and track this specific category.

New federal transplant data shows that the number of foreign visitors added to the waiting list last year is still a tiny fraction of the total number of patients, and the number who were transplanted make up an even smaller one. But both data points are way up from where they were in 2012, and anecdotal evidence suggests hospitals are happy to see that trend continue.

"The system has set this up in part because it's financially lucrative—many of these people are capable of building wings on hospitals, and they do," said Dr. Arthur Caplan, an ethicist at NYU's Tisch School of Medicine. "They're usually paying cash, and they're usually paying upfront, and the'll often say things like we want not just a private room but we want the whole floor, and we'll pay for it… [These patients] can really wield their influence in ways that even rich Americans find harder to do."

Even those who don't shower institutions with their financial gratitude still end up paying much more for an organ transplant than their American counterparts do.

"In the original NOTA law, you were not allowed to charge money differently from a foreigner or not—but that's bullshit," Dr. Danovitch explained. "Everyone who gets a transplant in the US gets it through their insurance, but you get it wholesale. When someone comes from Dubai or Kuwait or Saudi Arabia, they [pay] the full cost, retail, so the hospital will make a lot of money on them."

The trend isn't unique to New York—Cleveland Clinic, Johns Hopkins, and Houston's Hermann Memorial are among about a dozen hospitals that have become big players, according to the data—but as the state with one of the highest concentrations of top transplant hospitals and one of the lowest rates of donation, its consequences are starkest in this state. Columbia Presbyterian listed 12 foreign visitors for livers alone last year—about 5 percent of liver listings and more than any other hospital in the country except Johns Hopkins, which listed 15 such candidates out of 258 for that year.

Columbia did not return VICE's calls or emails for comment. Neither did John Hopkins, Hermann, or Cleveland Clinic. None of what they or any other hospital performing these procedures do is illegal, nor in theory will it ever be illegal, no matter how large the trend grows. The government did set a threshold—sometimes called "the 5 percent rule"—that triggers an audit of any institution that performs more than 5 percent of its total transplants on visitors. But the "rule" (which has since been revised) lacked teeth from the beginning.

"In theory, if a program did not have a clear or acceptable rationale (in the committee's view) for transplanting a disproportionate number of non-residents, that could have led to further review and action," UNOS spokesman Joel Newman explained in an email. In practice, there's no legal limit to the number of foreign visitors who can receive organs here, an HRSA spokesman confirmed.

What concerns those in the medical community about this practice isn't where the organs end up, but whether their distribution is fair: According to Dr. Caplan, an undocumented immigrant is reasonably likely to contribute to the American donor organ pool, but will almost certainly never receive a deceased donor organ, even if he or she is in need—the cost of immunosuppressants and other lifelong care is simply too high.

"Generally speaking, what one would want is that the same population that receives organs receives from a population that are potential donors," Danovitch said. "I'm not an INS [Immigration and Naturalization Service] official—all I care is, 'Do you live here?'"

What many fear could emerge instead is a bizarre reversal of traditional transplant tourism, in which big US hospitals cater increasingly to well-heeled patients who come from less developed countries like India, China, and the Philippines at the same time that desperately ill patients from the US travel to those same countries to buy organs from the local poor.

"I've had three patients already receive deceased donor transplants this year," said one transplant worker at a large New York transplant center, who asked not to be named because they are not authorized to speak with the press. "You come to my clinic any day, they're coming—it's a big business to get these patients to come here."

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