نبذة مختصرة : Angela T. Whiteheadt I. INTRODUCTION On January 23, 1996, thirty-five-year-old Sandra Jensen became a pioneer in medical history as the first person with Down's Syndrome to undergo heart and lungs transplants.1 Based on her mental retardation, Stanford University and the University of California at San Diego initially rejected Jensen's candidacy for the procedure.2 The surgeons believed that a person with Down's Syndrome lacked the mental capacity to navigate through possible complications that could occur after the transplantation, even though Jensen, a disabilities activist, had lived on her own since the age of twenty.3 Eventually, overwhelming pressure from community members, advocacy groups, family and friends forced the hospitals to reconsider and, after closer inquiry, Stanford surgeons admitted to misjudging Jensen's ability to comprehend her condition and to handle her own care.4 A month after surgery, Jensen took her first trip outside Stanford Medical Center to begin her journey toward recovery.5 Jensen expressed the hope that her story would "open doors for others with disabilities who are in need of transplants."6 In fact, her experience prompted local politicians to consider legislation barring discrimination against mentally disabled individuals in need of transplants.7 "This is too important to just cross our fingers and hope that federal law will protect these individuals .... This is often a life-ordeath matter for patients. They don't have time to wait around for the court to interpret a vague law," stated Assemblyman Antonio Villaraigosa.8 Questioning the effectiveness of federal antidiscrimination laws, namely the Americans with Disabilities Act (ADA or "Act"),9 in ensuring equal consideration and access to scarce transplant organs for people with disabilities begins with an inquiry of why the current organ allocation policies fail to account adequately for these individuals' candidacy. Although not all Down's Syndrome patients or other persons with disabilities would qualify as suitable candidates for transplantation surgery, denying a person's candidacy without individual evaluation runs counter to the public policy protections outlined in the ADA. This Note examines the intersection of the ADA and the organ allocation policies set forth by the United Network for Organ Sharing (UNOS). Part II outlines the legislative background surrounding federal disability law and organ transplantation. Part III assesses the fairness in the organ allocation process to shed light on equity issues in distributing such scarce resources. Part IV analyzes how the UNOS policies interact with the ADA to reveal a tension between UNOS' point system and the reasonable accommodation requirement of the ADA. Finally, Part V explores suggestions for a more equitable system of organ allocation and demonstrates how UNOS may resolve these tensions. II. LEGAL FRAMEWORK A. THE ADA The ADA recognizes, both in its language and legislative history, that discrimination against individuals with disabilities involves not only invidious conduct but also discrimination emanating from "biases inherent in social culture."io Indeed, Congress enacted the ADA to create a clear mandate to end discrimination against people with disabilities in employment, public or private education, transportation, health care and access to any other public or private services or programs.11The ADA contemplates that most discrimination against the disabled manifests itself in presumably neutral eligibility criteria, which, in practice, consistently tend to disadvantage individuals with disabilities.12 To level the playing field, the ADA 12182(b)(2)(A)(ii) requires covered entities13 to provide reasonable accommodation for individuals with disabilities. Reasonable accommodation requires "modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. …
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