The New York Times - July 16, 2004
Monica Davey

State Representative Larry McKeon, the Chicago Democrat who wrote the bill, said the decision was certain to save the lives of people with H.I.V., the virus that causes AIDS, who are waiting for liver transplants but have always been barred, as is everyone, from receiving donations from those with the virus. Mr. McKeon, 60, is himself H.I.V. positive and said he had been for 15 years or more. He said he was proud now to check off the box on the back of his Illinois driver's license, agreeing to become something he had not been allowed to be: an organ donor.

Some doctors and advocates for people with AIDS said the move by Illinois was certain to prompt similar actions in other states - and perhaps even a national shift in the rules that bar people with H.I.V. from becoming donors, despite what these advocates describe as the perfectly safe option of donating organs to other infected people. But federal authorities raised questions about the Illinois law, and said that any move to allow H.I.V.-positive organ donors would violate provisions of the National Organ Transplant Act of 1984.

"The federal law specifically states that no organs can be donated by those with H.I.V.," said Kevin Ropp, a spokesman for the Health Resources and Services Administration, part of the Department of Health and Human Services. "The purpose was to prevent the spread of H.I.V. and AIDS."

Lawyers for Mr. Blagojevich, however, said they had interpreted the federal organ donation procedures differently and believed Illinois could proceed as planned with its law, which went into effect as soon as it was signed on Thursday, said Abby Ottenhoff, a spokeswoman for the governor. The lawyers acknowledged that Illinois doctors may need to seek certain variances to the regulations, but said that exceptions had been granted in the past, and that this was a logical next step.

"We're hopeful that by removing an obstacle in Illinois, they'll be able to make change at the federal level," Ms. Ottenhoff said.

Details of how Illinois's plan will work are far from being sorted out. Advocates said it would essentially require the creation of a separate organ donor pool in the state just for those with H.I.V. As is already the case, all organ donors would continue to be screened for infection, disease and other problems. In years past, people with H.I.V. were not considered good candidates for receiving organs because of their reduced life expectancy. That was because drug treatments were far less advanced and life expectancies of potential H.I.V.-positive organ recipients were far shorter.

"This was not a topic five years ago, but it certainly is now,'' said David Munar, associate director of the AIDS Foundation of Chicago. "And that tells you something about how things have changed."

Mr. Munar said that the number of people with H.I.V. who are waiting for organ transplants was unknown, but that their most common need was a liver, since the livers of those with both H.I.V. and hepatitis C tend to fail especially swiftly. Donor wait lists can now be years long - too long, in many cases, for those with H.I.V. and hepatitis and failing livers.

In Springfield, Representative McKeon won his fight to pass the organ donation legislation with little trouble. It passed the House, which is dominated by Democrats, 95 to 22, and the Senate, also dominated by Democrats, with 55 in favor, 2 opposed and 1 "present." The legislation applies to organ donors with H.I.V. or full-blown AIDS, and to those who are living at the time of the donation as well as to those who have just died. It applies only to organ donation, not blood donations or bone marrow transplants.

The most serious questions Mr. McKeon said he received were related to safety. Some colleagues wondered: How can a doctor ensure that an H.I.V.-negative patient does not accidentally receive the organ of someone with H.I.V.? And can there be any additional danger to those who already have HIV from a different strain of it?

"There are reasonable fears," Mr. McKeon acknowledged. "But my position and the position of the medical people is that this doesn't add any increased risk."

Human error that could occur in any organ donation situation - where a donor has the wrong blood type or an unrecognized problem like rabies (as in a recent set of fatal cases) - is no more likely in cases involving those with H.I.V., he said.

Dr. Robert Murphy, a professor of infectious diseases at Northwestern University, said he believed that the transfer of organs from one H.I.V.-positive person to another was safe. But, he said, doctors must be extremely careful and fully aware of their patients' medical treatments and histories.

"We know what the risks are and we are going to look at it very closely," Dr. Murphy said. "Let's do it, and if it works, instead of throwing away these good organs, we can save a lot of people. When you see someone die of liver disease, you want to do anything to stop it."

"This is safe," he continued. "What's not safe is to let a person who is infected with H.I.V. just die because they can't get an organ. If there were lots of organs to go around, you wouldn't have to do this, but that is absolutely not the case."

But Dr. Robert Harland, a transplant surgeon at the University of Chicago, said that the practice was untested and that it might be possible for an H.I.V.-positive person to be infected with a different strain of the virus during an organ transplant.

"This is in its infancy," Dr. Harland said. "It's totally unknown at this point in time."

Jo Napolitano contributed reporting from Chicago for this article.
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