1. INTRODUCTION       

According to the Organ Procurement and Transplantation Network website (http://optn.transplant.hrsa.gov), as of December 2015 more than 122,000 persons in the United States tarry on the national transplant waiting list. This number grows daily, for someone is added to the list approximately every ten minutes but a transplant is performed only approximately every nineteen minutes. In addition, one patient on the waiting list dies every sixty-five minutes. Thus, it is clear that the demand for solid organs for transplantation in the United States is not being met. One potential solution for this supply and demand mismatch is compensated organ “donation”. I define compensated organ “donation” as the voluntary transfer of a human organ from a willing seller to a willing buyer for valuable consideration in a commercial transaction. This paper shall analyze the ethical and practical questions that arise when compensated organ “donation” is proposed to address the shortage of transplantable kidneys in the United States.

2. ARGUMENTS FOR COMPENSATED KIDNEY “DONATION”

There are three primary arguments for compensated kidney “donation”.

First, Jason Brennan, Associate Professor of Strategy, Economics, Ethics, and Public Policy at Georgetown University’s McDonough School of Business, summarizes the logical argument for permitting sales of kidneys in the following paragraph from his 2015 guest post on the Cu-Boulder’s Center for Values and Social Policy What’s Wrong? blog (http://whatswrongcvsp.com/2015/11/30/the-moral-meaning -of-kidney-sales/):

People are simply not willing to give away the kidneys others need to live. There are about 100.000 people on the kidney waitlist in the US, and most will not get kidneys. However, people are willing to sell kidneys, if given the chance. Others are willing to buy them, if given the chance. So, we have a supply and demand curve for the kidney market, and an implicit market equilibrium price. However, because the US government forbids kidney sales, the government thereby sets the legal price of a kidney at zero, far below the market price. Not surprisingly, we have a shortage — the quantity demanded greatly exceeds the quantity supplied. In this case, the government-mandated shortage literally kills people.

Second, economic cost-benefit analyses statistically demonstrate the effectiveness of a compensated kidney “donation” policy. In a 2007 The Journal of Economics Perspectives paper titled “Introducing Incentives in the Market for Live and Cadaveric Organ Donations”, economist Gary Becker, the winner of the 1992 Nobel Memorial Prize in Economic Sciences, and colleague Julio Elias estimate that a $15,000 payment to each living donor would be sufficient to eliminate the US national transplant waiting list. Also, in a 2015 American Journal of Transplantation paper titled “A Cost-Benefit Analysis of Government Compensation of Kidney Donors”, P.J. Held et al conclude that a $45,000 payment to each living donor would assure that:

  • “ … kidneys would be readily available to all patients who had a medical need for them, which would prevent 5,000 to 10,000 premature deaths each year and significantly reduce the suffering of 100,000 more receiving dialysis. “
  • “ … poor kidney recipients … would … reap the great benefits of transplantation at very little expense to themselves. “
  • “Because transplant candidates would no longer have to spend almost 5 years receiving dialysis while waiting for a transplant kidney, they would be younger and healthier when they receive their transplant, increasing the chances of a successful transplantation.”
  • “With a large number of transplant kidneys available, it would be much easier to ensure the medical compatibility of donors and recipients, which would increase the success rate of transplantation.”
  • “When a first kidney graft fails, the patient would be readily able to obtain a second transplant kidney.”
  • “Taxpayers would save about $12 billion each year.”
  • “The incentive … to participate in transplant tourism or the black market for kidneys would virtually cease.”
  • “The overall proficiency of kidney transplantation would increase as the number of transplants increases. “

Third, actual implementation of a compensated kidney “donation” program in a human society has been successful. As chronicled by Sigrid Fry-Revere, J.D., Ph.D. in her 2014 ethnographic research book titled The Kidney Sellers: A Journey of Discovery in Iran:

Without the money, technology, or inclination to set up a Western-style system of cadaver organ procurement, Iran began condoning, regulating, and even encouraging compensated living kidney donation — that is, allowing the buying and selling of kidneys from living donors — as early as the mid-1980s. Within 15 years, Iran had no kidney waiting list. And today, in most regions of the country, there is a waiting list for people wanting to sell their kidneys.

I shall pivot to an evaluation of the objections to a compensated kidney “donation” system.

3. ARGUMENTS AGAINST COMPENSATED KIDNEY “DONATION”

Many arguments against compensated kidney “donation” have been proffered. The previously mentioned Jason Brennan and his colleague Peter Jaworski, Assistant Teaching Professor of Strategy, Economics, Ethics, and Public Policy at Georgetown University’s McDonough School of Business, consider these critiques in detail in their 2015 book titled Markets Without Limits: Moral Virtues and Commercial Interests. I shall utilize the objection naming conventions provided by Brennan & Jaworski in their work.

3A. THE MERE COMMODITY OBJECTION (MCO)

The MCO asserts that buying and selling kidneys shows that one regards kidneys only as commodities, thereby ignoring the fact that kidneys, like other parts of the human body and the entire human body itself, have inherent dignity/value that cannot be captured in a market price.

The problem with the MCO is that buying and selling a certain good does NOT show that one regards the good merely as a commodity and ignores the inherent dignity/value of the good; for example, art collectors trade vast sums of wealth for masterpieces of art precisely BECAUSE they appreciate the inherent dignity/value of the art masterpiece.

3B. THE WRONG SIGNAL OBJECTION (WSO)

The WSO asserts that buying and selling kidneys shows disrespect for kidneys, regardless of the intentions of the buyers and sellers.

The problem with the WSO is that the meaning of buying and selling a certain good in a particular society is a contingent, culturally-relative social construct that can and should be changed as needed to reflect the overall positive or negative outcomes that result from the buying and selling of the good.

3C. THE WRONG CURRENCY OBJECTION (WCO)

The WCO asserts that buying and selling kidneys signals estrangement, which is morally wrong to insert into certain kinds of relationships, particularly relationships between fellow citizens. In the 2015 book Transplantation Ethics, Second Edition (TE), Robert Veatch and Lainie Ross restate the WCO in the following manner:

For some, financial incentives – even modest, resistible ones – change the character of organ procurement from humane gift giving among fellow members of the human community to a more commercial, businesslike transaction.

The problem with the WCO is that buying and selling a certain good does NOT objectively signal estrangement, for the meaning of buying and selling a certain good is a contingent, culturally-relative social construct; in addition, it is NOT objectively morally wrong to insert estrangement into a relationship if the other party in the relationship is behaving in a non-virtuous manner.

3D. THE ESSENTIALIST OBJECTION (EO)

The EO asserts that buying and selling kidneys is objectively wrong in all possible societies, even if the relevant kidney market is operated in a just manner.

The problem with the EO is that there is overwhelming anthropological and sociological research demonstrating that the “rightness” or “wrongness” of buying and selling a certain good in a market is a contingent, culturally-relative social construct, NOT an objective fact about the nature of the universe.

3E. THE ARGUMENT FROM CIVIC RESPECT OBJECTION (AFCRO)

The AFCRO asserts that buying and selling kidneys is wrong if one’s society views buying and selling kidneys as objectively wrong.

The problem with the AFCRO is that one’s society can be fundamentally wrong about the nature and outcomes of controversial practices, so one is NOT required to adopt the moral codes of one’s society.

3F. THE SELFISHNESS OBJECTION (SO)

The SO asserts that buying and selling kidneys makes people more selfish and more corrupt.

The problem with the SO is that there is overwhelming empirical data from neuroeconomic, moral psychology, and behavioral economic studies proving that markets make people less selfish and less corrupt.

3G. THE CROWDING OUT OBJECTION (COO)

The COO asserts that providing cash for “donation” of a kidney reduces people’s intrinsic altruistic motivation to donate a kidney for free.  In TE, Veatch and Ross invoke the COO in the following manner:

A second unintended consequence could be that a living organ market might lead to “crowding out” – the phenomenon whereby fewer individuals would be willing to donate for free if a market existed concurrently.

The problem with the COO is that there are myriad ways to design a kidney market that will NOT reduce people’s intrinsic altruistic motivation to donate a kidney for free; for example, adding an option for the kidney seller to donate the cash payment to charity is a simple fix.

3H. THE LOW QUALITY OBJECTION (LQO)

The LQO asserts that kidneys should not be sold for profit because doing so causes lower quality kidneys to be used for transplantation than if kidneys were not sold for profit.

The problem with the LQO is that there is overwhelming microeconomic research showing that for-profit market competition leads to higher quality rather than lower quality goods.

3I. THE EXPLOITATION OBJECTION (EO)

The EO asserts that buying and selling kidneys encourages the widespread exploitation of (taking unjust advantage of) the weak by the strong.  In Resolving Ethical Dilemmas: A Guide for Clinicians, Fifth Edition, Bernard Lo appeals to the EO in the following manner:

In India, paid kidney donors reported that they were financially worse off after surgery despite receiving payments. … Although some writers have advocated a regulated market to decrease the gap between the need for transplantation and the supply of organs, documented exploitation, coercion, and abuse are a compelling reason to reject such proposals.

Also, in Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine, Seventh Edition, Albert Jonsen, Mark Siegler, and William Winslade utilize the EO in the following passage:

It is widely known that some organs transplanted at overseas hospitals originate from people who were not able to give informed consent to donation. Some examples are forced donation from prisoners (China), coerced living donation from spouses (India), living donation from those who are uneducated and unable to understand the risks and consequences (India, Pakistan, Philippines), and living donation from the poor who see such as a way of generating income to meet their daily needs (India).

Finally, in TE, Veatch and Ross apply the EO by extensively documenting organ trafficking crimes in sections titled “India and the Organ Market of Bombay”, “Pakistan”, “Bangladesh”, “China”, “The Philippines”, “Israel”, “Moldova”, “The United States”, and “Iran”.

The problem with the EO is that there are myriad ways to design a kidney market that will NOT allow exploitation of the weak. For example, to eliminate exploitation of the poor, one can require that kidney sellers have a minimum income before they are eligible to sell. AND, to eliminate exploitation of the uneducated/psychotic/mentally handicapped, one can require that kidney sellers pass an informed consent test before they are eligible to sell. AND, to eliminate exploitation of the foolish, one can require that all kidneys be sold for a minimum price. All variants of the EO can be met with similar solutions.

3J. THE PATERNALISM OBJECTION (PO)

The PO asserts that buying and selling kidneys causes people to make self-destructive choices involving kidneys.

The problem with the PO is identical to the problem with the EO. There are myriad ways to design a kidney market that will NOT allow people to make self-destructive choices. In addition, what an outside observer deems to be “self-destructive” behavior may actually be actions that are consistent with the relevant person’s long-term goals.

3K. THE MISALLOCATION OBJECTION (MO)

The MO asserts that buying and selling kidneys causes kidneys to be allocated unjustly.

The problem with the MO is identical to the problem with the EO and the PO. There are myriad ways to design a kidney market that will NOT allow kidneys to be allocated unjustly. For example, to eliminate the injustice of the poor not being able to afford to purchase kidneys, one can provide the poor with vouchers to purchase kidneys on the market.

3L. THE QUEUES ARE MORE EGALITARIAN OBJECTION (QAMEO)

The QAME asserts that buying kidneys causes kidneys to be allocated unequally, whereas queues (transplant waiting lists) cause kidneys to be allocated equally.

The problem with the QAMEO is that queues do NOT cause kidneys to be allocated equally, for waiting lists merely replace the currency of money with the currency of time.

4. PRACTICAL QUESTIONS

Many skeptics of compensated kidney “donation” ask complicated questions about the details of such a market. Such queries include the following: Who would decide how much a kidney is worth? Who would pay for the kidney? Who would pay for medical care for the kidney “donor” and buyer and for how long? These questions are fundamentally unanswerable, for no one can accurately predict the future (especially when one is speculating about the particulars of a market not yet in existence), but it is possible to provide an educated guess as to how currently existing institutions would react to the legalization of a compensated kidney “donation” market.

In the United States, excluding the kidney buyers and “donors”, the federal government and private health insurance companies would be the primary beneficiaries of legalization of a compensated kidney “donation” market, for the total cost of a kidney, a kidney transplant, and all associated acute and chronic medical care is less than the cost of long-term dialysis for the nearly 100,000 persons on the national kidney transplant waiting list. I predict the federal government would initially set the payment to a kidney “donor” at $45,000, based on the Held et al. study previously mentioned in this paper. The federal government, via Medicare, would pay for the kidney and all associated acute and chronic care, supplemented by the patient’s private health insurance company. The kidney “donation” program would then evolve in unpredictable ways.

5. CONCLUSION

In the final analysis, the demand for transplantable kidneys in the United States has not, is not, and shall not be met by the current legal supply options. Legalization of compensated kidney “donation” to meet the kidney shortage is supported by logic, economic cost-benefit analyses, and history. All objections to compensated kidney “donation” fail. The details of a compensated kidney “donation” system cannot be predicted with any accuracy, but the most likely scenario is for current institutions (particularly the U.S. federal government and private health insurance corporations) to commandeer the program. Ultimately, compensated kidney “donation” will become obsolete when 3-D printing of kidneys becomes feasible, cheap, and safe, but that is a topic for another paper.