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Medical Self-Defense and Bans on Payment for Organs:

As promised, I'm moving on to what is likely the most controversial part of my Medical Self-Defense article -- that bans on payment for organs violate patients' medical self-defense rights (which I argue are both constitutional rights and moral rights that legislatures ought to respect).

Here's the argument that the right is indeed implicated here, and that bans on payment for organs are therefore presumptively unconstitutional, at least unless the bans are the least burdensome means of avoiding very serious harms. In the next few days, I'll respond to some arguments that the bans are indeed necessary to avoid such harms.

To live, Olivia needs a kidney transplant. Though kidney dialysis is keeping her alive for now, each year on dialysis she faces a 6% risk of death: If Olivia is in her twenties, her expected lifespan on dialysis is 30 years less than her expected lifespan with a transplant.

But Olivia is one of the 67,000 people on the American kidney transplant waiting lists. (Twenty five thousand more wait for other organs.) The median wait for adult recipients added to the list in 2001-02 was over four years. Each year, only 6500 living Americans donate kidneys, and only 45% of the 26,000 usable cadaveric kidneys -- kidneys gathered from the bodies of people who die from accidents or other causes that leave their organs young and healthy -- are donated.

Nor should this shortage be surprising: Since 1984, "receiv[ing] or . . . transfer[ing] any human organ for valuable consideration for use in human transplantation" has been a federal felony. Price controls diminish supply. Setting the price at zero diminishes it dramatically.

Lack of compensation naturally makes living donors less likely to incur the pain, modest risk, lost time, and lost wages that accompany extraction of an organ. The relatives of the recently dead have less to lose tangibly from authorizing extraction of the decedent's organs; but even they may be put off by what strikes many as a macabre idea, may refuse consent if they're not positive what the decedent wanted, or may not want to discuss the matter in their time of grief. [Footnote: Similarly, people who don't sign a donor card may be turned off for emotional reasons, though far less intense ones. The prospect of essentially getting a free modest life insurance policy for one's relatives may be enough to help overcome such emotional objections.] The prospect of (say) $100,000 [for all their organs, to be used] for their children's college education[,] may lead them to overcome these barriers. [Footnote: Many people, of course, wouldn't sell a kidney during their lives, even if you offered them $100,000. But that's not a problem for an organ market; even if only 0.01% of adult Americans are willing to sell an organ each year, that would still bring an extra 25,000 organs into the system every year -- likely enough to clear out the waiting list, when added to the increased number of available cadaveric organs.]

Some people do donate organs. Though living donations are almost always for relatives, friends, or other known recipients, a few living donors (1.5% of the total) and many next-of-kin of the recently dead donate to anonymous strangers.

Yet kindness to strangers is generally not as strong a motivation as the desire for financial reward, or a combined desire to help strangers and at the same time put money aside for your children's education. [Footnote: The concern about the children's education may be especially strong if the organ provision is made possible by the death of a parent who was the children's main source of support, and the spouse is now facing raising the children alone.] We pay hospitals and surgeons well for their parts in the transplant. If we didn't, there'd likely not be nearly enough transplant services provided, though many hospitals are charitable institutions and many doctors routinely donate their time to free medical care. Why should we expect organ suppliers to provide enough organs based solely on charity to strangers? We'd likely get far better results if we offered organ providers compensation -- or, more precisely, offered them the choice of keeping the compensation, forgoing it, donating it to a familiar cause of their choice (for instance, their church) rather than to a total stranger, or spending it on their children.

Olivia is little different from Alice. To defend their lives, both need medical assistance. If the government may not interfere with Alice's getting this assistance, even in the service of protecting the life of a viable fetus, it shouldn't be allowed to substantially restrict Olivia's ability to get such assistance -- at least absent evidence that Olivia's actions would cause grave harm that can't be averted any other way. Limits on Sales as Substantial Burdens: So though the organ sales ban isn't a total transplant ban, it is a substantial obstacle to people's medical self-defense. It substantially reduces the number of available organs, and substantially increases the chance that the recipient will die before a matching organ is found.

Where most other constitutional rights are concerned, bans on using money (either from your bank account or from an insurance policy that you've bought) to help exercise a right are obviously substantial burdens on the right. Say a legislature let people privately educate their children, engage lawyers in their criminal cases, or get abortions -- but only if these services were provided free. Of course this payment ban would constitute a substantial burden on the underlying constitutional right: It would dramatically reduce the number of private schools, criminal defense lawyers, and abortion providers, and some people would thus be unable to exercise the right. Restrictions on paying money to speak have likewise been repeatedly struck down, because they burden speakers' ability to effectively convey their message. And if a ban on paying for one scarce input into the exercise of a constitutional right (teachers', lawyers', doctors', or authors' time, or space for a political ad in a newspaper) substantially burdens the right, then a ban on another scarce input (providers' organs) does as well.

A few such restrictions on paying money to exercise a right may be constitutional because there are very strong government interests justifying them. That was the Court's reason for upholding some modest restraints on spending money related to candidate elections.

A few other restrictions may be constitutional when the right is aimed at promoting goals that are served only by noncommercial exercise of the right: Consider the Compulsory Process Clause right to subpoena witnesses, the Due Process Clause right to call willing witnesses in criminal cases, and the Lawrence v. Texas sexual autonomy right. [Footnote: Lawrence does protect purely casual noncommercial sex, but I think it does so because the law can't distinguish such sex from emotionally significant sex.] I assume the law could ban paying witnesses or paying for sex on the grounds that such conduct tends not to advance the constitutional purpose of the rights -- procuring accurate testimony and helping develop emotional relationships. [Footnote: If I'm mistaken on this, then presumably the reason for upholding the bans on payment would be that there's a very strong government interest justifying the ban.] Paid-for testimony and paid-for sex aren't constitutionally valuable in the way that the unpaid conduct is.

But paid-for books, educations, legal counsel, abortions, and organs are constitutionally valuable, because they do serve the purposes of the underlying rights -- and more reliably than if these goods or services could only be provided for free. "It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest." Relying solely on the benevolence of lawyers, doctors, teachers, or organ providers likewise offers little protection for our rights. So long as a ban on compensating organ providers keeps many patients from getting the organs they need to live, it constitutes a substantial burden on the right to medical self-defense. Limits on the Right: The self-defense right, like other rights, isn't absolute. Modest regulations (informed consent requirements, waiting periods, and the like) that don't substantially interfere with the right should be permissible. The right may well be limited to situations where self-defense is necessary to avoid threat of death, or perhaps of very serious injury. The right is inherently limited to cases where it doesn't directly infringe the rights of others who are not threatening the person's life.

Moreover, the self-defense right may be limitable in other ways, if the harm from allowing it is too great; in the lethal self-defense context, for instance, this is the foundation for many pro-gun-control arguments. [Footnote: I'm skeptical of these arguments on empirical grounds, and I think it should take a great deal of harm to justify interfering with people's right to defend themselves, but I agree that in principle the right to possess the tools for lethal self-defense may be limitable. To give an example, felons may need to defend themselves at least as much as nonfelons; yet restrictions on felons' (especially violent felons') gun ownership are constitutional and morally permissible.] Likewise, the D.C. Circuit in Abigail Alliance remanded the case for the district court to hear arguments about whether the FDA rules were narrowly tailored to some compelling government interest.

Yet, as the abortion-as-self-defense and lethal self-defense examples show, self-defense ought only be limitable for the most pressing reasons. Protecting a viable fetus isn't enough. Protecting the life of an animal isn't enough. Protecting the life of an attacker, even one who's not morally culpable (for instance, because he's insane) isn't enough. These reasons can't justify denying people the right to protect their own lives. And even if there is a strong enough reason for restricting self-defense rights, the restriction ought to be narrowly limited so as to minimize the burden on the rights.

PatHMV (mail) (www):
We ban payments for donor organs because we do not want rich people to be able to exploit poor people out of their vital organs. There is a significant risk in donating a kidney. Not only is there general anesthesia, but should you ever be in an accident, you have one less redundant part available. If we allow for payment for donor organs, the practical result will be that most donations are made by the young and/or uneducated. Young high school dropouts needing a quick buck to marry the girl of their dreams, or just a new TV set. Young couples with more kids to feed than money coming in.

The perils of poverty can influence people to do things that they'd really rather not do. Organ donation should not be one of those things. We don't sell babies, either, for similar reasons.

I'd be willing to consider allowing payment for donation of replenishable material, like bone marrow (just as for blood plasma), but not for any vital, irreplacable organs. And I feel strongly enough about it that I would fight, with considerable energy, any attempt to change the law in this regard.

Of course, I'm not a libertarian. I favor usury laws and regulation of "rent-to-own" joints and "pay-day loan" operations. Its expensive to be poor, both because poor people have higher default rates and because there are many people out there waiting to take advantage of poor folks' economic desparation and (often) lack of education and fiscal sense.
11.9.2006 5:00pm
billb:
PatHMV: Would you allow the sale of cadaveric organs? Seems like it woudl give sufficient incentive to turn more people into organ donors without exploiting anyone.
11.9.2006 5:19pm
Daniel Chapman (mail):
I think the comparison to selling babies is inappropriate here. There's an added concern that we don't think "baby mills" should be a legitimate enterprise.

Not that that touches your larger argument that organ sales would lead to exploitation of the poor, but I figured I'd point it out.

I'd pick up on another point that you didn't touch on... kidneys might be redundant, but do we want poor young people giving their organs to rich old people? If organs have economic value, it would seem to remove a lot of that value to take a 25 year old kidney and place it in a 65 year old person.
11.9.2006 5:24pm
PatHMV (mail) (www):
Maybe. The need to protect cultural customs from certain types of economic exploitation is less than the need to protect living humans from the same. But frankly I would still have qualms about it.

I can imagine two scenarios I would find very unfortunate. In one, the widow, knowing that her late, too-early-departed husband didn't leave enough life insurance, sells his organs despite her deeply-held religious belief against such, because that's the only way she can think of at the highly emotional moment when the decision must be made to feed the kids or survive herself. If she later realizes that she could have gotten along fine without that $15,000, she may be filled with deep religious regret.

The other scenario is the woman who, in her grief, decides to honor her husband's wishes against organ donation, and then regrets it ever after and blames her subsequent poverty on that decision.

There are some decisions I think are important enough that they should not be based on economic concerns. Organ donation is one of them.

But, as I say, my opposition to the sale of cadaveric organs would be less. There are plenty of circumstances where all concerned would be happier for the money and could care less about their deceased's organs. What concerns me there is mostly the emotional state of mind of the person making the organ donation decision. Immediately after the death of a spouse or child or parent is not when we find our fellow humans at their most rational.
11.9.2006 5:28pm
Matt Tievsky (mail):
PatHMV: There is a significant risk in donating a kidney.

billb is right to point out that this criticism doesn't apply to the sale of cadaveric organs.

Moreover, it does apply to live organ donations. So why should those be permitted while paid live organ sales are forbidden? I guess you answer is:

The perils of poverty can influence people to do things that they'd really rather not do.

If a poor person would sell an organ but for legal prohibition, it is something he'd "really rather do." I assume you mean it's something that he shouldn't prefer to do, i.e., poor people are going to act foolishly at the sight of money. But why is that any more likely than the prospect of foolish organ donations?
11.9.2006 5:29pm
PatHMV (mail) (www):
Daniel, I don't mean to suggest an equivalency, but I think many arguments apply very similarly in both places. Reproductive rights are pretty sacrosanct, too, though perhaps not quite as much as the self-defense right for which our host argues. So if one couple wants a baby, and another couple (or young teenage girl) has a baby she doesn't want, why not encourage her to sell it? There are a lot of young mothers who might be highly influenced by that choice. Given the choice between spending $400 on an abortion or getting $10,000 or $15,000 for 9 months of carrying the baby to term, I'm sure it would increase the number of babies available for adoption. It would also probably reduce the number of babies being poorly raised by women who didn't really want to be mothers.
11.9.2006 5:33pm
Daniel Chapman (mail):
And if they got 10 grand the first time, why not have another? There's the problem.
11.9.2006 5:36pm
PatHMV (mail) (www):
Matt, there are a great many limitations we place on the market because we want to discourage particular choices which, we know, some people would make.

One of the reasons we limit prostitution so much is because we know that many more women would become prostitutes if it were legal, and we don't the women of our country to sink to that level. We don't want our country to look like a Thailand, where young women (girls, really) join up with brothels just to keep their family fed. That's a short-term economic advantage for them, but it is not, in the long run, terribly productive economic activity for the society. So we discourage it.

And leaving aside uber-rational distinctions about "forcing" people to do stuff, the simple fact is that being poor functionally leads many people to do things which most people find distasteful. But quibbling over that notion will lead us only into a debate over the merits of libertarianism as a philosophy. As I said, I'm not a libertarian. Were I a pure libertarian, I would support Eugene's argument. But I'm not, and I don't.
11.9.2006 5:39pm
PatHMV (mail) (www):
Daniel, that could apply to kidney sales, too. Once we adopt Eugene's principle argument, who are we to say that the young idiot can decide to donate one kidney but not two? If he'd rather have $10,000 now and a lifetime of dialysis, why not?

For that matter, what if I'm contemplating suicide and want to pre-arrange the sale of my heart and lungs to Donald Trump? Why can't I freely decide to make that economic transaction?
11.9.2006 5:42pm
Matt Tievsky (mail):
PatHMV: Sure, there are times to limit choices in the marketplace. But is this one of those times? I don't think talking about prostitution helps us very much in the discussion. I responded to your argument and all you've really said is:

the simple fact is that being poor functionally leads many people to do things which most people find distasteful.

But is that sufficient reason, in this case, to forbid live organ sales? I don't think so. Being poor is itself "distasteful." Poor people with the option to sell their organs are presented with two distasteful choices, so distaste isn't a very good reason for eliminating only one of them. Moreover, why should one person's concern with the distaste of another person's choices be reason enough to proscribe them? Finally, and most importantly, thousands of people die every year for lack of organs. Is it worth letting them die in the name of good taste?
11.9.2006 5:48pm
Dick King:

I'd pick up on another point that you didn't touch on... kidneys might be redundant, but do we want poor young people giving their organs to rich old people? If organs have economic value, it would seem to remove a lot of that value to take a 25 year old kidney and place it in a 65 year old person.


My utility curve for kidneys is steeply concave upwards. I suspect it's the same for you. Even though the 25 year old has more life ahead of him than the 65 year old, his second kidney is worth a whole lot less to him than it would be to the 65 year old as a sole kidney.

-dk
11.9.2006 5:54pm
Fub:
Daniel Chapman wrote:
I'd pick up on another point that you didn't touch on... kidneys might be redundant, but do we want poor young people giving their organs to rich old people? If organs have economic value, it would seem to remove a lot of that value to take a 25 year old kidney and place it in a 65 year old person.
So how about organ rental?

25 year old rents kidney to 65 year old until 65 year old dies, then (former) 25 year old gets it back. Contracts could be written to cover that.

Obviously there are medical risks involved in both initial transfer and return of the kidney, but the first of these is inherent if the kidney is donated as well.
11.9.2006 5:55pm
PatHMV (mail) (www):
First off, we're not "letting them die", anymore than we are "letting die" all the people who die due to DWIs or gun violence because we decide not to completely ban cars or guns. Society is not responsible for those deaths. The illness or accident which damaged their kidneys or hearts or lungs is responsible for the death.

There are 2 competing interests here. One is the right Eugene has focused on, the right of the person who wants an organ. The 2nd is the interest of society in protecting weaker individuals who are less in a position to understand, protect, and act in their best interests. Society has a legitimate role in balancing those two competing interests through the law.

And my concern over live organ sales is not about "distaste". There are real and concrete physical risks to kidney donation. Yes, it's pretty safe as major surgeries go, but practiced on a large enough scale, and somebody's going to die from it.

Let's talk about details of that, for a moment. Will organ buyers be required to purchase life insurance for the donor, should a complication arise? Will the buyer be required to purchase long-term care insurance so that, if the donor ever loses his other kidney, funds are available to pay for his lifetime of dialysis or his own purchase of somebody else's kidney?

And will we subsidize poor people so they can buy organs, or will only rich people be able to get them? I see some REAL class warfare over that point. I don't want to live in a society like that.
11.9.2006 6:10pm
CynicPerry:

One of the reasons we limit prostitution so much is because we know that many more women would become prostitutes if it were legal, and we don't the women of our country to sink to that level. We don't want our country to look like a Thailand, where young women (girls, really) join up with brothels just to keep their family fed.


Right... you are claiming there is an objective problem with someone being a prostitute - that simply because someone has sex for money, it makes them objectively "less" somehow - but it is really only a subjective opinion.

In many people's opinions, being a politician makes someone subjectively less trustworthy, and all around "slimy" - your argument could be applied to any profession of activity that in someone's eyes is "wrong", "immoral", or "shameful".

The only reason that prostitution is illegal in most portions of the United States is because our laws regulate customs based on Judeo-Christian morals - not because there is anything objectively wrong with letting someone pay you for sex - after all, what is marriage without love?

Back to the main point, what we as a nation choose to regulate are those things which we subjectively don't like to think of someone doing - why not let people make their own choices, however misguided they may be, as long as they are informed. I have no problem with laws requiring someone to be fully informed prior to making a decision, but you should never take such a decision away from them.
11.9.2006 6:24pm
Dick King:
There is one point that should be noted, assymetrical information.

We used to pay blood donors but we don't any more because we don't want to give people who engage in behavior that carries high risk of infection incentives to conceal such behavior from the screener. At the blood bank I go to, when I donate blood they give me a pair of self-adhesive labels with bar codes, hard to read for a human, one labeled [next to the sticker but not on it] "use" and one "don't use". That lets me go through the whole process yet secretly tell the blood bank to discard the unit. This allows high-risk donors who visit blood banks in a social group to conceal their high-risk behavior from groupmates. Testing the blood is not a complete solution because there are infectious particles present at least weeks before the tests can show antibodies.

This problem may apply to kidneys too. A poor person who indulges in high-risk behavior but who has found a market for hir kidney has every incentive to conceal hir behavior. Perhaps not so much to cadaver kidneys -- the fact of the high risk behavior may be known only to the deceased -- but family members may know about his sex habits but may conceal them, and a person who enjoys high risk behavior is more likely to do whatever it is he needs to do in his state to mark his organs for donation if he thinks it'll get his family some money at the expense of someone he doesn't care about.

-dk
11.9.2006 6:27pm
Greg Hamer:
Doesn't the constitutionality argument only apply to the person that needs the kidney? They should be able to buy one, but the government could still wipe out the market for kidneys by penalizing donors if it wanted, as donors have no life threatening need to enter into the transaction.
11.9.2006 6:35pm
PatHMV (mail) (www):
Perry... because we want to shape the type of society we live in. I'm sure there are some lovely parts of Thailand, but I don't want to live there. If we were to legalize prostitution, then prostitution will be more prevalent, yes? I don't want to live in a society with more prostitution, and I'm willing to accept a modest limitation on my and other's freedom to contract in return for that.

But this thread is not, I think, a place to argue about the fundamental question which divides libertarians from conservatives (and even more from liberals). I have fully conceded that under a purely libertarian analysis, this is an acceptable idea. I just fundamentally disagree with the idea that goverment should never regulate contracts between 2 individuals or limit the objects of such contracts.
11.9.2006 6:38pm
marghlar:
There are 2 competing interests here. One is the right Eugene has focused on, the right of the person who wants an organ. The 2nd is the interest of society in protecting weaker individuals who are less in a position to understand, protect, and act in their best interests.

There is nothing about this statement, or almost any other argument you've made, that couldn't be cured by requiring informed consent before donation -- i.e., you can require people to watch videos about the potential harms, read government pamphlets, etc etc. Given that we already make it a tort to operate on anyone without informed consent when that operation causes harm to the patient, it seems like all we'd need to do is enforce the law as written, and maybe add some extra oomph to the informational requirements, to keep anyone from being manipulated.

If, after someone has deliberately, carefully evaluated the consequences, they still want to do this, how can you say that they should not be able to? What gives you the right? Because not everyone agrees with you that it is inherently degrading to sell your organs. Indeed, I'd suggest that it is unethical in some circumstances NOT to sell your organs.
11.9.2006 7:03pm
dweeb:
Restrictions on paying money to speak have likewise been repeatedly struck down, because they burden speakers' ability to effectively convey their message

and then came McCain-Feingold.....
11.9.2006 7:15pm
dweeb:
Once we adopt Eugene's principle argument, who are we to say that the young idiot can decide to donate one kidney but not two? If he'd rather have $10,000 now and a lifetime of dialysis, why not?

Why not? Because, if the second $10.000 is that important to him, it's a safe bet you and I will be paying for the dialysis. Which brings up another question - the price of a kidney is not likely to pay for the care of a donor who loses the remaining kidney - who should pay for that?
11.9.2006 7:17pm
dweeb:
Right... you are claiming there is an objective problem with someone being a prostitute - that simply because someone has sex for money, it makes them objectively "less" somehow - but it is really only a subjective opinion.

No, it's not. There is ample empirical evidence that prostitution harms/diminishes the participants in objective ways other than moral. Try as people might, around the world, legal or illegal, no one's found a way to divorce prostitution from the individual and social problems that always accompany it. This is why many people who have no moral objection avoid participating anyway.
11.9.2006 7:21pm
Wintermute (mail) (www):
This is the exact breach Al Gore, Jr., leapt into long ago, one of several things he did that diminished my respect for the way he was running his political career.
11.9.2006 7:24pm
PatHMV (mail) (www):
And not everybody agrees with me that prostitution should be outlawed, marghlar. As I said in the other thread on this topic, I think this is a matter of values, what kind of behavior we want to encourage or tolerate in our society.

And few of my concerns can be addressed by "informed consent" provisions. I believe that there is such a thing as economic coercion, and it is appropriate for government to decide to protect poor people from some forms of economic coercion because of the dangers or harms or distasteful aspects resulting from such coercion. If you don't believe that, fine. You're a fine, rigorously-thinking libertarian. But you also can't oppose usury laws, regulation of rent-to-own places (beyond truth-in-lending requirements, at any rate), and other protections we enact to prevent the unscrupulous from profiting from the economic foolishness of many of the poor.

Dweeb... that goes back to the other point I made, whether the buyer of the organ is required to purchase life, health, and disability insurance to cover the future costs of complications, immediate or much later, experienced by the donor.
11.9.2006 7:26pm
PatHMV (mail) (www):
To amplify, marghlar, my argument is not that the poor will be manipulated by being lied to about the complications, but that they will be manipulated into doing something that they don't really want to do, just because of their economic circumstances.
11.9.2006 7:27pm
marghlar:
By definition, if you sell your organ, you want to do it. If you didn't, you wouldn't sell, as no one is holding any guns to anyone's heads. Now, you might say that, if they were not poor, they would not choose to enter those transactions. And I would agree, because the utility of a fixed amount of money rises as we have less available captial and income. But that is an indictment of the level of poverty we choose to tolerate as a society, not of the fact that some people who are poor might prefer having $20K than having a second kidney. Outlawing organ sales won't make poor people middle class; it will just deny them an opportunity to make a trade they would prefer to make.

So what is the cost? People are doing that which by definition they prefer to do. They are doing it with full information. (I'll even give you a wait-and-think period if you want.) Thousands of lives are saved every year as a result. And the only harm is that some people find it "distasteful?" I find it distasteful to let people die because you are squeamish.

If I had to choose between keeping all my organs, and selling one to pay for a needed medical procedure for a family member, and I couldn't afford that procedure any other way, I would say that I was ethically compelled to make the sale. I'm sure that you can imagine a price or circumstance under which you would feel that selling your organ was a worthwhile trade. If you can, what right do you have to tell people who really do feel that such trades are worthwhile given their circumstances that you won't let them do it?
11.9.2006 8:16pm
marghlar:
To amplify: I'm not a libertarian in the strong sense (I'm not anti-tax in the militaristic way of many libertairians, and I think that government regulation is necessary to make many aspects of the economy function smoothly). I am a libertarian in the weaker, Millian sense, that I would generally like to let people govern themselves to the degree that they are competent to do so and not exporting harm onto other people. I don't think those conditions are satisfied with respect to prostitution, or organ sales, because I think lesser forms of regulation than an outright ban would protect all third-parties at risk in those transactions, and I prefer disclosure rules to deal with the informational defects that might put individuals at risk of entering bargains that are harmful to them.

So yes, I'm not a fan of laws that limit the substance of transactions with the poor, as opposed to the information that must be communicated to them. To be sure, I also support government programs targeted at reducing or even eliminating dire poverty, from public education (I want more of it, and better), to targeted tax credits and unemployment assistance. But so long as people aren't starving to death or dying for lack of medical care, I'd like to let them make their own decisions about what they ought to value. Because, in the end, I think we make better moral agents by letting people reason for themselves than by imposing our own vision of the good upon them by force.
11.9.2006 8:27pm
PatHMV (mail) (www):
What you see as "imposing our own vision of the good" in this case I see as "protecting them from exploitation".

Child laborers work "voluntarily" in many countries, too. Their parents want them to, they want to in order to help their families. But we forbid that, because we don't think that child labor is a good thing for society as a whole.
11.9.2006 11:46pm
marghlar:
Child laborers, by legal definition and by practical necessity, are incompetent to make serious decisions such as whether or not to quit school and work. You can't make an informed bargain with an eight-year-old about whether or not he should work in a mine to support his family, because he is incapable of grasping the consequences.

And yes, I'd agree that child labor externalizes nasty costs onto society. Parents get to take advantage of income, and usually suffer little immediate harm from the lack of education and the physical detriment suffered by children who are in the workforce from a young age. Aggregate effects on social wellbeing from widespread child labor are really nasty.

I hope you are not suggesting that all poor people are unable to grasp the consequences of organ donation, even after having the procedure carefully explained to them by a medical expert. Such a postion is hardly credible.

Thus, we have to ask whether paid organ donation is likely to impose the kind of costs on society that child labor would, in order to justify the large restriction on contractual freedom that you are proposing that we maintain. I just don't see what the signficiant social harm of paid organ donations are. If the consent is informed, you can't say that it is harm to the donors, because by definition they prefer it to their present situation. It is very beneficial to the recipients. And although it does increase the risk of a small segment of the workforce being unable to contribute labor effectively because of increased risk of illness, that may well be offset for the most part by productivity gains from recipients, so it's hard to see a large aggregate cost to social welfare from the system that Prof. Volokh is proposing.

Maybe you can help me out -- where is the concrete harm? Up until now, all I can see as your basis for disapproval is that you don't like the practice particularly -- but no one is demanding that you engage in it. How will people be harmed by this, if consent is informed and no one engages in it who does not prefer it to their alternatives?
11.10.2006 12:57am
American Psikhushka (mail) (www):
Limits on the Right: The self-defense right, like other rights, isn't absolute. Modest regulations (informed consent requirements, waiting periods, and the like) that don't substantially interfere with the right should be permissible. The right may well be limited to situations where self-defense is necessary to avoid threat of death, or perhaps of very serious injury.

Are you assuming imminence? If you are you might want to mention it. As I've stated ad nauseum in the other threads there is no self-defense without imminence. Without imminence society degenerates into a "he looked at me funny, so he needed killin'" type of thing. State-sanctioned murder or violence as long as one was ready to come up with fraudulent justification. (You might even create a market for services providing fraudulent justifications - like illegally wiretapping someone's house and harassing them until they said something angry, then claiming you were in "danger".)

Re: organ markets, etc.-

There are also some other criminal and unethical behaviors that may be incentivized once a legal organ market is set up. The organ sales become an economic incentive for homicide, like insurance policies. Plus it might become an incentive for medical personnel and others to forge or fraudulently obtain donor agreements. (Although the latter may exist already under the voluntary system.)
11.10.2006 1:08am
srp (mail):
PatHMV's argument has no substance. I can call any voluntary choice "coercion" if I want, but it is a complete misuse of the term. Adding an option to a poor person's opportunity set in a non-bargaining context can't hurt that person. The problem is that PatHMV doesn't respect the agency of people who haven't made enough money in his eyes.

Live donation of kidneys entails risks of surgery, but no more than nose jobs or liposuctions. Should the poor be banned from those as well? If donating a kidney for pay enabled a person to move to a safer neigborhood, thereby increasing his life expectancy, would it then be okay for him to do so? The kind of paternalism PatHMV advocates runs aground on these sorts of comparisons.

Finally, and very much as a second-best option, the anti-poor paternalists like PatHMV should be willing to accept a solution in which the only payment for donors is an income tax holiday, since only those with significant earnings pay income taxes. Then rich people would be donating to poor people (since kidney patients--the recipients whose lives need to be saved, in case anyone's forgotten them--skew poor). Of course, the egalitarians will then complain that only rich people are able to benefit from kidney donation, but it's hard to keep all the crackpots happy at the same time.
11.10.2006 3:23pm