pageok
pageok
pageok
Payments for Organs, Medical Self-Defense, and the Risk of Organ Robbery:

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the risk of organ robbery; in future posts, I deal with arguments that banning payment is needed to keep rich patients from "jumping the queue," to keep poor providers from being improperly exploited, or to avoid supposedly inherently improper "commodification" of the human body.

Throughout all this, remember: The constitutional, moral, and policy question isn't just whether some possible harm may flow from payment for organs, but rather whether avoiding the harm is reason enough to interfere with people's right to protect their own lives, and to support a system under which thousands of people die each year -- the best source I could find reported 8000 deaths -- for lack of an available organ.

The risk of organ robbery, for instance, cannot justify the ban on compensation for organs. Consider by analogy the risk that some will mask murder by falsely pleading self-defense. The risk might justify rules requiring that defendants prove self-defense by a preponderance of the evidence, though such rules burden people's legitimate self-defense rights by raising the risk that legitimate defenders will be erroneously convicted. But the risk doesn't justify flatly rejecting self-defense, even though such a rejection may more efficiently deter and punish murders; courts must still resolve self-defense claims case by case. Some sacrifice of the interest in preventing murder of people who are falsely said to be attackers must yield to the constitutional and moral interest in preventing murder (or rape or serious injury) of people who are truly being attacked.

The same preference for case-by-case identification of abuse rather than blanket prohibition of a form of self-defense should apply to the similar argument that paying for organs will prompt murder of people for their organs. There's no need to flatly ban compensation, when regulation of organ transfer could do a very good job, for instance if the law required that (1) all organs be extracted by a well-established hospital, (2) a living organ provider, or the relatives of a deceased provider, approve the provision by signing a document in front of some official, (3) the provider's blood sample be taken and securely stored so the organs' DNA can be matched against the provider's, and (4) all organ transfers be tracked, and done among well-established institutions. [Footnote: The law might also bar importation of organs from countries where these rules aren't followed. Allowing a regulated organ market may also dry up the international black market in organs, which exists largely because dying people can't buy organs legally.] And if some rare transplant-related murders still happen despite this, that isn't reason enough to maintain a system that causes 8000 deaths a year through lack of available organs.

[Footnote: A body's organs, put together, are unlikely to be worth more than $100,000. Only very rare American doctors would risks punishment for conspiracy to murder for $100,000, especially when organs are closely tracked. Heirs, to whom $100,000 might be worth more, might still kill a spouse, parent, or child to sell off the organs. But this is just a rare cousin of the existing temptation to kill a relative to collect insurance or inherit property, yet we don't ban life insurance or inheritance, relying instead on the criminal law to deter the murder (especially because the greedy relatives know they'll be among the first suspects).... ([T]he average American life insurance policyholder has about $150,000 in coverage); ... the median net worth of American families in which the family head is 45 or older is over $150,000.) Even a risk of providing an incentive to murder isn't enough to justify interfering with families' economic well-being—and neither should it be enough to interfere with organ recipients' ability to protect their lives.

The risk that payment for organs will give some an incentive to commit suicide so as to leave money to their families, is likewise just a rare analog of the incentive provided by life insurance. Many life insurance policies cover suicide, especially when the suicide is more than two years after the policy is bought.]

PatHMV (mail) (www):
Eugene, do you propose that the government will subsidize the purchase of organs for poor people? Or will only the rich be able to obtain them?

Taking cadaverous donations for a moment, suppose there are 2 tissue matches for the deceased motorcyclists heart. One is poor and being given care either through Medicare or through a fairly limited private insurance policy. The other is quite wealthy. To complicate the picture further, the poor guy is higher on the UNOS registry than the other (i.e., is at greater risk of imminent death than the rich guy is). Who gets the organ? Does the motorcyclist's widow have to decide whether to give of her loved one generously or to look out for herself and her kids?

I appreciate your thorough and highly rational argument, but I think this is much more a question of values than rationality. Mankind in the market can be pretty rational a lot of the time, but there's a lot of irrationality out there, too. This is an area where, I believe, the strong would exploit the weak, inevitably. I just don't agree that organs should be treated as a cash crop.
11.9.2006 6:16pm
dirc (mail):
Hmm. I have a feeling that I am missing something here.

As I read it, you are arguing that "medical self-defense" gives people the right to buy and sell organs. But you are also saying that the government has the right to regulate the market resulting market in organs, in so far as it can specify the conditions under which the organs are removed, records that must be maintained, etc.

If the government has the right to regulate the market in organ transfer, does it not also have the right to regulate other aspects of the market, such as price? Couldn't the law just say (as it does now), that the maximum price that an organ can be sold for is $0.00? The right to medical self-defense is limited to those who win the organ lottery.

Is there some constitutional right for people to be able to enter into any contract that they wish? I don't think so, for if there were, then the minimum wage law, which restricts the contracts that can be formed between employer and employee, would be unconstitutional.

And even in cases where there is a fairly clear constitutional right, such as speech or gun ownership, the government has been able to regulate the ownership of guns (including banning entire classes of weapons) and speech (McCain-Feingold limits expenditures on political speech).

It seems to me that even if you make the case that there is a constitutional right to organ transfer ("medical self-defense"), there is still no constitutional right to buy and sell organs.

What am I missing?
11.9.2006 6:26pm
Curmudgeon:
The 'evil doctor' harms are a red herring. The health care industry already sells a organ + installation bundle.
11.9.2006 6:36pm
TWL (mail):
dirc-

That argument applies to all rights - why not set the maximum price for an abortion to $0? Or for a firearm? Or for legal fees?

"Rights" need to have some substantive force or they are meaningless. If you have a right to medical self defense, then of course you have a right to spend money on that defense, subject to at most reasonable restrictions.
11.9.2006 6:40pm
dweeb:
In this topic, I've read a few things from the author and commenters that I'd like to respond to:

EV:The broad acceptance of the abortion-as-self-defense right should be no surprise.

It's not that broad. Religions possibly comprising a majority of the world population (Catholicism, Islam, most Fundamentalist Christian denominations) do not make this exception.

COMMENTER:It strikes me that in "emergency" self-defense situations, we give the self-defender latutude to use more force than may be strictly necessary.....But when you have more time for planning and force-calibration there would seem to be less of an excuse for excessive use of force (such as killing a fetus when delivering it would have the same effect).

There's another aspect to this - when the scenario plays out slowly enough for planning, etc., there's also time to evaluate the comparative threats. I've spoken to medical professionals on this, and no one has yet come up with a scenario where a viable pregnancy (i.e. one where the fetus is not doomed, as it is in an ectopic pregnancy) presents a threat of certain death to the mother. It's always a question of increased risk of death to the mother, but the fetal survival rate for abortion is zero by definition. Thus, it becomes a case of lethal self defense against a PROBABLE threat, more akin to hunting down and killing a would be stalker before he/she actually gets violent, or shooting someone for smoking in your presence. The most common case these days is like your hypothetical Ellen - a pregnant woman is diagnosed with cancer, and delaying treatment until delivery lowers her chances. The problem with this is that there are textbook ideal cases of early detection and treatment that fail to save patients, and then there's Lance Armstrong, who waited until his testicles were the size of lemons and he had lung and brain metastaces to see a doctor, and yet he's fine.

COMMENTER:It is a shame that you prefer to devote your time to justifying legalization of the sale of organs, which will benefit a relatively small number of wealthy westerners, rather than arguing that these rights should extend to the tens of millions of people who would benefit from the invalidation or subordination of the pharmcos' intellectual property rights.

There's a BIG difference. This discussion assumes allowing people to sell organs will INCREASE the supply of organs for transplant.(more on that below) Invalidating or subordinating the pharmcos' IP rights pretty much guarantees that R&D in new drugs will drop to zero.

The better argument surrounds the questions of who gets to sell the organ, and who decides when someone's organs are for sale. Organ transplantation has already created a disincentive to save critical patients, and there is ample anecdotal evidence that the prospect of organ harvesting influences diagnoses of brain death. We should be wary of adding a profit motive to that conflict of interest.

Poverty and disparate wealth bring up other concerns. This post talks of the risk of murder for organs, which I don't see as any worse when they can be sold, but doesn't this present a scenario for what many would see as effectively murder or organ stealing - applying economic duress? Say the owner of a bank needs a kidney, and his bank holds the mortgage of someone who is a tissue match - could he fabricate a reason to foreclose, thus creating a dire need for the 'donor' to sell what he otherwise might not? There may be many circumstances where someone needing an organ can manipulate circumstances so that the economic windfall one might not give up an organ for becomes a necessity of economic survival. Selling organs is a form of selling one's body, and given the number of women who enter prostitution less than willingly, is there any reason to believe this other form of body selling would be any different?

There's one other thing I don't see being addressed. Would there really be the benefit EV claims? What basis do we have for the assumption that there would be widespread willingness to sell organs where there was none to donate them? Remember, most people refuse donations of their loved ones' organs for emotional or belief structure reasons, and reducing it from a noble act of charity to a crass economic transaction is only likely to increase their 'yuck' factor. Those whose greed outweighs the greater objection probably wouldn't have cared in any case.
11.9.2006 6:56pm
Elliot123 (mail):
Any of us can regularly sell blood at the local blood bank. Has anyone noticed warehouses full of kidnapped folks chained to gurneys while their blood is drained and sold by greedy criminals? Perhaps this is a possibility, and we all would be better off if we halted the sale of blood.

And those rich folks? Can't they buy more blood when they need it?

It might also help if we outlawed donations of organs. That might be incentive for some evil-doer to blackmail a potential donor for the benefit of his partner in crime.
11.9.2006 7:18pm
dirc (mail):

"Rights" need to have some substantive force or they are meaningless. If you have a right to medical self defense, then of course you have a right to spend money on that defense, subject to at most reasonable restrictions.

TWL -

Thank you for the explanation. So the whole argument comes down to what five Justices of the Supreme Court will think is reasonable. Now I understand the purpose of Dr. Volokh's article. It is to persuade the Justices that restricting the price of organs is unreasonable.

Permit me a moment of cynicism when I suggest that a right that depends on what five Justices think is reasonable is not much of a right at all.

Can the Legislature pass a law defining what is reasonable (including setting a maximum price of $0.00 for organs), and can the Justices ignore that definition and impose their own judgment? I think I already know the answers to those questions. Yes and yes.
11.9.2006 7:27pm
Eugene Volokh (www):
Dweeb: As I mentioned in my original abortion-as-self-defense posts, the view that abortions should be banned even when the mother's life is at stake gets 9% to 15% of the vote. 85% to 91% support strikes me as pretty broad. On top of that, as I mentioned, all the pre-Roe abortion statutes had life-of-the-mother exceptions, and even Chief Justice Rehnquist took the view that such an exception was constitutionally mandated. Put it all together, and it's about as broad agreement as you're likely to get in America on nearly anything.
11.9.2006 7:32pm
Sammy Finkelman (mail):
What I would compare this to is embryonic stem cell research, except that in this case, the ethical issue uis real. Embryonic stem cell research has a fasination to some people because this is an issue that * conservative Christians and some politicians come down on the wrong side of.

* That is, it would be the wrong side in the eyes of most people WERE IT TRUE - or even likely - that it could provide a cure, but actually this is not true and it is a big scam. But some political activiists like it because it gets conservative policians coming down on the minority side.

Of course the problem is that someone giving an organ might be endangering their own health, so you don't want to giove too much of an incentive to do that. But that's the case against it. That maybe realluy nobody should ever do this - well you would not say now, but you need real volunteers. THEY SHOULD NOT BE PAID ANY MORE TAHN PEOPLE ARE PAID TO JOIN THE ARMY..Wait a second? They *are* paid. Even though they risk their life. Or maybe the idea is that people wouldn't properly evaluate the risk they are taking.

It is not really a problem that rich peoople in the U.S. could pay for it since medical insurance could cover it or it could be deemed an emergency ,just like now. All other people are paid now so this would just be an additional cost.

I might point out that in China, organsa *are* harvested and people are snetenced to death but the death sentences delayed until an organ match is found. This practice actually probably prevents many executions. UIn other cases the death senetences are carried out anyway but the organs are harvested.

Buying organs ia something taht could save lives, for real, and not in the future but right now, but I would bet you taht most of the people in favor of embryonic stem cell research would come down on the other side of it.

I wonder what would hapepn if ads were made showing sick people or even dying people who could get a cure if only they were allowed to buy organs?

But anyway, next time somebody gets attacked in a political ad for opposing embryonic stem cell research, maybe they could get their opponent on record against buying and selling organsa and then make ads about that.
11.9.2006 7:43pm
Mho (mail):
Eugene,

This has nothing to do with your discussion of rights, but is related to using a market mechanism of sorts to encourage organ donation. I was thinking that it might be helpful if the law allowed that those who checked off organ donation on their drivers licenses should be given preferential treatment on organ donor lists should they ever end up on one. I understand that this places certain religious people at a disadvantage, but as one coming from such a religion I have little sympathy for that argument. (You're unwilling to donate an organ, but willing to accept one? Gimme a break.) In any case, I think if people knew that their position on any organ donor list depended on what they check on their driver's license, I think the supply of organs would dramatically increase.

Sorry for offering this off-topic, but it's something I've been thinking about for a long time. Other thoughts would be welcome.
11.9.2006 7:49pm
Mike BUSL07 (mail) (www):
Anyone ever see that movie, "Dirty Pretty Things?"
11.9.2006 7:55pm
TWL (mail):
dirc-

Well, of course, in the end everything comes down to what you can convince five Supreme Court Justices to think. My point is that, logically, if you have a right to organ donation, then holding the amount you can pay for an organ low enough such that none would be sold is exactly as constitutional as mandating a maximum fee for legal services low enough such that none are provided. It strips away the substance of the right - it would be akin to arguing that "rights" only apply to demand, and that supply can be restricted however you please.

"Sure, you can have a lawyer . . . if you can find one!"
11.9.2006 7:56pm
TWL (mail):
Mike-

Indeed. The black market for organs is pretty ugly.
11.9.2006 7:58pm
Elliot Reed:
Doesn't the experience with markets in blood demonstrate that letting people sell organs will actually decrease the number and quality of organs available? Basically, people may be less willing to sell organs for money than they would have to give under a no-sales regime (because selling an organ is not giving an irreplacable gift of life, but is simply an economic transaction, and even giving an organ for free becomes equivalent to giving money). Surely maximizing the quantity and quality of organs available for donation is a compelling state interest and this law is narrowly tailored to meet that interest.
11.9.2006 8:00pm
e:
Borrowing from a Dr. Jarvis, isn't there an inherent problem in treating necessary health care on the commodity market? My gut tells me that we need disparate levels of treatment to ensure innovation. Cheaper diagnostics may result in increased demand, but no individual will buy more than one heart (or a bigger and trendier heart) because the price goes down.

I do need to go back and read the basic self-defense threads, but the whole premise seems flawed (unless you're simply writing against the logic of abortion). Self-defense isn't a right not to die.
11.9.2006 8:21pm
TWL (mail):
Elliot-

I'm sure that depends on the price. You are absolutely right about blood - once you commoditize something, the supply will depend on market conditions. In particular, at some prices the supply will be quite low, even lower than the "charity" supply. At other prices, the supply would be higher.
11.9.2006 8:21pm
ReVonna LaSchatze:
The constitutional, moral, and policy question isn't just whether some possible harm may flow from payment for organs, but rather whether avoiding the harm is reason enough to interfere with people's right to protect their own lives

I for one don't accept the way you are framing the issue -- "people's right to protect their own lives". Due to the possible harm of commercializing human sales, society may conclude that no sales, period. Think of the potential harm to those who are at risk of possibly having their organs unconsentually harvested -- society may conclude they too have a right to protect their own lives in advance, hence the legislation banning organ sales, notwithstanding the sophisticated yet ultimately transparent issue set forth here.

I read an article this morning about Israel, where the religious conflict between Orthodox tradition affects organ donation. Almost 1/2 -- 50percent -- of organs procured for Israelis that are currently transplanted come from abroad.

Perhaps if society rejects the commercialization and works rather to change minds on tradition, that more societies could be self-sustaining re organ transplants. If the culture rejects the practice, none would benefit (possible receipients) yet none would potentially be at risk (those most vulnerable to being exploited).

Like slavery, the problem rests with the cultures that would consume human capital, yet are unable to provide within their own culture. The "self defense" -- pursuing individual freedom -- angle is ultimately a myth where it concerns on trafficking in living human flesh. Society has a right to reject this practice, and punish those who participate -- even consensually as to discourage the practice overall and possible exploitation.
11.9.2006 9:51pm
rfg:
Two points I would like to make:

First, I feel that the basis for forbidding organ sales has more to do with the view that organs are a priceless commodity- priceless in the sense that the donated ogan will literally give someone their life back. Since we do not normally place a value on human life (yes, I know we do in some cases, such as lawsuits for wrongful death, etc, but this is the exeption, not the norm)the organ is literally priceless.

Second, Prof Volokh states "Footnote: A body's organs, put together, are unlikely to be worth more than $100,000." Really? Where did this number come from? The avarage life insurance carried by a person is a poor guide- young people typically carry little or no insurance, yet wouldn't an 18 year old lung be more vaulable that my ancient, tobacco-damaged ones? I suspect that supply and demand will cause the price to be much higher.

The reason this is important is that while Prof. Volokh may be right and few doctors will risk jail for a measly $100K, I'll bet that more would do it for $1,000,00. When the rewards are big enough people will do the weirdest things...
11.9.2006 10:02pm
rfg:
AARGH-typo!

That last number should be $1,000,000

This is why I don't do clerical work- I'm lousy at it!
11.9.2006 10:05pm
Speaking the Obvious:
Guys,

Most transplant surgeons make well overf $500K per year. Would you risk your professional career and freedom for less than 2 year's salary? Plus, doing transplants requires a significant capital investment, as it won't be done in highly regulated hospitals, so one would have to build one's own "black market surgicenter". The whole idea is laughable.

I've always been shocked that those so much in favor of "equality" and "allowing consenting adults to do as they please behind closed doors," on seeing a situation in which a rich man has no functioning kidney and a poor man has two but only needs one, can't find an equitable solution for consenting adults to engage in behind the privacy of their operating room doors.
11.9.2006 10:44pm
Matt Tievsky (mail):
rfg: Since we do not normally place a value on human life (yes, I know we do in some cases, such as lawsuits for wrongful death, etc, but this is the exeption, not the norm)the organ is literally priceless.

"Priceless" means no price could possibly be set high enough to represent something's value. Banning organ sales sets the price of organs at zero.
11.9.2006 10:45pm
ReVonna LaSchatze:
What's to stop the man from consenting to sell two? Payment in advance.

That's why some contracts are banned, despite consent. (ie/S&M, slavery pacts)
11.9.2006 10:48pm
Matt Tievsky (mail):
Someone who sells two kidneys is dead. Someone who sells one is not. What's the problem in recognizing the distinction?
11.9.2006 10:54pm
Matt Tievsky (mail):
For that matter, you could pose the same question with respect to organ donations.
11.9.2006 11:01pm
ReVonna LaSchatze:
Matt -- it's not that simplistic. Think beyond the obvious:

What if someone wants to contract to sell both -- payment in advance -- and has also figured out the result, as you immediately did.

Is this contract allowed if the man consents to sell both? No. In much the same way we, as a society, do not recognize extreme S&M contracts -- even those consentual, nor permit someone to voluntarily enter into a slavery ring. That these things exist underground are no reason to recognize their validity.

Here, I am responding to the comment about consentuality. Earlier I gave reasons to dismiss the "self defense" spin.

Organ donation can be distinguished from commercial trafficking. The payment issue -- involving exploitation and the "inherently improper commodification of the human body".
11.9.2006 11:21pm
ReVonna LaSchatze:

The best I can see is the self-defense argument might be used to mitigate criminal sentencing for someone convicted of illegally trafficking in human organs.
11.10.2006 12:05am
JT Wenting (mail):
"Most transplant surgeons make well overf $500K per year. Would you risk your professional career and freedom for less than 2 year's salary? Plus, doing transplants requires a significant capital investment, as it won't be done in highly regulated hospitals, so one would have to build one's own "black market surgicenter". The whole idea is laughable. "

Who says anything about licensed clinics and professional doctors?
There's already a large underground market in organs all over the world, you may need to go to Africa or Asia to get one installed but you can get them.
And those organs don't come from people who died of natural causes, but from people abducted and disassembled for the purpose.

"Someone who sells two kidneys is dead. Someone who sells one is not. What's the problem in recognizing the distinction?"

The distinction is simple. Criminal organleggers don't care whether the supplier of those organs survives. In fact they'd rather their victim didn't because that would leave a potential witness behind to recognise them for the police.

Once the distinction between genuine donated organs and purchased organs blurs, that's the future.
Is a hospital going to refuse a relative who walks up to a doctor with an organ just because there's no paperwork approved by some government agency?
Or will he just do some quick tests to determine if it's compatible and install the thing if that might save his patient's life (which he by law has a duty to try to do)?
11.10.2006 12:09am
Matt Tievsky (mail):
ReVonna: Is this contract allowed if the man consents to sell both? No.

And that's fine--but I just don't understand why you think it follows that he shouldn't be allowed to sell one. The distinction is clear to me.

By the same token, I assume you don't think people should be allowed to donate both kidneys but do think people should be allowed to donate one.
11.10.2006 12:18am
Matt Tievsky (mail):
JT Wenting: And those organs don't come from people who died of natural causes, but from people abducted and disassembled for the purpose.

You're sure they aren't coming from people who voluntarily sell their organs? Do you have evidence that many--or any--black market organs are taken involuntarily in this manner?

This is an honest question. I've heard the urban legends, but I am not actually familiar with a single verified case of organ theft.

(Even if there is significant organ theft, though, it strikes me as a poor reason to ban organ sales. You could make the same argument about any other good.)
11.10.2006 12:26am
Elliot123 (mail):
I suspect that deep down, many folks opposed to organ sales simply don't want to face the reality that humans are not altruistic enough to freely give their organs. They are not even altruistic enough to give them after they are declared surplus by the owner's death. They are not even altruistic enough to give a relative's after the relative is dead.

But, I also suspect that deep down, we all know there will be a surplus of available organs if the price is high enough. So we will do it for money, but not for love. So, what else is new?

I'd love to know how many opposed to organ sales have that little check mark on their own drivers license. Perhaps we should all show our licenses before any meaningful discussion is allowed?
11.10.2006 1:07am
ReVonna LaSchatze:
So we will do it for money, but not for love. So, what else is new?

The problem Elliot, is that some cultures will not do it for love or money. Their traditions prevent tampering with the body such that organ donation is not practiced.

Hence, you have some cultures shopping outside to find their organs, to meet their human capital needs. (Israel for example procures 50% of their organs transplanted from outside the country.)

Solving your own deficiencies by "buying" from other cultures that may have the same taboos yet desperately need money is no answer, ethically.
11.10.2006 1:52am
ReVonna LaSchatze:


Do it underground, and fact the criminal consequences if caught, if a society bans such sales.
11.10.2006 1:53am
Hans Gruber:
It is Obvious we don't procure enough organs to meet current demand. I propose government subsidization of organ donation upon death.

Some possibilities: Those enrolled in organ donation get their driver's license free! Those who are unfortunate enough to become donors are awarded several thousand dollars, which would help cover funeral expenses or simply add value to their estate.

On selling organs: I think most people are struck by the inequality it would create. The idea that a wealthy man faced with liver disease could readily buy himself a liver while a poor man could not is, on its face, repugnant to those who believe in the equal value of human life. Yet this is really no different than a wealthy man being able to afford the best medical care while the uninsured cannot. But accepting the system as it is doesn't necessarily endorse increasing the inequality in medical care the market produces. I am no liberal, and I think inequality is usually perfectly fine, but inequality in health care is, at least to me, a fundamentally different question. And I'm not comfortable in furthering that inequality by allowing for the sale of organs.
11.10.2006 1:53am
ReVonna LaSchatze:
By the same token, I assume you don't think people should be allowed to donate both kidneys but do think people should be allowed to donate one.

Donate yes.
Sell no.

Are you supportive of human trafficking of children, if a mutual price is reached? Of human slavery, if consensual?

It is consistent, also, to be against the sale of human organs and also not consent to donate your own.

The unpalatable part are those cultures that are unwilling to donate for religious or traditional reasons, yet would buy organs from poorer people in other cultures-- who also are unwilling to donate for cultural and traditional reasons -- yet "choose" to accept the money when offered and part with a healthy organ.

The supply and demand from within should be self sufficient. Educate on the benefits of donations within transplanting societies before exposing the world to a "free" market on human parts and the dangers inherent with in such a practice.
11.10.2006 2:02am
ReVonna LaSchatze:
Yet this is really no different than a wealthy man being able to afford the best medical care while the uninsured cannot.

Wrong.
The biggest difference is the poorer man is now a potential supplier to the richer man. He risks losing his healthy organs to service the richer one.

In your medical care hypothetical, the poorer man faces no direct disincentive to his own bodily integrity because the richer man pays for better care.
11.10.2006 2:05am
ReVonna LaSchatze:
A more comparable analogy would be fertility treatment:

Richer couples can afford this where poorer couples may not. But not, it's not fertility treatment, but trafficking in babies. Then the poorer couple is affected because presumably it is poorer couples who would be willing to part with their babies -- or perhaps even realize a profit and breed with intention to sell, as in the pet/animal market. This is why for-profit adoptions worldwide are not palatable to many. "Donations" of children are acceptable, not sales.
11.10.2006 2:10am
K Parker (mail):
Eugene,

Somehow you seem to be missing Dweeb's point. It's not that there isn't a huge majority in favor of a life-of-the-mother exceptions, it's that most cases presented as that aren't really.

I've asked a similar question to his, with equally non-specific results: is there ever a situation of late-term risk to the mother where a c-section--i.e. with the resulting delivery of a living albeit somewhat premature child--wouldn't serve just as well as a PBA procedure in terms of removing the risk?
11.10.2006 2:24am
Matt Tievsky (mail):
ReVonna: Are you supportive of human trafficking of children if a mutual price is reached?

No, because the child presumably doesn't consent.

Of human slavery, if consensual?

I understand and agree with your point--not every apparently consensual trade should be allowed. But I do think that consensual trades generally should be, and that there needs to be a good reason to forbid them. I sense you agree, so what is that good reason?

Or do you doubt that organ sales are actually consensual? Later in your post you say "poor people . . . 'choose'" to donate their organs. Why the scare quotes? Do you doubt it's a choice, that such trades are consensual? I can only understand that viewepoint if you're presuming that poor people who don't sell organs are faced with truly awful prospects. But if that's true, then forbidding poor people from selling their organs forces them into the worst of all possible worlds.
11.10.2006 2:50am
Matt Tievsky (mail):
ReVonna: Educate on the benefits of donations within transplanting societies before exposing the world to a "free" market on human parts and the dangers inherent with in such a practice.

At this very moment, there are people on organ waiting lists who will die before they get to the front of the queue. The hope that altruism will some day ensure a full organ supply is not going to keep these people alive. Buying organs from consenting persons will.
11.10.2006 2:56am
Hans Gruber:
ReVonna,

Yes, that's a difference. I'm not sure if I really believe in the power of that argument, though. If the poor man gave his liver out of charity, he would be regarded as a hero. What does it matter what the motivations are?

You are essentially saying poor people are too stupid to make this choice, that they must be protected from themselves. Maybe you are right, but let's be honest about what your argument is, it boils down to--poor people are too stupid to be trusted to make these decision for their own benefit.

Another point has occurred to me (I haven't read all of EV's posts on this yet, so maybe has already addressed it). The buying and selling of organs does seem to provide some mismatch issues. Under the current law, organs are appropriated based on many different factors--age, quality of life, chances of survival, etc. Under a market system this would no longer be true. A 90 year old billionaire on his third heart would get a heart before a 10 year old child waiting for his first. That isn't an outcome worthy of praise, is it? The problem isn't so much where the organs are coming from (the poor) but where are they going (old rich people). If the poor were donating to children with 90% chances of survival, would you still object?
11.10.2006 3:02am
Long Timer:
The hope that altruism will some day ensure a full organ supply is not going to keep these people alive. Buying organs from consenting persons will.

Maybe they have to die then.
Not to be cold hearted, but that is where I reject the "self defense" theory. They have no "right" to live on someone else's organs. They should work to encourage education, donation, and a rethinking of cultural/religious views that keeps donation numbers down.

The automatic solution is not to open the free market because wealthy people who need transplants will die without.
11.10.2006 3:12am
Revonna LaSchatze:
(Sorry -- that one above was me.)
11.10.2006 3:13am
Revonna LaSchatze:
poor people are too stupid to be trusted to make these decision for their own benefit.

No. In the same way I do not support voluntary slavery, I think poor people should not be offered a "choice" that includes donating a healthy organ to someone they otherwise do not know and have no stake/incentive to keep living. My personal positions are consistent throughout the issues mentioned in these posts.
11.10.2006 3:20am
Hans Gruber:
Um, but selling oneself into slavery would be a stupid decision. It's not clear at all that selling one's kidney for tens of thousands is a bad decision.
11.10.2006 3:37am
ReVonna LaSchatze:
You're right.
Why not sell two, and really provide for your family? Tempting?

Selling oneself into slavery would be a stupid decision.
Prostitution too. Still it happens. The market substitutes for hope. Humans are tempted. Better to die poor with an intact body that to sell yourself, your bodily integrity and dignity?

I wonder if that is what traditional religious dictates considers when it forms doctrine?
11.10.2006 4:11am
ReVonna LaSchatze:
You're right.
Why not sell two, and really provide for your family? Tempting?

Selling oneself into slavery would be a stupid decision.
Prostitution too. Still it happens. The market substitutes for hope. Humans are tempted. Better to die poor with an intact body that to sell yourself, your bodily integrity and dignity?

I wonder if that is what traditional religioun dictates considers when it forms doctrine?
11.10.2006 4:11am
Hans Gruber:
How is the decision to give a kidney or a section of liver different than taking a dangerous but high-paying job? Should we outlaw high-rise construction, coal mining, and Iraq contracting because the poor are more likely than the rich to occupy those positions? How is the decision to sell a kidney for $50,000 fundamentally different than working in a coal mine for an extra $20,000 a year? If you are worried that individuals will under sell their organs, the answer is to set a price floor not to forbid all sales.

I dont' know, like I said, I think the better argument is found in where the organs are going, not where they're coming from. The problem isn't so much that the poor would make the choice to sell a kidney or section of liver, it is that the poor would lack the choice to buy a kidney or section of liver. Organs would increasingly go to the highest bidder instead of the patient with the highest chance of survival and longest potential life span.
11.10.2006 4:28am
Ken Arromdee:
Of human slavery, if consensual?

I understand and agree with your point--not every apparently consensual trade should be allowed. But I do think that consensual trades generally should be, and that there needs to be a good reason to forbid them. I sense you agree, so what is that good reason?


The point of mentioning selling yourself into slavery is that there is a good reason, but it isn't easy to explain. You can make many of the same counterarguments as for organ donations--kidnapping people for slaves is already prohibited by current laws; the very fact that someone is willing to sell himself into slavery in a free market means that he thinks he is getting good value for the trade, so he isn't being cheated or exploited; telling a poor person he can't become a slave is assuming he's too stupid to decide what happens to his own life; becoming a slave is different only in degree from taking a dangerous job, since that involves a certain amount of unpleasantness too; etc.

Yet even among libertarians, few would support a right to sell oneself into slavery. Why is that?

The "good reason" to ban slavery is pretty much the same as the one to ban organ selling. The difference is not in the reason, but in people's willingness to make counterarguments, and it's the counterarguments that don't hold up. It's just much easier to recognize that they don't hold up when talking about slavery.
11.10.2006 9:34am
srp (mail):
It is difficult to take these far-reach objections to organ sales seriously. A live donor of a kidney is not taking some huge risk. There are lots of voluntary donors out there who do it for a price of zero; it's just that the supply could be increased dramatically with positive prices.

For the paternalists: How in the world can you say that a person is better off with two kidneys and no money than one kidney and $20,000? Who do you think you are to make that judgment? The catch-22 argument paternalists like to make is that if the money really does change a person's life, then it's "coercive" to offer it, while if the money doesn't do much then the decision was somehow wrong. Both branches of this argument are incorrect. There is nothing "coercive" about seizing opportunities to improve one's life, and there is nothing wrong with making incremental tradeoffs that improve things a little bit.

As for decision errors in general, people do stupid things sometimes, in a non-reflective fashion. Donating a kidney is least likely to be such a decision because it requires considerable premeditation, going through elaborate medical tests, etc., with lots of chances to back out. Will some people after the fact wish they hadn't done it? Sure, just like some will regret becoming firefighters or having a kid or buying a house.

To the egalitarians: If Medicare and Medicaid and health insurance paid for live kidneys at the market rate, (which would save money because dialysis is really, really expensive), the poor would have an equal ability to pay for kidneys as the rich. And since the quantity supplied would go up we could stop torturing and killing thousands of people currently on dialysis ("the new iron lung").

As a second-best option, if you can't tolerate a market, consider an income tax holiday for live kidney donors, which would incent only high earners ("We just went public! Time to donate a kidney!"). Since recipients tend to be below median income this would create a net flow of organs from the rich to the poor. To me, this is not as good as allowing markets because a) the poor should be able to benefit from selling their kidneys and b) the tax credit would do more damage to the public fisc per donated organ.

On prostitution: Personally, I think prostitution should be legal, but the analogy is false in any case. No one can make a career of kidney donation, there can't be a "donor lifestyle", and no one can be a regular and habitual consumer of kidneys. Furthermore, there is no reason (unless the more hysterical commenters here prevail) why live kidney donors should be looked upon as anything other than lifesavers to be honored, even if, like other lifesavers, they are paid.

On slavery: IOnce again, the analogy is way off. The reasons we don't like slavery (and why many don't like prostitution) have to do with a corrosion of ongoing human relations. Living life as a slave is seen as a degradation of dignity and living life as a master is seen as inherently corrupt. Neither of these apply to donors or recipients of organ transplants. A donor is not degraded (the opposite, in fact) and a recipient is not corrupted on an ongoing basis. Most of the time, neither party will give any thought to the status of his organs and it will have no effect on his dignity, unlike slave or master status.

This thread demonstrates the intellectual bankruptcy of the anti-market position. All it offers is bogeymen and red herrings.
11.10.2006 4:00pm
Elliot123 (mail):
ReVonna,

There probably are some cultures that won't give up an organ for either love or money. That is their choice. But I see no reason why we should let their choice influence our policy decisions.

Some cultures don't let women drive, either.
11.10.2006 4:11pm
Andy Freeman (mail):
> Those enrolled in organ donation get their driver's license free! Those who are unfortunate enough to become donors are awarded several thousand dollars, which would help cover funeral expenses or simply add value to their estate.

In a later thread, Gruber seems to object to me placing a "pay my estate or bury me with my organs" restriction on my donor card.
11.10.2006 5:08pm
rfg:
Elliot 123- in my case I am oppsosed to organ sales and I am also a future donor, with all of the applicable documentation to support my choice. One data point for you.
11.10.2006 11:07pm
Sammy Finkelman (mail):
There are some news stories today about people selling kidneys in Pakistan.

Search google news for kidney+pakistan

A big problem is simply taht people will value them too low - and that they think they are not endangering their health at least in old age. And if people sell to save their land - well in the end they may not save their land.
11.14.2006 3:42pm