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Payments for Organs, Medical Self-Defense, and the Risk of the Rich Buying Up All Available Organs:

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 arguments that banning payment is needed to keep rich patients from "jumping the queue." I've already discussed the risk of organ robbery; in future posts, I deal with the arguments that banning payment is needed to keep poor providers from being improperly exploited, or to avoid supposedly inherently improper "commodification" of the human body.

As before, please recall that the footnotes are available here, so if you wonder where I got some of the data, you might check there first.

[C]onsider the concern that allowing payment for organs would let rich patients buy up all available organs, and leave poorer patients without the chance of a transplant. This result can similarly be avoided with regulation rather than prohibition.

Organ transplants are expensive. They are already available only to those who have health insurance, government-provided health care, or their own funds. All people, rich or poor, who are up for transplants thus already have some health care funders paying for their care.

And long-term care used while transplants are unavailable is even more expensive than transplants; for kidneys, transplants cost on average about $100,000 less than long-term dialysis. Health care funders would save money by paying up to $100,000 per kidney, again whether the patient is rich or poor. This means we can still maintain the current need-based system, but just have the health care funder for each person who's next in line pay for the person's new organ; the result will likely be savings for the funders, a greater pool of available organs, and no extra advantage for the rich.

Even if for some organ, transplants wouldn't save money, and the health care funder would have to pay $30,000 per organ to compensate providers, this will hardly be a huge burden to absorb. Each year, about 15,000 Americans are added to the nonkidney transplant waiting lists; even if that number doubles once organs becomes more available, that would still only constitute .012% of the 250 million Americans with health insurance. If each organ cost $30,000, and this price wasn't offset by any savings in alternative treatment costs, this would mean an increase in insurance costs of $4 per year per insured.

The "rich outbidding others" concern only arises if (1) the rich or their insurers pay so much that other health care funders can't keep up, and (2) the other funders' payments don't suffice to make enough organs available for all patients. Even if we think this is likely -- if we think the rich would pay $200,000 per kidney, other health care funders wouldn't pay more than $100,000, and this payment wouldn't yield enough organs for everyone -- this only supports capping payments at the level that all funders would pay, likely the level at which they'll still be saving money by getting an organ instead of paying for long-term dialysis.

Of course, even the lesser burden created by a payment cap may still be substantial, if the capped payment yields fewer organs and thus leaves some extra people on the waiting list. And this burden may be improper if we conclude that preventing inequality isn't reason enough to interfere with medical self-defense. Where other matters -- private schooling, hiring a criminal lawyer, most forms of free speech, hiring of guards, spending money on highest-quality medical care -- are concerned, we generally don't have the government impose such payment caps, despite egalitarian concerns.

Part of the reason for this is a general respect for property rights, notwithstanding the inequality they necessarily cause, and the view that substantive rights (to educate one's children, speak, get an abortion, or hire a lawyer) include the right to spend money to exercise the right. And part is the fact that there'll be much less provision of valuable services, such as education, legal assistance, or medical care, if those services must be provided subject to a price cap. Equality achieved by leveling everyone down to the same low protection is often, at least in the organ transplant context, the equality of the graveyard.

Nonetheless, perhaps I'm wrong: Perhaps the interest in keeping the rich from getting preferential access to organs is strong enough to trump the medical self-defense right, and would therefore justify barring rich patients from paying extra for such organs. But this equality interest can justify only a cap on payments to organ providers, not the much more burdensome total ban on such payments.

Ryan Waxx:
I can make you a guarantee: If payments for organs are allowed, there WILL be a couple of horror stories that happen.

Why? Because there will always be at least rare problems with any policy change. Right now, people that die because there's not enough organs... because there's little financial incentive to provide enough organs... are 'invisible'. No one will do a news story about a person who died because the policy change wasn't made.

However, people who might be pressured into selling, or people who think that a rich person got their kidney? That'll sell. In a second.
11.10.2006 1:13am
Ilya Somin:
Eugene,

This is just a minor point. But one alternative to a price cap is for the government to just subsidize the purchase of organs by poor people in the queue. This is the standard way of helping the poor obtain necessities that they need but can't pay for, and it has clear advantages over a price cap (such as not driving down supply and avoiding deadweight losses).

Unlike with most forms of means-testing, there's relatively little moral hazard here, as very few people are likely to get into a situation where they need an organ transplant just because the govt will subsidize the purchase for them.
11.10.2006 1:42am
ReVonna LaSchatze:
Right now, people that die because there's not enough organs... because there's little financial incentive to provide enough organs...

Or, there's not enough social pressure on people to freely donate their own organs.

If some cultures have policies of not donating, yet of accepting transplants, a market in human organs will benefit them.

Better to educate and encourage cultures to donate organs within their own countries, so that foreign markets are not viewed as supply nations solely because of the lack of wealth?
11.10.2006 1:42am
ReVonna LaSchatze:

In short, I question if it's economics, or religious/cultural traditions accounting for the lack of healthy organs available for transplant.

For one culture, say orthodox Jews, to shun organ donations only to look elsewhere (presumably to the poor) to meet their needs, is bound to cause cultural resentment.

The pricetag attached to this may make it more worthy to concentrate on changing attitudes on donation from within, rather than establishing an external market to buy what some cultures are uncomfortable selling.

Don't always look to the marketplace first to solve problems such as the lack of available healthy organs. Otherwise, you end up with practices like human slavery -- cultures looking outside their own to meet human capital needs.

Pandora's Box. A little foresight and a change in thinking tactics (education not commodification) can prevent a lot of unnecessary cultural conflicts that benefit the elite few.
11.10.2006 1:48am
ReVonna LaSchatze:


Another point to consider:

Would organ donations drop from those who might benevolently give, yet would not choose to participate if they believed their gift would presumably benefit those who could pay the most?
11.10.2006 2:15am
Adam (mail):
Eugene: you are so obviously correct that it's a shame you have to spill so many electrons belaboring the point.

Ilya: There may very well be a moral hazard with subsidized organs, because people may not take care of their health as much if they know that replacement organs are relatively easy to obtain. With a price cap, organs would be cheaper, but there would also be a shortage to some degree. On balance, the subsidy is probably better if the government must interfere with the price of organs, but I suppose an argument could be made either way.
11.10.2006 5:10am
Benjamin R. George (mail):
There are, besides equality concerns, efficiency concerns with the prospect of the rich buying up all the organs. That is, some not all livers are equally likely to be accepted by all recipients, and not all potential liver recipients have the same expected improvement in quality and duration of life improved by even a successful liver transplant. It seems pretty plausible that bidding wars would cause some organs to end up in the hands of desperate, wealthy individuals who had only a small chance of benefitting from them, while more medically optimal recipients were passed over. More generally, we'd expect the possibility of outbidding to reduce the average medical benefit per organ transplanted. If we don't like this kind of objective measure of value, or if we expect an open market in organs to increase the supply enough to balance out these new sources of inefficiency, then we may be able to live with this, and in any case a regulatory price cap could address the problem, but it strikes me as a bigger issue than vague equality concerns.
11.10.2006 5:53am
Adam (mail):
ReVonna LaSchatze: Wow. The anti-semitism is breathtaking. Good luck with that argument. In any case you're just wrong. Jewish law is not unanimous, but there is plenty of basis for supporting organ donation. According to many decisors of Jewish law, it's even mandatory.
11.10.2006 6:45am
Adam (mail):
ReVonna LaSchatze: Sorry, I misread the end of your post as talking about "the elite Jew" instead of "the elite few", so I take back the charge of anti-semitism. But the point regarding Jewish law is the same.
11.10.2006 6:49am
A. Zarkov (mail):
Rich patients get better medicine. Smart patients get even better medicine. I know of a patient in a big New York medical center who paid extra (a lot extra) for special premium medical care. However even with this deluxe service the hospital staff still made a major mistake in his medication that was being delivered by some high tech system. He was clever enough to figure out the error by doing some calculations and got a quick fix. He was smart as well as rich. He would have gotten good medicine even without being rich. A Rawlsian will have none of this. He will argue that the smart person is just a lucky person, and smart people shouldn't get better medicine and we need to fix that. But if you look closely you will find that the smart and rich Rawlsians do everything they can to get better medicine for themselves and their families.
11.10.2006 6:51am
Adam (mail):
Regarding efficiency, is the current system really so good, or is the danger really so great? I remember that about ten years ago there was a famous baseball player who had a terminal disease (a liver condition, I think). He got a transplant, and yet still died a few days later. I don't remember the guy's name, so I may have some details wrong. In any case, it shows that the rich and famous can get inefficient results even now. Also, let's think what would happen if organ sales were permitted and it led to some inefficient transplants. Let's say that enough organs are still not available and some relatively poor person must do without. What is the alternative? In the current situation, the same person would almost certainly *not* be getting a transplant instead of someone else, because there is a severe shortage. In most cases the alternative to inefficient organ sales is no transplant at all to anyone, whatever their prospects for recovery.
11.10.2006 7:02am
Fub:
The major objections to even a regulated organ market seem to be:

1. Rich people will get organs and poor people won't.

2. Rich people will exploit poor people to get organs.

3. A general "squick" objection that selling an organ is somehow inherently immoral or inhuman because it "commodifies" people's bodies. I think this is a component of objection #2 also, in that the rich are seen as driving the poor into immoral or inhuman choices.

So, how about a policy that will capitalize on these factors, but in a resultant direction that makes organs more available?

Simply give a substantial income tax "break", a credit or deduction which can be accounted forward over tax years, and repayable to the government upon recission, for anyone who contracts to donate an organ.

The contract can be conditioned upon the donor's death (for vital non-redundant organs) or not (for non-redundant organs). The tax break could be fine tuned for the nature of the donation obligation, the organ, etc.

Maintain the same selection procedures for recipients as currently.

Under this policy:

1. Everybody will still have the same (relative) chance at an organ as currently, except that (the policymaker would hope) the supply of organs would increase.

2. The rich will have incentive to donate, or at least more incentive than the poor. So, the rich won't be exploiting the poor by buying their organs.

3. The "squick" factor would be redirected so that only the terminally silly could take it seriously: "that capitalist pig sold his own body so that some poor person could live long enough for him to exploit without even paying taxes."
11.10.2006 9:24am
ReVonna LaSchatze:

Adam:

I know.
Just read an article yeterday re. Orthodox law and that fact that Israel has to "import" 50% of the organs from abroad, because they need more than they can supply.

Why is it anti-Semitic to discuss this? My having just read the article, plus the fact that Israel is a more wealthy nation that can affort such a market, yet has cultural religious taboos is worthy of discussion, no?

You are absolutely correct, according to the article, that factions within the culture are working to change Orthodox practices regarding donation, in lieu of necessarily establishing a market trading in human organs.
11.10.2006 10:15am
ReVonna LaSchatze:
But if you look closely you will find that the smart and rich Rawlsians do everything they can to get better medicine for themselves and their families.

Sometimes they're so smart they forget to take care of their original organs and choose paths that physically weaken themselves, thinking they can buy body parts, like commodities.

Rich patients get better medicine. Smart patients get even better medicine.
And the smartest ones of all respect their own "temples" remaining self-sufficient in their needs.
11.10.2006 10:19am
byomtov (mail):
for kidneys, transplants cost on average about $100,000 less than long-term dialysis. Health care funders would save money by paying up to $100,000 per kidney, again whether the patient is rich or poor.

This holds if you require funders to pay for organs regardless of the savings for any individual patient. Otherwise insurers will pay only for those where the savings are large, and also where the insurer expects to realize enough of the savings to make the purchase worthwhile.

Would an insurer voluntarily buy a kidney for a 64-year old, instead of just paying for dialysis, knowing the patient could go on Medicare in a year?
11.10.2006 11:28am
Hans Gruber:
ReVonna's point about Orthodox Jews receiving but not giving organs raises an interesting possibility in my mind. What if we required one has to be a registered organ donor to be eligible to receive donor organs? That seems completely fair. If you want to have access to organs from others, then you better be a donor yourself (exclusions made for minors, of course).

Does anybody have an idea if the organ shortfall could be remedied simply by increasing the number of organ donors? Some hypothetical figures: Let's say 30% are organ donors and right now we can meet 50% of our organ needs. That would mean around 60% of the population could support the total need.

Increasing the number of people donating organs seems like a more practical step than implementing an organ market with complex regulations. I have to say that Eugene's points resolve a lot of the potential problems, but why bother if there is a simpler solution?
11.10.2006 11:36am
Andy Freeman (mail):
Why the assumption that the organ cost is the only way that money enters the picture? I'm pretty sure that doctors and hospitals get paid by someone, so "rich people can buy it" is already a problem if it is ever going to be a problem.

My organ donor card says that my organs go in the casket unless my estate is paid significant money. Everyone else in the transplant room is benefitting, so why not me?
11.10.2006 11:51am
Hans Gruber:
"My organ donor card says that my organs go in the casket unless my estate is paid significant money. Everyone else in the transplant room is benefitting, so why not me?"

What if your benefit was being an eligible to receive organs? Would that be enough to entice you?
11.10.2006 12:01pm
A. Zarkov (mail):
"Sometimes they're so smart they forget to take care of their original organs and choose paths that physically weaken themselves, thinking they can buy body parts, like commodities."

Are you trying to tell me that rich or smart people don't take of themselves? The very opposite is true. For one thing low-income people tend more towards being overweight. Go for a walk in any Walmart store and look around at the customers. Or better yet look at CDC data. When I was in the hospital the person in the next bed was waiting for a liver transplant. He admitted to me that he was an IV drug abuser. I can assure you that he wasn't rich. He only had medical insurance because his wife worked for New York City. He had a lot of medical problems from his addictions and was in the hospital ten times a year. He had good knowledge of the quality of care at various hospitals. His advice: "don't go to Beekman Downtown Hospital."
11.10.2006 12:24pm
J. F. Thomas (mail):
There will always be a shortage of organs, simply because the number of suitable donors will always outnumber the potential recipiants. So there is always a potential for a bidding war. And while the ethical considerations of paying for organs from dead donors may be overcome by making sure that greedy relatives are not to anxious to pull the plug on potential donors, you can never overcome the ethical problem of paying for live donations. Live donations carry the very real risk of death or serious complications for the donor. It is one thing for a doctor to remove an organ or part of an organ for a donor who will not gain financially and is doing it for no other reason than charity and goodwill. It is quite another when the motivating factor is money. That crosses a line that should not be crossed
11.10.2006 1:32pm
ReVonna LaSchatze:
Zakarov-- Think of the poor living in non urbanized areas in countries where healthy organs would be solicited. They're living closer to the land = no Walmarts.
11.10.2006 1:46pm
Speaking The Obvious:
JFThomas: "There will always be a shortage of organs, simply because the number of suitable donors will always outnumber the potential recipiants. "

I don't understand the above claim. If the number of donors outnumbers the number of recipients, by definition you have a surplus, not a shortage.

If J. F. Thomas mistyped, and meant to say the number of suitable donors will always be less than the number of potential recipients, I'd guess this is empirically untrue. At any given time the number of healthy people far outweighs the number of sick people, so even granting that not everyone with a healthy organ is a "suitable donor," the statement is likely not true.
11.10.2006 3:52pm
JT Wenting (mail):
"The major objections to even a regulated organ market seem to be:

1. Rich people will get organs and poor people won't.

2. Rich people will exploit poor people to get organs. "

It will likely be the reverse in a heavily regulated market.
Organ prices will be income related, with poor people getting additional subsidies on top of lower prices and rich people (in which rich means anything more than about twice the minimum wage) paying income tax for every organ in their body because after all those are essentially capital goods now and therefore taxable.
11.10.2006 4:07pm
srp (mail):
The amazing revulsion over the idea of buying organs from live donors is similar to the revulsion that once attended the idea of life insurance. People thought it was ghoulish and dangerous for someone to get paid because someone else died. It created all kinds of potential for murders and suicides motivated by money. Today, of course, we recognize that the availability of life insurance is an important part of a civilized society, something that on balance is a huge net improvement, despite the occasional murder plot.

Some day the current fears about paying live kidney donors will be seen in the same light. The barely suppressed resentments and fixations of the LeSchatzes will be marveled over. What does it matter if a society that doesn't like to donate organs imports them from a society that doesn't mind? That's called gains from trade. Both sides are better off. I'm culturally and psychologically uninterested in farming, so I buy my food grown by agriculturists who like living on the land. So what?
11.10.2006 4:15pm
Elliot123 (mail):
The rich would buy up all the available organs only if there was a shortage of organs. Anyone seriously proposing the rich would corner the market must first demonstrate there would be a shortage.

They also have to demonstrate there is no elasticity of supply in organs. (Supply and demand for a good varies with price.) This would be quite interesting since it would be contrary to the behavior we have seen in thousands of markets all over the world.

And finally, one would have to demonstrate there is a significant shelf life for organs. Otherwise the rich would have no incentive to by an organ which they cannot immediately use. Kidneys cannot be stored in a grain elevator like wheat.
11.10.2006 4:24pm
Andy Freeman (mail):
>>My organ donor card says that my organs go in the casket unless my estate is paid significant money. Everyone else in the transplant room is benefitting, so why not me?"

>What if your benefit was being an eligible to receive organs? Would that be enough to entice you?

Probably not, but it's nice of you to recognize that I should be compensated. Now we're just dickering about the price.

FWIW - The reason I say "probably not" is that the rest of the system is rigged against average people like me. (The organ transplant racket, like all rationers, plays favorites.)
11.10.2006 5:02pm
Harvey Mosley (mail):
I've always thought the easiest solution (or at least partial solution) would be to require every adult to opt out if they don't want to be organ donors. Of course, this should NOT apply to live donations.
11.10.2006 5:43pm
John A. Robertson (mail):
Prof. Volokh's arguments about a right to medical self-defense in regard to abortion, access to experimental drugs, and organ sales make sense to me. They also have a direct application to embryonic stem cell (ESC)treatments Current state bans on stem cell-derived treatments created by nuclear transfer cloning would be unconstitutional once such treatments were shown to be safe and effective. I argue for a presumptive negative right to use ESC treatments based on the life and liberty parts of due process. Medical self-defense is a good way to articulate the right. It derives ultimately from the importance of life and liberty to an individual. ("Embryo Culture and the Culture of Life: Constitutional Issues in the Embryonic Stem Cell Debate," 2006 Univ. of Chicago Legal Forum 1-38.)
11.10.2006 6:02pm
ReVonna LaSchatze:
What does it matter if a society that doesn't like to donate organs imports them from a society that doesn't mind? That's called gains from trade. Both sides are better off

I disagree. Suspect you'll get a lot of resistance from many social factions. Organs are not grown and cultivated like farm crops and there is continued resistance to commodification of living beings.
11.10.2006 7:47pm
Elliot123 (mail):
Does anyone here think the poor are too stupid to make rational decisions regarding the sale of their organs? Does anyone here think they themselves are incompetent in this matter? So, who is too stupid to be trusted to make a rational decision?

Let's take the simplest situation. A man can collect money today in exchange for his organs upon his death. I'd be very interested in hearing the rational for opposing that transaction.

The greatest risk lies with the buyer since he has no warrantee of fitness for use upon the death of the donor. The seller takes the risk that he is selling short into a market that may rise over his remaining years.

Is a poor man too stupid to make that evaluation?
11.11.2006 12:05am
ReVonna LaSchatze:
Does anyone here think the poor are too stupid to make rational decisions regarding the sale of their organs?

I wouldn't call it stupid, I'd call it noble. Some people want to provide for their families to such an extend, they would sacrifice their own health. (Perhaps you can related to the businessmen who drop dead at 50, neglecting their health for their work, the payoff to the family.)

Some contracts are unconscionable. = selling both eyes. I have no doubt you could find people, not stupid, who would agree to that if the price was right.
11.11.2006 5:03am
ReVonna LaSchatze:

Let's take the simplest situation. A man can collect money today in exchange for his organs upon his death. I'd be very interested in hearing the rational for opposing that transaction.

Many cultures -- rich and poor -- have traditions that include burying the body intact. The strength of these traditions is not overcome by an outsider promising cash to the family after death. Unlike life insurance, there's a price here -- a giving up, after death.

Again, perhaps the answer is to educate to overcome these traditional resistances, not offer to compete with them through money.
11.11.2006 5:06am
ReVonna LaSchatze:

The greatest risk lies with the buyer since he has no warrantee of fitness for use upon the death of the donor.

Arrogance!
Maybe you'll have to write in a clause that whatever the dead father can't provide is taken out of a living son?

Better yet, why not have the needy recipient look to his own family to provide for him?
11.11.2006 5:08am
Hans Gruber:
"I wouldn't call it stupid, I'd call it noble."

We must protect people from their own nobility now?
11.11.2006 3:38pm
Adam (mail):

I wouldn't call it stupid, I'd call it noble. Some people want to provide for their families to such an extend, they would sacrifice their own health. (Perhaps you can related to the businessmen who drop dead at 50, neglecting their health for their work, the payoff to the family.)


The paternalism expressed here is ignoble, and considering that the cost of this paternalism is that people die because not enough organs are available, it's also reprehensible. For everyone who clings to their belief that organ sales are immoral and wants to use the force of government to ban them, remember that people die so that you can feel righteous.

ReVonna LaSchatze: I apologize for the remark about anti-semitism. I misread your post.
11.11.2006 3:48pm
Andy Freeman (mail):
> Many cultures -- rich and poor -- have traditions that include burying the body intact.

Irrelevant - the question was whether society should allow estates to receive payment for organs, not whether given individuals would participate.

> The strength of these traditions is not overcome by an outsider promising cash to the family after death.

That's unknown until the offer is on the table, so to speak. And, again, it's irrelevant because the answer to the question does not depend on whether given individuals participate.

Or, are you going to make an argument that a transaction should be illegal if there exists a group that would not participate in it? (Or, more correctly, believes that it should not participate in it - there are always "the fallen".)
11.12.2006 11:03am