pageok
pageok
pageok
Payment for Organs, Medical Self-Defense, and the Risk that the Poor Would Be Unduly Pressured Into Selling 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 argument that banning payment is needed to keep poor providers from being improperly exploited. In earlier posts, I've discussed the risk of organ robbery, and the argument that banning payment is needed to keep rich patients from "jumping the queue." In future posts, I deal with the argument that organ payment bans are needed to avoid supposedly inherently improper "commodification" of the human body, and with some other arguments that have come up in the comments. 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.

Note also that this argument is a small part of what must be at most a 30-page essay; I thus can't get into it in too much detail. At the same time, I may have room to add a few paragraphs here or there, so if you think there are important items that need adding, I'd love to hear about that.

Some argue that allowing organ sales would unduly pressure poor providers to put their health and their lives at risk. Yet the risk is modest. Giving a kidney carries a 0.03% risk of death or irreversible coma, a less than 2% risk of complications, and some unknown but not high increase in susceptibility to kidney disease. Giving part of a liver (livers regenerate, so giving part is possible) has been associated with a 0.25% incidence of provider death, plus some risk of nonfatal complications. Marrow donation is safe, though temporarily painful.

Such risks may justify mandatory counseling, waiting periods, and requirements that part of the compensation include insurance against medical complications. [Footnote: These regulations may slightly increase the cost of organs, but likely not enough to substantially burden recipients' self-defense rights.] But they surely don't justify the current ban, which applies even to compensation for cadaveric organs. [Footnote: Allowing compensation for cadaveric organs would actually help protect the health of living donors, because it would make living donations less necessary.] And in my view they are too small to justify even a ban limited to organs provided by the living. If someone thinks the prospect of making tens of thousands of dollars is worth a small health risk, the government's interest in protecting him against being overtempted by the money shouldn't suffice to trump the medical self-defense rights I've discussed.

Yet even if I'm wrong, recognizing that the organ sales ban limits patients' rights should invalidate such a serious burden on their rights if the law can prevent the harm through lighter burdens. For instance, the law might exclude living providers who we think are unduly tempted by a $30,000 per-organ payment -- say, the very poor (perhaps they're too desperate), young adults aged 18 to 24 (perhps they're too present-centered), or poor parents of minor children (perhaps they may feel unduly pressured to risk their health for the sake of feeding their family). [Footnote: Even under the current system, there's often strong family pressure on people to donate organs for relatives (even ones to whom the provider might not feel close). This isn't identical to the pressure of an offered $30,000, but in many ways it might be stronger. Allowing compensation for organs will diminish this pressure, as more non-relative organs become available.] Better a small decrease in potential organ providers than the large decrease caused by today's total compensation ban. And even these exclusions may leave enough providers to supply the medical self-defense needs of all Americans whose organs are failing.

True, some might balk at such limitations. Aren't 21-year-olds adult enough that we shouldn't treat them as second-class citizens who can't make intelligent choices? Why should very poor people, or people who are trying to improve their children's lives, be denied a money-making option that richer people have -- and be denied it precisely because the money is especially valuable to the poor and to parents?

But if such objections are right, they only show the problem with a paternalistic system that interferes with recipients' self-defense rights and providers' freedom of choice. The response to these objections should be to let all adult, competent would-be organ providers decide whether to sell their organs -- as they now have the right to decide whether to give the organs away -- not to bar everyone from doing so.

PatHMV (mail) (www):
I've got to say that I just find your entire self-defense premise to be overly technical and legalistic. The problem I have with it is not so much in any of the details (it is of course thoroughly thought-out on your part) as the initial premises of it all.

As I've said before, in the end for me it's a value judgment. I don't think that human body parts, from the living or the dead, should be legitimate objects of commerce. While I've tried explaining some of the rational arguments to be made against it, in the end I am not going to be persuaded on this subject. I'm against it, and I think most people will be against it no matter how much of a legalistic argument you make in favor of it.
11.10.2006 7:27pm
Avatar (mail):
It sounds to me like this is an incorrect approach to the problem of organ availability. Instead of commoditizing human organs, which has big, ugly, unfortunate, and even evil side-effects, couldn't we increase cadaver organ donorship through government incentives? It wouldn't even have to be a BIG incentive, given that registering to be an organ donor is pretty painless. Here, you can register to be an organ donor when you get/renew your driver's license... so possibly you could waive the license fee for registered organ donors? I don't really have a strong reason to register to be an organ donor now - my registration won't appreciably increase the donor pool, and frankly, anybody who gets one of my organs is getting a bum deal - but if it's "you're at the DMV, tick the organ donor check box or pay us ten bucks for your license", I'm gonna tick the box. If you have some kind of religious objection, or you REALLY don't want to donate an organ, meh, pay your license fee. Overall cost would be considerable, certainly, but the pool of potential donors would increase by orders of magnitude.

Also, I think your quoted rates are a bit low. Keep in mind that having an organ removed isn't minor surgery - on top of the risk of death, complications, and pain, you're going to be out of the work force for a while too. I sure as heck wouldn't sell a kidney for thirty grand, and frankly, I'm not exactly rolling in dough here myself.

Finally, if your organs have a commodity value, it will not take long before some enterprising lawyer sues a debtor and claims those organs as an economic asset. Not acceptable! You may insert a "pound of flesh" joke here.
11.10.2006 7:43pm
Caliban Darklock (www):
"Aren't 21-year-olds adult enough that we shouldn't treat them as second-class citizens who can't make intelligent choices?"

Oh, you just want to have sex with them!

That's what everybody says when I suggest that about 14 year olds.
11.10.2006 7:44pm
nn489:
Another question: how high does the risk, or how severe does the damage, to the donor have to be before a sale of his organs becomes unacceptable? Would we allow people to make donations if it involved a 1% risk of death? 10%? 50%? Would we let people sell their hands for donation? Their eyes (a la Minority Report)? Parts of their brains?
11.10.2006 8:05pm
AMDG:
I understand that this a legal blog, however the idea of selling parts of one's body intrudes into areas that legalistic reasoning cannot adequetely illuminate.

The general principle that individuals should have bodily autonomy is a reasonable one, as is the belief that human affairs benefits from economic trade, in this case, money for organs.

From a governance perspective, however, when society begins to quantify the financial worth of constituent pieces of a person, we debase the value supposedly invested in us by our mere humanity. I am a human being and inherently deserving of respect for that fact. Our moral and even legal code depends on it. Chipping away at that foundation undermines the value system that we share. Would a more efficient society allow the sale of organs? Perhaps. But that question presupposes the equivalence of efficiency and superiority. What would a better society do? Keeping the value of a human being sacrosanct, even if it means placing certain actions off limits, is probably better for us, similar to the way that an economy benefits its participants with some constraints on the deployment of capital.
11.10.2006 8:38pm
Virginia Postrel (www):
While incentives for deceased donations, as Avatar suggests, wouldn't hurt, they wouldn't solve the problem either, even with 100% donation rates. It's not enough to die with a donor card in your pocket. You have to die in exactly the right circumstances. The best case scenario is therefore a doubling of available organs (about half of appropriate organs are donated today), which would barely dent the kidney waiting list.


As for the market price, nobody knows what it is. But knowing exactly what's involved, $30,000 does not strike me as especially low. There are much, much less pleasant ways to earn $30,000. Ever been in a chicken-packing plant?


As for the complaint that Eugene's argument is "technical and legalistic," I thought that was the whole point of a law review article. Philosophers, economists, religious scholars, and policy wonks have addressed the question from other perspectives.
11.10.2006 8:47pm
frankcross (mail):
Well, it seems that people place a value on not commodifying organs. But that fact doesn't dejustify the proposal. If in fact a market in organs would save lives, perhaps a significant number, you have to directly confront that. If you have respect for humanity, and human life, you have to explain why your concerns about commodification warrant causing death. It's not enough to say I don't like it or invoke amorphous value concerns. You have to justify why those concerns are more important than human lives that go unsaved.
11.10.2006 8:49pm
Arvin (mail) (www):
I don't understand the complaints that an argument is "legalistic" and "technical". What does that actually mean? Is the argument illogical? Does Eugene miss a point? Does he make an unwarranted leap from A to B to C? If not, what's wrong with his argument?

No one is required to prove him wrong, but if he starts with something we all agree with and then comes to an unsettling conclusion, either something is wrong with his logic, or we don't really agree with the premise, or his conclusion, however unsettling, is correct. If the latter, perhaps we need to re-examine our own thinking and feelings. I'd hate for people to die while waiting for an organ because "I just don't FEEL like it's right for them to be able to buy one."
11.10.2006 9:18pm
Mho (mail):
Thanks to Frank Cross and Arvin for defending reason. When the only answer to an argument is simply "I don't think that" and "I'm not going to be persuaded," then we have, as Ginny offered, something else going on. I think what's going on is that certain people are pretending to argue a legal idea when in reality they are arguing against legal argument itself. So, what are they doing on a legal blog?
11.10.2006 11:09pm
TJIT (mail):
The hypertechnical concern over possible exploitation of poor people or the debasement of our humanity is killing people on a daily basis.

Donating an organ is an act that helps out individuals and society. In my opinion giving people who are willing to donate organs some sort of reward is good for the donor, the recipient and society.
11.10.2006 11:56pm
eric (mail):
Sorry if this has been covered in earlier posts, but would there not be a good argument for allowing this practice to help the poor in third world countries? I think the benefit to these "truly poor" would be much higher than any inherent risks, of course there are extra costs, such as testing for exotic diseases, etc.
11.11.2006 1:48am
billb:
Virginia: I'd rather work in a chicken plant for a year than lose a kindey for the rest of my life. $30,000 is a pittance when compared to the lifetime earnings of a young person who makes half as much per year or more.

The real problem for live-donor organ sales is that the amounts being bandied about sound large, but they probably ail to capture the longterm of the sold organ to the donor. Half the recipient's earnings per year for life begins to approach reasonable compensation for organ sales from living donors (in my mind, at least). I don't think that an open market would come to that sort of equilibrium price (by far), since I doubt that most people are capable of reasoning about the value of their organs in the grand scheme of things. It seems to me that few donors will effectively internalize the long-term cost of selling an organ, and that since the associated risks are entirely external to the buyer, the market for organs is likely to ridiculously inefficient. Also, since the effects of organ sales are not likley to be felt by sellers (assuming that the up-front costs are low) for decades in most cases, traditional feedback mechanisms are unlikely to drive prices appropriately high.
11.11.2006 3:45am
Elliot123 (mail):
I continue to be amazed that folks think it's OK to give up an organ for nothing, but there is something wrong with giving one up for something.

PatHMV,
If orgns are not legitimate objects of commerce, is medical care a legitimate object? Is cutting out a tumor a legitimate object of commerce?

mn489,
The risks of organ donation are not a function of the price paid to the donor. I note we allow people to freely accept risk that is far greater than that of organ donation. Should we adopt a policy of prohibiting all risk, or only prohibiting risk of organ donation? If that is the case, then risk is not a decision variable.

AMDG,
I suppose asigning a value to organs might debase the value we see in our humanity, but that would require that we have a monetary basis for that valuation. We assign monetary value to human labor. Does that debase our humanty? We assign monetary value to a lost life. Does that debase our humnity? We even sell the education that teaches about the value of human life.

I note that food, shelter, and clothing are necessary for human life. They are abundant in our society precisely because we do asisgn a monetary value to them. Organs are not available because we refuse to assign a monetary value.
11.11.2006 3:45am
ReVonna LaSchatze:
Eliot--

It's a scavenger process.
Someone in need convincing someone without money that he should sell his organs for money. An education process should start to explain to poor people why they should not "sell themselves" for mammon.

I expect the Catholics would do this -- it's fits into concepts of bodily integrity, and human worth. Much like there are reasons you cannot "buy" all poor people as sex workers, or convince them to provide their children for adoption.

The answer to to change attitudes in transplanting cultures toward donation and paying for human parts. If you cannot convince your own, I suspect you will pay a price when you come into some poorer areas waving a fistful of dollars. Harvesting healthy organs -- what happens years later near the end of the donor's life if it turns out, "Damn, turns out that "extra" kidney wasn't just a designer's error."

Education progams aimed at the supply stock, designed to inform them to pass up the instant cash gratification, will prove effective to the detriment of the business types. Better to meet your own supply needs, and not look elsewhere.
11.11.2006 4:51am
ReVonna LaSchatze:
As for the market price, nobody knows what it is. But knowing exactly what's involved, $30,000 does not strike me as especially low. There are much, much less pleasant ways to earn $30,000. Ever been in a chicken-packing plant?

Virginia Postrel makes the error in thiking that organ donations are risk free. An "easy" $30,000, or a year (at union wages) working in a chicken packing plant?

If we think buying their spare body parts is the way to solve or even help people in struggling countries, God help us all.
11.11.2006 4:58am
Robert Jackson (mail):
Volokh: If someone thinks the prospect of making tens of thousands of dollars is worth a small health risk, the government's interest in protecting him against being overtempted by the money shouldn't suffice to trump the medical self-defense rights I've discussed.


The problem I have with this argument is that it falsely separates the individual from the government to rail against paternalism. But if we instead think of the law as simply a reflection of our ideas and desires codified and backed by the force of sanction (or given community respect), or some other expression of self-governance, then there is no paternalism; there's just us communally making decisions for ourselves.

Me preventing myself from being tempted is quite different than someone else preventing me from being tempted. The latter is disrespectful to my autonomy; the former is rather like me choosing to have an alarm clock -- there is the me that wants to sleep in and the me that wants to get up, and I know that the me that wants to get up has the better instinct, which is why I have the alarm clock to wake up the me that wants to sleep in. It is also why I have hidden the alarm clock under the bed, so that the me that wants to sleep in can't hit the snooze button.

So if the medical self-defense rights are not in tension with the government's interests, then the balance of financial gain to health risk simply reflects the amount of temptation we think appropriate for ourselves. In which case, there is nothing to be trumped: there is no "paternalistic system that interferes with recipients' self-defense rights and providers' freedom of choice." We could "let all adult, competent would-be organ providers decide whether to sell their organs," but we clearly do not want that. Just like we do not want to get up late, and so purchase alarm clocks.

I suppose Volokh has the burden of persuading us that we should want something that we do not want. I do not think positing a fictional paternalistic authority that we can theoretically get mad at does the trick.
11.11.2006 5:22am
Robert Jackson (mail):
Organs are not available because we refuse to assign a monetary value.

Organs are not available because we do not invest in cloning.
11.11.2006 5:27am
Arvin (mail) (www):
Robert Jackson,

But would you want the government, in which I, too, have a vote, to tell you what kind of alarm clock to buy, where to put it, and at what time you should set it for?

Or, to put it another way, preventing me from selling an organ is not you buying yourself an alarm clock. It's you buying ME an alarm clock and putting it under my bed so I can't hit snooze. And THAT I'd object to. I'd also object to you outlawing alarm clocks. I'd rather vote for the choice that lets me pick whether to buy an alarm clock or not, and what to do with it once I do buy it.

Now, YOU could write up some sort of contract (perhaps binding) that says "any attempts by Robert Jackson to sell an organ shall be null and void" and that might take away your temptation if you wish your temptation to be taken away. But making it the law for everyone writes that contract for me too.
11.11.2006 5:45am
tioedong (mail) (www):
Several problems.
One should look at history of buying body parts/blood/organs to see what would result.
One: The pressure on very poor people to donate would be intense. Here in the Philippines, we lost 1000 people in a stampede for a quiz show, because they saw this as the only way to get rich. Similarly, such poor people would be easily exploited by con men who will dazzle them with the idea of easy wealth. This is probably a third world problem, but if the money is good, one can imagine people coming to the US on visas to donate organs for money.
Two: Experience in India etc. shows that often the people donating get a pittance, and the middle man is the one who gets rich.
Three: A doctor from India working in the US went back to his country and interviewed those who donated organs, and found that they were NOT financially better off. The fees were small, often spent quickly, and often the patient left with poor health from the operation, so they couldn't work (often the poor donors are laborers who after the surgery lacked stamina or had health problems that made it hard to continue at hard labor). The end result was actually bad for the donors.
Four: Donors in the USA would probably not be donating out of such desperation; like blood or sperm or other schemes they often targeted students who partly did it for money but also partly from altruism...the money was not really the primary reason, but helped. (When I was in medical school, donating sperm, blood, or plasma was a common practice for extra money). Yet if money was involved, could the donors be screened for mental and physical illness?
Five: Even in the USA, corruption is a possibility. We learned this lesson when in the days before HIV, Blood banks often bought blood from slum dwellers (including drunks/addicts). This resulted in the spread of Hepatitis B and C...there is a scandal about Arkansas prisons selling blood for plasma that caused a lot of hepatitic C in Canada in the 1980's and 1990's...
Six: once organ donation become associated with money, people will stop signing donor cards for fear of being left to die so their organs can be removed by greedy doctors, or by greedy relatives. "Law and order" had an episode of this, so it's probably an urban legend, but urban legends do influence behavior. The end result would be fewer organs.
11.11.2006 7:45am
Nels (mail):
Did I miss the discussion about how groups of people or the state have right to impose their will on voluntary exchange? Oh, sorry, I forgot this is a legal blog...

I do like Eugene's self defense arguement for experimental drugs. Its a pitty we have to petition the state to take actions to save our own lives.
11.11.2006 8:26am
ReVonna LaSchatze:

Did I miss the discussion about how groups of people or the state have right to impose their will on voluntary exchange? Yeah, get in line behind the medical marijuana folks.

If it's truly a one-time organ transplant process, undertaken in self defense, wouldn't the recipient take a civil disobedience approach, much like some of the medical marijuana proponents presumably are doing? Ask for mitigation, if caught?

There is no "right" for society to condon selling body parts.
11.11.2006 10:39am
Speaking the Obvious:
AMDG: "I am a human being and inherently deserving of respect for that fact."

Amazingly, AMDG believes that the above logically entails:

1. Therefore, others should prohibit me from voluntary efforts to save my life, and

2. Therefore, others should prohibit me from voluntary efforts to finance my goals by helping people in need.

Actually, the opposite is true. Does AMDG really think if he were dying from lack of an available kidney he would want to be told, "Fortunately, by limiting your options and precipitating your death, we are preserving your dignity as well as the dignity of those who would have, like your doctors, been willing to help you if compensated."
11.11.2006 11:05am
Avatar (mail):
Actually, the point of foreign exchange is interesting, and one I hadn't considered. WHEREVER the actual market value for an organ falls, that's going to be much more attractive for someone living in an area with a lower standard of living; in practice, the sale of organs is going to have a high correspondence with the importation of organs from poor countries. Man, talk about your foreign relations nightmare...
11.11.2006 11:41am
Waldensian (mail):

I continue to be amazed that folks think it's OK to give up an organ for nothing, but there is something wrong with giving one up for something.

Substitute "sex" for "organ" in this equation and you'll find that the vast majority of the American public holds a similarly amazing belief.

Tip of the hat to George Carlin for this concept, of course. The link is well worth a read -- amazingly, in this same standup routine, he talks about organ donation programs! What are the odds?!?

It's really unfortunate things are this way. I'm convinced I could make a fortune if prostitution were legalized. I'm just that good-looking, what can I say (here's a photo).

And in this new regime, perhaps I could supplement my enormous income by selling chunks of my liver. Apparently it would regenerate, although perhaps not often enough for me to afford a new car each year.
11.11.2006 1:09pm
Ken Arromdee:
Actually, the opposite is true. Does AMDG really think if he were dying from lack of an available kidney he would want to be told, "Fortunately, by limiting your options and precipitating your death, we are preserving your dignity as well as the dignity of those who would have, like your doctors, been willing to help you if compensated."

It is often true that rules designed to help people in general may harm someone in a specific case. That person who is harmed could then say "wait a minute! How can you claim it's for my benefit when you're obviously hurting me with this rule?" Such an objection isn't valid.

For instance, sometimes guilty people get let free because of the exclusionary rule. Can you imagine someone being attacked by a criminal saying "what do you mean you exclude illegal evidence for my benefit? If you hadn't excluded illegal evidence the guy who attacked me would have been in jail right now!"
11.11.2006 1:37pm
logicnazi (mail) (www):
I just don't understand how the objection you are responding to could possibly be taken seriously.

Unless your belief is that the poor people are too stupid to know what is good for them you must assume any 'coercion' comes from the fact that the money is really worth more to them than the organ. Yet if this is true the real harm is all in their poverty not in the organ donation poverty.

I think many of these objections have more to do with the lies we tell ourselves than any real problem with the scheme. We would like to believe that being poor isn't that bad and that we don't have a moral responsibility to do something about it. Then when a program comes along that lets poor people make a stark choice showing that having more money is worth more to them than an organ we get uncomfortable.

--

A far more moderate organ payment scheme is possible though. Give everyone who agrees to be an organ donor (agrees is a fashion where their family can't decide not to donate after their death) that year a hundred dollar deduction on their taxes. Sure we can even let people bail out but once you bail out once you would be barred from ever joining the program again. Of course such a scheme would have to be government run but even such a small scheme would likely radically increase the number of organs availible.
11.11.2006 2:05pm
Elliot123 (mail):
The comment by Robert Jackson sparks a thought. Suppose science advanced to the point where we could grow an extra liver or kidney which could then be sold to someone in need. Would it be my choice to be a kidney surrogate? Could I do so only for free? Would the dignity of all humanity be diminished if I carried the organ for a few months, lopped it off, and pocketed $30,000?

But, what if I just want to sell my hair for a wig? Is all humanity diminished? Perhaps the dignity diminishes only if there is signficant pain and discomfort for which the donor is paid? I suppose that would mean the dignity of all humanity increases if the poor man goes through pain and discomfort, then walks away poorer (Is poorer a word? It looks awful.)
11.11.2006 2:18pm
Robert Jackson (mail):
Arvin: But would you want the government, in which I, too, have a vote, to tell you what kind of alarm clock to buy, where to put it, and at what time you should set it for?

Again, here comes the false separation of "government" over "people". "Government" doesn't work the way you suggest. We don't take a mass uneducated vote. The alarm clocks permitted for sale are those approved by the agency that oversees the safety and relability of alarm clocks, e.g., The Alarm Clock Agency ("TACA"), and the officials at TACA are experts in alarm clock science who act on the public behalf. So there is no paternalistic mandating of "You must buy this kind of clock!" It's that every kind of the clock on the market meets the basic standards set by TACA and so falls within an acceptable range of quality. We have TACA because we don't want alarm clocks that explode when we hit the snooze button, just to take an example. And we all agree that it is a good goal, otherwise TACA -- an independent, non-partisan agency -- would not exist.
11.11.2006 2:44pm
markm (mail):
Caliban Darklock:

"Aren't 21-year-olds adult enough that we shouldn't treat them as second-class citizens who can't make intelligent choices?"

Oh, you just want to have sex with them!

That's what everybody says when I suggest that about 14 year olds.

The humor is appreciated, but is there a point to it? If 21 isn't old enough, what age would be old enough?

My experience as a parent and grandparent is that no one will ever grow up as long as they are "protected" from making bad choices. And if you think it might be a good idea to thus protect people for life even if it keeps them somewhat childish, remember that this will affect the people making the decisions, too. We've already had far too many examples of Congressmen, Senators, and Presidents acting like less than mature adults.
11.11.2006 4:55pm
Ivan_123:
logicnazi:
I think many of these objections have more to do with the lies we tell ourselves than any real problem with the scheme. We would like to believe that being poor isn't that bad and that we don't have a moral responsibility to do something about it. Then when a program comes along that lets poor people make a stark choice showing that having more money is worth more to them than an organ we get uncomfortable.

Well said. I would add that the main point of this argument -- the one about the widely practiced major self-delusion -- doesn't even require the assumption that one has any moral responsibility to help poor people.

This self-delusion can be best seen when one considers the fact that sometimes the government itself puts poor people into situations where they would be vastly better off if they could sell their organs -- and then prohibits them from making such a beneficial trade. For example, if you're arrested under false suspicion for a serious crime and you don't have enough money to hire a decent lawyer, you're screwed big time. In such a situation, I would very gladly give a kidney in exchange for a sum that would give me a decent chance of getting out of trouble. And although this isn't very probable to happen to any individual person, only very naive people believe that the total number of such cases is negligibly small.

But as "logicnazi" pointed out above, people like to delude themselves into thinking that one could never get into a situation where one faces much worse prospects than losing a kidney. No wonder that even fewer people are capable of grasping that people can be forced into such situations by the same institutions that enforce the ban on organ selling. Talk about hypocrisy.
11.11.2006 5:32pm
Robert Jackson (mail):
No wonder that even fewer people are capable of grasping that people can be forced into such situations by the same institutions that enforce the ban on organ selling.

It depends what you mean by forced. The criminal procedures hit hardest those populations that do not vote, because there is unlikely to be any electoral backlash for their implementation. It is absurd to criticize government policy that harms you at Stage 2 when you could have participated in the formation of that policy at Stage 1 so that it would not cause you any harm.

It is also absurd to claim the "government" made you sacrifice your human dignity in exchange for attoney's fees for a non-public defender (nevermind the fact that many public defenders are super-brilliant top-law school grads). If selling your organs violated your sense of human dignity, you wouldn't have sold them. That you did suggests you never had the sense of human dignity that you now claim. Moreover, the government pays for a public defender. It also pays for whomever investigated you, someone who works in an office that investigates actual criminals, thus keeping you safe.

I am not sure how you can say with certainty that the value of public safety and public defenders is outweighed by a conception of human dignity that mandates selling one's organs and neglecting to vote.
11.11.2006 6:02pm
Ken Arromdee:
If organs can be sold upon death, wouldn't that make organs into assets, which would thus be subject to estate tax? This may make it very expensive to not donate the organs, since the heirs would be receiving the asset, destroying it, but paying taxes on it first. They may be forced to sell the organs to pay the taxes on the estate; in fact, for someone with few assets, his organs could very well be the biggest part of his estate.

For that matter, what about organs that can be sold while the person is still alive? Would it be impossible to file for bankruptcy because you still have some assets (organs) that you haven't sold? Will the value of someone's organs be considered as an asset in determining if they are eligible for financial aid at a school? Or for welfare? How are the organs divided up in a divorce? (Imagine a situation where one party gets a disease during the marriage rendering his/her organs worthless.) If you owe a lot of money, could a creditor legally confiscate your organs? (Of course, they wouldn't just knock you out and take the organs; they'd get a court order and you'd be jailed until you agree to provide them.)
11.12.2006 4:17am
Ken Arromdee:
Yet even if I'm wrong, recognizing that the organ sales ban limits patients' rights should invalidate such a serious burden on their rights if the law can prevent the harm through lighter burdens. For instance, the law might exclude living providers who we think are unduly tempted by a $30,000 per-organ payment -- say, the very poor (perhaps they're too desperate), young adults aged 18 to 24 (perhps they're too present-centered)

If you would agree to a law like that, well, as the joke goes, we've already established what you are and we're just arguing over the price. Banning even some people from donating organs on the grounds that they are unduly tempted admits that there is such a thing as undue temptation. Once you admit that, then whether you think that only ages 24 and under are unduly tempted, or all ages, is merely arguing about the exact extent of a phenomenon that you already agreed exists.
11.12.2006 4:22am
Ken Arromdee:
It also pays for whomever investigated you, someone who works in an office that investigates actual criminals, thus keeping you safe.

This is related to a problem I described earlier for a completely different reason.

There are things which we accept which benefit people overall, but which may cause harm to specific individuals; and the prime example of that is the criminal justice system. If you have a criminal justice system, innocent people will be hurt--but if you don't, different innocent people will be hurt by the criminals that you don't catch.

So it's not really fair to claim that the government has made anyone worse off by sending innocent people through the criminal justice system. Individual people may be worse off, but other, more numerous, individual people would be worse off without it.
11.12.2006 4:33am
Speaking The Obvious:
Me: "Does AMDG really think if he were dying from lack of an available kidney he would want to be told, "Fortunately, by limiting your options and precipitating your death, we are preserving your dignity as well as the dignity of those who would have, like your doctors, been willing to help you if compensated."

Ken Arromdee: "It is often true that rules designed to help people in general may harm someone in a specific case. That person who is harmed could then say "wait a minute! How can you claim it's for my benefit when you're obviously hurting me with this rule?" Such an objection isn't valid."

The key words, Ken, are "voluntary" and "dignity". Most would agree that one component of human dignity, for an adult, includes autonomy. Treating someone as a ward who can't be trusted to make "dignified" decisions on his own behalf is, itself, an affront to his dignity.

So far, we have been manipulating the variable "money". It is socially acceptable, it seems, to choose to give away one's kidney for free, but not for money. Can we also manipulate the variable "choose"? If it's socially acceptable to choose to give away one's kidney, can human dignity be enhanced by forcing other's to give away their kidneys? Isn't a government powerful enough to say people should die who could be saved by prohibiting kidney sales also powerful enough to say people should be saved who would have died by mandating kidney donation?
11.12.2006 5:36pm
Dick King:

If you owe a lot of money, could a creditor legally confiscate your organs? (Of course, they wouldn't just knock you out and take the organs; they'd get a court order and you'd be jailed until you agree to provide them.)


Nonsense.

We don't indenture able-bodied debtors to their creditors when the judgment is entered and hold them in jail until they agree to dig the creditor's ditches. Even if you have the physical ability to dig ditches and could even hold down a physical job, if you choose not to do so nobody forces you to work rather than go bankrupt. If you do obtain such a job we do garnishee your wages, and I suppose if there's a judgment the creditor could garnishee the organ fee [thus reducing the incentive to actually sell a kidney], but there is little danger of being held in contempt if you don't sell a kidney to pay a judgment.

Having said that, I must admit that there is one exception. In ordinary debtor/creditor law the debtor is garnisheed based on what he actually earns. In alimony and child support situations he must based on what some court thinks he could earn, and if he is laid off he has to convince some judge to reduce his payment -- at considerable expense -- or he can in fact end up in jail. This needs to change. The post above calling organs an asset to be divided up at divorce is not salient because marital law always considers assets you had before you were married to be yours alone, not subject to division, but there is risk of some rogue judge ordering your parts sold to pay alimony.

-dk
11.12.2006 7:38pm
AMDG:
Speaking the Obvious

Actually, the opposite is true. Does AMDG really think if he were dying from lack of an available kidney he would want to be told, "Fortunately, by limiting your options and precipitating your death, we are preserving your dignity as well as the dignity of those who would have, like your doctors, been willing to help you if compensated."



Asking what I would say or do if placed in a desperate, life-threatening situation is a poor way to determine what is right, or even what I think is right. The relevance here is theoretical but I put the question to you: how many meals would you have to miss before you began considering a desperate act? If you were to stop eating tomorrow, could you defend today what you might be willing to do for food next week?

The point has been made, in references to unknown long-term health problems, the limited benefits in practice, and the similarities to prostitution, that organ donation has potentially grave and far-reaching consequences, not all of which are immediate. Asking us to weigh the abstract societal harms against an immediate personal benefit is unwise. Instead, we should make this decision after careful consideration. Placing certain actions outside the scope of legality is a way to keep our basest urges in check.

Moreover, the sale of organs is a policy choice and does not exist in a vaccum; there are better ways to help the poor than granting them the dubious benefit of selling their bodies to the highest bidder.
11.12.2006 11:11pm
joe (mail):
Haven't read all of your posts yet, but I'm very interested and will soon.

Have you seen this?

CNN article on kidney market in Pakistan
11.12.2006 11:23pm
Ken Arromdee:
The key words, Ken, are "voluntary" and "dignity". Most would agree that one component of human dignity, for an adult, includes autonomy. Treating someone as a ward who can't be trusted to make "dignified" decisions on his own behalf is, itself, an affront to his dignity.

Someone who's been falsely imprisoned has certainly lost his autonomy, which means I could make the same argument about a criminal justice system. Both a criminal justice system and a ban on organ selling violate the autonomy of a certain number of people who would not wish to have that done to them. But we accept that, because these policies are overall beneficial.
11.12.2006 11:54pm
Ken Arromdee:
We don't indenture able-bodied debtors to their creditors when the judgment is entered and hold them in jail until they agree to dig the creditor's ditches.

If you sell an organ, are you doing a job? Or are you selling a piece of property?

We certainly *do* confiscate property from debtors.
11.12.2006 11:57pm
Ken Arromdee:
The post above calling organs an asset to be divided up at divorce is not salient because marital law always considers assets you had before you were married to be yours alone, not subject to division, but there is risk of some rogue judge ordering your parts sold to pay alimony.

I'm not an attorney, but as far as I can tell through a Google search, property from before the marriage may sometimes become community property if both spouses contribute to its upkeep. It wouldn't be hard to decide that both spouses have contributed to the upkeep of one spouse's organs.
11.13.2006 12:07am
Virginia Postrel (www):
ReVonna LaSchatze suggests that a) I think donating a kidney is risk free and b) by implication, people should only be able to get paid for doing things that are risk free. I certainly don't believe the latter, but the risk is in fact relatively low and is primarily the risk of the surgery itself, including risk of infection. More important, selling a kidney, under the legal and medical protections of the U.S. health care system, would be far less dangerous than many other admirable and socially important things people are allowed to do for money. We let people get paid to fight California forest fires, even though some of those fire fighters die horrible deaths as a result. Those fire fighters do not generally come from wealthy backgrounds, but neither are they ignorant of the risks they're taking. Selling organs should be regarded similarly--as a somewhat risky, humanitarian activity for which payment is perfectly appropriate.
11.13.2006 12:48am
Virginia Postrel (www):
Correction: "I certainly don't believe the former."
11.13.2006 12:49am
Speaking the Obvious:
Ken Arromdee: "Someone who's been falsely imprisoned has certainly lost his autonomy, which means I could make the same argument about a criminal justice system. Both a criminal justice system and a ban on organ selling violate the autonomy of a certain number of people who would not wish to have that done to them. But we accept that, because these policies are overall beneficial."

The difference, Ken, is that we don't set up a system DESIGNED to FALSELY imprison people. FALSE imprisonment is a recognized design flaw in a system designed to imprison those who truly violated other people's rights. Therefore it is off point to compare this to a system, like organ-sale prohibition, that IS *designed* to limit one's autonomy and dignity.

In other words, we accept, given human error, that a system designed to protect us against violence by imprisoning people who commit violence against others will occasionally falsely imprison someone. But the deaths associated with organ-sale prohibition, and the loss of autonomy and dignity associated with the prohibition, are NOT design flaws in a system geared to achieve something else. This is PRECISELY what the system sets out to achieve.
11.13.2006 2:46am
David M. Nieporent (www):
The problem I have with this argument is that it falsely separates the individual from the government to rail against paternalism. But if we instead think of the law as simply a reflection of our ideas and desires codified and backed by the force of sanction (or given community respect), or some other expression of self-governance, then there is no paternalism; there's just us communally making decisions for ourselves.
The problem I have with this argument is that it falsely equates the individual and the government. Whether we "think of" the law as "simply a reflection of our ideas and desires" or not, doesn't make it so. We can only have individual desires, not "communal" ones. The concept doesn't make sense.

You making a decision for me is paternalistic, by definition, whether or not you slap the label "community" on it. I didn't ask your opinion and didn't authorize you to make a decision for me.

Again, here comes the false separation of "government" over "people". "Government" doesn't work the way you suggest. We don't take a mass uneducated vote.
We do indeed.
And we all agree that it is a good goal, otherwise TACA -- an independent, non-partisan agency -- would not exist.
We don't "all" agree on any such thing. You seem to confuse the majority with everybody.
11.13.2006 2:53am
Ken Arromdee:
The difference, Ken, is that we don't set up a system DESIGNED to FALSELY imprison people. FALSE imprisonment is a recognized design flaw in a system designed to imprison those who truly violated other people's rights. Therefore it is off point to compare this to a system, like organ-sale prohibition, that IS *designed* to limit one's autonomy and dignity.

Like many arguments, this depends on exactly how tyou phrase your characterization of the issue.

I could just as well say that preventing the selling of organs is only intended to accomplish some goal that helps people other than the ones being prevented from selling organs, and limiting people's autonomy is only a side effect of preventing that, not a design goal. (Exactly what the goal is depends on the particular argument for the ban.)
11.13.2006 9:32am
nn489:
I realize that "dignity" is an extremely pliable concept, but why should it seem so incredible that some people would hold the opinion that preventing people from purchasing add-on body parts protects their dignity? After all, the creation of a market in body parts would force buyers as well as sellers to place a monetary value on their lives and on the possession of specific functioning organs. It certainly isn't obvious to me that there's no denigration of anyone's dignity going on here.
11.13.2006 1:43pm
Hans Gruber:
Virginia,

I've been inquired in a previous whether anybody had figures on organ donation supply and demand. You say that the best we could hope for from donations from the deceased is double what we currently get. You also say this wouldn't put a dent in the current need. Can you provide some actual figures for these conclusions? Thanks.
11.13.2006 4:15pm