The arrest of Brooklyn Rabbi Levy Izhak Rosenbaum for trying to broker the sale of a kidney has rekindled public debate over the possibility of legalizing organ markets. This is an issue I teach every year in my Property class. Each time, one of the most common objections raised is the claim that organ markets must be banned because they will lead to "exploitation" of the poor. Obviously, the exploitation argument is often raised elsewhere as well.
There are several major problems with the argument: it is inconsistent with allowing poor people to engage in far riskier activities for pay; it doesn't even begin to prove that preventing the "exploitation" is an important enough value to justify the deaths of thousands of people for lack of organs; and it overlooks the fact that poor organ donors are likely to benefit from organ markets. Finally, even if all these points are unpersuasive, the exploitation argument still can't justify banning organ sales by the nonpoor as well.
I. Poor People Are Allowed to Take Much Greater Risks for Pay.
Many organ market critics may be unaware of the fact that the risks of donating a kidney (the main proposed organ market) are actually very small. As the National Kidney Foundation explains, people who have only one kidney can live normal lives with only minor added health risks, and a life expectancy equal to that of those with two kidneys. For those who sign advance contracts to donate their kidneys after they die, even these minimal risk are not present.
If it is somehow wrong to allow poor people to assume these very minor risks in exchange for pay, why should they be allowed to brave vastly greater dangers for money? Military personnel, firefighters, police officers, and others accept far greater risks to life and limb than kidney donors do. And of course they are paid to do so. Should poor people be banned from entering those professions? NFL players, most of whom come from poor backgrounds, risk very serious injuries. On average, they also lose about 2-3 years of life expectancy for every season they play. Yet no one argues that poor people should be banned from professional football. If it is permissible to "exploit" poor people for the sake of providing entertainment to football fans, shouldn't we be able to do so for the sake of saving thousands of lives?
II. Is Preventing "Exploitation" Important enough to Justify Killing Thousands of People?
As Virginia Postrel explains in this article, some 80,000 lives in the US alone could be saved by legalizing kidney markets. Even if you find the "exploitation" of poor people in organ markets morally repugnant, you have to ask whether following that moral intuition is so important that it justifies sacrificing all those lives. So far, I haven't seen any argument that even comes close to showing that it is.
In this context, it's worth noting that banning kidney markets is actively killing people, not merely the lesser wrong of letting them die by refusing to help. When the US government bans organ markets, it uses the threat of force to prevent dying people from engaging in voluntary transactions to purchase what they need to survive. Those who disobey are imprisoned, as Rosenbaum probably will be. The government would obviously be guilty of active killing if it used force to prevent a starving man from buying from willing sellers the food that he needs to survive. And it could not excuse the killing merely on the grounds that some of the sellers were poor people who might be "exploited."
It's perfectly understandable if you find organ markets offensive or distasteful. But if you want to justify a categorical ban, you have to have a rationale compelling enough to justify killing large numbers of people.
III. Organ Sales are Actually Good for Poor Donors.
Given the minimal risks of organ donation, it is highly likely that kidney markets will actually benefit poor donors far more than they could conceivably harm them. The logic isn't complicated. After all, one of the main problems that poor people face is lack of money. Getting, say, $100,000 for a kidney in exchange for accepting a very small health risk is likely to leave a poor donor much better off than he was before. Indeed, I might well accept that deal myself, despite being relatively affluent. Perhaps the existence of poverty is a morally repugnant injustice. If so, we should be extremely reluctant to ban transactions that might help the poor to alleviate it.
If the poor person reasonably believes that the risk is worth it, I don't see why the government should force her to choose otherwise. Obviously, it's possible that she will miscalculate, underestimating the potential harms. Perhaps that justifies regulations requiring the provision of accurate information about health risks to donors. But it surely doesn't justify a categorical ban - especially given that the risks of donation are minor and relatively easy to understand. If poor people can be trusted to make decisions about whether or not to accept the much greater dangers of military service, firefighting, or playing in the NFL, we should also trust their judgment about organ markets. Indeed, if ill-informed decision-making is really the problem, it would justify banning unpaid organ donations by the poor no less than sales. After all, an unpaid donor could misunderstand the risks just as easily as a paid one.
IV. The Exploitation Argument Doesn't Justify a Ban on Organ Sales by the Nonpoor.
When I teach this issue in Property class, one suggestion I sometimes throw out to people who raise the exploitation issue is the possibility of limiting organ markets to nonpoor sellers. Wouldn't the "problem" be solved by passing a law allowing organ markets, but limiting them to donors whose annual income exceeds some threshold (e.g. - the poverty line or the national average income)? Given that we have 300 million people and only need about 80,000 additional kidneys, a market that excludes the bottom 50% of the income distribution could still probably generate enough organs to eliminate the shortage, or at least a large part of it. Indeed, legalizing organ markets only for nonpoor sellers might actually reduce sales by the poor relative to the status quo, since it would wipe out much of the demand for black market organs (which are usually sold by poor people).
In my experience, those who raise the exploitation argument almost never endorse this proposal - despite the fact that it would eliminate any possible exploitation of the poor caused by legal organ markets without killing thousands of innocent people (as today's categorical ban on organ markets does). Few of them raise any technical policy objection to it. They simply seem find the idea intrinsically distasteful. Nonetheless, if your main objection to organ markets really is the fear of exploitation of the poor, you should at least give the idea some serious thought. If, on the other hand, the exploitation argument is just a rationale for some other objection such as intuitive repugnance at the mere thought of organ sales, then we would have a better discussion if you admit that and focus on the real object of your concern. Just remember that it should be a principle important enough to kill innocent people for.
NOTE: I should perhaps mention that in class, I assign readings on both sides of the issue and don't simply lecture in defense of my own view. I also don't present my objections to the exploitation argument as thoroughly as I have here (partly because of the need for balance and partly because of time constraints). The classroom environment is very different from the blogosphere and imposes different obligations on academics.
UPDATE: The original version of this post said that kidney markets could save 80,000 lives in the US every year. Unfortunately, I misread the source article. In reality, there are only about 80,000 people waiting for kidney transplants in the US in total, with approximately 4000 dying each year. And the article notes that the waiting list (and death toll) grow every year. These are still shocking figures, but admittedly not as bad as the mistaken figure given in the original post. I regret the error, and have corrected the post.