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.]