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.