The real question is not whether a market for human organs or other bodily tissue should exist; it already does. According to the United Network for Organ Sharing, in the United States alone more than 50,000 people needed a human organ in 1993. More than 2,885 people died before receiving one. In 1992, about 4,500 people donated organs and, although the average was about 3.5 organs per donor, that left the supply far short of the demand.
The problem is not restricted to the United States, however, because the shortage is worldwide. In response, several European countries have adopted "presumed consent" laws. These laws permit the authorities to presume you agree to having your organs "harvested" at death unless they can find a document stating otherwise. In Austria, the organs of deceased foreigners can be harvested.
Organ transplantation has become a lucrative venture, and more and more health care providers are entering the market. Thousands of dollars go to the doctors and hospitals performing the transplants and thousands more to nonprofit organizations that procure the organs. According to a 1993 article in the Journal of the American Medical Association, for example, organ procurement charges in 1988 ranged from $16,000 to $21,000 (1991 dollars). But all the donor or the donor's estate can receive is reimbursement for any actual expenses and lost time. No compensation or consideration of any kind legally can pass from the recipient to organ donors or their heirs -- regardless of how poor the donor might be.
That's because the National Organ Transplant Act of 1984 prohibits "any person to knowingly acquire, receive or otherwise transfer any human organ for valuable consideration for use in human transplantation." As a result, the only legal reason for a person or a person's surrogates to donate one or more organs is altruism.
Because altruism is the only permissible motive, the shortage of organs is so chronic that international organized crime has become involved. But while altruism is a noble motive, it seldom is compelling. Economic theory clearly recognizes that when demand is high for a good or service, its price will increase until the supply and demand reach an equilibrium. If the price is prohibited from rising, a shortage will occur. To restore the balance so supply meets demand, price controls must be removed.
But, it is argued, wouldn't commercializing or "commodifying" human organs undermine the idealism of the system, enticing potential donors to think only of the monetary value and not of the moral value of their act? Perhaps, if one thinks that good can be achieved only if no compensation changes hands. For example, it would be kind of educators to donate their time to our children and beneficent for grocers to give away their food. Yet no one accuses teachers or grocers of undermining morals by accepting payment for their work and goods.
The fact that people usually receive compensation for their goods and services does not preclude them from being generous on occasion. When a major tragedy occurs, vendors often donate products--food, clothing, tools, etc.--and people often volunteer their time to help the victims. But these acts of generosity are the exceptions, not the rule--and it is precisely because they are exceptional that we find them praiseworthy.
In Christianity, for example, the imperative to benevolence is an individual imperative, and Christians thus are individually praiseworthy or blameworthy for their acts. The New Testament never implies that those who are compelled to do benevolent acts are worthy of praise.
Thus, in accordance with JudeoChristian teachings, the proper attitude with respect to organs and other bodily tissue is that while it would be considered a great humanitarian act for a person to donate an organ, there should be no ethical stigma attached to someone who desires compensation.
Those who want to donate their organs free of charge should keep that right, and they should continue to be honored for their generous acts. The decision would be up to the donor. People who could afford to do so would respond out of generosity by giving organs for those who could not afford to pay. But those who are unwilling or unable to donate their organs should have an alternative.
Instead of promoting altruism in society, however, opponents of the commercialization of organ donation are promoting something that has been widely rejected by ethicists and philosophers: paternalism.
Two of the most basic ethical principles among medical ethicists are "patient autonomy" and "informed consent." Patient autonomy is the notion that each patient has a fundamental right to control what happens to his or her own body. Most medical ethicists agree that a competent, dying patient who wants to be removed from life-sustaining treatment has that right, even if others -- including the patient's physician -- disagree. Informed consent says that each patient has a right to be fully informed about the costs, benefits, risks and expected results of a therapy before consenting to treatment.
The notions of patient autonomy and informed consent require individuals to take responsibility for their lives. They must gather the information about a certain procedure or drug and make a decision -- which could be a life-or-death decision -- about which therapy (if any) they wish to pursue. The trend toward patient autonomy and informed consent has gone a long way in removing the paternalism that for years has characterized the physician-patient relationship.
Nevertheless, many of those who otherwise support patient autonomy and informed consent oppose permitting people to receive compensation for their organs, even though they recognize the principle of "self-ownership" in the body. In an effort to prohibit what they believe to be unethical -- namely, the sale of body parts -- opponents are willing to use the force of law to restrict donors' freedom.
But would the act of exchanging an organ for some type of compensation be so hideous? Are there other ways besides money to compensate donors for their time, pain and loss, or to compensate heirs for a donor's organs? The answer is yes.
A market for organs could develop in a number of ways. Some would be more open and direct; others might be indirect and incorporate the concerns of some of those who oppose compensation. The important point is that there are solutions.
First, allow people to sell whatever they want, when they want. The most open and market-oriented approach would be to permit anyone who wanted to sell one or more organs do so. Thus, if someone needed a kidney and was willing to pay for one, a compatible donor could provide the recipient with a kidney at the market-set price. While opponents of organ sales are horrified by this thought, it could serve a beneficial and humanitarian end.
Take, for example, a poor person in a Third World country. In most cases, people in poverty tend to have shorter life spans than middle- or upperincome people in the same country. Were the poor individual permitted to sell a kidney, he or she could use the money thus earned to start a business and perhaps emerge from poverty. It is not at all clear that, in the Third World, a poor person with two kidneys is better off than a middle-class person with one.
But wouldn't the ability to sell an organ induce a number of people to put themselves at risk? Those individuals are at no greater risk than if they had donated their organs, and provisions could be made to ensure their safety in the future.
The proposal mentioned above is, for some people, the most ethically troubling and thus is the least likely to be adopted. But a second alternative is to develop a futures market for organs. To discourage people from selling all or part of an organ they might need later, people could be compensated today for the possible future use of their organs. Financially, this approach might not be very rewarding, but it might slightly increase the supply of organs. If, for example, I want to put my heart up for sale, the possible purchaser -- an organ broker -- would have to look at the current value of a heart (let's say $5,000) and discount the time value of money and the possibility that my heart might not be physically sound at my death (though even the elderly whose organs are too old for transplant could participate, since physicians need organs for clinical trials and training). As a result, selling an "option" on my heart might not be very lucrative.
Third, permit people to receive after-death compensation by allowing organs to become part of the donor's estate. If I wanted to become an organ donor, I would simply contract with an organ-donor organization to pay my estate whatever the going rate was for each organ successfully harvested. Postponing compensation might reduce the number of potential donors, but many individuals might choose this option to pass along additional money to their children.
After-death compensation does not have to take the form of direct money transfer. It would be both reasonable and ethical for a hospital or organdonor network to pay part or all of a donor's burial expenses. Such a provision might encourage lower-income people who believed they could not afford life insurance to sign up for the program as a way to provide for their funeral costs. Even those with modest life-insurance policies might choose this option to preserve the insurance benefits for their families' needs. (A similar provision has been supported by an article in the Journal of the American Medical Association.)
Fourth, set up a donor pool. Robert M. Sade, a surgeon and professor of medicine at the Medical University of South Carolina, and his colleagues have proposed to create an in-kind market for organs. Every adult would receive the option to join the Transplant Recipient and Donor Organization. Membership would require permission to have organs removed at death, and only those joining would be permitted to receive an organ transplant. Those who chose not to join would be electing for standard medical care, short of transplantation.
Would opening a market for organs along the lines of these proposals diminish the quality of available organs? In fact, the quality already is diminishing as the demand grows and the supply shrinks. Many observers have noted a decrease in scrutiny of where organs have originated and how their owners died. Furthermore, the current restrictions do not guarantee the purity of the organ pool. In 1991, some 56 body parts from a shooting victim were donated to people around the country. It later was discovered that the victim had AIDS, and a frantic search ensued to locate each of those recipients.
By contrast, in virtually every sector of the economy where price and competition play a role, quality increases and cost decreases. Organ banks, the existence of which depend upon their ability to provide top-quality organs, still would do their best to ensure that they were getting the best organs. Because of their concern for quality health care and the threat of malpractice suits, hospitals performing the transplants still would scrutinize incoming organs. Most importantly, the principle of informed consent would ensure that organ recipients had full access to information about the donor and the "used" organ.
Were a real market for organs permitted to develop, people who donated their organs would be financially rewarded, the supply of organs would increase, the waiting lines and needless deaths would decrease, if not disappear, and donors and recipients would have more choices. But it is clear that while opponents want more organs, they don't want a market for organs -- not so much because they oppose such a market as because they oppose markets in general. Paternalistically, they impose their values on everyone else.
And with regard to organ availability, while paternalism lives, people die.…