Magazine article Kennedy School Review

Lethal Legislation

Magazine article Kennedy School Review

Lethal Legislation

Article excerpt

Imagine for a moment you are terminally ill and someone magically has the antidote to your illness buried in his body. He is willing to have it surgically removed, but only if you pay him for his pain, recuperation time, and the risk of having surgery. You would gladly agree, but there is one catch: U.S. law prohibits it. As a result, you die.

Welcome to the world of organ failure, where demand for organs far outstrips supply and buying organs is illegal. Over the past decade, the number of people waiting for organs has grown from thirty-five thousand to eighty-seven thousand, while the number of organ donors has remained flat. By and large, all attempts to increase organ donation rates have failed. Giving monetary compensation to incentivize live kidney donors is, in many cases, the last chance for life for the fifty thousand Americans awaiting a kidney. Yet due to U.S. legislation that prohibits the selling and purchasing of organs, more than sixty-five hundred Americans die unnecessarily every year.

In 1984, without much debate, Congress hastily passed the National Organ Transplant Act (NOTA) that, inter alia, makes it a federal crime to purchase or sell human organs for use in human transplantation. NOTA was enacted, in part, to protect poor people from being exploited. Ironically, it does just the opposite, de facto discriminating against poor people in two ways.

First, since NOTA makes buying an organ illegal, the only avenue to obtain one, given that fact that demand far outstrips supply, is the black market. Every year, approximately three hundred wealthy Americans travel to the third world, where law enforcement is often more lax, in order to acquire kidneys. Poor Americans, on the other hand, cannot afford the airfare, let alone the price of a kidney, which often exceeds $100,000.

Second, as an act of misguided paternalism, NOTA deprives poor people the right to sell their kidneys in an effort to "protect" them from their own "poor judgment." If the government desires to address economic inequality, it should provide the poor with better access to basic necessities, such as health care. In the absence of providing thorough health coverage, the government should allow poor people the agency to act in their own best interest. Outlawing the sale of organs will not correct underlying social inequalities.

The unregulated and illegal nature of the growing black market for organs results in artificially inflated kidney prices (research shows that under a regulated free market kidneys would sell for $3,000 rather than $100,000), brokers absconding with deposits without delivering the organs, and an increase in medical risks due to the back-room operating environments found in the Far East and South America. Back-room organ procurement today is the illegal abortion of yesteryear.

Historically, the public feels that to donate an organ is divine but to sell an organ is sinful. The objections most often heard can be divided into two categories: ethical and pragmatic. Selling a body part seems, at first blush, unethical. Yet current U.S. law allows a person to do just that. It is legal for men to sell their sperm, women to sell their limited number of reproductive eggs, and people to sell their blood and hair, all of which specifically render the body a commodity. To apply a different standard to organ donation is inconsistent and, in fact, unethical.

Ethical support for financial compensation for organs is found in some religious law: the past three chief rabbis of Israel have all ruled that it is ethically permissible for both donor and recipient to exchange financial remuneration for an organ by explaining that ultimately accruing economic gain from this act would not deprive the life-saving donation of its original ethical quality.

Another concern is that poor people need to be protected from the pressure they might feel to sell an organ in order to receive the income. …

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