Custom, Contract, and Kidney Exchange
Healy, Kieran, Krawiec, Kimberly D., Duke Law Journal
In this Essay, we examine a case in which the organizational and logistical demands of a novel form of organ exchange (the nonsimultaneous, extended, altruistic donor (NEAD) chain) do not map cleanly onto standard cultural schemas for either market or gift exchange, resulting in sociological ambiguity and legal uncertainty. In some ways, a NEAD chain resembles a form of generalized exchange, an ancient and widespread instance of the norm of reciprocity that can be thought of simply as the obligation to "pay it forward" rather than the obligation to reciprocate directly with the original giver. At the same time, a NEAD chain resembles a string of promises and commitments to deliver something in exchange for some valuable consideration--that is, a series of contracts.
Neither of these salient "social imaginaries" of exchange--gift giving or formal contract--perfectly meets the practical demands of the NEAD system. As a result, neither contract nor generalized exchange drives the practice of NEAD chains. Rather, the majority of actual exchanges still resemble a simpler form of exchange: direct, simultaneous exchange between parties with no time delay or opportunity to back out. If NEAD chains are to reach their full promise for large-scale, nonsimultaneous organ transfer, legal uncertainties and sociological ambiguities must be finessed, both in the practices of the coordinating agencies and in the minds of NEAD-chain participants. This might happen either through the further elaboration of gift-like language and practices, or through a creative use of the cultural form and motivational vocabulary, but not necessarily the legal and institutional machinery, of contract.
TABLE OF CONTENTS Introduction I. NEAD Chains II. Customary Obligation and Generalized Exchange III. NEAD Chains as Generalized Exchange IV. Obligation and Contract V. Chains and Contracts VI. Custom, Contract, and Organizations Conclusion
A series of related contrasts dominate public debate and academic research about organ donation. At the level of individuals, donors motivated by altruism contrast with suppliers motivated by self-interest. At the level of institutions, systems organized through gift exchange contrast with the prospect of a system organized as a market. And at the level of interactions, the relational qualities of giving contrast with the thin connection created through spot transactions. Underlying each of these contrasts is a deeper division between two modes of exchange: a customary type rooted in reciprocity and a formal type built on contract. When bundled together, this series of contrasts often becomes a broad critique of markets. The self-interested, price-driven, instrumental orientation associated with formalized, contractual kinds of social organization therefore contrasts unfavorably with the virtues of expressivity, warmth, and social solidarity that are taken to flow from exchange built on altruism and sharing. (1)
The norm of reciprocity--the obligation to give in return when one has been given something--has long been seen as amongst the oldest, most widespread, and most deep-seated of all human customs. (2) The fact that the norm of reciprocity is indeed a norm, however--a prescription or expectation about how to act, rather than a description of the way things are--leaves room for slippage between a prescribed form of social organization and its operation in practice. Actual systems of exchange are often very complex. Although norms may set forth general rules about the motives of participants and the structure of their social relations, in practice the system's self-image may be decoupled from what really happens. (3) This slippage is common enough even in relatively simple systems of exchange. It is to be expected in a complex case like the exchange of human organs. Getting a kidney safely out of one body and into another is not a straightforward task. …