Altruism Exchanges and the Kidney Shortage

By Choi, Stephen J.; Gulati, Mitu et al. | Law and Contemporary Problems, Summer 2014 | Go to article overview

Altruism Exchanges and the Kidney Shortage


Choi, Stephen J., Gulati, Mitu, Posner, Eric A., Law and Contemporary Problems


I

INTRODUCTION

Increasing the number of kidney donations is an urgent matter. There is a disparity between the number of patients in the United States who are in need of kidney transplants and the availability of kidneys to be transplanted. In any given year, as many as 100,000 Americans need a kidney transplant, while fewer than 20,000 will receive them from live or cadaveric donors. (1) It is not uncommon for patients to get so sick while waiting to receive a kidney that they are unable to receive one at all, even if it eventually becomes available. (2)

Some economists believe that the solution to this problem is to permit people to buy and sell kidneys. (3) On the demand side, people with chronic kidney disease suffer from acute distress as well as increased mortality. Many of them would be willing to pay for a new kidney, especially if the price were not too high. And even for those who would not be able to afford a new kidney, their insurers would likely be willing to pay for one because the price of a kidney would likely be less than the cost of medical care for end-stage renal disease, including the expense of dialysis treatments. (4)

On the supply side, some people already donate kidneys for free (5) and, given standard assumptions about behavior, it is likely that additional people would be willing to sell a kidney for a high enough price. Black markets in other countries suggest as much, and there are estimates indicating that the market would clear at about $150,000 paid per kidney. (6) Some might also be willing to accept a small payment in return for the commitment to donate their kidneys at the time of death. Others might wish to "sell" their kidneys at death, with the proceeds going to heirs.

But a legal market in kidneys will not come into existence in the foreseeable future. People harbor strong moral intuitions against buying and selling human organs, (7) and these intuitions have been embodied in law. (8) The National Organ Transplant Act (NOTA) of 1984 prohibits the knowing acquisition, receipt, or transfer of any human organ for "valuable consideration for use in human transplantation." (9) Consideration is a legal concept that undergirds contract law, meaning "a bargained for exchange, of a promise for a promise, or a promise for a performance." (10) Thus, a person may not transfer a kidney to another person in return for anything of value, such as money; nor may a person receive a kidney in return for anything of value.

But consideration is a slippery doctrine, and the kidney shortage has given rise to creative efforts to narrow the scope of NOTA's prohibition so as to enhance the supply of kidneys. For example, donors are allowed to direct that their kidneys be given to certain people: family members, friends, and others. This might seem like a transfer without valuable consideration, but that is not necessarily the case. The donor might transfer to such people rather than to a stranger because she expects to receive something in return--for example, household services or help in some other matter. Only a donation to an anonymous stranger could clearly be without consideration. Nonetheless, the common law of contract generally treats intrafamily transfers as occurring without consideration, and regulated entities and regulators have apparently taken this position for kidney donations to friends and family, as well. (11) The acceptance of this fiction has been crucial to increasing the supply of live kidney donations in particular; in 2012, over ninety-five percent of all live kidney donations came from family members or friends. (12)

One reason for the acceptance of this practice might be that donations that are either altruistically motivated or that take place within close relationships do not raise the specter of a "market" in kidneys, where the poor are exploited and the human body is commodified. As we will see, however, the moral and policy considerations are complex. …

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