Arguments in favour of organ trade

 

Any debate on whether people should be given any right to sell their organs should start by first considering ownership of the property right to the human body. While alive, ownership is generally accepted as resting in the hands of each individual person, who is given the right to do almost anything he wants to with his body. There are obviously some restrictions to this right, with people being legally barred from committing suicide or entering into a contract making them slaves of another person, even if they voluntarily wish for this to happen. Here, doubts may exist as to whether these restrictions on trading property rights apply if people wish to sell organs that cannot be regenerated while alive, although if live related donation is already allowed to happen as a medical procedure, there is no reason why it should not be allowed to take place when money becomes a factor of consideration.

 

Once a person dies, the question of property rights becomes more complex. Here, it appears that over time, there has been an imperceptible shift in the way in which the human cadaver has been viewed as a physical item. Traditionally, property rights were irrelevant, as a decomposing cadaver was seen as a nuisance that had to be disposed of as soon as possible. Consequently, the family would be given limited rights over the disposition of the body, or else the state would claim eminence over it. Nowadays, as the body gains value once a person is dead, the relevance of this approach has diminished, with the body having the potential to be seen as an asset making up part of a person’s estate rather than as a liability with no tangible physical value (ignoring the spiritual value). In this case, a redefinition of property rights is essential, although there continues to be some disagreement over whether the property right to a cadaver should be privately or publicly held. Here, the most natural claimants to ownership of this title should be private individuals themselves, for if we can, after all, own ourselves while alive, then we (or our estate) should by logical consequence also own ourselves while dead. In the debate over transplantation, this view is borne out by the fact that as all organ procurement organisations claim that people should consider what they want to be done with their bodies after death, there is a tacit admission that we indeed own ourselves when we die.

 

A variety of arguments have been used to prove that “systems based on payment for organs carry the obvious risk of exploitation of the disadvantaged” [1], with various reasons being given as to why and how poor people are coerced, primarily by the rich, into selling their organs. However, closer inspection of the arguments provided reveals that in most of these cases, the risks are not as obvious nor as exploitative as they are made out to be, which is really not surprising, as “there is no sense in which being paid impairs free will” [2]. Rather, what these arguments reveal is that many people have an uneasiness with the distribution of wealth that exists in society, which they then extend to the issue of organ trade. Unfortunately, the response that is then mounted to such inequality and the alleged exploitation of the poor, “seems to take the curious form of wanting to make them worse off still” [3], as their freedom to engage in what could be value maximising trade is restricted as a matter of law [4].

 

One common argument against paid organ donation holds that poor people are coerced, usually by their poverty, into selling their organs. Due to circumstances beyond their control, they are forced into taking risks that their better off counterparts would not contemplate assuming, with the lack of other options with which to make a living preventing them from seeing organ selling as the "undesirable" activity that it is. In order to protect the poor from facing such indirect coercion, critics suggest that the best way of helping these unfortunate individuals is to prevent them from selling their organs, in the belief that such an action increases the range of choices that they have. This is a highly illogical approach, as “prevention of sales, in itself, only closes a miserable range of options still further” [5]. Thus, if those who profess to have a desire to assist the poor really wish to help these individuals, they should support organ selling, as this provides the poor with an additional route with which to escape poverty while retaining their individual autonomy [6]. If, however, they actually wish to force the poor into remaining in their current state of desperation, then by preventing organ sales, they are following the correct policy, as “coercion is a matter of reducing the range of options there would otherwise be” [7]. In addition, what seems to be lost to those who say that paid donation is coercive is that a major element of coercion also exist with living related donation, yet no qualms are raised when such activities occur. This is because “if losing a kidney is intrinsically undesirable, it is just as undesirable for a donor as for a vendor, and chosen only because constricted circumstances have made it the best option all things considered. If coercion is a reason for not allowing organ sales, and poverty counts as a kind of coercion, coercion by threat of death of a relative should equally rule out donation. The logic is the same” [8].

 

A related argument suggests that as donors are poor, and thus likely to be uneducated, they might not fully understand the risks they face, and will thus enter into a damaging transaction out of ignorance. To prevent such incompetence from occurring, a clearly paternalistic solution is to prevent the poor from having to make their own decisions on this matter, with the prevention of organ sales being deemed, by those who believe themselves to be more enlightened on this topic, to be the most suitable approach worth following. Now, while it is plausible that people who are poor enough to sell organs may be ill-informed about the risks associated with their activities, banning sales on such grounds is unwise, as there are a couple of counter-arguments to such a policy. Firstly, it is possible to correct any ignorance that potential sellers may have about what is to happen through the mandatory provision of counselling, as already happens with related living donors at present. Secondly, this type of prohibition has the potential to be abused and curtails individual liberty, with a blanket rule being applied to all people regardless of their individual circumstances and knowledge. For example, if rich people or medical practitioners, who are presumably better educated than the poor and well informed of the risks that are faced, decide to sell their organs, what would the argument regarding ignorance of paid donors then be, as surely they know what they are doing?

 

The amount of payment offered to organ sellers is another controversial matter, with critics either arguing that organ sellers are likely to be paid too little or too much for their organs for any trade to be fair. In the first case, paid donation is held to be bad since paid donors, especially when they are living, are believed to be parting with a very important personal asset for a price that does not reflect its medical value in maintaining ongoing health. Here, a degree of financial exploitation is believed to exist when poor people sell their organs, as buyers may be able to haggle down the price of their organs to levels that are believed to be even lower than the seller’s private value of them, so great is the desperation for money. Consequently, if exploitation of sellers is to be prevented, then the only course of action would lie in preventing sales altogether. Here, it has been correctly pointed that out that prohibition is not the solution, for “if exploitation means not paying a fair price, this is no argument against payment for organs but is an argument for a fair price” [9]. What the fair price of an organ is remains open to debate, since only the market, guided by the buyers and sellers involved in the transaction process, should be relied upon to provide guidance upon this matter, with outsiders having only limited input to offer on this matter. What is clear from the data available on altruistic donation though is that the fair price of organs is not zero (as the authorities have set it at), otherwise we would not be in the current situation of facing massive organ shortages that we find ourselves in.

 

A complete reversal of the previous argument is then provided by stating that poor donors are coerced by their state of poverty into selling organs through the provision of an offer that they cannot refuse, as may occur when the amount of money offered to them is a large multiple of their annual income. Here, the amount of money on offer is again held to be the source of coercion, with the only way of preventing this apparently undesirable problem of paying the seller too much money once again lying in the elimination of any potential for trade. Now, while such indecent proposals may be seen as a form of coercion, they are still desirable, as they increase the range of options available to the sellers, for not only do the original set of choices remain available, but they are expanded by one more option. In addition, the amount of money that is offered to a seller for an organ can also serve as a useful point of reference for how good the other options available to him are, with the better the offer made, the clearer the preference any decision to sell is likely to be, while the poorer the offer, the less likely will be any inclination to trade (with other options being seen in a better light in such a case).

 

This argument against paid donation becomes particularly vociferous if middlemen are involved in bringing buyers and sellers together, as there is a perception that these brokers will exploit the sellers by giving them a fraction of the fee that they receive from the buyers for an organ. Here, critics have a faulty understanding of the value of brokers in facilitating trades and reducing transaction costs between parties who do not know one another. To a seller, the payment that is received, at the very least, sufficient to cover the costs, risks and inconvenience of organ removal, or else no sale would take place in the first place. While it is obvious that the seller would always be happier with a higher payment than that which may finally be received, he is still better off in a financial sense than he was before, with sellers always being free in a market economy to avoid the services of brokers and transact directly with buyers if they so desire. The reason this does not happen is that the transaction costs of using the market may simply be too high. This means that even if there were amenable sellers and willing buyers, the selling of organs is not guaranteed to take place as efficiently as could be possible under other, more favourable conditions. Thus, brokers serve a useful role in reducing the costs that buyers and sellers have in transacting with one another, and in so doing, may actually make them better off than they could expect to be if they traded directly with one another [10].

 

More general objections other than paternalistic arguments in favour of defending the poor have been raised against organ selling. For example, while an organ sale involves only the buyer and seller, it is claimed that third parties are also affected by such activities, with negative externalities of a psychic kind being imposed on family members or a community when they learn that a person has actually sold an organ. Such allegations cannot really be substantiated with much clarity or power. To the contrary, the available anecdotal evidence suggests that in most cases, a positive externality is actually created, with many sellers engaging in these activities in order to help their families through the provision of medical care, food, a dowry, or some other measurable benefit that would not otherwise be obtained. Furthermore, an often overlooked positive externality is also created for people associated with the organ recipient, who now has a lease on life that was previously not considered possible. If, indeed, there are psychic externalities from organ sales, then in this case we could be forced to consider the introduction of a Benthamite system of weighing the positive externalities against the corresponding negative psychic payoffs, which is clearly not a good idea.  

 

Opponents of sales have also implied that their opposition arises out of concern for the welfare of patients using purchased organs, with the poor results obtained by recipients who received their organs as a result of organ trade serving as proof that buyers need protection too. A problem of information asymmetry is said to exist, where the organs sold by unscrupulous sellers patients may function poorly, do not have a good antigen match or are diseased, with the risks being further compounded by the fact that transplants are allegedly more likely to be performed in poor quality clinics. These may be unfortunate possibilities, but it is highly likely that if buyers are indeed wealthy, they will have more than enough knowledge of the risks they face – despite this, they should still be given the right to buy organs, for even though the organs and clinics under consideration may be less than desirable to recipients, taking a gamble and failing may still be better than dying, which is their only alternative outcome. Meanwhile, if objections are raised because there is unhappiness that organ recipients do not have access to correct information relating to the quality of organ on offer, then the proper approach is to provide them with this information through certifiable tests on the seller, not to remove their right to buy organs [11]. Finally, what critics of paid donation forget is that by preventing organ trade, they are themselves guilty of coercing the rich into taking actions that might not be of their own free will – given that buyers may choose to pay for organs, and will make a personal sacrifice by foregoing the consumption of other goods in order to raise funds for such a purchase, any move that prevents them from doing so can itself only be seen as a coercive act that limits individual autonomy and the maximisation of utility [12].

 

Religious beliefs also play a role in the debate over sales, with adherents of various faiths arguing that some higher authority prohibits the sale of organs [13]. Here, humans are believed to be merely custodians, rather than owners, of their bodies, which means they have no right to dispose of their organs in whatever manner they see fit to do so. How relevant such beliefs should be in what is an increasingly secular society is questionable though, especially since religious people are under no obligation to sell their own organs (or buy them from others). In addition, while arguments may be made that the donation of organs is religiously acceptable, since it involves an altruistic impulse that does not exist with organ selling, questions must nonetheless be raised that if people are indeed custodians of their organs, what religious right do they have to dispose of their body parts for free, even if it is due to supposedly altruistic rather than financial motives? [14] 

 

As with blood donation, an apparently self-evident truth is that payment for organs precludes any possibility of altruism on the part of donors, with selling being held responsible for demeaning the altruism of unpaid donors and of the gifts they provide. Such a belief is based on the assertion that “one may not purport to sell what cannot be sold, for in the very process of sale that which is purportedly sold is transformed and its value is destroyed or diminished” [15]. What apparently occurs in such a case is that critics of selling believe that they have some form of moral authority to impose their preferences on others, with one commentator clearly falling into this trap by stating that while altruism is not a personal value that can or should be imposed on others, “it is a fundamental virtue of good societies and good persons”[16]. Unfortunately, the problem with this view is that supporters of altruistic organ donation are themselves guilty of forcing their own beliefs of what is right and what is wrong on other people who may follow different value systems but who are prevented by law and social pressure from acting in accordance with them [17].

 

These value judgements as to the altruistic intentions of donors, and of their gifts, are undesirable and can be morally ambiguous, especially since “for any action that an opponent of sales would count as altruistic, it is easy to imagine a case of selling that would be altruistic by the same standards” [18]. For example, if a father gives a kidney directly to his daughter and saves her life, he is judged to be altruistic, but if he sells a kidney to another person in order to pay for an operation that could save her life, then surely this action should also be seen as altruistic. In any case, arguing that people are engaging in an enlightened form of altruistic behaviour when they take part in cadaveric organ donation is a point open to interpretation, as “it is hardly an act of great generosity to donate that which you cannot use and may not sell” [19]. Now, while it may be true that the charitable impulse on the part of the provider is missing when some good or service is sold rather than donated, the fact remains that the physical and functional characteristics of the item in question remain the same, with only the technicalities of the act being different. Indeed, a fundamental point with giving goods away for free when they can be sold is that the status of the donor is enhanced rather than degraded, as the good concerned is likely to be seen as having a greater intangible value attached to it than a purchased good [20].

 

In addition to these largely moral questions, critics of payment have also proposed various technical reasons for why organ selling is bound to fail from a practical perspective if introduced. Most importantly, they have pointed out that “markets for organs in India, Russia, and China have led to abuses of donors and their families, as well as health risks for recipients” [21]. Now, this is a slightly unfair comparison to make, since there are significant differences between these countries and places such as the USA and Europe, where major organ shortages exist. First, none of the three aforementioned states are, due to their socialist backgrounds, well known for having successful markets for the provision of even basic goods, never mind organs, with each being characterised by inefficiency, corruption, and limited respect for property rights and the rule of law (except when applied to the retention of power). Thus, it is hardly surprising that abuses of donors have taken place when even simple market transactions in these states are fraught with difficulties. Second, the medical facilities in these areas are of a rudimentary nature compared to the facilities in more developed states, with patients that receive organ transplants facing greater health risks regardless of whether organs were freely donated or purchased due to the lower standards that exist. In such a case, it is not appropriate to infer that a recipient’s health risks would be so severely compromised if well-matched, healthy organs were purchased from properly compensated donors in First World clinics [22].

 

Another suggested technical flaw is that “those who would have to approach relatives of the deceased have shown little support for payment incentives” [23]. Here, a lack of technical support can be problematic, for if there was nobody willing to make a proposition of trade to patients or their families for organs, a scheme of organ payment could not hope to succeed due to a lack of purchased organs. This claim is questionable though, as a survey of those people who are actively involved in asking for organs found that while a large proportion would indeed be unhappy with a shift from an altruistic towards a paid system, the difference depended greatly on the profession of the respondents [24]. While most religious and social workers, as well as doctors and nurses, would be unhappy to ask for organs if there was a shift to paid donation, more than half of the organ procurement coordinators interviewed would still be happy to ask patients to donate if money became a factor worth mentioning, which is significant, since these are precisely the individuals who obtain organs with the greatest success rate of all requesters. As it is, being given the ability to offer payment may actually prove to be an aid in carrying out their duties, as some coordinators have already “dealt with families who might consent to organ donation from the brain dead family member, but who refuse because there is no financial incentive for the decision to permit organ recovery” [25]. Furthermore, a point that critics overlook is that such requests need not be made when a person has died, with various possible ways existing of asking people whether they would like to sell their organs while they are alive and healthy (in which case there is no need to have medical staff approach the family to solicit for a sale at an inappropriate moment).

 

A more justifiable fear is that if sales are introduced, criminal acts could occur where kidneys and corneas are stolen from people who have no wish to part with these tissues. Here, a couple of examples of events that are alleged to have taken place in the past are used to suggest that the theft of organs can happen on a wider scale if organ selling is permitted. In the first case, a businessman in a foreign town is befriended by an extremely attractive woman in his hotel bar who suggests, after a couple of drinks, that they return to her room in order to get somewhat more intimately acquainted. The following day, the man wakes up to find himself in a bath full of ice, with a telephone and a note being next to the bath, with the note telling him that a kidney has been removed from him and suggesting that he call an ambulance to be rescued. In the other scenario, children go missing from their families and are found, a few days later, with corneas or kidneys having been removed from them. While such stories have, for many years, been widely recounted, they have never been verified with absolute authority and are more than likely to be urban legends that have been accepted as fact. Nevertheless, even if organ theft does occur once trade is permitted, only a few incidents are likely to be recorded, as the expected low prices that could be obtained if a market works at greatly increasing supply may not be worth the costs and risks involved for criminals, especially if the state provides a powerful deterrent against such activities [26]. As it is, the only cases of organ theft that have generally been known to take place are those that are sanctioned by the state – while presumed consent laws may be seen as a coercive form of state theft operating under the banner of altruism, the removal of organs from executed prisoners is an even clearer example of outright theft against the wishes of the “donors” concerned when the state has no clear property rights to such body parts.

 

While the debate regarding the value of payment has usually centred on stating that it is a bad policy to follow, what is often overlooked is that in addition to the obvious benefit of increasing organ supply, allowing for the sale of organs has wider, less known merits.

 

The most obvious benefit of organ selling is an ethical benefit, which arises in particular when applied to cadaveric organ sales. For a long time, it has been argued that “because our current organ procurement system is based on financial gain for all concerned, the altruistic “gift” upon which so many recipients depend has been described as unfair and insensitive to donor families and the source of basis distrust of the system by the public” [27]. While “it is clear that the “gift of life” can be financially lucrative to hospitals and OPOs” [28], to the donors and their families, this is not so, even though they are the ones responsible for initiating the entire process of organ transplantation in the first place. Now, from even a simple perspective of equity, it would seem obvious and fair that these individuals should also receive some financial benefit from organ removal, as the Kantian benefit that they are supposed to be happy with is likely to provide them with scant consolation when the loss of a life has taken place [29].

 

Another benefit provided by selling organs is psychological. One reason anonymity is applied to voluntary donation is to ensure that no emotional bonds are formed between donors and recipients. Unfortunately, it is not always possible to preserve anonymity, in which case problems can arise when, for example, donors (or their families) expect to receive some form of irredeemable gratitude from the recipients. With market trading, such an event is less likely to happen due to the disinterested nature of the transaction, especially if the provider of the organ is a living donor who is only interested in receiving a payment and who has no wish to maintain any link with the buyer of his or her organ.

 

Furthermore, when looking at whether the provision of incentives for organs is a desirable policy, it would perhaps be worthwhile to find out what the general public thinks on this issue, rather than consider only the views of professional ethicists, physicians, and other specialist commentators, who may have their own agendas to support. Here, a couple of surveys conducted in the USA provide some enlightened reading, with about half of the respondents surveyed in both instances stating that they were in favour of some form of compensation to providers of organs [30]. While about two-thirds of the respondents younger than 35 favoured payment for organs, such a position was only held by about one third of those older than 55, with males and poor people being more amenable to such a policy than females and the wealthy. Here though, the opinions of older people may be less relevant than those of younger individuals due to two major factors. First, as older individuals are unlikely to serve very often as organ donors in any case due to their advanced age, so their input in this debate may be of lower value than that of younger people, who are more likely to be physically able to sell their organs in return for payment. Second, as older people are more likely to suffer from poor health brought about by years of physical abuse and general deterioration, they may have a bias against payment if they feel that this is not in their personal interest. This is since they may be worried that having to purchase organs could conceivably increase their medical expenses if they too have organ failure and need a transplant sometime in the future. Meanwhile, the point that poor people are more amenable towards organ sales than the rich is also telling, as this reveals that to them at least, organ selling is not as poor an option as it is set out to be by the critics.

 

Finally, while organ selling has obvious physical and psychological benefits for the individual patient through the effect that it has on increasing the supply of organs and decreasing transplant waiting times, it can also lead to some major economic benefits for society as a whole. While the concept of paying for organs may suggest that transplants will become more expensive than they currently are, as a good that was previously provided for “free” is now only available at a positive price, such an assessment is not necessarily correct. This is since the availability of greater quantities of purchased organs can lead to the generation of substantial cost savings that may exceed the costs associated with their procurement. Direct savings can be achieved primarily through reduced reliance on comparatively more expensive treatment procedures for patients with end stage organ failure, such as dialysis and hospital internment, with hypothetical estimates finding that within a couple of years of receiving a purchased organ, the purchase price will have paid itself off completely due to the reductions achieved with these direct expenses [31]. At the same time, better use can be made of the available transplant infrastructure if it is currently being underemployed, with the average costs of transplant surgery decreasing as economies of scale are exploited. In addition, what is often not accounted for are the indirect savings that can be obtained with organ sales, such as the lower need to spend money on publicising altruistic donation and the increased economic activity brought about when organ recipients can bring forward their transplant dates, as they no longer need to incur the opportunity costs of being ill and can resume an active life sooner than was previously possible.

 

Before concluding this section, it may be worth considering who could have an economic interest in ensuring that organs are donated for free rather than sold. One possible group that was initially suspected of benefiting from the restriction on transplants were health insurers, as these businesses would have to incur an increased cost of paying for the operations of their clients whenever a transplant took place. However, this argument has gradually fallen out of favour since these parties are now believed to be unlikely opponents of paid donation. This is since transplants are usually cheaper than pharmaceuticals, dialysis and other treatment options, which means that they provide tangible economic benefits rather than costs to the insurers. Thus, they are likely to actually support the concept of organ trade if it reduces their expected costs of treating a client with organ failure, as well as allows them to offer lower premiums to compete for business [32].

 

As a result, an alternate hypothesis that has steadily gained ground is that the main beneficiaries of maintaining a system of unpaid organ donation are those in the medical profession, especially the transplant surgeons. Given the current shortage of organs that is perpetrated by the system of altruistic donation, only a small number of these specialists are required to perform transplants, which means that they can act together like a well qualified, tightly knit cartel. If the supply of organs were to increase, the demand for, and subsequent supply of, new transplant surgeons would increase, with the interaction of market forces inevitably resulting in lower incomes for the original set of transplant surgeons [33]. Fortunately for the current surgeons, they form a small group of individuals with shared interests, which means that co-ordinating their activities is cheap relative the benefits that are available, allowing them to present an united front against organ selling. By contrast, the larger group of potential transplant surgeons form a disorganised group of individuals with diffuse interests, who are unlikely to mobilise in order to support trade given the relatively low cost-benefit payoff available to them (in view of the possibility of free-riding by others) [34].

 

In essence, we once again have a case of rent-seeking, where a special interest group (operating within an even larger special interest group consisting of the American medical fraternity) has managed to ensure that laws were passed and subsequently maintained that were to their direct financial benefit. Here, the arguments that have been presented in the main body of this section have served as reasons for why organ selling was not desirable and why transplant surgeons should be believed when they say that what they are doing is in the “public interest” and to the benefit of patients. In this, they have been supported by the hospitals where they carry out their activities, as these institutions too stand to gain immensely from the grafting of an organ, since “organs are not bought by themselves, they are useful only as part of the transplant surgery” [35]. Along with being able to make a profit from the rental of theatre and bed space, as well as from the provision of supplies and general patient care, transplant hospitals have also been able to make a profit directly from the organs that have been provided for free by cadaveric donors themselves. As proof, it has been noted that “the donor organ acquisition charges appearing on the patient’s hospital bill may differ from what the hospital was billed by the OPO. For example, some transplant hospitals routinely mark up by as much as 200% the charges they are billed by OPOs” [36]. If organ selling was permitted, such benefits would be harder to obtain, or would have to be more transparent than they are at present, as the payment to the organ seller would be known to the person who actually bought the organ.

 

Now, in South Africa, these arguments may not hold as well as they do in the USA, where they were initially formulated. This is since although the number of transplant surgeons is limited, they often operate in both the public and private sectors, which means that their incomes are capped to a much greater degree than are the incomes of their American counterparts. In addition, no disbursement system similar to the one used in the USA to transfer organs is in place, which means that appropriable rents are not as widely available to local hospitals. Here, local hospitals utilise very different policies to the ones that exist in the USA – while state hospitals have no need to mark up organ procurement costs since they have no need to make a profit (and often do not bear these costs in any case), the private hospitals, which run the procurement service, will simply bear these costs hidden somewhere in their general expenses that are then passed on to clients in their medical bills.

 

Nevertheless, there may be some measure of truth in the allegations that even in South Africa, the biggest beneficiaries from a ban on organ sales are likely to be the transplant surgeons. As the number of transplant centres has steadily increased, the number of surgeons has invariably had to rise (regardless of whether many surgeons work in both sectors), which has most likely had a negative effect on their expected earning capacity. There may also be a less obvious reason for why organ selling is opposed by South African surgeons. If local surgeons were to openly support or engage in such activities, they could risk losing their membership to prestigious international medical associations (which are opposed to organ selling). This could then deprive them of the professional gains associated with such membership, such as being able to publish their research in renowned journals. This loss of membership could have negative effects on their income if they receive salaries that emphasise a link between employment status and work published or association membership, plus it could lead to a loss of more general perks, power and prestige for them (such as being able to attend international conferences in exotic locales). Thus, even if South African doctors do have some degree of private interest in supporting organ selling, they cannot publicly reveal this is this could result in a reputation loss leading to a decrease in professional standing for them, which indicates that they themselves may face coercion to side with their colleagues.

 

Having considered and responded to the arguments against the sale of organs, as well as covering the merits of such a policy, we can move on, in the following section, to examine how a market for organs could be developed.

 

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