June 2006

Buy or Die: Market Mechanisms to Reduce the National Organ Shortage

The nation’s system for procuring and distributing vital organs is badly broken. Demand vastly outstrips supply. Today, there are over 92,000 people waiting for organs--mostly kidneys–and each day eighteen of them will die before they get one. The wait in many locations is over five years and by 2010, it is expected to double.

The waiting list, maintained by the United Network for Organ Sharing under a monopoly contract with the Department of Health and Human Services, cannot distribute organs any faster than they become available. Unfortunately, some key members of the transplant community insist that desperate patients simply wait their turn, even if the price of patience is death. More and more, however, concerned physicians, ethicists, legal scholars, and economists are urging dramatic reform, including legislative change to permit compensation to donors.

Although donor altruism is an inspiring virtue, generosity as public policy falls short. Panelists at this event discussed incentives, including payment, as a viable remedy to enhance the supply of lifesaving organs.

Newt Gingrich
AEI

The deaths of thousands of Americans prove that the present organ transplantation system is a monopoly, failing the individuals who need the system most. Proponents of the current system eschew any concern for economics; therefore, new thinking with certain boundaries is critical to escape the present insanity. For example, nothing should be done to turn human beings into commercially exploitable entities. In addition, no program should be implemented that would be biased against the poor.

The issue can be broken down into two questions: First, should people have the ability to help themselves or should we maintain an anonymous and only altruistic system in which passivity is enforced? Secondly, is there a situation in which incentives can play a critical role, such as offering a tax break to those healthy and legitimate individuals capable of donation?

Dr. Sally Satel
AEI

In August 2004, when I was first diagnosed with end-stage renal disease, I started looking for a donor for several reasons. I did not want to spend several years tied to a dialysis machine while waiting for a cadaver kidney. Dialysis is a debilitating alternative to living donations, half of whose kidneys are still functioning after 20-25 years, whereas half of cadaver kidneys make it to ten years.

Unfortunately, none of the people who considered donating to me panned out. The possibility of going to places like the Philippines, Turkey, or India for a transplant was too frightening due to the medical and ethical uncertainties.

Lisa Cunningham and Alex Crionas were unfortunate victims of a bioethicist’s crusade. Ms. Cunningham’s need for a kidney was publicized in a local newspaper article, invoking the ire of Dr. Douglas Hanto, who had his staff refuse to do her transplant even if the only donor she could find had responded to the article. Dr. Hanto preferred that the article elicit a donation to the national waiting list so the next person in line could get it--so-called nondirected donation. Not only should a living donor be able to choose her recipient, but such paternalism also ignores the degree of intimacy most donors require to have with the recipient.

Hanto himself recognizes this level of intimacy on some level: he has no problem with family members or friends deciding who should get their organs because they have an emotional connection. However, if there had not been a story about Lisa to move someone's heart, chances are excellent that her potential donor’s second kidney would not have been offered to anyone at all. In 2004, living donors gave 1,300 kidneys to friends, and eighty-eight to strangers.

Others with no one to publicize their plight have taken out personal ads in newspapers, posted kidney-wanted signs, or paid for billboards. Some have joined Internet sites, like MatchingDonors.com to find a willing donor.

Critics commonly accuse such behavior as skipping the line. Though the National Organ Transplant Act of 1984 outlawed direct payment for an organ, critics fear future extortion by the donor or voluntary payment by the recipient. There should not be such a prohibition against compensating someone for giving you something valuable. A further critique is that those with the most heart-wrenching stories or with the most adept writing skills will attract more donors. This denouncement merely sells short the complexity of human emotions and a person’s self-identification. Lack of universal Internet access is a final objection easily overcome at the local public library.
 
In 2003, Alex Crionas started his own website. Dr. Hanto heard of the webpage and used his clout to have Alex’s transplant refused. I respect physician autonomy; however, to impose one’s personal sense of fairness on one’s colleagues is a most flagrant conflict of interest between a physician’s responsibility to his patient and to his personal ideology.

Bioethicist Arthur Caplan says actions such as Lisa Cunningham’s and Alex Crionas’s amount to a “high-priced begging campaign” that is an “attempt to subvert the waiting list.” It most certainly is. The message to Lisa and Alex is clear: behave, be passive, take no initiative to save yourselves, and wait with the other 66,000 people--even if the price is death.
 
The real issue behind Lisa’s and Alex’s “subversive” actions is a currently broken organ allocation system that cannot possibly match the supply of organs with the need. Fixing the system means rethinking our sole reliance on altruism as a motivation for donation. Last year, 16,000 people got kidneys, but about 60,000 remained languishing on the list. We need new ideas, and the high-minded moralists do not seem to have many.

Dr. Benjamin Hippen
Carolinas Medical Center

Despite numerous publications defending a regulated market in organs, it is only recently that the actual arguments of market defenders are being addressed in some semblance of good faith. The enormous disparity between the demand for and supply of organs available for transplantation has changed the debate. In the case of kidneys, the United States is facing an epidemic of end-stage renal disease. By 2010, the number of patients with the disease is expected to increase to 650,000, and the waiting list for deceased donor organs will increase to over 100,000--nearly double the current waiting list of 65,000.

There are still major concerns with an organ market, one of which is the practice of transplant tourism. Transplant tourism is the practice of traveling to another country for the purpose of purchasing an organ, having it transplanted, and then returning to one’s home country, all beyond the purview of law and oversight. The outcomes, when and where they are reported, are horrific for vendor and recipient alike. Equating a regulated market in organs to the underground practice of organ trafficking was, until quite recently, a shibboleth accepted without comment in the transplant community. But even the United Network for Organ Sharing’s (UNOS) Ethics Committee has acknowledged that transplant tourism has gained popularity because of the disparity between supply and demand.

There are three crucial components that form the argument in favor of an organ market that could be accepted by the larger transplant community. The first step is to highlight the relationship between the growing desperation of recipients and the flourishing of strategies that emerge out of conditions of shortage. The second step is to connect the conditions of shortage to the inadequacies of current organ procurement policies. The third step is to impute a moral responsibility to transplant professionals, lawmakers, and the interested public to come together in an attempt to fix the system. Therefore, the burden for defenders of the market position is to present a comprehensive view of a regulated market in organs that both plausibly addresses the shortage of organs and meets the standard of ethical defensibility.

A market relationship can ensure safe practices in ways altruism-based practices sometimes do not. Safe outcomes are most accurately indexed to the commitment of regulators and practitioners to instituting safe practices, not to the means of procurement.

Concerns have been raised that the introduction of a market in organs will result in the end of donation or will severely attenuate it. This concern rests on a survey recently published in the American Journal of Transplantation that shows the prospect of financial incentives for organ procurement would increase the likelihood of donation among likely donors in 19 percent of cases, decrease the likelihood of donation in 10 percent of cases, and make no difference in 70 percent of cases. What should be most noteworthy in these figures is the 70 percent of donors for whom incentives make no difference at all in their decision to donate. The morally secure altruist need not insist on the exclusion of nonaltruistic organ procurement in order to confirm the moral valor of his own altruistic action.

The primary purpose of an organ market is not to enrich organ vendors, but to relieve the suffering of recipients without transferring suffering to donors or vendors in the process. However, the ambitious goals of such a market in organs rests on trust. The antipode of a regulated market, organ trafficking, is predicated on an abuse of the trust invested in reputable, safe transplantation. A morally defensible market in organs requires people neither to shrink from nor rationalize the potential moral hazards of a market in organs.

Ultimately, enlisting and sustaining the support of the transplant community for a market in organs requires a conception of a market which is respectful of the moral commitments of its participants. For the critics of organ markets who worry about the hidden costs, we defenders of markets need only observe the conspicuous costs, the terrible toll in lost human lives, or more of the same.

Mark Cherry
St. Edward’s University

There are at least three policy options available to increase the number of organ donations. First, we could engage in increasing altruism. Here the accent is on the autonomy and altruism of the donor as well as on making donation easier. Second, we could engage in the state confiscation of organs. State force would be used to retrieve organs from those who have not explicitly opted out--the accent is on state force and on the good of saving lives. Third, we could engage in paying for organs. The market would be used to engage the interests of would-be sellers or their families through a range of incentives.
 
The present suffering could be avoided by legalizing the transfer of organs on the open market, a practice which would increase the supply of both redundant and nonredundant organs. Transfers could take place under various circumstances: organ trading, triple swaps, futures markets, and the voluntary donation of redundant organs. Tax credits or the payment of funeral expenses would ensure the fair market value of organs and encourage donation.

Typical arguments against such markets include the exploitation of the poor, yet markets allow individuals to negotiate freely so that both parties are better off. Unlike illicit trading on the black market, a regulated market could provide a minimum price for certain organs as well as mandated follow-up medical care. Hospitals and other health professionals have incentives to increase altruistic organ donation under these circumstances. The practice would operate under established medical ethics guidelines so that health professionals would not have to participate in unscrupulous transfers.

Patients dying of organ failure are normally not seen as obligated to receive an organ without offering some kind of good or service in return. Perhaps the poor would exploit the dire situations of the rich dying from end-stage renal failure for financial gain; or are the rich exploiting the poor by offering to purchase their redundant organs?

Critics also accuse a market system of subjecting the poor to increased waiting times while the rich easily purchase a life-saving organ. This fear is unsubstantiated for several reasons. First, as more organs become readily available, the waiting time for organs would decrease--a benefit most felt by the poor whose waits are significantly longer. The public could also provide assistance to the impecunious for purchasing organs. Secondly, reducing waiting time would save money currently spent on meeting the medical needs of those patients.

Others claim that offering financial incentives will decrease altruistic donations--the crowding out effect. However, the prohibition of an organ market precludes all from donating their organs.

Even with a market for organs, there is no reason why an individual could not donate out of charity. Presuming that the motivation for donation is altruism, those willing to donate in such a manner would continue even in the presence of a market. For-profit markets for food and medicine exist alongside food banks, charitable hospitals, and other not-for-profit programs.

Perhaps the market would be exploitive in the sense of improper commodification. Commodities are marked by objectification--the ability to treat them as things; fungibility--fully exchangeability; commensurability--the idea that things of value can be arrayed as a function of one continuous variable; and for-money equivalence. Will the market fare better or worse than the current system? The challenge to those against the market is that organs are manipulatable and interchangeable with others of the same kind. Our current system treats organs as commodities and functions within market settings--hospitals, doctors, and others receiving financial compensation are involved. Donors are the only ones not compensated.

Pursuing multiple concurrent strategies may be the best way to procure the most organs. With the creation of a market in human organs, organ availability need not be limited by the availability of altruism nor depend on state coercive force. The ability to secure housing, political or welfare interests, education, or business endeavors may incite vendors to donate. Commercialization may create opportunities which some consider very attractive. It is time to consider the hard facts of the public policy challenges; a market system with proper regulation would function much better.

Virginia Postrel
The Atlantic

In my donation experience, I noticed a lack of concern from the transplant community and from my acquaintances regarding my personal risks and choices and Sally’s plight. Many people self-identified with a theoretical donor as a projection of how they would act in such a position. These people hold three operating assumptions that inhibit or discourage live donation. First, normal people will not donate an organ except under coercion. Second, anything that encourages donation is coercion. Last, to avoid coercion, living donors should be discouraged.

The holders of these assumptions need some perspective. For example, the surgery is relatively risk-free with a remarkably fast recovery. Moreover, compatibility is usually not a problem; only blood type needs to match. Typically, only around 3 percent of live donors regret the decision. There is also the perspective of diversity. What some consider a normal profession, others consider crazy and too risky--racecar drivers, stunt doubles, rescue workers, and the like. For some of high-risk activities, people do not even get paid.

Without these perspectives, people adopt a misguided sense of sympathy for living donors. Rather than respecting the donor’s choice, people are suspicious of his motives, and many donors are forced to lie in order for the transplantation to occur. Donors are not tools to serve the agendas of bioethicists; moreover, those agendas should not be written into law.

In lieu of suspicion, donors should receive better and fairer treatment by those in the transplant community. The donor’s lost wages and time should be compensated, as should costs incurred for child care, transportation, and lodging. Most important is the fact that everyone medically involved in the transplantation profits financially--except the donor.

To increase the number of living donors, one should not preclude sympathy as a justifiable reason for donation. Sympathy should be seen as a continuum on which people decide to give organs for different reasons: religious, familial, humanitarian. If each congregation of four of the largest denominational churches in the nation adopted and provided a donor to someone on the UNOS waiting list, we would have twice as many organs as those currently available. Unfortunately, this practice would not be deemed appropriate by the ethical leaders in the transplant community.

Michele Goodwin
DePaul University College of Law

Incentives will likely maximize participation and promote more equitable participation among those with vulnerable statuses. The federal prohibition on body part selling undermines private liberties, exacerbates organ demand, increases waiting time, penalizes the poor, and results in thousands of deaths per year. Some bioethicists have decided that blacks will not fare better under a commodification regime, or that blacks are incapable of deciding whether or not to utilize incentives for themselves.

Traditionally, legal scholars concerned about curing America’s organ crisis placed altruism at its operational core. Yet very few new ideas develop out of this limited framework, which quickly denounces any alternatives to an altruistic supply of organs as an immoral attack on egalitarian values and progressive social norms. The prevailing approach is to focus primarily on superficial issues and less significant enhancements to the current procurement methods.

Scholars have avoided or overlooked examining the organ procurement dilemma as a matter of social justice for three reasons. One reason is that some bioethicists and commentators dehumanize the transplantation process--casting the most vulnerable primarily as donors and not potential organ recipients. A second possible explanation for this oversight is that commentators perceive or concede the theory that blacks will suffer under a commodification system to be a powerful, unassailable argument. And the final conclusion to be drawn is that the debate about organ supply misapplies autonomy, treating self-governance as a narrow utilitarian value applicable only to the exercise of altruistic organ donation.
 
Autonomy is a valued social norm in organ transplantation, but, ironically, only to the extent that individuals surrender organs without any consideration. Outside of organ transplantation, compassion is not a prerequisite for the right to bargain, negotiate, contract, or alienate our goods, services, or ideas.

One crucial challenge is to reframe the traditional debate on incentives, including repositioning and appreciating blacks as patients--and not simply as donors. Second, incentive proponents should reject the very slippery, pervasive, and dishonest presumptions that incentives are not in the best interest of blacks or that commodification leads to the exploitation of poor persons of color rather than concede the point through an obvious failing to address the racial component underlying the commodification debate. Finally, the most significant impact to be made in the debate on incentives in organ transplantation centers on how we reframe the freedom of donors to contract away their organs.

The liberal response is to concede that paternalism has a positive function in the lives of those who are less wealthy, less educated, less well-positioned, and less ordered. Likewise, in the new liberal order, two significant mistakes occur. First, blacks become conditioned only as donors and not recipients, thereby ignoring the affirmative benefits that a greater supply of organs could mean to that community. The second problem arises from the fact that blacks are reduced to being irrational beings because they might consider saving lives by selling their organs. This temperamental ordering suggests that rationality disappears from blacks in the contexts of private ordering or contracting and reappears only when blacks give away their organs. Paternalism of this sort belies the function of American jurisprudence.

Public order proponents conclude that the state is always a more competent participant that does a better job of protecting minorities and the poor and promoting their interests than if the government were less involved and people negotiated on their own. The current organ crisis reveals the tragic flaw in this otherwise compelling idea. Delays and deaths await individuals forced to participate exclusively in the United States organ transplantation altruistic process. Critics of incentives make persuasive claims about lack of consistency and the possible exploitation of vulnerable populations. Yet such claims seem wedded to an essentialized perception of blacks and a paternalistic welfare model. This type of paternalism reifies racial and class hierarchies, suggesting that private negotiating is bad simply because racial minorities are incapable of acting in their own interests and that spurious motivations attend all incentive considerations.

Beyond increasing the supply of organs, private negotiating in organ transplantation will likely benefit society in several meaningful ways. First, there is an incentive to avoid buying organs on the black market. Second, a more reliable system emerges with the use of incentives. Third, incentives will likely promote better health outcomes for potential sellers and purchasers. Those interested in alienating organs will have an incentive to stay healthy during their lives so that their organs will be “picked” for transplantation. The benefits here inure not simply to the individual, but extend also to families and donors’ communities. Fourth, economically disadvantaged individuals might receive better screening for illnesses.

To this end, there are at least three key distinctions between organ alienation and slavery. First, black slaves were not compensated for their labor. Had blacks been compensated for donating their organs to save the lives of fellow citizens, such transactions would be far different from antebellum slavery. Second, slavery was compulsory; opt-out provisions did not exist in proslavery states nor in “free” states that grandfathered in slavery during the time of the Fugitive Slave Act. African-Americans could not check out by choice or whim. Instead, as forced participants in the U.S. slavery regime, blacks were unable to avoid the chattel system. By contrast, individuals possessing vital organs are not required to participate in market regimes or proposals to surrender their organs simply because they exist. Organ markets promote voluntary participation through the use of incentives. Thus, blacks could choose to avoid organ markets because incentives are too low, far too high, or simply distasteful. Finally, lightly comparing slavery to organ markets trivializes the slave experience.

In conclusion, the debate about incentives is really about social and political justice and who possesses the right to contract. Blacks wait longer than all other groups in the transplantation process, they experience the highest rates of death, and they are fundamentally shut out of the UNOS process. Contract law is about freedom, and more importantly, it is about power--the power to negotiate, bargain, consider, evaluate, and accept or decline opportunities. Commitment to bargain and terms of agreements reached through a negotiating process is an ideal worth imagining and striving for. These are ideals which can exist in the ordering of private, intimate spaces, as demonstrated in the realm of adoption and insemination. These examples of private ordering demonstrate that not all contractual practices subordinate the marginalized for the will of the wealthy. Certainly limiting or thwarting individuals’ ability to enter binding agreements does nothing to reinforce their status as full citizens.

The consequences of ignoring the possible advantages of incentives for curing organ deficits and thereby enhancing the health opportunities for all Americans--especially black American--are extreme. Black patients will continue to experience the longest waits on America’s transplantation waitlists until more organs become available for transplantation. That could hardly be called social justice.

Lloyd Cohen
George Mason University

I have three distinct points to make today. First, financial incentives for organ donation would save thousands of lives and reduce human suffering. The implementation of those incentives is prevented by the criminal and civil penalties of the National Organ Transplant Act. The most universally acceded to of economic principles is that compensating people for organs will provide more organs than if we do not.

It follows then as day follows night that if the supply of organs is responsive to price preventing financial compensation condemns to death the innocent ill. The very heavy burden that then falls on our opponents is to elucidate some principle so compelling to justify the human suffering and loss of life generated by this prohibition.

Our opponents cite that purchasing organs conveys the message that the human body is in that regard a physical object, a mere thing. Besides the fact that kidney, hearts, livers are indeed objects, we as Americans with our free speech traditions should blanche at the thought that the government would use the criminal laws to prevent the voicing of objectionable views.

My second point requires a short and partial taxonomy of the different sorts of “compensation” proposals that various people and groups have suggested. First, there is the question of how the acquired organs are allocated. There is no particular system of allocation that follows from the use of financial or other incentives to acquire organs. One could allow the organs to go the highest bidder--a solution that has more virtue to it than at first appears. On the other hand one could compel the organs to be allocated by UNOS in the same manner and subject to the same criteria as at present.
 
Second, as to methods of acquisition, we have a wide set of choices. I will accept any number of different incentive schemes. People are currently dying while the organs that can restore them to health are being fed to worms--and all that stands in the way of an end to this tragedy are the criminal and civil penalties for compensated transfer under the National Organ Transplant Act.

Finally, I want to touch on some of the virtues of directed donation of organs either from live donors or cadavers. The rules by which UNOS accepts and allocates cadaveric organs allows for only the most limited role to be played by the wishes of the donor. Donation to relatives will be given preference, but beyond that, no other preference will be adhered to. Even the LifeSharers preference for those who themselves agree to be organ donors is decried by UNOS and the medical ethicists who support the program. There is no sensible argument that there will be any material harm to anyone as a result of honoring individual preferences. UNOS arrogates to itself the power to limit the charitable purposes of the donor to those it approves of.

On an operational level, the problem is perhaps even worse. Giving power to quasipublic officials to exercise wise discretion and weigh all the factors that an individual would with his own wealth and property is a recipe for abuse of discretion and corruption. It is so much better when each individual makes these subjective, ad hoc, eclectic judgments

We sit here with Virginia Postrel and Sally Satel. Virginia gave evidence of her great soul in giving a kidney to Sally. We all not only acknowledge that it was her decision to make, but also that she did it to help a particular person whose virtues spoke to her as being worthy of this gift with all its risks and sacrifice. To permit more of such directed, personalized generosity, both with regard to cadaveric donation and living donation, is a great moral good--not some sort of moral failing, as UNOS would have it.

AEI research assistant Jonathan Stricks prepared this summary.