Wednesday, March 07, 2012

Compensated Kidney Donation and Coercive Choices

Posted by Sherry F. Colb

In my column for this week, I take up the question of compensated kidney donation (i.e., the sale of one's extra kidney).  I raise the question because of the legality and increasing popularity of paired kidney exchanges.

Paired exchanges occur when a pair of people, a willing kidney donor and a patient in need of a kidney transplant (but not a match for the willing donor), join with other such pairs until every person in need of a kidney is matched with one of the willing donors in the group.  This arrangement allows people to donate kidneys to save their loved ones even though the two people in the pair are not a match for each other.

The New York Times recently ran an article about paired-exchange chains, and the tone of the article was extremely positive and laudatory, a tone that I think most readers would find appropriate.  I suggest in my column that it may therefore be time to legalize kidney sales, which I argue do not differ meaningfully from the paired exchanges.

Before reaching this conclusion, I survey and offer brief responses to some of the arguments people mobilize against kidney markets.  One of these arguments suggests that compensated donors may be in desperate circumstances that create a kind of duress at odds with the required voluntariness of the decision to donate an organ.  My brief response to this argument is that refusing to allow a person to donate a kidney will leave her in the same dire circumstances that she faced before, circumstances that she finds awful enough to render transplant surgery a more attractive option.  In this post, I want to qualify my embrace of this argument.

The argument itself goes like this:  if we consider it acceptable to tolerate levels of poverty that would motivate the sale of kidneys, it seems peculiar and even hypocritical to prohibit kidney sales.  How are we protecting people in bad circumstances by reducing the number of options they have to respond to their circumstances?  The problem with this argument is that, taken to its logical conclusion, it would permit us to offer choices with which very few would be ethically comfortable.

One example might be the removal of limbs as punishment for crime in the United States.  Imagine that a convicted felon sentenced to life imprisonment could be given the option of leaving prison immediately by agreeing to have his arms removed.  The defendant might be willing to make the trade of "arms for freedom," given this choice.  But does his willingness mean that it would be acceptable for the State to employ people to cut off the defendants' arms?

I suspect that most readers would find the prospect of such punishments repugnant, even if one believes that a sentence of life imprisonment is itself legitimate.  As conservative as it is, in fact, our current Supreme Court would likely reject limb amputation as a violation of the Eighth Amendment ban on cruel and unusual punishments.  Most Americans would regard amputating a person's limbs (assuming no medical reason for doing so, such as gangrene) an ethically unacceptable punishment, regardless of what the prisoner might prefer.

If I acknowledge the validity of this argument -- that the "greater" power to deny a person's freedom for the duration of his natural life, does not thereby include the "lesser" power to offer the person the bilateral arm amputation alternative -- then how do I distinguish kidney donation?

In one sense, I do not need to offer an affirmative defense of compensated kidney donation, because -- as I argue in my column -- we already permit compensating donors with kidneys and are therefore drawing arbitrary lines by prohibiting financial compensation.  I am nonetheless interested in trying to offer a defense of kidney sale, because I do believe that kidney donation is different from arm amputation, and I want to explore whether that belief is warranted.

Part of what drives my thinking is the fact that when one person donates a kidney to another who needs a transplant, this redistribution is generally far more beneficial to the recipient than it is detrimental to the donor.  That is, the donor's extra kidney will do far more for the transplant recipient than its loss will do to the donor.  This fact is insufficient to permit forced donations, because we recognize a right of bodily integrity in every person that poses an absolute bar to such force.  We leave it up to each individual whether to donate blood, bone marrow, or a kidney, even though the cost to the donor in all of these situations is generally very small compared to the tremendous benefit that donation offers the recipient.  We view it as unethical to force anyone to donate an organ, regardless of how great the consequences of such coercion would be for the intended recipient.

The fact that kidney donation is highly desirable, from a cost/benefit perspective, is thus not enough to permit force.  Its desirability is not entirely irrelevant, however, to the question of whether and when we might be willing to allow positive incentives for a potential donor to make the decision to donate.

Having a convict's arms amputated, for example, does not offer tremendous benefits to anyone, so the  coercion entailed in offering it as an alternative to life imprisonment becomes more suspect than the offer of money for a kidney.  At the same time, losing one's arms represents a substantial loss, by comparison to losing one's extra kidney.  When taken together, the three factors (net utility of transfer, cost imposed on the donating party, and benefit provided to the receiving party) make the choice to donate a kidney for money appear far less troubling than the choice to undergo arm amputation in exchange for freedom.

These are preliminary thoughts, and I certainly would want a kidney market to be highly regulated to ensure voluntariness and fair dealing between the parties.  To regulate, however, requires legalization of kidney sale.  At the moment, because compensated donation is prohibited by federal law, the existing kidney market is an illegal one in which organ brokers receive most of the money that changes hands.  Furthermore, because the activity is criminal, the people who donate organs are subject to rampant exploitation and coercion that go undetected and therefore unchecked..

Though this is hardly a new argument, we must remember that when there is demand for a product, prohibiting its sale alters but does not remove the market for that product.  What it does do is increase the danger and exploitation associated with it.  For would-be donors who are not truly desperate, these factors may be prohibitive, thus substantially reducing the number of kidneys that could be made available.  And ironically, the result -- what we have today -- may be a market in which the people who are willing to  donate for compensation the very desperate people against whose coercion the law was intended to guard..

11 comments:

Cornell Law Student 2012 said...

It seems this is an interesting line of argument, but to test how far the reasons go: one of your considerations is the relatively small harm that is done to the person donating their kidney. Recently, a felon in california, serving his sentence discovered that his daughter was in need of a kidney, unfortunately this felon had only one kidney. He wanted to donate and was rebuffed by the hospital ethics department.

Suppose this felon were looking to donate his last kidney for financial compensation, even if it means certain death. Would this be acceptable?

Also suppose a rare blood type, spelling death for the recipient should he not receive this felon's kidney. Would this change the analysis?

The intrinsic point, I suppose, is that a large gulf between perceived cost to donor and perceived benefit to recipient is one of the legs on which this argument seems to stand, but this need not be so. If the trade off is more 'even' in the sense of bodily harm / advantage, how does this change the calculus?

Paul Scott said...

This scenario has been explored often in many of the science fiction stories I have read since childhood. Most memorably for me in Larry Niven's short story - "Unsafe at any Speed."

I'd like to take this in a slightly different direction from Cornell Law Student 2012.

Let us combine your two scenarios: bilateral amputation for reduced sentences and kidney donations for money.

Let us assume that any prisoner, upon entry into the prison system, can be tissue typed. That prisoner can then agree to donate his organs, so long as that donation was not a significant risk to his or her life, in exchange for a reduced sentence. Does this seems significantly different from kidney's for cash or kidney exchanges? If so, I don't see how.

What about just a government registration for kidney donors, where the donations can be used to offset taxes, or traffic fines, or other such debts owed tot he government?

I think the reality is that we, as a society, limit the ways in which people can respond to desperate situations all the time. One in particular, you have come out against regularly. If I understand your previous posts, you feel that young, hot women should not be allowed to sell their bodies for sex in exchange for cash. Please correct me if I am wrong.

We, of course, do allow young, hot women to sell their bodies for sex, so long as that sale is filmed or photographed and then put in circulation for sale. But we don't let them accept money directly from the person who wishes to have sex with them.

To me, this argument conflates two issues that need to remain separate or the one will be a justification for a great many things otherwise deemed unacceptable (rightly or wrongly, as each case may be).

The fact that our society fails to adequately care for its poor (or even not so poor) needs to remain separate from laws that prohibit conduct. It is, of course, still a problem, but that problem should not be allowed to justify the removal of prohibitions on conduct. If those prohibitions need to be removed, the removal of such should stand independent of the financial needs of those who might be tempted to engage in the conduct.

Dave said...

As the death toll from the organ shortage mounts, public opinion will eventually support financial compensation for organ donation in the United States. Changes in public policy will then follow.

In the mean time, there is an already-legal way to put a big dent in the organ shortage -- allocate donated organs first to people who have agreed to donate their own organs when they die. UNOS, which manages the national organ allocation system, has the power to make this simple policy change. No legislative action is required.

Americans who want to donate their organs to other registered organ donors don't have to wait for UNOS to act. They can join LifeSharers, a non-profit network of organ donors who agree to offer their organs first to other organ donors when they die. Membership is free at www.lifesharers.org or by calling 1-888-ORGAN88. There is no age limit, parents can enroll their minor children, and no one is excluded due to any pre-existing medical condition.

Giving organs first to organ donors will convince more people to register as organ donors. It will also make the organ allocation system fairer. Non-donors should go to the back of the waiting list as long as there is a shortage of organs. Everyone can offer to donate their organs when they die, no matter what their medical condition or history is.

David J. Undis
Executive Director
LifeSharers

Paul Scott said...

If you want to fix the organ donation problem, there is an easy, completely harm-free way of doing it. Stop giving dead bodies rights. they don't them. Force everyone to give up their bodies upon death and have the organs harvested where viable. Where not viable the bodies can go to science.

The idea that we let people just destroy these organs after they are dead is absurd.

You don't need to prey on the financially desperate to keep the rich alive.

gusto said...

The ultimate issue may be one of freedom and property rights. Are we free, and do we have rights, to "use" our bodies as we please (as long as it does not harm others)?
If you answer in the affirmative then, to be intellectually consistent, you will have to come out in favor of legalizing drugs, prostitution, and organ donation.
The problem is one of hypocrisy: I can sell sperm, blood, or eggs; I can rent my womb. Kidneys and other tissues are off limits.
The other problem is the "fatal conceit" of politicians that want to protect us from ourselves by replacing our free will with coercive solutions that produce unintended results: "you will wait a couple of years for a kidney transplant (and may die waiting) because I only allow people to give away their kidneys for free".

Kidneyback said...

I gave a kidney to a friend on Feb 21st of 2012. The experience has been nothing but negative. The recipient pre surgery put a lot of pressure on me, which was unnecessary, as when you decide to do something like this, it us a final decision. I dismissed her behavior as I felt she was desperate. After surgery I had complications. The Mayo Clinic nicked a lymph node. What made this situation worse is it went undiagnosed for 4 weeks. It was only upon my return to Denver that is was diagnosed. I also ended up with an umbilical hernia. Mayo has not paid my bills due to complications as they promised, which is now holding up the hernia surgery . And my recipient who promised to pay loss of wages and my out of pocket expenses, due to the surgery. As well as promised to cover follow-up visits from Denver to Mayo and the difference in self funded insurance, which goes from $220 with 2 kidney's to $530 with 1 kidney has completely walked away... With my kidney. Can I get it back?!

Kidneyback said...

I gave a kidney to a friend on Feb 21st of 2012. The experience has been nothing but negative. The recipient pre surgery put a lot of pressure on me, which was unnecessary, as when you decide to do something like this, it us a final decision. I dismissed her behavior as I felt she was desperate. After surgery I had complications. The Mayo Clinic nicked a lymph node. What made this situation worse is it went undiagnosed for 4 weeks. It was only upon my return to Denver that is was diagnosed. I also ended up with an umbilical hernia. Mayo has not paid my bills due to complications as they promised, which is now holding up the hernia surgery . And my recipient who promised to pay loss of wages and my out of pocket expenses, due to the surgery. As well as promised to cover follow-up visits from Denver to Mayo and the difference in self funded insurance, which goes from $220 with 2 kidney's to $530 with 1 kidney has completely walked away... With my kidney. Can I get it back?!

Dewaite Houwad said...

which is now holding up the hernia surgery . And my recipient who promised to pay loss of wages and my out of pocket expenses, due to the surgery. As well as promised to cover follow-up visits from Denver to Mayo and the difference in self funded insurance, which goes from $220 with 2 kidney's to $530 with 1 kidney has completely walked away... With my kidney. Can I get it back?! Windows 7 ultimate Key
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Cornell said...

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