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..