AEI publishes another kidney-centric call for an organ market

By Bill Peckham

The American Enterprise Institute is out with another call for an organ market. Our Deeply Unethical National Organ Policy by Harold Gershowitz (recipient) and Amy Gershowitz Lask (donor) is a full throated call for kidney donor reimbursement. They even suggest a figure, $20,000.

The piece is aggravating for a number of reasons but the most aggravating part is that the authors view the issue as exclusively a kidney issue.

Kidney transplantation is not walled off from the rest of medicine. Change the structure of the kidney acquisition/transplant process, and you change the structure of medicine. Most particularly by paying for kidneys you change the system that has developed for the acquisition/transplant of other organs and tissues.

If a kidney from a living donor is worth $20,000, what's a postmortem kidney worth? How much for a postmortem liver? Postmortem donation of hearts, livers, lungs and all manner of other useful tissues rely on altruistic donation. If body parts become commodities what will it mean for all the people waiting for postmortem donations? I think the needs of people waiting for irreplaceable body parts (e.g. hearts, lungs, liver (mostly)) should be considered before the needs of those waiting for a kidney.

Have the authors spoken to the relatives of postmortem donors, the ones who had to make the decision to donate, and asked how compensation would have effected their decision? I have. The ones I've spoken to were repulsed by the idea. An altruistic donor system can't coexist with a paid donor system, it's one or the other. We will lose more than we'll gain if we allow kidneys to be sold.

Comments

[somerville]

Although common parlance does not describe it as such, human blood is technically, by the medical definition of 'organ,' just as much an organ as a kidney is. Since American society finds it perfectly ethical and legal for individuals to sell their blood for profit, it has thus already accepted organ sales in principle. Thus the legal sale of blood reveals objections to the sale of kidneys as utterly unprincipled and foolish, based merely on the arbitrary cultural taboos of the masses and on their ignorance of how an organ is defined. I hope we can agree that we should not condemn to death dying renal patients on the transplant waiting list just to respect an irrational but commonly made distinction.

Another arbitrary ethical assumption is that while it is perfectly acceptable for the government and large institutions to sell body parts, it is the worst sort of immorality -- the kind which even requires the death of patients dying on the transplant list to prevent -- if private individuals do exactly the same thing. Some of the human body parts sold by coroner's offices, hospitals, and privately-owned tissue banks without anyone raising ethical objections include dura mater, fascia lata, skin, corneas, and entire cadavers for medical school dissections. A cadaver today has a cash value of $200,000 on the market for sale to private, for-profit tissue banks. Advanced reproductive technology now involves the sale of eggs and sperm, as well as the 'renting' of wombs in surrogate motherhood contracts, which are legal in some states. On any sophisticated, rational analysis, not distracted by the pure imagery and arbitrary distinctions which transfix some people, the line between selling or not selling human body parts has long since been crossed, so a line cannot now sensibly be drawn only at the sale of organs to save people's lives.

But even if we confine our attention just to life-saving organs, these too are already sold, and sold for a profit, though just not by private individuals, but by institutions. Hospitals sell organs for transplant to other hospitals, and the extreme variation in the prices charged shows that they are not just recovering their costs in the sales, but actually making a profit. Since this has been going on for years without any ethical objections, why is it now so horrific that individuals should do the same?

It is often proposed that people donating a kidney for transplant, who incur considerable costs from their donation in terms of time lost, unpaid leave from work, and pain and suffering as a result of the operation, ought to be compensated for their costs but not for the sale of the organ. This is now done by the province of British Columbia and some other jurisdictions. But what is fair compensation? Can we really distinguish what is paid for compensation from what is paid for profit? What is the time worth for someone who is unemployed? Should a person with a high-paid job get more money? Should a pain-sensitive person get more? How much more? Unless we have a market set the price, we can never be sure the price is fair. Since there is no value whatsoever in the donor enduring the operation or taking time off from work unless the organ is transferred, how can we distinguish the payment being solely for the inconvenience and pain and suffering rather than for the organ itself? It is as though we were to say that the price of gold is paid just for the pure metal, not for the costs of the workmen in time, energy, and equipment in digging it out of the earth. Obviously if the metal did not involve that work, its cost would be very different, so there is no rational way to separate the payment for the effort expended in providing something from
the payment for the object itself.

In the current organ transplant system, everyone makes a profit except the person who provides the most vital service -- the organ donor. If the organ donor makes a profit, it is evil, but if the surgeon, the anesthesiologist, the surgical nurses, and the possibly private hospital make money by the operation -- which is valueless without a kidney being transferred -- then that is just fine. But if the operation is valueless unless the kidney is transferred, then the payment for the 'service' cannot rationally be distinguished from what gives the service its value, which is the organ exchange, so the transplant surgeons are selling the kidney just as much as any organ broker is. No organ recipient pays the surgeon for cutting his abdomen open, but only for putting a kidney inside, which makes this action of the surgeon an organ sale just as much as the action of a pimp in law amounts to the same crime of prostitution as the prostitute herself commits.

But people would be repulsed by an organ trade, say some. Yet many types of commercial exchange have been found to be repulsive in the past but have come to be universally accepted as ethical after they became more familiar. Life insurance policies used to be forbidden as blasphemous bets on what God would do; salvage awards for rescuing life at sea were illegal for paying people to do what morality demanded be done for free; defamation awards were refused because they implied that a man's honor could be bought. But people mature out of these superstitions. A poll conducted by the Department of Health and Human Services in 2005 found that while 9% of people said that they would be sufficiently disgusted by payment for cadaver organs that they would refuse to donate relatives' organs, 19% said that payment would encourage them to do so, so the net effect would be positive. Among potential live donors the number of those who would be induced to sell by a market would be sufficient to end the transplant waiting list very quickly. Given the supreme moral imperative of saving lives, objections about the sacredness of the body being violated by a kidney market would have to take second place, even if they made sense at all, which is demonstrably not the case, given the practices now accepted as legal and ethical.

[Bill Peckham]

Provide a link for the "poll conducted by the Department of Health and Human Services in 2005". That sounds unlikely.

[somerville]

The information comes from Sally Satel, "Organ Failure," an article she has posted on a number of websites, including 'Slate' (August 15, 2008) and the 'American Enterprise Institute for Public Policy Research' (August 15, 2008), as well as from a similar article at 'The American' website by Satel entitled "The National Kidney Foundation's Bizarre Logic."

[Bill Peckham]

Here is the link to the Gallup poll:
It has been suggested that more organs would be donated if families who donate the organs of a deceased loved one received some type of payment, such as assistance in paying funeral expenses, a cash award to the donor's estate, or a cash award to a charity of the family's choice. Would payments like these make you more likely or less likely to donate (Your own/A family member's) organs, or would it have no effect?

That's not the same thing as paying someone $20,000 for their dead husbands liver, another $10,000 for each kidney, etc. not to mention all the bits of tissue and bone that can be harvested. Or are you suggesting that a kidney market would coexist with small, symbolic tokens of gratitude for postmortem donors?

[Peter Laird, MD]

Bill, we already discussed the Satel article after it came out:

http://www.billpeckham.com/from_the_sharp_end_of_the/2008/08/bashing-the-nat.html

[Bill Peckham]

I know we've covered this, numerous times, but this latest article is a throw back.

[Peter Laird, MD]

Some people will never be convinced that an organ market is immoral. The Satel article advocating in kind rewards instead of direct payments confirms that even the proponents of a paid organ system believe that cash payments would lead to exploitation of the poor. It is an argument void of logic especially her arguments calling altruism immoral. Sorry, I should have addressed the issue above directly to Somerville instead of to you. I appreciate your posts as always.

[somerville]

Since prostitution has never replaced sex for the sake of romantic love, there is no reason to suppose that a kidney market would displace kidney donations -- or do you really believe that if it were legal to charge money for providing a kidney, you would charge your own brother, mother, son, or daughter a fee for doing so? Donation out of affection or altruism simply operates along a different motivational path from donation for monetary gain, so the two could co-exist, just as much unpaid caregiving exists within families today, even though caregivers are also paid outside the family circle.

The principle of altruism could even be enhanced by allowing a kidney market, since a person could make not just one donation by providing a kidney, but a double donation by refusing the accept the payment offered for that kidney. Denying cash payments for kidney donations thus limits the full potential for altruism.

A variety of market mechanisms have been proposed for solving the lethal shortage of organs for transplant. There could be a kidney futures market, in which people would have to pledge their kidneys irrevocably for donation after death, in return for which they would be given priority in receiving cadaver kidneys if they ever needed one during life. This then makes one gift of a kidney from the patient 'buy' a return gift of a kidney from the general pool of cadaver kidneys, yet since this just exchanges kidneys for kidneys rather than cash for kidneys, it somehow seems more morally acceptable than a cash sale. But this just shows how utterly silly all the popular intuitions are regarding what is moral and what is not in the kidney trade, since buying a kidney with a kidney purchases an organ with a thing of value just as much as buying it with money would. This is what is already done with 'daisy chain' transplants, where the non-matching relative of A gives a kidney to the non-matching relative of B to 'buy' a kidney from B's relative for A. This was forbidden for many years while nephrologists examined its 'ethical' validity, and during this time who knows how many dying dialysis patients they killed. Now that such successive or paired transplants are permitted, no one thinks twice about it, but we can never recover those renal patients who were killed waiting for the healthy people in charge of their fate to make up their minds. No one should ever die again for lack of an organ just for the sake of the public's irrational, image-driven, intuitive sense of what is acceptable.

The central fact in all these considerations is that the altruistic system of renal donation has never been able to answer the medical need for transplants. This means that we have experienced now about half a century of medically unnecessary deaths from the lack of organs for transplant. Since the existing system of altruistic donation has been overwhelmingly demonstrated to have lethal consequences, it seems perverse to hunt for imaginative reasons why the most promising alternative to that failed system might not work. The more humane approach would be to institute at least a five-year trial of a kidney market to see what difference that would make. The evidence from such a market even in a third-world medical system such as Iran's is that it would make a decisive difference.

[noseeum]

I don't see any difference or any problem here. It's quite nice to call giving a poor person $20k for one of their kidneys exploitation, but how about you ask them first? $20,000 is pretty much exactly what a poor person needs sometimes. They are adults too, and if they make the rational decision that $20k means more to them right now then their redundant kidney, I don't see the problem. They should of course be guaranteed follow up medical supervision, etc, but that could all be setup in a legal market. You're assuming there's some seedy exchange going on. If this were a legal market, you could establish rules for making sure the donor actually benefits.

The current system prevents patients from getting needed organs. Translation: people die unnecessarily. How is that moral?

As somerville mentioned, everyone in the donation chain makes money except the donor. How is that anything other than exploitation?

If it's good for kidneys, which it is, it's good for all organs.

[Toastie]

Hypothetically, my friend who is on dialysis waiting for a transplant has both a good friend and a cousin willing to donate a kidney to him. The one who doesn't donate the kidney may be altruistic enough to give me a kidney. I will gladly, albeit awkwardly, accept this kidney from a person I don't know directly, because I want to go get off of dialysis.

But if there were an established kidney market, would I be morally obligated to offer compensation? Would my insurance assist? The donor was willing to donate a kidney to his friend/cousin for nothing. And perhaps me, too. But what if the market suggests the donor can get $20K for the kidney? I'm out of luck.

It seems so easy to propose these libertarian free market ideas when you're an economist, an academic applying theory to widgets, which happen to be kidneys in this discussion.

As a dialysis patient, I find the prospect of kidney markets to be horrifying. I'd so much rather efforts be focused on promoting organ donation, improving dialysis, and preventative care for better renal health than on these markets.

[Peter Laird, MD]

Dear Toastie, thank you for your comments of which Bill and Anna and I are all in agreement with you. The problem becomes even more difficult when you realize that they want to set up a tax funded organ market which would not be a market at all, but simply another government run benefit program. A true market would have the recipient paying for the donation themselves. However, I am sure that we would hear that this is unethical since only the rich could afford to buy a kidney. Their views of what is ethical is a far cry from the reality of what they are calling for.

[Anna Bennett]

And here I am jumping in on this conversation. UGH. How many ways can you beat this poor horse. hahahah poor. That should be the key word in all of this.

Noblesse oblige, buy a kidney from a poor person. That sentiment is "if I can afford it, why can't I buy it?" Hey, it will help the economy: What a great new revenue stream for lawyers - forget about ambulance chasing, there is money in failed purchased transplants. Maybe on the People's Court one day we'll see "I paid him 20k for a kidney that didn't work. I want my money back". You think you won't see that litigation? Do a lexis search for "Divorce, Kidney Transplant". If it is a contract, it is actionable.

And since transplant is ALREADY economically restricted: 2K a month for immunosuppressives? 1K for lab diagnostics for each clinic visit, $350 for the nephrologists time. Heaven forbid that you get CMV or BK or anything else... Valcyte is $70.00 per pill.

Jonathan Swift wrote some political satire about the Irish Potato Famine, I originally thought that was what the Noblesse Oblige were writing - oops, I was wrong, it was desperate upper middle class Americans who decided that they want to be able to buy a kidney, after all, why can't they, they can buy anything else they need. It is NOT fair.

Better yet, misinformed lower middle class people or gasp poor people, could mortgage their home, have bake sales and then buy a kidney, only to find out that they will be footing the bill for their transplant for years to come (unless they are lucky enough to have and maintain insurance).

Yeah, as I have said before (ad nauseum) I don't see any of this happening, but please feel free to discuss amongst yourselves the merits of an organ market.

Meanwhile RIGHT NOW, a not insignificant percentage of people with transplants are losing them, because they can't pay for their meds. But that's ok, they will soon be on dialysis, and your tax dollars can pay for that.

[somerville]

Trying to solve the current lethal shortage of organs for transplant cannot work through intensified efforts to prevent renal failure, since about half of all cases of endstage renal disease arise from unpreventable causes (polycystic renal disease, many autoimmune diseases, congenital malformations), or causes which can only be modified but ultimately not eliminated (lupus, diabetic nephropathy, essential hypertension). Public education campaigns to increase organ donations have been ongoing for the last half century and have never produced an adequate number of donated kidneys, so it is no answer to say that they will in the future.

Most proposals for a kidney market envision the government paying for the organs acquired, and Iran now has a quasi-governmental religious body which facilitates these purchases in its organ market. If the government were to pay it would decrease rather than increase taxes, since it would cost the government less money to pay $250,000 for a transplant plus $15,000 a year for immunosuppression and follow-up care -- which would enable many patients to become productive, tax-paying citizens again -- than it would for the government to pay $60,000 a year to keep someone forever un- or underemployed on dialysis.

Even if there were only a private kidney market, this would skim the wealthier dialysis patients off the waiting lists and thus advance all those remaining on the lists for a UNOS transplant. The rich can't gain without everyone enjoying a benefit.

All contracts are hedged in with restrictions. You can't sell yourself into slavery; a minor can only buy on credit a narrow list of goods deemed 'necessary'; a contract not under seal is invalid without a clear and effectively simultanous offer and acceptance; contracts violative of public policy cannot be enforced -- and the list goes on to fill about 800 pages of the average contract law text. So there is no reason why a kidney market could not be created with a range of contract rules in place to regulate all the problems of informed consent, health status, failure of the surgery, possible failure of the organ, etc.

[Anna Bennett]

Henry, I see your point. BUT what I am trying to point out is that we are in a triage situation: Mass casualties, chaos, who's life do you save?

I am writing this from memory, so I will use rounded numbers that I have cited in other posts: 80% of people with CKD5 are on dialysis. 20% are eligible for transplant.

We have a donation system in place with many many untapped resources. Let's optimize what we have before creating the miasma that is an organ market.

Let's see that altruistic donors are being taken care of. Medical follow up, paid expenses. As it stands today, altruistic donors still can get transplant related hospital bills - imagine what it must feel like to have donated a kidney, and have your credit ruined because a billing company for the lab sent you to collections? Talk about adding insult to injury.

BTW, I am all for tax deductions for altruistic donors. That would be easy to administer. Go through the IRS. Prove that you donated a kidney, and boom, you get another exemption for that year. That is a simple win/win solution to part of the problem. How come no one is writing about that?

I agree, in that hypothetical world of creating legislation for the administration and oversight of an organ market, people could be hired to write the pages and pages needed to "legalize" selling body parts. BUT in the real world that I live in, we can't even run our own healthcare system. Why add another level of complexity?

Let's fix what we are already working with. That is my priority, and I wish it were others as well. It is my feeling that we need their intellect for solving problems that are fixable, and will affect the MAJORITY of people with CKD5.

[Anna Bennett]

Oh, and another thing... "Trying to solve the current lethal shortage of organs for transplant cannot work through intensified efforts to prevent renal failure, since about half of all cases of endstage renal disease arise from unpreventable causes (polycystic renal disease, many autoimmune diseases, congenital malformations),..."

Actually, it could. Using your logic, if those preventable never transitioned to CKD5, they would not need to be listed on the UNOS list. You mentioned that allowing people to purchase an organ would free up an organ for the list, as should a person never transitioning to CKD from a preventable disease.

I'm just sayin' (sorry, I had an awe shucks moment)

[somerville]

Since only a small percentage of those with CKD5 are even listed for a transplant -- in most cases just to keep the list short, rather than because of genuine medical exclusions -- and even then, many of the medical elite who manage to be listed die waiting, obviously a huge, transformative change in the transplant system is required to save lives. Only a small fraction of people who die end their lives under the very special circumstances which permit organ transplant, and even in those cases, two-thirds of family members refuse to permit the organs to be harvested, since they put their aesthetic wish to bury an intact corpse above someone else's claim to live, and the law, predominantly written by and for healthy people, supports this priority of interests. Since a major cause of endstage renal failure today is graft loss following a transplant, this pressure on the overstressed dialysis and transplant systems could be considerably diminished if renal transplants were to come from paid live donors, whose transplanted kidneys function twice as long as the cadaver kidneys which will always remain a major source of transplants without a market. Legalized kidney sales in Iran have demonstrated that the waiting lists for renal transplant can be effectively cleared and reduced forever to zero by a market, even in a third world medical system, and since no other program has ever had such success, we cannot ignore this test case when confronted by the lethal waiting lists in the rest of the world.

I don't understand the reasoning that it is morally acceptable to pay kidney donors as long as we pay them only a small amount in the form of tax breaks, but just not enough to induce significant numbers to step forward and save meaningful numbers of renal patients. Once we have crossed the moral line of deciding to pay donors for a kidney, how much we pay them doesn't seem to make much difference.

[Anna Bennett]

I don't see tax incentives as a moral payment line. We get a tax break for driving a hybrid car, we get a tax break for installing solar panels. Making something "Tax Free" is an altruistic bonus. I do not view it as an organ purchase. You can argue semantics, but in this case, I choose to view the spirit of giving (as any other act of charity is tax exempt).

BTW, the list is short yes, but it is also seriously inflated. Would the criteria be less stringent should there be more organs available? That is open for debate.

I still feel that this whole debate is simply wasting time when there are more things that can be done right now that would have an immediate impact.

[Zach]

Is it not true that in Iran, kidney transplants are limited to recipients younger than 50 years of age?

[Anna Bennett]

Zach, we cannot trust any of the data coming out of Iran. There have been no independent observers who have published any findings, and all of the anecdotal information that I have heard is that the system is even more corrupt than I thought.

[somerville]

There is a lot of very positive information about the results of the kidney market in Iran published in B. Larijani, et al, "Rewarded Gift for Living Donors," Transplantation Proceedings, vol. 36, p. 2539 (2004). Transplantation Proceedings is one of the most respected journals in the transplant field, and of course all its articles are peer-reviewed before publication.

[Anna Bennett]

Thanks,I had overlooked the article from `04. Have any journals published anything more recent? Someone had mentioned that Dr. Hippin was there, but I've seen nothing that he has published on it.

I am curious to know what is really going on there.

[somerville]

When drawing lessons from the Iranian market for a possible kidney market in western developed countries, it is important to note that Iran's ability to develop rational solutions to the issues arising in a market is severely limited by its technological backwardness, by its poverty, and by its need to accommodate strict religious values in everything it does. Any shortcomings in the Iranian market may well say more about the very special circumstances in that society than about what could be achieved in more perfectly rationalized states.