Gill and Sade • Paying for Kidneys: the Case against Prohibition

We argue that healthy people should be allowed to sell one of their kidneys while they are alive—that the current prohibition on payment for kidneys ought to be overturned. Our argument has three parts. First, we argue that the moral basis for the current policy on live kidney donations and on the sale of other kinds of tissue implies that we ought to legalize the sale of kidneys. Second, we address the objection that the sale of kidneys is intrinsically wrong because it violates the Kantian duty of respect for humanity. Third, we address a range of consequentialist objections based on the idea that kidney sales will be exploitative. Throughout the paper, we argue only that it ought to be legal for an individual to receive payment for a kidney. We do not argue that it ought to be legal for an individual to buy a kidney. OUR SOCIETY PLACES A HIGH PRIORITY on value pluralism and individual autonomy. With few constraints, people make personal decisions regarding what they wish to buy and sell based on their own values. There are laws prohibiting certain kinds of trade; these laws are generally aimed at preventing commercial interactions that are associated with serious harms. Payment to living organ donors has been perceived to be just such a harmful transaction.1 The Uniform Anatomical Gift Act (UAGA), originally approved by the National Conference of Commissioners on Uniform State Laws in 1968, was intended to permit individuals to specify their desire to donate organs at the time of their deaths (Uniform Anatomical Gift Act, Uniform Laws Annotated 8, 1972). Although the framers of the proposed act considered the possibility that a market for organs could develop, they did not conclude that buying and selling organs was intrinsically wrong. The UAGA was, in fact, silent on the question of payment for organs. Yet, today, every major organization that has an official position on the matKENNEDY INSTITUTE OF ETHICS JOURNAL • MARCH 2002 [ 18 ] ter maintains that payment for organs is unequivocally unethical and must be legally prohibited. Why did this shift occur? In the early 1980s, transplantation was expanding rapidly due to the introduction of improved immunosuppressive drugs. The need for a national system of organ procurement and allocation was identified and codified in the National Organ Transplantation Act (NOTA) of 1984 (Public Law No. 98–507, amended by Public Law No. 100–607 and Public Law No. 101–616). At the same time, organ brokerage began to develop (U.S. Congress 1984, pp. 238–56). A strongly adverse public reaction to this development led to the inclusion in NOTA of a prohibition against the provision of any “valuable consideration” in exchange for a transplantable organ. Thus, all forms of payment for organs were made illegal, based on the ethical judgment that the harms of allowing payment substantially outweighed the benefits (Childress 1996). We believe that possible harms arising from allowing payment for organs have been overstated, and that healthy people should be allowed to sell one of their kidneys while they are alive—that kidney sales by living people ought to be legal. In what follows, we will present the case for the legalization of live kidney sales and answer objections to it. We confine our discussion to kidneys because the kidney is a paired organ that can be removed safely with little impact on the health of the donor. Kidney transplantation, moreover, is by far the most common of all transplants, and the discrepancy between kidney supply and need is the greatest. (Our argument does, however, bear on the sale of parts of other, nonpaired, organs, as we discuss in the section entitled “The Prima Facie Case for Kidney Sales.”) In presenting our case, we start by making several important preliminary points. We then present an initial argument for allowing healthy people to sell one of their kidneys. This initial argument is not conclusive in itself, but we think that it constitutes a powerful prima facie or presumptive case for not prohibiting kidney sales. Next we address the view that kidney sales are intrinsically wrong. Finally, we address the objection that kidney sales are wrong because paying for organs is exploitative. We hope to show that there are very good reasons for overturning the prohibition on payment for kidneys, and that neither the “intrinsically wrong” objections nor the worries about exploitation withstand careful scrutiny. GILL AND SADE • PAYING FOR KIDNEYS: THE CASE AGAINST PROHIBITION [ 19 ] PRELIMINARY POINTS First, we are arguing for the claim that it ought to be legal for a person to be paid for one of his or her kidneys. We are not arguing that it ought to be legal for a potential recipient to buy a kidney in an open market. We propose that the buyers of kidneys be the agencies in charge of kidney procurement or transplantation; that is, we propose that such agencies should be allowed to use financial incentives to acquire kidneys. We assume that allocation of kidneys will be based on medical criteria, as in the existing allocation system for cadaveric organs. Kidneys will not be traded in an unregulated market.2 A similar system is currently in place for blood products: a person can receive money for providing blood products, but one’s chances of receiving blood are distinct from one’s financial status. We further note that transplant recipients or their agents—e.g., insurance companies, Medicaid—pay for organs now, compensating the organ procurement organization that organizes the organ retrieval, the surgeon who removes the organ, the hospital where the organ is procured, and so forth. The only component of the organ procurement process not currently paid is the most critical component, the possessor of the kidney, who is sine qua non for organ availability. Second, we believe the legalization of kidney sales will increase the number of kidneys that are transplanted each year and thus save the lives of people who would otherwise die. We base this belief on two views that seem to us very plausible: first, that financial incentives will induce some people to give up a kidney for transplantation who would otherwise not have done so; and second, that the existence of financial incentives will not decrease significantly the current level of live kidney donations. The first view seems to us to follow from the basic idea that people are more likely to do something if they are going to get paid for it. The second view seems to us to follow from the fact that a very large majority of live kidney donations occur between family members and the idea that the motivation of a sister who donates a kidney to a brother, or a parent who donates a kidney to a child, will not be altered by the existence of financial incentives. Although we think these views are plausible, we acknowledge that there is no clear evidence that they are true. If subsequent research were to establish that the legalization of kidney sales would lead to a decrease in the number of kidneys that are transplanted each year, some of the arguments we make would be substantially weakened.3 Third, we are arguing for allowing payment to living kidney donors, but many of the kidneys available for transplantation come from cadavers. KENNEDY INSTITUTE OF ETHICS JOURNAL • MARCH 2002 [ 20 ] We believe that payment for cadaveric organs also ought to be legalized, but we will not discuss that issue here. If we successfully make the case for allowing payment to living donors, the case for payment for cadaveric kidneys should follow easily. THE PRIMA FACIE CASE FOR KIDNEY SALES With these preliminary points in mind, we will proceed to the initial argument for permitting payment for kidneys.4 This argument is based on two claims: the “good donor claim” and the “sale of tissue claim.” The good donor claim contends that it is and ought to be legal for a living person to donate one of his or her kidneys to someone else who needs a kidney in order to survive. These donations typically consist of someone giving a kidney to a sibling, spouse, or child, but there are also cases of individuals donating to strangers. Such donations account for about half of all kidney transplants.5 Our society, moreover, does not simply allow such live kidney donations. Rather, we actively praise and encourage them.6 We typically take them to be morally unproblematic cases of saving a human life. The sale of tissue claim contends that it is and ought to be legal for living persons to sell parts of their bodies. We can sell such tissues as hair, sperm, and eggs, but the body parts we focus on here are blood products. A kidney is more like blood products than other tissues because both are physical necessities: people need them in order to survive. Our proposed kidney sales are more like the sale of blood products in that both involve the market only in acquisition and not in allocation: the current system pays people for plasma while continuing to distribute blood products without regard to patients’ economic status, just as we propose for kidneys. We do not typically praise people who sell their plasma as we do people who donate a kidney to save the life of a sibling. At the same time, most people do not brand commercial blood banks as moral abominations. We generally take them to be an acceptable means of acquiring a resource that is needed to save lives.7 It is doubtful, for instance, that there would be widespread support for the abolition of payment for plasma if the result were a reduction in supply so severe that thousands of people died every year for lack of blood products. If both the good donor claim and the sale of tissue claim are true, we have at least an initial argument, or prima facie grounds, for holding that payment for kidneys ought to be legal. The good donor claim implies that it ought to be legal for a living person to decide to transfer one of his or GILL AND SADE • PAYING FOR KIDNEYS: THE CASE AGAINST PROHIBITION [ 21 ] her kidneys to someone else, while the sale of tissue claim implies that it ought to be legal for a living person to decide to transfer part of his or her body to someone else for money. It thus seems initially plausible to hold that the two claims together imply that it ought to be legal for a living person to decide to transfer one of his or her kidneys to someone else for money. Of course, there seems to be an obvious difference between donating a kidney and selling one: motive. Those who donate typically are motivated by benevolence or altruism, while those who sell typically are motivated by monetary self-interest.8 The sale of tissue claim suggests, however, that this difference on its own is irrelevant to the question of whether kidney sales ought to be legal, because the sale of tissue claim establishes that it ought to be legal to transfer a body part in order to make money. If donating a kidney ought to be legal (the good donor claim), and if the only difference between donating a kidney and selling one is the motive of monetary self-interest, and if the motive of monetary self-interest does not on its own warrant legal prohibition (the sale of tissue claim), then the morally relevant part of the analogy between donating and selling should still obtain and we still have grounds for holding that selling kidneys ought to be legal. There is also an obvious difference between selling a kidney and selling plasma: the invasiveness of the procedure. Phlebotomy for sale of plasma is simple and quick, with no lasting side effects, while parting with a kidney involves major surgery and living with only one kidney thereafter. It is very unlikely, however, that there will be any long-term ill effects from the surgery itself or from life with a single kidney.9 Indeed, the laws allowing live kidney donations presuppose that the risk to donors is very small and thus morally acceptable. The good donor claim implies, then, that the invasiveness of the procedure of transferring a kidney is not in and of itself a sufficient reason to legally prohibit live kidney transfer. If the only difference between selling plasma and selling a kidney is the risk of the procedure, and if that risk does not constitute grounds for prohibiting live kidney transfers, then the morally relevant part of the analogy between selling plasma and selling a kidney still should obtain and we still have grounds for holding that kidney sales ought to be legal. The point of the preceding two paragraphs is this: if we oppose the sale of kidneys because we think it is too dangerous, then we also should oppose live kidney donations. But we do not oppose live kidney donations because we realize that the risks are acceptably low and worth takKENNEDY INSTITUTE OF ETHICS JOURNAL • MARCH 2002 [ 22 ] ing in order to save lives. So, it is inconsistent to oppose selling kidneys because of the possible dangers while at the same time endorsing the good donor claim. Similarly, if we oppose kidney sales because we think people should not sell body parts, then we should also oppose commercial blood banks. But most people do not oppose blood banks because they realize that the banks play an important role in saving lives. So, it is inconsistent to oppose selling kidneys because it involves payment while at the same time endorsing the sale of tissue claim.10 The considerable emotional resistance to permitting kidney sales may be based on a combination of distaste for payment and worry about risk. But if neither of these concerns on its own constitutes defensible grounds for opposing payment, then it seems unlikely that the two of them together will do so. This initial argument does not imply that we should legalize the sale of hearts and livers. The initial argument holds only that, if it is medically safe for living people to donate an organ, then people should also be allowed to sell that organ. But it is not medically safe for a living person to donate his or her heart or liver. Our reliance on the good donor claim does, however, commit us to the idea that if it is morally correct to allow someone to donate an organ or part of an organ, then it is morally correct to allow someone to sell that organ or organ part. If, therefore, it is morally correct to allow people to donate liver lobes and parts of lungs, then, according to our initial argument, it ought to be legal for a person to sell a liver lobe or part of a lung as well. Our proposal does not address the purchase of kidneys, which is a separate question. Many of the arguments against legalizing the purchase of kidneys do not apply to the sale of kidneys. For example, one argument against permitting the buying of kidneys is that it will lead to fewer kidneys for transplantation overall. Another argument is that while allowing individuals to purchase kidneys might not reduce the overall number of kidneys available for transplantation, it will reduce the number of donated kidneys and harm the poor who will not be able to afford to buy a kidney. Both arguments rest on empirical claims that are often stated as fact, yet have no supporting evidence. Even if the empirical claims were accurate, moreover, their moral importance could be disputed. Perhaps there are powerful moral reasons to legalize the buying of organs even if doing so leads to fewer organs overall or reduces the chances of a poor person’s receiving a kidney transplant. Then again, perhaps a negative effect on the overall supply of kidneys or on the transplantation prospects GILL AND SADE • PAYING FOR KIDNEYS: THE CASE AGAINST PROHIBITION [ 23 ] for the poor will turn out to be a conclusive reason not to legalize the buying of kidneys. The important point is that our proposal will not be affected either way. As already noted in our preliminary points, our proposal can be reasonably expected both to increase the overall number of kidneys for transplantation and to increase the chances that a poor person who needs a kidney will receive one. Therefore, in arguing for the legalization of kidney sales, we put aside the separate question of whether buying kidneys ought to be legal as well. Many people continue to oppose kidney sales, however, and some do so directly in the face of the good donor claim and the sale of tissue claim. For them, there are two possible methods of attack. First, they can argue that there is a morally relevant intrinsic difference between kidney sales and both kidney donations and plasma sales, the considerations offered above notwithstanding. Second, they can argue that while there might be nothing intrinsically wrong with selling kidneys considered in isolation, the real world circumstances under which these sales would take place would inevitably lead to exploitation. In the next section, we will examine the view that selling kidneys is intrinsically wrong, and, in the subsequent section, the view that kidney sales lead to exploitation. THE INTRINSIC IMMORALITY OF SELLING ORGANS