Let's Legalize Selling Kidneys - Josh Morganstein
In Chapter 9, Satz argues that ethical issues arise in kidney markets. Currently, the US and every other developed country prohibit receiving monetary (or some sort of considerable non-monetary) gain for giving their kidneys. The WHO interprets Article 3 of the Universal Declaration of Human Rights, which guarantees everyone “security of person,” as preventing the sale of organs. However, every day, more than a dozen Americans die because they cannot get a transplant in time. Tens of thousands more are forced to go on dialysis, an expensive and at times degrading experience. The logic, then, supporting the provision of financial compensation for kidney giving (in other words, legalizing the sale of kidneys) appears to me as apodictic: financial compensation for kidneys would increase supply, and more supply would save lives.
Nevertheless, Satz advances some concerns with legalizing the sale of kidneys, and while I certainly cannot address all of them in one blog post, I will address the three main arguments that have stood against legalizing the sale of kidneys and have been successful in convincing governments not to legalize kidney selling. All three, in my opinion, suffer from a proclivity to rely upon fallacious reasoning.
The first argument is one of human dignity. The sale of human body parts, opponents to selling kidneys argue, violates the sanctity of the human body. Sally Satel, a senior fellow at AEI has a particularly compelling response. She writes: “Dignity is affirmed when we respect the capacity of individuals to make decisions in their own best interest, protect their health and express gratitude for their sacrifice. Financial gain, per se, is not inconsistent with this. The true indignity is to stand by smugly while thousands of people die each year for want of an organ. As for the donor, why shouldn’t he be able to accept a reward for saving the life of another human being? After all, he is the one who takes a risk and relinquishes the precious good. The doctors, nurses, and hospital all receive compensation when a transplant occurs – yet no one insists they volunteer their services. And rightly so, because the more transplants performed, the more suffering averted and the more lives saved.” In my estimation, there is no dignity in letting thousands die, especially when the alternative is purely consent-based, requires no coercive action whatsoever, and would not result in any deaths or violations of human rights, save for the (in my opinion) egregiously poor interpretation of Article 3 of the Universal Declaration of Human Rights.
The second argument entails a bundle of concerns—weak agency, vulnerability, and equity. Whereas the first argument is normally advanced by religious conservatives, the second is usually advanced by those on the left. They worry that in creating organ markets, we are setting up a system in which effectively the poor supply organs to the rich. The desperate poor are then exploited, and feel forced into a draining and risky surgery to make money. Individuals with weak agency, who don’t understand the risks of the process, end up getting hurt. As Satz notes, however, these concerns can be eliminated through regulation. Furthermore, we allow for weak agency all the time in society: for example, people can engage in risky behavior such as smoking. Satz points out that “through subsidy and insurance the government could seek to make the demand for kidneys independent of the wealth of the buyer” (199). When I was talking with Sally last summer, she proposed an interesting idea: rather than a cash payment for organs, the government would offer a tax credit to the tune of $50,000, spread out over something like 10 years for donors. The numbers are not particularly important and can be worked out by the policy wonks—the idea is that we put mechanisms in place surrounding the payment that make it less likely that the poor are just exploited for their organs, but not too many restrictions that we don’t see the desired increase in supply.
The third argument is that creating kidney markets might actually depress the supply of organs. Satz draws from Titmuss to contend that legalizing organ selling could reduce the amount of altruistic giving, but frankly, this argument doesn’t seem too compelling to me. Consider the study about parents and daycare that Satz cites (193). When the daycare imposed a fine on parents who showed up late to pick up their kids, rates of tardiness increased two-fold. The implied causal variable is a shift in attitudes: parents no longer felt that being late was a matter of a moral obligation to pick up their kids, but rather a commodity to be purchased. This example, however, cannot be applied to the kidney market. Consider the altruistic kidney donor. The argument would have us believes that the altruistic donor, once payment is introduced, would treat kidney giving as a commodity rather than a selfless act, and therefore would be compelled to “spend” $50,000 to not donate their kidney. Yet if the donor was obsessed with altruistic donation, they could always donate the equivalent money to charity, or refuse the tax credit/donation.
Overall, I disagree with Satz insofar as I believe that most of the issues she raises, even the ones I didn’t cover, can be mostly addressed by strict regulation of the market (specifically, the creation of monopsony). Also, it should be noted that I am only arguing it should be legalized in the US and in countries with similar regulatory capacity. Poorer countries might not be able to achieve the same success and could fall prone to the ethical issues Satz raises. However, if legalized in the US, I believe that the country would be better off. The government would likely save money by not having to spend tens of billions on dialysis alone every year, tens of thousands of lives would be saved, and the organ black market (in which real, harmful exploitation takes place) would be dealt a huge blow.
Hi Josh, I appreciate this argument and want to expand on it somewhat by drilling down on the notion of vulnerability that Satz uses to argue against certain kinds of markets. I agree with her other three parameters for assessing markets, but the idea that we should prevent vulnerable people from participating in certain kinds of markets simply because they are vulnerable, both in the case of kidneys and in other cases, makes very little sense to me. The Titanic example was particularly striking in this regard. Satz's discussion of it makes it sound like the tragedy of the Titanic was that there was unequal access to boats, and not that there weren't enough boats for everyone in the first place. Only the latter is a sufficient cause for the real reason we know and care about the Titanic at all, which is that *many people died.* The Schelling quote claiming to solve the problem by just having the vulnerable poor, willing to sell their safety for a cheaper ticket, get on a different boat is utterly absurd. Refusing to allow someone to trade their safety at all, assuming they have full information about risks, seems counterintuitive as well, as your example of smoking, Josh, illustrates excellently.
ReplyDeleteOf course, this does not mean we should not help the vulnerable. What we should do, however, is ask *why* the vulnerable are making market decisions that make us uncomfortable. The answer is because they are poor. Again, assuming a rational person with full information (and I totally agree that this is not often the case, which is why I like Satz's other criteria), the vulnerable person would be worse off *on their own terms* if prevented from trading whatever it is we don't want them to, in this case safety. How do we fix that? Make them less poor. How best to do this is an empirical question.
I would take your argument about kidneys a step farther Josh, and say that even absent the wonky designs for a kidney market that you propose, poor kidney suppliers would not be in any sense "exploited" by the kidney market (I actually think there are some pretty tricky information issues here that make kidney markets questionable, but that's besides the point). These vulnerable kidney suppliers would be exploited by their poverty. The same can be said of the toxic waste example, or of lithium mining, which we often discuss as an example of exploitative global capitalism. The idea that we should be against a market because it "holds a mirror," in Satz's words, to something that makes us uncomfortable, like global wealth inequality, seems strange. Instead, we should address the thing that makes us uncomfortable in the first place, and acknowledge that allowing rational people with full information to engage in free markets will almost always make them better off.
Hi Josh,
ReplyDeleteI want to explore a possible counterpoint to your assertion of consent involved in kidney sales and more closely argue against consent issues arising from such legalized markets. While you argue that, “In my estimation, there is no dignity in letting thousands die, especially when the alternative is purely consent-based, requires no coercive action whatsoever,” I imagine many people would have concerns over forced consent involved in such transactions.
Consider what Satz says about kidney sale as a desperate exchange: “A kidney sale is objectionable because it is a paradigmatic desperate exchange, an exchange no one would ever make unless faced with no reasonable alternative. A kidney is, in the words of one organ market critic, the ‘organ of last resort”’ (Satz 195). While Satz presents the concern based on the potential poverty of organ donors, I think a sum of money great enough can make a difference and reduce consent in cases without impoverished donors. Satz writes that “it might also be argued that organ donation should be legal only in contexts in which people are not likely to be desperately poor” (Satz 195). I am hesitant to accept this idea regarding vulnerability. Even people who are not desperately poor (a highly subjective measure of desperation) may, in bouts of desperate need, feel no other choice but to consent to a kidney donation for money.
It is easy to imagine cases where consent is muddled in light of massive sums of money for selling a kidney. We can consider the parent of a child with leukemia. Even with a well-paying job, it is difficult to fully fund the leukemia treatment without a new source of income. So, after their child’s diagnosis, the parent decides that they have no other choice but to donate a kidney for money. While they may consent to the procedure, there exists doubt over whether the consent was valid and not forced (even forced because of the lack of attractive alternatives). Consent should not be considered valid if they have no other choice (though Josh’s proposal of a certain sum of money via a tax credit over a certain number of years could help avoid this concern).
I would also like to consider the general double standard for donating a part of one’s body to object to concerns about consent. Rather, I want to call attention to the concern paid to kidney donations and consent in those exchanges, but not with sperm, plasma, or egg donations. What is so different about kidneys? There is a growing depiction of college-aged girls selling their eggs for lots of money, sometimes about the same price as one kidney (at the 50,000 dollar mark). The same occurs with palm sales. College kids need money and do not care how they do it. But, there are fewer concerns over the consent of these changes than with kidneys. Kidneys are irreplaceable, which seems like a justification for their different treatment, but so are eggs in women (albeit not with only one donation). So, unless there is a valid reason for kidneys to be different than eggs in terms of consent for donation, I do not fully understand critiques of consent like the one Satz hinted towards and I considered.