Sometime in the early 1990s, I wrote a paper for a law school class titled If Not You, To Whom Does Your Body Belong. In the nature of most law school papers, it was adequate to the task at hand without being insightful or in any way useful.[1] But it raised a real issue that has continued to vex me: why do we have so many people on a waiting list for organ donation, when the free market is readily available to fill the supply. (Technical answer – because the 1984 National Organ Transplant Act outlaws the sale of human organs.)[2]
The New York Times stated in 1998, that in 1993 “roughly half of the 138,000 people who needed hearts, lungs, livers, kidneys and pancreases were listed for transplant, and fewer than one quarter of those received organs.” Half of the people in need of a transplant weren’t even on the transplant list in large part because patients without adequate insurance often are not even informed that a transplant is an option.
Forbes discussed the issue in a March 11, 1996 column, claiming that over 3,000 Americans died in 1995 while awaiting an organ. They stated “The basic problem is this: The government monopoly that runs the transplant market is terribly bad at creating supply to satisfy the demand.”
A proposal to allow prisoners on death row to avoid execution by donating organs was described as far-fetched and cockamamie.[3] Yet the imbalance between supply and demand was killing people. In 1997, 2,000 people died while waiting for a kidney transplant.[4] Both papers (from which these facts are taken) essentially blamed organs donors – saying (rightly) that we need more, but without addressing the elephant in the surgical ward, which is that everyone in the system benefits materially, except the indispensable donor. The surgeon gets paid and paid extremely well. The hospital gets paid and paid extremely well.[5] The organ recipient gets a new lease on life. The organ donor gets our appreciative thanks. It clearly isn’t enough.
According to the U.S. Department of Health & Human Services, 114,429 people are currently awaiting an organ transplant. Many of those potential transplants would save a life, all would improve a life. Thus far this year, 21,042 transplants have been performed based on donations from 10,120 donors.[6]
The reason I wrote the paper in the first place was because of a law in Florida that presumed consent to a donation of corneas whenever a person died in an automobile accident. “Presumed consent” is pretty sketchy ethically,[7] though it is a straightforward way to address the supply problem, at least for corneas in Florida.
Other, less confiscatory, solutions have been suggested. Pennsylvania proposed granting $300 stipends to donors to help pay for their (eventual) funeral expenses. Even that tepid plan met with editorial criticism, though in fairness, some of the criticism was because $300 was unlikely to induce anyone to donate.[8] A few years later,[9] the theoretical ante had been upped to $2,000 but was derided as “ethically objectionable and of dubious effectiveness” by Mark Fox, the director of transplant ethics and policy at the University of Rochester.
Another potential solution is termed “paired kidney donation.”[10] This scheme pairs a person who would like to donate to a relative but is incompatible with a compatible person who would like to donate to their own relative. It’s complicated, might run afoul of the National Transplant Act (because agreeing to a quid pro quo might be “valuable consideration”), and continues to rely on donations. In the meantime, according to the author, every year 8% of the patients on a transplant list either die or become too sick to remain on the list.
While we are prohibiting the free market from working its invisible-hand magic, people (mostly hospitals and insurance companies) are paying more for annual dialysis treatment than a kidney operation costs. According to Michele Goodwin, a law school professor, Medicaid paid $60,000 to $90,000 per annual dialysis treatment in 2006 compared to $70,000 or so for a kidney transplant.[11] Her plan was to unleash federalism and let states determine whether to allow their residents to buy and sell organs.
One country already allows its citizens to buy and sell kidneys. Not surprisingly, if you believe that supply and demand equalize when they are allowed to, that country has no waiting list and a price per kidney of approximately $5,000. What is surprising is that the country with no waiting list is not a member of the enlightened West; it is Iran. https://www.statnews.com/2016/08/25/organ-donation-kidneys-iran/ There is legitimate criticism that allowing the sale of organs might impose undue burdens on the poor – who can be imprisoned in Iran for failure to pay debt. But at a minimum, a legal market, with whatever flaws are endemic to it, is better than allowing a black market to expand.
Our country has advocates of a free market solution. J.H. Huebert, wrote in 2007 that “Congress could end the shortage [of organs for transplant] right now by repealing the ban on organ sales. Until it does, it will have the blood on its hands of those 6,000 people who die each year.[12] See also https://www.forbes.com/sites/realspin/2012/12/12/to-save-lives-allow-individuals-to-sell-their-organs/#13b190ae5627
Count me among the Americans who believe we should embrace a free market for the sale of kidneys – as a test case. Safeguards could be built in to the system, which already has substantial constrictions based on health and safety. Ethical considerations have delayed an obvious solution for too long and to me are of little moment compared to substantially enhancing the lives of the 93,000 Americans currently awaiting a kidney transplant,[13] while the other 300,000,000 of us walk around with a kidney to spare.
[1] The egomaniacal William Evelyn “Bill” McNeal, portrayed hilariously by Phil Harman on NewsRadio, once received a review that described him as “adequate.” For the rest of the episode, he raved about his adequatulance and his adequasivity. https://www.youtube.com/watch?v=WOxpuKXhlss
[2] https://en.wikipedia.org/wiki/National_Organ_Transplant_Act_of_1984
[3] Toledo Blade editorial on March 23, 1998, quoting an unnamed “assistant professor of surgery at Washington University School of Medicine.”
[4] Mark D. Somerson, Columbus Dispatch, October 18, 1998.
[5] A liver transplant cost $250,000 at the time according to a New York Times May 5, 1998 column.
[6] https://optn.transplant.hrsa.gov/
[7]https://www.hopkinsmedicine.org/news/media/releases/presumed_consent_not_answer_to_solving_organ_shortage_in_us_researchers_say.
[8] Dayton Daily News, May 24, 1999.
[9] Nicholas Kristof column in New York Times that I didn’t date. It was in a folder between articles dated May 24, 1999 and March 27, 2006.
[10] Forbes, March 27, 2006 column by Robert A. Montgomery, the Chief of Transplantation at Johns Hopkins University.
[11] Forbes, October 15, 2007. The transplant patient would also need roughly $5,000 of annual maintenance medicine.
[12] Columbus Dispatch, June 13, 2007.