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Re: Consent in 'an ethical market in human organs'

Dear Editor

Erin and Harris [1] suggest that we need a regulated market in live donor organs to make good the shortfall in organs available for transplantation. However, the example of the third world shows that to sell a kidney is virtually always an act of desperation when other options for raising money are exhausted, for example Goyal et al.[2] reported that 96% of participants in their survey of kidney sellers in India did it to repay debt. In these circumstances there would have to be grave concerns that any potential sellers could not be freely consenting, as they would effectively be being coerced by their social circumstances. In addition, recent scandals in the financial services industry should remind us that abuses can occur even in regulated, first world, markets.

References

(1) Erin CA, Harris J. An ethical market in organs J Med Ethics 2003;29:137-8.

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Re: Why not?

Dear Editor

Everyone makes money or dare I say a profit from "traditional" organ transplatation through out the world, except the donor. What happened to supply and demand and free markets? Ultimately it's my body and if I can help someone prolong their life and not have a high risk to mine and make something to cover my time and expense..why not?

I'm a healthy mid-40 professional, that does not smoke. Hey sign me up!

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Re: Human organs and markets

Dear Editor

Erin and Harris argue, as have others before them, for a regulated market in human organs. The rationale is the imbalance between a limited supply and growing demand for organs. Given that fact, and no others, it makes "sense" to create a market that might increase supply.

The assumption of those who have argued this is that there are neither risks nor dangers to donation and that the act of donation is itself beneficent, and something to be encouraged. But living donors face significant health risks both in surgery and post-operatively. These include decreased function of the remaining organ, well-documented in the case of living donors of a kidney, and those attendant generally on major surgery.

As importantly, the work done by others on organ "donation" internationally makes clear that there is a social inequality in these "markets," one in which the poorest typically are convinced to donate and sell, where money is returned, to the richestest. The work of Nancy Sheper -Hughes is critical here, as is Locke's work generally.

More critically, and more generally, in many countries--the USA and South AFrica being two I have studied--organ donation occurs within a context of social and institutional inequality that assures a "free" market will be biased against the poor and for the wealthy. In effect, it may create a donor class, non-white and empoverished, for those who are wealthier.

Indeed, as I have elsewhere argued, social inequalities in healthcare, and in the graft organ distribution system, may exacerbate existing organ shortages. Thus a market, however regulated, will likely be inequitable and cause voluntary donations to diminish.

Before arguing for a market one therefore needs to consider the structural inequalities in health care generally, and the graft organ distribution specifically. Details of this argument, and data in support for it, can be found in my text on the subject: Scarce Goods: Justice, Fairness, and Organ Transplantation (Westport and London: Praeger Books, 2001). A list of papers detailing the research is listed on my website http://kochworks.com.

Tom Koch
adj. professor geography (medical), Univ. British Columbia, Vancouver, Canada.

adj. professor gerontology, Simon Fraser University, Vancouver, Canada.

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Re: Organs, justice and human dignity

Dear Editor

I read with great interest the June 2003 issue of the Journal of Medical Ethics on human organs. The taboo on buying them is broken. Even if we use all the available cadavers, there will always be many more sick people in need. Organs save lives and the shortage is chronic, so why not pay for them if that’s what it takes?

Janet Radcliffe-Richards suggests a free-for-all. That is, the freedom of the rich to buy and the freedom of the poor to sell. If both parties benefit from the transaction, she argues, who are we to interfere? John Harris has a tamer proposal – a regulatory scheme whereby a public body is the only legitimate broker and legally sanctioned transactions are limited to national jurisdiction.[1] Leonardo De Castro expands somewhat on global aspects of organ and human trafficking, providing examples from the Phillipines, and suggests safety nets against exploitation through ethics committee approval of monetary compensation depending on the circumstances. But he is not ultimately convinced by the moral arguments about the evils of money and the commodification of human body parts, and seems to conclude with a defeatist message that if we can’t beat the market we might as well join it.

This is a topical subject in Israel. Last week the government approved a legislative bill that is similar to Harris’ proposal. Buying organs will be prohibited except if in accordance with the proposed law: all transactions are to be conducted through a statutory committee; donors will receive compensation in the form of a quasi social security stipend for recuperation and other expenses; and commercial brokerage will be a criminal offence. The next day, on a television talk show there was a woman who wanted to sell an organ to cover a debt of $60,000 she had incurred (as a single parent of five chldren) since she was fired from her job two and a half years ago. She complained that the market price was only $15,000 (and $18,000 if you had a US visa). A representative of the Ministry of Health told her that the government’s proposal was not a solution for persons in need.

The same woman also said she did not understand how family and friends could not give a kidney to someone they cared for. Sitting beside her was a 33 year old woman, also a single parent (of two), who needs a kidney. For the time being, she hooks up to dialysis at home every day before she goes to bed. If her 4 year old wakes her in the middle of the night, she can’t get up. She said that if she had the money – between $60,000 and $180,000 depending on where - she would buy a kidney.

If the current proposal became law, it would not be a criminal offence for these two women to enter a private agreement, if no payment to intermediaries were involved, because both the donor and the donee are protected from prosecution (as under the law of abortion it is the person who performs the illegal operation that is the criminal, and not the pregnant woman). To return to Harris’ model, this means that any such regulatory scheme would legitimise a private market in organs. It would not be expensive to jump the public waiting line. Indeed, the reward of a one-time social security benefit is so meager, compared to the market price for a kidney, that a statutory committee might find itself out of work. The only problem for our two now-hypothetical women-in-need, would be where to find a doctor who would perform the transplantation. If it is illegal in their own country, they could go elsewhere – South Africa, for instance, where there are private for-profit medical institutions which provide quality services – for the rich, of course. The idea of any national containment is naive given the moving forces of globalisation.

Legitimising payment for kidneys has implications for infertility treatment and genetic research, both of which represent significant financial interests in the global health market. If paying for a kidney is okay then perhaps there is no objection to paying for gametes. There is a shortage of eggs for women who need a donation for IVF, and many more are needed for the cloning research that lo and behold promises the world to solve the shortage of human organs and even overcome problems of immunological rejection (again, of course, for the rich).

However, a trade in eggs is one step away from trans-national trafficking in women, as go-betweens import women into the countries that have appropriate medical facilities. People say, why not pay for eggs when we pay for sperm? Why not, indeed, allow poor women such an economic opportunity? But for that matter why should sperm donation not be altruistic? There’s really nothing to it, less even than giving blood. Why not outlaw buying and selling sperm and make it a criminal offence?

Donating eggs is nothing like donating sperm. It involves intensive hormonal treatment and and an invasive egg retrieval procedure, the risks of which are spelled out in any decent IVF informed consent form. As for the medical aspects of kidney donations, the doctors assure us that giving one of our two kidneys does not incur significant medical risks, that organs from living donors are more efficacious for recipients than organs from cadavers (better life expectancy rates), and that the earlier the transplantation the better. However, even if there is no evidence that donating a kidney increases the risk of renal failure (for how long have we actually been collecting and following data?), it is still an invasive procedure. What kind of medical care do donors receive? Who nurses them afterwards? Who makes sure they get proper care for future complications? How do we know that the donor wasn’t robbed of his cash when he walked out of the hospital? How do we know that this particular kidney was not snatched from an unknowing anaesthesized individual undergoing surgery for some other reason?

Nonetheless, the notion persists that nothing can be done to combat market forces, and that there is no moral ground to prevent people from saving their own lives. The ideological problem is that we are committed to the idea of liberty and autonomy, so how can we justify intervening in private agreements between free individuals? What I would like to suggest is that principles of social justice and human dignity provide such justification.

Justice is at stake, because the moral question that the shortage of organs raises is one of fair distribution. Globally, it is clear that the need for organs for all persons suffering renal failure throughout the world will not be satisfied. The rich will benefit from a market in human organs and not the poor. There are many sick persons facing risk of death in the world. Most live in countries that do not have the professional capacity and technological infrastructure for either dialysis or transplantation. Only some are fortunate enough to have access to medical services that can save their lives, and the ability (or insurance) to pay for their costs. In countries that have public medical facilities with transplantation capability, the poor will wait on dialysis for organs from cadavers while rich people will buy transplantation services with living donors.

The argument for human dignity is a moral intuition, which Margaret Radin articulated several years ago. To put it simply, there are certain things that money can’t buy and that are not for sale. Once upon a time medicine was a calling, but now it is becoming a business. Despite the vagueness of the idea of human dignity, it is an intuitive value that resists the notion of a contract for a pound of flesh. Freedom of contract is not an absolute. Many legal systems refuse to recognize the validity of contracts that are illegal, immoral or contrary to public policy.

In 1991 the World Health Organization published guiding principles on organ transplantation. Guiding Principle 5 is crystal clear: “The human body and its parts cannot be the subject of commercial transactions. Accordingly, giving or receiving payment (including any other compensation or reward) for organs should be prohibited.” Nothing has changed since then except for the flourishing of an international black market of profit -seeking private practitioners and institutions pandering to “consumer demand”.

Considerations of distributive justice and of human dignity are sufficient justification to restrict the liberty of individuals. It is true that all we need is an organ, but there are also moral limits on the means that we may employ for the end of saving our own lives. The value of saving life does not give a sick person a right to an organ from a living other at all costs. If saving lives is such an important value, we should be encouraging altruistic donations and an ethic of solidarity, care and compassion.

Reference

(1) Charles A Erin and John Harris An ethical market in human organs. J Med Ethics 2003;29:137-138.