- Lloyd Cohen, Ph.D., J.D. -- "The best way to increase the supply of transplant organs is by establishing a futures market in cadaveric organs..."
- Thomas G. Peters, M.D. --"...other motives such as financial incentives (survivor benefits such as in Social Security), bereavement counseling, donor family recognition, and support for burial expenses must be considered."
- James F. Blumstein, Ph.D. -- "The unwillingness of transplant teams to accept organ donor cards, the low number of donor organ card signees, and the ban on financial incentives that would shift the locus of decisionmaking away from the patient's bedside to the luncheon table -- when a person is well and can consider his or her own future coolly and rationally -- all lead to the unhappy reliance on requests to families when they are in the greatest emotional pain."
- Henry Hansmann, Ph.D. -- "...this prohibition may be overly broad. It appears possible to design suitably regulated market-type approaches to the acquisition and allocation of cadaveric organs (and perhaps of organs from living donors as well) that will be neither unduly offensive to ethical sensibilities nor easily abused..."
- Merrill Matthews, Health Policy Director of the National Center for Policy Analysis -- "Economic theory clearly recognizes that when demand is high for a good or service, its price will increase until the supply and demand reach an equilibrium. If the price is prohibited from rising, a shortage will occur. To restore the balance so supply meets demand, price controls must be removed."
- William Russell Robinson, Pennsylvania State Representative, District 19 -- "I'm especially concerned about doing something for the families of the deceased who donate organs. The recipient gets a new kidney, liver, lung or heart, the doctor, hospital and staff get paid for the operation, but the family of the donor is left with only memories and hospital expenses."
- David L. Kaserman, Ph.D., and colleagues -- "We demonstrate the economic (profit) incentive of hospitals and physicians to maintain a procurement system that relies upon altruistic (zero price) supply despite the shortage that such a system creates."..."It is clear to us that, due to the many lives that could be saved, a market for organs is morally and ethically superior to the current altruistic procurement system."
- Gregory E. Pence, Ph.D. -- "...the question is not whether any risk of harm exists from commercialization--it does--but whether such risk justifies the sacrifice of thousands of dying patients. It doesn't."
 |
Lloyd R. Cohen, Ph.D., J.D. Professor, George Mason University School of Law |
"The best way to increase the supply of transplant organs is by establishing a futures market in cadaveric organs in which a typical healthy person would be offered a contract that would provide that, at the time of his death, if organs were successfully transplanted from his body, a substantial sum (perhaps $5,000 per major organ) would be paid to his designee (which of course could be a charity). The hospital in whose care the decedent died would have the legal duty, enforced by tort liability to the designee for his financial loss, to take appropriate care of the decedent's body and to notify the purchasing agency of his condition so that it could harvest his organs. Do not blanche at the thought of a market in so precious and sacred a thing as a cadaver. People are dying while the organs that could restore them to life, and that a market would provide, are being fed to worms. Were more to suffer and die for want of organs that a market would provide, the high minded pieties that support the prohibition would be revealed for the vacuous moral posturings that they are."
[This quote is taken from LifeTIMES Magazine (a publication of Stadtlanders Lifetime Pharmacy Program), p.20, Vol. III (2), Spring 1993. For a full exposition of Dr. Cohen's proposal, see "Increasing the Supply of Transplant Organs: The Virtues of a Futures Market" George Washington Law Review, 58:1 (1989)]
 |
Thomas G. Peters, M.D., former Director,
Jacksonville Transplant Center at Methodist Medical Center, and former UNOS Board Member |
"Organ donation can be increased in two ways. First, with living donation, such as occurs with kidney transplantation, financial disincentives to donating a kidney must be removed. This should be done by government underwriting of workman's compensation, travel expenses for the donor, and limited life insurance surrounding the circumstances of giving a kidney.
The second way organ donation can increase is by expansion of cadaver donation. In order to expand the number of live-saving organs from cadaveric donors, motives to give consent for organ recovery must change. Currently, the only motive to a family of a potential donor is to help unknown recipients. Since this has not been very effective at obtaining the organs which are known to be available, other motives such as financial incentives (survivor benefits such as in Social Security), bereavement counseling, donor family recognition, and support for burial expenses must be considered.
Any of these incentives could be studied in the field and shown to be or not to be workable. It is now accepted that the life-saving resource going to organ recipients should be recognized as a service to fellow Americans -- just as military service is recognized by the Veterans Administration or a contribution to the Social Security program is recognized by the benefits paid in time of need."
[The above quote was taken also from LifeTIMES magazine, p.21 (see above).]
 |
James F.
Blumstein, Centennial Professor of Law, Vanderbilt University Law School; Director, Health Policy Center, Vanderbilt Institute for Public Policy Studies |
[excerpts from "Government's Role in Organ Transplantation Policy",
in Organ Transplantation Policy: Issues and Prospects, Duke University
Press, 1989]
[...]
The National Organ Transplantation Act of 1984. ...
Interestingly, the one explicitly mandatory regulatory provision of the
1984 act was its ban on the purchase or sale of human organs, as that would affect
interstate commerce. Under the statute, the term "human organ" was defined
extremely broadly to cover "the human kidney, liver, heart, lung, pancreas, bone
marrow, cornea, eye, bone, and skin, and any other human organ specified by the Secretary
of Health and Human Services by regulation." Remarkably, the legislative
history on this provision is extraordinarily sparse. The Senate report simply
stated, "It is the sense of the committee that individuals or organizations should
not profit by the sale of human organs for transplantation," but distinguished the
sale of blood and blood derivatives, since "blood and blood derivatives...can be
replenished and...donation does not compromise the health of the donor....The Committee
believes that human body parts should not be viewed as commodities." The
conference report is no more illuminating, merely indicating that the statute
"intends to make the buying and selling of human organs unlawful."
...By prohibiting the sale, receipt, or transfer of a human organ "for valuable consideration," the government restricted the development of any type of direct financial inducement for enhancing the supply of organs, despite the congressional finding that the supply of transplantable organs fell far short of the medical need. ... The report's evident concern about compromising the health of the organ donor suggests its relevance to sales of organs by live donors; it would not seem to bear on the question of purchase or sale of cadaveric organs, even if consideration were paid during a person's lifetime.
... Certain potential pathways -- such as experimenting with markets for organs and with various forms of financial inducements for organ "donation" -- must now remain unexplored.
... Although the Uniform Anatomical Gift Act (UAGA) allows potential donors to control disposition of their organs by signing donor cards, apparently too few people sign those cards. The ban on financial inducements means that incentives are reduced for salespersons or others to seek out potential signees actively. Further, in the absence of a quid pro quo for the signing of a donor card and despite the legal authority derived from the UAGA to honor signed donor cards, the custom and practice in the organ transplant community is not to rely on a signed donor card but to seek independent approval from the family of a potential donor. That custom would surely change were the signing of the "donor" card viewed as contractual in character -- paid for, thereby conferring rights on the contracting party. The entire nature and perception of this transaction would necessarily change, as would the status of the earlier decision of a potential "donor" to commit to the use of his cadaveric organs for transplantation. If nothing else, such a contractual arrangement would create at least one (and possibly several) interested parties that could be counted on to seek enforcement of their contractual rights aggressively.
One clear cost of the absolutist stance embraced in the 1984 legislation -- i.e., the flat-out ban on the purchase or sale of organs for transplantation -- is the necessary emphasis on the request to families of potential organ donors at the time of a loved one's fatal illness. The unwillingness of transplant teams to accept organ donor cards, the low number of donor organ card signees, and the ban on financial incentives that would shift the locus of decisionmaking away from the patient's bedside to the luncheon table -- when a person is well and can consider his or her own future coolly and rationally -- all lead to the unhappy reliance on requests to families when they are in the greatest emotional pain. This is a high price indeed for a somewhat abstract ideological point -- the noncommoditization of organs and the zealous commitment to values of communitarian uplift through altruism.
[...]
The federal organ transplantation policy superstructure -- as envisioned by the task force report -- reflects intense hostility to pluralism, decentralized decisionmaking, profit-making, commercialization, competition, private choice, and even private property (as reflected in one's control of the disposition of one's own organs and one's ability to buy or sell organs). It may well be that the organ transplantation enterprise has peculiar characteristics that warrant some degree of specialized policy prescription. But the field currently suffers from ideological "hardening of the arteries." In other facets of health policy, the emerging consensus has been to require advocates for deviations from competitive norms and decentralized pluralism to bear a burden of justification -- and to narrowly tailor proposed deviations to cure specific, delimited market failures (Blumstein and Sloan 1978). The organ transplantation enterprise has indulged in an excess of romanticism, mandating altruism and communitarianism possibly at the expense of saving lives. This ideology has resulted in nonadherence to the private property rights approach toward organ donation of the UAGA, legally adopted in all fifty states. And ideology has resulted in romantic glorification of the symbolic act of next of kin donation of organs from the family members' dying relative, at the cost of a more rational (and compassionate) shifting of the timing of decisionmaking to an earlier stage, where potential "donors" (and with the lure of financial inducements) could confront their own mortality, self-interest, and altruistic desire for helping others in a more relaxed setting....
 |
Henry Hansmann,
Sam Harris Professor of Law, Yale Law School [excerpt from "The Economics and Ethics of Markets for Human Organs", in Organ Transplantation Policy: Issues and Prospects, Duke University Press, 1989] |
Abstract In 1984, federal legislation outlawing payment for human organs for transplantation was adopted after only cursory discussion of the underlying policy issues. More considered analysis suggests that this prohibition may be overly broad. It appears possible to design suitably regulated market-type approaches to the acquisition and allocation of cadaveric organs (and perhaps of organs from living donors as well) that will be neither unduly offensive to ethical sensibilities nor easily abused and that may yield significant improvements over the existing system of organ procurement, which presents important ethical and practical problems of its own. Moreover, whatever ultimate judgment we reach concerning the merits of markets for transplantable organs, analysis of the sources of the initial moral resistance to the commercialization that lies behind measures such as the 1984 legislation offers insights into the respective roles of market and nonmarket institutions in general.
Too many organs? A
final, perverse problem that could arise from an effort to employ market incentives to
procure organs -- whether from living donors or from cadavers -- is that such an approach
might be so much more effective than the existing voluntary donation system that it would
put extreme pressure on current methods for rationing transplantable organs.
Transplants are extremely expensive: a heart transplant costs between $60,000 and $110,000
and a liver transplant costs between $70,000 and $240,000 (U.S. DHHS 1986:99). Most
of these costs are covered by public funds. Nevertheless, at present there are no
policies to limit the number of transplants that are performed in the United States.
Rather, an effort is made to transplant all organs that are donated. Thus, the rate
of donations is the only limit on the number of transplants performed. Because potential
recipients considerably outnumber donors, current policy seeks to ration the existing
supply to those individuals who will benefit the most from a transplant -- such as those
who are relatively young, otherwise healthy, and potentially productive.
Consequently it is arguable that, despite their high cost, most or all of the organ
transplants that are performed are justified in the sense that social benefits exceed
social costs (although there seem to have been no careful efforts to study the matter).
But if the supply of organs were to increase substantially,
society might be faced with a difficult choice. On the one hand, the policy
of transplanting all available organs could be maintained. But this might require
devoting an extremely large amount of society's resources to transplants. And with a
larger supply of organs, an increasing number of recipients would come from among those
who would have only a small chance of gaining from the transplant an appreciable number of
years of productive life. On the other hand, the government could decide that there
are some individuals for whom it will not cover the expense of a transplant even if an
organ is available for which there is no other use. Either course might be
painful. So long as the number of organs available for transplantation is severely
limited, these alternatives need not be confronted. Thus, in a sense it is
convenient to have a severe limit on the availability of organs. Perhaps part of the
reason that our society has not more aggressively sought ways to increase the supply of
organs -- including, perhaps, market incentive schemes such as the kind suggested above --
is that we are not eager to confront the extremely difficult and expensive problems of
allocation that would result if we were successful. [Editor's note: Al Gore, when
he was a congressman holding hearings on the subject in 1984, stated that it is cheaper
for society to do the transplants, because the long-term care of patients on waiting lists
is actually more costly. I don't know whether he figured in the marginal cases that
Dr. Hansmann mentioned, however. In other words, Mr. Gore's figures may not have
included patients in very poor health, whose prognosis after transplant surgery might not
be positive.]
[...]
Dr. Hansmann concludes with the following: "Given the disabilities of the current system for obtaining and allocating organs and the improvements that are at least potentially available by permitting appropriate forms of compensation, the present blanket prohibition on any form of payment seems extreme. Consequently, there is a good case for reforming federal and state law to permit judicious experimentation with suitably regulated markets both to procure and to distribute human organs."
Click here for a fuller version of Professor Hansmann's essay. It includes some history regarding ownership of cadavers, and a thorough analysis of various market options, including reduced health insurance premiums, for those who agree to donate organs after death.
Merrill Matthews, Jr.,
as of 1995.
[excerpts from an article, "Have a Heart, But Pay For It," in Insight Magazine, January 9, 1995)
The real question is not whether a market for human organs or other bodily tissue should exist; it already does. According to the United Network for Organ Sharing, in the United States alone more than 50,000 people needed a human organ in 1993. More than 2,885 people died before receiving one. In 1992, about 4,500 people donated organs and, although the average was about 3.5 organs per donor, that left the supply far short of the demand.
...Organ transplantation has become a lucrative venture, and more and more health care providers are entering the market. Thousands of dollars go to the doctors and hospitals performing the transplants and thousands more to nonprofit organizations that procure the organs. According to a 1993 article in the Journal of the American Medical Association, for example, organ procurement charges in 1988 ranged from $16,000 to $21,000 (1991 dollars). But all the donor or donor's estate can receive is reimbursement for any actual expenses and lost time. No compensation or consideration of any kind legally can pass from the recipient to organ donors or their heirs -- regardless of how poor the donor might be.
That's because the National Organ Transplant Act of 1984 prohibits "any person to knowingly acquire, receive or otherwise transfer any human organ for valuable consideration for use in human transplantation." As a result, the only legal reason for a person or a person's surrogates to donate one or more organs is altruism.
Because altruism is the only permissible motive, the shortage of organs is so chronic that international organized crime has become involved. But while altruism is a noble motive, it seldom is compelling. Economic theory clearly recognizes that when demand is high for a good or service, its price will increase until the supply and demand reach an equilibrium. If the price is prohibited from rising, a shortage will occur. To restore the balance so supply meets demand, price controls must be removed.
But, it is argued, wouldn't commercializing or "commodifying" human organs undermine the idealism of the system, enticing potential donors to think only of the monetary value and not of the moral value of their act? Perhaps, if one thinks that good can be achieved only if no compensation changes hands. For example, it would be kind of educators to donate their time to our children and beneficent for grocers to give away their food. Yet no one accuses teachers or grocers of undermining morals by accepting payment for their work and goods.
The fact that people usually receive compensation for their goods and services does not preclude them from being generous on occasion. When a major tragedy occurs, vendors often donate products -- food, clothing, tools, etc. -- and people often volunteer their time to help the victims. But these acts of generosity are the exceptions, not the rule -- and it is precisely because they are exceptional that we find them praiseworthy.
In Christianity, for example, the imperative to benevolence is an individual imperative, and Christians thus are individually praiseworthy or blameworthy for their acts. The New Testament never implies that those who are compelled to do benevolent acts are worthy of praise. Thus, in accordance with Judeo-Christian teachings, the proper attitude with respect to organs and other bodily tissue is that while it would be considered a great humanitarian act for a person to donate an organ, there should be no ethical stigma attached to someone who desires compensation.
Those who want to donate their organs free of charge should keep that right, and they should continue to be honored for their generous acts. The decision would be up to the donor. People who could afford to do so would respond out of generosity by giving organs for those who could not afford to pay. But those who are unwilling or unable to donate their organs should have an alternative.
Instead of promoting altruism in society, however, opponents of the commercialization of organ donation are promoting something that has been widely rejected by ethicists and philosophers: paternalism.
Two of the most basic ethical principles among medical ethicists are "patient autonomy" and "informed consent." Patient autonomy is the notion that each patient has a fundamental right to control what happens to his or her own body. Most medical ethicists agree that a competent, dying patient who wants to be removed from life-sustaining treatment has that right, even if others -- including the patient's physician -- disagree. Informed consent says that each patient has a right to be fully informed about the costs, benefits, risks and expected results of a therapy before consenting to treatment.
...Many of those who otherwise support patient autonomy and informed consent oppose permitting people to receive compensation for their organs, even though they recognize the principle of "self-ownership" in the body. In an effort to prohibit what they believe to be unethical -- namely, the sale of body parts -- opponents are willing to use the force of law to restrict donors' freedom.
But would the act of exchanging an organ for some type of compensation be so hideous? Are there other ways besides money to compensate donors for their time, pain and loss, or to compensate heirs for a donor's organs? The answer is yes.
A market for organs could develop in a number of ways. Some would be more open and direct; others might be indirect and incorporate the concerns of some of those who oppose compensation. The important point is that there are solutions.
First, allow people to sell whatever they want, when they want. The most open and market-oriented approach would be to permit anyone who wanted to sell one or more organs to do so. Thus, if someone wanted a kidney and was willing to pay for one, a compatible donor could provide the recipient with a kidney at the market-set price. While opponents of organs sales are horrified by this thought, it could serve a beneficial and humanitarian end.
...The proposal mentioned above is, for some people, the most ethically troubling and thus is the least likely to be adopted. But a second alternative is to develop a futures market for organs. To discourage people from selling all or part of an organ they might need later, people could be compensated today for the possible future use of their organs. Financially, this approach might not be very rewarding, but it might slightly increase the supply of organs. If, for example, I want to put my heart up for sale, the possible purchaser -- an organ broker -- would have to look at the current value of a heart (let's say $5,000) and discount the time value of money and the possibility that my heart might not be physically sound at my death (though even the elderly whose organs are too old for transplant could participate, since physicians need organs for clinical trials and training). As a result, selling an "option" on my heart might not be very lucrative.
Third, permit people to receive after-death compensation by allowing organs to become part of the donor's estate. If I wanted to become an organ donor, I would simply contract with an organ-donor organization to pay my estate whatever the going rate was for each organ successfully harvested. Postponing compensation might reduce the number of potential donors, but many individuals might choose this option to pass along additional money to their children.
After-death compensation does not have to take the form of direct money transfer. It would be both reasonable and ethical for a hospital or organ-donor network to pay part or all of a donor's burial expenses. Such a provision might encourage lower-income people who believed they could not afford life insurance to sign up for the program as a way to provide for their funeral costs. Even those with modest life-insurance policies might choose this option to preserve the insurance benefits for their families' needs. (A similar provision has been supported by an article in the Journal of the American Medical Association.)
Fourth, set up a donor pool. Robert M. Sade, a surgeon and professor of medicine at the Medical University of South Carolina, and his colleagues have proposed to create an in-kind market for organs. Every adult would receive the option to join the Transplant Recipient and Donor Organization. Membership would require permission to have organs removed at death, and only those joining would be permitted to receive an organ transplant. Those who chose not to join would be electing for standard medical care, short of transplantation.
Would opening a market for organs along the lines of these proposals diminish the quality of available organs? In fact, the quality already is diminishing as the demand grows and the supply shrinks. Many observers have noted a decrease in scrutiny of where organs have originated and how their owners died. Furthermore, the current restrictions do not guarantee the purity of the organ pool. In 1991, some 56 body parts from a shooting victim were donated to people around the country. It later was discovered that the victim had AIDS, and a frantic search ensued to locate each of those recipients.
By contrast, in virtually every sector of the economy where price and competition play a role, quality increases and cost decreases. Organ banks, the existence of which depend upon their ability to provide top-quality organs, still would do their best to ensure that they were getting the best organs. Because of their concern for quality health care and the threat of malpractice suits, hospitals performing the transplants still would scrutinize incoming organs. Most importantly, the principle of informed consent would ensure that organ recipients had full access to information about the donor and the "used" organ.
Were a real market for organs permitted to develop, people who donated their organs would be financially rewarded, the supply of organs would increase, the waiting lines and needless deaths would decrease, if not disappear, and donors and recipients would have more choices. But it is clear that while opponents want more organs, they don't want a market for organs -- not so much because they oppose such a market as because they oppose markets in general. Paternalistically, they impose their values on everyone else.
And with regard to organ availability, while paternalism lives, people die.
 |
William Russell Robinson, Pennsylvania State Representative, District 19 |
"I have always been an advocate for a vigorous organ donation procurement and
awareness program. I'm especially concerned about doing something for the families
of the deceased who donate organs. The recipient gets a new kidney, liver, lung or
heart, the doctor, hospital and staff get paid for the operation, but the family of the
donor is left with only memories and hospital expenses. I believe there ought to be
a program to offset these expenses for the families of donors. Pennsylvania has established such a pilot program, which
will be funded though an income tax checkoff. Up to $3,000 will be available from
this fund to offset the hospital and funeral expenses of donors' families. The money
would be paid directly to the providers and not the families -- it is illegal in the
United States to compensate anyone for organ donation. An advisory panel in the
state Health Department currently is setting up the rules that will govern this
first-of-its-kind program."
[excerpted from his own newsletter to constituents]
David L. Kaserman is an economist at Auburn University who, along with several colleagues, has published a slew of scholarly articles on the subject over the past 10 years. He recently contacted me and sent me a stack of his articles, which I've attempted to excerpt here. Having now read much of them, I find myself in virtually100% agreement with these authors, and further enlightened as well.
Kaserman article #1(a comparison of the current system
with two market-based approaches)
Andrew H. Barnett, Roger D. Blair, and David L. Kaserman "Improving Organ
Donation: Compensation versus Markets" Inquiry 29(3):
372-378 (Fall, 1992). Abstract: "Proposals suggesting monetary
compensation of organ donors to increase donation rates for transplantation are founded on
the ethical premise that the principal criterion for organ procurement policy should be
patients' health and not the personal preferences and philosophies of policymakers.
In this paper, we argue that a market-based organ procurement system is superior to both
the current altruistic-based system and a system based on compensation without a
market. A market system would address both the problem of potential donors refusing
to donate and that of their never being asked, whereas the altruistic system addresses
neither problem and a system of compensation addresses only the former. Empirical
evidence suggests that the latter (not being asked) is the predominant cause of the
current shortage of organs. Our discussion shows that collection rates are likely to
be substantially higher under a market system."
[Editor's note: I wonder, though, whether families of patients would, once compensation becomes widely known and accepted, approach the hospital staff about organ procurement, rather than the other way around. Thus, it seems possible that a system of compensation might produce essentially the same donation rate as a genuine market procurement system. Nevertheless, Organ Procurement Organizations will have no incentive to extend themselves out to every hospital in the boondocks unless and until they have a strong market incentive to do so. People working for OPOs certainly have hearts, but they must make a living, too. Perhaps these authors are right, and there's no substitute for a genuine free market.]
Selected quotes
"Because the issue of organ markets is so emotionally charged
and often misunderstood, let us be clear what market advocates propose, and, equally
important, what they do not propose. They do not advocate buying organs
from living donors. In fact, an active market for cadaveric organs could eliminate
the need for living donors altogether. Market advocates do not propose auctions in
which desperate recipients bid against each other for life-sustaining organs.
Indeed, given an equilibrium price that clears the market, a shortage of organs will not
exist, and such bidding would be entirely unnecessary. Finally, market advocates do
not propose organ brokers hawking human organs on street corners. Orders from
transplant centers would simply be filled by organ procurement firms at the market price
as the needed organs become available.
What most market advocates do propose is a process that separates
procurement from distribution. The distribution of organs, once collected, could be
organized exactly as it is today...surgeons (not market forces) would still determine
which patients receive which organs."
Kaserman article #2 (survey data
regarding the probable market price of organs)
A. Frank Adams III, A. H. Barnett, and David L. Kaserman "Markets for
Organs: The Question of Supply" Contemporary Economic Policy 17(2):
147-155 (April 1999) from the Abstract: "This paper provides preliminary evidence
suggesting that potential donors would be relatively responsive to financial inducements
and, accordingly, that the price required to eliminate the current shortage of organs is
surprisingly low." [They conducted a survey of 391 Auburn University
undergraduate students, which indicated that current donation rates could be increased by
117% by the offer of $1,000 for one's organs. Since many organs can be derived from each
donor, the cost per organ would be substantially less than $1,000.] They
conclude: "Interestingly, Peters (1991)* proposed payment of a financial
incentive of $1,000 per donor. The results of the present survey suggest that such a level
of compensation would completely resolve the organ shortage. Had that proposal been
adopted 5 years ago, at least 15,000 lives could have been saved in the interim." *Peters,
Thomas G., "Life or Death: The Issue of Payment in Cadaveric Organ
Donations," Journal of the American Medical Association,
265:1302-1305 (1991)
Kaserman article #3 (a veritable
treatise on the subject, including some very controversial contentions)
Roger D. Blair and David L. Kaserman "The Economics and Ethics of
Alternative Organ Procurement Policies", Yale Journal on
Regulation 8(2): 403-452 (Summer 1991) Here's how this long and scholarly article
ends: "We have been students of regulation,
antitrust, and related microeconomic policy issues for all of our adult lives. Yet
we have never encountered a single policy more at odds with public welfare than the
current organ procurement policy in the United States. Until the interested parties
(physicians, hospitals, patients, and policy makers) consider alternative organ
procurement policies, the existing shortage will persist. In fact, if the current
policy is maintained the shortage will continue to grow worse, as will the needless
suffering." [It's quite unusual for scholars to write this way, but
dammit, people are dying!!!]
Much of the article itself seems to have been condensed into their 1992 Inquiry article, cited above. But, they also include a section entitled "Why the Current System Has Endured", in which they point out that dialysis clinics and transplant centers both benefit financially from the organ shortage. It's easy to see in the case of dialysis clinics -- fewer kidney transplants mean more people with End Stage Renal Disease coming to the clinic 3 times a week. The link between the artificially restricted organ supply and inflated profits of transplant centers and inflated salaries of transplant surgeons is a bit harder to understand. Because the supply of organs is artificially restricted by having the purchase price set by law at zero, the number of surgeries performed is also artificially restricted. This restriction of supply keeps the price of such operations artificially high, because there's little or no price competition among providers. The resulting artificially high profits entice other hospitals to enter the organ transplantation business, but without increasing the total number of organ transplants performed. These new transplant centers simply use organs that had been going to the larger centers, raising costs (by reducing the economies of scale), reducing the quality of the transplant operations (owing to the need to train new surgeons), and resulting in lower success rates. Higher costs and inferior products. Hmmm. Sounds a lot like the sort of thing one used to find in authoritarian, centrally-planned, Communist-style economies, doesn't it? The authors bolster their argument by pointing out that the tremendous rate of entry into this field -- for example, a 600% increase in the number of hospitals doing heart transplants over the six years from 1983 through 1988 -- "would not occur unless the transplant business were quite profitable." (p.419)
They make the same point in...
Kaserman article #4
A. H. Barnett and David L. Kaserman "The 'Rush to Transplant' and Organ
Shortages" Economic Inquiry, XXXIII: 506-515 (July
1995) Abstract: "Normally, economists expect entry to improve
industry performance. The effects of entry, however, can become perverse. Here, we
examine the causes and effects of observed entry into the transplantation industry.
Entry appears to be caused by economic rents created by the shortage of organs resulting
from the current policy proscribing payment to organ donors. Under this policy,
entry has little effect on the number of transplants performed. Consequently, entry
spreads available organs among an increasing number of transplant centers, resulting in
both increased costs and lower success rates. Thus, current policy simultaneously
encourages entry and perverts its normally salutary effects."
Kaserman article #5 (venturing from
economics into psychologizing -- perhaps not a wise move!)
A. H. Barnett, T. Randolph Beard, and David L. Kaserman "The Medical
Community's Opposition to Organ Markets: Ethics or Economics?" Review of
Industrial Organization 8: 669-678 (1993). Abstract: "A severe
shortage of cadaveric human organs for transplantation exists in the U.S. The
obvious cause of this shortage is our current public policy which proscribes payment for
such organs. Support for this policy and opposition to the formation of organ
markets has been quite strong among transplant suppliers (both hospital and physician
groups). This paper critically evaluates the ethical arguments advanced to buttress
this policy position and presents an alternative economic explanation based upon
profit-maximizing behavior. ..."
Having published superb, well-reasoned articles on the subject for 5 years (1991-1995), and still seeing no change in public policy, the authors then unleashed perhaps their most bitter attack, in...
Kaserman article #6
Andy H. Barnett, Roger D. Blair, and David L. Kaserman "A Market for
Organs" Transaction: Social Science and Modern Society 33(6): 8-17
(Sept./Oct. 1996)
Selected quotes:
"Anyone who has studied basic economics could readily explain that the zero-price
policy is the obvious cause of the current organ shortage. There are virtually no
products, including cars, oranges, or other medical services, for which such a policy
would not create a shortage. Consequently, responsibility for
the unnecessary deaths and human suffering that are caused by this policy-created shortage
falls squarely on the sponsors and supporters of the ill-conceived law that proscribes
voluntary market exchange at a positive price."
"The question then arises: If the current organ procurement policy is so obviously flawed and the arguments against a market system are clearly mistaken, then why was the current system adopted and, more important, why has it persisted so long? The rather cynical but, we believe, correct answer lies in the policy's impact on profits to physicians and hospitals. The economic truth is that reliance on altruism at one stage of production can serve the purpose of greed at another. The supply restriction that accompanies a zero-price policy increases physicians' and hospitals' profits in much the same way that the politically motivated crude oil 'shortage' of the early 1970s increased petroleum companies' profits to so-called obscene levels. A legal restriction on the purchase and sale of transplantable organs is economically equivalent to the formation and maintenance of a cartel in the provision of transplant services."
[Editor's note: I happen to have spent several years doing clinical research in a hospital, and still work in a medical school, and I have the highest regard for the integrity of the transplant surgeons and other physicians I have encountered. While I'm sure the above authors' economic analysis is correct, I'm also quite sure that the vast majority of transplant surgeons do not support the status quo out of concern for their pocketbooks. And frankly, I doubt that they are well-versed enough in economics to understand where in this debate their economic interests lie.]
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Dr. Gregory Pence,
Medical Ethicist University of Alabama at Birmingham Dept. of Philosophy and School of Medicine |
The following excerpt is taken from p.45, Chapter Two ("Re-Creating
Organ Donation") of his recent book, Re-Creating Medicine (Rowman
& Littlefield, 2000):
"...much of the transplant ethics involves a false "first step" where
only two alternatives are discussed, with the implication that one is pure, the other,
base. Past discussion of financial incentives for organ donation is a classic example of a
false first step with two and only two simplistic alternatives. There is an real,
practical alternative to pure altruism vs. crass commercialism, and that alternative is
the mixed system of rewarded cadaveric donation.
...somewhat extraordinarily, rather than paying families for organs from cadavers,
we are asking some members of families to be live donors and in the process,
unintentionally killing some of them. Parents who entered the hospital healthy leave it
dead."
L.A. Times op-ed piece (4/9/02) by Gregory Pence
"Organ Donors Risk Health"
Newspapers recently described the gruesome death of Albany, New York newspaper reporter Mike Hurewitz at Mount Sinai Hospital in New York City after he donated part of his liver to his brother. Similar, terrifying stories about other living organ donors are starting to appear, such as that of Barbara Tarrant, a 69 year-old North Carolina woman, who donated a kidney to her mentally retarded son and wound up paralyzed on her left side and without coherent speech. What's going on here?
A clue exists in a full-page ad for Mount Sinai that I cut out for my Medical Ethics class from the national edition of The New York Times on December 5, 2001. The ad boasts that this hospital is "at the forefront of living-donor transplantation" and does more living-donor transplants "than any other hospital in the country."
I clipped it months ago because I thought it shocking to so blatantly encourage such dubious behavior. Widely regarded as heroic in the popular media, living donor transplantation carries real dangers. In 2002 in North America, and for the first time, living donors surpassed brain-dead patients as sources of organs for transplant, yet no one really knows how many people have died from such surgeries, and living-donor transplant centers certainly aren't going to tell us.
For many decades, a bright ethical line existed in transplant surgery of, "First, do no harm," which meant (among other things), "Even to help another, never render a healthy person dead." A kidney transplant from one identical child-twin to the other first crossed that line in 1954, but that was considered an anomaly because of the perfect match.
Then in the mid 1990's, the dam burst and the flood began. In 1993, Nilda Rodriquez gave one-quarter of her liver to her desperate granddaughter and James and Barbara Sewell each gave part of a lung to their daughter, who was dying of cystic fibrosis. By 1997, as the practice became more accepted, California surgeon Vaughn Starnes had taken lobes from 66 donors for 37 recipients, a practice one commentator called "ethically problematic."
By September, 1999, the American Medical News had mentioned the first "confirmed" although "not officially described" death from adult-to-adult liver donation, and also guessed that two to three adults had died from donating parts of their organs to children. No one knows today's real figures because they are not by law reportable.
Many troubling ethical questions haunt this trend. If it becomes a norm, how can a parent not volunteer to donate? Being a hero becomes a duty. Second, given the heroic mantle wrapped around healthy-donor transplantation, can real informed consent be obtained? Mrs. Barbara Tarrant seems to have thought few problems existed for a seventy-year-old woman undergoing such a surgery. She paid a high price. Third, do the enormous costs of such operations (a liver transplant costs a quarter of a million dollars) and their likely harm to donors justify expansion of this trend?
The answer to this question needs a context and it is this: if there were no alternative to living-donor transplantation, it might still be justified. After all, people die without receiving these transplants, and about four thousand Americans die every year waiting for organ transplants.
Fortunately, there is another way: we could start paying people for the organs of deceased relatives. More technically, states could allow "rewarded cadaveric donation," such that families who agreed to donate would get, say, a thousand dollars towards a funeral. Tens of thousands of additional usable organs that now go to worms would become available to save the lives of needy citizens. Why not give this idea a try? It might just work.
True, commercialization is a risk, and we certainly don't want a market for organs from living donors. On the other hand, we can encourage the kind of donation that is already legal for brain-dead patients. And the question is not whether any risk of harm exists from commercialization (it does), but whether such risk justifies the sacrifice of so many thousands of dying patients. I don't think it does.
Gregory Pence (pence@uab.edu) has taught medical ethics at the medical school in Birmingham for over 25 years. Also reprinted in BRAVE NEW BIOETHICS, Rowman & Littlefield, forthcoming 2003 (reprinted with permission of author).