Henry Hansmann, Sam Harris
Professor of Law, Yale Law School
The Economics and Ethics of Markets for Human Organs
in Organ Transplantation Policy: Issues and Prospects, Duke University Press,
1989
Whatever our initial sentiments, we have an obligation as a society to inquire seriously into these difficult issues. Each year many thousands of lives are lost for lack of transplantable organs and hundreds of millions of dollars are spent on the existing transplant system1 -- and these figures are likely to increase significantly in the future. We cannot afford to reject any approach that would increase the supply of organs or improve the efficiency with which organs are allocated and transplanted without the most thoughtful consideration. Moreover, careful analysis of this subject promises to illuminate other areas where prohibition of commercial sales is currently a topic of serious debate, such as adoption2 and surrogate motherhood.
Historically, the common law did not provide anyone with a clear property right in a human corpse, and thus did not give anyone the authority to transfer a cadaver or any of its parts for any purpose by gift or sale (Vestal et al. 1954).3 Thus when transplants first became feasible, there was no legal mechanism whereby individuals could designate that their organs could be used for transplants upon death. To rectify this situation, the Uniform Anatomical Gift Act (UAGA) was promulgated in 1968 and adopted in some form in every state by 1973 (Michigan Law Review 1974). The UAGA explicitly gives individuals the right to designate prior to death whether their bodies or organs are to be donated for transplants. In cases where a decedent's wishes are not known, the act gives the next of kin the right to designate whether or not organs are to be donated.The UAGA deals expressly only with donations of organs; it is silent on the subject of sales. According to the chairman of the committee that drafted the UAGA, it was intended neither to encourage nor to discourage remuneration: " . . . it is possible, of course, that abuses may occur if payment could customarily be demanded, but every payment is not necessarily unethical.... Until the matter of payment becomes a problem of some dimensions, the matter should be left to the decency of intelligent human beings" (Stason 1968: 928).
In the 1960s (prior to the adoption of the UAGA) some states adopted statutes explicitly prohibiting the sale of human bodies and organs. Most of these states repealed such statutes when they adopted the UAGA.4 It is unclear whether these repeals were simply the result of a program of repealing all relevant statutes predating the UAGA or whether they reflected a judgment that the prohibitions on sales were either overridden by the UAGA or, conversely, made redundant by it. In any event, Delaware evidently did not hold the latter view, since it added an explicit prohibition on sales to its version of the UAGA.5
The status of the sale of organs for transplantation therefore remained uncertain until Congress adopted the National Organ Transplant Act (NOTA) in 1984. NOTA was essentially an effort to enhance the system of voluntary provision of transplantable organs contemplated by the UAGA. Its principal provisions established federal financial support for local nonprofit organ procurement organizations and for a national organ procurement and transplantation network to assist in matching organ donors and recipients. However, NOTA also effectively outlawed commercial markets in transplantable organs by making it a federal crime "for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce."6 Several states have subsequently supplemented this act with separate statutes of their own outlawing the sale or purchase of human organs.7 As a consequence, any effort to establish a market for organs today would require the repeal or amendment of legislation at both the federal and state levels.
Neither the federal nor the state legislation outlawing markets for organs were accompanied by careful policy analysis justifying the ban. NOTA did, however, establish the federal Task Force on Organ Procurement and Transplantation to inquire further into the policy issues raised by transplants. But when the task force submitted its report in 1986 it reaffirmed NOTA's ban on the commercialization of organ transplantation without further analysis, simply offering the conclusory observation that "society's moral values militate against regarding the body as a commodity" and suggesting that such a ban is appropriate to "encourage altruism" (U.S. DHHS 1986: 96). The task force also proceeded to encourage individual states to adopt their own prohibitions on the commercial sale of organs because NOTA, limited as it is to sales affecting interstate commerce, might not be entirely effective in suppressing such sales.
In the discussion that follows I will seek to offer a more comprehensive analysis of NOTA's proscription of commercial sales. For this purpose it will be helpful to distinguish between the use of markets to encourage individuals to make their organs available for transplantation and the use of markets to allocate the available supply of organs among the individuals who wish to receive them. As Calabresi and Bobbitt (1978) have emphasized, in "tragic" contexts (such as life-saving organ transplants) it is entirely possible and often quite appropriate to use a market for one of these purposes and not the other. Consequently, I will consider these two different uses for markets in turn.
Markets for Procuring Organs
Some organs can be obtained from living donors. This is true of kidneys in particular, since most individuals can lose one of their two kidneys without serious impairment of their health. It appears that in banning commercial sales of organs, the authors of NOTA and of the similar state statutes were focusing particularly on sales by living donors, and especially on one notorious effort by a former Virginia doctor, whose license had previously been revoked for fraud, to establish a company to solicit living individuals (including indigents from the third world) to sell one of their kidneys for transplantation in transactions to be brokered by the company for a profit (Virginia Law Review 1985: 1020-22). Most transplantable organs, however, are "harvested" from cadavers, and indeed many organs, including livers, hearts, and lungs, can only be obtained from persons who are deceased. I will therefore focus first on markets for cadaveric organs, then turn to the issues raised by sales of organs from living donors.
Markets for cadaveric organs
Current estimates indicate that of the roughly 20,000 Americans who die annually under circumstances that would make their organs suitable for harvesting, only about 15 percent actually donate their organs.8 One important reason for this low donation rate is that relatively few individuals fill out and carry organ donor cards or otherwise indicate their willingness to donate their organs prior to death.9.9 And although under the UAGA the deceased's next of kin can authorize donation, attending physicians are understandably reluctant to press for such permission10 and families are often reluctant to give it, particularly under the difficult circumstances surrounding death.11 However, these low authorization rates evidently do not reflect widespread opposition to the idea of donating organs. Surveys indicate that more than 70 percent of Americans support the concept and express a general willingness to donate (Koop 1984).
These observations suggest that with some effort, donation rates might be increased substantially. Current policy proposals focus principally on three different types of measures that might be adopted for this purpose: (1) "required request," under which health care professionals would be required by law to ask the family of a deceased or dying person to donate the deceased's organs (U.S. DHHS 1986); (2) "presumed consent," under which organs would be assumed available for transplantation unless an objection had previously been registered, either by the decedent prior to death or by the next of kin at the time of death (Dukeminier and Sanders 1968); and (3) "mandated choice," under which all individuals over a certain age would be required by law to choose at some point-perhaps upon applying for a driver's license or for a social security card-whether or not to make their organs available for transplants upon their death (Katz 1984). There is reason to believe, however, that the first two of these policies do not promise a substantial increase in donation rates: required request statutes have already been adopted in at least 28 states, with only limited results (Gerson 1987),12 while presumed consent laws are in force in fourteen European countries, none of which have notably better donation rates than the United States.13 And the mandated choice approach, although holding some promise of a further increase in donation rates, has the disadvantage that in itself it provides no special incentives for people to choose in favor of donation.14 It is worth inquiring, therefore, whether offering compensation might lead to substantially higher donation rates without excessive offsetting disadvantages.
Feasible designs for a market. Before we can evaluate the desirability of having a market for organs, it is important that we have clearly in mind the particular forms that the market might take.
Purchasing organs from dead people is obviously impossible. It also seems unwise to seek to purchase the rights to a person's organs while they are awaiting death: such transactions would often be traumatic for all concerned, and patients might be worried that if they agreed to sell, the care they received subsequently would be less than zealous. Moreover, since a large fraction of potentially harvestable organs come from people who die suddenly in accidents, such transactions would often be infeasible in any event. Seeking to purchase the right to remove a decedent's organs from the next of kin at the time of death is also a dubious policy: there is little time to arrange the transactions, and the transactions would be extremely awkward and often traumatic for the family members involved, who would have to decide under difficult emotional circumstances whether to accept a (potentially quite large) sum of money in return for something they (and others) might well feel is not theirs to sell. (This is not to say that serious proposals for such compensation have not been suggested. For example, it has been seriously proposed, even by individuals who express strong opposition in the abstract to the idea of compensating organ donors, that organ procurement agencies offer to pay funeral expenses for poor families if they will agree to donate the organs of a deceased relative. It has been suggested that this might be particularly helpful in encouraging donations among minorities, who evidently are often especially reluctant to donate because, among other things, they are suspicious that their deceased relative's organs will simply be used to help prosperous white people. Such a policy, which would clearly violate NOTA, is of course subject to the serious objection that it appears to patronize and exploit the groups to whom it is targeted.)
It therefore appears that the most feasible method for establishing a market in cadaveric organs would be to structure it as a futures market -- that is, the right to harvest a person's organs upon death must be purchased from him while he is alive and well. (Although the term futures market may bring to mind misleadingly offensive images of hog bellies and the Chicago Commodities Exchange, I will nevertheless use the expression here for economy of reference. As I will try to make clear, a futures market for cadaver organs need look very little like the market for spring wheat.)
The most explicit proposal to date for such a futures market has been made by Schwindt and Vining (1986).15 They describe a system under which an individual would receive a current cash payment in exchange for the right to harvest their organs if they should die under circumstances in which their organs were transplantable. Schwindt and Vining seem to envisage that the resulting contract would be binding for the rest of the donor's life. They further propose that the government be made the sole purchaser of such rights. Upon examination, however, neither of these central features of their proposal seems necessary or desirable. There is no need for an individual to enter into a futures contract of lifetime duration; in fact, annual contracts appear both feasible and preferable. Further, there is no need to make the government the sole purchaser. Schwindt and Vining support this latter aspect of their plan with the argument that the economies promised by a central clearing mechanism for matching donors and recipients make the organ procurement system a natural monopsony [webmaster note: a market with a single buyer]. Yet it is possible to have a centralized clearing system while still having multiple purchasers and holders of property rights in organs.
These points become clearer if we consider alternative approaches. One of the most promising alternatives is to make providers of health insurance the principal purchasers of future rights in organs. I will describe and analyze a scheme of this type in some detail here. There are also a number of other ways to purchase future rights in organs. For example, a bill was recently introduced in the Connecticut legislature calling for a refund of $10 of the fee for the renewal of a driver's license for individuals who agree to donate their organs.16 Each such scheme has its particular advantages and disadvantages-and all are currently proscribed by NOTA. I will concentrate on the health insurance approach here, however, in order to provide a clear focus for my discussion,
A health insurance premium reduction plan. Health insurance companies would be natural purchasers of future rights to organs because these companies are already involved in the types of actuarial calculations and financial transactions that would be involved. Insurers might simply insert in their annual premium statements a provision (a check-off box would probably suffice) by means of which their policyholders could indicate that, in case they were to die during the period (generally the coming year) covered by the premium statement, the insurance company or its assignees would have the right to harvest any of the insured's organs that were transplantable. In return for checking this box, the insured would receive a specified reduction in their insurance premium for that period. Individuals would be free to change their mind about being a donor annually (or whenever their insurance policy was renewed).17
Each insurance company would submit to a central national registry the identification of each of its insureds who had chosen the donation option. Hospitals would then be required to check this national registry upon the death of any patient whose organs are potentially suitable for transplantation.18 If the patient were enrolled in the registry for the current year, the hospital would indicate which of the patient's organs were available, and suitable recipients could be located through the national matching network. A recipient of one of the deceased's organs (or the recipient's health insurer) would then be obliged to pay the deceased's insurance company, or their assignee, the latter's stated price for an organ upon accepting it for transplant.
Group health insurance policies, which cover a substantial fraction of the nation's workforce, might deal with the problem of individual choice in several ways. One approach would be to provide that all workers under a given employer's plan will be presumed to agree to donate unless they complete a form indicating otherwise, in which case an additional payroll deduction would be made for their health insurance coverage. Such an approach-especially if combined with a promotional program sponsored by the employer, the union, and the local public health department stressing the social value of donation-might well assure very high levels of donation.
All types of health insurance companies -for-profit, nonprofit (Blue Cross/Blue Shield), and even governmental (Medicare/Medicaid)-could participate in such a scheme. The insurance companies would act primarily as intermediaries, purchasing and then reselling rights to harvest organs. Many insurance companies might choose to resell their futures contracts to other firms that would specialize in holding such contracts.
Institutions or individuals other than health insurance companies might also be permitted to solicit organ futures. One advantage of thus broadening the range of purchasers and holders of rights is that it might help bring within the system the roughly 13 percent of the population that is not currently covered by any form of private or public health insurance (U.S. Department of Commerce 1987).19 On the other hand, a disadvantage is that it would be more difficult to assure that all futures are purchased honestly and recorded accurately. Moreover, there might be a tendency for some firms to seek out and solicit organ futures from individuals who are unusually promising as prospective donors. For example, companies selling motorcycle insurance might find it attractive to offer very large cash payments or premium reductions for organ futures to motorcyclists, whose death rate is high and whose organs have a good probability of being harvestable in case of death since they are generally young and often die of head injuries.20.20 Or, if there were no limitations whatsoever on the solicitation of organ futures, some private firms or individuals might find it attractive to seek out, say, particularly rowdy motorcycle gangs and buy up organ futures from their members for cash. While such targeted solicitation activity would not necessarily be undesirable, it might give rise to at least two types of costs. First, the solicitation activity itself, if carried to an extreme, might appear distastefully sanguinary to a substantial segment of the public. Second, free entry could lead to a wasteful duplication of solicitation efforts. If these problems were to appear sufficiently serious, they would provide a further argument for limiting the right to solicit organ futures to general health insurers, which would probably offer premium reductions for organ futures based only on a few general factors, such as the insured's age.
With a futures market, any individual who had not sold a futures contract for their organs would presumably be deemed not to wish to have their organs made available for transplant. Thus the system need not be accompanied by a right to seek to purchase an individual's organs after he had died, whether from his estate or from his next of kin. Rather, a decedent's organs could be made purchasable only from a firm holding a valid futures contract that was executed by the deceased prior to his death. (It would be possible to permit an individual who had not signed a futures contract to designate in his will that his estate or next of kin would have the right to sell his organs upon his demise if the organs were harvestable. That is, his estate or next of kin would hold the future. But it might be appropriate to disallow this option: most individuals, being risk-averse, would presumably find it less attractive than selling a future while living, and permitting it might provide an added inducement to suicide for some individuals.) 21
Determining prices. The price (premium reduction) that insurance companies would pay for the future right to cadaveric organs would depend on the price that they could obtain for those organs at the time of removal. Since the health insurance business is reasonably competitive, presumably insurance companies would be able to take only a market rate of return for their efforts as intermediaries in such transactions; the rest of the (expected) price received by the insurance companies for the harvested organs would be passed through to their insureds in the premium reductions offered them.
How would the price for the harvested organs be determined? One possibility would be simply to establish a market in harvested organs, and to let the forces of supply and demand determine the ultimate price, This possibility is explored more carefully later in this article. The system would also be perfectly workable, however, if the price that an insurance company could obtain for a cadaveric organ were set administratively by the government rather than by market forces. For example, the government could simply provide that an insurance company (or its assignee) is entitled to receive no more than, say, $10,000 for a kidney, $20,000 for a heart, $15,000 for a liver, and so forth. The insurance company would then set its offered premium reductions on the basis of these prices, discounted by the probability that the insured will die during the coming year and the probability that the insured's organs will be usable in case of death.
In particular, such a scheme could be employed in the context of the existing system for organ procurement. Under that system, organs are harvested and distributed through a network of roughly 70 regional organ procurement agencies that effectively have local monopolies on the supply of organs. These agencies are all nonprofit. They charge prices for the organs they procure that are, on average, just sufficient to cover their costs. At present these agencies do not charge, nor do they pay, any amount for the organ per se; rather, all charges are for the doctors' services and other personnel and equipment costs involved in harvesting and transporting the organ. If a futures market such as the one described here were implemented, these agencies could continue to function much as they do now; the only necessary change is that they would have to pay the administratively determined prices for organs to holders of the rights to those organs-prices that the agencies would then pass on to the recipients of the organs or their insurers along with the other costs of the transplant.
As an alternative, the market elements of such a scheme could be even further attenuated by requiring that the insurance companies resell the organ futures to the government immediately upon purchasing them at a price set by the government. The government could then simply allocate the organs through the existing organ procurement and distribution system without financial charge. Such a system would differ from a full government monopsony of the sort proposed by Schwindt and Vining only in that it would retain private insurance firms as administrators of the actual process of soliciting the organ futures, although this in itself might bring important advantages.
Regardless of the method employed to determine the price for harvested organs, a premium reduction system of the type described here would be practical only if that price were sufficiently high to make the value of the future rights to a policyholder's organs large enough to cover the costs to the insurers of administering the system (the insurers' "loading costs") and still have enough left over to provide a premium reduction to policyholders sufficient to catch their attention. Rough calculations can provide some perspective on the likelihood that this condition will be met. At present the average American has a chance of about 1 in 10,000 of dying during a given year under circumstances that would render his organs suitable for transplantation.22.22 If (for those decedents whose organs are harvestable) the average value of all the harvestable organs in a body were $100,000 (that is, if this were the total amount for which the holder of the futures could sell the rights to the organs upon removal for transplanting), then the annual value of the futures for the average American would be roughly $10. If the value of the organs when harvested were instead $1,000,000, then the futures for a single year would be worth $100. Although these are not large sums, amounts in this range-and especially toward the upper end of this range-could well be sufficient to cover insurers' loading costs and still provide a meaningful premium reduction. Moreover, higher premium reductions could be offered if it were possible (as seems likely) to identify substantial subgroups of the population, such as the elderly, whose organs would not be usable in any event and who could therefore be excluded from the group offered premium reductions.
Supply response. Of course, the principal motivation for adopting a payment scheme such as that just described would be to increase donation rates. A critical question, therefore, is whether it is reasonable to believe that donation rates would in fact increase substantially in response to the offer of insurance premium reductions.
As already noted, most individuals are evidently not in principle opposed to donation; presumably they fail to donate only because of inertia, mild doubts about their preferences, a slight distaste for considering the subject, or the inconvenience involved in completing or carrying a donor card. In this context, it is possible that a relatively modest financial incentive would improve donation rates substantially. The proffered premium reductions would serve to focus the attention of potential donors on the issue and would give them an incentive-or perhaps simply an excuse-for resolving their doubts in favor of donating. Put differently, the premium reductions might not serve so much to compensate people for giving up something of value to them as simply to make it worth their while to incur the transaction costs, both material and psychic, involved in making a decision to donate. In addition, and perhaps of equal or greater importance, because there would be a set of institutions-the insurance companies-with a strong incentive for soliciting donations, solicitation would presumably be far more extensive than at present.
On the other hand, there are several other considerations that might interfere with a strong supply response here.
Reduction of altruism. A common objection to providing compensation in contexts such as this is that it will drive out voluntarism-that is, that individuals who would otherwise be willing to donate out of a spirit of altruism will actually be less willing to donate if payment is offered. If this effect were serious and widespread, then the introduction of payment might produce little or no net overall increase in organ supply. The issue has been much debated in the context of blood donation (Titmuss 1971; Arrow 1975). The limited empirical evidence available in that context is ambiguous even as regards the supply of blood, and arguably does not carry over well to the context of organ donation in any case.23 Thus, the most we can say at this point is that neither logic nor data permit us to conclude at this point whether a payment scheme such as the premium reduction plan described above would be counterproductive because of interference with altruistically motivated donations. Only experimentation is likely to provide clear answers.
Note, moreover, that whether the type of payment scheme described here would be perceived by prospective donors as inconsistent with their altruistic inclinations would presumably depend in considerable degree on the way in which those individuals frame the issue for themselves, and thus in turn on the way in which the choice is presented to them. For example, is the question whether the typical American would be willing to sell the rights to his organs for (say) $40 per year? Or is it whether the typical American would be willing to pay an extra $40 per year in health insurance premiums for the privilege of refusing to make his organs available to save several other persons' lives after he has died? Consider, in this connection, the approach suggested above for employees covered by group health policies at their workplace. As suggested there, it seems plausible that appeals to altruism, community spirit, and financial self-interest could all be combined in a fashion that would be complementary and effective in securing donations.
Note, too, that under an insurance premium reduction scheme organ donors could be permitted to designate that their premium reduction be donated to a charity of their choice rather than refunded to them personally.24
Committing not to give. A further potential difficulty with a futures market for organs is that it might remove some people from the donor pool whose organs would be available under the current regime. As noted above, an individual who declines to accept a premium reduction or other payment for the future rights to his organs would presumably be deemed to wish not to make his organs available for transplant. Consequently, his family would not be free to decide to authorize donation upon his death. This is in contrast to the current regime in which, if an individual does not sign a donor card, it is still possible to prevail upon his family to donate his organs after his demise. If individuals in general are less inclined to donate their own organs than to agree to the donation of their deceased relatives' organs, which may be the case, these factors might diminish the advantage of the futures market approach relative to the current regime in terms of supply response.25 This problem is not confined to a market for organ futures. It arises with any approach, such as the mandatory choice approach described earlier, that confronts living individuals with a clear "yes or no" choice as to whether or not to be a donor upon their death.
Fear of doctors' incentives. A third factor that might detract from an individual's willingness to agree to sell the future rights to his organs is the fear that this will compromise the quality of health care he receives. Once the rights have been sold, there will be somebody with a financial interest in the individual's demise. People might suspect that this incentive could perhaps be brought to bear in some way on the doctors and hospitals responsible for treatment in life-threatening circumstances, rendering them less than zealous in sustaining life when the individual's organs appear harvestable. Though such fears would presumably be unrealistic under any properly regulated regime, they might not be easy to allay.
Net effects. In summary, it is not easy to predict what proportion of individuals would agree to donate in response to an offer of compensation for future rights to their organs. It is at least possible, however (though by no means certain), that overall donation rates would be significantly higher under such an approach than they are, or could easily be brought to be, under the current regime.
[The above constitutes half of Dr. Hansmann's book chapter. I've probably already exceeded copyright law at this point. If you want to read more, check the book out of a medical school library! (The book itself is probably out of print.)]
Footnotes
1. In 1985, the Medicare program paid $285 million for kidney transplants alone (Schuck 1989). [back]
2. See Landes and Posner (1978), Prichard (1984), and Boston University Law Review (1987). [back]
3.This does not mean that sales or gifts were illegal, but only that contracts for sale or deeds of gift were not enforceable at law. [back]
4. E.g., Law of Aug. 1, 1968, ch. 429, sec. 7, 56 Del. Laws 1773, 1773 (1967) (repealed 1970); Law of April 22, 1964, ch. 702, sec. 1, 1964 N.Y. Laws 1827, 1828 (repealed 1971); Act of June 12, 1967, ch. 353, 1967 Mass. Acts 202, 202 (repealed 1971). [back]
5. Del. Code Ann. tit. 24 § 1783(f) (1981). [back]
6. 42 U.S.C. § 274(e) (1982). The act specifies that its prohibition does not extend to payments made to cover costs incurred in the process of transplanting the organ. [back]
7. These states include Virginia, Maryland, and California. For a partial survey see Virginia Law Review (1985). [back]
8. S. Rep. No. 769, 98th Cong., 2d Sess. 4 (1984); U.S. DHHS (1986: 35). [back]
9. Polls indicate that only 17 percent of Americans have actually completed donor cards (Gallup Organization 1985). Presumably fewer actually carry such cards. [back]
10. The primary obligation of the attending physician is, of course, to the patient and the patient's family, not to the potential recipient of the patient's organs. [back]
11. Moreover, even when the deceased has indicated an intention to donate, hospitals are generally unwilling to proceed unless the family also expresses agreement. (Interview with Frances Angeletti, transplant organ procurement coordinator, Department of Surgery; Yale-New Haven Hospital, 10 December 1987.) [back]
12. A variant of the required request approach has now been imposed on all hospitals receiving funds under either Medicare or Medicaid by the Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, § 1138, 100 Star. 4599 (1986). [back]
13. In practice, evidently even strict presumed consent laws are functionally equivalent to the prevailing American approach under which the approval of the next of kin is required (Gerson 1987). [back]
14. The mandated choice approach also runs a risk similar to that presented by the insurance premium deduction scheme discussed below. If a substantial number of individuals were to choose not to donate, then presumably this choice would have to be respected upon their death, thus foreclosing the possibility of persuading their next of kin to donate their organs on their behalf. It is therefore possible that the mandated choice approach, absent any inducements to make the choice in favor of donation, could lead to a reduction in the overall rate of donation. [back]
15. For another, much less detailed proposal, see Brams (1977). [back]
16. Proposed bill no. 5456, Connecticut General Assembly, February session (1988). [back]
17. In order to have the forces of inertia work in favor of organ donation (and also to avoid making insureds repeatedly confront a difficult issue), policy renewals could be structured to provide that once an individual had elected to donate in return for a premium reduction, that option would be automatically renewed unless the insured took some affirmative action to revoke it. [back]
18. Hospitals might be required by governmental regulation to check the registry, or induced to do so either by offer of a payment for each registered transplantable organ they locate and/or by liability for failure to check the registry to determine the owner, if any, of the rights to the organs. [back]
19. Donation decisions for minor children would presumably be made on their behalf by their parents, since children are commonly covered by the same health insurance policy that covers the rest of the family. [back]
20. The chance that the average motorcyclist will die in a vehicle accident during a given year is presently on the order of I in 1,000 (Insurance Institute for Highway Safety 1987). If all of the organs recoverable from a cadaver were on average worth $100,000 collectively, and if organs could be recovered from one-third of all the persons killed in motorcycle accidents, then a futures contract for the average motorcyclist would be worth roughly $33 (and more if the risk of death from other causes were factored in as well). If the total value of the organs harvestable from a single individual were $1,000,000, then the futures contracts would be worth at least $333. [back]
21. If, upon an individual's death, the family objected to donation even though the individual had sold the rights to his organs, there would be an awkward problem. There are at least three possible responses: ignore the protest; permit the family to prevent the donation, but only upon paying the market value of the harvested organs; or respect the family's wishes (at least if they appear to feel very strongly on the matter) without requiring payment from them beyond refund, with interest, of the insurance premium reductions the family had received in the past. Although the first and second are the only responses that respect the transaction for gale of the organ futures, there might be considerable pressure to accept the third. Fortunately, anecdotal evidence suggests that it is almost unheard of for families to refuse consent when the deceased has clearly indicated a desire to donate their organs, so this should not be a common problem. [back]
22. The U.S. population is roughly 240 million (U.S. Department of Commerce 1987: 74). It is estimated that between 17,000 and 26,000 people die annually under circumstances that make them potential organ donors (U.S. DHHS 1986: 35). [back]
23. For a review of the literature on blood donor motivation and recruitment, see Oswalt (1977). Upton (1973) reports the results of what appears to be the best (though still very limited) empirical study on the subject. In that study, payment of $10 for giving a pint of blood was offered to individuals in two groups: those who had regularly donated blood in the absence of payment, and those who had occasionally donated blood in the absence of payment. The offer of payment significantly reduced donation rates for the first group below a comparable sample not offered payment , while it slightly increased donation rates among individuals in the second group. Though this study does indicate that low levels of payment decrease donation rates for those otherwise strongly inclined to volunteer, it provides no clear indication of the likely consequences of a payment scheme for cadaver organs of the type outlined above, for several reasons. First, the results of the study are consistent with the conclusion that an offer of payment, even at only $10 per pint, to the population at large would bring a substantial increase in overall donation rates. Second, donation rates in the first group may have fallen because of the low level of payment offered, which was surely below the opportunity cost of time and bother for many individuals in the group. Indeed, the offer of $10 in payment may have been taken by many in this group as an indication that the social value of a pint of blood was only $10, and hence it would not be worthwhile even from a social point of view-that is, even in the absence of compensationfor them to take the time to donate. Third, whereas for many individuals there is a very tangible opportunity cost in terms of time and effort to donating blood, the same is not true for donating the right to take their organs after death. Thus modest amounts of payment may produce a much larger response in the latter case than in the former. [back]
24. Another reason offered by Titmuss (1971) for reliance on donations rather than purchases for blood supplies was that the quality of commercially obtained blood was markedly lower than that of donated blood, particularly with respect to serum hepatitis (and, more recently, AIDS). (See also Rose Ackerman 1985: 945-48.) This argument was apparently important in moving the American blood collection system from one in which (in 1965-1967) 80 percent of all blood was obtained from paid donors (Scott 1981: 191) to one in which virtually all whole blood is obtained from unpaid donors. It has been argued persuasively, however, that the quality of commercially obtained blood would not have been a problem if most states had not passed legislation prohibiting strict liability for diseases transmitted by transfused blood (Havighurst 1977). In any event, it is not clear that similar concerns about quality are applicable to "hard" organs such as kidneys and hearts, where the opportunity for moral hazard on the part of donors seems much smaller. [back]
25. A variant on the insurance proposal outlined above would permit individuals to check one of three boxes on their insurance form: (1) donate and receive a premium reduction; (2) decline to donate; (3) make no decision one way or the other now, but leave the donation decision to the next of kin upon demise. If the latter option is provided, however, then it must be decided whether the next of kin or the deceased's estate should be able to receive compensation for the rights to the organs when they are removed. [back]
References
Andrews, L. 1986. My Body, My Property. Hastings Center Report 16 (5): 25-38.
Annas, G. I984. Life, Liberty and the Pursuit of Organ Sales. Hastings Center Report 14 (1): 22-23.
Arrow,
K. 1975. Gifts and Exchanges. In Altruism, Morality, and Economic Theory, ed. E. Phelps. New York: Russel-Sage Foundation.Boston University Law Review. 1987. Adoption and the Market Theory. 67: 59-175.
Brams, M. 1977. Transplantable Human Organs: Should Their Sale Be Authorized by State Statutes? American Journal of Law and Medicine 3 (2): 183-95.
Broznick, B. 1988. Organ Procurement: Fulfilling a Need. Transplantation Proceedings 20 (1, Supp. 1): 1010.
Calabresi, G., and P. Bobbitt. 1978. Tragic Choices. New York: Norton.
Cass, R. 1987. Coping With Life, Law, and Markets: A Comment on Posner and the Law-and-Economics Debate. Boston University Law Review 67: 73-97.
Coase, R. 1937. The Nature of the Firm. Economica 4: 386-405.
Cook, B., and P. Terasaki. 1988. Cyclosporine A and Histocompatibility in Kidney Transplantation. Transplantation Proceedings 20 (3, Supp. 2): 244-48.
Dukeminier, J., and D. Sanders. 1968. Organ Transplantation: A Proposal for Routine Salvaging of Cadaver Organs. New England Journal of Medicine 279 (8): 413-19.
Epstein, R. 1985. Why Restrain Alienation? Columbia Law Review 85 (5): 970-90.
Evans, R. 1987. The Economics of Heart Transplantation. Circulation 75 (1): 63-75.
Gallup Organization, Inc. 1985. The U.S. Attitudes Toward Organ Transplantations/Organ Donation. Princeton, N J: Gallup.
Gerson, B. 1987. Refining the Law of Organ Donation: Lessons from the French Law of Presumed Consent. New York University Journal of International Law and Politics 19: 1013.
Hamburger, J., and J. Crosnier. 1968. Moral and Ethical Problems in Transplantation. In Human Transplantation, ed. F. Rapaport and J. Dausset. New York: Grune and Stratton.
Havighurst, C. 1977. Legal Responses to the Problem of Poor-Quality Blood. In Blood Policy: Issues and Alternatives, ed. D. Johnson. Washington, DC: American Enterprise Institute.
Havighurst, C., and N. King. 1986. Liver Transplantation in Massachusetts: Public Policymaking as Morality Play. Indiana Law Review 19 (4): 955-87.
Insurance Institute for Highway Safety. 1987. IIHS Facts 1987: Motorcycles. Washington, DC: IIHS.
Katz, B. 1984. Increasing the Supply of Human Organs for Transplantation: A Proposal for a System of Mandated Choice. Beverly Hills Bar Association Journal 18 (Summer): 152-67.
Koop, C. 1984. Increasing the Supply of Organs for Transplantation. Public Health Report 98 (6): 566-72.
Landes, E., and R. Posner. 1978. The Economics of the Baby Shortage. Journal of Legal Studies 7 (2): 323-48.
Lee, P. 1986. The Organ Supply Dilemma: Acute Responses to a Chronic Shortage. Columbia Journal of Law and Social Problems 20 (4): 363-407.
Michigan Law Review. The Sale of Human Body Parts. 72 (6): 1182-264.
Najarian, J., R. Migliori, R. Simmons, N. Ascher, W. Payne, D. Dunn, D. Sutherland, and D. Fryd. 1988. Effects of HLA Matching in Cadaver RenaI Transplants. Transplantation Proceedings 20 (3, Supp. 3): 249-56.
Oswalt, R. 1977. A Review of Blood Donor Motivation and Recruitment. Transfusion 17 (2): 124-35.
Posner, R. 1987. The Regulation of the Market in Adoptions. Boston University Law Review 67: 59-72.
Prichard, S. 1984. A Market for Babies? University of Toronto Law Journal 34 (3): 341-57.
Radin, M. 1987. Market-Inalienability. Harvard Law Review 100 (8): 1849-937.
Robertson, J. 1987. Supply and Distribution of Hearts for Transplantation: Legal, Ethical and Policy Issues. Circulation 75 (1): 77-87.
Rose-Ackerman, S. 1985. Inalienability and the Theory of Property Rights. Columbia Law Review 85 (5): 931-69.
Schuck, P. H. 1989. The Role of Government in Paying for Organ Transplants. Elsewhere in this volume.
Schwindt, R., and A. Vining. 1986. Proposal for a Future Delivery Market for Transplant Organs. Journal of Health Politics, Policy and Law 11 (2): 483-500.
Scott, R. 1981. The Body as Property. New York: Viking Press.
Stason, E. 1968. The Uniform Anatomical Gift Act. Business Lawyer 23 (4): 919-29.
Titmuss, R. 1971. The Gift Relationship. New York: Pantheon Books.
Upton, W., III. 1973. Altruism, Attribution and Intrinsic Motivation in the Recruitment of
Blood Donors. In Selected Readings in Donor Motivation and Recruitment, volume II, ed. American Red Cross.
U.S. Department of Commerce. Bureau of the Census. 1987. Statistical Abstracts of the United States: 1988. Washington, DC: U.S. Government Printing Office.
U.S. Department of Health and Human Services. 1986. Report of the Task Force on Organ
Transplantation: Issues and Recommendations. Rockville, MD: DHHS.
Vestal, A., R. Jaber, and W. Shoemaker. 1954. Medico-Legal Aspects of Tissue Homotransplantation. University of Detroit Law Journal 18 (3): 271-94.
Virginia Law Review. 1985. Regulating the Sale of Human Organs. 71 (6): 1015-38.
Zimmerman, D. I981. The Red Cross: Banking on Charity. San Francisco Examiner Magazine, 26 July, pp. 16-21.