Organ Selling

I welcome these proposals to utilize to the maximum the technical facilities which our inventiveness has created for saving life and alleviating suffering.

It led, in time, to a couple in Edinburgh in the 1820's, who took to murdering people in order to get an increased supply of such dead bodies which they supplied to the anatomy schools in Edinburgh. Burke was hanged in Edinburgh in 1829, and it was that that led to the British Anatomy Act in 1832, which forbade the sale of bodies, but which did allow for reasonable costs associated with the removal, storage, and transplantation of human corpses.

We at UCLA, in our Department of Anatomy, have had a very successful willed body program for over a quarter of a century.

The most famous contribution to the question of the ethics of buying and selling human tissue is by Richard Titmuss, the sociologist, in a book called The Gift Relationship: From Human Blood to Social Policy. Of all human tissues, blood is the one that a donor replaces most easily and quickly, and yet Titmuss mounted powerful arguments against the collection of blood for sale.

In 1977, the controversy between the American Red Cross and the American Association of Blood Banks was building, the Red Cross going for volunteer donors for blood, the Association of Blood Banks going for purchase of blood. I organized and moderated a panel discussion in the series which we call The Medicine and Society Forum at UCLA, and the title of the discussion was "Blood for Transfusion: To Give or to Trade?" This is the question that you are dealing with today with other human tissues and organs: Should they be given or should they be traded?

The societal benefits of restricting or prohibiting - and California now prohibits the sale of human blood - the benefits and disbenefits of buying and selling blood were clearly shown. We remember very clearly in downtown Los Angeles those terrible days when the indigent and poor would go and sell their life blood for the sake of yet another bottle of liquor or whatever else it was that they needed or thought they needed to continue with their life.

Now, there are utilitarian arguments against the purchase of blood, against the purchase of. bodily organs. If there are such sales, then the chances of transmission of disease is much increased. But I do not think that utilitarian arguments ought to be the basis of the legislation. I think there are much more powerful deontological arguments, rule-based arguments, about what it is to be a human being and what it is to have been a member of society and to have died.

I think that if it should become the case that organs of dead people or organs of living people should be offered for buying and selling, then I think this would represent a major degradation for humankind.

It will be objected that if financial recompense is not offered, the supply of donor organs will continue to be inadequate. I do not believe this. As you have already said, Mr. Chairman, it is the case that there are many, many people prepared to offer as a gift relationship, as Titmuss put it, as part of that bonding relationship between members of the human species, to offer their tissues or their organs to other members who need them more than they do, and I am thinking here particularly of the kidney.

We need to educate the public about the remarkable social benefits that flow from the gift relationship, and I see that your bill does contain in section 374(a)(2) the seeds of a really major educational project to educate the society. This American society is as generous as any society has ever been when the need is pointed out to them, and I think that a major part of the funding that will be appropriated for this bill should go into those educational purposes.

Finally, I hope that the wording in the title III of the section 301(c)(3) does not imply that human organs or tissues may be bought and sold with impunity within any one State. It refers to cross-State boundaries. I hope that any such buying and selling of organs and tissues will constitute a Federal offense. [God knows we can't leave the American people free to do what they want with their own bodies!  God forbid we should ever address the real causes of poverty.]

I am glad to have this opportunity to express my appreciation of this very important (even "essential") section of a wise, far-reaching and very necessary Bill, the aim of which is to promote the availability of human organs and tissues for transplantation into the bodies of those sick people who need them. I welcome these proposals to utilize to the maximum the technical facilities which human inventiveness has created for the saving of life and the alleviation of suffering.

Modern legislation concerning the use of human cadavers for medical purposes goes back to the British Anatomy Act of 1832. This Act of Parliament was a direct outcome of the successful prosecution and conviction on charges of murder of the infamous couple Burke and Hare who, having discovered that it was profitable to supply fresh corpses to the Anatomy Schools in Edinburgh, went the further step of ensuring an adequate supply by murdering a series of victims. The Act prohibited the sale of bodies, but made it possible for licensed schools to acquire them by assuming "the reasonable costs associated with the removal, storage and transportation" of human corpses (to use the language of Title III, SEC. 301 (c) (2)). Similar legislation exists in California, and we at the UCLA School of Medicine have had a very successful "Willed Body Program" for a quarter of a century.

The relevance of this history about cadavers to the modern dilemma of inadequate supplies of both cadaveric and living bodily organs is shown by the recent novel (and film) Coma, by Robin Cook. M.D., wherein entrepreneurs much more sophisticated than Burke and Hare have used an identical ethic to move from situations of accidental death to contrived murder in order to meet the market's demand for human organs and tissues in a free economy where every organ had its price.

I am not suggesting that the major aim of Title III is to prevent murder, though it might indeed accomplish that. The moral argument in its favor should, in my opinion, be couched much more positively than that.

The most famous contribution to the question of buying and selling human tissue is that by the sociologist, Richard M. Titmus, The Gift Relationship: From Human Blood to Social Policy (New York: Pantheon Books, 1971). Of all human tissues, blood is the one that a donor replaces most easily and quickly. And yet Titmus mounts powerful arguments against its collection for sale. In 1977, when the controversy between the American Red Cross and the American Association of Blood Banks was building, I organized and moderated a panel discussion, in the series entitled "UCLA Medicine and Society Forum," under the heading Blood for Transfusion: To Give or to Trade? The societal benefits of restricting or prohibiting (as California, in fact, now does) the, buying and selling of blood for transfusion were clearly shown on both utilitarian and deontological principles of what constitutes "the common good." I hope that the phrase .any other human organ Or tissue" in Title III, SEC. 301 (c) (1) implies blood as well as the other tissues specifically mentioned.

Utilitarian arguments against the purchase and sale for profit of human organs and tissues include the increase of risks of transmission of disease and, at a deeper level, the eminent social dangers of exploitation of poor, sick people who might be persuaded (by themselves or others) to further impoverish their lives for the sake of some, immediate and transitory benefit. One remembers only too well those commercial bloodbanks in downtown Los Angeles whose clients would gladly sell their life-blood in exchange for the price of yet another bottle of liquor.

Deontological arguments against "organs for sale" include moral precepts such as respect for persons. It is offensive to make a person's body into a "thing" for purposes of gain, even if the gain appears to be mutual. Though a person may always give freely of himself/herself, that very powerful bond that is developed in a true "gift relationship" is destroyed or aborted when the transaction (in something so intimate as parts of one's own body) becomes contaminated by the exigencies of trade.

It will be objected that if adequate financial recompense is not offered for living organs and tissues the supply of donor organs will continue to be inadequate. I do not believe this, and I notice that HR 4080 does contain (Title 1, SEC. 374 (a) (2)) the seeds of an appropriate resolution of the problem, where it is stated that -The National Center shall conduct a program of public information to inform the public of the need for organ donations." The American public, if properly approached, is the most responsive and most generous public that one has ever known. What I advise is that the bland phraseology of SEC. 374 (a) (2) be reworded to convey the sense of dramatic need in these areas of concern. We need to educate the public about the remarkable social benefits that flow from The Gift Relationship, as spelled out by Titmus. The human species is currently involved in a major paradigmatic shift in social conscious-awareness, away from the rapacious ethic of nineteenth-century "Social Darwinism" into an ethic of caring for our small "Space-Ship Earth" and everyone who is on it or in it.

The Congress of the United States could effect a great advance in this increasing sense of social awareness and social consciousness if HR 4080 insisted more forcefully than does the present draft, on the urgent need for truly effective education of the public about the life-saving techniques that we now have available, provided only that there are enough donors of human organs and tissues to make full use of the skills now available. Top priority should be given to adequate funding of such an educational program.

One final comment on Title III: I hope that the language of SEC. 301 (c) (3) does not imply that human organs or tissues may be bought and sold with impunity within State boundaries. I would hope that any such activities would constitute a Federal offense.

On behalf of the officers and executive council of the American Society of Transplant Physicians, I wish to thank you for this opportunity to give our feelings about this.

Mr. Chairman, the art and science of transplantation have progressed dramatically in the last 10 years. Advances in tissue typing, surgical techniques, immunosuppressive drugs and pre- and post-transplant patient care have allowed success rates in organ transplantation which continue to improve.

This improvement has had the impact of focusing professional and public attention on the field of organ transplantation, in general, and specifically on the supply of donor organs.

Today the supply of cadaveric organs is clearly inadequate to meet the demands of a rapidly improving transplantation technology. For some patients, death may well intervene before a suitable cadaveric donor can be found. It is estimated that only 10 percent or less of all suitable cadaver organs are made available for transplantation.

In an effort to meet this need, a number of new plans and ideas have been put forward. One plan which has received a great deal of publicity and attention proposes allowing unrelated individuals to donate their organs, in this case, one of their kidneys, for a free-market determined price. The argument is made that with the new advances in immunosuppressive drugs, and in particular with the upcoming availability of Cyclosporine, the success of unrelated transplants warrants the retrieval of kidneys from living donors to relieve the scarcity of cadaver organs.

However, in view of many physicians engaged in transplantation, this free-market sale of an individual's organs is morally offensive, and ethically indefensible. It is immoral to offer incentives to undergo permanent physical damage.

The opportunities for coercion of the poor to yield a perfectly matched organ is at once heart-rending and frightening. Many centers have grappled with the ethical considerations implicit in living-related donation, and have come to accept it only because of the high motivation of the donor and the improved success of the recipient.

Neither of these is the case with a purchased kidney from a living, unrelated donor. There is no data to suggest that kidneys taken from living, unrelated donors will function any better, any more quickly or any longer than those from cadaveric grafts.

Even with Cyclosporine and other new immunosuppressives, the success of a kidney transplant is by no means assured, with postoperative complications and side effects being the usual course of events rather than the exception.

It is impossible for physicians to ethically justify removal of kidneys from living, unrelated human beings when we are utilizing only a small fraction of the available cadaveric organs. Efforts must be directed toward procedures which will, bring home to every individual the need and mechanism for allowing themselves or their loved ones to become organ donors. Much of the responsibility for this lies with the medical community. Reluctance to broach the subject of organ donation with next-of-kin at the time of death has been one major impediment to adequate donor retrieval. A number of legislative steps could be envisioned which would improve the situation immensely.

One alternative would be that we in the United States could adopt an anatomical gift act, similar to that one operative in France. There every individual is regarded positively as an organ donor at the time of death unless they or their next-of-kin have indicated otherwise. Such an approach, rather than being a coercion, allows medical personnel to freely and easily approach the next-of-kin about organ donation at the appropriate time without any fear of litigation, either real or, more likely, imagined.

But whatever mechanism is chosen to improve retrieval of cadaveric organs, a success in this endeavor is clearly preferable to a free-market sale of kidneys from the living. The free-market sale concept has been put forward only because medical, governmental and lay communities alike have failed to provide adequate mechanisms to procure cadaver donors and keep pace with improving transplantation technology.

The best answer to the ethically distasteful free-market sale concept is the institution of appropriate policies to assure an adequate supply of cadaver donor organs. The officers and the Executive Council of the ASTP, representing over 500 doctors directly concerned with organ transplantation on a daily basis, very much support the general concept and outline of the National Organ Transplant Act. It clearly addresses many of the problems confronting this area of medicine today.

We wholly and enthusiastically support titles II and III.

In connection with the problem I discussed of organ retrieval, we are pleased that title II exempts organ procurement activities from the medicare DRG prospective cost limits, since these could discourage hospitals from actively pursuing donation of organs.

We support, as well, the medicare and medicaid coverage of organ transplants at specified centers, and absolutely concur with title III, the prohibition of sale of human organs.

We support the general concept and outline of Title I with its national center for organ transplantation and its advisory counsel.

The ASTP will be more than ready to participate in any and all appropriate ways.

With regard to the U.S. transplantation network we are very supportive of the concept. Nationwide sharing of organs may be the only way for an increasing proportion of our patients to ever receive a kidney transplant. However, we would like to suggest that before such a network is formally initiated a study panel of transplantation professionals be convened. This panel should include representatives from the various disciplines and organizations involved in transplantation.

Such a study committee needs to be convened to address the myriad of potential scientific problems which has hampered the formation of such networks in the past.

Mr. Chairman, I wish to thank you for this opportunity for letting us express our views.

President: Charles B. Carpenter, M.D.
Secretary-Treasurer: Lawrence G. Hunsicker, M.D.
President-Elect: Robert B. Ettenger, M.D.
Councillors-at-Large:
    Peter Gailiunas Jr., M.D. (83)
    Nancy E. Goeken, Ph.D. (84)
    John A. Hansen, M.D. (85)

Past President: Ronald D. Guttmann, M.D.

                                        October 7, 1983

To The Editor:

The art and science of transplantation have progressed dramatically in the last ten years. Advances in tissue typing, surgical techniques, immunosuppressive drugs and pre- and post- transplant patient care have allowed success rates in organ replacement which continue to improve. This improvement has had the impact of focusing professional and public attention on the field of organ transplantation in general and specifically on the supply of donor organs.

It appears clear that the supply of donor organs is presently insufficient to permit prompt transplantation for all those who need it. This shortage of organ donors sometimes translates to waiting times measured in years rather than months. Such waiting times are manifestly too long, particularly for patients awaiting liver, heart or heart-lung transplants. For these patients, death may well intervene before a suitable cadaveric donor can be found. Patients awaiting kidney transplantation are not under such severe time constraints, because of the availability of dialysis. Nevertheless, the relatively frequent requirement for a well-matched kidney and the paucity of donor organs often impose inordinate and heartbreaking delays until transplantation can be attempted.

At present there are two sources of donor organs available for transplantation: cadaver donors and family members, i.e. living related donors. The latter obviously can only be donors in a situation where the desired organ is paired , and the removal of one of the organs does not imply permanent disability or death for the donor. Even with kidney donation, however, there are small but real immediate risks of surgery and possible but unknown long-term consequences. As a result, living donation has in the past been restricted to those close relatives whose deep motivation prompts donation to a loved one despite these palpable risks. It has been considered medically ethical to do this because kidneys from living related donors have, by and large, a significantly decreased incidence of immunologic rejection.

Kidneys from dying individuals (termed "cadavers" in medical parlance) represent the major source of organs in most renal transplant programs. The graft and patient outcome in cadaver renal transplantation is not as good as that obtained with living-related transplants. Nevertheless, results with cadaveric kidneys are getting better because of the advances noted above.

Today the supply of cadaveric organs is clearly inadequate to meet the demands of a rapidly improving transplantation technology. It is estimated that only 10% or less of all suitable cadaver organs are made available for transplantation. In an effort to meet this need, a number of new plans and ideas have been put forward. One plan which has received a great deal of publicity and attention proposes allowing unrelated individuals to donate their organs, in this case one of their kidneys, for a "free-market" determined price The argument is made that with the new advances in immunosuppressive drugs, and in particular the upcoming availability of Cyclosporine, the success of unrelated transplants warrants the retrieval of kidneys from living donors to relieve the scarcity of cadaver organs. However, in the view of many physicians engaged in transplantation, this "free-market" sale of an individual’s organs is morally offensive and ethically indefensible. It is immoral to offer incentive to undergo permanent physical damage. The opportunities for coercion of the poor to yield a "perfectly-matched" organ is at once heart-rending and frightening. Many centers have grappled with the ethical consideration implicit in living-related donation and have come to accept it only because of the high motivation of the donor and the improved success of the-recipient. Neither of these is the case with a purchased kidney from a living unrelated donor. There is no data to suggest that kidneys taken from living unrelated donors will function any better, more quickly or longer than cadaveric grafts. Even with cyclosporine and other new immunosuppressives, the success of a kidney transplant is by no means assured, with post-operative complication and side effects being the usual course of events rather than as the exception.

It is impossible for physicians to ethically justify removal of kidneys from living unrelated human beings when we are utilizing only a small fraction of the available cadaveric organs. Efforts must be directed towards procedures which will bring home to every individual the need and mechanism for allowing themselves or loved ones to become organ donors. Much of the responsibility for this lies with the medical community. Reluctance to broach the subject of organ donation with next-of-kin at the time of death has been a major impediment to adequate organ retrieval. A number of legislative steps can be envisioned which would improve this situation. For example, specific wording could be adopted which would guarantee immunity from legal liability for the purpose of approaching family members to discuss organ donations. Alternatively, we in the United States could adopt an anatomical gift act similar to the one operative in France. There, every individual is regarded positively as an organ donor at the time of death unless they or their next-of-kin have indicated otherwise. Such an approach rather than being a coercion, allows medical personnel to freely and easily approach the next-of-kin about organ donation at the appropriate time without fear of litigation, either real or more likely, imagined.

Whatever mechanism is chosen to improve retrieval of cadaveric organs, a success in this endeavor is clearly preferable to a "free-market" sale of kidneys from the living. It may be argued that even today in the United States certain unrelated individuals, such as spouses, have become kidney donors. However, this has been carried out only in rigorously controlled scientific settings and only after an Institutional Review Board (IRB) of the hospital has approved it from a medical ethics standpoint. This is in no way comparable to the proposed "free-market" sale. The "free-market" sale concept has been put forward only because the medical, governmental and lay communities alike have failed to provide adequate mechanisms to procure cadaver donors and keep pace with improving transplantation technology. The best answer to the ethically-distasteful "free-market" sale concept is the institution of appropriate policies to assure an adequate supply of cadaver donor organs.

Charles B. Carpenter, M.D.
Robert B. Ettenger, M,D.
Terry B. Strom, M.D.
American Society of Transplant Physicians

Mr. WAXMAN. Let me thank both of you for the testimony you have given.

Let me review some of the issues that have been raised in this whole question of organ procurement. Cyclosporine A is a new drug that is allowing organ transplants that were once very risky to be successful surgical procedures. We are talking about a whole new breakthrough now in the ability to transplant organs.

Are we finding that with this new technological breakthrough there is a growing gap between those who may want and need an organ transplant and the number of organs that will be available to them? Dr. Ettenger.

Dr. ETTENGER. I think that is probably very true. I think we should not yet overestimate the impact that Cyclosporine will have because, as I indicated in my testimony, it is fraught with problems to learn how to use it correctly.

However, with that caveat, I think that as transplantation does open up, there is an enlarging group of patients that I alluded to, the so-called high antibody patients, those patients who are on dialysis with high levels of antibodies such that finding a compatible transplant becomes a more and more difficult situation, and as we get farther into transplantation and as we notice that these high antibody patients are more than likely those patients who have rejected a first kidney, we find that an increasing number of our patients on dialysis represent these high antibody patients that require a very, very good match. In that situation, even the regional, however active the region is, will often not find a compatible kidney for a number of years, and I think in that situation this speaks to the need of some very much more wide areas of sharing.

Mr. WAXMAN. So we need a broader area of procurement for organs because of the fineness of the match required for the increasing number of high antibody patients.

Doesn't that argue for us to do whatever is going to be necessary to obtain more organs so that people can have the possibility of an organ transplant?

Dr. ETTENGER. Absolutely. It goes without question. Unless we broaden the pool dramatically, then the waiting time for our patients on dialysis is just going to increase. I know that at our own center, the majority, the overwhelming majority, of children awaiting transplants represents these high antibody patients for whom we really need a very, very good match.

Mr. WAXMAN. Well, let me play devil's advocate. We had a Dr. Barry Jacobs testify in Washington. He is an individual who has suggested that he would like to be in the business of brokering kidneys. He thinks that he could pay $10,000 for a kidney and then turn around and sell it for maybe $20,000, and someone would receive $10,000 as an incentive to donate the kidney. He would make a little money on it as well, and there would be a larger pool of organs for transplantation.

Why don't we turn to that kind of buying and selling of organs in order to enlarge the pool so that there will be more organs available to those who need them?

Dr. ETTENGER. I think there are a number of reasons why we do not. No. 1 are the reasons that I alluded to, the ethical reasons, the fact that we are only using less than 10 percent of cadaver organs right now.  [Here, Mr. Waxman or someone else should've jumped in and asked why we shouldn't offer money for cadaver organs.]

No. 2, you think that patients will say, "I will take a kidney from anywhere." In talking with my patients and the parents of my patients, in fact, just talking last week with one. boy who has been waiting 5 years for a kidney, they do not want it. They much more actively respond to the gift, the cadaver donation, et cetera, and not people coming to sell.  [Sure.  Who wants to feel responsible for taking advantage of another human being's need for money in a way which may endanger their life?  But they wouldn't care if the donor's estate had been compensated.]

Mr. WAXMAN. Dr. Towers---oh, excuse me.

Dr. ETTENGER. And I think, No. 3, the situation is that if we abandon the voluntary organizations that we have and the volunteer gifts, the possibility that that will dry up because of the buying and selling may ultimately result in a reduction, an ultimate reduction, in the pool rather than in a further expansion in the pool. [This might result from live organ donor compensation, but never from cadaveric donors.]

Mr. WAXMAN. You think there could be a reduction in the pool because people will not be willing to voluntarily donate their organs because there is a business out there where organs can be bought and sold?

Dr. ETTENGER. I think there certainly is that worry. [Only among the economically illiterate.]

Dr. TOWERS. As I recall in this morning's Los Angeles Times, there was a letter from somebody who said almost precisely that.

Mr. WAXMAN. That was an interesting letter to read. This person indicates he was willing to donate his organs, but then when he heard there may be money involved he wanted to do it only for money.

Dr. TOWERS. Or to opt out.

Mr. WAXMAN. Dr. Towers, you seem to reject the utilitarian arguments as the ethical basis for prohibiting organ sales.

Dr. TOWERS. No, I think that there can be powerful arguments raised on a utilitarian basis against the sale of kidneys because I think the dangers inherent for society generally are very considerable in the buying and selling of organs in terms of the possibility of increased spread of disease, just as with infected blood. For instance, there has been a good deal of evidence, that disease has been spread as a result of people selling their blood who, in fact, did not declare some of the diseases that they suffered from. That might be a possibility.

But I do not think that the utilitarian argument should be the binding argument. I think much stronger are the deontological arguments, that is, the rule-based arguments, which suggest that human beings are not, as you said in your opening statement, like cars, like automobiles, of which parts can be bought and sold. There is something inherently offensive to the human conscience, I think, about treating a fellow human being as a thing. We must treat fellow human beings as persons and not as things, and the buying and selling of parts of human beings makes them into things, and I think that is morally repulsive. [More repulsive than 5,800 people dying each year from lack of replacement organs?]

Now, I do think that there is a new ethic which is growing, an ethic of increased conscious-awareness of our unity as members of a single species, homo sapiens, on the face of the Earth. I think the advent of the space age, the time at which the first astronauts looked back on the Earth and said, "Now, we're coming home," meant not to Houston, Tex., or their apartment. They meant they were coming to Earth, to our home, which has given us a whole new way of looking at the Earth and the need to conserve all of the environment of the Earth.

Now, part of the environment are our fellow human beings. The idea of the gift relationship, of giving something to a fellow human being, is something that cements that bonding, and I think is something to be promoted, by all means at our disposal. [If this isn't socialistic, "New Soviet Man," pie-in-the-sky thinking, I don't know what is!  That type of bonding develops only among blood relatives and close friends.]

Dr. ETTENGER. Thank you.

Dr. TOWERS. Thank you.

Mr. WAXMAN. Our next panel represents a virtual Who's Who in the field of organ transplantation. We have four of California's, if not the Nation's, most prominent and experienced authorities in this emerging area of medicine. Dr. Oscar Salvatierra is from the University of California at San Francisco and is an expert in kidney transplants involving living, related donors. He also serves as president of the American Society of Transplant Surgeons.

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