Organ Sales--Posner's Comment

The case for organ sales argued by Becker is compelling. The shortages, queuing, black market, cumbersome nonmarket allocation schemes, and quality problems that he describes are the classic symptoms of price controls: in this case a zero price limit for the sale of an organ. I have just a few brief thoughts to add. A puzzle is that "opt out" systems, used for example in France, whereby cadaver organs are automatically available for harvesting for transplant purposes unless an individual indicates (for example when receiving his driver’s license) that he doesn't want that, yield a significant increase in donations compared to our "opt in" ystem. The cost of opting out is trivial; why then could a shift from opt in to opt out have any significant effect? Yet the Abadie and Gay study that Becker cites indicates, after correcting for other factors, that an opt out ("presumed consent") system increases cadaver donations by 25 to 30 percent. (In later work, Gay has reduced this estimate.) As the authors point out, however, an increase in cadaver donations would presumably reduce the number of donations from living people, so the net effect on donations is uncertain. As the authors also realize (and attempt to correct for, while recognizing the difficulty of succeeding in the attempt), the adoption of an opt-out system may reflect, rather than cause, a propensity to donate organs. One possible reason the weak default rule appears to have a significant effect is public ignorance. The probability that one's organs will be harvested for use in transplantation must be very slight--so slight that it doesn't pay to think much about whether one wants to participate in such a program. When the consequences of making a "correct" decision are slight, ignorance is rational, and therefore one expects default rules to have their greatest effect on behavior when people are ignorant of the rule and therefore do not try to take advantage of the opportunity to opt out of it. In this regard, it is perhaps significant that the countries with high rates of organ donation tend also to be countries with abnormally high traffic fatalities. Becker mentions that in an effort to minimize the bad effects of the shortage of organs for transplantation, the U.S. government has given priority to the patients who would benefit from the transplant the most, as determined by medical personnel. This is an ambiguous and questionable criterion. The patient who is deemed to benefit the most from a transplant might be someone who was in such poor health that the transplant would merely prolong his life by a few months, whereas another patient, who was in better health, might gain added years from a transplant but without one would die soon--sooner than the unhealty patient, who might therefore be thought the one who would benefit the most from the transplant. The legal ban on the sale of organs is part of a broader social policy of limiting "commodification," or propertization, of many valuable goods and services: or in other words of limiting the scope of the free market. Among such limitations that command essentially universal assent in our society: people may not agree to engage in gladiatorial contests in which they fight for the death, to sell themselves into slavery, to agree to have their knees broken if they default on a loan, to buy certain mind-altering drugs, to buy or sell sex, or to sell their parental rights. The grounds that are offered for these various limitations on the free market often have a certain plausibility, but do not seem adequate to explain the revulsion that the idea of the prohibited transactions arouse in most people. The transactions may have third-party effects or be the product of ignorance, shortsightedness, or lack of self-control, but this is true of many transactions that are permitted, such as drinking alcohol and gambling. It seems that the prohibited transactions are prohibited because they are highly offensive to nonparticipants; why they are highly offensive remains to be explained. One form of organ commodification that remains to be considered is an enforceable contract to bequeath one's organs upon death to an organ depositary. Then the donor would receive money up front without having to give up his organ until death. The price would undoubtedly be low. The problem is enforcement: there would need to be a mechanism by which to inform the depositary promptly of the donor's death. But this problem should not be insuperable; the name and address of the depositary could be indicated on the donor's driver's license or (together with the donor's name) on some central registry to which police and paramedics would have access. Moreover, the existence of such a depositary is probably presumed by any market system in organs; one would not expect the patient to be negotiating directly with a potential donor, rather than dealing with an intermediary.

Comments

[Richard Mason]

I have known people who would not opt-in to donate their organs because of the fear that doctors would be marginally more willing to pronounce them dead and harvest their organs, rather than exerting every last effort to resuscitate them.

On the other hand, under the current system, donating one's organs after death is seen as a selfless and generous act which helps others with no tangible return to the donor.

I think this may be an adequate explanation of the difference between opt-in and opt-out systems. People weighing a small selfish fear against the desire to be seen as socially-minded are not willing to opt-out and advertise themselves as unusually selfish, but neither are they willing to be selfless if selfishness is the default (and therefore assumed socially acceptable).

[Marvin]

Any lazy guy like me can immediately see why opt out works better than opt in. I don't have any desire to fill in DMV supplied donor cards and even thinking about organ donation issues with connection to my persona makes me feel funny. So I am not going to fill in anything either for or against donation. Now you can see what a difference opt out would make in my case :-)

As for indignation we feel about certain issues despite the fact that there is no objective reason to dislike them, the effect is long known. It makes a good demonstration of the fact that our moral sense is not derived from any rational "calculus"

[J Kee]

Organ donation may become obsolete in the near future as new technologies provide for organ generation in the lab. The problems of limited supply, damaged transplant organs and rejection of the transplanted organ could be eliminated.

That said, the problematic question of patient allocation probably would be addressed in a more efficient manner by a market-driven system. Not necessarily more fairly, but more efficient economically. The "poor health" patient who could afford to pay more than the "good health" patient is placing a higher premium on the marginal increase of their lifespan than the greater accrual afforded to the latter. Organs from younger, healthier donors could command a premium, etc.

[Justin Domke]

I would like to suggest an alternative to the literal sale of organs. Namely, people should be able to enter into an enforceable contract to donate their organs in the event of an accidental death. In exchange for this, these people should receive preferential access to others' organs, should they acquire such a medical problem requiring a donated organ in the future.

I believe this avoids the 'cheapening' effect of a sale of organs. It seems that many current altruistic donors (myself included, though I realize it is irrational) would be less likely to donate in return for money, but not in exchange for such access. Meanwhile, non-donors are given a very strong incentive to sign up.

I am aware there are certain problems with my suggestion. First, people are likely to sign up later in life, when they are more likely to need organs, and less likely to donate them. Nevertheless, it is possible that such a system might produce such an abundance of donors as to overcome these problems, and perhaps even provide enough organs for non-participants.

I would be interested if anyone knows the answer to the following question: What fraction of the population would need to 'opt in' to donation to provide sufficient organs for all those waiting in line?

[David J. Undis]

Presumed consent is not likely to reduce the organ shortage in the United States. Legislative action is needed to implement it, and that action is very unlikely given widespread opposition to presumed consent.

A better way to reduce the organ shortage is to change the organ allocation system -- allocate organs first to registered organ donors. This would create an incentive to donate. If transplants were available only to registered organ donors, then just about everybody would register.

The United Network for Organ Sharing, which runs the organ allocation system in the United States, has the authority to make this change. They've so far chosen not to use that authority.

Individuals who want their organs to go to other registered organ donors can join LifeSharers. LifeSharers is a non-profit network of organ donors. Members agree to offer their organs first to fellow members when they die. They accomplish this using a form of direction donation that is legal in all 50 states and under federal law.

Membership in LifeSharers is free and available to all at http://www.lifesharers.org. Parents can enroll their minor children.

[David J. Undis]

This is in response to Justin Domke's post above.

First, your suggestion has been implemented by LifeSharers. See my post above.

Second, you asked "What fraction of the population would need to 'opt in' to donation to provide sufficient organs for all those waiting in line?"

Currently, about 50% of transplantable organs (from recently deceased people) are donated. The rest are buried or cremated. This amounts to about 20,000 transplantable organs being thrown away every year. Compare this to the current waiting list of 90,000 people.

Dr. Thomas Peters, Chief of the Department of Surgery at University of Florida in Jacksonville, has estimated that if the consent rate for suitable/potential cadaveric donors was raised to 85% then the waiting list could be transplanted in 2-3 years and newly listed patients could be transplanted far more promtply thereafter.

[Richard Mason]

[P]eople may not agree to engage in gladiatorial contests in which they fight for the death, to sell themselves into slavery, to agree to have their knees broken if they default on a loan [...] It seems that the prohibited transactions are prohibited because they are highly offensive to nonparticipants

These prohibitions seem to me to be akin to collective bargaining. If some employees agree to work under very onerous conditions, they weaken the bargaining position of other employees who hoped to negotiate better conditions. Therefore the latter exert social pressure, creating unions and labor laws to discourage anyone from accepting a too-onerous bargain.

Similarly, the mass of people who may one day borrow money are opposed to anyone agreeing to have their legs broken by loan sharks. By passing laws to limit the enforcement capability of lenders, we prevent high-risk borrowers from getting any loans but reduce the interest rates on our own lower-risk loans.

[Sha_kri]

Opt in is the proper system. Opt-out goes against everything this country was founded on. Just as one is presumed innocent in a trial, one must recognize the traditional burial rites associated with death (ie property rights). There are after all religious objections to donating body parts.

"It seems that the prohibited transactions are prohibited because they are highly offensive to nonparticipants; why they are highly offensive remains to be explained."

In my experience, material harm is treated much different in our society than immaterial harm. For example, if I default on a bank loan, I can loose all kinds of immaterial things with no limit and society would say I deserved it. However, if I received punishment of having my legs broken, it would receive national attention (esp. now with national news). I, and I can confidently say many others, would choose to have my legs broken and keep my house than to lose it.

[W]

Compulsory organ donation would be a good punishment for any number of crimes.

[emily]

After reading the article, I must say something should be done....really fast.

[Adriana]

Sha_kri posted above "Opt in is the proper system. Opt-out goes against everything this country was founded on."

Georgia has an opt-out statute for corneas. O.C.G.A. 31-23-6. The opt out statute was passed by the General Assembly in the 1970s. See Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60 (Ga. 1985). When we discussed organ transplants in Biotech law this past semester , we were all shocked that GA had an opt out for corneas.

At first blush it does seem that allowing people to sell their organs seems unethical-- we'd all like to think that we are altruistic enough to donate them to those who need them. But data shows that its not true. In some cases, I think it would be fine to sell your organs. For organs like kidneys (where you have two) and livers (which you can regenerate), it seems that there should be a free market. In our class we read a law review article (Jack Kress, Xenotransplantation: Ethics and Economics, 53 Food Drug L.J. 353), the author pointed out that everyone but the donor gets compensated. The doctors and nurses get paid for performing the transplant and the patient gets the gift of life. So why shouldn't the donor? Apparently, its illegal to compensate them for their pain and suffering too.

Also, a free market for human organs is not the only way to solve the shortage problem. Animal to human transplants (xenotransplantation) is an alternative. Remember Baby Fae in the 80s? She died several days later but more research into xenotransplantation might yield results. Also, there are artifical organs. More research in those two areas may yield results and avoid the ethical dilemnas raised by a free market in human organs. However, a whole a new can of worms is opened with xenotransplantation. Animal rights activists would certainly protest about the rights of animals.

[logicnazi]

In becker's blog I suggested the following solution. Since it has some similarities with your statements let me summarize it here.

Basically I think there are dangers involved in exchanging money for organs and even if we ban their explicit sale if money is changing hands between hospitals there is the danger of corruption. Also there are dangers in letting people sign contracts with private organizations for organ donations, e.g., company X shows up after grandma dies and says she signed this donation contract that no one knew about. Finally I think there needs to be some way for an individual to override the interests of their family. Avoid donating even if all their relatives want them to donate and vice versa.

All of these considerations together suggest we need a national database of registered donors. In order to properly incentivize organ donation we can simply have a form on your tax return which gives you some sort of tax credit but puts your name on the donation list for the coming year irrevocably. This way the entire harvesting and transplant system can stay clean of money and be the least disrupted while getting enough organs.

If this is implemented in a revenue neutral way it effectively just amounts to a transfer from non-donators to donators which is perfectly fine with me. The people who really care about not donating organs can pay not to donate. Also if one is concerned about undue impact on the poor you could simply adjust the credit to be a percent rather than a flat amount.

Basically it seems to me there is no reason to risk the dangers of a market in organs when just a little government involvment can nicely provide enough organs.

[Sha_kri]

I take the position, from my experience, that the majority of people are inherently corrupt or corruptable. The free market makes it harder for corruption to exist so I do not see how you can say that government regulations/beaurocracy/etc. will make things less corrupt.

[albatross]

logicnazi:

Well, I'm sure glad there's no money changing hands in the system we have now. All those doctors and nurses working for free, the patients and their insurance companies not paying a dime, the hospitals lending the whole altruistic exercise operating room space and support at no cost, it's enough to bring tears to the eyes. Because you know, if there were money changing hands, the whole system would turn corrupt.

[Sha_kri]

You may be correct now as the system is very small right now. After it gets bigger (more organs being harvested/etc) and someone makes a statement like that, I would say that person is blind.

[Bernard Yomtov]

The grounds that are offered for these various limitations on the free market often have a certain plausibility, but do not seem adequate to explain the revulsion that the idea of the prohibited transactions arouse in most people. The transactions may have third-party effects or be the product of ignorance, shortsightedness, or lack of self-control, but this is true of many transactions that are permitted, such as drinking alcohol and gambling. It seems that the prohibited transactions are prohibited because they are highly offensive to nonparticipants; why they are highly offensive remains to be explained.

I think that the reason many transactions are rightly prohibited is that they are so offensive that we cannot imagine that they are, in fact, the sort of voluntary (externality-free) transactions that we ought not interfere with. In other words, it is foolish to think that all transactions can be viewed in isolation, cut off from the social context in which they take place. Coercion can take many forms other than a literal gun to the head.

[Bernard Yomtov]

The "poor health" patient who could afford to pay more than the "good health" patient is placing a higher premium on the marginal increase of their lifespan than the greater accrual afforded to the latter.

No doubt. That couldn't have anything to do with the possibility that the "poor health" bidder is wealthier than the "good health" bidder, could it? Are you now going to claim that the wealthier patient must have earned his wealth, created jobs, etc.?

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[Jodi]

As a physician, I found this line interesting in your post:

"As the authors point out, however, an increase in cadaver donations would presumably reduce the number of donations from living people, so the net effect on donations is uncertain."

While the effect on the number of organs may be uncertain (let's say there is zero change overall in mortality because the number of organs available remains exactly the same, although I believe there would be an increase in the number of available organs), I would argue that obtaining cadaver organs is much preferred to obtaining living donor organs because of the inevitable decline in morbidity. I recognize that your point regards numbers, but if an opt-in system could reduce the number of living people having to donate organs by making more cadaver organs available, wouldn't this be preferable to the situation that exists at present?

[logicnazi]

Perhaps I did not speak preciscely enough. Yes of course there is money which is exchanged for the transplant *operation*, to pay nurses and doctor's salaries now. What is significant, however, is that no money is exchanged for the actual organs.

Why is this important? Because as soon as you start exchanging money for organs you effectively create a market and a market price for organs. As another commenter pointed out (in criticism of me I think) people are inherintly corruptable and once institutions can make money from organs there is the risk that someone will subvert the system and start delivering organs from unpalatable sources.

In particular the scenario I worry about is this. Hospitals or some other group starts getting paid for organs. Then some hospital starts having financial troubles or someone sets up a scheme to embezle funds and someone starts buying organs on the black market with all the attendent dangers.

Basically I think by operating tax deductions for agreeing to donate directly by the government we can prevent *any* exchange of money for organs, even in a limited hospital to hospital market. By doing this we substantially decrease the possibility or size of a black market in organs.

Still, one might ask why we want to restrict a market in organs at all? If we allowed a fully open market in organs there wouldn't be any black market. While I'm generally a great believer in free markets organs are a very particular sort of commodity. Except for a few organs like kidneys most organs are only availible for sale after death (if death donations in such a program aren't enough for kidneys and such then perhaps an open market should be considered). Hence paying people for organs on their death for most organs captures *all* acceptable donations. Additionally they have a very specific and time sensative usage which already requires something like government overhead.

Since organs must be transplanted quickly amid the confusion of a loved one's death the only way to sort out organ donation status safely and effectively in this period of time is to have a national database. You can't have competition here because no one knows what hospital they will die in and the hospitals would just waste resources checking many competing databases. In other words there needs to be a unique standardized organ donation database, a classical government function. Now once we have that overhead no more is lost by having the government also do the payments for agreeing to donate organs. The additional loss of efficency and waste is likely to be small since all the overhead to administer the program must be in place no matter what. Since it has all the benefits of a market in organs (modulo living transplants e.g. kidneys) while minimizing the danger of a black market it seems a preferable solution to me.

[N.E.Hatfield]

From a purely economic standpoint, the acquisition, transport, and sale of human organs and tissue could probably benfit from a "market" approach. But, we are not dealing with chicken livers in the Deli case or slabs of beef in the Butcher shop. There is the dignity of humanity not only in life but in death as well that must also be taken into consideration. The Ancients once considered it a sacrilige and heinous crime not to provide a dignified approach to the handling and care of the dead or the remains. In some parts of the World it still exists. There is more to life than just straight economics or science.

How do you feel about having your liver set out for sale in the "Deli case" or your carcass hung up in the "Butcher shop".

[albatross]

NE Hatfield:

If I'm allowed to donate my organs, either after death or surgically today, then it's hard to see why I can't get paid for it. What business of yours is it to get in the middle of such a transaction and say "stop, you're squicking me out?"

The idea of selling organs is kind of yucky. But I guess I don't see how it's worse than the idea of lots of people dying on the organ transplant list, or living out their days doing the three-day-a-week dialysis routine.

Allowing this kind of sale intelligently would require some work, and I can imagine ways things could go badly. But it's important to notice that what we have now is a long way from perfect.

[Gregory R. Curley]

American social aversion to a market may have a function independent of any rationalistic and unprovable "moral sense."

The 30 year treasury bond is never rated. The bellwether bond is the instrument against which all other bonds are measured. It's quality, though admittedly not it's price, is held as above questioning in the bond market.

Life is a clearly measurable "good", possession of life is protected and preserved, loss of it is avoided at all cost. Rational actors invest in medical care to preserve the quality of life as measured by health. Our laws, despite some notable exceptions, are in general loathe to assign value to life or to compare one life to another.

If you will forgive a thin analogy: Human life is the "bellwether" measurement of our social system. Like the 30 year bond, people are loathe to judge the quality of human life. The 30 year as an unjudged commodity is important to the system as it provides a measure for success in the system. Our reluctance to comodify the human body may result from an unexpressed or near instinctual fear that putting a price on what is now "Priceless" could throw all manner of measures into doubt.

Logic tells us that this slippery slope can be avoided. However this fear is not entirely irrational. Despite the reasonable arguments for an organ market, It is no more irrational to disallow the practice then is the decision not to grade the 30 year bond. A society whose currency is based on a dirty float, and whose Federal bonds are considered worthwhile despite massive federal debit, must have some understanding that sometimes a commodity is worth "what we say it is." A dollar is a worth a dollar because we all agree it's worth a dollar.

Commodities can be seized. Commodities can be regulated. Commodities can be devalued if their quality is judged as lacking. If keeping organs unvalued supports the social agreement to value human life, and if holding human life as priceless are elements of how a society has agreed to conduct itself; then the decision to disallow an organ sales is rational.American social aversion to a market may have a function independent of any rationalistic and unprovable "moral sense."

The 30 year treasury bond is never rated. The bellwether bond is the instrument against which all other bonds are measured. It's quality, though admittedly not it's price, is held as above questioning in the bond market.

Life is a clearly measurable "good", possession of life is protected and preserved, loss of it is avoided at all cost. Rational actors invest in medical care to preserve the quality of life as measured by health. Our laws, despite some notable exceptions, are in general loathe to assign value to life or to compare one life to another.

If you will forgive a thin analogy: Human life is the "bellwether" measurement of our social system. Like the 30 year bond, people are loathe to judge the quality of human life. The 30 year as an unjudged commodity is important to the system as it provides a measure for success in the system. Our reluctance to comodify the human body may result from an unexpressed or near instinctual fear that putting a price on what is now "Priceless" could throw all manner of measures into doubt.

Logic tells us that this slippery slope can be avoided. However this fear is not entirely irrational. Despite the reasonable arguments for an organ market, It is no more irrational to disallow the practice then is the decision not to grade the 30 year bond. A society whose currency is based on a dirty float, and whose Federal bonds are considered worthwhile despite massive federal debit, must have some understanding that sometimes a commodity is worth "what we say it is." A dollar is a worth a dollar because we all agree it's worth a dollar.

Commodities can be seized. Commodities can be regulated. Commodities can be devalued if their quality is judged as lacking. If keeping organs unvalued supports the social agreement to value human life, and if holding human life as priceless are elements of how a society has agreed to conduct itself; then the decision to disallow an organ sales is rational.

[N.E.Hatfield]

Albatross, "... you're squicking me out?" Doesn't squick me out at all. I payed for part of my college education by pithing frogs and the like for the BioLabs. There are some issues that are transcendant such as "respect" and "dignitas". Even when it comes to frogs.

[Bernard Yomtov]

A number of comments have noted religious objections to organ donation, and I am sure these exist.

However, any religion that objects to organ donation, indeed any religion that does not encourage it, ought to be regarded as having no moral authority whatsoever.

There is simply no sensible moral objection to becoming an organ donor, an act which does no harm, and may do a huge amount of good.

Why raise this point in this discussion? Because if religious leaders actively encouraged donation there might well be no need to talk of markets in organs.