Payment for Kidneys: The Case for Repealing Prohibition
If we oppose permitting the sale of kidneys because we think it is too dangerous, then we should also oppose live kidney donations. But we don’t oppose live kidney donations because we realize that the risks are acceptably low and that they’re well worth taking in order to save lives. So it is inconsistent of us to oppose selling kidneys because of the possible dangers while at the same time endorsing The Good Donor Claim. Similarly, if we oppose kidney sales because we think people should not
sell body parts, then we should also oppose commercial blood banks. But we do not oppose blood banks because
we realize that they play a big role in saving lives. So it is inconsistent of us to oppose selling kidneys because it
involves payment while at the same time endorsing The Sale of Tissue Claim.
The considerable emotional resistance to permitting kidney sales may be based on a combination of distaste
for payment and worry about risk. But if neither of these concerns on its own constitutes defensible grounds for
opposing payment, then it seems unlikely that the two of them together will do so.
Read on.......
Michael B. Gill, Ph.D. and Robert M. Sade, M.D.
Human kidneys for sale
New Bellybutton Harvesting Technique May Fall In Wrong Hands
The Organ Procurement and Transplantation Network (OPTN)
Doctors Weigh Ethical Question of Organ Sales
Filipino kidneys cheapest in world black market, says NGO
Kidney Sales Brisk On India's Black Market
Poor Pakistanis Sell Kidneys to Rich Foreigners
Legal kidney sales to fight black market
Kidney Shortage Inspires A Radical Idea: Organ Sales
Kidney Thievery in India
Tracking the Sale of a Kidney on a Path of Poverty and Hope
Doctor Proposes Sales of Kidneys
FEATURE-Calls for kidney market as transplant demand soars
Organs Watch
World: The Risks, Benefits Of A Free Market In Organs
India: A Pound of Flesh - Selling kidneys to survive
The World Can Benefit From Legalization of Kidney Sales
Philippine health chief approves order to eradicate black market in kidneys
Philippine health chief approves order to eradicate black market in kidneys
Australia 'should legalise' kidney sales
The Ethics of Organ Sales and Donations: A Global Perspective
Sarah Hench and Jenny Zartman
Improvements in medical science have led to enormous advances in sustaining human life. For some patients, this possibility manifests itself as a new, healthy organ. Although many organs may be transplanted, the greatest demand exists for kidneys. The kidney is “the only major organ that can be wholly harvested from a living person” without necessarily inflicting debilitating harm on the donor (Finkel), hence “commodified kidneys are today the primary currency…in global organ sales” (Delmonico 690). Black market kidney sales have demonstrated that medical advances and the hope they offer do not value each person’s well-being equally, and kidney sales are an issue of poverty and exploitation. While the medical community generally condemns the sale of kidneys, tacit acceptance of the organ trade shapes the course of the effort to save lives by relieving the severe shortage of organs.
Since the first live donor kidney transplant in 1954, the procedure has become markedly safer and easier. Originally, a successful transplant required the donor to be an HLA (human leukocyte antigen)-matched family member; however, after the development of immunosuppressant drugs such as cyclosporine, virtually anyone could donate a kidney (Delmonico 690-691; Scheper-Hughes 53). Effective drugs have lessened the chance that one’s body will reject a transplanted organ, but they have not ameliorated shortages. During the 1990s, demand for healthy organs grew five times as fast as supply in the United States (Finkel). In 2001, there were 48,693 patients on kidney waiting lists in the U.S. alone, and 2,583 Americans and an estimated 50,000 people worldwide died while awaiting a kidney transplant in 2000 (Finkel). By 2010, the average wait for a kidney will likely exceed ten years (Fein).
Complicated social factors have kept waiting lists long and cadaver organ supply low, contributing to the global kidney shortage. Waiting lists will only continue to grow because various transplant centers have begun to extend eligibility to “populations of previously excluded patients…elderly…difficult to match…HIV seropositive…patients” (Scheper-Hughes 49-50). Also, a religious belief shared by Jews and Muslims that the body must receive an intact burial restricts the supply of cadaver organs in many nations. This religious mandate does not proscribe adherents of these faiths from receiving a donated organ. Demand for organs in the Middle East is therefore high, while the supply of cadaver organs is virtually nonexistent (Delmonico 692). In this desperate situation, live donors are an attractive option.
Live donors not only offer an additional way to expand the supply of organs, but they are preferred by organ recipients. The average life span of a live donor’s kidney does exceed that of a cadaver kidney by more than nine years; however, subjective factors also influence the desire for live donors (Finkel). Many people around the world would not accept a cadaver organ, viewing cadaver organs as worthless, disgusting, and nearly dead. A Brazilian nephrologist stated that most of his patients “would refuse to consider an organ from an ‘anonymous’ dead person” (Scheper-Hughes 52). Preferences for live donors have shaped the current dynamic of kidney sales, and have fostered “the formation of an economic underclass of organ donors throughout the world to serve the wealthy” (Delmonico 694).
For the most part, the supply of living donors comes from developing nations, where desperately needed money seems to offer an escape route from a harsh existence. India, Iraq, the Philippines, Turkey, the countries of Eastern Europe, and the countries of Latin America and South America are all significant sources of sellers. The resulting distribution of organs “follows established routes of capital: from South to North, from Third to First World, from poor to rich, from black to brown to white, and from female to male recipients” (Delmonico 691). The transplant surgery may take place in a nation containing a glut of potential live donors, or both donor and recipient may travel to another country on a transplant tourism package (Scheper-Hughes 47). Even the United States may serve as the site of the operation (Delmonico 692; Finkel). In the U.S., there are regulated waiting lists for cadaver organs, but “there is no national surveillance of living kidney donation” (Scheper-Hughes 48).
Economic rhetoric presents regulated kidney sale as a mutually beneficial exchange, a free choice to accept money for a kidney as a means of bettering one’s financial situation. An article in The Lancet stated: “we cannot improve matters by removing the best option that poverty has left…the poor should be allowed to assume the [minimal] risk of selling a kidney for greater rewards…extricating themselves from poverty and debt” (Rothman, “Consequences” 1640). Justifications for a market in kidneys repeatedly stress the themes of economic benefit for sellers and the lack of long-term health consequences after the removal. Dr. Michael Friedlaender, advocating a regulated market in kidneys, relies on six donor follow-up studies that did not reveal increased mortality to support his assertion that “medically…there is no evidence to show that donating a kidney endangers a person’s health in any significant way” (Finkel). A 2002 Journal of the American Medical Association study casts doubt on the premises of health and economic gain.
The study, conducted in Chennai, India, found that the average seller received $1070 for his/her kidney (Goyal 1589). This figure may be comparatively high, since kidneys in Baghdad sell for around $500 (Kandela). In some nations, there is a surplus of willing sellers, producing bargain prices for buyers. “Sellers in India and Iraq literally line up at hospitals, often willing to part with a kidney for less than $1000” (Finkel). While these amounts of money are often far greater than an average annual salary in these countries, the monetary gain is highly unlikely to permanently rescue a seller from poverty and debt burdens (Finkel). Out of 305 kidney sellers in Chennai, one third experienced a decline in average annual family income after the sale. Also, “the percentage of participants below the poverty line increased from 54% to 71%” (Goyal 1591). The JAMA study posits that “a diminished ability to perform physical labor may explain the observed worsening of economic status” (Goyal 1592). The study also demonstrates the true health effects of kidney sales.
Those who espouse the rhetoric of donor safety often hold inconsistent opinions. Many recipients assert that the operation is perfectly safe for the donor and then make the contradictory assertion that they chose to buy an organ so that a relative would not have to undergo the risks of donation (Scheper-Hughes 54). In fact, selling a kidney can have a considerable negative impact on a person’s health. Without exception, studies to the contrary were conducted in wealthy nations, rendering them arguably inapplicable to the majority of international kidney sales. Sellers living in impoverished areas face “greater-than-average threats to their health, including poor diets, low-quality drinking water and increased risk of infectious disease, all of which can compromise the remaining kidney” (Finkel). In the aforementioned JAMA study, many Indian sellers experienced complications. 50% of participants claimed persistent pain at the site of the nephrectomy and 33% complained of chronic back pain (Goyal 1591). These results likely apply to many kidney sellers living in substandard conditions. In Moldova, male kidney sellers stated that they could no longer perform heavy agricultural or construction work, the only jobs available for their skills and backgrounds (Delmonico 695). In spite of this vulnerability, kidney sellers are unlikely to receive follow-up care. A transplant surgeon in Brazil, when asked if he provided follow-up procedures for donors, responded: “Of course not. They are not patients. They are healthy people just like a woman who gives birth” (Scheper-Hughes 55).
In contrast, kidney recipients receive quality follow-up care with few questions asked about the source of their new organ (Finkel).
Complicated issues of community dynamics and debt bondage are inextricably connected to organ sales. As an area becomes a burgeoning source of kidney donors, recruitment tactics become more aggressive. At the same time, creditors become more aggressive in demanding repayment of loans, pushing more people to sell a kidney. The option of organ sale begins to seem attractive, even necessary. This cycle leads to the conclusion that a “market in organs is not neutral but self-reinforcing” (Rothman, “Consequences” 1640). Old forms of debt bondage combined with the new market for kidneys have created “veritable ‘kidney belts’ in the South of India” (Delmonico 692). The self-reinforcing nature of the sales and their connection to debt bondage cast doubt on the role of free choice in the kidney market; however, greater liberalization of the organ trade continues to be an international trend in spite of these concerns.
The evolution of public opinion favors applying market principles to human organs. In 1999, a Canadian survey showed that “in response to a particular case study, more than 70 per cent of the general public, but less than thirty per cent of health care professionals, said that they would support kidney sale” (Wilkinson 104). Even the World Medical Association has become more open to the idea of connecting organs to finance. Although the WMA condemns the sale of organs in both its 1984 and 1995 statements, the 1995 statement includes the statement that “reasonable reimbursement of expenses...is permissible” (Wilkinson 105).
Among populations of kidney sellers, economic imperatives have altered public opinion, stimulating acceptance of the proposition that one of the kidneys is merely an unnecessary spare. In many communities in Brazil, “the language of the normal, the routine, and the natural replaced earlier sentiments…of horror at the thought of self-mutilation and dismemberment in the name of medicine.” Recipients also claim that kidney transplants involving sale are healthy and natural (Scheper-Hughes 52). Legislation reflects public opinion, and laws against the sale of organs are often lenient. Some nations have legal loopholes, whereas others fail to enforce existing laws.
The sale of human organs is illegal in virtually every country, yet black market organ sales are common in many parts of the world. Since organ sale is illegal, impoverished donors have no legal recourse when the recipient fails to compensate them for their organ, even if a contract is signed. Kuwaiti laws in particular are very circular in their logic, and the center of this circle is a gigantic hole. Since organ trafficking is illegal, then all contracts entered into are null and void; all money and “goods” (organs) must be returned to the original parties. However, since the organ cannot be returned, the recipient must reimburse the donor somehow, so he pays reparation fees to the donor (Rothman, “Commerce”). No other “penalties” for either donor or recipient exist. Iran has legalized organ sales and regulates exchanges through an organ bank (“Iranians”).
One begins to wonder, who is actually benefiting from the organ trade? If the poor who are coerced into selling a kidney are receiving between $500 and $2500, depending on the country, and the recipients are paying $200,000 to $300,000 for these procedures, then where is the money going (Friedlaender, Harris, Boyes)? The doctors are obviously getting a cut, as is the hospital, but a vast percentage of this money must be going to the middleman who arranged the surgery. Not only does some of this money go to the brokers who actually arranged the transaction, but even to the person responsible for introducing the seller to broker; the neighbor of one seller reportedly earned a commission of some $300 per recruited seller (“Kidneys”). By and large, it is more financially and medically advisable to be in the kidney business rather than actually sell a kidney.
Economist David Kaserman feels that the organ shortage should be discussed purely as a matter of economics, ignoring all human variation. Dr. Kaserman says:
A lifting of the legal ban on cadaveric organ purchases and sales … would allow markets to form and organ prices to rise to their equilibrium, market-clearing levels. …the types of behavior and price levels that frequently accompany black market sales tend to disappear when trade is legalized (Kaserman).
Essentially, Kaserman asserts that many of the claims criticizing organ trafficking would not be issues if organ sales were legalized. For instance, the poor would not be disproportionately selling but not receiving; instead, government regulation of prices and practices would insure that the organs bought and sold were evenly distributed (Kaserman).
The possibility of organ sales in the United States was almost reality in Virginia for six months in 1983. H. Barry Jacobs established International Kidney Exchange Ltd., a brokerage firm for kidney sales that would pay up to $10,000 for a kidney from practically anywhere in the world (Harris). The recipient of the kidney would pay all expenses, including a $2,000-$5,000 brokerage fee (Harris). When asked if money was the only incentive that would motivate people, Jacobs reportedly replied, “It is not the only incentive, but it is the only one that is going to make a difference,” (Kyriazi). Regarding his compensation, Jacobs also stated:
…if the person, the recipient, not the donor, if the recipient could afford, without indigence - there will be a sliding scale brokerage fee that would cover the cost we would incur. Then what would be left from the brokerage fee would be used to advance the cost to those who couldn't afford it so they could purchase a kidney, go back to work, reimburse the fund, which would then have the money available for the next person downstream. I hope the Government can take it over and do it on their own. I don't want to do it. Something has to be done about it… (Kyriazi).
The following year, the United States legislature passed the 1984 National Organ Transplant Act, banning trafficking of human organs. According to this legislation, it is illegal for “any person to knowingly acquire, receive or otherwise transfer any human organ for valuable consideration for use in human transplantation.” Offenders of this law are punishable by a maximum fine of $50,000 and a maximum prison sentence of five years (“Organ Selling”).
Ignoring legalization of the organ trade, there are other possible solutions to the organ shortage that have some degree of merit, including financial incentives to families of cadaveric donors, utilizing ideas of presumed consent, and introducing organ exchange programs. In 1999, Pennsylvania passed a law stating that the families of cadaveric organ donors would have three hundred dollars of state funds transferred to the funeral home of their choice (Ubel). Currently on the table is a suggestion that the money instead go to the family to pay for their personal expenses surrounding the donation, such as travel or hotel (Ubel). Some argue that providing financial incentives cheapens this previously-altruistic act of giving life. Others rebut this with the idea that perhaps the money in itself makes it more altruistic when families refuse to accept any rewards. Still others argue that providing financial incentives may push some families to end life-support measures that perhaps would not otherwise.
Presumed, or legislative, consent laws work by assuming that everyone wishes to donate their organs unless they put themselves on a national database that registers their dissent. Currently, such legislation in the United States applies only to eyes and eye parts and then only in a few states; however, such legislation is widespread in other countries, including Singapore and the majority of Europe (excluding Germany, the United Kingdom, the Netherlands, and a few Eastern European countries) (Goodwin, presumedconsent.org). Some arguments exist against presumed consent, including the argument that even the family is not allowed to deny consent for organ donation if the name is not in the database in some countries with stricter legislation (Goodwin). Opponents of presumed consent also argue that the policy violates the first amendment right to freedom of religion and the fourteenth amendment right to due process and equal protection. One recent concern is exemplified in the case of young Carlos M. Gudino, who was murdered in Los Angeles; on the morning following his death, his family went to the coroner’s to request that their son’s corneas not be donated per the presumed consent legislation, but it was too late (Goodwin). Unfortunately, the tissue must be harvested within three to six hours after death, which does not allow much time to obtain familial consent when required by law and no information is available in the medical record (Goodwin).
Clearly, the groups that would make up the largest percentage of cornea and eye donors through presumed consent are the groups whose bodies are most frequently sent to the coroner or medical examiner (i.e. those that most frequently die violent deaths or due to trauma). The fear here is that the majority of donations would be made by non-white groups. A study conducted in Los Angeles showed that homicide investigations account for seventy-two percent of autopsies, and that “trauma-induced” deaths accounted for the next largest percentile, at sixteen percent (Goodwin). Blacks and Latinos accounted for eighty percent of autopsies and, thus, eighty percent of compulsory tissue donors were non-white. This number is quite disproportionate; the 2000 California census found the non-white population to be slightly over half (Race).
In contrast to organ sales, organ exchange programs work almost exclusively with live donors to barter with the organs themselves (Race). The program pairs two people, A and B, off the kidney waiting list (Race). Since neither patient’s family is respectively compatible, B is given an organ from A’s family member and likewise from B’s family to A (Race). Another type of this barter in kidneys is a more indirect exchange; C’s friend donates a kidney to a complete stranger at the top of the waiting list in exchange for boosting C close to the top (Race).
One frequently ignored possibility is that of increasing public awareness of the need for organs through education; however, studies regarding this approach stress that it may not make a substantial difference. One five-year study conducted at Case Western Reserve University and the University of Pittsburgh found that the timing of the information about organ donation made the biggest difference; families who were continually informed of the patient’s condition or any changes and who received organ donation information at appropriate times were five times more likely to donate (Holmes).
In conclusion, the organ crisis is acute, and there seem to be no easy solutions. Arguably, legalization of organ trade would allow for very specific regulation and monitoring, but the far-reaching effects of the system and its possible abuses cannot be fully determined at this point. Opponents of legalization argue that the sale of human organs in inherently exploitative, and thus no amount of regulation could circumvent these concerns. Other proposals have some merit morally but they may not make enough of a difference to be worth the resources to implement them. This is an ethical dilemma with broad impact that reaches across political, social, economic, and racial borders; a solution is gravely needed, yet opinions as to the most practical course of action are fierce and widely dissimilar.
Bibliography
Abul-Fotouh, Muhammad Yehia Ahmad. “Sale of Human Organs in the Balance of Legitimacy.”
Medical Jurisprudence Third Symposium. The Islamic Vision of Some Medical Practices. 18-21 Apr. 1993.
Boyes, Roger. “Harvest of misery as 130 villagers sell their kidneys.” The Times. 25 Oct.
2003. 12 Nov. 2003.
Delmonico, Francis L., and Nancy Scheper-Hughes. “Why We Should Not Pay For
Human Organs.” Zygon 38 (2003) 689-698.
Fein, Bruce. “Kidney Patient Care Made Criminal.” Washington Times. 28 Aug. 2001.
Finkel, Michael. “This Little Kidney Went to Market.” New York Times 27 May
2001.
Friedlaender, Michael M. “The right to buy or sell a kidney: are we failing our patients?”
The Lancet. 16 Mar. 2002. 12 Nov. 2003.
Goodwin, Michele. “Rethinking Legislative Consent Law?” DePaul Journal of Health
Care Law. Summer 2002. 12 Nov. 2003.
Goyal, Madhav, et al. “Economic and Health Consequences of Selling a Kidney in
India.” Journal of the American Medical Association 288 (2002): 1589-1593.
Harris, Curtis E., and Stephen P. Alcorn. “To Solve a Deadly Shortage: Economic
Incentives for Human Organ Donation.” Issues in Law and Medicine. Spring 2001. 12 Nov. 2003.
Holmes, Leonard. “Organ Donations Increase with Good Information About the Process.”
Mental Health Resources.
.
“Iranians Offer Kidneys for Sale to Finance Rushdie Death.” The Scotsman. 29 Dec. 1999. 12
Nov. 2003.
Kandela, Peter. “Kidneys for Sale at $500 each.” New Statesman 26 July 1999.
Kaserman, David. “Markets for Organs: Myths and Misconceptions.” Journal of
Contemporary Health Law and Policy. Summer 2002. 12 Nov. 2003.
“Kidneys for Sale.” Manila Standard. 1 Sept. 1999. 12 Nov. 2003.
Kyriazi, Harold. “Testimony opposing the ban” Organ Selling. 12 Nov. 2003.
.
"Organ Selling." Issues and Controversies, 27 July 2001. FACTS.com .
“Demographics of California Counties: A Comparison of 1980, 1990, and 2000 Census Data.”
Race and Ethnicity in California: Demographics Report Series. Center for Comparative
Studies in Race and Ethnicity. Stanford University. No. 9. June 2002. 12 Nov. 2003. .
Rothman, David J. “Commerce In Organs.” In Vivo. 1.19. 20 Nov 2002. 12 Nov 2003.
Rothman, David J. “Ethical and Social Consequences of Selling a Kidney.” Journal of the
American Medical Association 288 (2002): 1640-1641.
Scheper-Hughes, Nancy. “Commodity Fetishism in Organs Trafficking.” Commodifying
Bodies. Ed. Nancy Scheper-Hughes and Loic Wacquant. London: SAGE Publications, 2002: 31-63.
Ubel, Peter A., et al. “Pennsylvania’s Voluntary Benefits Program: Evaluating an Innovative
Proposal For Increasing Organ Donation.” Health Affairs. Sept. 2000 – Oct. 2000. 12 Nov 2003.
“Solutions.” Presumed Consent. 12 Nov. 2003.
Wilkinson, Stephen. Bodies for Sale: ethics and exploitation in the human body trade.
London: Routledge, 2003.
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