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You are here: BAILII >> Databases >> United Kingdom Journals >> Pattinson, Paying Living Organ Donors URL: http://www.bailii.org/uk/other/journals/WebJCLI/2003/issue3/pattinson3.html Cite as: Pattinson, Paying Living Organ Donors |
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[2003] 3 Web JCLI | |||
Lecturer in Law, Sheffield Institute of Biotechnological Law and Ethics, University
of Sheffield
[email protected]
Copyright © Shaun D. Pattinson 2003
First Published in Web Journal of Current Legal Issues
*The author would like to thank those who commented on this article, including
the anonymous referee.
Scarcity of human organs is causing otherwise preventable death and suffering.
Every year thousands of human bodies are buried or cremated when their organs
could save lives. Every year thousands suffer or die on waiting lists when
there are potential living organ providers willing to sell their organs. Around
the world legislatures have deliberately restrained or prohibited access to
these organs in the interests of morality and public policy. In this paper,
I wish to challenge what will be shown to be the regulatory consensus across
twenty-four countries, namely, prohibition of persons selling their organs.
It will be suggested that the justification for globalised restraint on commercial
dealings in human organs is being illegitimately held out as a justification
for globalised prohibition.
I have not exaggerated the problem of scarcity. In the UK alone, although
around 2,700 solid organs transplants are performed each year, around 6,800
people are on waiting lists.(1)
What is more, waiting lists do not reveal the whole picture, because the chronic
shortage of human organs means that some transplant clinicians are extremely
selective about which patients they put on the waiting list (see Council of
Europe 1999). In the US, for example, there are over 250,000 patients with
end-stage renal disease, many of whom would benefit from transplantation,
but there are only about 44,000 on the waiting list (see Lysaght and Mason
2000, 253).
Although the success rate for transplantation operations is improving, the
demand for organs is increasing. The population is ageing and transplanted
organs often do not last the lifespan of the patient. The situation is not
entirely bleak. The lifespan of transplanted organs is increasing. In the
UK, for example, official statistics report that 95% of kidneys from living
donors and 86% of kidneys from cadaver donors are still “functioning
well” after a year (see UK Transplant website). Nonetheless, even in
the developed world, only 70% of solid organ transplants last over 5 years
(see Council of Europe 1999),(2)
with a 9–10 year average for kidneys (Garwood-Gowers and Summan 2001,
13).
Possible mechanisms for addressing this shortfall are controversial, impracticable,
or inadequate. One obvious response would be to increase availability and
use of cadaver organs by weakening or removing the ability of the deceased
(prior to death) or surviving relatives to veto transplantation. In theory,
there are many different permutations of regulatory responses to both the
deceased’s views and the views of loved ones and surviving relatives.
The deceased’s views can be relied on or ignored, the deceased could
have been required to express an official view before death or left to decide
whether to express a view, and the law might even operate a rebuttable presumption
as to what the deceased’s views were. Similarly, the views of surviving
relatives and loved ones can be treated as persuasive, determinate, or irrelevant.
To complicate matters further, the law might allow for a different approach
to that operated in practice. Section 1(1) of the British Human Tissue Act
1961, for example, allows the removal of organs if the deceased had consented
to such removal irrespective of the views of relatives, but, in practice,
organs are not removed where relatives object. Similarly, the unnecessary
authorisation of relatives is acquired in Belgium and France (see Kurnit 1994,
esp. 423; Jefferies 1998, esp. 637–638).
Even universal adoption of a strict system of presumed consent, whereby the
deceased is presumed to have consented in the absence of a written declaration
to the contrary, would be unlikely to eliminate organ shortages (see Jefferies
1998, 639; Cooper et al. 2002, 134; New et al. 1994) Moreover,
alternatives to use of human organs—xenotransplantation, tissue engineering,
and artificial organs—are infeasible or inadequate. Xenotransplantation,
the use of animal organs, is still very much in its infancy (see Cooper et
al. 2002, esp. 135–136) and raises practical and ethical problems.(3)
Tissue engineering, growing organs in laboratories, is far from being a reality
although some progress has been made, as skin tissue and even bladders have
been grown in laboratories (see Harding et al 2002, 162; Tanne
1999). Most artificial organs have not reached the stage where they can be
anything other than temporary “bridges” or holding devices until
human organs become available (see Rettig 1991). The most successful is the
artificial kidney, which is now used everywhere for dialysis, but is not a
permanent solution and compromises the quality of the life of the patient
(see Rettig 1991, esp. 523; Anderson 1995, 253, fn 20; 281). (Left ventricular
assist devices are another, more recent, success: see Cooper et al. 2002,
134.)
This paper will explore one the most controversial ways of increasing the
availability of suitable human organs: allowing persons to sell their organs.
This paper is divided into two parts. Part one demonstrates the popularity
of prohibitive regulatory responses to commercial dealings in human tissue
by exploring the ambit of various national and international instruments.
Although particular attention will be paid to the British regulatory position,
24 countries have been studied, encompassing jurisdictions in Europe (the
15 EU countries, Slovakia, and Turkey), North American (Canada and the US),
Australia, and Asia (Hong Kong, India, Japan, and Singapore). These countries
were simply the ones on which reliable information was available, often in
the form of an authoritative translation of the relevant legislation. Part
two explores the claim that commercial dealings in human organs ought to be
prohibited, focusing on the selling of organs by living organ providers.
After presenting a brief overview of potential moral frameworks, the major
arguments against legal organ trading will be addressed. It will be argued
that many of the arguments against commercial dealings are inadequate or overstated,
particularly those arguments grounded in the interests of the organ provider.
For ease of expression, I will refer to the person from whom an organ is removed
as the “organ provider”, reserving the term “organ donor”
for organ providers who receive no financial incentive.
Top | Contents | Bibliography
Australia
|
No federal jurisdiction (see IDHL 1991a 401), but there
are prohibitions in all 6 States and both
Provinces:
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Austria
|
Law of 1 June 1982 (amending the Hospitals Law of 18 Dec. 1956),
s.62a(4) (applying to organs from cadavers) (see IDHL 1986).(4)
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Belgium
|
Law No. 32 of 13 June 1986, s.4 (see IDHL
1987).
|
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Britain
|
Human Organ Transplants Act 1989, s.1. (Does not extend
to Northern Ireland: s.7(4).)
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Canada
|
No federal legislation, but there are prohibitions in most of the 13 Provinces. Many Provinces have adopted versions of the Uniform Tissue Donation Act 1989, s.15 of which prohibits commercial dealings.
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Denmark
|
Law No. 402 of 13 June 1990, s.20(3) (see IDHL
1991b).
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Finland
|
Law No. 101 of 2 Feb. 2001 (No. 101/ 2001) on the
Medical Use of Human Organs and Tissue, ss.18 & 25(6) (see IDHL 2001).
(Since the IDHL translation is no more than a summary, I
have relied on an unofficial English translation by the Finish Ministry of
Health and Social Services, 28 August 2001.)
|
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France
|
Law No. 94-654 of July 29 1994, Art. L. 665-13; and
Decree No. 2000-409 of 11 May 2000, Articles R. 665-70-1 to R. 665-70-4 (see
IDHL 1994b and IDHL 2000 respectively).
|
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Germany
|
Act of 5 Nov. 1997, s.17 (see IDHL
1998a).
|
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Greece
|
L. 2737/1999, Art. 2 (see Canellopoulou-Bottis 2000,
429–430).
|
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Hong Kong
|
Ordinance No. 16 of 1995, s.4 (see IDHL
1995c).
|
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India
|
Transplantation of Human Organs Act (Act No. 42 of 1994), s.19 (see
IDHL 1995a (summary); http://www.ebai.org/tohoatxt.htm
(full text)).
|
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Ireland
|
No legislation. However, the Medical Council’s
ethical guidelines prohibit payment (see Medical Council 1998,
38).
|
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Italy
|
Law No. 644 of 2 Dec. 1975, ss.19 and 20 (applying to
organs from cadavers) (see IDHL 1977).
|
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Japan
|
Law No. 104 of 16 July 1997, s.11 (see IDHL
1998b).
|
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Luxembourg
|
Law of 25 Nov. 1982, s.16 (see IDHL 1983 and 1991a,
407).
|
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Netherlands
|
Law of 24 May 1996, s.2 (see IDHL
1996).
|
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Portugal
|
Law No. 12 of 22 April 1993, s.5 (see IDHL
1994a).
|
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Singapore
|
Human Organ Transplant Act 1987, s.4 (see Kurnit 1994, 42; http://www.thegift.org.sg/why_organ_donation/policies_laws.html)
|
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Slovakia
|
Law of 24 August 1994, ss.46(5) and 47(3) (see IDHL
1995b).
|
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Spain
|
Law No. 30 of 27 Oct. 1979, s.2 (see IDHL 1980a) and
Crown Decree No. 426 of 22 Feb. 1980, s.5 (see IDHL1981).
|
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Sweden
|
Law No. 831 of 1995, s.15 (see Ministry of Health and
Social Affairs 1997, Appendix 1).
|
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Turkey
|
Law No. 2238 of 29 May 1997, ss.3, 4, and 15 (see IDHL
1980b).
|
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US
|
National Organ Transplant Act 1987, s.274(e) (federal
legislation), and various State legislation.
Many States have adopted versions of the Uniform
Anatomical Gift Act 1987 (s.10 of which prohibits commercial dealings),
including Arkansas, California, Connecticut, Hawaii, Idaho, Michigan, Montana,
Nevada, North Dakota, Rhode Island, and Vermont.
|
The Japanese legislation adopts the same approach and defines an “organ”
as the heart, lungs, liver, kidneys, eyeballs, or other organs specified by
order of the Minister of Health and Social Welfare (s.5). Here the material
covered is precisely defined, but these definitions appear arbitrary. They
do not, for example, cover all non-regenerative material capable of being
removed from living persons. How does payment for small bowel segments differ
from payment for lung lobes?
Most countries fall somewhere between these two extremes. Many prohibitions
have been drafted with a wide ambit, subject to specified exceptions for certain
types of (typically regenerative) tissue. The Swedish legislation, for example,
prohibits intentional gain-taking from delivering, receiving, or procuring
“biological material” but then goes on to exclude blood, hair,
breast milk, and teeth from this prohibition (s.15). Similarly, the relevant
Turkish legislation explicitly excludes hair, skin, and blood from its ambit
(s.2).
A small number of countries adopt rather idiosyncratic definitions of encompassed
material. The British Human Organ Transplants Act 1989 is a well-recognised
example. This prohibits specified commercial dealings with human organs (from
both living and dead organ providers) and bolsters this prohibition by requiring
the agreement of a regulatory body for transplants between living persons
who are not “genetically related”.(5)
but only applies to “human organs” defined in s.7(2) as,
any part of a human body consisting of a structured arrangement of tissue which, if wholly removed, cannot be replicated by the body.
It is not clear whether the removal of part of an organ is covered by this
definition where that part (but not the organ as whole) is capable of regeneration,
ie, capable of being “replicated by the body”. It has become possible
to transplant a liver segment from a living donor, which will then regenerate.
If the phrase “wholly removed” refers to the part that is removed,
then liver segments are not covered. If, as when read more naturally, “wholly
removed” refers to the organ as a whole, then liver segments are covered.
In practice, it is assumed that liver segments are covered, but this is inconsistent
with the treatment of skin as falling outside of the legislation—logically
either both skin and liver segments are included or neither is included (see
Kennedy and Grubb 2000, 1764). Since the courts will interpret this definition
to give best effect to the policy of the legislation (R (On the Application
of Quintavalle) v Secretary of State for Health [2003] UKHL 13) and the
legislation was clearly intended to exclude non-regenerative material (see
ibid.; Price and Mackay 1991, 1273), it would appear that both skin
and liver segments are excluded from the prohibition. Interestingly, this
issue is not restricted to the British legislation, as the same definition
is adopted by the legislation of Hong Kong (s.2) and India (s.2(k)), despite
being passed a number of years after liver segments transplants became a reality
in the late 1980s (see Raia 1989).
Many of these difficulties stem from attempts to exclude some or all types
of regenerative material from legislative prohibitions. The phrase “structured
arrangement of tissue” in the British legislation is, indeed, successful
in excluding regenerative tissues such as bone marrow, blood, and gametes
(being unicellular) from its ambit. Regenerative tissues typically excluded
from prohibitions on commercial dealings include blood, gametes, embryos,
and reproductive organs. Blood is explicitly stated to be excluded from the
prohibition in the organ transplantation legislation of (most of) the Canadian
provinces, Finland (s.1), Germany (s.1(2)), Spain (s.2 of the Additional Provisions),
Sweden (s.15), and Turkey (s.2). It is also implicitly excluded by the legislative
prohibitions of many other countries. Since the US federal legislation does
not cover blood (see above), in the US persons are sometimes paid for providing
blood—in contrast to Britain where no blood donors are paid and Sweden
where, according to Price (2000, 381), all blood providers are paid.
Provisions excluding some forms of reproductive material (such as gametes,
embryos, and gamete producing organs) exist in the transplantation legislation
of Belgium (s.1(2)), Britain (s.7(2)), Finland (s.1), Germany (s.1(2)), Japan
(s.5), the Netherlands (s.1), Portugal (s.1(2), Sweden (s.2), and the US (s.274e).
Such material is usually excluded by provisions asserting that it will be
covered by specific legislation or, in the case of Japan and the US, by the
adoption of an exclusive definition not including such materials. Where no
other legislation exists, such exclusions can mean that reproductive material
is subject to less stringent regulation. Section 1(1) of the Belgian Legislation,
for example, states that the Act does not apply to transplantations of testicles
and ovaries, or the use of gametes—despite the absence of any legislation
governing the excluded material (see Pattinson 2002, esp. 171). Alternatively,
such donations might be regulated by other legislation or regulatory bodies.
In Britain, for example, gamete donation is regulated by the Human Fertilisation
and Embryology Authority,(6) which
limits payment to “a maximum of £15 [around $25] for each donation
plus their reasonable expenses” (HFEA 2000, 2). In contrast, in the
US, some women have been paid up to $50,000 [about £30,500] to donate
their eggs (see Karsjens 2002, 65).
Top | Contents | Bibliography
Top | Contents | Bibliography
Top | Contents | Bibliography
Top | Contents | Bibliography
There is a vast number of potential criteria for distinguishing the morally
permissible from the morally impermissible. A number of prominent camps or
positions are typically invoked when addressing the permissibility of commercial
dealings in organs provided by live organ providers. I will briefly explore
five such positions: utilitarianism, virtue ethics, rights-based theories,
duty-based theories, and compromise positions. All five positions are collections
of moral theories, the precise implications of which will depend on the specific
instantiation in play. Nonetheless, a number of general points can be made
about each. These are no more than broad brushstroke generalisations.
Utilitarianism is a collection of moral theories holding that we are morally
required to seek the best possible balance of utility over disutility. Classical
or hedonistic utilitarianism seeks to maximise pleasure over pain, whereas
the most popular contemporary version, preference utilitarianism, in its most
popular instantiation seeks to maximise the subjective preferences of persons.
All forms invoke a calculus in which the relevant interests of all individuals
count equally. The permissibility of any particular action (for act-utilitarians)
or rule (for rule-utilitarians) is dependent on its consequences for the utility
balance, so the likely effects of any commercial dealings in human organs
are crucial. The high utility of obtaining an organ (especially where the
organ saves the recipient’s life), the generally high utility of facilitating
autonomy, and the likelihood that some form of commercial market in organs
from live organ providers will increase the number of available organs
should render utilitarians prima face predisposed towards allowing
some types of commercial organ dealings. Some utilitarians might, however,
take a different view because this general position contains differing theories
of value and can lead to different assessments of probable outcomes.
Virtue ethics rejects all action-based moralities—including utilitarian,
rights-based, and duty-based theories—in favour of character-based values.
For virtue ethics, all moral obligations are linked to human flourishing,
assessed according to some “objective” criterion. Since such theories
are prima facie inclined towards the development of altruistic over
purely self-interested motives, it might be thought that virtue ethics is
inherently opposed to the commercialism of human organs. According to Pellegrino,
for example, the commercialisation of consent to organ donations is to be
rejected because altruism “is a fundamental virtue of good societies
and good persons” (1991, 1305).
However, not all commercial organ provision displays an absence of altruism
(and not all organ donations display predominantly other-regarding motives).
To take a popular example: a father who sells his kidney to obtain the money
for his daughter’s medical treatment is acting no less altruistically
than one who donates his kidney to treat his daughter’s kidney failure
(see Radcliffe Richards 1991, 190–191; Bernat 1995, 187; Radcliffe Richards
et al. 1998, 1951). It is also not difficult to imagine circumstances
where the purchaser of an organ acts entirely altruistically, such as (modifying
the above example slightly) where a father purchases an organ to save his
daughter’s life. Indeed, the focus of virtue ethics on character and
motive is such that very few categories of action can be regarded as immoral
per se. It must not be forgotten that commercialisation does not remove
a person’s ability to act altruistically—a person who donates
without payment in a system in which payment is available has taken the opportunity
to act even more altruistically than would otherwise have been possible. Alternatively,
an altruistic person acting within such a system could donate any payment
to charity or use the money for altruistic purposes. Moreover, virtue ethicists
do not generally reject the existence of commercial transactions for other
life-saving or life-providing goods such as food and shelter.
If, however, it is the case that altruism begets altruism—so that the
existence of a system prohibiting organ providers from selling their organs
itself increases the altruistic tendencies of society or at least the willingness
to donate altruistically—a virtue ethicist might be prima facie
in favour of prohibiting organ sales. A virtue ethicist is not, therefore,
straightforwardly committed to prohibiting or permitting commercial
dealings in organs as much will depend on the particular criterion of human
flourishing in play and the predicted consequences of allowing persons to
sell their organs.
Rights-based and duty-based theories, as I define them, are action-based moralities
and strictly deontological. It follows that, in contrast to virtue ethics,
for these theories a virtuous character is simply one predisposing towards
actions consistent with one’s moral obligations. It also follows
that, unlike utilitarianism, they do not allow the aggregation or averaging
of individual interests. What matters is the weight of the relevant right
or duty, not the number of persons involved. The difference between rights-based
and duty-based theories stems from the waivability of the benefit of any moral
obligation. Rights-based theories hold that all moral obligations reduce to
moral rights, understood as justifiable claims, the benefits of which are
waivable by the rights-holder. On the other hand, duty-based theories are
more paternalistic and do not automatically entitle the recipient of the duty
to waive its benefit. For some this distinction is one within rights-theories—a
distinction between the will (or choice) conception of rights and the benefit
(or interest) conception. This is simply a matter of terminology carrying
no substantive import.
The implications of rights and duty-based theories for commercial dealings
with organs differ with the different sub-variants. Rights-based theory is,
however, committed to a particular stance on persons selling their organs.
Since this position holds that all moral duties derive from rights the benefits
of which are waivable, it follows that it is meaningless for a rights-holder
to have direct duties to him or herself. For rights-based theories, protecting
the organ provider’s interests (rights) cannot justify preventing the
organ provider from freely choosing to sell his or her organs. Thus, where
the organ provider is acting voluntarily, rights-based theorists are committed
to allowing organ dealings, subject only to such regulatory control as is
necessary to ensure this voluntariness and to protect the rights of others.
The fifth moral camp, compromise positions, is a collection of eclectic moral
positions drawing elements from the other four. These positions are rarely
foundationalist and adhere more closely to the ethical reasoning of the layperson.
A classical example is Beauchamp and Childress’ principalism, which
advocates four principles of biomedical ethics:
(1) respect for autonomy (a norm of respecting the decision-making capacities of autonomous persons), (2) nonmaleficence (a norm of avoiding the causation of harm), (3) beneficence (a group of norms for providing benefits and balancing benefits against risks and costs), and (4) justice (a group of norms for distributing benefits, risks, and costs fairly). (Beauchamp and Childress 2001, 12)
Their position explicitly seeks a compromise between overarching deep moral
theory and practical ethics by adopting elements of utilitarianism, rights
and duty-based theories, and virtue ethics. Although Beauchamp and Childress’
position lacks foundationalist grounding, “very few critics argue that
any one of the four principles is incompatible with his or her preferred theory
or approach to biomedical ethics” (Gillon 1995, 324).
The broad nature of this camp makes specific generalisations with regard to
the payment of organ providers difficult. Beauchamp and Childress, for example,
do not directly address this issue, except to say that it is “appropriate
to consider potential donors’ motives, at least to the extent of investigating
whether financial gain is the motivating factor” (2001, 50). Commercial
dealings highlight tensions among these four principles, particularly between
autonomy and beneficence, the resolution of which must either revert to deep
theory or rely on the idiosyncratic, contingent intuitions of the decision-maker.
In sum, rights-based theories aside, at this level of abstraction the major
approaches to bioethics provide little guidance on the permissibility of allowing
persons to sell their organs. To advance further we must either adopt one
specific moral position and draw out its precise implications or argue
from premises capable of attracting the support of all (or most of) these
camps. In other contexts I have often adopted the former approach and I argued
for and from a particular rights-based moral theory (see, eg, Pattinson 2002).(10)
Indeed, some arguments in favour of prohibiting organ dealings can only be
addressed at the level moral epistemology. There are, however, many arguments
that rely on premises that are relevant to just about all of the camps outlined
above.
Top | Contents | Bibliography
Commercial use of one’s body is not new. Modern society is littered
with employment opportunities involving the marketing of one’s physical
self (eg, modelling and professional sports), the hiring of one’s body
(eg, prostitution, surrogacy, and modelling), the selling of human body parts
and derivatives (eg, human hair for wigs and drugs made from placental tissue),
and risks to life and limb (eg, being a soldier, fire fighter, or boxer).
Although most of these are legal and some are highly valued, there is widespread
uneasiness with the commercial exploitation of one’s bodily integrity
and human tissue in particular (see, eg, Wilkinson and Garrard 1996, esp.
338). Indeed, the diversity of possible views ensures that no system designed
to provide organs for those in need will ever satisfy every possible moral
position. It will, however, be shown that the major arguments against legal
trade in human organs are not nearly as conclusive as the current regulatory
consensus would suggest.
One concern evoked by commercial dealings is simply cost. Allowing payment
would surely increase the cost of organ transplantation, because of the additional
cost of purchasing an organ (see Evans 1993). However, even for those for
which it is highly important, this fear fails to take account of the fact
that organ transplantation is often cheaper than long-term treatment alternatives
for protracted kidney, heart, or liver failure. One analysis of renal transplantation,
for example, estimated that “although short-term costs are higher, transplantation
saves nearly $42,000 [around £27,000] per patient over a 10-year period”
(Beasley et al. 1997, 549). According to Williams (1994, 361), nearly
ten years ago it cost “$32,000 [£20,000] per year for dialysis
for one patient, as compared to $56,000 [£35,000] for the first year
of a kidney transplant, and $6,000 [£3,700] per year thereafter.”
In addition, organ transplantation also tends to produce a better quality
of life than the alternatives and, even if payment did increase costs, any
increase in organs will save lives.
Some might wish to question whether allowing payment will increase the availability
of organs. There are suggestions—albeit usually advanced in the context
of cadaver organs (or blood provision)—that allowing commercial dealings
will be detrimental to the overall organ supply, by reducing the willingness
to donate organs (see Hansmann 1993, 67–68). It is plausible that if
organs are available to purchase, related living donors will be more reluctant
to come forward (see Abouna et al. 1991, 167; Broyer 1991, 199). However,
this objection is not fatal. Firstly, a reduction in the number of living
donors stemming from the availability of purchasable organs does not imply
a reduction in the number of organs, which is unlikely. Secondly, if relatives
were more reluctant to donate where purchasable organs are available, this
is most likely to be because of reduced emotional and social pressure to donate.
Emotional and other pressures on relatives can be considerable (see Kallich
and Merz 1995, esp. 145–148).(11)
Thirdly, prohibiting payment is not the only method of encouraging relatives
to donate. Where, for example, there are reasons for preferring a related
donor to a paid organ provider (such as increased compatibility of the organ
or decreased likelihood of disease from the organ) these could be divulged
to the relatives to encourage donation. Also, since a market in live organs
is unlikely completely to satisfy demand, a related donor could not rely on
the market to provide an organ if those in need of organs were prevented from
purchasing them directly.
The major line of arguments against commercial dealings in organs centres
on the fear of exploitation. It is widely feared that allowing legal trade
in organs from living organ providers will lead to the exploitation of the
vulnerable, particularly the poor as potential organ providers. For example,
it has been claimed that countries that that have banned commercial sales
assume, and probably correctly so, that the only person who would respond to a financial incentive to sell an organ during their life would be destitute. Why else would an otherwise rational person part with a kidney, unless the person was in a desperate situation? (Williams 1994, 347)
The destitute are the most likely to consider selling an organ. A
financial incentive will, self-evidentially, be proportionately more enticing
to those who are poor. It is, however, plausible that if properly regulated
even the not so desperate might be encouraged to sell their organs, such as
(say) a middle-aged, relatively well-off man who simply wishes to obtain enough
money to retire early or a young person who wants the money for an expensive
holiday. Moreover, depriving the desperate of what they consider to be their
best option only restricts their options further. Banning organ sales is a
misguided way of addressing the conditions that make a potential organ provider
vulnerable in the first place. In the words of one commentator, it is “like
ending the miseries of slum dwelling by bulldozing slums, or solving the problems
of ingrowing toenails by chopping off feet” (Radcliffe Richards 1996,
391).
The mere existence of a financial incentive to motivate someone to do something
that they would not otherwise have done is not itself exploitative (cf. Sells
1992, 2198). If it were then many essential activities would be exploitative.
There are many menial, dangerous, and, indeed, everyday jobs that few would
perform without a financial incentive. What is more, the organ provider appears
to be the only one in the transplantation process expected to go without payment—others,
from the transplant surgeon to the provider of immunosuppressant drugs, are
routinely paid quite handsomely.(12)
The purportedly exploitative nature of organ dealings must, therefore, stem
from something in addition to the existence of a financial incentive. A number
of candidates have been suggested, including the small sums of money typically
given to organ providers, the inability of some organ providers to manage
even small sums, the risks to organ providers, and the consequential pressures
on the poor to sell their organs against their will. These concerns are elements
of current, unregulated commercial dealings in organs.
The sums typically paid to organ providers are, as one commentator put it,
“paltry” (Williams 1994, 322). Many studies report average payments
to organ providers of $1000—around £600 (see Sever et al. 1994,
351; Goyal et al. 2002, 1591). Some report much lower amounts (see
Kumar 2003, who cites average figures of $523, around £300), typically
in situations where a much greater amount had been promised (see Goyal et
al. 2002, 1591). Not surprisingly, the money paid to organ providers is
often not enough to enable the poor to overcome their poverty (see Sever et
al. 2001, 1482; Abouna et al. 1991, 166). There is also some evidence
that, even where the sums are higher, many have difficulty managing such sums
(see Nisselle 2002, 74). It is but a small step to claim that organ providers
are being exploited as existing commercial practices take advantage of them
(see Zohar 1993, 555).
These issues are not restricted to commercial organ dealings. Many labour
markets, especially in the developing world, pay workers paltry sums of money
and, even the comparatively well off can have difficulty managing money, whether
it is everyday debt or a large windfall such as a lottery win. It is difficult
to see why if these concerns justify prohibiting organ dealings, rather than
the need for regulation and supportive structures, they do not justify the
prohibition of any activity paying low wages and generating large sums of
money. More strikingly, organ provision for low or insufficient payment can
be no worse than donation for no payment. In practice, low wages for what
are highly valued goods, human organs, are likely to be the result of bargaining
inequalities or the extraction of value by middlemen. Regulation can be more
precisely target at such issues.
The risks of organ transplants for the organ provider are another major source
of exploitative concern. In addition to the inevitable pain and scarring,
having an organ removed carries risks of mortality, morbidity, psychological
harm, and long-term complications. In terms of morality the risks are small,
but “a small number, particularly those donating partial livers, have
died as a consequence” (Cooper 2002, 134). The mortality rate for kidney
donation was estimated at about 0.03% by a survey of members of the American
Society of Transplant Surgeons in 1992 (see Najarian 1992, esp. 807).(13)
One study of 871 kidney donors at a US hospital, reported no mortalities and
relatively few complications—including two major complications and minor
complications in only 8% of donors, resulting in an overall complication rate
of 8.2% (see Johnson 1997, esp. 1125). Similarly, although no one has yet
died from donating a lung lobe in Britain or the US, since
all general anaesthetics and surgery have some risk and removal of a lung lobe for cancer has a mortality rate of about one per cent. If donation of living lung lobes becomes widespread then eventually a donor will die. (Hodson 2000, 420)
Similar risks are reported for living transplants of pancreas segments (see
Margreiter 1991, esp. 105) and small bowel segments (see Deltz 1991).
However, prohibition is not justified by the mere existence of risk. Many
activities carry unavoidable risks to life including certain jobs (notably
being a solider, lifeguard, fire fighter, or boxer) and activities (such as
smoking, skydiving, rock climbing, or driving). The risks of organ provision
must be put into perspective; it has been argued that the increased risk of
death to a healthy 35-year-old from giving up a single kidney is equivalent
to driving sixteen miles a day to and from work (see Hansmann 1993, 72). If
this risk is unacceptable for paid organ providers why is it accepted for
unpaid organ donors?
The evidence suggests that these risks would be much higher if a free, unregulated
market in human organs were allowed. Where transplantation takes place in
developing countries, often in back-street clinics, the death, complication,
infection, and graft rejection rate appears to be much higher (see Kher 2002,
357). This is borne out by studies in a Turkish hospital following a commercial
kidney transplant elsewhere (see Sever et al. 1994; Sever et al.
2001) and a similar study in Saudi Arabia of patients transplanted in
other countries (see Al-Wakeel 2000). Moreover, there is also some evidence
of negative psychological effects on commercial organ providers from developing
countries (see Taghavi 2001, esp. 2636; Zargooshi 2001, esp. 387). However,
this evidence also suggests that these increased risks are a consequence of
the black market, unsatisfactory operating facilities, inexperienced surgeons,
and poor pre- and post-operative procedures (including the lack of basic information
and counselling facilities). These are all aspects of wider, systemic problems
in developing countries. These increased risks, generated by the activities
of the unregulated market in developing countries, should not be assumed to
apply to every possible form of regulated market capable of being implemented
in the developed world.
It is often forgotten that those in need of organs are also vulnerable, sometimes
more vulnerable than potential organ providers. Transplantation is the only
hope for many with failing hearts and livers. Kidney transplantation is also
the only hope for those in countries such as India where there is no effective
cadaver transplant or long-term haemodialysis programme (see Reddy 1993, 137).
The desperation of some is somewhat anecdotally highlighted by the attempt
of a man from Florida to auction a kidney on eBay—the price got up to
$5.7 million before eBay stepped in and cancelled the auction (see Nisselle
2002, 74). This vulnerability is only made worse by restricting the available
organs. It has also been claimed that many are driven to the unregulated (largely
illegal) market, which tends to create increased organ rejections, infections,
and diseases (see Skene 2002, 72).
The very vulnerability of potential organ recipients has been cited as a reason
for prohibiting payment for organs, on the basis that altruistic donors provide
better quality organs. Analogies have been drawn between payment for organs
and payment for blood (see, eg, Pellegrino 1991, 1306). Titmuss, in his study
of the commercialisation of blood donations, presents evidence that “commercial
markets are much more likely to distribute contaminated blood; the risks for
the patient of disease and death are substantially greater” (1970, 246),
because payment encourages sellers to conceal information and attracts “as
donors drug addicts, alcoholics, and carriers of hepatitis, malaria and other
diseases” (ibid., 76). Even if these claims are conceded (see
Price 2000, 400 for some counter evidence on paid blood provision), the import
of this should not be overstated. What are the alternatives for a person in
need of an organ? In the absence of a suitable organ, many patients face certain
death. Ignorance of the provider’s complete history does not prevent
the use of cadaver organs from unrelated persons nor should it be regarded
as a suitable reason for prohibiting all organ dealings. Payment does not
prevent pre-operative assessment of the organ, the organ recipient being informed
about the risks, or those in need of an organ obtaining one from a willing
donor.
If a free market in human organs operated, however, those in need of an organ
would not be equally vulnerable. Free market systems are easily dominated
by the rich and powerful (see Sells 1992, 2198). In such a system the (medically
preferable) organs obtained from living providers would be allocated to those
best able to satisfy the demands of the market. This is not, however, an argument
against organ providers selling their organs, it is an argument against
those in need of the organs directly purchasing them. Here the feared
abuse is at the level of acquisition and allocation of the available supply
of organs. It is, therefore, best addressed by at the level of allocation
by, for example, seeking to prevent allocation according to ability to pay.
The most poignant argument stemming from the exploitation of the vulnerable
is that commercial dealings in organs will place pressures on persons to sell
their organs against their will. The argument advanced is that potential
organ providers will be coerced, possibly by family members or by moneylenders.
There are reports that, where organs have been sold by poor persons,
The sellers’ families, having had access to what that money had bought, sought more – and the kidneys of other family members would be put up for sale. (Nisselle 2002, 74)
and
Money lenders may also be more aggressive in demanding payment from debtors who live in areas where kidneys are sold to pay off debts. (Goyal et al. 2002, 1590)
The evidence is only anecdotal but these scenarios are very plausible. They
should not, however, be taken out of context, this anecdotal evidence derives
from countries characterised by widespread problems of exploitation and human
right abuses. Moreover, the vulnerability of some persons to coercion
does not straightforwardly justify prohibiting all persons from engaging
in such practices. A person whose mother will die without a kidney is vulnerable
to emotional pressure including pressure from family members, so should all
such persons be prohibited from donating an organ? In some societies or families
individuals are likely to be bullied into an unwelcome marriage. Does that
justify the prohibition of all marriage? Prohibition must be the most defensible
way of addressing potential coercion, all things considered. In the
context of organ dealings relevant considerations include the effectiveness
of feasible alternative regulatory responses, the interests of those who voluntarily
wish to sell their organs, and the interests of potential recipients.
Top | Contents | Bibliography
Footnotes
(1) Figures obtained from the UK Transplant
website (http://www.uktransplant.org.uk).
The precise figures for solid organ transplants were 2,708 in 2000 and 2,717
in 2001, and the figures for people on waiting lists were 6,779 in 2000 and
6,842 in 2001.
(2) This is consistent with other
estimates of 5-year survival rates, which range from 75% (see Grant et al.
2001, 243) to 65% (see Cooper et al. 2002, 133).
(3) Not least of which are the threat
of introducing currently non-human viruses into the human population via animal
transplants into immunosuppressed patients (see Grant et al. 2001; Cooper
et al. 2002, esp. 142–143), and the morality of using animals as
organ sources for the benefit of humans.
(4) Despite the limitations of the
Austrian legislation, it has been argued that payment to a living organ provider
would not be enforceable and would probably be illegal (see Bernat 1995, 186–187).
(5) The regulatory body, the Unrelated
Live Transplant Regulatory Authority (ULTRA), must ensure that the organ provider
has not been coerced or offered an inducement: The Human Organ Transplants (Unrelated
Persons) Regulations 1989 (SI No. 2480), Regulation 3(2)(c). It was thought
that only transplants between genetically unrelated persons required special
consideration by ULTRA because these were most likely to be induced by commercial
incentives. However, the definition of ”genetically related” excludes
persons who are likely to donate for non-financial motives (such as grandparents),
is not strictly biological (it include half-aunts and half-uncles who are no
more genetically related than excluded grandparents), and fails to offer protection
for those who are genetically related from non-financial coercion, such as familiar
pressure.
(6) The Human Fertilisation and Embryology
Act 1990 imposes a licensing requirement on gamete and embryo donation and s.12(e)
states that “no money or other benefit shall be given or received in respect
of any supply of gametes or embryos unless authorised by directions”.
Giving or receiving “money or other benefit” outside of such directions
is a criminal offence: s.41(8).
(7) S.274(e)(c)(2) of the federal
legislation, which only applies to interstate commerce. Many States have enacted
legislation based on the Uniform Anatomical Act 1987, s.10(b) of which states
that prohibited payment does not include “reasonable payment for the removal,
processing, disposal, preservation, quality control, storage, transportation,
or implantation of a particular”
(8) I am grateful to Hermann Kühn
for drawing my attention to this point.
(9) Removing an organ from a living
person carries risks to the life and health of the organ provider, whereas removing
an organ from a cadaver can, at most, inflict anticipatory worry/concern on
the prospective organ providers and emotional harm on surviving loved ones.
(10) The rights-based moral theory
in question is Alan Gewirth’s Principle of Generic Consistency (PGC) (see,
eg, Gewirth 1978). The implications of this particular rights-based perspective
for human dignity in the context of commercial dealings in human tissue have
been considered by Beyleveld and Brownsword 2000, esp. 192–193; 213–215.
Beyleveld and Brownsword distinguish “human dignity as empowerment”
and “human dignity as constraint”, whereby the former is the conception
in play here.
(11) Titmuss (1971) has argued that
paid blood provision discourages altruistic donation. However, in contrast to
blood provision, there are few live unrelated organ donors. In fact, many counties
require a biological or emotional connection between the organ provider and
the recipient (see below).
(12) According to Lysaght and Mason
(2000 254–255), The estimated first year costs of kidney, heart, and liver
transplants are $116,000, $253,000, and £315,000, respectively, and every
element of these costs represents revenue to someone. Transplant surgeons typically
earn $200,000 to $300,000 per year, placing their income in the upper ¼
of 1% of Americans. Novartis sales of immunosuppressive agents exceed $1.2 billion
per year and the firm is very profitable. Payment for health care products and
services generally is routine; as is payment for products developed from human
tissue. Nonetheless, the common law seems to be more willing to recognise the
property rights of those who manipulate and derive products from human tissue,
than of the source of that tissue (see Moore v Regents of the University
of California 51 Cal.3d 120; R v Kelly [1998] 3 All ER 741).
(13) Anderson (1995) claims that
in 1994 about 3,000 kidneys were transplanted from living donors (ibid.,
280) but, since kidney transplants started in 1954, only “[a]bout
twenty people are thought to have died as a direct consequence of donating a
kidney” (ibid., 280).
(14) Other moral theories might,
of course, raise objections premised on the idea of duties to oneself, which
have not been addressed in this paper. Such objections can only be addressed
at the level of moral epistemology (see Pattinson 2002, esp. ch 1).