Fourth, set up a donor pool. Robert M. Sade, a surgeon and professor of medicine at the Medical University of South Carolina, and his colleagues have proposed to create an in-kind market for organs. Every adult would receive the option to join the Transplant Recipient and Donor Organization. Membership would require permission to have organs removed at death, and only those joining would be permitted to receive an organ transplant. Those who chose not to join would be electing for standard medical care, short of transplantation.

Would opening a market for organs along the lines of these proposals diminish the quality of available organs? In fact, the quality already is diminishing as the demand grows and the supply shrinks. Many observers have noted a decrease in scrutiny of where organs have originated and how their owners died. Furthermore, the current restrictions do not guarantee the purity of the organ pool. In 1991, some 56 body parts from a shooting victim were donated to people around the country. It later was discovered that the victim had AIDS, and a frantic search ensued to locate each of those recipients.

By contrast, in virtually every sector of the economy where price and competition play a role, quality increases and cost decreases. Organ banks, the existence of which depend upon their ability to provide top-quality organs, still would do their best to ensure that they were getting the best organs. Because of their concern for quality health care and the threat of malpractice suits, hospitals performing the transplants still would scrutinize incoming organs. Most importantly, the principle of informed consent would ensure that organ recipients had full access to information about the donor and the "used" organ.

Were a real market for organs permitted to develop, people who donated their organs would be financially rewarded, the supply of organs would increase, the waiting lines and needless deaths would decrease, if not disappear, and donors and recipients would have more choices. But it is clear that while opponents want more organs, they don't want a market for organs -- not so much because they oppose such a market as because they oppose markets in general. Paternalistically, they impose their values on everyone else.

And with regard to organ availability, while paternalism lives, people die.



* Lloyd Cohen, Ph.D., J.D. -- "The best way to increase the supply of transplant organs is by establishing a futures market in cadaveric organs..."
* Thomas G. Peters, M.D. --"...other motives such as financial incentives (survivor benefits such as in Social Security), bereavement counseling, donor family recognition, and support for burial expenses must be considered."
* James F. Blumstein, Ph.D. -- "The unwillingness of transplant teams to accept organ donor cards, the low number of donor organ card signees, and the ban on financial incentives that would shift the locus of decisionmaking away from the patient's bedside to the luncheon table -- when a person is well and can consider his or her own future coolly and rationally -- all lead to the unhappy reliance on requests to families when they are in the greatest emotional pain."
* Henry Hansmann, Ph.D. -- "...this prohibition may be overly broad. It appears possible to design suitably regulated market-type approaches to the acquisition and allocation of cadaveric organs (and perhaps of organs from living donors as well) that will be neither unduly offensive to ethical sensibilities nor easily abused..."
* Merrill Matthews, Health Policy Director of the National Center for Policy Analysis -- "Economic theory clearly recognizes that when demand is high for a good or service, its price will increase until the supply and demand reach an equilibrium. If the price is prohibited from rising, a shortage will occur. To restore the balance so supply meets demand, price controls must be removed."
* William Russell Robinson, Pennsylvania State Representative, District 19 -- "I'm especially concerned about doing something for the families of the deceased who donate organs. The recipient gets a new kidney, liver, lung or heart, the doctor, hospital and staff get paid for the operation, but the family of the donor is left with only memories and hospital expenses."
* David L. Kaserman, Ph.D., and colleagues -- "We demonstrate the economic (profit) incentive of hospitals and physicians to maintain a procurement system that relies upon altruistic (zero price) supply despite the shortage that such a system creates."..."It is clear to us that, due to the many lives that could be saved, a market for organs is morally and ethically superior to the current altruistic procurement system."
* Gregory E. Pence, Ph.D. -- "...the question is not whether any risk of harm exists from commercialization--it does--but whether such risk justifies the sacrifice of thousands of dying patients. It doesn't."

cohen.jpg (11068 bytes) Lloyd R. Cohen, Ph.D., J.D. Professor, George Mason University School of Law

"The best way to increase the supply of transplant organs is by establishing a futures market in cadaveric organs in which a typical healthy person would be offered a contract that would provide that, at the time of his death, if organs were successfully transplanted from his body, a substantial sum (perhaps $5,000 per major organ) would be paid to his designee (which of course could be a charity). The hospital in whose care the decedent died would have the legal duty, enforced by tort liability to the designee for his financial loss, to take appropriate care of the decedent's body and to notify the purchasing agency of his condition so that it could harvest his organs. Do not blanche at the thought of a market in so precious and sacred a thing as a cadaver. People are dying while the organs that could restore them to life, and that a market would provide, are being fed to worms. Were more to suffer and die for want of organs that a market would provide, the high minded pieties that support the prohibition would be revealed for the vacuous moral posturings that they are."

[This quote is taken from LifeTIMES Magazine (a publication of Stadtlanders Lifetime Pharmacy Program), p.20, Vol. III (2), Spring 1993. For a full exposition of Dr. Cohen's proposal, see "Increasing the Supply of Transplant Organs: The Virtues of a Futures Market" George Washington Law Review, 58:1 (1989)]

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thomas.peters.b.jpg (5567 bytes) Thomas G. Peters, M.D., former Director, Jacksonville Transplant Center at Methodist Medical Center,
and former UNOS Board Member

"Organ donation can be increased in two ways. First, with living donation, such as occurs with kidney transplantation, financial disincentives to donating a kidney must be removed. This should be done by government underwriting of workman's compensation, travel expenses for the donor, and limited life insurance surrounding the circumstances of giving a kidney.

The second way organ donation can increase is by expansion of cadaver donation. In order to expand the number of live-saving organs from cadaveric donors, motives to give consent for organ recovery must change. Currently, the only motive to a family of a potential donor is to help unknown recipients. Since this has not been very effective at obtaining the organs which are known to be available, other motives such as financial incentives (survivor benefits such as in Social Security), bereavement counseling, donor family recognition, and support for burial expenses must be considered.

Any of these incentives could be studied in the field and shown to be or not to be workable. It is now accepted that the life-saving resource going to organ recipients should be recognized as a service to fellow Americans -- just as military service is recognized by the Veterans Administration or a contribution to the Social Security program is recognized by the benefits paid in time of need."

[The above quote was taken also from LifeTIMES magazine, p.21 (see above).]

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blumstein.jpg (11719 bytes) James F. Blumstein, Centennial Professor of Law, Vanderbilt University Law School;
Director, Health Policy Center, Vanderbilt Institute for Public Policy Studies

[excerpts from "Government's Role in Organ Transplantation Policy", in Organ Transplantation Policy: Issues and Prospects, Duke University Press, 1989]
[...]
The National Organ Transplantation Act of 1984. ...
Interestingly, the one explicitly mandatory regulatory provision of the 1984 act was its ban on the purchase or sale of human organs, as that would affect interstate commerce. Under the statute, the term "human organ" was defined extremely broadly to cover "the human kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin, and any other human organ specified by the Secretary of Health and Human Services by regulation." Remarkably, the legislative history on this provision is extraordinarily sparse. The Senate report simply stated, "It is the sense of the committee that individuals or organizations should not profit by the sale of human organs for transplantation," but distinguished the sale of blood and blood derivatives, since "blood and blood derivatives...can be replenished and...donation does not compromise the health of the donor....The Committee believes that human body parts should not be viewed as commodities." The conference report is no more illuminating, merely indicating that the statute "intends to make the buying and selling of human organs unlawful."

...By prohibiting the sale, receipt, or transfer of a human organ "for valuable consideration," the government restricted the development of any type of direct financial inducement for enhancing the supply of organs, despite the congressional finding that the supply of transplantable organs fell far short of the medical need. ... The report's evident concern about compromising the health of the organ donor suggests its relevance to sales of organs by live donors; it would not seem to bear on the question of purchase or sale of cadaveric organs, even if consideration were paid during a person's lifetime.

... Certain potential pathways -- such as experimenting with markets for organs and with various forms of financial inducements for organ "donation" -- must now remain unexplored.

... Although the Uniform Anatomical Gift Act (UAGA) allows potential donors to control disposition of their organs by signing donor cards, apparently too few people sign those cards. The ban on financial inducements means that incentives are reduced for salespersons or others to seek out potential signees actively. Further, in the absence of a quid pro quo for the signing of a donor card and despite the legal authority derived from the UAGA to honor signed donor cards, the custom and practice in the organ transplant community is not to rely on a signed donor card but to seek independent approval from the family of a potential donor. That custom would surely change were the signing of the "donor" card viewed as contractual in character -- paid for, thereby conferring rights on the contracting party. The entire nature and perception of this transaction would necessarily change, as would the status of the earlier decision of a potential "donor" to commit to the use of his cadaveric organs for transplantation. If nothing else, such a contractual arrangement would create at least one (and possibly several) interested parties that could be counted on to seek enforcement of their contractual rights aggressively.

One clear cost of the absolutist stance embraced in the 1984 legislation -- i.e., the flat-out ban on the purchase or sale of organs for transplantation -- is the necessary emphasis on the request to families of potential organ donors at the time of a loved one's fatal illness. The unwillingness of transplant teams to accept organ donor cards, the low number of donor organ card signees, and the ban on financial incentives that would shift the locus of decisionmaking away from the patient's bedside to the luncheon table -- when a person is well and can consider his or her own future coolly and rationally -- all lead to the unhappy reliance on requests to families when they are in the greatest emotional pain. This is a high price indeed for a somewhat abstract ideological point -- the noncommoditization of organs and the zealous commitment to values of communitarian uplift through altruism.

[...]

The federal organ transplantation policy superstructure -- as envisioned by the task force report -- reflects intense hostility to pluralism, decentralized decisionmaking, profit-making, commercialization, competition, private choice, and even private property (as reflected in one's control of the disposition of one's own organs and one's ability to buy or sell organs). It may well be that the organ transplantation enterprise has peculiar characteristics that warrant some degree of specialized policy prescription. But the field currently suffers from ideological "hardening of the arteries." In other facets of health policy, the emerging consensus has been to require advocates for deviations from competitive norms and decentralized pluralism to bear a burden of justification -- and to narrowly tailor proposed deviations to cure specific, delimited market failures (Blumstein and Sloan 1978). The organ transplantation enterprise has indulged in an excess of romanticism, mandating altruism and communitarianism possibly at the expense of saving lives. This ideology has resulted in nonadherence to the private property rights approach toward organ donation of the UAGA, legally adopted in all fifty states. And ideology has resulted in romantic glorification of the symbolic act of next of kin donation of organs from the family members' dying relative, at the cost of a more rational (and compassionate) shifting of the timing of decisionmaking to an earlier stage, where potential "donors" (and with the lure of financial inducements) could confront their own mortality, self-interest, and altruistic desire for helping others in a more relaxed setting....

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hansmann.gif (6648 bytes) Henry Hansmann, Sam Harris Professor of Law, Yale Law School
[excerpt from "The Economics and Ethics of Markets for Human Organs", in Organ Transplantation Policy: Issues and Prospects, Duke University Press, 1989]

Abstract In 1984, federal legislation outlawing payment for human organs for transplantation was adopted after only cursory discussion of the underlying policy issues. More considered analysis suggests that this prohibition may be overly broad. It appears possible to design suitably regulated market-type approaches to the acquisition and allocation of cadaveric organs (and perhaps of organs from living donors as well) that will be neither unduly offensive to ethical sensibilities nor easily abused and that may yield significant improvements over the existing system of organ procurement, which presents important ethical and practical problems of its own. Moreover, whatever ultimate judgment we reach concerning the merits of markets for transplantable organs, analysis of the sources of the initial moral resistance to the commercialization that lies behind measures such as the 1984 legislation offers insights into the respective roles of market and nonmarket institutions in general.

[...]

Too many organs? A final, perverse problem that could arise from an effort to employ market incentives to procure organs -- whether from living donors or from cadavers -- is that such an approach might be so much more effective than the existing voluntary donation system that it would put extreme pressure on current methods for rationing transplantable organs. Transplants are extremely expensive: a heart transplant costs between $60,000 and $110,000 and a liver transplant costs between $70,000 and $240,000 (U.S. DHHS 1986:99). Most of these costs are covered by public funds. Nevertheless, at present there are no policies to limit the number of transplants that are performed in the United States. Rather, an effort is made to transplant all organs that are donated. Thus, the rate of donations is the only limit on the number of transplants performed. Because potential recipients considerably outnumber donors, current policy seeks to ration the existing supply to those individuals who will benefit the most from a transplant -- such as those who are relatively young, otherwise healthy, and potentially productive. Consequently it is arguable that, despite their high cost, most or all of the organ transplants that are performed are justified in the sense that social benefits exceed social costs (although there seem to have been no careful efforts to study the matter).
But if the supply of organs were to increase substantially, society might be faced with a difficult choice. On the one hand, the policy of transplanting all available organs could be maintained. But this might require devoting an extremely large amount of society's resources to transplants. And with a larger supply of organs, an increasing number of recipients would come from among those who would have only a small chance of gaining from the transplant an appreciable number of years of productive life. On the other hand, the government could decide that there are some individuals for whom it will not cover the expense of a transplant even if an organ is available for which there is no other use. Either course might be painful. So long as the number of organs available for transplantation is severely limited, these alternatives need not be confronted. Thus, in a sense it is convenient to have a severe limit on the availability of organs. Perhaps part of the reason that our society has not more aggressively sought ways to increase the supply of organs -- including, perhaps, market incentive schemes such as the kind suggested above -- is that we are not eager to confront the extremely difficult and expensive problems of allocation that would result if we were successful. [Editor's note: Al Gore, when he was a congressman holding hearings on the subject in 1984, stated that it is cheaper for society to do the transplants, because the long-term care of patients on waiting lists is actually more costly. I don't know whether he figured in the marginal cases that Dr. Hansmann mentioned, however. In other words, Mr. Gore's figures may not have included patients in very poor health, whose prognosis after transplant surgery might not be positive.]

[...]

Dr. Hansmann concludes with the following: "Given the disabilities of the current system for obtaining and allocating organs and the improvements that are at least potentially available by permitting appropriate forms of compensation, the present blanket prohibition on any form of payment seems extreme. Consequently, there is a good case for reforming federal and state law to permit judicious experimentation with suitably regulated markets both to procure and to distribute human organs."

Click here for a fuller version of Professor Hansmann's essay. It includes some history regarding ownership of cadavers, and a thorough analysis of various market options, including reduced health insurance premiums, for those who agree to donate organs after death.

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merrill.matthews2.jpg (17942 bytes) Merrill Matthews, Jr., as of 1995.

[excerpts from an article, "Have a Heart, But Pay For It," in Insight Magazine, January 9, 1995)

The real question is not whether a market for human organs or other bodily tissue should exist; it already does. According to the United Network for Organ Sharing, in the United States alone more than 50,000 people needed a human organ in 1993. More than 2,885 people died before receiving one. In 1992, about 4,500 people donated organs and, although the average was about 3.5 organs per donor, that left the supply far short of the demand.

...Organ transplantation has become a lucrative venture, and more and more health care providers are entering the market. Thousands of dollars go to the doctors and hospitals performing the transplants and thousands more to nonprofit organizations that procure the organs. According to a 1993 article in the Journal of the American Medical Association, for example, organ procurement charges in 1988 ranged from $16,000 to $21,000 (1991 dollars). But all the donor or donor's estate can receive is reimbursement for any actual expenses and lost time. No compensation or consideration of any kind legally can pass from the recipient to organ donors or their heirs -- regardless of how poor the donor might be.

That's because the National Organ Transplant Act of 1984 prohibits "any person to knowingly acquire, receive or otherwise transfer any human organ for valuable consideration for use in human transplantation." As a result, the only legal reason for a person or a person's surrogates to donate one or more organs is altruism.

1. Human organs should not be viewed as commodities. [This is the justification given by the U.S. Senate when they banned organ selling in 1984.] But they already are commodities, in the sense of being desired objects that are routinely transported from one place to another. Here at the University of Pittsburgh Medical School, transplant surgeons carry human organs around in Igloo containers, and these organs have come from all over the country. Is it morally preferable to allow patients and their families to undergo unrelenting mental and physical suffering, followed by certain death for thousands of them each year, just so we can maintain a pristine, fairy tale notion that the human body is literally priceless? [back]

2. It'll discourage people from donating, and taint the whole process with greed. It is true that some people who now donate would prefer to receive some monetary compensation when they give the gift of life. But doctors and hospital personnel already earn a very good living from the process. Why should those who actually provide the organs be the only ones who don't receive any monetary compensation? And, frankly, I wouldn't want to have my life depend entirely on a stranger's generosity when it could more reliably depend on their own self-interest. [back]


3. Poor people will sell one of their kidneys, and end up with health problems that are not only a tragedy for them, but something the rest of us have to deal with. No. We're proposing only to legalize monetary compensation for cadaver organs, not for organs from the living. [We note, however, that the latter is already happening for kidneys and bone marrow, and even for removal of part of the liver, which can regenerate. If a greatly increased supply of cadaveric organs is not enough to meet the demand, we'd find nothing wrong with exploring monetary compensation for regenerable organs from the living, or even for a kidney, since that does not jeopardize one's health.] [back]


4. People will start killing each other, and selling the organs to unscrupulous organ brokers. Murder will continue to be illegal, with all the risks associated with it. And, because there would soon be no shortage of organs under our proposal, monetary incentive for such illegal activity would be minimal. In addition, hospitals would have no need to deal with shady organizations. Besides, there's actually a greater likelihood of people being killed for their organs under our current system, due to the huge shortage. (In fact, there have been credible reports that prisoners in communist China have been executed on a timetable that allows their organs to be harvested and sold to buyers overseas.) [back]


5. Isn't there a danger that, under your proposal, we'll have so many organs that doing all of the transplants will bankrupt our health care system?
ANSWER #1: quoting Al Gore from a July 29, 1983 U.S. House hearing (p.14): "The biggest irony in this whole issue is that the studies indicate that the cost of terminal care for the long period of time these children and other patients survive up until the point of their death - the cost of that terminal care - exceeds the cost of the transplant which would save their lives and avoid the cost of the terminal care."
ANSWER #2: Hmmm...that actually COULD be a problem! Maybe we should get government out of the health care field entirely, and let people deal with one another on a free, voluntary basis to satisfy their needs, much as we do with our other important needs, like food, clothing, shelter, etc. If government were to let us keep more of our own money, we'd be able to afford to pay for routine medical expenses out of pocket, and insurance could easily cover those rare but costly procedures like organ transplantation. [back]

6. It doesn't cost anyone anything to give up their organs after they're dead, so why should they or their estate receive any compensation? You could make the same claim for Saudi Arabian oil. It wasn't doing the Saudi's any good, with their nomadic life, so why shouldn't they let our oil companies come in and take it for free? Our companies would do all the work. And, so the argument goes, the Arabs could and should feel good about themselves, as they were helping their fellow men. But how much gas would we have for our cars if we depended on Saudi generosity, rather than their own self-interest? And, when you stop to think of it, the Saudi oil sheiks are less deserving of the payment for their country's oil than people are for their organs, because that oil properly belongs equally to all of the Saudi people, whereas individuals are the proper owners of their own bodies. [I'm indebted to Dave Glasser for this analogy.] [back]

7. This question comes from Dr. L.B. How much is a given organ worth? $3000 doesn't seem like very much money in a free market organ selling system. I can envision that higher or rising market prices for organs could lead to prohibitive expenses for recipients with less resources, i.e., only the rich could afford an organ under such a system. Wasn't there an organ offered on ebay for over a million? Why give one away when you can sell it for much more? First of all, organs are already very costly. The organ procurement organizations we have now are part of one big monopoly, and their charges for organs (~$25,000 for a kidney) are set by fiat, not by market processes. Secondly, we're only proposing to change the procurement end of the system, not the delivery end. Hospitals and transplant surgeons could still allocate organs on the same "as need" basis that they do now, largely independent of ability to pay. Thirdly, when you assume that it is immoral for the rich to receive better health care than the poor, you begin a headfirst slide down a slippery slope to communism, because, for example, the rich already can afford better doctors, safer cars, don't have to experience the danger of working in coal mines or meat-packing plants, etc. Poverty is an important and relevant issue, however, and I touch lightly on it elsewhere. Finally, the rich only can use so many organs, and since the supply would be adequate to meet everyone's needs, the market price could not be prohibitive (in fact, $300 for partial funeral reimbursement might be enough to greatly increase the supply.) It is true, however, that if we allow price to be a factor, the wealthiest patients would tend to get the healthiest organs.
Continuing. Since a true free market requires freedom at both ends, that means that organ brokers would be free to seek the highest price for their organs. Because the medical field itself is a monopoly (one cannot practice medicine without a license, and the medical profession limits the number of doctors), transplant surgeons and hospitals have no "outside" competition. Thus, they are free to agree amonst themselves never to pay more than, say, the current $25,000 for a kidney, without having to deal with the normal market pressure of others getting into the business who might be willing to pay more for organs, in the knowledge that many patients would be willing to pay a bit more for a transplant now, rather than waiting an indefinite period of time for a cheaper transplant via the normal channels. But competition need not come only from within this country, and we cannot easily control what other countries do. Thus, such a monopolistic strategy might result in some organ brokerage firms selling their organs to overseas hospitals that treat only rich patients, and who are thus willing and able to pay much higher prices for organs in order to get all that they need. We could continue our authoritarian ways and create laws to prohibit such sales to foreign hospitals. But that, in turn, might create an incentive for people to go overseas to die, so that their organs could be sold and their heirs could reap the hefty financial reward. Shall we then prohibit our citizens from freely traveling the world? God save us from the control freaks!
Are any such fears justified? I doubt it. Let's look at that current $25,000 cost for a kidney more carefully. It's certainly conceivable that a free market price would be higher, since it would have to encompass the price paid to donors or their estates. But I'd be willing to bet that costs elsewhere in the procurement system (such as administrators' and/or organ retrieval surgeons' salaries) would come down substantially, due to competitive pressure, leaving the final cost the same or, more likely, even less than it is now. (Economists talk about a "bureaucratic rule of two," which states that a service provided by a government bureaucracy always costs twice what a free market system does.)

upply & Demand [sidebar]
As the demand for kidneys shoots up, is there any way to increase the supply without legalizing a live donor market? In the United States and other developed countries, the technology exists to remove kidneys from cadavers, freeze them, match them to a potential recipient through a centralized directory and then quickly deliver them. Under the Uniform Anatomical Gift Act, people can authorize the postmortem donation of their organs, and in most states people can indicate on their driver's licenses if they are willing to let their organs be removed for transplanting.
Yet in spite of encouragement from doctors, the government and some religious leaders, many people simply refuse. There are some 15,000 to 25,000 deaths of healthy people in the United States every year, but only about 20 percent of those result in donations, leaving the supply far short of the 13,000 to 15,000 kidneys needed every year.
"The harsh reality is that, with respect to cadaver donation, you're never going to get enough to meet demand," says Arthur L. Caplan, a medical ethicist at the University of Minnesota.
Caplan and others believe that while the debate on allowing people to sell their organs may heat up in the future, there are so many complex practical and ethical issues involved that the laws are unlikely to change.
The organ shortages of the future will probably be met by other means, they say: Xenografting - or transplanting animal organs into humans - remains a promising solution, and the use of mechanical devices to replace certain organs is also developing.
And as biotechnology develops, it may eventually be possible to grow whole organs from a few cells - making test tubes the organ donors of the future. [end sidebar]

[The article is long, and continues to document the horrors of the trade. I can't help but note the similarity between this and the trade in illegal, recreational drugs, where the government "solution" is a hundred times worse than the perceived problem. Reagan was largely correct when he said, "Government isn't the solution. Government is the problem."]