A Step Closer to Organ Sales?

A group called "Waitlist Zero" is making news for backing a proposal called the "End Kidney Deaths Act." Said proposal has bipartisan support and would encourage organ donations by offering a tax credit to donors during a ten year pilot program. (The tax credit is "refundable," meaning that even if someone did not owe taxes, he would get a government check for the amount.)

Predictably, the proposal has attracted flak:

"I think the act would not increase organ availability," says Alexander Capron, a professor emeritus of health care, law, policy and ethics at the University of Southern California. "When something goes from being something which people give to being something that is bought, the givers stop giving." [Ever heard of food drives? --ed]

He also worries that a U.S. program to incentivize living kidney donors could undermine global efforts to end the illicit organ trade. [How? By making sure there's a paper trail between donor and recipient? --ed]

"I think it would be irresponsible of us to ignore the spillover effect," he says. "If the United States allowed payments, the countries where people are trying very hard and succeeding very well in stopping (illicit organ) trade -- the Philippines, Pakistan, India, Turkey -- would have a much harder time getting their governments to take this seriously." [(a) How? (Again), and (b) The purpose of our government is to protect the rights of American citizens. It is up to the citizens of these other countries to hold their own governments to better account, flee, or help replace them. --ed] [bold added]

Lets start with the last ridiculous objection, since it gets to the heart of the good and the bad of this proposal: rights.

Years ago, David Holcberg of the Ayn Rand Institute penned an op-ed titled, "To Save Lives, Legalize Trade in Organs," arguing in part:

[T]he decision to sell an organ is a very serious one, and should not be taken lightly. That some people might make irrational choices, however, is no reason to violate the rights of everyone. If the law recognizes our right to give away an organ, it should also recognize our right to sell an organ.

The objection that people would murder to sell their victims' organs should be dismissed as the scaremongering that it is. Indeed, the financial lure of such difficult-to-execute criminal action is today far greater than it would be if patients could legally and openly buy the organs they need.

Image by Scientific Animations, via Wikimedia Commons, license.

Opponents of a free market in organs also argue that it would benefit only those who could afford to pay -- not necessarily those in most desperate need. But the need of some people does not give our government the right to damage the lives of others, either by forbidding individuals to sell their organs or by prohibiting individuals from buying organs to further their lives. Those who could afford to buy organs would benefit at no one's expense but their own. Those unable to pay would still be able to rely on charity, as they do today. And a free market would enhance the ability of charitable organizations to procure organs for them. [bold added]

Since the term government regulation is so equivocal (and this mixed-economy proposal won't help it become any clearer), let's consider the good and the bad aspects of this proposed regulated market.

As I noted earlier, the paper trail this would surely require would mimic that required under capitalism (and much like euthanasia laws do in Europe) in that every party involved would take great pains to ensure that the organ removal for sale would be consensual.

In this respect, the transaction is protected by contracts among the individuals involved, and is "regulated" in the sense of the term implying that individual rights are protected.

Unfortunately, (1) making this part of the massively rights-violating tax code, (2) forbidding a sale from one individual to another, (3) forbidding the seller from setting his own price, and (4) sometimes even using money stolen from third parties to finance an organ transfer -- among other things -- take the proposal very far from the ideal. All of these aspects of the proposal are examples of government continuing to abridge individual rights, of the negative meaning of government regulation as violating the right to contract.

Thus it would be more accurate to say that the proposal would set up an imperfect marketplace that would fundamentally ensure that these organ quasi-sales weren't being coerced.

This is better than no marketplace at all, and certainly better than the government harvesting organs from accident victims by default (as has been proposed).

It is also encouraging that the proposal is causing a conversation about legalized organ sales, with the caveat that its impetus is pragmatic/altruist (e.g., to use less loot on dialysis) rather than moral (e.g., I have a right to buy an organ I need, or sell one, if I think that serves my interests best.)

Overall, I very cautiously applaud the effort.

-- CAV