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Abstract

The medical ability to use the human body to treat others has created numerous ethical dilemmas requiring legal resolution. The search for ethically accepted means to increase the number of available organs for transplantation involves different strategies to incentivize possible donors. This entry focuses on market incentives, including the arguments for and against compensating organ donors/sellers. In addressing a possible change to the current prohibition on paying for organs, innovative regulatory models are explored.

Introduction

Advancements in medical technology, pharmacology, immunology, and medical care have all enabled one of the greatest achievements of modern medicine – organ transplantation. Understanding complex organ physiology, overcoming the body’s immunologic rejection of nonself tissues, mastering surgical challenges, and postoperative complications have all contributed to the feasibility and current remarkable success rate of transplantation medicine. While xenotransplantation (organs coming from animals) and artiﬁcial organs still play or will play a role in meeting the growing demand for organ replacement, the vast majority of organs for transplantation comes from another human being – either live donation or from the deceased (formerly termed “cadaveric donation”).

The mere fact that one’s human body can provide life-saving remedies for others creates a host of ethical concerns, requiring in turn legal resolutions and regulatory actions. These ethical concerns pertain to all stages of the transplantation process and all parties involved, including:

(a) Identifying acceptable donors – for example – age limitation for sibling donation, conditioning donations on mental capacity; using organs from executed prisoners; the requirement of familial or emotional relation between the live donor and the recipient; the need to follow the expressed will of the deceased to donate or abstain from donation and the role of families; interpreting the silence of the deceased in respect to his willingness to donate

(b) Allocation criteria for and prioritization of patients on the waiting list of recipients – for example, medical status; age; length of waiting period; the incorporation of nonmedical criterion such as being a former donor or carrying a donor card; the signiﬁcance of self-inﬂicted disease such as alcoholic-related liver failure; availability of post transplantation care such as antirejection medication, to avoid waste of recurrent organ failure

(c) The role of families – for example – should family members be consulted in face of a clear indication of the deceased in respect to organ donation (be it positive or negative); the rights of families to designated/inﬂuence the identity of the recipient (“you can take the organs but only allocate them to speciﬁc gender/ethnicity/religion/other donor card holders”)

(d) The role of the medical team – for example – in live donation, harming one person to beneﬁt another; the duty of identifying prospective donors; handling the medical care of prospective donors while assuring that their medical management decision are not inﬂuenced by organ retrieval considerations; the difﬁculties of approaching grieving families for the purpose of organ retrieval; placing patients on the waiting list, reporting their status accurately, and allocating the organs to patients on the waiting list

(e) The role of the government in facilitating the acquisition and distribution of organs – for example – determining the consenting default policy for deceased donors – opt-in (medical teams will not remove organ absent explicit consent such as a donor card) or opt-out (also known as presumed consent; since all citizens are eligible recipients, all should be regarded as donor unless they explicitly refuse to do so); should the State treat differently those citizens refusing to participate in the consenting pool of prospective donors carrying a donor card; allocation of funds for transplantation centres.

In reality, all these and other concerns are greatly intensiﬁed by the deadly gap between the demand and supply – thousands of people die every year only because a needed organ was not available when and where these patients needed them. As of December 2014, over 125,000 Americans are on the waiting list for life-saving organs, while the actual need is even greater. Over 7,000 patients die or are removed from the list for being too sick to be transplanted only because an organ was not available for them. In addition, data suggests that the number of patients dying in circumstances that allow useful organ retrieval is sufﬁcient to meet the need for life-saving organs. Thus, the system’s design should be revised to see if modiﬁcations, adaptations, or change of policies are in order. In other words, one should not forget that while we may ponder on ethical, legal, or social concerns, real people with real diseases are dying every day, deaths that are avoidable (IOM 2006).

In face of such a lethal shortage, unmatched demand lends itself also to market solutions. A market model requires identifying appropriate incentives so more people would be willing to donate their organs while alive or after death (by enriching their estate). Thus, the ethics of permissible incentives becomes a crucial element in such discussion, leading to legislation or regulation in this delicate area. This entry focuses on ﬁnancial incentives to increase the availability of life-saving organs relying in market theory and practices i.e. should the sale of organs be allowed? It is worth noting that ﬁnancial incentives could be either for live organs donation (such as one kidney or part of a lung/liver) or for donating organs after one’s death. Clearly, harming a live person to improve the health of another adds another layer of ethical complexity, much less an issue in postmortem donation.

Ethical Dimensions: Markets For Organs

A survey of national legislation around the globe will be quite boring – all countries, except for a handful deviators (for example Iran), unanimously forbid the sale of organs. Such international agreement has been formalized in several documents and declaration of the United Nations and the World Health Organization (see http://www. unodc.org/documents/human-trafﬁcking/Toolkitﬁles/08-58296_tool_9-19.pdf). In short – selling organs or aiding to such a trade, trafﬁcking organ within or between countries are perceived as morally wrong. A common wording in such statutes would decree unlawful to “knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation.” (National Organ Transplant Act, 42 U.S.C. § 273 and similar wording of the UK Human Tissue Act.) Usually, Acts deﬁne “human organ” as “the human kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and any other human organ (or any subpart thereof),” but not sperm or female ova (egg), and that “valuable consideration” does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.

What are the main reasons behind such unequivocal stance? The following arguments have been raised:

Commodiﬁcation of the human body would harm revered principles such as human dignity leading to degradation of the sanctity of human life or de-appreciation of human interrelationships. Indeed, a ban on organ trade is aligned with other bans on practices that commodify the human body such as slavery or human trafﬁcking of sex workers. In this regard, many have chosen to replace the term “organ donors” with the more accurate term “sellers” (as should similarly be employed for sperm “donors”/“sellers”). One is left to wonder why sperm or egg “donation” is acceptable, even though it is clearly a for-proﬁt transaction and not a donation. Some argue that the sperm is a regenerative tissue, but this is not the case for female eggs (a female is born with a ﬁx number of ovum/eggs). Also, liver tissue is regenerative and therefore the sale of partial liver should have been allowed. The risk argument is based on the risk-free of sperm donation. Once again, this is not the case for female ova donation, as she is treated with possibly harmful hormones and the retrieval is via an invasive procedure. Also, the risks of kidney donation are considered by many negligible, and therefore should have been allowed as well. Clearly, coherency is not necessarily a remarkable feature in the legislator/regulatory response to organ trade.

Allowing an option to proﬁt from organ donation would be detrimental to altruism. Indeed, 50 years of public campaigns framed organ donation as a “gift of life”, where one acts in a supererogatory, nobble way, without expecting any consideration, a token of trans humanism neighbor’s love. Harming altruism by introducing a monetary gain would create several negative side effects: it will lower the number of altruistic donation because altruistic-driven people might abstain in light of peers reaping a pecuniary gain and would also increase the price of transplantation medicine. Moreover, it will remove an important social practice of altruistic donation, vital for maintaining and strengthening community’s cohesion and positive social norms.

The fear of exploiting or even coercion of the vulnerable parts of society or people from developing countries – the destitute, the illiterate, the marginalized – is a constant concern, as only those in such unfortunate conditions would be willing to risk their lives for a pecuniary gain (see Naqvi et al. 2007, showing how in Pakistan, 90 % of organ seller were illiterate, gaining less than $30/month and/or owing a substantial debt). In addition, as the lower socioeconomic parts would be enticed to sell, the health status of the seller must be of prime concern (such as who would look after the seller, are there more health risks involved in obtaining these organ for both the donor and the recipient?). Finally, current practices in developing countries are alarming. Several abhorrent crimes of forceful removal of organs, or practices in China of removing organs from executed prisoners in the 1990–2000s have been vivid testimonies to evils performed once money becomes a pivotal element in the transplantation scene (Greenberg 2013).

Equality and fair access to organs – allowing trade in organs would offer the afﬂuent an advantage in access to life-saving organs. Clearly, in market scenarios, those with the upper economic hand would fare better. While in other walks of life money can be advantageous, life-saving organs should be protected and beyond the control of market forces. In this regard, in countries with national health insurance, eligibility for organ donation is guaranteed to all. In countries where entitlement to receive an organ depends on available coverage, just allocation is not practiced, and people without proper insurance are not even placed on the waiting list (Siegal and Bonnie 2006).

But opposite arguments should be also considered to allow an organ trade:

On part of those waiting on the waiting list and facing eminent death or continuous disability (for example, dialysis treatment every 3 days for 6–8 h), it is extremely hard to ignore their interest in saving their lives, especially when their life can be saved by a modest-risk taking action. Assuming we all support altruistic live donation (for example, a kidney), the undeniable fact is that after the donation the donor is left without the donated organ, a harm/blemish we allow. At this stage one must ask himself whether the injury to the donor is justiﬁed. If the answer is afﬁrmative, in light of the beneﬁts to the recipient and the minute health risks the donor assumes, the fact that the donor also receives a beneﬁt should not be deplorable. One cannot vindicate the injury to the donor only by eliminating his entitlement for compensation. In the case of deceased donors, compensating the estate should create even a lesser problem. Flipping this point, the fact that all parties to transplantation medicine are reimbursed or are heftily paid, including the organ procurement organization (some $60–80,000); hospital (between $300,000 and 1,000,000 for kidney and heart transplantation respectively); and insurance companies or Medicare/Medicaid are saving a great deal of money because patients are removed from organ-replacement therapy such as dialysis ($120,000 a year) or do not require expensive hospitalization due to their deteriorating medical condition. Thus, while all seem to proﬁt, the organ supply side is required to wave all ﬁnancial compensation. In legal terms, as all beneﬁt from the donor’s altruistic action, undue enrichment (beneﬁting at another’s expense) claims can be conceived.

The coercion/exploitation argument requires further inquiry. Absent an altruistic motive, the willingness to subject oneself to the risks and discomfort of organ donation must be the result of such unacceptable forces. Yet, is coercion, ﬁnancial exploitation or duress only feared when live donation occurs between nonrelated strangers that is the most noticeable transaction that raises such concerns? It is easy to imagine, and practitioners can attest to many interfamilial situation when extreme pressure is directed towards a family member who actually is reluctant to donate but cannot resist the familial pressure, or where ﬁnancial arrangements have been made to compensate the donor within the family. Such circumstances should generate two ramiﬁcations: First, the intuition that “donations within families must be OK” should be replaced with a more skeptical stance, and mechanisms such as live donation committees, or social worker and psychological evaluation should be in charge of exploring possible illegitimate coercion/duress. But more pertinent to this discussion, the mere fact that we allow live donation, irrespective of familial attachments, lends itself to all sorts of motivations and since part of the live donor pool is “acceptable,” a more lenient attitude can be exerted towards the remaining part (Cohen 2014).

Is Regulated Organ Trade Permissible Or Feasible?

Many scholars and practitioners in recent years have questioned the ban on organ trade, yet acknowledged the need to move in a secure, protracted fashion as to be able to assess the possible consequences of a policy change. While the abovementioned opposing arguments for organ trade are convincing, their respective weight depends on the regulatory environment in which organ trade is contemplated. The fact that abuses take place in some part of the world should not be a deﬁnite reason why many other parts of the world should abstain from such a practice if their political and civic structure can avert such risks. A familiar example is sex selection of pre-embryos – while such a practice should be banned in societies with strong gender biases (leading sometimes to abhorrent practices such as infanticide of female newborns), other societies can have a more relaxed policy since the potential risks are fundamentally different. Indeed the main reason to forbid organ trafﬁc rests on the assumption that such transactions take place in a free market environment, where and when regulation is lacking and abuses abound. Such construction should be avoided due to the risks and shortcomings previously described. However, markets that are operating in a regulated environment can substantially reduce much of these risks. The following provides a summary of several elements that were suggested to diminish some of the opposition to organ trade, attempting to balance ethical analysis, legal precedents, and the harsh medical reality of avoidable death of in-need patients. The underlying imperative is that allowing organ trade must beneﬁt individuals as well as the collective good, thus requiring a concerted regulated action.

Procurement – In a regulated market, organs can be procured only by state-authorized medical institutions, where governmental oversight is the rule and practices and procedures are strictly followed. As transplantation medicine does not happen in dark allies or hidden basements – it requires substantial clinical effort, coordination, and expertise, the locus of regulation is easily identiﬁable, and the hospitals should be routinely scrutinized for compliance. It follows that significant sanctions (revoking the medical centre’s licence to conduct transplantation, disciplinary measure against doctors and executives) can be create needed and effective deterrence to deincentivise unacceptable practices. No link between donor/sellers and recipients would be permissible, as the seller offer his organ to the collective pool of patients on the waiting list, without directing it to a speciﬁed individual. Finally, all donors should be entitled to postoperative care.

Allocation – In a regulated market, no advantage will be given to afﬂuent patients on the waiting list, as allocation will be based solely on medical need, thereby blinding the waiting list to the ﬁnancial status of the recipient. Eligibility should be based solely on medical condition and coverage offered to all. The waiting list’s priority and allocation criterion provides an easy point of scrutiny and veriﬁcation, and abuses (unlawful jumping the queue) can be easily detected and sanctioned.

Consideration – In a regulated market, consideration should be strategically designed as to yield the greatest beneﬁt to individuals selling/donating their organs and to society. Once regulated, the designer has many vehicles to reach optimal cost-beneﬁt equilibrium. For example, instead of a price per organ, a regulated market could create signiﬁcant payoffs to donors, based on their real needs – access to food stamps, education, healthcare, housing opportunities, and similar economic beneﬁts that translates into providing donors with a better starting point rather than throwing cash their way. The controlled consideration should not require major upheaval in the way society currently address poverty and other social disparities, and current mechanism could provide such a personalized approach. Noticeably, a regulated market has a strong paternalistic impetus, usually frown-upon in liberal societies. However, in this delicate situation, protective rather than hands-off policy seems warranted. Finally, assuring fair reimbursement for donor’s direct and indirect expenses (lost wages, hospitalization, and postoperative care) is already an accepted and essential feature.

Conclusion

The ability to save life by transplantation medicine is a true revolution. After mastering the medical challenges, we are left with the need to orchestrate the social vehicles to meet the need for organs.

After some 50 years of negating organ trade while attempting other avenues and witnessing the needless deaths of too many, it seems the time is right for reconsidering a more permissible policy towards organ trade, under the condition of a regulated market. The possibility to compensate live donors or the estate of deceased donors could be open to ethical negotiation and renegotiation.

Bibliography :

Childress, J. F., & Liverman, C. T. (2006). Committee on increasing rates of organ donation. Washington, DC: Institute of Medicine (IOM).
Cohen, I. G. (2014). Regulating the organ market: From normative arguments to regulation. Law and Contemporary Problems, 77, 71–143.
Greenberg, O. (2013). The global organ trade. Cambridge Quarterly of Healthcare Ethics, 22, 238–245.
Naqvi, A., et al. (2007). A socioeconomic survey of kidney vendors in Pakistan. Transplant International, 20, 934.
Siegal, G., & Bonnie, R. J. (2006). Closing the organ gap. The Journal of Law, Medicine and Ethics, 34, 415–429.
David, P. (2000). The legal and ethical aspects of organ donation. Cambridge, UK: Cambridge University Press.