The bizarre case of former Barcelona footballer Eric Abidal has once more brought the issue of organ donation into the public eye. To recap, Spanish newspaper El Confidencial published reports suggesting that back in 2012 the club’s then president Sandro Rosell tried to buy the cancer-stricken player a liver on the black market and then claim the transplant had come from Abidal’s cousin, Gerard.
An investigation from Spain’s National Organ Transplant Organisation has since concluded that there was nothing untoward about the operation, or the source of the organ, though Spanish prosecutors may yet re-open the case.
But whatever the outcome of the investigation had been, the real issue at stake here has been largely neglected by the media. Most people take for granted that organs shouldn’t be on sale, and anything that resembles a market for organs is a moral aberration. But is this ethical view actually justified?
Except for Iran, which has a compensation system for kidney donors that resembles a market for organs, legislation in most countries forbid donors from receiving any financial compensation for selling their kidneys or (part of) their livers. Put in economic terms, governments establish a de facto price ceiling of £0 on organs from living donors, which results in a shortage that prevents thousands of patients from receiving a kidney or a liver.
Objections to organ sales are varied. In Markets without Limits, Jason Brennan and Peter Jaworski discuss and debunk many of them. Most arguments against a market for organs revolve around the concept of commodification, the idea that, by making parts of our body saleable, we are turning ourselves into mere commodities, which somehow deprives us of our dignity as human beings.
Yet many commodification objections are based upon abstract ethical arguments that pay no attention to the consequences of prohibition. A market for organs could be considered dehumanising in the abstract, but if we can show that legalising organ sales would positively impact societies in a tangible way, improving or even saving the lives of a countless number of people while benefiting potential donors along the way, those objections would be dwarfed by the tremendous welfare effects that the creation of such a market would bring about.
In fact, evidence suggests that allowing organ sales can be welfare-enhancing for both would-be sellers and recipients. First, as noted above, organ sales would increase the number of living transplants, reducing the waiting period that patients must endure nowadays. For those expecting a kidney transplant, this waiting period usually results in a poorer quality of life due to the ordeal of going through hemodialysis every few days. With liver transplants, the situation is much more serious: waiting lists result in the death of thousands of patients each year.
According to US data, between 1999 and 2005, more than 1,500 patients died each year waiting for a liver transplant. Costs related to kidney failure treatment also tend to be very high. In the US, these costs amounted to 6% of all total Medicare spending in 2010. If organ sales were regulated by law, the number of hemodialysis patients would be significantly reduced, freeing up resources that could go to improve other parts of the health care system.
The creation of an international framework that regulates the purchase and sale of organs would also reduce the size of the dangerous the black market for organs (at least the market concerning kidneys and livers), which needlessly risks the lives of thousands of people every year.
Added to that, sellers would receive a fair amount of money for their organs. Regardless of whether the price were established by the market or a government, it would surely be higher than what they get on the black market.
Leaving aside abstract ethical criticisms, which fall apart when confronted by the potential benefits of a legal market, it’s worth taking into account some utilitarian or consequentialist arguments against organ sales. What if, by legalising organ sales, low-income people end up being the main source of kidneys and livers for the benefit of well-off individuals?
Many classical liberals would argue that, as long as they do it voluntarily, this shouldn’t pose an ethical problem. Nevertheless, it is difficult to make a strong case for a system where the worst off may feel compelled to sell off their organs as a matter of financial necessity.
What can we do? As Brennan puts it: “Making kidney markets illegal is quite literally killing people. Many people think that markets in kidneys would have certain undesirable or exploitative features, but these problems can be overcome by designing and/or regulating the market appropriately.”
In other words, it isn’t so much the purchase and sale of organs that could result in unethical outcomes, but how the market is organised and regulated. In order to overcome this issue, we
could implement a market for kidneys and livers in which people earning less than a certain amount would be banned from selling their organs.
Alternatively, governments could still oversee the transplant system, but pay donors a fair price for their organs (in cash or non-cash benefits), excluding the lowest income deciles of the population. In both cases, we would bypass the objection while keeping many of the benefits of a market for organs.
Most commodification criticisms aren’t robust enough to override the potential benefits of a market for organs, which are tremendous. Furthermore, other more sensible objections can be dealt with by implementing the right regulations and incentives. At this point, maybe we should wonder if the unethical position isn’t to continue to support the status quo, which keeps thousands of patients in limbo awaiting an organ that, in many cases, will never arrive.