Altruism and Valuable Consideration in Organ Transplantation
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Description
The present legal regime for organ transplantation in the United States was created by the National Organ Transplant Act (NOTA) of 1984, which includes an uncompromising prohibition of organ transplants performed for "valuable consideration." With that prohibition, NOTA has enshrined altruism as the watchword of the transplantation establishment. Thus, the Transplantation Society proclaims, "Organs and tissues should be freely given without commercial consideration or financial profit." Unfortunately, the chief consequence of this policy choice is a persistent and growing shortage of transplantable organs. Even detractors of market transactions in organs grudgingly recognize that exhortation and other half-measures have not shortened the ever-longer queues for kidneys and other transplantable organs. Not surprisingly, the growing kidney shortage has spurred demands for some liberalization of NOTA's prohibition by allowing, at the very least, a regulated market that provides some compensation for living transferors (who can no longer be called donors). According to Sheila and David Rothman, "The idea of establishing a market for organs, although certainly not new, is now attracting unprecedented support." Some proponents of compensation for organ transplants have urged that the government purchase organs at stipulated prices and then distribute them in accordance with standard United Network for Organ Sharing (UNOS) criteria. Others, like myself, are willing to let prices vary freely in an open-market setting. Between these two positions are still other proposals that rely on tax or in-kind benefits (such as free health care to organ donors) to reduce or eliminate the current shortage. Nevertheless, defenders of the status quo raise a variety of ethical and practical objections to introducing any financial incentives. Their reform agenda stresses finding new incremental methods to increase the number of donated organs, whether through educational programs, the use of riskier (often infected) organs, or a redefinition of "death" (to include victims of fatal cardiac arrest as well as the brain dead) to expand the pool of organs for deceased-donor transplantation. Opponents of incentive programs insist that their imperfections, evident in developing nations such as Pakistan and India, will be replicated in the United States. They warn of the risk of transplanting diseased organs from paid donors who lie about their medical status to make the sale. And, finally, echoing the earlier work of Richard Titmuss on blood donations, they denounce paid transplants for impoverishing ignorant suppliers of organs and crowding out altruistic transactions. It is possible even to point to cases of fraudulent refusals by transplant intermediaries to pay for harvested organs on the bald assertion that the organs were not of usable quality. More philosophical critics fear that organ sales will lead to the commodification of the human body, a diminished respect for the voluntariness of consent, a compromise of individual autonomy, and a reduced level of emotional support within families. These objections are all overstated. None justifies NOTA's wholesale ban on organ transactions. Nor do they justify the large expenditures incurred in ineffective attempts to expand the organ supply within the NOTA framework. This chapter explores the philosophical and economic weaknesses of the prevailing legal regime for organ transplantation. In it I examine the inconsistent attitudes toward altruism that characterize current legal policy, and consider the choice between regulated and unregulated markets, advancing reasons to prefer the latter. Next we give some estimate of the value of a serviceable kidney and the net social gains we can expect from allowing kidney exchanges. Finally, we examine and reject any claim that financial incentives are self-defeating because they will "crowd out" voluntary donations.
Source Publication
Why Altruism Isn't Enough: The Case for Compensating Kidney Donors
Source Editors/Authors
Sally Satel
Publication Date
2008
Recommended Citation
Epstein, Richard A., "Altruism and Valuable Consideration in Organ Transplantation" (2008). Faculty Chapters. 390.
https://gretchen.law.nyu.edu/fac-chapt/390
