In 1988, the Markkula Center for Applied Ethics published an article, "Kidneys for Sale," which was posted about ten years later on our Web site. It addressed the ethical issues raised by the potential for a market in human body parts.
That article has inspired sporadic emails from people asking for advice about how to sell their organs. In recent years, as the economy has soured, we've noticed an uptick in the number of such messages. Here's a sample:
I just read your information about how many people need a kidney. I would like more information about it and how I could sell one of my kidneys to your university because I really need money. I want to go to college, but it's really expensive.
These correspondents raise some of the hard questions that are inspiring a reevaluation of the question: Should organ donation remain a completely altruistic "gift of life," or should donors be compensated? The Center's Emerging Issues Group, which meets weekly to discuss ethical issues in the news, addressed these questions at a recent session. This article outlines some of the crucial considerations raised during this discussion.
A Shortage of Donated Organs
First, a few facts about the acute shortage of kidneys. As of March 6, the waiting list in the United States for all organs was 113,143, with 91,015 waiting for kidneys. In 2011, there were a total of 15,417 kidney transplants in the United States, 10,185 from deceased donors and 5,232 from living donors.
"Data such as these underscore just how scarce organs are," says Margaret McLean, director of bioethics at the Markkula Center for Applied Ethics. "About 17 people die every day while waiting for a suitable organ. Although numerous strategies have been tried to increase the number of donors—from pink dots on driver's licenses to PR campaigns to donor reciprocal chains to organ swapping—we continue to come up short."
That shortage has led to many violations of both US and international laws against kidney sales. For example, this month the Chinese news agency Xinhua reported that a 17-year-old sold his kidney, which is illegal in China, to get enough money for an iPhone. He is now suffering from renal insufficiency. "Only the truly naïve imagine that organs are not currently being sold on the black market," McLean says. The International Business Times estimates that illegal organ sales constitute a $75 million per year industry.
Should such transactions be legalized? What are the ethical questions we should ask about the sale of kidneys?
The Commodification of Human Life
Even if legalizing organ sales might inspire more donations, many ethicists reject this approach because they fear where it may lead: to the commodification of human life. Cynthia Cohen from the Kennedy Institute of Ethics at Georgetown writes, "Human beings…are of incomparable ethical worth and admit of no equivalent. Each has a value that is beyond the contingencies of supply and demand or of any other relative estimation. They are priceless. Consequently, to sell an integral human body part is to corrupt the very meaning of human dignity."
Despite these concerns, the black market itself has put a value on human organs—about $5,000 according to most reports. Peter Minowitz, professor of political science at SCU, suggests, "The actuality is there's a thriving market for organs, even crossing global boundaries. So even though the sale of organs may, in itself, violate human dignity, that dignity is being violated now on a fairly large scale, especially among the most desperate. Maybe it would be better for them if we legalized the sale and imposed certain standards on it. It's a very complicated series of considerations, mixing moral judgment with what's going on in the real world."
Do No Harm
Undoubtedly, increasing the supply of living donors would be good for organ recipients. According to the Organ Procurement and Transplantation Network, about 90 percent of people who receive a living-donor kidney and 82 percent of those who received a deceased-donor kidney were alive five years after the transplant.
But what happens to the donors? "Usually, in medical ethics, we are looking at harm and good respective to a single patient," says McLean. "Here we are looking at harm and good for two patients where good is going to accrue to one and potential harm to the other."
Generally, kidney donation from a living donor is seen as a relatively safe procedure, as the human body functions adequately with only one kidney. The mortality rate for the removal of a kidney (nephrectomy) is between 0.02 and 0.03 percent, major complications affect 1.5 percent of patients, and minor complications affect 8.5 percent. The University of Maryland Transplant Center states:
The risks of donation are similar to those involved with any major surgery, such as bleeding and infection. Death resulting from kidney donation is extremely rare. Current research indicates that kidney donation does not change life expectancy or increase a person’s risks of developing kidney disease or other health problems.
While this picture may accurately reflect the experience of donors in first world countries, those in the developing world report less benign outcomes. Madhav Goyal, Ravindra Mehta, Lawrence Schneiderman, and Ashwini Sehgal studied 305 residents of Chennai, India, who had sold their organs. Participants were asked to rate their health status before and after the operation. Eighty-nine percent of the respondents reported at least some decline in their health. "Fifty percent complained of persistent pain at the nephrectomy site and 33 percent complained of long-term back pain."
McLean points out that society also incurs risks when someone donates a kidney. "Who pays if the donor is harmed or develops renal failure of unrelated etiology 15 years later and needs a transplant?" she asks.
In bioethics, where the first rule is "Do no harm," can the sale of kidneys be judged to conform to this basic principle? Are there better ways to protect donors so that no disproportional harm comes to them?
The Problem of Exploitation and Informed Consent
The Indian experience points to another of the key objections that have been raised against the sale of organs: the danger that poor people will be exploited in the transaction. Nicky Santos, S.J., visiting scholar at the Ethics Center and an expert on marketing strategy for impoverished market segments, argues strongly that desperation "drives the poor to make choices which are not really in their best interests." Such lopsided transactions may exacerbate already existing inequities, where the rich have access to excellent health care and the poor do not.
That was the conclusion of the Bellagio Task Force Report to the International Red Cross on "Transplantation, Bodily Integrity, and the International Traffic in Organs":
Existing social and political inequities are such that commercialization would put powerless and deprived people at still graver risk. The physical well-being of disadvantaged populations, especially in developing countries, is already placed in jeopardy by a variety of causes, including the hazards of inadequate nutrition, substandard housing, unclean water, and parasitic infection. In these circumstances, adding organ sale to this roster would be to subject an already vulnerable group to yet another threat to its physical health and bodily integrity.
On the other hand, some view this attitude as paternalistic. "You could raise the question," says Michael McFarland, S.J., "Are the rich or those in power in a position to tell the poor they are not capable of making a decision? Doesn't that violate their human dignity? It seems to me that a person in desperate circumstances could be making a perfectly rational decision that the sale of a kidney is in his or her best interests."
McFarland, a Center visiting scholar and the former president of College of the Holy Cross, goes on, "You could see the sale of organs as a way for the poor to derive some benefit from donating an organ, which they wouldn't otherwise get. For example, if a poor person was willing to donate a kidney but couldn't afford to take the time off, wouldn't it be reasonable to allow him or her to be compensated for that time?"
More people might be persuaded by this argument if, in fact, kidney sales really did help the poor financially. But in India, donors often did not receive the benefit they expected from the sale of their organs. Ninety-six percent of the people in the study had agreed to the donation to pay off a debt, but six years after the operation, 74 percent of those studied still owed money.
Most of the benefit from organ sales goes to middlemen. Havocscope, which monitors black markets, found last May that the average reported amount paid to kidney donors was $5,000, while the average price paid by recipients was $150,000. "The real injustice to the poor is they are getting so little, while those who are involved in these illegal sales are getting all the money," says Rev. Brendan McGuire, vicar general of the Diocese of San Jose.
Santos believes that the poor cannot really make free decisions to sell their organs because they are so driven by their dire circumstances. McFarland agrees that the issue of consent is the real sticking point for creating a market for organs. "I think what stops us is the concern about being able to count on a genuine free consent on the part of the donor." But he does not believe any moral absolute makes the sale of kidneys unacceptable. "It comes back to the issue of truly informed consent. Do people understand the risks they are taking on? Are those acceptable risks? Are people capable of making free decisions about whether to take those risks?"
Altruism or Justice
Informed consent is, of course, as crucial for organ donation as it would be for organ sale. But donation frames the process as a wholly altruistic act. "For a living donor," says McLean, "it may be a chance to help a family member or friend or even a stranger." For a person signing on to donate organs after death, it may be seen as a way to give back or not to die in vain. And for the family of a deceased donor, it's "a way to have a little bit of someone alive in the world," she continues.
Many people value this altruistic aspect of the current system and do not want to see organ donation reduced to a business transaction. But, McFarland asks, "Is it the wisest and most moral policy to run a social system like kidney donation entirely on altruism?" That may be the ideal, he agrees, but since it has not been very effective at meeting the need for organs, it may be better to "strive for justice and not depend totally on altruism."
The idea of justice encompasses concern about the exploitation of the poor, but it raises even broader concerns about fairness. These might be summed up in another email we received at the Ethics Center:
So what? Is the sale of one's kidney lawful? Morality or ethics has nothing to do with it when you're down and out. Why doesn't someone ask the same of doctors and hospitals when they sell the transplant operation? Why is it when John Q. Public sees a way into the open markets, that he gets hit with the morality/ethical questions?
Is it fair that everyone involved in organ transplantation—doctors, hospital, nurses, recipient—gets something out of the process except the donor or the donor’s family?
Also, donors on the black market are rarely paid anything approaching what the kidney is worth. Justice might be better served if donors were paid more. In the Indian study, the average price of an organ in 2001 was $1,410. Nobel Laureate in Economics Gary Becker and his colleague Julio Elias have calculated $45,000 as a fair price. Fairer, still say some ethicists, would be a system that pays the donor a figure closer to the actual cost of maintaining a patient on the waiting list for organs, including the cost of dialysis over many years. Arthur Matas and Mark Schnitzler have calculated that a transplant from a living unrelated donor would save at least $94,579.
Alternatively, the donor wouldn't necessarily need to be paid to be compensated. McLean reviews some other proposals to give something back to donors: "One suggestion has been to at least offer to pay funeral expenses for a deceased donor because for many people that's a stumbling block. For live donors—and this could be hugely attractive in the current environment —we might offer to cover their health care for the rest of their lives in exchange for doing this good. "
Another cut at fairness has recently been adopted by Israel and is advocated in the United States by the private organization Life Sharers. Top priority on Israel's waiting list goes to candidates who have themselves agreed to be donors. Those who don't sign up as donors get a transplant only if there is an excess of organs.
All proposals to allow the sale of organs raise ethical as well as medical risks. However, as E.A. Friedman and A.L. Friedman argue in Kidney International, Journal of the International Society of Nephrology:
At least debating the controlled initiation and study of potential regimens that may increase donor kidney supply in the future in a scientifically and ethically responsible manner, is better than doing nothing more productive than complaining about the current system's failure.
Miriam Schulman is assistant director of the Markkula Center for Applied Ethics at Santa Clara University.