An Open Market for Human Organs

By Daniel Freeman

When the practice of financially compensating individuals for the sale and purchase of human organs first came to light several years ago, it aroused such public horror and outrage that most professional medical associations denounced it and nearly every country made it illegal.  It is acceptable and even admirable for someone to voluntarily donate an organ to help another person.  However, the current belief is that it is morally wrong to exchange human organs for cash.  In addition, it is immoral in our society to use money to entice someone to have a major operation to remove a vital organ for the benefit of another human being.  This paper outlines the rationale for reopening and re-evaluating the currently closed debate over the permissible legitimacy of selling and purchasing human organs.

Extraordinary technological advances in science and medicine, which include successful lifesaving transplantation of human tissues, provide immeasurable social benefits.  Unfortunately, profound implications involving autonomy and belonging, as well as opposing moral conditions and legal concerns, have made the sale and purchase of human organs illegal.  Currently, the “sale of any human tissue is prohibited by law in the United States” (Futterman 165).¹  The current policy of voluntary organ donation is inadequate, flawed, and unfair.  People should be allowed to sell their organs, which under current law they are only allowed to voluntarily donate without compensation.

Organ transplant surgery has drastically improved the health, quality of life, and life expectancy of many people whose organs have failed.  Over 200,000 people a year receive transplants that improve their lives (Dowie 121).²  Among the parts of the body that can be replaced are the inner ear, the cornea, glands (pancreas, pituitary, and thyroid), blood vessels, tendons, cartilage, muscles, testicles, ovaries, fallopian tubes, nerves, skin, bone marrow, blood, liver, kidney, lungs, and heart. 

When an individual’s organ shuts down, his quality of life, and even possibility of life, dramatically decreases.  A new transplanted organ could make the difference between life and death.  If a person’s heart shuts down, medical science has the ability to save that person’s life by providing a new heart (Mabie 52).³  In the last two decades of technological breakthroughs in heart transplants, survival rates have improved enormously to over 90% from only 67% in 1981.  With over 2,000 heart transplants each year almost all of the patients survive, whereas without the surgery they face almost certain death (Kittrege 14).⁴  Many people also receive liver or lung transplants as well.  Liver transplants are successful over 80% of the time and lung transplants are successful over 70% of the time.  One patient in 1985 received both a heart and a lung transplant and is still alive (Kittrege 14).⁵  While the surgeries have become increasingly successful, so have the needs.  Transplantation centers “working with organs other than kidneys indicate that eventually there will be a need for over 10,000 heart transplants, 5,000-10,000 liver transplants, and the same number of pancreas transplants annually” (Leinwand 38).⁶  The last three decades have witnessed great medical advances in the field of transplants and implants, and now through the miracle of organ transplantation, lifesaving feats previously only dreamed of are being performed every day.

Currently, there is a shortage of organs available to people that could benefit greatly from them.  Like any other good or service that is in demand, a market for human organs would thrive and efficiently allocate organs to those most in need.  Today, from a supply standpoint, most organ donation decisions are made at the Department of Motor Vehicles, where one can check a box whether or not he wants to donate organs in the case of a fatal car accident.  There is also an organ/tissue donor card one can fill out, informing one’s family of his desire to be a donor in the event of death.  Still, there remains a massive shortage of organs.  Why is this?  It's simple.  Neither donors nor their families are being paid one penny.  People often have to wait on endless wait lists for organs, and do not receive their organs in time.

Despite the extremely beneficial technological advances and success rates of the transplants, most people are still unable to enjoy the benefits of a transplant because of a lack of organs to be transplanted.  People cannot have an organ transplanted if a suitable organ is not available.  Clearly, there is “an extreme shortage of donor organs” (Evans 234).⁷  Under the current system where there is an obvious shortage, the distribution of the organs is very unfair as well.  Only a small percentage of people who need the organs are able to get them.  For the most part, the people who are most likely to receive organs are those with influential families that capture media attention (Capron 414).⁸  This is very unfair.  Receiving an organ is hard enough in the first place even for those from influential families.  For those that are not from influential families, obtaining a crucial organ is highly unlikely, and nearly impossible.  The current system is flawed and unfair. 

Some kind of action must be taken to help the urgent search for donors (Heintze 86-87).⁹  People who need organs line up to get them and often never receive them, because the demand for organs far exceeds the supply.  The problem is that there are insufficient numbers of organs potentially suitable for transplantation, leaving those waiting for the organ to improve their quality of life or even to save their life still waiting.  A sufficient supply of organs that could “meet current needs does not appear feasible within the present voluntary or request-for-consent framework” (Futterman 162).¹⁰  Under economic theory, when demand exceeds the quantity supplied then supply must increase.  Undisputedly, right now there are “not enough organs to go around” (Gutkind 233).¹¹  Therefore under economic theory, a change must occur to cause the supply to increase to match the demand.  To an economist, the major reason for the imbalance between demand and supply of organs is that the United States and practically all other countries forbid the purchase and sale of organs.  This means that under present laws, people give their organs to be used after they die, or often in the case of kidneys and liver lobes, while alive, only out of altruism and similar motives.  In fact, practically all transplants of kidneys and liver lobes with live donors are from one family member to another member.

The current system of voluntary organ donation has proven to be very limited.  Considerable “problems in the policy permit a significant number of patients to die in hospitals” (Futterman 163).¹²  The well-known shortage of organs for transplantation causes much suffering and death.  Dialysis (the alternative to a new kidney), a wretched experience for most patients, is rationed in most places and is unavailable to most patients.  The prohibition of organ sales excludes organs that would otherwise be available.  Since it is clear that a change must occur to affect the supply for the better, a possible solution to giving people an incentive to donate those crucial and extremely beneficial organs would be to offer monetary and non-monetary rewards for organs.

Allowing people to sell their organs instead of merely donating them would encourage more people to give up their organs, resulting in a much larger supply of available organs.  The current critical question is “how the public can be encouraged to supply organs to meet the needs of waiting recipients?” (Kutner 23).¹³  A very legitimate solution would be to allow people to sell their organs.  Legalizing organ sales would save many people’s lives, discourage a black market, reduce government expenses, compensate the donors and protect an individual’s right to choose.  Foremost, legalizing organ sales will save people's lives.  We must ask ourselves what could be more important than saving people's lives.  There is no reason for people to die if society provides the means to save them.

If laws were changed so that organs could be purchased and sold, some people would give not only out of altruism, but for financial gain as well. The result would be an increased supply of available organs.  In a free market, the price of organs for transplants would settle at levels that would eliminate the excess demand for each type of organ.  Logically, living people are inclined to not want to give up their organ no matter what.  On top of that, they must undergo painful surgery to have their organ removed.  Very few people in their right mind would want to go through the pain and trouble of having an organ removed even if it meant saving the life of a loved one.  If donating even to a loved one is that unappealing, then deciding to donate an organ to a complete stranger with no reward is absolutely absurd.  For example, a woman might give her kidney to her child, but if asked to donate one to a stranger she would probably recoil at the obvious costs: loss of a kidney, the pain of surgery, the long recovery, some diminished physical capacity, and the risk of death.  Although the stranger’s need for the kidney is just as real and urgent as the need the woman’s child has, few in their right mind would endure the pain and agony merely to be nice.  However, many more people would be inclined to help the community by giving up their organs while still alive or by donating them after they die, if they knew they or their families would be compensated.

Another benefit can be appreciated if we ask questions about the optimal way to die.  When a person dies, he cannot take his wealth with him.  Generally, the individual’s wealth is passed on to his heirs.  The same principal applies to organs.  If one cannot take his organs with him, why not leave them to someone who could really benefit from them?  The supply of organs has depended on people's benevolence, and benevolence hasn't been enough.  If people don't see a gain for themselves or their families in giving up body parts, they often don't.  But if they can sell their organs at death and pass the financial benefit on to loved ones, they suddenly have a strong incentive for making sure that they have filled out all the right forms before dying.  Being able to sell their body parts is like being given a substantial life insurance policy for free.

Most transplantable organs, however, are "harvested" from cadavers, and indeed many organs, including livers, hearts, and lungs, can only be obtained from persons who are deceased.  One important reason for this low donation rate is that relatively few individuals fill out and carry organ donor cards or otherwise indicate their willingness to donate their organs prior to death.  Purchasing organs from dead people is obviously impossible. It also seems unwise to seek to purchase the rights to a person's organs while they are awaiting death: such transactions would often be traumatic for all concerned, and patients might be worried that if they agreed to sell, the care they received subsequently would be less than zealous.  It has been seriously proposed, even by individuals who express strong opposition in the abstract to the idea of compensating organ donors, that organ procurement agencies offer to pay funeral expenses for poor families if they will agree to donate the organs of a deceased relative.  Without adequate financial compensation, there is clearly little incentive for the family of the deceased to donate the organs.  However, many people would gladly agree to sell their body parts after they die, knowing their families would benefit financially.  It would be part of the deceased’s estate for his heirs, or a type of insurance policy his heirs would inherit.  In addition, the burden of making this decision would not be left to the family of the deceased.

Life  insurance companies would be natural purchasers of such a system because these companies are already involved in the types of actuarial calculations and financial transactions that would be involved.  Insurers might simply insert in their annual premium statements a provision (a check-off box would probably suffice) by means of which their policyholders could indicate that, in the event they were to die during the period (generally the coming year) covered by the premium statement, the insurance company or its assignees would have the right to harvest any of the insured's organs that were transplantable.  In return for checking this box, the insured would receive a specified reduction in their insurance premium for that period and share in the financial profit.  Individuals would be free to change their mind about being a donor annually (or whenever their insurance policy was renewed).

Cash or another form of compensation could move us toward the desired outcome of saving more lives.  Society recognizes people’s autonomy by permitting them to make their decisions and take their risks.  Society acknowledges their right to decide what is done to their bodies.  As long as their choice is informed, the decision to donate an organ is morally legitimate, even praiseworthy.  The same criteria that supports allowing people to donate an organ also supports allowing them to sell one.  When healthy and competent adults want money to meet the medical needs of a family member or of themselves, they should be allowed to receive compensation for donating an organ.  Paying donors should not be done in a private transaction, but in an open market.  The exchange of an organ for money should be orchestrated by a specific organization where the fee is set by a panel of experts.

Allowing people to sell their organs would improve the quality of life for both the receiver of the organ as well as the seller of the organ.  If people were compensated for donating an organ, it is conceivable and likely that more people would be willing to undergo the inconvenience of donating an organ than there are today.  For example, in 1983, a man tried to sell a kidney for $25,000.  His intentions were to use the money for purchasing a fast-food restaurant (Weiss 17).¹⁴  This man’s kidney transaction (if it was allowed to take place) would have been quite beneficial to both parties, while at the same time harming nobody.  He (after being quite informed) decided that he did not need both of his kidneys.  His second kidney might be better suited and more appreciated by a person that is in need of a kidney transplant.  By giving up his extra (spare) kidney, this man would have been able to save the life of another person, and life is considered priceless.  To compensate for his lost time and for the inconvenience of the surgery, the man wanted some money in exchange.  He did not ask for a fortune that would completely wipe out the financial situation of the family.  He simply asked for enough money so that he could get his fast-food restaurant underway.  If the man was able to receive his payment (clearly a nice price to both parties), then he would have been able to start his business, improving his quality of life as well.  After close examination, the organ sale benefits both parties while at the same time leaving nobody harmed.  What is the problem?  Implementing a system where “donation is no longer perceived as burdensome may result in more positive donation interactions and fewer wasted organs” (Futterman 168).¹⁵  It is society’s responsibility to look after people’s lives and have everyone’s best interest at heart.  Currently, looking out for everyone’s best interest means changing the current wasteful system, in which too many usable lifesaving organs are wasted. 

The need for transplanted organs is undeniable and “more than once it has been noted that over 8,000 people in the United States who die from renal failure might have been saved by a kidney transplant” (Perry 64).¹⁶  Although altruism can be a powerful factor in motivating organ donations, it works best within families and cannot be expected to function as efficiently in the market.  Thus, to increase supply, it is necessary to provide families with additional incentives.  To increase donations, financial incentives must be considered.  Although a world in which 100 individuals each has one kidney is a world with higher expected benefits than a world in which 50 people each have 2 kidneys the other 50 people have failing kidneys and face dialysis or death, there are many ethical dilemmas in such a system.

            Some claim that organ sales must be banned because individuals verge on irrationality, unable to make informed judgments about the risk that they assume.  However, complex surgery tests rational decision making as well (and that is not banned).  Live organ donations are not banned either, and those may put enormous pressure on a member of the family to make an uncompensated transfer.  To further reduce the risk, potential donors could be given information and independent advice.  Banning a practice as a result of potential confusion and pressure cannot be justified.  Although most potential sellers would probably decline to offer an organ for sale even if it were legal, universal participation is not needed to erase the shortfall in available organs; only a tiny fraction of the population is needed to participate. 

More thoughtful critics suggest that allowing organs to be bought and sold might actually reduce the total number of organs available for transplants because they claim it would sufficiently lower the number of organs donated from altruistic motives to dominate the increase due to those sold commercially (Childress 69-70).¹⁷  They claim that “any sales of organs will drive out voluntary donations, and do nothing to alleviate the present shortage” (Epstein 66).¹⁸  However, it is unlikely that such would be the case where “all donors would want cash, but even if they did, the dangers of organ sales to the procurement process are hard to detect” (Epstein 66).¹⁹  Presently, only a small fraction of potentially useable organs are available for transplants.  Compensating people either for allowing their organs to be used after their death, or for donating their kidneys and liver lobes while they are alive would enormously widen the scope of the potential organ market.

Additionally, there is currently a large black market in which organs are being sold anyway.  Although clearly against the law, many people still sell their organs, but just do it under the radar.  Right now, transplant centers “pave the way for the sale of transplantation services from $100,000 and up.  But it is the doctors and transplant centers that implicitly capture the proceeds from sale” (Epstein 66).²⁰  Legalizing the sales would not increase the bill to the recipients.  Instead, the party that donated the organ would be able to receive a portion of the gain (Epstein 66).²¹  An open market in organs would sharply curtail the present black market where some people in need of transplants have them in poorer countries where enforcement against selling organs is slack.  Since the quality of the surgeons and hospitals in these countries is much lower than in advanced countries, this often greatly reduces the quality of the organs used and how well they are matched to the organ types of recipients.  It can be assumed that most patients want to have their transplant operation done in the safest manner.  Transplant operations must be safe for everyone, so that nobody has to suffer.  In order to be safe, organs must be tested and inspected carefully before being transplanted.  By legalizing the sale of organs, a black market would not be sustainable.

            Another popular opposition to removing the ban is that “a sales policy would favor the rich over the poor in the procurement of organs” (Epstein 66).²²  While the argument is true, the rich are already favored over the poor today.  Nothing would be different.  The rich have the ability to instantly go anywhere they want for treatment while the poor do not.  If more people (despite their financial background) are able to receive more organs than before and more lives can be saved, then there is no problem.  If the poor are concerned that the rich would be far more capable of purchasing organs, then the government could use tax dollars to purchase those critical organs for the deserving poor.  Some opponents of organ sales fear, quite plausibly, that allowing the sale of organs would give poor people an incentive to sell their spare kidney.

Preventing poor people or their families from selling an organ makes them worse off.   If organ sales were legal, some poor people could quickly come up with a down payment on a house.  Even some middle class people might spring for the cash.  In all cases, both buyer and seller would gain.  Advocates of this idea do not explain why the poor are misguided in their judgment that organ selling is in their best interests.  The assessment of the potential harm of losing a kidney as weighed against the potential benefit of whatever payment is received is, at best, not easy.  The risks of hang gliding, rock climbing or diving from North Sea oil rigs are much greater than those of the surgery.  It is plausible to say that the expected benefits will be much greater to the desperately poor who see in selling a kidney the only hope of making anything of their wretched lives and perhaps even of surviving, than to the relatively rich.

The moral justification for the open market is that each adult owns his body and thus has the absolute right to make all decisions regarding it, providing he abstains from using force or fraud on others.  Many find the idea of people buying and selling human organs in a free market to be repulsive for any number of reasons.  But those people have no right to use either personal force or governmental force to stop them, anymore than they have the right to interfere with their peaceful activities that they judge repulsive.  Some may need the money for their children or maybe even a car, but it is not anyone’s right to impose his value system on another.  The selling of an individual’s body parts should be the individual's choice.  An individual owns his body and should be given the choice to make decisions that best reflect his needs.  Not giving an individual the right to choose about selling his organs imposes others’ hesitant, biased views on this individual.  Legalizing the sale of organs would give every individual the right to choose, one of the basic freedoms that the US affords its citizens.  As with all peaceful activities, it is time to end the ban on the purchase and sale of human organs and to allow a free market, rather than government officials, to determine who receives transplants.  If this is done, not only will society have regained one of its lost freedoms, it will, at the same time, be saving thousands of lives that will otherwise be lost at the altar of government regulation for the public good.

Although our culture holds that buying and selling organs is highly distasteful, a good argument for such sales is tentatively being made.  After all, Americans already sell their blood platelets, eggs, and sperm.  This practice is not only acceptable, but deemed extremely beneficial to society.  Financially compensating donors has made it possible to increase the available supply.  Society should learn to transcend the strong, visceral opposition to organ sales that functions as the emotional anchor to present policy.  Needy recipients currently wait on endless wait-lists for altruism to reduce the dreadful shortage of available organs.  Many people are not motivated to donate their organs to perfect strangers because of the risk involved.  It seems that everyone talks about how desperately organs are needed, but nobody seems to donate.  The current organ donation system benefits everyone except the donor.  Doctors are paid for the surgery.  Recipients are paid with a kidney.  Hospitals earn profit on the transplant procedure.  Doctors and hospitals cannot be expected to perform transplant surgery with no charge.  If everyone gains some kind of benefit, it is unreasonable to think that a donor should receive absolutely nothing.  Besides, the donors are the ones that are going through the surgery voluntarily in order to save someone else.  Living donors will require at least two weeks out of work and have a small amount of increased health risks.  Sure the donor will have the warm, uplifting feeling associated with helping a fellow man, but this is not enough of a reward for most people to part with a piece of themselves.  In an ideal world the average person would be altruistic enough to donate a kidney with no questions asked.  The real world, however, is run by money.  We pay men for donating sperm, and we pay women for donating ova, yet we expect others to give away an entire organ for no compensation.  If the sale of organs were allowed, people would have more of an incentive to help save the life of a stranger.  Donors must be compensated for their services.  Altruism has proved time and again not to be sufficient.  The affection people have for their families and intimate friends does not carry over to the vast world of strangers.

The contract of sale, like other forms of voluntary exchange, is one way to vastly increase available organs.  If there were a free market for organs, it is an absolute certainty that companies would sprout up to offer payment to the person's family (or anybody else that person designated) for his or her organs in the event of a fatal accident.  This would immediately increase the supply of organs and would, therefore, save countless lives.  If a free market prevailed, there would be no shortage of much-needed organs (which today means certain death for many), as supply and demand would set the price that clears the market.  It's the ultimate win-win situation, with money going to the deceased person's beneficiaries and, at the same time, many lives being saved.  The repeated process of exchange increases the supply of desired goods and directs them to the individuals who value them most.  The current system rests on a faulty set of assumptions that undermines the intelligence and rationality of ordinary people.  Open markets in organs are the best available way to enable people with defective organs to get transplants much more quickly than under the present system.  The arguments against allowing the sale of organs are not compelling, especially when weighed against the number of lives that would be saved or significantly improved by the increased supply stimulated by financial incentives.