Virginia Postrel has a terrific piece on organ donation in our pages. Long story short: don't count on cadaver organs, because there aren't enough of them, and organs from living donors last longer. We need quasi-market mechanisms to attract more living donors.
Postrel deals with "donor chains" in which people who want to give a kidney, but are incompatible with their target, form chains with other incompatible donors to get everyone what they want. Then she moves onto markets, which are very controversial. I confess, I don't understand the ban on paying for organs. We let eighteen year olds decide to go to Iraq in order to eventually pay for college, but we won't let a thirty-five year old sell off a part of himself that he probably won't need, and with which he could save a life?
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Perhaps giving money attracts the wrong type of people, and encourages them to lie on their applications. What would the value of more organs be, versus the cost of having more drug addicts donate organs for the cash?
The cost of doing a thorough background check and panel of tests would be dominated by the cost of the organ and transplant, so I don't see that being a huge issue.
In the past, such tests would have had a significant error rate. Now, with PCR, things might be different to some extent.
My major is in biotech, incidentally, and infectious diseases are kind of a hobby of mine. There are a lot of infectious diseases which go untested for or which can't yet be tested for or are simply not yet discovered. About 80% of bacterial diseases don't show up on a standard bacterial culture, for instance. And blood agar cultures even for living patients are fairly rare. Similarly, PCR can only test for known pathogens, one at a time.
We'd need extra careful work done on the background check to make sure the person wasn't part of a high risk group. Maybe check for a good credit score or similar, to verify that donation wasn't being done out of economic need. I'm not saying that money for organs couldn't be done right. Just that, given how the medical profession is currently run, I doubt that it would be done right. There's no financial or legal incentive for companies to screen for diseases which aren't known to exist yet, even if symptoms indicate a latent infection.
How do they test for infectious diseases in people who donate kidneys now?
I'm not a drug addict, but I've had chicken pox, the flu, colds, and bacterial infections ranging from tonsillitis to osteo-melitis (apologies for spelling errors). I've spent time around a variety of animals. And I'm relatively healthy even by the standards of other non-drug addicts.
Apparently most labs don't even use PCR. Damn...
The following is from a case where an organ donor's organs infected 4 people with HIV and Hep C (a very unusual occurance, the article says) because the tests used were based on antibodies to the virus, which takes something like 6 weeks to develop after infection. PCR based tests do not have this lag between infection and the ability to discover the infection.
Why wasn't the genetic test, which is more precise, used earlier?
Gupta: The NAAT test, which detects genetic material of the virus within days, long before antibodies are produced, is not the current standard test. Only about 10 percent of the 58 organ procurement organizations have access to labs that can do this type of testing in a timely fashion. It usually takes a few days process the tests, and these tests aren't done every day in most labs.
Antibody tests in the past 21 years seemed to work. According to one health expert, the chance of a donor testing negative but actually being positive is .01 percent. That's a very small percentage of risk. According to UNOS, the United Network for Organ Sharing, and the CDC, what's needed are more labs that can test quickly before the organs become useless.
I think this is mostly a sentiment typical of the right (purity, body as a sanctuary that you should not defile, etc), but that I find myself unable to avoid - there's something viscerally repugnant in the idea of just selling a part of your body. Giving it away is noble, selling it is repugnant. It doesn't make much sense.
I believe most of us share this feeling - people generally don't want to live in a heavy traffic organ world. Think Blade Runner and Neuromancer.
I think it is repugnant that literally thousands of people needlessly die each year because other people's sense of repugnance leads them to support legislation that bans the sale of organs.
There's something viscerally repugnant about cleaning up other humans' feces (as someone who has done it for a job and at times nearly gagged while doing it). Let's just let patients sit in their own waste if they can't get to the toilet in time!
Note, that was sarcasm. While I did find cleaning up other people's faeces repugnant on an smell level, I was and am quite happy with it intellectually.
In clinical research, paying participants large sums of money undermines informed consent. The same considerations apply in informed consent for organ donation.
You just linked to an assertion of that point, not a credible argument for it.
I described a basic bioethical principle, specifically, that informed consent be free from coercion and undue influence. The basis for that derives from the Nuremberg Trials.
I'll ignore Godwin's law bit, and just point out that offering money is not coercion.
Any potential paid organ donor is always free to decline the transaction, and is left no worse off than before. What next, will you tell me that I "coerced" apple into sending me a macbook?
No, I wouldn't, because buying a laptop doesn't pose the kind of risk to the buyer that an invasive medical procedure or participating in some clinical research does. Well, ok, it shouldn't... when it does, then that becomes a product liability issue.
Reimbursement can be coercive when large sums of money are involved. This is something that institutional review boards struggle with in approving human research protocols--finding the proper balance between compensating participants for their time, inconvenience, etc., and paying so much that it impedes proper consideration of risk.
Back away from the big red Godwin's Law button. A nontrivial portion of modern bioethics law or policy DOES derive from global reaction to past atrocities, to which a good many people attached the words "never again", followed by "here's how". That entrenched momentum is something your policy proposals will have to overcome, it is not merely an incovenient chalk outline that you can sweep away on a whim.
Even now the US does not allow people to be paid for participating in clinical drug trials on the basis of those bioethics policies, and yet you think the sale of organs is going to be a cakewalk?
The US doesn't ban reimbursement for participation in drug trials. Institutional review boards consider reimbursement carefully, though, in an effort to strike a balance between compensating participants for time (inconvenience, etc.) and coercion.
Coercion is the method used to get a person to do something. So if offering money is coercion, it is coercion regardless of the value of something.
But lets forget the macbook analogy for now. Suppose I offer money to someone in return for labor: specifically lumberjacking, commercial fishing or some similarly dangerous form of labor. Is that now coercion that should be prevented?
As for your comment about "paying so much that it impedes proper consideration of risk", I think that's nonsense. It's distinctly possible that you may pay someone enough so that they consider the risks acceptable. What's wrong with that?
I refuse to believe that there is more coercion from offering a potential donor a financial reward than in asking the family or friends of someone in need of a kidney. "If you don't give up one of your organs, your sister/best friend/cousin will die" is pretty coercive.
If we are that concerned about coercion, no one should be able to donate an organ unless it can be proved that they have no relationship to the person receiving the transplant.
Far more people will die, but at least we will be sure that no donor has come under any pressure.
It's true that paying money for organs raises concerns about informed consent, but we're willing to curtail or outright remove informed consent in other contexts, precisely because the benefits to public health are so great. (Consider, for instance, our policy of coercing patients who need experimental medications into clinical trials by prohibiting other means of obtaining the treatment.)
We should be similarly willing to cautious consider whether the damage to consent from allowing payments for organs is worth it.
So you are opposed to paying doctors or nurses who are working in dangerous situations, such as during a 'flu outbreak, or with patients who are dangerous because of hallucinations? After all, if paying participants large sums of money undermines informed consent, that must apply to medical people as well.
Several forms of portable wearable dialysis are currently in development including one based on hemodialysis and one based on peritoneal dialysis. My girlfriend's grandfather is the developer of the second apparatus, incidentally.
In 1967, the Italian government passed legislation that gave blood donors paid time off on the day of donation. Eligible donors include employees of private and public organizations, but not the self-employed, employers, or those without formal employment. The Italian government reimburses employers for the value of pay to eligible employees who donate blood.
In the six years preceding the law's passage, membership in the Italian Association of Blood Donors increased by 60,000 members. In the six years after the law's passage, membership increased by 170,000 members.
There seem to be other indicators that the gains weren't incidental, but were caused by the incentive.
I'd imagine that this would help a lot with eliminating the disproportionate number of people with Hep C donating blood, but I'm not sure off the bat. Yes, there is a test for Hep C. But I'd imagine it has a failure rate, and certainly had a significant one back a decade or two ago when western blot was the preferred form of test (rather than PCR)
No doubt it is a good thing to sacrifice a part or all of ourselves for the benefit of others.
And we can take that notion and apply it to the survival of nations or the entire human species and it is still good!
I can understand why society isn't comfortable with me selling a kidney while I'm still alive, but I cannot for the life of me understand why I cannot sell my organs post-mortem, with the proceeds going to my benefactors.
I can give the organs away, but my family can't profit by the same action? That seems a bit crazy to me.
I'm pretty sure you wouldn't want your family to kill you in order to harvest your organs for profit. That has been known to happen, hence the ban.
Which has to be orders of magnitude less common than killing relatives for their inheritance, yet we still allow wills.
Only some people die wealthy. Everyone dies with organs, and the desperately poor would be the most open to exploitation. So I don't think your counterfactual disproves the claim.
Link please!
Agreed. Link please.
Plus - and correct me if I'm wrong - isn't murder still a crime? I'm pretty sure that these wouldn't be the toughest cases to solve...
Organ markets - a great way to avoid joining the military if you can't afford college; or to avoid foreclosure after losing your job.
I think I've read more than a few sci-fi novels including this concept.
Seriously, we also loose a lot of organs from already because of how we mark death. My sister-in-law died from an asthma attack. She was brain dead, except for the brain stem, by the time they were able to get her to the hospital. Waiting for the brain stem to stop functioning meant that her organs were, for the most part, unusable.
(I'm not a doctor, I don't play one on TV, U-Tube, or blogs, so if I've got this wrong, please correct me. I had it second-hand from my grief-stricken brother, another layer of his grief.)
Obviously, if someone needs an organ, they need an organ, but what is the actual rate of success in these procedures?
What are the actual numbers of people in the U.S. who require an organ?
What can we do to reduce the incidence of people in dire need of organ donation?
As someone with health care sector experience, I genuinely wonder: is there really such a large demand, or is this another example of the AMA/medical industry creating more complications and risk for the general population than is actually warranted by demand/common sense?
(Currently, the medical industry's overall approach to far more common diseases (and I would like to underline the far more common qualification), e.g. heart disease and Type II Diabetes, are geared not toward patient recovery and long-term health, but toward invasive procedures and drug treatment that are as focused on sustaining the industry as the patient.)
If a larger number of Americans walk around with one less kidney, guess what? More health care will be needed for the donors. Surgery is not without risk. (Let me repat: surgery is not without risk.) And "more" doesn't necessarily mean better.
A push for more organ donation MAY push the trend of costs going up without necessarily any improvement in quality of life.
No one is talking about the long-term effects of these procedures.
And FWIW, I thought the operative expression in Glenn Reynolds' piece yesterday was "freak" heart attack in his 37-yo marathon running wife. Most marathon-running 37-year-olds don't have heart attacks. (Although there is an increased rate of cardiomyopathies in certain classes of endurance athletes, which again speaks to common sense and prevention - far cheaper than expensive treatments.)
Of course people get sick and require and deserve treatment. But reducing health care inflation requires a hard look at prevention and our own responsibilities as patients.
Reynolds says his mother required hip replacement because she wore it out "through exercise." At the onset of pain, she should have been referred to a physical therapist. I obviously don't know the specifics of her case.
But I will point out that exercise regimens can be changed so that they not only relieve hip pain, but actively serve to remedy the source of the pain, e.g. misalignment, arthritic inflammation.
So surgery can and SHOULD be avoided. A number of my triathlete friends have successfully avoided surgery for the last 20 years by moderating their approach to running, and complementing it through additional training that focuses on realignment. Our friends who went under the knife? Not so much. Like I said, surgery involves risks. And there are more and more studies showing that knee and hip surgeries are no more effective than physical therapy, which, gasp, requires participation and diligence on the part of the patient.
But the hospital can bill more for surgery.
This responsibility does not lie entirely with the medical establishment, but with our responsibility-avoiding general population.
The medical/pharmaceutical/research industrial complex produces some genuine innovations. But they are largely not in the service of patient health.
Most marathon-running 37-year-olds don't have heart attacks.
I have no information about the case, but don't certain types of blood doping increase the risk of heart attacks?
It may be diet -- many vegetarians are malnourished.
Vegans often lack B12 if they don't supplement, which could lead to too few red blood cells. And in the past vegetarians were more likely to use things like margarine which led to health problems. But outside of these issues, could you post some support for the assertion that non-vegan vegetarians are more likely to be malnourished? Thanks!
Yep. OVer use of EPO leads to blood clots and heart attacks. So does acute dehydration, which can occur in marathoners and ultra marathoners.
Just to keep you from asking easily answerable rhetorical questions-
http://www.ustransplant.org/
Discussing kidneys- there are 80,000 of us waiting for transplant. There are 30,000 added each year, with about 20,000 getting kidneys. The remainder are the growth of the wait list, currently the median wait is around 1200 days.
I am waiting for a kidney and a pancreas. This means I need a cadaver donor.
The cost of dialysis is around $70,000 a year, the cost of an SKP transplant is 120,000 plus 15,000/ year for meds, so you only need a two year survival rate to break even. For just a live donor kidney, the cost is 80,000 for a transplant, so the break even point is sooner.
Most people in the kidney center have been busting their asses in order to stay off dialysis as long as possible. Many were diagnosed with ESRD 3 several years, sometimes a decade or more before they started dialysis. To blame someone with Polycystic kidney disease or even Type 1 diabetes for not doing enough prevention is ridiculous. What does prevention mean in those cases? In utero eugenics testing?
Another policy that could be changed to create savings, current medicare rules stop payment for anti rejection drugs after three years. This leads to people stopping drugs and going back on dialysis, which medicare pays fro, to keep from impoverishing their families. They get back on the list, because they like having a kidney, and medicare pays for the second transplant as well.
I think that we can can maintain altruistic donation, and create a fair compensation regime for those donors. There are many people who would like to donate, but are unable to afford the costs associated with donation like lost work time. Travel and lodging can be paid for by the recipient's insurance, but it is illegal to compensate for lost time at work.
Another idea is to get rid of mandatory motorcycle helmet laws, with the proviso that riding without a helmet is prima facie consent for organ donation.
I can understand why society isn't comfortable with me selling a kidney while I'm still alive, but I cannot for the life of me understand why I cannot sell my organs post-mortem, with the proceeds going to my benefactors.
I'm in favor of donor chains, where if you donate a living kidney a person of your choice gets a living kidney as well. More than likely the person needing the organ has somebody willing to give them it, if only they were a match. This would do much to alleviate the problems, especially since living organs are better than cadavers.
We could also switch to an opt-out system for organ donation, instead of opt-in. Maybe make it so if you opt-out you aren't eligible to receive cadaver organs either.
I am for opt-out organ donation, but adding a penalty to opting out goes way to far. That is definitely coercion.
The standard view of opt-out is merely changing the default to that which helps society at no expense or risk to the individual.
Maybe the incentive for organ donation shouldn't be limited to a strictly pecuniary reward. In lieu of money, free health insurance could be offered to the donor. Or a massive tax deduction.
While I do agree with Postrel in theory, I can't help but think that a market system in practice would simply attract the wrong types of people. Willing donors should be compensated, but in a way that would weed out people who were doing it for a quick buck (okay, maybe not so quick but you get the gist).
This is in reply to Zic and Ryan, because for some reason I can't submit a reply underneath yours. (Apologies.)
First Ryan, who asks about blood doping in marathon runners:
The majority of amateur runners don't engage in blood doping, which is risky, costly and insane. Amateur running, and other amateur endurance sports, remain largely about personal achievement within the bounds of what you were born with and trained. That's why you have 200-pound marathon runners in the NYC marathon. (As they say: "He's not heavy, he's my brother." Well, not literally.)
Given the low proportion of professional marathon runners, for the present we should assume Glenn's wife is an amateur, which is high enough praise in running, IMO.
Zic,
Far more meat-eaters are also malnourished. This requires an understanding of what constitutes "malnourished."
We had plenty of "hearty" meat-eating patients code in our department, as indicated by the stated dietary preferences provided by their freaked-out spouses.
But did Glenn write that she was a vegetarian? If she was, there is plenty of evidence to indicate that factor should have been in her favor in preventing heart disease.
Everyone seems to be missing something here, something which has to do with whether or not we want a market in kidneys: this isn't something the legal system is going to be very good at regulating.
First of all, if the courts were to recognize property rights in organs, making it is possible to sell organs within the legal system, it would become very, very difficult to stop all kinds of illicit "chop shops" from emerging. Today, it's simply impossible to sell organs in the US, so there's no real incentive to engage in such activities, as if anything goes wrong, neither buyers nor sellers can enforce their rights in court. But if it became possible to trade organs for consideration, someone contesting such a transaction would need to demonstrate duress, failures of informed consent, fraud, etc. This can be pretty hard, and such claims very rarely prevail in court. Do we really want wronged donors to walk away empty handed on a regular basis because they are unable to meet the relatively high bar for voiding contracts? And do we want to come up with an entirely new set of contract law principles to avoid such a state of affairs? As far as the legal profession is concerned, the answer to both of those questions is a pretty strong "No."
There's also a problem with available remedies. What if you agree to sell someone your kidney, and the person receiving it assumes considerable expense in preparing to receive it. Then, for whatever reason, you change your mind. What then? The court is never going to award specific performance, i.e. force you to give the kidney anyways. But if this were any other contract, the recipient's reasonable reliance would create a situation where the court would want to award damages, leaving you with potentially massive medical bills. That's a pretty unpleasant option.
Similarly, what happens if the transplant goes through, and you discover that you've been somehow defrauded. Either you wound up getting less money than you thought, or something goes wrong, or the donor winds up not being who they said they were, or whatever. The only real way of making you whole is an equitable remedy, i.e. giving you the kidney back. Money damages are going to be almost inherently insufficient. And courts really, really don't want to be in the business of issuing those kinds of orders.
This is why courts and legislatures have consistently refused to recognize property rights in bodily organs. The potential number of massively unpleasant situations, combined with the fact that existing legal remedies are probably inadequate to deal with such situations, has lead to the courts banning a market in organs altogether. The perception is that it's both more expedient and better for society as a whole to do without such a market than to suffer the issues that would arise if we created one.
There's another thing to be considered here. Opening up a market in organs would ensure that only the wealthy would be able to receive transplants, as there are always going to be far more potential recipients than potential donors. This probably isn't something anyone wants to think about too much, but the current system basically provides transplants for the cost of the procedure, excluding any consideration for the organ itself. Start putting a price on that and see how quickly transplants become a luxury for the very rich. No one wants that either.
So yeah, there are manifest benefits to enabling something like chain donation; the current system does have inefficiencies which can be remedied without creating a market in organs. But a market per se probably goes beyond what the legal system will be able to adequately regulate, making it an unwise course of action.
Ryan,
The problem with biotech majors like yourself is that you don't understand that the market is infinitely wise.
You're ignoring the beneficial aspects for the financial markets if we could build derivatives such as credit default swaps based on kidneys. We could also have people mortgage their kidneys, and the mortgages could be collected into collateralized debt obligations, which could be sold to secondary markets. Your kidney could be rated AAA, AA, A, based entirely on a ratings agency that you yourself hire and pay, which would thereby eliminate any possibility of a false rating. After all, who better than you to determine the quality of your kidney?
These activities would boost the overall economy, which would then allow us to pay for other essential surgical practices, all verifiably risk-free.
I don't have a biotech degree. I have a law degree. There's a difference.
"Infinitely wise"? You're seriously suggesting a ratings agency as a way of ensuring an efficient market? After October 2008? Either this is sarcasm, in which case you agree with me and I'm done, or it's just laughable.
Given that such markets are exactly what the current policy situation is designed to prevent, I'm inclined to think we're in agreement, but I've spent enough time around economics majors to have reasonable doubts there.
I think plutarchos' tongue is in his cheek.
His tongue may be in his cheek, but how much did he pay for it?
The legislature could legalize organ purchases under restricted circumstances without a need for the courts to treat organs as property in the same way they treat other property.
No, actually they can't. If you're going to let something be bought and sold, you are creating property rights in that something, which rights will be adjudicated just like any other property rights. Either something is property or it isn't, but you've got to be able to fit it into the general scheme of property law one way or another.
You are incorrect. The law is filled with various types of property, handled by different rules. The rules for intellectual property are different from the rules for physical property (and used to be even more different, and the courts made no objection to that, either). The rules for intangible property, like a right-of-way, are different from the rules for owning tangible property like the underlying land.
If Congress chooses to introduce a new type of property, it can, in fact, introduce rules for how that property is dealt with.
Two things. First, there are constitutional considerations here, particularly the restrictions of he Fifth and Fourteenth Amendments, which limit the legislature's ability to regulate the way people use property. Recognizing property in human tissue and then restricting alienation of that property will result in constitutional challenges, and I can't see for the life of me why they should fail. Which suggests that just shouldn't go there in the first place.
Furthermore, the distinctions between real and personal property, and even intellectual property to a lesser extent, pre-date the Founding by centuries. Indeed, they are woven into the very fabric of our Constitution. These things weren't made up by legislatures. So unless you're talking about introducing an entirely new kind of property--which is exactly what you're doing, just so we're clear about that--you can't get around any of the issues I've raised, because property in human tissue will be just like any other form of personal property.
Which is a hugely terrible idea.
While it's true that there might be some Constitutional limits, Congress generally has the right to regulate things it can prohibit. Furthermore, the sort of highly supervised marketplace, required escrow, and supervised transactions needed to address your concern already exist, in various combinations, for various kinds of property. Indeed, we even already allow people to sell some similar things (like semen, plasma, and egg donors, or surrogate mothers), with imperfect results that are still much better than eliminating the possibility.
Regarding your second point, various kinds of property have evolved and changed over time. Handling organs slightly differently from other types of property is not exactly an earthshaking proposition.
Since I can't reply to your comment below -- this caught my eye: "Recognizing property in human tissue and then restricting alienation of that property will result in constitutional challenges, and I can't see for the life of me why they should fail."
What "constitutional challenges" are you imagining here?
Restrictions on the alienability of personal property are commonplace. Such restrictions do not generally raise constitutional problems. For example, the Court upheld, against a Takings Clause challenge, a law that *retroactively* made certain products using bald eagle feathers inalienable. Andrus v. Allard, 444 U.S. 51 (1979). There are even categories of property where the right to possess the property is constitutionally protected, yet outright bans on its transfer are permissible (i.e., obscenity).
More broadly, it is completely untrue that the Constitution imposes a standardized set of rights that must invariably attach to all "property." The CA Supreme Court decision in Moore v. Regents of University of CA, available online, provides an excellent overview of the wide variation in rights that attach to different types of property.
Perhaps you feel the current law is mistaken. That's fair enough---but we should be clear that you're proposing a drastic departure from the legal status quo, not describing the current state of the law.
On the other hand, people are dying or spending years of their life disabled by dialysis. Rather big cost with the do-nothing option.
Do we really want wronged donors to walk away empty handed on a regular basis because they are unable to meet the relatively high bar for voiding contracts?
Depends how many donors you are talking about, and how wronged they are. If people are being kidnapped and massively restrained, yep, that's wrong. A few cases where probably all the consent procedures weren't fully followed, but it can't be proved in court, hell, yes, that strikes me as a far better deal than the current situation.
The courts often fail to provide justice. For example some rape victims don't see their rapist convicted because the evidence wasn't strong enough in court. Should we chuck away all the protections for defendants because of that? Well the answer has historically been no (people have of course argued that it should be yes, but the courts haven't held that), there's a tradeoff between providing justice to crime victims and avoiding convicting innocent people.
Similarly, what happens if the transplant goes through, and you discover that you've been somehow defrauded. ...Money damages are going to be almost inherently insufficient.
So we live with inherently insufficient money damages. Again, compare it with what's happening today to people who need a new kidney.
After all, money damages are almost inherently insufficient to compensate someone who has been wrongfully convicted and spent time in jail as a result, does that mean we should shut down the justice system?
The perception is that it's both more expedient and better for society as a whole to do without such a market than to suffer the issues that would arise if we created one.
But that perception should be considered based on not merely the costs to the courts of changing, but the costs to people who need a kidney of not changing.
Opening up a market in organs would ensure that only the wealthy would be able to receive transplants, as there are always going to be far more potential recipients than potential donors.
Do you have some statistics behind this claim? Because according to the article, there's 6,000 people being added to the donation list each year in the USA. Meanwhile according to this source, 4 million babies were born in 2005. So the number of people needing kidneys is less than 1% of the number of new kidneys provided on an annual basis (obviously babies should not be donating kidneys, but eventually those babies will grow up into adults with minds of their own). Even if only 1% of people can and are willing to give a spare kidney for money or love, this implies that there would still be 6 people willing to donate each year for every 1 person needing a kidney. Am I missing something?
...there's a tradeoff between providing justice to crime victims and avoiding convicting innocent people.
Precisely. Which is why the courts have declined to recognize human tissue as property. There is a compelling argument to be made that the fact that people die from kidney disease who could in theory have purchased organs if permitted to at law does not justify making such a disruptive and unmanageable change to the legal system.
After all, money damages are almost inherently insufficient to compensate someone who has been wrongfully convicted and spent time in jail as a result, does that mean we should shut down the justice system?
The fact that money damages can be awarded for constitutional violations is 1) a very new idea, dating only back to Bivens in 1971, and 2) still pretty controversial. The Federal Rules of Civil Procedure provide that a complaint that does not state a claim upon which relief can be granted, i.e. the injury is not one which the court can remedy, should be dismissed. These rules have been adopted by the vast majority of states, and are in fact one of the most successful and important legal reforms in history. But even the Warren Court's exception for money damages for constitutional violations (known as Bivens actions after the case which created the cause of action) doesn't help you here, because there is no constitutional right not to die of kidney disease. Furthermore, the justification provided by the Court, that police departments and other government entities are likely to change their behavior if hit with sufficiently high damages awards, doesn't help you, because kidney disease is not likely to change its behavior at the whim of the judicial system.
But that perception should be considered based on not merely the costs to the courts of changing, but the costs to people who need a kidney of not changing.
I agree. This has been considered. And introducing a doctrine which probably wouldn't even help most of the people you're concerned about has generally been considered not worth the massive institutional damage that would accrue to the judicial system by attempting to adjudicate such deeply personal, factually messy, and ultimately injusticiable cases.
Do you have some statistics behind this claim?
Somewhat less than 200 kidneys were donated last year, so the current donation rate isn't even 1% of 1%. You're making up numbers, pretending you haven't done that, then accusing me of not having my own. I recognize that this is all economics really is, but I don't feel any need to play along.
The fact that money damages can be awarded for constitutional violations is 1) a very new idea, dating only back to Bivens in 1971, and 2) still pretty controversial.
42 USC 1983 dates back to Reconstruction, and an FTCA action is also possible assuming the constitutional deprivation was also a tort.
While true, that isn't actually relevant. Section 1983 constitutes a limited waiver of sovereign immunity in certain cases, and there's no possible tort claim involved here.
Precisely. Which is why the courts have declined to recognize human tissue as property.
I don't follow this. My point was that courts have for a long time been making decisions that leave some crime victims without justice, eg rape victims whose rapists walk free. If they can bear that costly decision in crime cases, why not in kidney selling?
There is a compelling argument to be made that the fact that people die from kidney disease who could in theory have purchased organs if permitted to at law does not justify making such a disruptive and unmanageable change to the legal system.
Please share this compelling argument.
The fact that money damages can be awarded for constitutional violations is 1) a very new idea, dating only back to Bivens in 1971, and 2) still pretty controversial.
So how were people who spent years in jail because of wrong convictions compensated before 1971? And how do you think they should be compensated? (Note, use of the word "should", not use of the word "are", I'm asking a normative question, not a positive one).
But even the Warren Court's exception for money damages for constitutional violations (known as Bivens actions after the case which created the cause of action) doesn't help you here, because there is no constitutional right not to die of kidney disease.
What does this have to do with your earlier argument about people who got a bad kidney? That sounded to me like a standard contractual fraud issue. To quote you:
"Similarly, what happens if the transplant goes through, and you discover that you've been somehow defrauded. Either you wound up getting less money than you thought, or something goes wrong, or the donor winds up not being who they said they were, or whatever. The only real way of making you whole is an equitable remedy, i.e. giving you the kidney back. Money damages are going to be almost inherently insufficient."
You said nothing in here about a constitutional right to not die of kidney disease. I don't know why you're now bringing up constitutional rights. I thought it was about your rights when you sold, or received a kidney - a situation more similar to buying or selling a motor car. I don't have a constitutional right to my own car, but if I do enter into a contract to buy a car then I have some contractual rights. Furthermore, if I buy a car and it blows up because of a manufacturer's fault, killing a relative, I can sue the manufacturer and perhaps get paid monetary compensation, but that certainly does not restore the life of my relative.
Furthermore, the justification provided by the Court, that police departments and other government entities are likely to change their behavior if hit with sufficiently high damages awards, doesn't help you, because kidney disease is not likely to change its behavior at the whim of the judicial system.
Umm, and the relevance of this argument is to your initial argument? Do you believe that people who spent, say, 20 years in jail for a crime they didn't do, are sufficiently compensated by the thought that police departments are more likely to change their behaviour? (Perhaps you do, I'm just trying to understand your thinking here and not jump to conclusions).
Somewhat less than 200 kidneys were donated last year, so the current donation rate isn't even 1% of 1%.
Under a situation where there are no payments to people who donate kidneys. To quote yourself: "there are always going to be far more potential recipients than potential donors." In other words, you didn't merely make the claim about the world as it is now, you made a claim about how the world will always be, regardless of policy changes.
You're making up numbers, pretending you haven't done that, then accusing me of not having my own.
I copied one number from Virginia Postrel's article of numbers entering the link, and provided a link to the other number of births per year in the USA. The numbers are perfectly available to be checked. Why did you say that I made them up?
Furthermore, I *asked* you what were the statistics behind your claim. If you thought that was an accusation that you made something up, aren't you being rather defensive?
I recognize that this is all economics really is, but I don't feel any need to play along.
Okay, so now I need to launch an argument in favour of providing evidence for statements, and not making obviously false ones.
The reason I asked you for the source behind your statistics is so that I could evaluate it and compare it to my own back-of-the-envelope calcuations. If you don't provide any statistics behind an assertion such as "there are always going to be far more potential recipients than potential donors" then how can you be fact-checked? Perhaps you are so brilliant that you never make errors, but I don't know that, and in my experience many economists do make errors. When you provide sources for statistics you allow other economists, or anyone interested, to check your working. This is why it's common in economics, and in other sciences, to provide sources behind statements about what people will do.
Also, take your statement that I made up numbers. You made this in defiance of the link I provided, and that Postrel's article is easily checkable. You've just both our time, first by the time you spent composing this statement, and then by the time I spent pointing out that it was wrong. Wouldn't it be more efficient to confine yourself to statements that you at least believe to be truthful in the first place? This is why in economics, as in other sciences, it's expected that arguments bear at least some relationship to reality. It saves time.
Or take your assertion that "there's a compelling argument to be made", but you never actually made that compelling argument. Why not just make the argument there and then? In economics, as in the other sciences, it's customary to publish your reasoning so other people can follow it, learn from it and criticise it.
You of course don't need to "play along", but you're making life more difficult for me, and you're reducing the odds that either of us will learn anything useful from this debate.
This probably isn't something anyone wants to think about too much, but the current system basically provides transplants for the cost of the procedure, excluding any consideration for the organ itself. Start putting a price on that and see how quickly transplants become a luxury for the very rich. No one wants that either.
Paying donors doesn't mean that it has to come out of the recipient's pocket. As Postrel's article notes, kidney transplants are much cheaper than dialysis, so we could just absorb the donor payments and still have a net savings.
The perception is that it's both more expedient and better for society as a whole to do without such a market than to suffer the issues that would arise if we created one.
And these potential issues are really worse than thousands of preventable deaths every year?
Kidney transplants are currently cheaper than dialysis because we aren't paying for kidneys! As soon as people start to pay for the organs themselves, the cost of transplants will immediately skyrocket.
And yes, those potential issues probably are worse than thousands of preventable deaths every year. The legal system is entirely aware that there are probably tens to hundreds of thousands of wrongfully-convicted inmates serving time in prisons across the country, but because there have been no violations of due process, the system is content to permit this. Permitting a few thousand deaths to avoid injustice and misery which has the potential to be far, far greater in magnitude is usually considered a pretty safe bet.
Wrong. Transplantation is cheaper because dialysis is ridiculously expensive. Cost of transplant could double and there would still be a 2 1/2 year successful transplant break even point. I think the current research shows that the barrier to transplant was around 12,000 for a kidney, which is a 15% increase in the cost of transplant.
As one of those people you are willing to kill off to avoid theoretical injustice-
Your time is coming. You body will fail you. Your loved ones will sacrifice to keep you alive, doctors will perform miracles, and these words will shame you, and you will wish them unsaid.
No, I won't. I'll recognize that it's my time to go. Everybody dies. Some earlier than others. What's worse than dying is inconveniencing everyone you love while doing it.
Ryan:
First of all...it would become very, very difficult to stop all kinds of illicit "chop shops" from emerging.
Not at all. Just require that an organ be transplanted immediately after removing it, and in the same hospital. Then there's no doubt. Organs from cadavers are a bit trickier, since that's not always feasible, but we could always ban the sale (but not donation) of cadaverous organs. And even that's overkill, since the origin and cause of death of most cadavers can be verified easily.
The court is never going to award specific performance, i.e. force you to give the kidney anyways.
There are a great many contracts for which courts don't demand specific performance. Yet no one regards this as an argument for outlawing such contracts altogether. I don't have a problem with awarding damages in cases of detrimental reliance, as is done with many other types of contracts.
Money damages are going to be almost inherently insufficient.
It's unclear here what specfic situation you're talking about. If your complaint is that you weren't paid as much as you said you'd be, then obvious more money is going to make you whole. If it's that health complications come up, well, that's why you're getting paid so much to donate your kidney—donating a kidney isn't fun, and there is a very small but nonzero risk of serious complications.
This is why courts and legislatures have consistently refused to recognize property rights in bodily organs.
That's just the rationalization. The real reason is most likely a combination of kneejerk conservatism and anti-market bias.
Opening up a market in organs would ensure that only the wealthy would be able to receive transplants, as there are always going to be far more potential recipients than potential donors.
How is it that you know the market-clearing price of a good for which no market exists?
Putting that aside, it should be obvious that the kidneys won't all be bought up by rich people. First, people who are rich (which we'll define as being able to pay for a kidney transplant in cash) make up...what? 5% of the population? 10%? Second, kidney failure is usually a complication of diabetes, which is negatively correlated with income. There just aren't that many rich kidney transplant candidates.
Besides, insurance would cover the payment to the donor, just like it covers the cost of the transplant procedure. Granted, some people don't have insurance, but they can't afford the transplant procedure anyway, so they're not getting kidneys under the status quo.
Kidney transplants are currently cheaper than dialysis because we aren't paying for kidneys! As soon as people start to pay for the organs themselves, the cost of transplants will immediately skyrocket.
Depends on what you mean by skyrocket. A site I found says a kidney transplant costs around $100,000. I doubt very much that paying the donor would even double the cost. Even if it does double the cost, it's still a better deal than many other things insurance covers.
These aren't things that everybody's missing—they're the same ignorant bioconservative arguments that proponents of organ markets have been refuting for decades.
Here's another question for consideration: What happens if we don't allow people to sell their kidneys? No speculation necessary, because it's happening now: Thousands of people die every year, and many more spend years on dialysis waiting for kidneys. Rich people like Steve Jobs work the system to jump to the head of the queue (that was for a liver, but the same principle is in operation for kidneys). And people desperate to save their own lives sometimes go to third world coutries, if they can afford it, where the facilities aren't as safe and the organs are of dubious quality and provenance, but it beats certain death.
Here's the bottom line: People are suffering and dying because people like you stand in the way of life-saving organ sales. And the best you can offer in defense of this monstrous policy is a vague assertion that it's too complicated.
Out of respect for Megan's desire that this remain a family blog, I won't go into the details of what I think about that.
I don't see why you think this is the case. Just because you're allowed to sell an organ doesn't mean hospitals are going to start transplanting organs without knowing exactly where the organ comes from. It just doesn't work that way for a whole host of reasons, medical and legal.
"I don't see why you think this is the case. Just because you're allowed to sell an organ doesn't mean hospitals are going to start transplanting organs without knowing exactly where the organ comes from. It just doesn't work that way for a whole host of reasons, medical and legal."
Then why are there so many medical errors related to inept electronic and paper record-keeping? For that matter, why are there so many staff infections? If hospital staff can't be bothered to wash their hands when patient traffic increases, do you really trust them not to make careless mistakes about record-keeping for organ donation once the traffic in organs increases?
I don't know if I agree with Ryan about the inevitability of "chop shops" opening up, but I do think you have an incredible faith in the competence of even the most sophisticated U.S. hospitals.
Hospitals make mistakes... sure. I have no idea why you think that's relevant.
Fortunately, there are caring people out there who are working hard to make a difference.
http://www.noob.us/humor/philanthropist-donates-200-human-kidneys/
My major is in biotech, incidentally, and infectious diseases are kind of a hobby of mine.
Heh. Betcha the girls at the local tavern go crazy over you, with pickup lines like that.
Diseases were a hobby of mine as well when I was in college, but I sure didn't brag about it.
I find that most (though by no means all) people who give assorted pragmatic concerns about selling organs---possibly coercion, murder, theft, etc.---seem to be covering up that their real reason is "it's icky". The evidence for that is that most of their concerns can be addressed by a sufficiently cautious proposal, yet they continue to find new reasons as their old ones are addressed.
In other words, I think we should start by arguing for an extremely cautious proposal: in order to buy an organ, the money must be put in a trust which pays out over time (and a refusal to take that money during a bankruptcy, to make it difficult to borrow against); the payment must include an endowment of future health care, so that the cost of bad consequences to the donor's health does not fall on the public; and so on. I have yet to see a pragmatic objection to selling organs which cannot be addressed by conditions along these lines.
There would then, presumably, be two reasons to oppose such a proposal: believing that the conditions would fail, or would be politically infeasible to maintain (which I think is a weak argument, given that thus far those concerns have been politically sufficient to maintain an even more onerous rule), or purely that it's somehow "icky" to sell an organ, phrased in more flowery language. When it's clear that a surprising amount of opposition to the principle amounts to the latter, I hope that it would finally be possible, under careful regulation, to pay people to donate organs.
Elseif,
It's not that it's "icky" - it's that it ignores the reality that giving up a kidney is not without risk to the donor.
This contributes to overall health care inflation, because anyone in the position of selling their kidney is also more likely to have poor health care maintenance habits. Post-surgery, how carefully will they comply with maintenance? And for how long?
These conversations are limited in that they fail to consider the long-term effects for the donor, and how that affects the overall ability of the system to provide care to the larger patient population.
I'm not clear at all how my suggestion would contribute to overall health care inflation, given that the plan I suggested had a mandate that the payment include life-long health insurance for the donor. If donors tend to have poor health care maintenance habits, that could be factored into the pricing of that insurance.
Plutarchos:
It's not that it's "icky" - it's that it ignores the reality that giving up a kidney is not without risk to the donor.
No one's ignoring that risk—we're just acknowledging the fact that it's orders of magnitude smaller than the risks associated with kidney failure in the absence of an available replacement. Which you seem to be ignoring.
Seriously, how screwed up do your priorities have to be to be willing to condemn someone to certain death to avoid the possibility of another person taking a voluntary, compensated, and orders-of-magnitude-smaller risk?
The argument that donating an organ is potentially dangerous and that's why we shouldn't pay organ donors is ludicrous. We pay hazard pay for all kinds of dangerous jobs.
The argument that an organ market would be otherwise problematic and would have complicated and possibly harmful legal/moral/ethical consequences is more persuasive. Rather than walk away from the hard problem, though, maybe we should put together some kind of task force to figure out a solution. It would be better for all concerned if organ donors could be compensated in some way without causing other problems.
Remember, Megan, "My body, my choice" is just a slogan, not a principle anyone actually believes.
We should grow fetuses that would otherwise be aborted to harvest organs from. We could have entire organ farms and no one would need to die waiting for a spare part.
I still haven't seen a realistic concern that would outweigh the benefit of a plentiful supply of donor kidneys.
I still haven't seen a realistic concern that would outweigh the benefit of a plentiful supply of donor kidneys.
Because donor chains would likely provide a plentiful supply as well and have fewer concerns than selling organs for cash. Combine it with an op-out system for cadaver organs, instead of opt-in and there's a chance we wouldn't need to buy or sell organs on the market.
I like opt out systems, but the reality is that the problems with sufficient donors is that the donor has to be a young healthy person who dies in a specific way. I get lots of calls for potential donors, whose families opted in, who turn out to have damaged organs, or who were unknowingly infected with hepatitis or HIV. (That was a shock to that 38 year old man's wife.)
Opt out will only marginally sole the problem, and they have been shown to be politically problematic.
I'm late to this thread, but it seems to me that we have an argument over the number of angels [or unicorns] who can dance on the head of a pin.
1) Today the White House announced that it intends to ram through nationalized health care in the next few weeks. The bill is already over 1000 pages long, and as with all of Buraq Hussein Obama's initiatives it will be voted on by a Congress that has not been allowed to analyze, read, or even see it. What has escaped indicates that that it will be biased in such a way as to make it financially coerce people and employers into a "public option". You might want to review the concept of coercion higher up in the thread.
2) The theoretical cost savings in the public option come from three sources. One is chimerical; "lower administrative costs". Every government run health system I have encountered soon has multiple bureaucrats administering for every hands on health care worker. The second is the reduction of the "excessive" earnings of doctors, and eventually further down the medical food chain. This, of course, results in fewer and less competent medical personnel over time. Third, the "public option" saves money by medical rationing. The elderly, the sick who are not likely to become fully productive citizens by the State's measures, and those who require expensive treatments are to be triaged out of existence. And, in a public system, there are no options if denied by the government. To be honest, I have to assume that in their calculations of what they call "social worth" that one's religious and political beliefs will be prime factors for denial of care.
3) Transplants are not tonsillectomies. They require specialized teams of well trained doctors, specialized facilities; and for patients who receive organs, lifetime dependence on expensive anti-rejection drugs. I will note that I have had a dog in this fight. Years ago, before liver transplants were common, my 11 year old son died waiting for one. He was born with a genetic disease that destroyed his liver. His care was, thankfully, paid for by the private research foundation that was trying to find a cure. We discussed the cost of anti-rejection drugs, in passing, [they were going to pay for it] and it was upwards of $40,000 a year.
These facilities, these trained specialists, and those ongoing costs are precisely what are going to be eliminated "for the greater good". It is no coincidence that several times a year we have stories about Canadian parents having to bring their infants to the US because the Canadian system does not pay to run Neonatal ICU's, because they are "too expensive". There is no equivalent of our widespread Flight for Life programs, because it is "too expensive". And this is in a nationalized system that while it bears a functional resemblance to a football bat in any crisis; is less restricted than what is intended for us by 'Teh One'.
While you are discussing developing a market in organs to save more lives [I personally have my doubts, if only because the slope is already slippery in that field. There is already a worldwide black market in organs, in part fueled by the Chinese government harvesting organs from its prisoners whose crimes become capital upon discovery of a genotype match with a paying recipient.] the entire systemic underpinning that allows translants for anybody but the politically and economically well connected is being destroyed as we type.
If we have a nationalized health care system forced on us, by their own statements now; within a couple of years there will be no significant number of organ transplants available to the general public.
Subotai Bahadur
Thanks for bringing up the Chinese issue- this is sometimes held up as a model of a organ market, but you rightly point out that it is marketing human parts of humans held in bondage.
You make the claim that nationalized systems fail to provide organ transplant systems, which is an odd claim because the UK France, Canada, Australia, New Zealand, and Japan all have a higher rate of per CKD-5 patient transplantation rate.
Transplantation saves huge amounts of money. Banning people from both transplantation and dialysis is politically unfeasible. Even India hasn't been able to get away with that.
Wallyz
First, I apologise for the delay in answering. I wrote the above just before having to go out of town for the day.
Now I cannot quickly find statistics broken down for Chronic Kidney Disease Stage 5 patients [CKD-5], although I can see how that might be considered by some as an approximation of the overall rate. In Britain, they did 3504 total organ transplants during their 2008-2009 fiscal year according to this report from their National Health Service. http://www.rcoa.ac.uk/docs/NHSBT_26.05.09.pdf
In mid-2007, the population of Britain was estimated at 60,975,000 according to the Brit Office of National Statistics. That gives an incidence of transplants of roughly 1 for every 17,400. It must be noted that this figure is somewhat biased as to appear that more Brits get transplants than they do in actuality, because any EU national can go to Britain for a transplant, and the cost will be paid for by their own government or private insurance. The NHS has been accused [probably rightly] of giving preference to foreign nationals because they can make a profit off of those transplants.
According to the Canadian Institute of Health Information, Canada performed 2083 total transplants in 2008.
http://www.cihi.ca/cihiweb/en/downloads/CORR_year_end_tables_2008.pdf
With a current population of 33,592,686 according Statistics Canada, this gives us an incidence of 1 for every 16,127.
Australia had 1245 transplanted organs in 2008 according to their Australia-New Zealand Organ Donation Registry
http://www.anzdata.org.au/anzod/ANZODReport/2009/2009Pages01-22.pdf
With a current population of 21,847,273 [Australian Bureau of Statistics] we get an incidence of 1 per 17,548.
I cannot quickly find statistics on Japan, but I keep finding repeated reference to the extreme rarity of transplants and that the law has been recently changed to allow transplants on a more regular basis. There is almost NO donor base.
French statistics are also hard to come by quickly, but once again I find references to major scandals involving harvesting organs without consent, and the literature contains numerous references to a problem they are having with the incidence of skin cancer breaking out in recipients after transplantation. I have no idea what brings that about, but they seem to have a problem.
According to http://www.organdonor.gov/ there were 9,346 organ transplants in the United States from January-April of this year, giving an annualized rate of 28,038. With a current population of 306,928,745 [US Census Bureau] that yields a transplant incidence of 1 per 10,946.
Transplants are more commonly available [and as will be cited below more available to lower and middle income persons] than under a government single payer health system. There is not any huge disparity in disease rates between First World countries, so it would seem that we are not so sickly that we have to have more transplants. Our system just makes them available as a treatment for diseases that would otherwise be fatal or debilitating.
I offer below, a piece from the American Enterprise Institute/Wall Street Journal that breaks down [by organ] and success rate between the US and single payer countries. They also note WHO gets transplants.
What about Mr. Edwards's implicit thesis, that U.S. organ allocation is dictated by someone's ability to pay? When it comes to livers, the majority of U.S. transplants are for chronic liver disease, usually resulting from hepatitis C or alcoholism. These are diseases disproportionately affecting lower-income Americans who predictably comprise a comparatively higher number of people getting new organs.
http://www.aei.org/article/27344
If we go to single payer, the statistics indicate that the incidence of transplants will decrease. Further, given that the regime has touted repeatedly that it is their intent to save money by curtailing "extreme" treatments, one can foresee that transplantation will be on the chopping block early. As for curtailing dialysis [and other palliative treatments], social utility seems to be the bar that is used in the current plan, with their published priority plans for treatment availability. They will try to remove "useless eaters", by denying treatment.
As for being politically unfeasible? This is the regime that in a few months has nationalized the auto industry, nationalized the banking industry, will soon nationalize the health care industry; all with bills that the Congress is proud not to have read before voting. They have also removed the rule of law from the economy and introduced for the first time the concept of "regime risk" into all decisions. What counts is who you know, not what you can do or what the law says. They have a filibuster proof majority, and to put it mildly they do not seem to give an obese rodent's glut's about the prospect of future elections removing them from power. That in itself should be un-nerving. Politically feasible will be met with "I won!".
I return to my "angels on the head of a pin" statement.
Subotai Bahadur