We’re not entirely sure what we think of Gov. Haley Barbour’s bizarre condition for pardoning the Scott sisters, who had been serving life sentences for a crime committed when they were teenagers.
On the one hand, everybody wins from the deal. Gladys gets a kidney (provided they match). Her sister Jamie loses a kidney, but gets something more valuable (her freedom) in return. Gov. Barbour gets some political cover for showing a little mercy in a state generally inclined to lock up malefactors and throw away the key. If Gladys stayed in prison, Mississippi would be forced to spend a ton of money keeping her alive on dialysis.
The catch, of course, is that the organ donation was coerced. Or, to put it another way, Jamie received material benefits in return for her kidney. Thus, in virtually any other context, the transaction would have violated the National Organ Transplant Law of 1984, which prohibits the transfer of organs for “valuable consideration.” And that gives us an excuse to ruminate on the question of whether it really made sense to bar the use of market incentives in the first place.
The doleful scenarios that led Congress to prohibit organ sales don’t require a lot of imagination. Few of us want to encourage governments (or anybody else) to kill people in order to harvest their organs. Nor are most of us entirely comfortable encouraging the poor to sell their own kidneys to put food on the table. (Though, as Jonathan Swift implied in A Modest Proposal, if we aren’t willing to let them sell body parts, why are we willing to let them starve?)
There might be ways to stimulate donations from cadavers that finesse the issue of financial incentives. A state policy of “presumed consent” could allow hospitals to harvest organs unless a dying patient ordered them not to. “Mandated consent,” a softer variation on the same theme, would require people to declare themselves willing or unwilling to donate organs as a condition of exercising some widely sought privilege – say, obtaining a driver’s license.
This latter approach has recently been pushed by Britain’s Royal College of Physicians. And it has actually been tried in Texas and Virginia. But both states subsequently repealed mandated consent laws, because they found that relatively few people were willing to give their consent and many apparently resented being forced to choose.
We’d like to see mandated consent tried again, paying more attention to the design of the consent form and giving people the alternative choice of deciding at some later date. In any event, though, the experience should serve as a warning that it takes a fair amount of persuading to get people come to grips with the issue of organ donation.
The most straightforward way to increase the supply of organs, of course, would be to offer cash in return. And this might even be managed in ways that allow donors to delude themselves that money wasn’t really the deciding factor. One might, for example, create a government fund that provided grants for funeral expenses to organ donors.
We would contemplate going much further, creating a tightly regulated market for kidneys from the living. At a minimum, permission for sales would be conditioned on the regulators’ agreement that the health risks to the seller were modest and that the seller understood those risks.
For us, the thorny ethical question here is the one alluded to earlier. Is it morally acceptable to allow potential donors to put themselves at risk because they badly need the money? Our (hesitant) answer is yes. Allowing kidney sales doesn’t seem very different than allowing poor women to act as surrogate mothers for pay. Or consider the volunteer army. It is national policy to induce the poor to put themselves at mortal risk with promises of paychecks, reenlistment bonuses and college tuition.
The law isn’t about to be changed. The very idea of organ sales makes virtually everybody uncomfortable. And it’s hard to imagine the scenario in which Congress would choose to confront it head on. But the price of ignoring the issue is high – thousands pay it every year.
(This post was also published on Forbes.com.)