The Case for a Legalized Kidney Market

Absence Makes the Need Grow Stronger: The Case for a Legalized Kidney Market

By Noelle Rosa

Approximately 97,000 people in the United States alone are eagerly awaiting a life-saving kidney transplant. In 2012, almost 5,000 of the people on this list lost their lives due to the insufficient supply of donated organs. Kidney commodification, or the legalization of a kidney market is just one of the many proposed solutions to the rapid increase in individuals on the national kidney transplant waiting list. What is wrong with a system that could potentially save thousands of lives? This paper will address the implications of the legalization of a kidney market and consider the ethical complications that would go along with it. The paper will discuss the black market as well as supply and demand within the broader scope of utilitarianism in addition to the autonomy of the donor and the recipient.

Table of Contents

• Introduction
• Utilitarianism
• Autonomy
• Conclusion

As of June 1 2013, 118,617 people in the United States were awaiting vital organ transplantations with a drastic 96,645 of those individuals waiting for a kidney transplantation. In all of 2012, 4,903 people in the United States lost their lives while waiting for a kidney transplant that never came (National Kidney Foundation). These deaths have sparked countless debates in the medical community regarding various solutions to the kidney supply deficit and the ethical implications of endorsing these practices. The debates, however, have evidently not been successful in finding an effective solution because the chasm between the number of organs put up for donation and the number of organs needed is growing dramatically and with astonishing rapidity. “Every year the shortage of human organs grows worse. Between 1990 and 2009, for example, the waiting list for an organ transplant increased four-fold rising from 20,000 to just over 100,000” (Tabarrok). The number of people on the waiting list continues to increase at a steady speed from year to year while the number of people donating (dead or alive) is not increasing at nearly the same rate. 

In the United States an individual may receive a kidney transplant from a dead donor as long as the organs are retrieved before cardiac death just like every other vital organ transplant. Kidneys, however, are a special case because people have two of them while only one is necessary, which opens up the door to living donors who tend to donate to a friend or family member with a compatible kidney. There are rare occasions however, where individuals wish to donate completely altruistically to strangers. 

One of the many proposed solutions to the growing problem surrounding kidney supply is the commodification of kidneys, or the legalization of a kidney market, made possible only by the fact that live donation is an option. What exactly is it that makes a kidney, a functionally unnecessary part of the human anatomy, different from other commodities such a cell phone? Sure, one is a part of the human body while the other is constructed along with millions of others in a factory somewhere, but each is a perk, an extra. The arguments supporting the commodification of kidneys would really only be valid for kidneys because they are the only transplantable organ of which there is an extraneous one in the body. A heart, for example, could never really be commodified in the way that kidneys could be because it could never be purchased from a live donor. A heart could potentially be bought from a dead donor, but this paper is focusing more intently on the sale of extraneous kidneys from live donors. Furthermore, living people can donate parts of other organs such as the pancreas or the liver, but this paper will focus primarily on the sale of a whole organ, specifically a kidney.

This paper will not address the issue of pricing kidneys nor will it discuss international sales or the implications of anonymous donation vs. open donation. The topic of kidney pricing gets tricky because the value of an organ is called into question regarding its maintenance and rarity. Certain blood types could be of a greater or lesser value given the oversupply of lack thereof. Analysis of international transactions will be avoided because it is hard to advocate international practices that may not be legal in both nations and predict the outcome of this practice in regards to supply and demand because it would be on a much larger scale. The debate aver anonymous donation vs. open donation in relation to a kidney market brings up all kinds of other ethical dilemmas regarding how much influence one still has after the sale of an entity and whether the duty is to the donor or the recipient. Ultimately, however, the American government should legalize the sale of human kidneys because it will eliminate a highly prominent black market for organ transplants, effectively improve the safety of kidney donors and recipients, save the greatest number of lives possible, and respect the autonomy of the American individual. The legalization of this market will inevitably increase the fairness and efficiency of the current system of kidney transplantation in place. 

The ethical idea of utilitarianism supports the idea that one should make decisions based on what will do the greatest amount of good for the greatest number of people. The commodification of kidneys appears to be the most utilitarian solution to the functional kidney shortage. 

The Black Market

One of the key arguments against the legalization of a kidney market is its fairness in relation to the poor. Would the poor be subject to exploitation, coercion, and objectification as donors? Would they be at a disadvantage as buyers? The fact of the matter is that there is a highly prominent worldwide black market for kidney distribution and the legalization of this market could only benefit those of a lower socioeconomic status. “The World Health Organization estimates that one fifth of the 70,000 kidneys transplanted worldwide every year come from the black market” (Interlandi 2). The black market is most prevalent in the economically weak areas of the world and is therefore already exploiting those of a lower socioeconomic status. People sell their kidneys for a variety of different reasons, the greatest one probably being the overwhelming need to provide for one’s family. Recently in Greece for example, a 49 year old man lost his job and was forced to live out of his own car with his 8 year old daughter. After months of an unrewarding job search, the father decided to sell a kidney in order to provide for his little girl. He stated, “I don’t just want to sell my kidney; I would sell my own head if it meant that my child would survive” (Kalmouki). When faced with poverty and sickness and sadness, people will inevitably resort to unethical and possible illegal methods of improving their social status. In developing nations such as the Philippines, and more particularly developing areas of these nations such as Bangon Lupa, young men and women eagerly volunteer their kidneys in the unsafest of conditions in an attempt to better their lives and their homes (New Internationalist 354). Exposed kidney rings have uncovered surgeons lacking the proper training and hospitals lacking the proper equipment. There have even been cases where the donors were not even taken to a hospital, but were subjected to surgery in a home or office building. Furthermore, the hazards involved with the black market put the recipient at risk because the transplanted kidneys are rarely, if ever, properly examined prior to donation. “The kidney donors lied about other things as well- their names, addresses and medical histories, including their daily exposure to TB, AIDS, dengue and hepatitis, not to mention chronic skin infections and malnutrition” (New Internationalist 354). Under the current system of stealthy monetary transactions and undercover operations, both the donor’s and the recipient’s health are at huge risks due to the lack of supervision, regulation, and distinguished rights. As one writer states, “the desperate don’t always play by the rules” (Interlandi 5). Not only will desperate recipients do anything to save their lives at this point given the inadequate kidney supply, but desperate donors will do anything, even put their own lives as well as others’ at risk in order to retain the compensation for the transplant. A legalization of this market would respect the utilitarian principle because it would provide a much safer experience for both the donor and the recipient of these dealings, consequently doing the greatest good for the greatest number of people. 

Though people may argue that legalizing a kidney market in the United States would be detrimental to the developing nations where the black market was previously most prominent, this action would probably benefit those states because the US would set a precedent for the rest of the world. America has been a trend-setting nation for almost two hundred years and the legalization of a kidney market here would most likely influence foreign nations in such a way that they too would feel obligated to alter their legislation to include the sale of kidneys. While at first many individuals would lose their opportunity to donate to upper class Americans, they should certainly regain that ability after a few year international transition period. 

If individuals facing death could legally purchase a kidney, there would be a dramatic reduction in kidney theft because there would be a dramatic reduction in the black market where stolen kidneys are most commonly found. People put in these desperate situations are pushed to do potentially dangerous things that they might not have done otherwise. A person may have a strict moral code, but when faced with a real-life situation, be forced to reevaluate and deviate from their values. These actions of someone pushed to the brink, however, do not necessarily make them a bad person; they merely highlight the gravity of the situations that have been thrust upon these people. It is the instinctive need to save a life that pushes people to the point of kidney theft. In India in early 2008 for example, the Indian police exposed a Kidney Ring after being in effect for nearly nine years. Officials estimated there having been between 400 and 500 kidney transplants from poor citizens who had been viciously exploited, and middle class citizens such as one Naseem Mohammed who had been forced into operation at gunpoint (Gentleman). Had the poorer of those individuals been given the chance to legally sell their kidneys, then there would have been far fewer (if any) patients still in need of a transplant and thus, kidney theft would have been reduced at the very least. 

Regulation

The arguments for the commodification of kidneys are similar to the arguments for the legalization of marijuana. First of all, there is a highly prominent black market for marijuana throughout a majority of the United States (with the exception of Colorado and Washington where the recreational use of marijuana is legal). Regulation would improve the safety of society because the substance could be tested for purity. Its legalization would keep American money within the American economy and could even be taxed (High Times). Even though one potential commodity is a part of the human anatomy and the other is currently illegal substance in most of the United States, the legalization of either market would allow for the regulation that would be not only economically beneficial, but safer to society as a whole. Safeguards could be put in place to restrict the medical mishaps as well as the coercion and exploitation commonly found on the black market for kidneys if the market were legalized.

Supply and Demand

There is an overwhelming need for functional kidneys in today’s society, but that need is simply not being met. “Without the prohibition against commercial transactions in kidneys, the economic shortage would be completely eliminated” (Barnett II, Saliba, Walker 2). There is an abundance of evidence to support the notion that the potential supply for a free market would far outweigh the daunting current demand. Some people, however, argue that the legalization of a kidney market would lead to the wrong kind of people donating these vital organs. Some of the people desperate for money who would be looking to sell a kidney may not have the funds necessary to watch their health the way that most present-day donors are capable of. That being said, if the kidney market were as effective as many economists predict, the quantity of transplantable kidneys would increase to such a point where the quality would increase as well. Furthermore, looking back at the regulation of the black market, more people would be forced to undergo rigorous health screenings and more health issues would be caught prior to transplantation. If supply and demand worked the way it should, there would be enough kidneys on the market that only the healthiest ones would be needed for transplant. Hypothetically, there would be enough of a supply to choose from that only the best (aka the most suitable for transplant) would be chosen. An article defending the idea of a legalized kidney market states, “A free market for kidneys… would increase the quality of the kidneys transplanted… as well as the quality of the entire transplant process” (Barnett II, Saliba, Walker 4). By increasing the quantity of kidneys to choose from, there would be an overall improvement in their value as well. In situations where a kidney isn’t necessarily a perfect match, or the donor isn’t necessarily in perfect health, the recipient and the doctor would be able to simply turn to a different donor.

An increase in live donations (in which a kidney market should result) would not only account for an overall increase in the number of annual kidney transplants, but it would improve the effectiveness of these transplantations. Studies show that people can live up to two times longer with a kidney from a live donation and the less time people spend on dialysis, the more effective any future transplanted kidney will be (UCDavis). With a greater supply, far fewer people would have to spend time on dialysis and transplants as a whole would be more successful. As a result, very few kidneys would ever be “wasted” on bodies that will inevitably reject them because they have been on dialysis for such a great deal of time. 

Regardless of financial status, everyone would hypothetically have access to a kidney donation whether through continued donation after death practices, or through a transaction. Even if poor individuals could not necessarily afford to buy themselves a kidney, the cut governmental cost of dialysis would leave enough money to buy those in need the necessary kidneys for the greatest possible number of people, respecting the utilitarian principle of doing the greatest good for the greatest quantity. One writer argues, “Since many potential kidney recipients are currently surviving on vastly more expensive dialysis treatment (paid for by Medicare), providing donors with long-term health care is probably more cost-effective than the status quo” (Howley 2). According to the University of Maryland Medical Center, the average cost of kidney dialysis was $44,000 a year in 1993 while the average cost of a kidney transplant patient after the first year was only $16,000 making the increased speed of a transplant equitable for the government or for the private payer (The Break Even Cost of  Kidney Transplants is Shrinking).  

Since it’s legalization in Iran in 1988, only one country in the world has had a free kidney market. Iran has successful eliminated a waiting line within their own country by allowing patients to buy kidneys from eager donors. “The combination of charitable and governmental payments ensures that poor recipients are treated as well as wealthy ones” (Howley 1). Both live and dead donations as opposed to transactions are still viable options for those Iranians who have no monetary interest in the situation at hand. Donation after death has actually gone up in Iran because there is less of a social stigma around organ donation because it has become a much more common practice (Griffin). The system has not only saved the lives of thousands, but it has ultimately benefitted those citizens of a lower socioeconomic status because it provides a quick way to earn money in a safe, legal, regulated environment. 

In the rest of the world, altruistic donation as a system by itself simply is not working at this point, although it is important to point out that commodification is not necessarily the only option to rectify the problem of the increasing waiting list for kidney transplantation. Some people advocate giving prisoners on death row an out in exchange for a kidney. They advocate either giving prisoners a more peaceful way to die in exchange for organ donations or a lifetime in prison instead of execution in exchange for a kidney.  The issue with this is that in all of 2013, only 39 people were sentenced to the death penalty, consequently failing to meet the requirements necessary to fill the gap between the demand and the supply of healthy kidneys (Death Penalty Information Center). Other people wish to change the dead donor transplant policy from an opt in situation to an opt out situation on drivers licenses. In most states in the US, 18 year olds who have to go get their drivers licenses must fill out an extra form in order to opt into the organ donor program rather than fill out a form to opt out of the organ donor program. Many people advocate this procedure because studies have shown that people are less likely to opt out of donation when being an organ donor is the given. The major fault with this proposal in comparison to the commodification of kidneys is that dead donor transplantations are not nearly as effective as live donations. Not only is it harder to coordinate perfect matches in the heat of the moment after an accident, but the kidneys are less likely to be effective because kidneys from live donations are dramatically more successful. 

Another issue with each of the proposed solutions revolves around the likelihood of a donor getting a replacement kidney if necessary after donation.  When people donate a kidney and their spare malfunctions, they cannot be guaranteed a new one due to the current shortage. Commodification is expected to be so successful that this shortage would be eliminated and fear of donation (both altruistic and in exchange for money) would subsequently dissipate. Furthermore, people will be more willing to donate their kidneys to loved ones- let alone total strangers- because they would have a much greater chance of finding a replacement kidney. Not only should the legalization of a free kidney market increase the number of kidneys for sale, but it should increase the number of kidney donations as a result of the increased likelihood of a kidney in return if necessary. Under this system, the risk that goes along with donating of a kidney is greatly diminished.

Looking at the general scope of things, the utilitarian argument supports the commodification of kidneys as shown by the overwhelming presence of coercion and exploitation in the black market and the underwhelming supply of kidneys for donation in America today. All in all, a free kidney market would be effective in improving both the quantity and the quality of the kidneys put up for transplant. 

Autonomy is a vital part of ethics and the formation of legislation in the American Government, but it tends to serve as a double edged sword. On the one hand, people could end up relying on the government to buy new kidneys for them whenever necessary, subsequently leading to people not taking care of themselves as well as they typically would. It is possible that people rely on the government in a similar manner when we look at other institutions such as welfare. There are a number of people who realize that they are going to be taken care of regardless of whether or not they work so they ultimately rely on disability checks, unemployment checks, childcare assistance, and health care from the government. “In 35 states, welfare benefits pay more than a minimum wage job” (Bastasch). Regardless of the system, people tend to work it when given the chance. Certain government institutions like a free kidney market and welfare, would inevitably lead to certain groups taking advantage of the benefits. Nonetheless, those benefits might be so advantageous to the rest of the population that the system should persist (or be started) so that those who treat the arrangement can too reap its rewards. 

On the other hand, a person has a right to dictate what happens to their body in most cases, so why not in the case of a kidney market? There are obvious limitations such as a person’s inability to commit suicide, or harm others, or discriminate. We do limit autonomy when it goes against important values like safety and equality. That being said, US citizens still have a pretty dramatic degree of choice when it comes to their bodies. Abortion and surrogacy for example, are each relatively controversial subjects in the American media and more specifically the government which has ultimately given the individual, at least to a certain extent, the power of choice. By that logic shouldn’t a person be able to choose whether or not they can sell an extraneous part of their body? The commodification of kidneys really just makes sense by comparison. Sperm and eggs (as just a few examples) are not “sold” per se, but the compensation for the donation of these parts of the human anatomy is the functional equivalent of a payment. Similarly, a woman’s womb is essentially rented out for the nine months of surrogacy and there is no issue with that. A second kidney, like sperm, eggs, blood platelets, hair and many other parts of one’s body is fundamentally extraneous. The one major difference however, is that people selling these other entities can return to their original physical condition while this is not the case with kidneys.

Risk

Furthermore, some people argue that the selling of a kidney is a different story because it has a higher risk factor. While that may be true, the government doesn’t prohibit people from participating in other potentially dangerous activities such as skydiving, boxing, and rock climbing. Society encourages and even pays people to put their own lives on the line for much less than to save a life. Soldiers and firefighters for example are paid to risk their lives for others. Sometimes they risk their lives for even less than to save another human life. Sometimes these tax-funded activities put lives at risk in order to save animals or even property. Racecar drivers are paid to partake in a highly dangerous activity solely for the amusement of the public. 

Autonomy is one of the major principles that America was founded upon. The autonomy of the American individual must be respected be legalizing a practice that should have been left to the discretion of the individual to begin with and will save lives. 

There would inevitably be effects beyond the sheer benefits of this system that lead to further ethical complications. As with many of the current biomedical ethical dilemmas, the legalization of this system could result in a ripple effect. The sale of kidneys is a slippery slope because it is hard to define distinct boundaries. Just because technology has developed to such a point that it is capable of doing things like commodify kidneys, or transplant organs from an animal to a human, or screen embryos for genetic disorders prior to pregnancy, does not mean that these practices will be in societies best interest. Should Science pursue anything and everything, regardless of the potential negative implications for others? Should sciences capabilities have any affect on our view on the body as a whole?  Furthermore, ramifications such as the treatment of the organs of dead donors need to be taken into account. I have found that the sale of organs after death should not be encouraged because it could lead to individuals taking their own lives or even the lives of others in an attempt to retain money for loved ones.  That being said, the good that the commodification of kidneys would do far outweighs the potential negative implications, which more or less can be addressed. 

Many people argue that there is something intrinsically wrong with putting a part of your body on the market, but this very action is already happening and it is bound to happen in illegal and unsafe conditions until a legal market is put into place.  The black market is prominent in all sects of society; first world countries, developing nations, overpopulated areas, malnourished areas, privileged neighborhoods, and even middle class homes. The only way to put an end to the overwhelming presence of the black market would be to undermine it by setting up rules and regulations. A legalized kidney market would ultimately increase the fairness of the system in relation to both the rich and the poor by protecting against coercion, objectification, and exploitation. 

People, to put it bluntly, can be a danger to themselves as well as others when thrust into desperate situations. Individuals facing death due to the national shortage of transplantable kidneys are far more likely to resort to the dangerous and potentially unethical ways of the black market. If people were to be able to legally purchase a kidney, this wide group of desperate people would at the very least be severely shrunk and the safety of the stakeholders in these desperate situations would no longer be in danger.  

Moreover, there would easily be an improvement on the current system in terms of regulation and the allocation of enough kidneys and in terms of the number of lives saved. A free kidney market would be extremely utilitarian in that it would benefit hundreds of thousands of American citizens every year.

As proven by the success in Iran, a free kidney market is possible, and it is surely effective. Not only would people have access to kidneys for transplant quicker, but people would have even more to choose from to find the exact right match. The increased speed in the system would ultimately get people back on their feet and healthy quicker and would increase the span of time people could go without needing a second replacement kidney. 

Additionally, the legalization of kidney sales would not only reduce the length of those waiting for a kidney transplant, but it would be highly equitable for the medical community as well as the government because they could profit from the taxes on kidneys as well as the reduced cost of kidney dialysis patients on Medicare. Kidney commodification reaches far beyond the concept of supply and demand in economics. Looking further into the economic side is tricky because it brings up a whole slew of other problems that affect the American economy in addition to the global one. Questions about how one would go about pricing a kidney are immediately brought up. Should all kidneys cot the same amount of money? Should rarer blood types get pair more because their organs may be of more value to the population? Should kidneys, economically speaking, be treated just like any other commodity or like a whole new class of entities put up for sale?

People have a right to distinguish what they want to happen to their cell phone. A, by all accounts, superfluous part of their being. People can easily survive without that cell phone, which is why the government allows people to sell their belongings. Why then, can’t an individual sell a superfluous part of their body? This argument can surely be extended to other decidedly extraneous parts of the human anatomy such as blood, eggs, sperm, parts of the pancreas, and parts of the liver with due regulations.