Levy Itzhak Rosenbaum Becomes First Person Convicted of Brokering Kidney Sales in the US

Brooklyn resident Levy Itzhak Rosenbaum recently became the first person convicted of brokering the sale of kidneys in the United States [HT: George Mason law student Michael Mortorano]. The real tragedy here is not what Rosenbaum did, but the fact that organ sales are illegal to begin with. Legalizing them would save thousands of lives every year by increasing the supply of kidneys available to those suffering from organ failure.

When the Rosenbaum case began in 2009, I wrote this post countering one of the most common arguments against legalized organ sales: the claim that it would “exploit” the poor. Here’s a summary (details of each point are in the original post):

The arrest of Brooklyn Rabbi Levy Izhak Rosenbaum for trying to broker the sale of a kidney has rekindled public debate over the possibility of legalizing organ markets. This is an issue I teach every year in my Property class. Each time, one of the most common objections raised is the claim that organ markets must be banned because they will lead to “exploitation” of the poor…..

There are several major problems with the argument: it is inconsistent with allowing poor people to engage in far riskier activities for pay; it doesn’t even begin to prove that preventing the “exploitation” is an important enough value to justify the deaths of thousands of people for lack of organs; and it overlooks the fact that poor organ donors are likely to benefit from organ markets. Finally, even if all these points are unpersuasive, the exploitation argument still can’t justify banning organ sales by the nonpoor as well.

I realize, of course, that for many people, the most important objection to organ markets is not exploitation of the poor but rather a visceral emotional hostility. It is difficult to argue against gut feelings of disgust. Almost by definition, they are hard to influence by rational argument. Still, I would ask those who feel this way to keep in mind two points:

First, many social and technological changes that are widely accepted today were once greeted with similar visceral hostility. Consider cases like equality for women and interracial marriage. Some leading critics of organ markets, such as medical ethicist Leon Kass, also once argued that in vitro fertilization should be banned, because they found it disgusting as well. Today, IVF is an almost universally accepted method for enabling therwise infertile people to have children. Even Kass has made his peace with it. That doesn’t prove that all negative visceral reactions are necessarily wrong. But it does suggest that we should be very careful about basing policy on them.

Second, even if you think that your visceral hostility to organ sales is well-founded, it is still necessary to ask whether satisfying it is worth the sacrifice of thousands of lives every year. Many otherwise distasteful practices may be defensible if they save innocent lives. To justify a ban on organ sales, it’s not enough to prove that such sales are somehow flawed or even immoral. Whatever values are promoted by a ban have to be weighty enough to justify condemning thousands to an early death.