Organ Markets:

Lloyd Cohen, a George Mason lawprof who has been working on this subject for a long time, has a new proposal. Here's an excerpt from the introduction:

After spending sixteen years urging legal reform that would permit compensation for organ donation in order to increase the supply of transplant organs I have decided to reverse course. I will now try to increase the supply of organs by decreasing the supply of organs, that is, by urging you to commit to not donating your organs unless you are compensated.

Why this radical change in direction? Because, my efforts to change the law and increase the supply of organs have proven fruitless, and there is really very little that I or anyone else can add to the argument for employing a market incentive to increase organ donation. . . .

Christine Hurt (mail) (www):
Intriguing. I would like to see a better energy policy that rewarded conservation. Should I be urging every one I know to waste gasoline? If I were still in Texas and worried about the state of water conservation, would I urge everyone I knew to leave their water running all day long? I understand that high leverage leads to less waste in the corporate arena and that necessity is the mother of invention, but what if it doesn't work?
6.22.2005 1:44pm
Huggy (mail):
Don't worry. Stem cell research will produce bountiful organs six months after a Democrat is put in the White House. :-)
6.22.2005 2:05pm
Cyrus (mail):
Interesting argument, but also infuriating. As an economist he should understand that collective action problems will make it highly unlikely that he'll manage to convince enough people not to donate in order to possibly convince the legislatures to change the laws.

Meanwhile very real people will die.
6.22.2005 2:55pm
I had Prof. Cohen and the market for organs is something that many of the GMU Law profs advocated for. Econ is a great social science because you can assume away all the things you do not like to get the result you want. My post is not to say the current system is ideal but rather that Prof. Cohen (and others at GMU law) will not acknowledge potential "externalities" like the horror of a black market for organs. You have to be naive to think there is a small likelihood that organs from Chinese political prisoners and victims of the Russian Mob would be made available.
6.22.2005 3:12pm
I think that the no-compensation rule should be expanded a bit. It should be illegal to harvest organs from anyone who has committed suicide or if a reasonable person would conclude that when the organ-harvesting opportunity presents itself soon after death. That way, you remove the incentive from some depressed soul to kill themselves thinking "some good will come of it" in the form of organ donations.
6.22.2005 3:25pm
Brett Bellmore (mail):
I suppose a farmer, if he let his crops rot in the field merely because food processors refused to pay for them, could be accused of wasting them. The fact remains, that people are dying because the health care industry insists that everybody from the surgeon to the janitor must get paid, except the donor who makes the surgery possible.

Maybe a strike IS the only way to break them free from this insane notion.
6.22.2005 3:27pm
arbitraryaardvark (mail):
When I was 19, I wrote a term paper for an ethics class on "rights and the market in blood", and have been unwilling since then to "donate" blood; I have been on a one-man strike against the ban on blood sales, which kills thousands per year. One the other hand, when a friend's daughter died I talked him through the organ donation process and several lives were saved. Is there a small country anywhere in which organ sales are legal? Blood sales? That would provide data in contrast to the ban. My paper is long since lost; that was before blogging. I have felt vaguely guilty about not doing more on this issue, since every year the unneeded deaths and blood "shortages" continue. Maybe I should sit down and reconstruct it. Kudos to Cohen.
6.22.2005 4:02pm
Fede (mail):
"You have to be naive to think there is a small likelihood that organs from Chinese political prisoners and victims of the Russian Mob would be made available."

It's just as naive to assume that a few organs aren't ALREADY coming from such sources; organs are in short supply as it is, and the money will always be there. The fact of the matter is that it's a lot harder to convince someone to let their corpse be mangled for the warm feelings that come with replacing the liver of a chronic drunk than it is to do so for cash.
6.22.2005 4:06pm
GMUSL 1L (mail):
Huggy, I'm a little confused -- since when was there a ban on stem-cell research?

Based the successes of the federal government's forays into retirement, old-age healthcare, and education, I predict that government funding of stem cell research would produce some sort of monstrous self-aware teranoma that consumes living humans as it grows itself larger. Actually, that sounds a lot like the government itself!

Seriously though, ever seen The Pentagon Wars? Why introduce that level of graft and posturing into scientific research?
6.22.2005 4:57pm
I have my own proposal for increasing the supply of organs: let's reverse the current default rule, such that people must opt out of being organ donors. If somebody who hasn't opted out dies in a car accident, but has usable organs, doctors would be free to harvest those organs without fear of legal action by the decedent's family.

We could impliment it using drivers licenses. If you don't want to be an organ donor, it will say so on your drivers license. People who don't drive could get a non-organ-donor ID card.

I think the benefits would be tremendous. Currently, thousands of usuable organs are allowed to die because people don't check the box on their drivers licenses. Further, in some cases doctors do not harvest organs from people who DID check the box because the family is opposed to it, and the doctors fear legal action. Also, many people who aren't necessarily opposed to the idea of donating organs don't check the box because they don't like confronting the idea of their own mortality.

Under the rule I propose, people could avoid confronting their own mortality while still helping save another's life. A certain percentage of the population won't pay attention to the issue, and will by default become donors. And if it is against your religion, personal beliefs, etc., to become a donor, simply opt out. Doctors would be free to use usable organs from individuals whose donor status is unknown, without the fear of lawsuits. The net affect would be to greatly increase the supply of usable organs and thereby save thousands of lives each year.

If an organ is mistakenly harvested from the body of a person who in life did not want to be an organ donor, I would argue that there is little actual harm (if any) so long as the person, in life, believed her organs would not be donated. On the other hand, if a doctor makes the opposite mistake under the current regime, and refuses to use an organ from a person who actually desired to become a donor, the prospective donee may die. Note that I do not advocate using organs from individuals who desired to opt-out, I'm only pointing out that such a mistake has minimal costs, as opposed to the opposite mistake under current law.

I have yet to hear a persuasive argument against such a legal regime.
6.22.2005 5:39pm
Guest, my organs belong to me, and can be disposed of at my will, i.e., I could give you a kidney right now. Everything I have when I die then goes to my estate. I do not wish for my estate to be deprived of, at the very least, the "property right" to determine the disposition of my remains without due process. An individual's physical remains do not belong to the State, and despite my own dedication to organ donation, the deeply personal rituals that accompany a death, sometimes including maintaining the integrity of the physical body until burial, should absolutely not be intruded on by the Gov'ment.

I only skimmed Cohen's article, since life is short, and I'm not going to give 10-pages-worth of time to the reduction of the lives of suffering individuals to sacrificial lambs on the altar of market manipulation. Professor Cohen has turned cutting off one's nose to spite one's face into an academic art form.
6.22.2005 6:10pm
If you're concerned that your estate should have first dibs on your kidney when you die (say your sister needs a transplant at the time of your death), maybe that could be part of the system. But if you simply want to give your estate the right to deny anybody the use of your transplantable organs, I think that's wrong. You have the right to determine what happens with your body. But if you die, and it wasn't important enough to you in life to declare your intentions with respect to your organs, your estate should not have the right to deny others access to your usable organs.

You say that your remains don't belong to the state; I don't propose giving your remains to the state. I propose permiting doctors (whether they work at a private or public hospital) to transplant those organs without fear of a lawsuit if you haven't opted out. It's simply legal protection for doctors who save lives using transplantable organs of people who did not object during life. If you're worried about the problem of identifying people who have opted out, well, I'd guess that with advancing biotechnology and computer technology, it would be possible to create a system capable of identifying individuals even if they didn't have their ID on them when they died. That's a technical problem though. Assuming we could come up with a system capable of identifying people (perhaps by DNA or some other biometric) and determining whether they had opted not to be an organ donor, it seems to me that any costs of such a system are clearly outweighed by the benefits.
6.22.2005 6:28pm
Would Professor Cohen be willing to refuse to be a parent unless society pays for his valuable services?

My children would appreciate it.
6.22.2005 6:48pm
DaveJ (mail):
Interesting. I've been doing, and arguing, the very same course for years now. Want my organs? Pay my estate. Not worth paying for? Hey, you just set the value on them, not me. I agree that only a strike by the donors can introduce sanity.

I think Christine mistakes a strike by providers with a boycott by consumers. There's a small difference.

'Guest' has a interesting perspective. The government owns my body by default. If the only issue were creating donor organs, it might work. I think the real problem is an issue of property ownership. The system has set and enforced an arbitrary value on donated organs of $0. I accept the value and choose not to do business. So do many other people. What's the problem?
6.22.2005 6:50pm
Andy Freeman (mail):
I happen to live in a state that has a "your organs are ours unless you object" policy. That's part of why my "organ donor" card states that my organs may not be used unless my estate is paid a defined amount BEFORE harvesting.
6.22.2005 11:55pm
Adam (mail):
Christine: the obvious difference between organ donation and conservation is that there isn't some ridiculously obvious policy that would do much to alleviate the problem which is illegal because of some "infantile pretentious principle", in Professor Cohen's words. Also, organ donation is directly a matter of life and death, whereas conservation is at most indirectly a matter of life and death, and so more drastic measures may be called for (though it may also make one more hesitant, because of the larger short-term moral cost).

ReaderX: Most people (at least those who consider becoming parents) get their own personal satisfaction from having children. No need at all to invoke altruism. Plus, people aren't dying because some people selfishly refuse to be a parent.
6.23.2005 9:18am
Brent Michael Krupp (mail):
The state used to seize the living bodies of young men to fight in wars. I wonder if seizing the dead bodies of variously aged men and women to save lives is so much worse. OTOH, the draft has fallen out of favor, so perhaps this points in the direction of compelled organ donation not being too popular.

Personally, I'd rather my dead organs be drafted than my live self. =)
6.23.2005 10:21am