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"Exploitation" of the Poor is a Poor Reason to Ban Organ Markets:

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. Obviously, the exploitation argument is often raised elsewhere as well.

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. Poor People Are Allowed to Take Much Greater Risks for Pay.

Many organ market critics may be unaware of the fact that the risks of donating a kidney (the main proposed organ market) are actually very small. As the National Kidney Foundation explains, people who have only one kidney can live normal lives with only minor added health risks, and a life expectancy equal to that of those with two kidneys. For those who sign advance contracts to donate their kidneys after they die, even these minimal risk are not present.

If it is somehow wrong to allow poor people to assume these very minor risks in exchange for pay, why should they be allowed to brave vastly greater dangers for money? Military personnel, firefighters, police officers, and others accept far greater risks to life and limb than kidney donors do. And of course they are paid to do so. Should poor people be banned from entering those professions? NFL players, most of whom come from poor backgrounds, risk very serious injuries. On average, they also lose about 2-3 years of life expectancy for every season they play. Yet no one argues that poor people should be banned from professional football. If it is permissible to "exploit" poor people for the sake of providing entertainment to football fans, shouldn't we be able to do so for the sake of saving thousands of lives?

II. Is Preventing "Exploitation" Important enough to Justify Killing Thousands of People?

As Virginia Postrel explains in this article, some 80,000 lives in the US alone could be saved by legalizing kidney markets. Even if you find the "exploitation" of poor people in organ markets morally repugnant, you have to ask whether following that moral intuition is so important that it justifies sacrificing all those lives. So far, I haven't seen any argument that even comes close to showing that it is.

In this context, it's worth noting that banning kidney markets is actively killing people, not merely the lesser wrong of letting them die by refusing to help. When the US government bans organ markets, it uses the threat of force to prevent dying people from engaging in voluntary transactions to purchase what they need to survive. Those who disobey are imprisoned, as Rosenbaum probably will be. The government would obviously be guilty of active killing if it used force to prevent a starving man from buying from willing sellers the food that he needs to survive. And it could not excuse the killing merely on the grounds that some of the sellers were poor people who might be "exploited."

It's perfectly understandable if you find organ markets offensive or distasteful. But if you want to justify a categorical ban, you have to have a rationale compelling enough to justify killing large numbers of people.

III. Organ Sales are Actually Good for Poor Donors.

Given the minimal risks of organ donation, it is highly likely that kidney markets will actually benefit poor donors far more than they could conceivably harm them. The logic isn't complicated. After all, one of the main problems that poor people face is lack of money. Getting, say, $100,000 for a kidney in exchange for accepting a very small health risk is likely to leave a poor donor much better off than he was before. Indeed, I might well accept that deal myself, despite being relatively affluent. Perhaps the existence of poverty is a morally repugnant injustice. If so, we should be extremely reluctant to ban transactions that might help the poor to alleviate it.

If the poor person reasonably believes that the risk is worth it, I don't see why the government should force her to choose otherwise. Obviously, it's possible that she will miscalculate, underestimating the potential harms. Perhaps that justifies regulations requiring the provision of accurate information about health risks to donors. But it surely doesn't justify a categorical ban - especially given that the risks of donation are minor and relatively easy to understand. If poor people can be trusted to make decisions about whether or not to accept the much greater dangers of military service, firefighting, or playing in the NFL, we should also trust their judgment about organ markets. Indeed, if ill-informed decision-making is really the problem, it would justify banning unpaid organ donations by the poor no less than sales. After all, an unpaid donor could misunderstand the risks just as easily as a paid one.

IV. The Exploitation Argument Doesn't Justify a Ban on Organ Sales by the Nonpoor.

When I teach this issue in Property class, one suggestion I sometimes throw out to people who raise the exploitation issue is the possibility of limiting organ markets to nonpoor sellers. Wouldn't the "problem" be solved by passing a law allowing organ markets, but limiting them to donors whose annual income exceeds some threshold (e.g. - the poverty line or the national average income)? Given that we have 300 million people and only need about 80,000 additional kidneys, a market that excludes the bottom 50% of the income distribution could still probably generate enough organs to eliminate the shortage, or at least a large part of it. Indeed, legalizing organ markets only for nonpoor sellers might actually reduce sales by the poor relative to the status quo, since it would wipe out much of the demand for black market organs (which are usually sold by poor people).

In my experience, those who raise the exploitation argument almost never endorse this proposal - despite the fact that it would eliminate any possible exploitation of the poor caused by legal organ markets without killing thousands of innocent people (as today's categorical ban on organ markets does). Few of them raise any technical policy objection to it. They simply seem find the idea intrinsically distasteful. Nonetheless, if your main objection to organ markets really is the fear of exploitation of the poor, you should at least give the idea some serious thought. If, on the other hand, the exploitation argument is just a rationale for some other objection such as intuitive repugnance at the mere thought of organ sales, then we would have a better discussion if you admit that and focus on the real object of your concern. Just remember that it should be a principle important enough to kill innocent people for.

NOTE: I should perhaps mention that in class, I assign readings on both sides of the issue and don't simply lecture in defense of my own view. I also don't present my objections to the exploitation argument as thoroughly as I have here (partly because of the need for balance and partly because of time constraints). The classroom environment is very different from the blogosphere and imposes different obligations on academics.

UPDATE: The original version of this post said that kidney markets could save 80,000 lives in the US every year. Unfortunately, I misread the source article. In reality, there are only about 80,000 people waiting for kidney transplants in the US in total, with approximately 4000 dying each year. And the article notes that the waiting list (and death toll) grow every year. These are still shocking figures, but admittedly not as bad as the mistaken figure given in the original post. I regret the error, and have corrected the post.

Related Posts (on one page):

  1. "Exploitation" of the Poor is a Poor Reason to Ban Organ Markets:
  2. Ending Kidney Corruption:
Ari (mail) (www):
"In this context, it's worth noting that banning kidney markets is actively killing people, not merely the possibly lesser of offense of merely letting them die by refusing to help."

If you really believe that the government is guilty of the cold-blooded murder (not neglect, not manslaughter, but outright murder) of (at least) 80,000 individuals per year, shouldn't you be out trying to kill those responsible right now? Shouldn't you be living a life of complete and utter asceticism, trying to prevent yourself from in any way funding the government's murderous activities? And even if you say that the best course of action in stopping this brutal holocaust is calm, academic persuasion, why aren't you devoting every second of your life to stopping it? Every minute you spend on other activities is another minute during which the government is actively killing people. Every single blog post you make should be about the wanton massacre of civilians committed daily by the government of the United States.

I conclude either that you do not take your argument very seriously, or that there is some serious cognitive dissonance at work here. But other than that, I largely agree with your post.
7.28.2009 4:44am
More Productive Advocacy:
You would have to be trained in the law to come up with such ridiculous analogies as comparing organ donation to professions such as police officer, fire fighting, the military, or professional football.

This is too easy.

First of all, donating a kidney is a one time activity. These other activities, in contrast, are professions. Not only are they professions, but with the exception of professional football, they are noble professions.

There are plenty of privileged people who would consider a career in law enforcement, the military, fire fighting, or professional football. People would do these things out of a sense of duty and interest, even if no money were involved.

Who would donate a kidney if one was not in serious need of money? Well, certainly some people do, and they are to be commended. But, for the most part, the people who would engage in these activities are the poor. The desperate. The impulsive.

And yes, being poor is highly correlated with poor impulse control by the way. In many cases, it is not entirely a matter of coincidence that certain people are poor. It is often correlated with poor planning and poor impulse control. (Obviously, there are many cases of bad luck too.)

Why do kidney's fail? One common reason is excess alcohol consumption. So let me get this right. We are to facilitate a transaction where the Paris Hiltons of the world destroy their own bodies and then harvest them from poor but otherwise healthy individuals?

Yeah, not only is that sort of exploitation a serious problem. That is just plain fucked up.

And maybe Mr. Somin needs to learn some respect. People in the military or police officers are not being "exploited." They are serving the public (not merely single irresponsible person who ruined their kidney's via a hard drinking). That counts as noble in my book, not exploitation. I am sorry you don't understand that concept. I wouldn't expect it, because duty and sacrifice for the greater good are concepts that tend to be foreign and mysterious to the libertarian.

Apparently, those who serve and sacrifice for the country are not heroes. Instead, they are exploited victims... Only a libertarian who is also a lawyer would come up with such a fucked up analogy as between a soldier serving his country and someone who donates a kidney for a quick buck.

The bottom-line is this. You probably don't even believe in the concept of exploitation except for the use of force against person or property. So, the idea that exploitation doesn't matter is just an extension of the general blindness to reality that afflicts you anyway. But, normal people do understand that exploitation can come in different and in some ways more insidious forms than the use of raw force.


If the poor person reasonably believes that the risk is worth it, I don't see why the government should force her to choose otherwise. Obviously, it's possible that she will miscalculate, underestimating the potential harms. Perhaps that justifies regulations requiring the provision of accurate information about health risks to donors. But it surely doesn't justify a categorical ban...


Actually, in the real world, adults do need to be protected from themselves to some degree. People, actual adults even, make stupid emotional short-term decisions all the time. Categorical bans are an important tool that, while they should not be overused, are necessary for the protection of society. Of course, protecting people from their own stupid decisions is obviously not high on your priority list. But maybe you should have more empathy for individuals who are more impulsive and possess less self-control.

When will libertarians ever have a realistic view of humans? Of themselves even? Libertarians themselves are not even rational, nor do they fully control their impulses-- why do they think everyone else is.

Your policy proposals presume a hyper rational human that does not exist in the real world.

Yes, the government CAN, in many instances, make better decisions than individuals. That is because government plans and policies can take a longer term view and not be swayed by emotion, impulse, and instances of lack of self-control.

Imagine the following scenario:

Crack-addict needs a fix. Donates a kidney. Blows all the money. Is crack-addict better off having had the "choice" to sell a kidney. Hell no.

Gambling addict needs to get lucky. Donates a kidney. Loses all their money doing what else: gambling. Is gambling addict better off having had a "choice" to sell a kidney. Hell no.

Maybe Mr. Somin needs to get out more. There are plenty of people with very poor impulse control. And yes, they DO need to be protected from themselves. This is reality. Deal with it.

Oh, finally, I am supposed to be so sad when people who fuck up their own bodies die because they can't get a kidney. Well, maybe if these people had better impulse control and laid off the booze, they wouldn't need a kidney. How about that! Personal responsibility. Maybe you should avoid fucking up your kidney in the first place. (Of course, not all cases of kidney failure are caused by excess alcohol consumption.)

Consider this premise, which should not be debated for the purposes of this hypothetical. Universal healthcare would save lives, but be financed by mandates that individuals purchase insurance and involuntary taxation.

Would Mr. Somin support this proposal?

I doubt it. Yet he expects liberals to have no other important values than extending lifespans.

Guess what, we could also save a lot of lives by banning the automobile. What, like 50,000 people die a year because of our love affair with the automobile. And you know what. It is worth it. Don't even think about touching my fucking car. Hands off.

We could also reduce traffic fatalities by making alcohol completely illegal. Yeah, a few more people would be killed by organized crime, but such crime is going to exist selling drugs and such regardless and the people killed mostly would be unsavory anyway. In contrast, drunk driving accidents kill even the most wholesome individuals.

Let us presume, for the sake of a hypothetical, that banning alcohol would save more lives than it would cost in terms of increased criminal activity.

Should we ban alcohol in that case? I say no. The freedom to drink alcohol is an important freedom. Saving lives is an important goal, but it is not the only goal.

Would you want everyone to live in hyper sterile bubbles if it extended life spans? Such a dull life would not be worth living.

The bottom-line is of course we shouldn't sacrifice our most important values in order to save a few lives. A lot of these people ruined their own bodies anyway. Yeah, I know that the idea of harvesting the bodies of the poor sounds appealing to the irresponsible, but that is immoral and unethical. Period. End of story. It really is black and white.

Guess what. We are all going to die of something someday anyway. And if you fuck up your body, that day is going to be sooner. It is common sense.

On the other hand, maybe you didn't fuck up your body. Maybe you had perfect health habits. Maybe your just unlucky. Maybe you have an unfortunate combination of genes, or were exposed to some chemical. Well, some people get struck by lightening. That doesn't mean we take away people's freedom to be outside when its raining. Yeah, I am sure that such a compromise of our fundamental values would save a few lives, but it wouldn't be worth it.

You want to advocate something to increase the supply of not only kidneys but other organs? Why don't you advocate something that is moral and ethical rather than the moral equivalent of cannibalism.

People should be able to elect to have their loved ones compensated for organ sales.

You keep talking about how the risk is "low" for kidney donors. Keep in mind that thousands and thousands of people die every year because doctor's fuck up. I hope you don't get a nasty and fatal infection when going into surgery to donate that "kidney." But I guess THOSE people are just unfortunate "statistics" that make up your "low risk."

Well, I will tell you for whom the risk or organ donation is really really low. People who are already dead.

I know that it isn't as satisfying as the gruesome thought of harvesting organs from people who are alive and healthy but poor, all based on fabulous libertarian principles and non-ethics, but maybe what you should advocate is organ markets from organs from the deceased rather than the living.

Just a thought.
7.28.2009 4:57am
Ilya Somin:
If you really believe that the government is guilty of the cold-blooded murder (not neglect, not manslaughter, but outright murder) of (at least) 80,000 individuals per year, shouldn't you be out trying to kill those responsible right now? Shouldn't you be living a life of complete and utter asceticism, trying to prevent yourself from in any way funding the government's murderous activities? And even if you say that the best course of action in stopping this brutal holocaust is calm, academic persuasion, why aren't you devoting every second of your life to stopping it? Every minute you spend on other activities is another minute during which the government is actively killing people. Every single blog post you make should be about the wanton massacre of civilians committed daily by the government of the United States.

I would say that it is at least second degree murder. But it doesn't follow that I should devote my whole life to this problem in order to be consistent. First, I am not killing anybody. The government is.The fact that the government is taking my money to fund these activities (without my consent) doesn't make me blameworthy.

There are actually many far greater atrocities in the world than this one. For example, the government of North Korea kills far more innocent people than ours does, for reasons that are even less defensible. But that doesn't mean that I am required to devote my entire life to trying to fight its injustices. Especially if doing so is unlikely to have a decisive impact. In the era when we had slavery, would you have argued that everyone who failed to devote their entire life to abolitionism was morally culpable? If not, the same goes for my efforts in respect to the US government's ban on organ markets.
7.28.2009 5:00am
More Productive Advocacy:

There are actually many far greater atrocities in the world than this one. For example, the government of North Korea kills far more innocent people than ours does, for reasons that are even less defensible. But that doesn't mean that I am required to devote my entire life to trying to fight its injustices.


Don't worry Mr. Somin. No one would every expect a libertarian to do anything about an injustice not affecting private property.
7.28.2009 5:04am
Ricardo (mail):
Who would donate a kidney if one was not in serious need of money? Well, certainly some people do, and they are to be commended.

So under the system Ilya is proposing, you are claiming that few people would donate kidneys who do not need the money. What about the current system? Are there so many kidney donors out there who donate out of the kindness of their hearts who would stop donating once Ilya's system gets put in place?

Why do kidney's fail? One common reason is excess alcohol consumption.

I'm going to go out on a limb and guess you aren't a doctor.
7.28.2009 5:18am
More Productive Advocacy:
Ricardo,

(1)

It is my position that under the current system, there will be a shortage of kidney donors relative to the number of people who need a kidney. I believe that compensating donors, as Mr. Somin is proposing, would mostly fix that shortage, but that this solution would have unintended consequences and is also immoral and unethical.

(2)

So, is it your position that alcohol consumption has nothing whatsoever to do with kidney failure in any case whatsoever?
7.28.2009 5:41am
More Productive Advocacy:
Like Mr. Somin, I believe that states who do not adopt my preferred policies are engaged in at least 2nd degree murder.

Since texting results in deaths due to traffic accidents, I believe that all states who have not banned texting while driving are guilty of first degree murder.

I further believe that states who have not banned texting in all situations altogether are guilty of second degree murder, because they, knowing that some people would illegally text and drive, chose not to ban texting altogether.
7.28.2009 5:49am
Avatar (mail):
If you allow people to sell themselves a piece at a time, then why not just buy in bulk and get the whole thing?

The law does not recognize your body as your property, in a legal sense. It's "your" hand, "your" eye, "your" head, but there's no paperwork involved. Certainly you cannot acquire title to body parts not present in your own body. We allow the transfer of such parts as can be transferred, in admittedly limited quantities, under circumstances that are utterly unlike the transfer of property.

If "your" organs become "your" property, in the sense that you would be allowed to divest yourselves of them in exchange for consideration... then they're your property, and they can be -taken from you without your consent-. Fancy having to justify to creditors why your client should be allowed to declare bankruptcy without giving up a kidney? Or a cornea? Or a divorce lawyer, arguing that the wife that got the husband to stop drinking has increased the value of his liver and thus should be compensated out of the community property? Think college for your kids costs an arm and a leg NOW? Criminy, what if you can't pay for your organ after all, do they repossess it?

There are many dark and ugly things down the path you advocate here. You can say "limited financial compensation would result in more organ donation", and there are ways you could construct that so that you wouldn't have the risk of organs-as-financial-assets, but you'd have to approach it from that direction in the first place. Going directly from an argument about property rights is NOT the right way to do it!

Finally, can we just ignore that you ever brought up the vicarious contribution to injury at a remove as equivalent to murder? By that logic, Ronald McDonald is a greater evil than Hitler. ;p Seriously, though, I'm not responsible for the fact that other people get sick and die; take it up with your deity if you want to complain about that.
7.28.2009 5:51am
Ilya Somin:
can we just ignore that you ever brought up the vicarious contribution to injury at a remove as equivalent to murder? By that logic, Ronald McDonald is a greater evil than Hitler. ;p Seriously, though, I'm not responsible for the fact that other people get sick and die;

If Ronald McDonald used force to people to eat Big Macs to the point where they get sick and die, he would be responsible for their deaths. If you use force to keep sick people from buying the medicine they need to survive, you would be responsible for their deaths. Those two scenarios are the equivalents of what the government does by banning organ markets. Your scenarios, by contrast, are not equivalent, since McDonald's doesn't force people to eat their food, and you (I hope) don't force them to get sick.
7.28.2009 6:05am
Ari (mail) (www):
"The fact that the government is taking my money to fund these activities (without my consent) doesn't make me blameworthy."

You could always move to another country or avoid paying taxes. The latter is especially easy, and (risking! -- many people get away with it) going to jail would be a small price to pay for not having a hand in unequivocal murder. (Besides, your becoming this generation's Mumia would surely help the cause.) Stealing from government funds or shops might also be justifiable. But this all depends on your moral calculus -- if, for example, you regard the murder of one as not being justified by the saving of one thousand, such activities as these are obligatory, but not if murdering one is justified by the saving of one.

"In the era when we had slavery, would you have argued that everyone who failed to devote their entire life to abolitionism was morally culpable?"

Murder is not quite on the same moral plain as slavery, especially since slavery was not mandated but allowed by the government. The point is that if the situation is truly as serious as you say it is -- if the government really is like a man who has just shot ten people to death and who almost certainly will murder again but who is now volunteering at the homeless shelter -- it deserves a much, much more careful analysis than you're giving it. In such a situation as I have described, you would not be dismissing violence offhandedly but seriously considering it.
7.28.2009 6:08am
Ari (mail) (www):
Also, remember how people were justifying the invasion of Iraq based on Saddam's gassing the Kurds and other atrocities? How many lives the war in Iraq saved? These are not ridiculous questions to ask of this country if what you say is true.
7.28.2009 6:17am
Monty:
If it is somehow wrong to allow poor people to assume these very minor risks in exchange for pay, why should they be allowed to brave vastly greater dangers for money? Military personnel, firefighters, police officers, and others accept far greater risks to life and limb than kidney donors do. And of course they are paid to do so. Should poor people be banned from entering those professions?

As More Productive Advocacy eluded to, many poor people do not shepard thier financial resources effectively. Just look at the anecdotes of poor people who have won the lottery and then squandered the money only to end up poor again. You sell a kidney, and squander the money, you don't get a second chance to do better. Paticularly in the case of police officers and firefighters, they are entering into a career. I don't know what demographics they draw from, but by most standards, shortly after taking the jobs anyone who started out poor would cease to be so. And unlike a lump sum for a kidney, they will be permenantly better off, though the risk will continue as well. I just don't think that a lump sum payment for an organ is analogous to employment in emergency services. (The military is perhaps a closer analogy)

Regardless, I agree that as a free person, I should be able to do with my body as I please, including selling parts of it. But what if I want to sell something riskier?
7.28.2009 6:36am
A More Productive Advocacy:

Your scenarios, by contrast, are not equivalent, since McDonald's doesn't force people to eat their food, and you (I hope) don't force them to get sick.


This is truly idiotic. People have cravings. They also do not possess perfect self-control. McDonald's purposely and knowingly exploits and creates cravings with commercials that are designed to trigger cravings for their unhealthy food.

BUT FOR McDonald's (and McDonald's fast food competitors) purposeful and manipulative advertising, people would consume a somewhat more healthy diet and live somewhat more healthy lives.

BUT IN YOUR WORLD, this doesn't matter. In my world, these people are less healthy and die sooner. Oh, it is a tragedy if someone is less healthy and dies sooner because they don't have a Kidney. But, if McDonald's advertising is a BUT FOR cause of the same thing, it doesn't matter.

Just because explicit force isn't used, that does not mean that there is nothing problematic going on. What is going on is a more subtle sort of manipulation.

You are living proof that a Yale Law degree means very little when it comes to basic critical thinking skills.
7.28.2009 6:45am
A More Productive Advocacy:
Let us put it this way.

If Mr. Somin had his way, we would trade small amounts of explicit force (i.e. government regulation) for large amounts of subtle manipulation (i.e. confusing trickery designed to exploit basic and systematically existent human imperfections).

We would be MUCH worse off, because the subtle manipulation is much more dangerous than the government regulation.

BUT REMEMBER, if your a libertarian, IF IT ISN'T PHYSICAL FORCE, it doesn't exist as a problem. Because libertarians are like people who have had partial lobotomies and thus are unable to perceive certain aspects of reality. They live in lalalala land and not the real world that consists of less than perfect human beings.
7.28.2009 6:50am
A More Productive Advocacy:
Remember,

In Mr. Somin's world, if you die a horribly painful death due to a government regulation (a ban on selling kidney's for example) that is the most worst possible thing in the world.

If on the other hand, you die a horribly painful death BUT would not have had the government regulated something, texting while driving for example (i.e. lack of regulation is a BUT FOR cause of your death) this does not matter at all.

That the outcomes, a horrible painful death, are absolutely equivalent is of no concern whatsoever.

See, the problem is not that you have died a horrible painful death. This is of no consequence whatsoever. What really matters is that we shouldn't have any "coercive" regulation.

In fact, if government regulation causes a minor inconvenience but prevents a horrible painful death, that is still the worst possible thing.

See, the kidney example is especially fun. Because libertarians get to act like they care about preventing horrible painful deaths, when all they really care about is stopping government regulation.

That is why they will ignore problems like texting while driving. No one forced you to drive. And anyway, you were just unlucky. THE fact that you would have lived had the government regulated texting and driving. THAT is irrelevant.

Oh, you eat McDonald's because you have cravings triggered by their multi-billion dollar advertising campaigns. Well, they never FORCED you with a gun to eat those hamburgers. So, that your heart attack might be horribly painful and completely devastating to you and your family, it is TOTALLY irrelevant.

AND anyway, you had total control over your own eating. McDonald's was just wasting its money when it engaged in all that advertising.

I think it is funny when libertarians act like they are SO worried about preventing horrible and painful deaths in THIS situation even while exhibiting complete indifference to horrible and painful deaths caused by a LACK of government regulation.

BUT remember, the problem is not whether you experience a horrible and painful death or not. The problem is why you experience it. If you experience it because you were the target of subtle manipulation, that isn't a problem. But, if the tiniest and most inconsequential regulation somewhere, anywhere in the entire universe, could be said to have plausibly or not so plausibly contributed to the death, ONLY THEN is it a tragedy worthy of note.

So, the government is guilty of murder if it doesn't let you harvest fresh organs from poor people. Nevermind whether or not YOU engaged in any unhealthy habits. THOSE unhealthy habits are suddenly irrelevant.

BUT of course, if similar imperfections cause you to be influenced into living a less than healthy lifestyle pushed by McDonald's and friends, THAT is your fault.

THE BOTTOM-LINE: If government regulation even plays the tiniest role in a problem: YOU ARE NOT BLAMEWORTHY AND NEED TAKE NO PERSONAL RESPONSIBILITY. If, on the other hand, private manipulation played a huge role in the problem: YOU ARE COMPLETELY BLAMEWORTHY AND SHOULD HAVE EXERCISED SUPERHUMAN POWERS OF SELF-CONTROL.

That is the libertarian philosophy in a nutshell. THAT is why Mr. Somin so casually dismisses the manipulative behavior of McDonald's and friends, even though it is often a BUT FOR cause of many horribly painful deaths due to the unhealthy lifestyles that are promoted.
7.28.2009 7:14am
Larry Fafarman (mail):
The ban on organ sales is part of the nanny state, like the bans on prostitution. If the courts overturn the ban on organ sales, that would be one more reason to overturn the bans on prostitution. Actually, Lawrence v. Texas, which overturned a law against homosexual sodomy between consenting adults, is already more than sufficient reason to overturn the bans on prostitution.

What about prisoners? Shouldn't prisoners be allowed to exchange organs for reduced sentences?

The original post says,
NFL players, most of whom come from poor backgrounds, risk very serious injuries.

Poor analogy. High school and college football players, who get little or no monetary compensation, also risk very serious, crippling injury (and -- rarely -- even death).
7.28.2009 7:58am
Tom Tildrum:
Prof. Somin, you've written about the poor donor, but what about the poor recipient? Under the current system, the rich and the poor wait together for organs according to the perceived severity of their conditions. If those organs are auctioned to the highest bidder, then poor people with organ failure will be priced out of the market. How is your approach not a certain death sentence for the needy poor?
7.28.2009 7:59am
Hannibal Lector:
The only good argument against Professor Somin's position that I've seen here is Tom Tildrum's and it is a very telling one. The rest, however, has been hysterical rant.

One point worth noting is that kidney donation is not as trivial a matter as it has been made out to be in this thread. I was recently falsely diagnosed with renal carcinoma and had to consider the possibility of having a kidney removed. According to my prospective surgeon, it's not like John Locke's experience in LOST. It's major surgery. You can expect to be laid up for anywhere from two to four months. So I think the discomfort and danger associated with kidney donation have been considerably under-played on this thread.
7.28.2009 8:25am
corneille1640 (mail) (www):

The fact that the government is taking my money to fund these activities (without my consent) doesn't make me blameworthy.

Well, you can try to vote with your feet and move to a better country where money (or at least not as much money) isn't taken from you without your consent.

My snarkiness aside, I agree with much of your argument with the following qualification. It's probably a better policy to make the argument legal (albeit with enough safeguards) than to keep it illegal. But (to me) even though it's probably good policy given the alternative, it stinks to high heaven. There's at least the possibility of a "slippery slope" where the poor are maintained as a reserve for organ donations. (I'm not going to insist on the "slippery slope" argument because it's very hard to prove and is too hypothetical; but it's not fully out of the realm of possibility either.)

Some quibbles:

1. The amount paid for organ donations will probably decrease in a legal market because the potential "cost" (of incarceration) would be less.

2. Many people can live their whole lives healthfully with one kidney. But what if that kidney fails?

3. I presume a legal market would (probably) make more kidney's available overall, and therefore even those poor people in need of organs might benefit. Still, as at least a couple of commenters have pointed out, the rich who need organs benefit much more than the organ-needy poor.

One non-quibble:

I like the idea that your present both sides of this issue in your class. When I was a student I disliked teachers who used their classroom as a bully pulpit for their preferred policies.
7.28.2009 8:34am
Calderon:
A More Productive Advocacy wrote:


When will libertarians ever have a realistic view of humans? Of themselves even? Libertarians themselves are not even rational, nor do they fully control their impulses-- why do they think everyone else is.

Your policy proposals presume a hyper rational human that does not exist in the real world.

Yes, the government CAN, in many instances, make better decisions than individuals. That is because government plans and policies can take a longer term view and not be swayed by emotion, impulse, and instances of lack of self-control.


Slightly off-topic (or maybe not), but I'm always amazed when people make arguments like the above. "People are irrational, and therefore we need government regulation." Even if you grant the first premise, the second in no way follows. The government isn't run by robots, aliens, or computers, but people. The same people who are irrational, subject to bounded rationality, behaviorial heuristics, animal spirits, etc. Moreover, in western society those irrational people who make up the government are elected by the irrational people in the public at large. Unless you have some explanation of how people in government will be less irrational, etc. than in market circumstances, irrationality, etc. can't be used to justify regulation.*

Libertarians are fully capable of recognizing that people are irrational, etc. But they can also have a realistic view of people who act as government officials and are irrational, and that's presumably one reason why they're libertarians.

* To be clear, I'm not saying that people are irrational, just saying that if you grant the premise, government regulation doesn't follow.
7.28.2009 8:35am
Fedya (www):
The simple first step would be to treat the decedent's body as part of his/her estate, and pay the estate for the organs.
7.28.2009 8:54am
Dirk D (mail):
"s Virginia Postrel explains in this article, some 80,00 lives per year in the US alone could be saved by legalizing kidney markets."

Try 4,000. Reading is fundamental.
7.28.2009 9:18am
Michael Smith (mail):
"More Productive Advocacy" wrote:


Yes, the government CAN, in many instances, make better decisions than individuals.


But the individual's life belongs to the individual, not to the government. Nothing justifies the notion that some group of individuals -- say, the majority in a "democracy" -- have a right to select other individuals -- namely, the members of the "government" -- who will then have the authority to run the lives of ALL the individuals in that society, including the individuals that didn't agree with the scheme in the first place.

Such a scheme is every bit as arbitrary and every bit as much a violation of individual rights as was fuedalism, monarchy, theocracy, communism, fascism or any of the other countless forms of totalitarian statism that crushed the rights of the individual.
7.28.2009 9:32am
Steve:
Just think how many innocent people the government slaughters every day by refusing to ban birth control. Oh, the horror.
7.28.2009 9:38am
Kenvee:
The only rational argument I've heard against paying organ donors is that it would reduce organ donation to something only the rich can have, instead of according to need. (There are counter-arguments to that, of course, largely that our health care system in general gives more benefits to those who can pay already. But it's still a rational argument.)

But the majority of the arguments in this thread have been ridiculous. "Poor people make bad decisions, so we shouldn't let them make this one"? If you're so afraid that poor people can't manage their money, then everyone under a certain wealth threshold should be required to have a government-appointed financial guardian to make those decisions for them. Heck, it should actually apply to everyone, since poor people can get money, make bad decisions, lose money, and be poor again. So why not just require everyone to deposit their paychecks into the US Treasury, to be doled out as the government thinks appropriate?

Yes, people make bad financial decisions all the time. We still let them do so. I may make a bad investment, or I may make a fortune. Either way, it's my decision to make.
7.28.2009 9:39am
Michael Smith (mail):
Tom Tildrum asked:


If those organs are auctioned to the highest bidder, then poor people with organ failure will be priced out of the market. How is your approach not a certain death sentence for the needy poor?


Nothing justifies the notion that the "needs" of one man trump and negate the property rights of another man, including the property right to one's own body.
7.28.2009 9:42am
SupremacyClaus (mail) (www):
In over 120 uses of the word, property, in Kelo, not once was there any adjective used, such as real. Kelo applies to chattel.

The government should pass presumed consent laws, harvest all organs unless the family enjoins the collection. Nations with such laws have quadrupled organ transplant rates. Market values of organs should be paid to the estate to compensate for the governmental taking.
7.28.2009 9:43am
Melancton Smith:
Wow, quite a bit of self-righteousness today. Sad to see such a big crop of elitist nanny-staters commenting.

Better keep passing laws to protect those stupid poor people from themselves! I think in your rush to help "those people" you might be overlooking what the true causes of poverty are.

Keep passing those control laws in the hope that if you just get the right combination Utopia will spring into existence!
7.28.2009 9:52am
Fenster McManus (mail):
I haven't commented here in a while but, wow, who is the super-troll?
7.28.2009 10:01am
Gramarye:
Tom Tildrum asked:
If those organs are auctioned to the highest bidder, then poor people with organ failure will be priced out of the market. How is your approach not a certain death sentence for the needy poor?
This appears to proceed from the assumption that increasing the size of the kidney market would also alter the existing distribution of goods within that market so that some people who would receive transplants under the current system do not receive them under the new one. That may be the case, but I'd like some explanation of what causal mechanism you see at work to explain such an outcome. As I picture the hypothetical kidney market (and Prof. Somin's argument), the goal is to simply get the next 80,000 people on the waiting list off that waiting list. The people who are already "in" would not get ejected.

Avatar wrote:
If "your" organs become "your" property, in the sense that you would be allowed to divest yourselves of them in exchange for consideration... then they're your property, and they can be -taken from you without your consent-. Fancy having to justify to creditors why your client should be allowed to declare bankruptcy without giving up a kidney? Or a cornea? Or a divorce lawyer, arguing that the wife that got the husband to stop drinking has increased the value of his liver and thus should be compensated out of the community property? Think college for your kids costs an arm and a leg NOW? Criminy, what if you can't pay for your organ after all, do they repossess it?


Prof. Somin: This was among the more compelling counterarguments to your position. Lawyers often act as advocates for the law of unintended consequences as much as they do their own clients. These are some plausible ones. One could attempt to deal with these by changing bankruptcy exemption laws to fully exempt all "natural organs" in a person's body, perhaps, but bankruptcy exemptions can sometimes be defeated, and if the exemption can be waived, creditors may well be able to pressure or cajole debtors into doing so. I'm less familiar with divorce law, but I can definitely picture a divorce lawyer making an argument such as the one Avatar outlines.

And to go one step further, treating organs as marketable property opens up another can of worms that should be anathema to your libertarian ideals: if organs are property, what is to stop the government from condemning them via eminent domain?
7.28.2009 10:03am
Whadonna More:

Steve:
Just think how many innocent people the government slaughters every day by refusing to ban birth control onanism. Oh, the horror.

Fixed your slippery slope, or should we go all the way to the government mandating insemination of every woman at every fertile opportunity?

P.S. What's with all the weird trolling on this post?
7.28.2009 10:07am
Houston Lawyer:
I'm sure that more lives would be saved by the elimination of the FDA. After we have legalized the sale of controlled substances, prostitution, gambling, and animal fighting, we'll get right on this issue.
7.28.2009 10:12am
Asher (mail):
more Productive Advocacy's juxtoposition between a "little" physical force from government and a "large" amount of "subtle manipulation" fromfor profit companies is highly amusing. For starters, government force is not a little thing, and, secondly, goverment uses subtle manipulation more thoroughly than said companies can even dream. Just look at the rampant deceit being used to push so called healthcare reform.

That being said, I am not alibertarian and favor a jackboot to the poor, using such things as forced sterilization for individuals with an IQ below the 20th percentile.
7.28.2009 10:15am
Cato The Elder (mail) (www):
A troll isn't someone with whom you disagree with or who takes a different position. Psalm91 is a troll; More Productive Advocacy, despite his IMO unwarranted vituperation, isn't. He raised several points I hadn't thought of before.

I think by the time we muddle through these issues and find a consensus we might have already found a way to simply engineer kidneys on scaffolding, like these folks at Wake Forest's Institute for Regenerative Medicine are trying to do.
7.28.2009 10:17am
Health issue:
As to the moral question, consider that most kidney disease in America is the result of obesity, which is on the whole self-inflicted. Perhaps that puts a finger on the scale in considering the moral question of whether we should allow the "exploitation of the poor" -- taking their kidneys to effectively subsidize the unhealthy lifestyles of those able to afford new kidneys (or with Obamacare willing to pay for it). The vast majority (with notable exceptions) of people with kidney issues are in no way victims of anything other than their own decisions.

That said, open up the market for organs. Let people decide for themselves the value of their kidneys, and let people consider whether they can afford a new kidney as they make their daily health decisions.
7.28.2009 10:25am
Kirk:
Calderon, thanks so much for putting it in a much politer and calmer form than I was able to manage. [several paragraphs of vituperative response to the mis-named More Productive Advocacy deleted here.]

As far as the poor making lousy decisions, and needing protectors, how about we start by taking their votes away? After that, the rest of the program will be quite easy. </modest proposal>
7.28.2009 10:26am
Adam J:
Melancton - Wow, had to get your own little bit of self-righteousness in didn't you? Anyways, just what are those "true" causes of poverty? Are you seriously thinking that freedom to sell one's kidney is going to help guide folks out of poverty? Trading one's kidney in a single free market exchange isn't necessary going to "save" many people from poverty. Presuming there is a free market, market pressures would likely drive down the price of kidneys until the value gained by the poor person is quite negligible.

Its hard to evaluate the risks of losing ones kidney, particulary when many people who who would consider trading them have engaged in rather hard living and have additional health risks (not to mention this type of living will probably reduce the value of the sold kidney as well). I don't think I'm being unfair in thinking a poor person is typically a bad businessman (good businessmen typically don't stay poor that long) who can't necessarily evaluate the risks of this kind of exchange and make sure they get the premium they deserve for this risk.
7.28.2009 10:27am
Ken Arromdee:
Slightly off-topic (or maybe not), but I'm always amazed when people make arguments like the above. "People are irrational, and therefore we need government regulation." Even if you grant the first premise, the second in no way follows.

It's not a claim that the second follows from the first, it's a rebuttal to a specific argument made against the second. "People are rational, so they don't need government intervention". "Well, people aren't rational".

If someone says "A, therefore B" and you reply "well, A isn't actually true", that doesn't prove B false. But it does counter the original argument.

Unless you have some explanation of how people in government will be less irrational, etc. than in market circumstances, irrationality, etc. can't be used to justify regulation.

The idea that people want the government to "regulate" organ sales is an overly general statement. They want the government to ban them. Bans are not subject to some of the types of irrationality mentioned; for instance, a ban doesn't tell a crack addict to sell his kidney for crack, since a ban involves not letting him sell it at all.
7.28.2009 10:39am
Ari (mail) (www):
And why is selling a kidney for crack a bad thing, again? The more kidneys on the market, the better.
7.28.2009 10:44am
GMS:
"On average, [NFL players] also lose about 2-3 years of life expectancy for every season they play."

This sounds like one of those assertions that demand to be viewed with extreme skepticism (see also, "10 percent of women have experienced an attempted or completed rape during their first year at an American college"). I feel sorry for Brett Favre -- he should be keeling over any day now.
7.28.2009 10:50am
Steve:
What's with all the weird trolling on this post?

Making outlandish arguments like "opposing the sale of kidneys makes you morally responsible for the deaths of thousands of people each year" tends to lead to less-than-serious engagement from folks who disagree.
7.28.2009 10:50am
Ken Arromdee:
More Productive Advocacy, despite his IMO unwarranted vituperation, isn't. He raised several points I hadn't thought of before.

I think his main flaw here is inserting the reference to McDonalds. Most people aren't extremists on most issues. Letting people sell kidneys is a very extreme case of letting them harm themselves compared to eating at McDonalds; McDonalds isn't a good comparison because the harm done smaller (or none, since you have to abuse McDonalds-eating for it to hurt you, and it's possible to eat there occasionally without damaging your health).

And I think one of his main points is worth repeating. Although the argument is supposedly that selling organs will save lives, we could do many things that save lives, from banning text messaging in cars to taxing the rich at 90% and using the money to help people. And people like Ilya don't think those things should be done.
7.28.2009 10:53am
Rich B. (mail):
(A) If kidney sales are permitted for the poor, support for social services aimed at the poor would evaporate. Why should I provide food stamps to a poor family, where both parents have both kidneys? You want $5,000 in food credits when you have a $200,000 asset just sitting there?

(B) The going rate for the first marginal kidney may be about $100,000, but look a few years down the road after the 80,000 person wait-list is eliminated. Now, there is about a dozen people needing kidney this week, and a few hundred people bidding the price down. If you think people should be allowed to sell their kidneys for $100,000, do you also think the same thing if the price went down to $2,500 (the going rate for egg donors)?

(C) If only the middle class sold kidneys, those who chose not to would be left behind financially. If my colleague and I both have the same income and net worth, but he sells a kidney for $100,000, he can afford a nicer house in a nicer school district. People are already trying to "keep up with the Joneses." If that extends to organs, then we end up with people selling kidneys not to get ahead, but to keep from falling behind. If that is the case, then the sellers aren't actually better off at all.
7.28.2009 10:54am
NowMDJD (mail):

Personal responsibility. Maybe you should avoid fucking up your kidney in the first place. (Of course, not all cases of kidney failure are caused by excess alcohol consumption.)

I think you are thinking of liver failure, not renal failure. Most renal failure is not due to unhelathy habits, as this list demonstrates.

To the extent that your argument is based on the moral worthiness of potential kidney recipients, it does not succeed. Almost all kidney failure is due to causes beyond the control of the person with no renal function.
7.28.2009 10:55am
NowMDJD (mail):

slavery was not mandated but allowed by the government.

It was mandated for the slave. The government enforced the property rights of the owner against the slave, to the point of participating in catching excaped slaves. That's the whole point of slavery-- that the government recognizes that the slave is property.
7.28.2009 10:59am
runape (mail):

The only rational argument I've heard against paying organ donors is that it would reduce organ donation to something only the rich can have, instead of according to need.


There are any number of rational arguments for limiting markets for organ donation. For one, notwithstanding the occasional libertarian objection, there is ample documentation of phenomena like bounded rationality that should give us pause before allowing people to self-impose effectively irreversible injury. These limitations are shared by rich and poor alike, but, of course, it is the poor who will be giving up their organs were such a market to come into being.

(Incidentally, Ilya, I would have thought two obvious objections to your "firefighter" analogy are (1) that pursuing a career is not a decision that can be implemented overnight, and (2) that choosing a career is not irreversible in the way that kidney donation is if you subsequently change your mind.)
7.28.2009 11:02am
NowMDJD (mail):

As to the moral question, consider that most kidney disease in America is the result of obesity, which is on the whole self-inflicted.

Unless you take the point of view that most renal failure is caused by diabetes, which is caused by obesity, this just isn't true. That point of view is false, or at least simplistic-- type II diabetes is correltaed with obesity, but there are other things going on; and type I (which occurs younger and is more likely to be associated with kidney failure in circumstances in which transplantation is feasible) is not associated with diabetes at all.

Plenty of renal failure doesn't have obesity as even a partial cause. I have three acquaintances who are candidates for, or who have received a renal transplant. None is obese. One has a congenital disease, one got it from necessary medication for a disease that isn't caused by bad habits, and one has it as a result of an illness of unknown cause.

It's hard to know who is a troll, or where the line is between trollery and innocent repitition of misinformation. But there seem to be a bunch of people out there today who want to blame patients for their renal failure, and who don't know what they are talking about.
7.28.2009 11:17am
einhverfr (mail) (www):
I am actually opposed to open markets for organs, though I think that compensation for travel and lost work time should be allowed (i.e. we shouldn't be penalizing folks economically for helping others like we do now).

A huge question here is human dignity vs utility. Sure body parts are useful. I am not even sure I want my body cut open for spare parts after I am dead, and I sure don't want folks to feel compelled to sell parts of their bodies to help make ends meet. There are already certain body parts that folks can and do sell (such as plasma) but these grow back.

Here is the thing: eventually we all die. Some die older than others, but in the end, death is inevitable. We are, however, obsessed with prolonging life, stopping suicide, and even forcing expectant mothers to have C-sections just because the doctor says that in a specific case it is less risky for the fetus. Sometimes in this obsession, we carelessly trample on the interests of others. For example, why is physician-assisted suicide for the terminally ill illegal in so many states?

If we stop focusing so much on cheating death, many of these problems become less severe. Yes, preventing exploitation is worth some folks dying younger, IMO. Eventually we all die. If we reduce the ways we are severely exploited, we can improve the quality of life while we are alive.

I suppose I would support a free market for organs provided that proper documentation accompanied all sold organs showing that the donor made at least $100k per year......
7.28.2009 11:21am
rick.felt:
Actually, Lawrence v. Texas, which overturned a law against homosexual sodomy between consenting adults, is already more than sufficient reason to overturn the bans on prostitution.

There's a tendency to overestimate the strength of Lawrence. The opinion of the Court never identifies private, consensual sodomy as a fundamental right, and the opinion reads much like it's applying rational basis review. If rational basis is the right standard for regulating sexual activity, prohibitions on prostitution could survive.
7.28.2009 11:24am
Today's Tom Sawyer:
Let's do the math....I only need 10% of one kidney in order for them to properly achieve their function...so giving up that other kidney would net me a benefit of, say, law school with no debt, consequently improving my overall health and life attainment. Now, what does that do to the arguments about murder, coercion, and morality?
7.28.2009 11:30am
Ken Arromdee:
Prohibiting prostitution is actually pretty similar to prohibiting organ sales. In both cases you're talking about selling something that most people would refuse to sell because it's worth more to themselves than it would bring on the market. These kinds of goods are typically sold by desperate people at a loss, and market analysis doesn't work well when applied to desperate people.
7.28.2009 11:31am
AF:
In this context, it's worth noting that banning kidney markets is actively killing people, not merely the lesser wrong of letting them die by refusing to help.

I would say that it is at least second degree murder.


This is a remarkably stupid argument.

First, for the argument even to get off the ground, you need to show a specific person who had found a seller and agreed to purchase a kidney, but was prevented from doing so, and died. Otherwise, it's not even prima facie murder. It's just a government regulation that you disagree with.

Second, if your argument is that the government is guilty of murder when someone dies as the result of a legal requirement, why does does it even matter whether or not the requirement is justified on grounds of public policy? There is no public-policy defense to murder. By your argument, any legal requirement that results in even one death is murder, even if the requirement saves more lives than it costs. For example, the government is guilty of murder is someone is choked by a safety belt.

Third, if you concede that there somehow is a public policy defense to murder by the government, the result is that you have cleverly transformed every debate about the wisdom of public policy (or at least public policy that affects public health or safety) into a murder trial of the government. That's a nice framework from a libertarian perspective, but not one that others are likely to accept.
7.28.2009 11:31am
AJK:

Yes, preventing exploitation is worth some folks dying younger, IMO.


I strongly suspect your outlook might change if you were diagnosed with renal failure tomorrow.
7.28.2009 11:42am
DerHahn (mail):
I lean towards retaining the ban on actual compenstation for donated organs, though like einhverfr I have no objection to making it easier to perform.

One thing that turns me off is watching otherwise proud libertarians like Postrel and Megan McCardle make hysterical arguments that are basically 'You mean people are killing us and our friends'. Their fundamental argument is that compensation would result in a net increase in donations but they provide no evidence to back up that assertion. It may seem logical, and a black market does seem to indicate that there are some people willing to sell organs, but they are not dealing with two realities.

Despite the fervent wishes of libertarians, people are not always rational actors driven by profit motives. Organ donation is an intensely personal decision that has a number of moral and philosphical naunces. Put these two facts together, and it is possible that establishing an organ market is going to result in situation where fewer, not more people, get organ donations because of the additional resources consumed by compenstation don't provide a sufficent flow of donations.

Somebody is going to have to provide that compenstation. If you raise the cost of a kidney transplant by any sum beyond a token thank-you gift, fewer are going to be done.

People avoid becoming donors for a number of religious and moral reasons now. If organ donation becomes the new way to pay for Granny's funeral because she couldn't afford life insurance, how many upper-middle class donors are going to either continue to donate without compensation, or even donate at all?
7.28.2009 11:50am
David M. Nieporent (www):
Yes, the government CAN, in many instances, make better decisions than individuals. That is because government plans and policies can take a longer term view and not be swayed by emotion, impulse, and instances of lack of self-control.
Hilarious. You do realize that you haven't given a single argument that wasn't an emotionally-charged rant? Whereas Ilya and libertarians generally give logical arguments why being allowed to be paid for kidneys is a good idea. So by your logic, that position must be better than yours, which is "swayed by emotion."


As for "impulse," you do realize that removing a kidney is not like giving blood, right? You can't just walk in and donate one on a whim.
7.28.2009 11:58am
ShelbyC:

Making outlandish arguments like "opposing the sale of kidneys makes you morally responsible for the deaths of thousands of people each year" tends to lead to less-than-serious engagement from folks who disagree.



The argument is not that opposing said sale makes you responsible, it's that forcibly stopping said sale makes you responsible. Not so outlandish.
7.28.2009 12:14pm
ASlyJD (mail):
ein,

As I understand it, a kidney recipient may compensate the donor for all operation related expenses.
7.28.2009 12:17pm
ShelbyC:

First, for the argument even to get off the ground, you need to show a specific person who had found a seller and agreed to purchase a kidney, but was prevented from doing so, and died.


No, you can just show a specific person who was prevented from finding a seller and died.
7.28.2009 12:20pm
Guest14:
Compensating organ doners makes me uneasy, so I prefer to have lots of people who aren't me die. That, for some reason, doesn't make me uneasy at all.
7.28.2009 12:21pm
MartyA:
With respect to, "...allowing poor people to engage in far riskier activities for pay..." Organ donations are one thing. It seems to me that the issue is so complex that "poor" people could not handle it. There would arise a class of broker, much like the rabbi in question, who would have to sell donors on the concept and then go out and find a person in need. The brokers would be far more exploitive of the poor than a sophisticated hospital might be.
I did find an example of "...allowing poor people to engage in far riskier activities for pay..." last week in Oregon. Went in to a neighborhood bar for a $2 beer and found in the back a battery of slot machines that appeared to belong to the state. Lotteries are one thing but doesn't putting slots machines that become more attractive the more $2 beers you have, fit the definition?
7.28.2009 12:31pm
Bob from Ohio (mail):

No one would every expect a libertarian to do anything about an injustice not affecting private property.


Well played.


If you allow people to sell themselves a piece at a time, then why not just buy in bulk and get the whole thing?


Also well played.


You do realize that you haven't given a single argument that wasn't an emotionally-charged rant? Whereas Ilya and libertarians generally give logical arguments why being allowed to be paid for kidneys is a good idea.


Yeah, like accusing the government of murdering 80,00 people a year is sooo logical.
7.28.2009 12:52pm
oregontrail:
In response to the poor not getting organs, the truth is that they can't really get organs today (the wait list is long). With a commercial organ system, the increased supply of kidneys would make it easier for them to obtain one. Even if this isn't the case, the benefits to the poor who can now sell their money and buy things like, I don't know, food, outweigh the harms to the VERY few poor individuals who would otherwise get an organ but now would not.

More Productive Advocacy's posts are more an attack on libertarianism and less an effective opposition to the post's arguments. (It's almost humorous to see how much you seem to hate the author...) Anyway I think the texting example is a bad one because 3rd party harms are incurred by accidents caused by texting while driving; thus a libertarian would support such a ban. On the other hand, things like fast food bans and organ market bans are purely paternalistic. If you're so concerned about the government regulating YOUR behavior, why not bind yourself to a contract so that YOU don't eat fast food or sell your kidney? This type of concern isn't an argument for coercing other individuals into similar behavior, since you incur no harm from their actions in these instances.

Another argument for allowing the selling of kidneys is reducing the international black market for organs; if you think allowing the poor to sell their organs is exploitation, then the methods used in other countries to obtain and sell organs is far worse. And a commitment to liberalism demands that we recognize (and try to alleviate) that form of exploitation.

While most people are understandably supportive of exercising paternalistic coercion to prohibit risky activities, I think the risks associated with organ selling are exaggerated. If donating a kidney is so inherently dangerous, then that justifies a categorical ban on ALL organ donation. (Aren't current organ donors today equally coerced, just by non-monetary incentives?)
7.28.2009 12:58pm
ShelbyC:

Yeah, like accusing the government of murdering 80,00 people a year is sooo logical.


Please explain the logical flaws in the arguement.
7.28.2009 12:58pm
ShelbyC:

Anyway I think the texting example is a bad one because 3rd party harms are incurred by accidents caused by texting while driving; thus a libertarian would support such a ban.


The texting example is bad because it is an example of govt inaction allowing deaths. The organ sale ban is an example of govt action causing death.
7.28.2009 1:01pm
Anatid:
In terms of impulse control: development of the brain regions that correlate with greater impulse control is also highly correlated with the nearby regions involved in long-term planning and decision-making, as well as evaluation of risk. These functions can be reduced by any number of factors, such as alcohol use (a few hours), depression (weeks to months to years) and stress (chronic), and can fail to develop well in the first place. You might get drunk and get a tattoo, and you might be stressed over losing the house you and your five kids live in because of mortgage payments so you donate a kidney. Different people, based on genetics and early environment, also have highly varying vulnerabilities to stress.

I have no idea what solution we might offer for this, other than someday offering neural-enhancement drugs/implants to all (which is its own discussion) to level an inherently unfair playing field. But it is true that, when temptation is great and planning is poor, some people really are unable to help themselves.
7.28.2009 1:04pm
Brian 2 (mail):
If kidney sales are permitted for the poor, support for social services aimed at the poor would evaporate.

Just like what would happen if we get rid of the draft and have a volunteer military?

Under the current system, the rich and the poor wait together for organs according to the perceived severity of their conditions.

Not really; see Steve Jobs.

If those organs are auctioned to the highest bidder, then poor people with organ failure will be priced out of the market.

Not at all. Kidney transplants are cheaper than dialysis even if you pay the donor a reasonable amount.
7.28.2009 1:11pm
PatHMV (mail) (www):
You don't address here the inequity of only rich people being able to afford to pay for the kidneys, and the inevitable fact that, in today's society, government is in some form or another going to alleviate such an inequality by providing assistance to the poor. What will be the Medicare rate for a kidney?

More fundamentally, I don't want to be a part of any society which considers irreplaceable human body parts as commodities which are capable of being bought and sold. One presumes that even you would not allow somebody to sell, say, BOTH their lungs. At what point in the continuum from "certain death" to the "minimal risk" of a kidney extraction do you draw the line? A hand? A face? If I would rather go through life as a scar-faced multi-millionaire and so am willing to sell my face to some rich fire victim, should that be legal? Why is it legitimate for the government to say you can't kill yourself to give your heart to your dying child, but you can maim yourself by giving one kidney? Or do you think doctors should be allowed to kill one patient (at the voluntary wish of that patient) in order to save another?

This is indeed a fundamental distinction between libertarians and other political philosophies. I believe that some things can and should be regulated or prohibited by government because their wide-spread practice would cause harm to society as a whole, even where the individual transactions were strictly "voluntary" in the libertarian meaning of that word.
7.28.2009 1:14pm
AF:
Please explain the logical flaws in the arguement.

I thought I did above. I'd love to hear your response to points two and three, which are the main points. In particular, I'd like to know why the government isn't also guilty of murder if someone who is legally required to wear a seatbelt is choked by the seatbelt in an accident.

(On point one, I disagree with you that banning the sale of organs is even prima facie "active" killing because someone "was prevented" from obtaining an organ and died. However, whether or not there is prima facie "active" killing, it is not the moral equivalent of murder for reasons two and three.)
7.28.2009 1:19pm
ShelbyC:

I'd like to know why the government isn't also guilty of murder if someone who is legally required to wear a seatbelt is choked by the seatbelt in an accident.


Easy. Forseeability and intent. Even absent seat belt laws, if I put a gun to someone's head and force them to wear a seatbelt, and they get choked, I doubt I'd be guilty of murder, no? But if I force someone not to take their medicine, knowing they will die, because I belive taking the medicine is imoral, I am guilty of murder. The organ ban is analogous to the latter. Same goes for 3.
7.28.2009 1:30pm
oregontrail:

any legal requirement that results in even one death is murder...For example, the government is guilty of murder is someone is choked by a safety belt.


One relevant distinction is that the government saves far more lives than it takes by mandating the use of seat belts. So for any given individual, it is to his statistical advantage to wear a seatbelt. Thus, the government is actively helping him, not harming him.

Ilya's argument, therefore, remains valid because he demonstrated that in nearly every case, prohibiting organ sales hurts both parties involved in the transaction. Hence it amounts to active harm. The seatbelt argument you bring up only helps the affected actor, even if in rare cases ex-post facto determinations suggest otherwise.
7.28.2009 1:35pm
ShelbyC:
PS, I'd imagine you'd have a pretty easy necessity defense to the seat belt law if you were in a situation where you removed your seat belt because you knew you were going to choke. I doubt that's true for the organ sale ban.
7.28.2009 1:36pm
AF:
Easy. Forseeability and intent. Even absent seat belt laws, if I put a gun to someone's head and force them to wear a seatbelt, and they get choked, I doubt I'd be guilty of murder, no?

Actually, you would be guilty of felony murder. Moreover, it is foreseeable that if you require all Americans to wear seatbelts, someone will be choked by a seatbelt (though more people will be saved).

But if I force someone not to take their medicine, knowing they will die, because I belive taking the medicine is imoral, I am guilty of murder. The organ ban is analogous to the latter.

So the FDA is also guilty of murder? It is certainly foreseeable that some people will die for lack of access to unapproved drugs. And this is true regardless of whether you believe that regulations calling for drug approval are a net social benefit.

If the FDA is notmurder and the ban on organ sales is, why? Is the fact that part of the reasons for the organ ban are "moral" what makes it murder rather than bad public policy?
7.28.2009 1:43pm
Avatar (mail):
So the challenge is to figure out how to increase the availability of organ transplants without risking any of the (horrific) downsides of a free market in organs.

I still like the honorarium idea. The recipient is not buying the organ from the donor. Instead, in recognition of the courage and generosity of the donor, they're helping the donor with expenses that are likely to be incurred down the road. It'd be even better if the honorarium was mediated through a charity. Removing the "character" of the sale is important here; it prevents a lot of the nasty legal arguments for "we will extract your organs whether you like it or not" down the road. But the additional money is still available and still encouraging additional donors. (At the same time, if it's "customary" but not mandatory, a poor person who needs a transplant hasn't been given a death sentence. And, of course, a charitable organization can collect [cash] donations from others in order to fund the honorarium for a poor recipient...)

The disadvantage of such a system is that it would be difficult to establish a true market-clearing price for organs. It would still be more efficient in increasing the supply than a total ban.

But any law that legitimizes this practice, as a matter of course, should absolutely ban any legal interpretation of anything that would require a person to "donate", or even to place a monetary value on a person's body parts.
7.28.2009 1:43pm
oregontrail:
More fundamentally, I don't want to be a part of any society which considers irreplaceable human body parts as commodities which are capable of being bought and sold. One presumes that even you would not allow somebody to sell, say, BOTH their lungs. At what point in the continuum from "certain death" to the "minimal risk" of a kidney extraction do you draw the line?

It's nice to see that people are honest about why they oppose organ sales, instead of defending weak arguments about paternalism and exploitation of the poor.

In response to this argument, I think it conflates a) commodification of body parts and b) prohibiting risky activities (the "BOTH their lungs" part). Let's deal with the issues separately.

a)Being uncomfortable with commodification entails not commodifying one's own organs. The logical disconnect comes when someone argues that it also entails forcibly preventing others from commodifying their organs. (If I'm missing something, can someone explain?)

b)It's true that their exists a continuum of increasing risk as you remove more and more body parts. But you already support voluntarily donating your kidney, so the risk associated with selling it is no different. Thus, risk cannot be a justification for banning this activity unless you argue in addition that the poor are less educated and less likely to make informed decisions. In this case, however, regulations mandating sufficient informed consent, or if that doesn't work, restrictions of organ selling to the middle class and above, should solve this problem.
7.28.2009 1:49pm
second history:
So much emotion here and very few facts. I think Prof. Somin wins on the facts, as opponents have not demonstrated that the current system of altruistic donations can satisfy the need for kidneys, nor have they proposed an alternative. The only thing I objected to was the markup on the kidneys--the rabbi paid donors $10,000 and sold them for $160,000, a 1,500% increase.

More Productive Advocacy seems to contradict him/herself. MPA first argues that government is a good thing, and that people need saving from themselves:


Actually, in the real world, adults do need to be protected from themselves to some degree. People, actual adults even, make stupid emotional short-term decisions all the time. Categorical bans are an important tool that, while they should not be overused, are necessary for the protection of society. Of course, protecting people from their own stupid decisions is obviously not high on your priority list. But maybe you should have more empathy for individuals who are more impulsive and possess less self-control. . . . . Yes, the government CAN, in many instances, make better decisions than individuals. That is because government plans and policies can take a longer term view and not be swayed by emotion, impulse, and instances of lack of self-control.


Of course, government responsibility only extends to managing the lives of those who apparently don't need transplants, and those who suffer from poor impulse control deserve their fate.


....I am supposed to be so sad when people who fuck up their own bodies die because they can't get a kidney. Well, maybe if these people had better impulse control and laid off the booze, they wouldn't need a kidney. How about that! Personal responsibility. Maybe you should avoid fucking up your kidney in the first place. (Of course, not all cases of kidney failure are caused by excess alcohol consumption.) ..... The bottom-line is of course we shouldn't sacrifice our most important values in order to save a few lives. A lot of these people ruined their own bodies anyway. Yeah, I know that the idea of harvesting the bodies of the poor sounds appealing to the irresponsible, but that is immoral and unethical. Period. End of story. It really is black and white.


So why can't adults make a rational decision to exchange a kidney for cash? Government shouldn't protect everyone from making stupid decisions, but government can facilitate the exchange of benefits between individuals.
7.28.2009 1:50pm
Ken Arromdee:
I strongly suspect your outlook might change if you were diagnosed with renal failure tomorrow.

By this reasoning, I should support a 90% income tax on the rich, since my outlook would probably change if I needed a lot of money that could be taken from the rich (perhaps even needed it to save my life).

Heck, by this reasoning I should support laws to forcibly confiscate kidneys. I'm sure my outlook about kidney confiscation would change if poor people would only sell 4000 of them and I needed kidney number 4001.
7.28.2009 1:53pm
Ken Arromdee:
The texting example is bad because it is an example of govt inaction allowing deaths. The organ sale ban is an example of govt action causing death.

But the argument is independent of whether it's government action or inaction. The argument is that more people die with the policy, and that if more people die with some policy that makes the policy equivalent to murder. Nothing in there that applies only to action and not to inaction.
7.28.2009 1:58pm
second history:
Of course, TV has already covered this topic. See Sonata for a Solo Organ, Law and Order (1991) where a businessman wakes up in the park bleeding after his kidney had been removed for a millionaire's daughter.
7.28.2009 2:00pm
Salzburg:

Actually, in the real world, adults do need to be protected from themselves to some degree. People, actual adults even, make stupid emotional short-term decisions all the time. Categorical bans are an important tool that, while they should not be overused, are necessary for the protection of society. Of course, protecting people from their own stupid decisions is obviously not high on your priority list. But maybe you should have more empathy for individuals who are more impulsive and possess less self-control. . . . . Yes, the government CAN, in many instances, make better decisions than individuals. That is because government plans and policies can take a longer term view and not be swayed by emotion, impulse, and instances of lack of self-control.



This assumes categorical bans work, which they don't...ever.
7.28.2009 2:26pm
Ken Arromdee:
This assumes categorical bans work, which they don't...ever.

If by "work" you mean "is 100% effective", then categorical bans don't work, but neither does just about anything else.

If by "work" you mean "have a noticeable effect", there are plenty of cases where categorical bans have an effect. For instance, states whiich ban workplace smoking have not had a great deal of workplace smoking.
7.28.2009 2:34pm
Cato The Elder (mail) (www):
second history said:

So why can't adults make a rational decision to exchange a kidney for cash?

Some people are just more "adult" than others. Unfortunately. On validated indices of moral development, impulse control, most criminals and many of the indigent score low. Libertarian ideology is understandably unwilling to engage this concept, as it would make them even more unpopular amongst the broader populace than they are now.

Personally, I believe behind closed walls and in academic halls the Left tacitly believes this. I'm not saying that acknowledging this truth becomes at all a nefariously evil idea, as they like most here publicly espouse meritocratic rule, and in all likelihood believe it too. However, once at the seat of power they, like many other groups, also believe in unwarranted privilege for the Best. Steve Jobs believes in what he believes -- "namaste, everyone!" -- but when it comes time to find his own liver transplant, well, to bring about the New Jerusalem, we need the best apostles!

Where I most substantively differ from Liberals/leftists is the notion that government has any more capability to make better decisions than individuals, flawed as they are. That's a ridiculous notion that has been utterly contradicted by the history of the 20th century. Unlike markets, it doesn't create and foster the incentives to align its actors' bounded rationality to socially improving outcomes. It's composed of the same type of flawed individuals it's supposed to be "fixing".

If ever there is such an organ market allowed, I have no doubt there would be limited fraud and one or two sickening tales of market and physical coercion. In such cases, I hope the Law is swift and unmerciful in its punishment. However, after any such scandalous stories, I think the constituent firms would quickly move to police the marketplace -- think "Fair Trade" donation centers -- and on net it would indisputably offer both rich and poor more options than they are afforded currently.
7.28.2009 2:40pm
Cato The Elder (mail) (www):
The guys at Econlog keep pounding this aphorism, which I think is a good one:

"Markets fail. So use markets!"
7.28.2009 2:45pm
Puck:
I propose we permit sales of kidneys (or whatever) on the mandatory, non-waiveable condition that each buyer, in addition to any other consideration he pays, purchase for his organ supplier a single-premium insurance policy which will indemnify the organ supplier for the cost of obtaining and transplanting a replacement kidney (or whatever) in case his (her) remaining kidney (or whatever) fails.

Such a scheme would greatly mitigate the worst "exploitation" danger, which is the chance that someone who had already sold one of his paired organs might see the other one fail due to illness or injury. The insurance policy should cover the cost of purchasing a replacement organ (from another supplier) and interim care while searching for a replacement organ as well as transplantation.

The insurance policy should be non-transferrable, have no surrender value (i.e., the beneficiary should not be able to sell it or borrow against it), and should be good for life or at least until the organ supplier reaches a very advanced age. Should the benefit under the insurance policy be limited to a certain dollar amount, that dollar amount should be fixed at no less than the 85th percentile of recent costs for similar organs and transplantation procedures. Furthermore, we should mandate that the dollar limit be adjusted at least annually by changes in indices of organ prices, organ-supplier insurance policies, and transplantation costs (i.e., if the price of a kidney including mandatory insurance is typically $50,000 at time of policy issuance, but ten years later has increased to $75,000, the organ-purchase limit of the policy should increase by 50%).

If the beneficiary of such a policy should die while awaiting a suitable replacement organ, the cost of interim care should be covered by the insurance benefit.

A single-premium policy providing a medical- inflation- adjusted benefit (however narrow the risk) might be more costly than a policy with adjustable premiums. However, there is no way to ensure that an organ buyer will be around to pay additional premiums in the future. If the risk (that an organ supplier will later need a replacement of his/her own) is as small as people keep saying, the type of policy I suggest should be affordable.

Note that the insurance premium might be higher for an organ sale involving a rare or difficult "tissue match" (host-graft compatibility). This might be thought unfortunate, but is not unfair.

NB: the proposed insurance policy need not cover anything but replacement of a specific, previously-sold organ. That is, a kidney-supplier's policy need only cover kidney replacement, not, e.g., a liver transplant.
7.28.2009 2:58pm
tim maguire (mail):
Prof. Somin makes a pretty good argument on "free choice" grounds. It's my kidney. If I need the money, why shouldn't I be able to sell it? If I need a kidney and someone's willing to sell me theirs, why shouldn't I be able to buy it?

I expect my answer will be unsatisfactory, but it's my answer and I don't find Prof. Somin's argument persuasive outside of debate class.

The poor should not be organ farms for the wealthy. And obviously, it's a gateway proposal. Kidneys now, who knows what else tomorrow? Putting a price on organs is just this side of putting a price on life. And it also goes hand in hand with the argument that the wealthy have a greater right to health than the poor (something civilization is moving away from).

The variation Prof. Somin offers about restricting organ sales to those who don't need the money is silly both on practical grounds (it will only marginally increase the available pool of organs--let's be honest, the organs you're going for are currently being used by the poor) and on equal protection (discrimination) grounds.

The organs will be sold by desperate people and Prof. Solmin wants to make sure those desperate people get taken advantage of.
7.28.2009 3:24pm
ASlyJD (mail):
Have a question to all the "selling kidney" opposition: what else are poor people incapable of deciding for themselves?

The "characteristics" of the poor, as they have been noted in this thread, are poor impulse control, lack of foresight, limited finances (obviously), etc.

So why do we let these proles marry, divorce, and have kids? We let them get married by Rent-an-Elvis -- that's a impulsive decision that may involve the loss of valuable taxable revenue. Divorce? For $99 in Missouri, we let a couple double their living expenses. That's generally not a good financial decision. Kids? Thirty seconds of joy to create a lifelong financial commitment. Why don't we stop them from doing that?

If poor people are rendered so incompetent by their poverty that they cannot control their own bodies, what else should we forbid them to do?
7.28.2009 4:02pm
roystgnr:
intuitive repugnance at the mere thought of organ sales

It's not organ sales per se that generate the repugnance; you can see the real underlying rationale for the reaction in half the posts here:

Rich people shouldn't get to blatantly spend their money to live longer than poor people.

To many (most?) people, this is where capitalism goes too far, and it doesn't matter if there's a Frankensteinian reassembly of internal organs involved or not.
7.28.2009 4:19pm
ShelbyC:

Rich people shouldn't get to blatantly spend their money to live longer than poor people.



So it's a Harrison Bergeron type of thing? If poor people can't do it, we should forcibly stop rich people from doing it?
7.28.2009 4:23pm
ronbo:
I'm struggling to understand why a woman may be compensated for "donating" her ova but not her kidney. Having written such a check - with gratitude - I can state with certainty that the amount exceeded the donor's out of pocket costs and, if the balance was to compensate her for her time, our 25-year-old donor had an hourly rate any attorney would envy.

If it is true, as Mr. Somin asserts, that (a) removing the kidney for donation is not especially risky and (b) the incremental risk of kidney failure due to having only one is low, then I'm not sure I see the logic of distinguishing between the two.
7.28.2009 4:29pm
Sammy Finkelman (mail):
There are a lot of things that can be done that fall in a middle ground between complete prohibition of the sale of organs and complete freedom. It would sound like a reasonable law would try to protect the seller - it could be sold by a gambler - it could be "invested" and lost and so on.

There is some danger to the donor, not only from the operation, but also it is hard to believe that the person who donated a kidney might not be worse, 30 or 40 years later and possibly de sooner. But they may not be that bad. I would think you might need a different rule for every diffeernt kind of donation.

Now if a law is passed protecting the seller it 1) might go too far or 2) it might not go far enough, or in practice it might end up being violated. Think of laws protecting Indians or Mexican bracero workers in the 1940s. So you'd probably want the law to be relatively simple. Simple regulations also would be most likely to be enforced. A lot of bank regulations for instance are very simple, and they are kept.

I think the idea of not selling for a fixed price, but an annuity might be an idea to consider, or including with the price some health insurance (it would need to cover more than the cost of a transplant - there is lifetime treatment after that) Of course if free health insurance came in anyway, there would be no gain to the seller at least in that respect.

One idea that I read about would be to allow kidneys to be sold, but only in exchange for the right to another kidney, for that person or someone they designate. That would take care of the difference between people who are richer and poorer - and legal residents of the United States I suppose - should or should not an immigration benefit be possible - both yes and no seem bad - but it wouldn't take care of the fact that people have differences i number of friends and family.

There is also one thing else I should mention The number of people with kidney failure could be vastly reduced by people facing renal failure taking sodium bicarbonate tablets. This was reported tpoday in the Wall Street Jurnal and it had the usual ridiculous caveats. Yes, only 9% of people in one half of the study progressed to kidney failure and 45% of those who got standard treatment did, still, some people find a problem because the 45% didn't gte a placebo - I think the only bias would have been in the wrong direction - people taking a pill might have been LESS careful with their diet. In any case we see the regular stupidity that happens all the time.

Here it is not even the FDA. TODAY any doctor could prescribe Alka Selzer to people facing kidney failure. Of course a private company couldn't advertise that fact and no company would pay the amount of money needed to prove it especially with the very tough rules of evidence that we have.

The only thing they need to know is proper dosage and when to take. And of course there might be some people hurt. I have heard that what heks the kidneys hurts the heart.

Obviously this can be studied to obtain optimal dosages and counterindications.

I suspect that probably a lot of 9% would have been better off had they taken more. (The reason the sodium bicarbonate helps is because in some people facing renal failure the blood is too acidic. All the people in the sudy probabky had a similar cause of their problem)
7.28.2009 4:42pm
Whadonna More:

Puck:
I propose we permit sales of kidneys (or whatever) on the mandatory, non-waiveable condition that each buyer, in addition to any other consideration he pays, purchase for his organ supplier a single-premium insurance policy which will indemnify the organ supplier for the cost of obtaining and transplanting a replacement kidney (or whatever) in case his (her) remaining kidney (or whatever) fails.

If we're getting out of the paternalism business, let's just require the donor to waive any public assistance for medical issues arising from the donation, and let the market figure out what insurance donors might like to buy.
7.28.2009 4:44pm
Anatid:
ronbo:

They're not quite comparable.

Harvesting ova is a minimally-invasive procedure, while harvesting a kidney requires open surgery. Surgery of any type has its complications - the body cavity simply wasn't meant to be opened up and rummaged about, and wherever you disturb fascia even in the slightest, you risk leaving permanent scar tissue and adhesions, which can affect the function of other organs.

Further, a woman has thousands of ova, and the harvest of a dozen does not in any way compromise her own ability to become pregnant later on. But you only get two kidneys, and if you donate one and the other becomes diseased on its own, you die. It's orders of magnitude in difference.
7.28.2009 4:47pm
Keith5 (mail):
The problem of scarcity of donated organs could be rectified with one new stated policy:

Those who have "organ donor" written on their licenses are the first to get a transplant. What could be fairer than that?
7.28.2009 4:49pm
ChrisJN:
"Of course, TV has already covered this topic. See Sonata for a Solo Organ, Law and Order (1991) where a businessman wakes up in the park bleeding after his kidney had been removed for a millionaire's daughter."

TV shows often use ancient ULs as a basis for episodes:
http://www.snopes.com/horrors/robbery/kidney.asp
7.28.2009 5:13pm
David M. Nieporent (www):
More fundamentally, I don't want to be a part of any society which considers irreplaceable human body parts as commodities which are capable of being bought and sold.
I guess there's a sort of symmetry here; I don't want to be a part of a society that allows -- forces -- people to die because it thinks that it's sort of icky that people might be willing to accept money in exchange for a valuable -- lifesaving -- possession.
7.28.2009 5:18pm
Michael Smith (mail):
Tim Maguire asserted:


"The poor should not be organ farms for the wealthy."


Whether or not "the poor" wish to become organ farms for the wealthy is simply none of your or the government's or society's business.

Nothing justifies the ban on organ sales, because the organ is not your property or the government's property or society's property -- the organ is the property of the individual in which it resides, which means, the individual and the individual alone has the exclusive right to the use and disposal of the organs in his body.

The ban on organ sales is every bit as much a violation of individual rights as would be a ban on selling one's labor -- and not a single justification for this ban has been offered in these comments or anywhere else.
7.28.2009 5:32pm
plutosdad (mail):
Wow, this is a topic that interests me, but I couldn't get past the first 10 comments or so. Too bad no one can have a rational discussion.
7.28.2009 5:50pm
ShelbyC:

Too bad no one can have a rational discussion.


Well, why don't you start?
7.28.2009 5:52pm
JeremyR (mail):
On that old 70s show with Gary Collins as a psychic investigator (got syndicated with Night Gallery), there was an episode where a rich old lady buys the eyes (or corneas) from a poor guy so she could just have one more day (or 12 hours) of sight. The twist was,just after the operation, there was a city wide blackout, and it was night, so she couldn't see anything!

So the idea is hardly original to Law and Order (one of the biggest hack shows around, IMHO).

Anyway, in theory, I think it's a good idea. I would sell a kidney for $150,000 in a second (and would probably do it for $100,000).

Being dirt poor, life isn't particularly enjoyable, so that I wouldn't mind giving up a few years of it (maybe more) to make what years I have left, less of a struggle.

While it's true that often bad judgment goes hand in hand with being poor, it's also not easy getting back on your feet once you are poor. Hard to get a better job without education; but you can't really get a better education without money. Even simple things like having nice clothes and good grooming can help you get a better job, but are beyond the reach of many people.

How many people kill themselves every year, because they are in crushing poverty, and see no way out? I bet it's quite a large number (I know I've thought about it often). Something like this would also save their lives, not just those who need the kidneys.

That said though, if it was ever implemented, the selling price would drop so quickly, probably under $5000. People would still do it (as witnessed by the Rabbi case, he paid the donors 10k, while charging 150k to the receipient), but the benefits are much less.
7.28.2009 6:57pm
Ken Arromdee:
If poor people are rendered so incompetent by their poverty that they cannot control their own bodies, what else should we forbid them to do?

That's like saying "if we can jail people for murder, what else can we jail them for?", and them suggesting that if we can do that we would inevitably end up jailing people for any behavior whatsoever.

When deciding to run a society, it's often impossible to create absolute rules that apply in every situation without considering degrees and tradeoffs. The correct answer to the question is "we figure out what else we can forbid them from doing the same way as we decide all questions of what laws to create (which in turn depends on what you think is a proper way to create laws). We're going to have to handle it case by case. If that's hard, tough. There is no algorithm to decide it all at once, because exactly how to trade off several competing considerations is not something which is subject to mathematical rigor."
7.28.2009 7:53pm
ShelbyC:

That's like saying "if we can jail people for murder, what else can we jail them for?",


No it's not. We allow poor people to donate kidneys, we just don't allow them to benefit from it. And we deny them this benifit, at the expense of someone else's life. To protect said poor person.
7.28.2009 8:39pm
Ken Arromdee:
We allow poor people to donate kidneys, we just don't allow them to benefit from it.

If you accept that people can act irrationally, it's no longer obvious that a poor person who sells a kidney is in fact benefiting.

Also, that doesn't consider that the ability to sell something opens up a range of new harms (selling kidneys to pay child support, having bankruptcy courts confiscate your kidney, etc.)
7.28.2009 9:24pm
ShelbyC:

If you accept that people can act irrationally, it's no longer obvious that a poor person who sells a kidney is in fact benefiting.



Well, if they do it for free, its obvious that they aren't benefiting. But we let them do that.
7.28.2009 11:40pm
ASlyJD (mail):
My fundamental problem is the patronizing.

Why is a poor person so much more likely to lose a kidney to bankruptcy, child support, eminent domain, etc. that we have to forbid it FOR THEIR SAKE.

You mean a rich person might not sell a kidney for a stupid reason? A middle class person's only free and clear assets would never be restricted to their body?

And what about those people who have white collar jobs and little money? Surely some high school teacher with a Master's degree earning $40K is capable of making a rational decision about whether their kidney will provide the money for their child's college education. (Or is the fact that they teach high school proof of their monetary incompetence?)

And furthermore, what about allowing the sale of organs after death? For those many people who can't leave a large inheritance, why do we forbid their estates from being compensated by organs the owner has no use for?

If there's a Kantian imperative against selling body parts, fine. But the point of exploitation argument is that poor people are simply incompetent to make such decisions, by the "virtue" of their poverty, and that incompetence is a sufficient reason to forbid organ markets. If so, that incompetence should be sufficient to forbid poor people from making other important life decisions, decisions that have far more significant impacts on a person's life than whether they have one kidney or two.
7.28.2009 11:46pm
FoolsMate:
A lot of philosophical debate here on kidney donation -- all good and much appreciated -- I am on the fence on this one leaning against. Most if not all of the points made here(not trying to single anyone out) speak casually of organ donation markets as if they are simple person to person transactions, which they most assuredly would not be.

In addition to the donor and recipient, such a transaction would involve doctors on both sides, hospitals, the donor list bureaucracy, health insurance providers, and the government, and I am sure others. I am skeptical such a market would be an efficient one; a highly gov't-regulated market, involving many players and Byzantine rules is much more likely to arise. $100k has been bandied about, which seems fair to me but as far as I know there is no rational basis for assuming payments would be on that scale. Regulations capping payments or establishing gov't mandated flat fees seem likely, as do rules preventing willing organ donors to cherry pick wealthy recipients from whom they can extract maximum payments. Would quasi-gov't donor lists have to sanction all transactions, eliminating direct donor to recipient negotiations?

Basically, I'm not convinced that a plausible real market for kidney donation would lead to a net benefit for the donor, recipient and all other players. To my knowledge, no one has even sketched out what a practical market would look like.
7.29.2009 12:03am
ReaderY:

But the individual's life belongs to the individual, not to the government. Nothing justifies the notion that some group of individuals — say, the majority in a "democracy" — have a right to select other individuals — namely, the members of the "government" — who will then have the authority to run the lives of ALL the individuals in that society, including the individuals that didn't agree with the scheme in the first place.

Such a scheme is every bit as arbitrary and every bit as much a violation of individual rights as was fuedalism, monarchy, theocracy, communism, fascism or any of the other countless forms of totalitarian statism that crushed the rights of the individual.


As Justice Oliver Wendell Holmes famously noted, every post road, every military draft for a war, every traffic regulation is a denial of this argument.

And if one concedes that government is permissable at all — that good and necessary laws can trump absolute freedom and can be enforced — then the only question is who gets to decide which laws are good and necessary. Do others get a say on the question? If ones own view is to always prevail, then what one really has is a dictatorship, absolute freedom for oneself at the expense of no-one else having any say in their society, and hence in their lives.
7.29.2009 12:38am
kurt9 (mail):
The liberal-left argument that because some people make bad choices, we need a government to make the correct choice is logically self-contradictory. If people are by nature rational players, then everything is hunky-dory. If people are by nature impulsive and prone to make poor choices, then what is the sense of having one person or group of persons make the decisions for everyone else?

Indeed, the flawed nature of man is an argument in favor of libertarianism. Consider it from a systemic risk management point of view. In a completely decentralized system, one person's poor choices only affect themselves and the people immediately around them. The damage is self-limited. A centralized system creates systemic risk. If the people at the top make a poor choice, it affects everyone else, which is infinitely worse.
7.29.2009 12:50am
Anatid:
Hopefully, the process by which a person rises to the top isn't by random sampling from the population at large.
7.29.2009 2:01am
Larry Fafarman (mail):
rick.felt said (7.28.2009 11:24am) --
There's a tendency to overestimate the strength of Lawrence (v. Texas). The opinion of the Court never identifies private, consensual sodomy as a fundamental right, and the opinion reads much like it's applying rational basis review. If rational basis is the right standard for regulating sexual activity, prohibitions on prostitution could survive.

There is much more of a rational basis for curbing homosexual activity than for curbing prostitution. Homosexuality is disproportionately involved in spreading STD's -- including AIDS -- and in pedophilia. A disproportionate number of pedophile priests are homosexual. And there is the North American Man-Boy Love Association (NAMBLA), but I have never heard of a NAMGLA or a NAWBLA. Prostitution is the poster child of victimless crimes.

Ken Arromdee said (7.28.2009 11:31am) --:
Prohibiting prostitution is actually pretty similar to prohibiting organ sales.

I don't see any similarity at all. An organ sale is a one-time sale that results in loss of a vital body part.

second history said (7.28.2009 1:50pm) --
The only thing I objected to was the markup on the kidneys--the rabbi paid donors $10,000 and sold them for $160,000, a 1,500% increase.

I thought that the $160,000 included medical bills.

The idea that bankrupt people could be forced to sell organs is a red herring. There are already laws that protect certain assets -- like homes and cars -- of bankrupt people.
7.29.2009 2:35am
Ken Arromdee:
If people are by nature impulsive and prone to make poor choices, then what is the sense of having one person or group of persons make the decisions for everyone else?

Because that is equivocating between different meanings of "people" such as "an average person", "a particular person, chosen at random", and "a particular person, chosen by some non-random method". It's certainly possible for one person, chosen by majority rule, to make decisions that are better (on the average) than a person chosen at random.
7.29.2009 4:01am
Ken Arromdee:
I don't see any similarity at all. An organ sale is a one-time sale that results in loss of a vital body part.

I already explained the similarity in that very post:


In both cases you're talking about selling something that most people would refuse to sell because it's worth more to themselves than it would bring on the market.
7.29.2009 4:02am
q:
So far, all of the arguments I have read against liberalization of the kidney market lack much thought. I'll comment on a few of the more common arguments.

1) The poor will sell their kidneys for drugs.

I'm willing to accept that poor people tend to be worse at managing their financials than non-poor people. Perhaps we can even explain this as rational; they might have a very high discount rate. Regardless, I don't quite understand this objection. Who is worse off in this situation? A life is saved. A drug addict gets some relief, however temporary it may be. Is there an externality? Perhaps from his drug use, but is that because he's able to sell his kidney?

Also, is it really fair to assume that most or even a sizable proportion of revenue from kidney sales will be used for unproductive activity? If so, doesn't that undermine the entire justification for redistribution?

Moreover, if we are to assume right off the bat that poor people are generally irrational that we have to ban all sales of kidneys, that leads down a very dark, illiberal path. I basically see no reason to give poor people any freedom if they are presumed irrational. Lock them up with the other mentally unstable members of society.

2) Only the rich will be able to buy kidneys.

Even if we're not talking about a purely utilitarian standard, this might not be so bad. How many poor people get kidneys under the status quo? I'd guess not that many. How many middle-class lives are you willing to sacrifice such that one poor person can have a kidney under the status quo? 100? Does this make intuitive moral sense?

A more practical objection is that charities will probably be set up to help poor people fund their kidney transplants. Or it'll be covered by health insurance that will, for better or worse, be required in the near future. Or the government can set up a voucher system. I'm not convinced that a liberalized kidney market is worse than the status quo in terms of supplying kidneys to poor people. The status quo is pretty bad on that front.

3) Treating a kidney like an asset will have unintended consequences, like allowing creditors to attach liens to one's body parts.

This is, frankly, quite a silly objection. First, would that be a bad thing? We allow creditors to attach liens to far more important assets, like one's house or car. Second, there is a thing called regulation if this is a problem.
7.29.2009 4:36am
IB Bill (mail) (www):
You know, 15 years ago, I used to be a left-liberal Democrat who got tired of being called a right-wing nutjob in graduate school for departing from the party line on certain issues -- abortion, property rights, markets, and well, a view of human nature as more immutable than my leftist friends suggested.

Now suddenly I'm a nanny stater because I don't think utilitarianism and consequentialism are adequate philosophies. How about, "markets are great, but some things aren't for sale and shouldn't be for sale." You can't sell your body for sex and you can't sell your organs.

It's not just a problem that the poor would be exploited (heck, state-run lotteries do that). The problem is that everything should not be for sale. The economy is for man, man is not for the economy. Which is one reason I don't go as far as my libertarian friends.
7.29.2009 7:18am
Sam H (mail):
Boy, the left here is really upset about losing the their "right" to control how other people live.
7.29.2009 7:51am
Ken Arromdee:
How many middle-class lives are you willing to sacrifice such that one poor person can have a kidney under the status quo? 100?

Again, by this reasoning we should not only allow the selling of kidneys. We should also allow the government to confiscate and forcibly redistribute kidneys. After all, it would result in more saved lives. I mean, how many lives are you willing to sacrifice so that you can implement your idea of keeping government small? 100? 200?
7.29.2009 9:56am
David M. Nieporent (www):
Because that is equivocating between different meanings of "people" such as "an average person", "a particular person, chosen at random", and "a particular person, chosen by some non-random method". It's certainly possible for one person, chosen by majority rule, to make decisions that are better (on the average) than a person chosen at random.
Anything is "possible." A three year old with a Ouija board can discover the theory of special relativity. But is it likely? Why would it be? If a bunch of stupid people who make stupid choices choose a representative, why would we expect them to make a non-stupid choice?
7.29.2009 9:56am
q:

Again, by this reasoning we should not only allow the selling of kidneys. We should also allow the government to confiscate and forcibly redistribute kidneys. After all, it would result in more saved lives. I mean, how many lives are you willing to sacrifice so that you can implement your idea of keeping government small? 100? 200?

Try to avoid the strawmen please. I didn't say anything about keeping government small and in fact, a regulated kidney market would probably increase the size of government; DOJ/FBI probably do not devote that many resources to investigating and prosecuting black market participants.

As for your substantive point, yes, if government is able to distribute kidneys in a utility maximizing way, then I'm all for that. The problem is whether or not they are capable of this. First, forcing kidney transplants would be a huge disutility on those who are unwilling. A well-regulated market would be much better at targeting only those who are willing. Second, on what basis will the government distribute those kidneys? In a market with something like a voucher system, we don't have to worry about this as much. Third, it would be expensive to administrate a centrally planned kidney redistribution, and for what benefit? Fourth, we can't completely ignore the ick-factor. People might be uncomfortable with kidney markets, but they'd probably be way more uncomfortable with central planning of kidneys. I don't see how central planning is in any way better than regulated market. But I may be willing to concede it's better than the status quo.
7.29.2009 11:14am
Calderon:
Ken Arromdee said (double indented quotes are from me):



Slightly off-topic (or maybe not), but I'm always amazed when people make arguments like the above. "People are irrational, and therefore we need government regulation." Even if you grant the first premise, the second in no way follows.


It's not a claim that the second follows from the first, it's a rebuttal to a specific argument made against the second. "People are rational, so they don't need government intervention". "Well, people aren't rational".

If someone says "A, therefore B" and you reply "well, A isn't actually true", that doesn't prove B false. But it does counter the original argument.


When I've heard the argument, it's a claim that the second follows from the first. Namely, that because people have bounded rationality, etc., they can be made better off through regulation. I actually don't see a lot of real live libertarians claiming people are perfectly rational in a means rationality sense (though of course we frequently argue that an individual knows his/her own interests than a government bureaucrat). Also, the rebuttal doesn't really get you anywhere, as it does not to show that government intervention is warranted. It just leaves us in a place where all actors are irrational.



Unless you have some explanation of how people in government will be less irrational, etc. than in market circumstances, irrationality, etc. can't be used to justify regulation.


The idea that people want the government to "regulate" organ sales is an overly general statement. They want the government to ban them. Bans are not subject to some of the types of irrationality mentioned; for instance, a ban doesn't tell a crack addict to sell his kidney for crack, since a ban involves not letting him sell it at all.


I was making a more general statement about the argument, not specific to organ sales (hence the slightly off-topic in the first sentence). I actually doubt the organ sales argument has much to do with rationality; it's simply a moral judgment about whether kidneys should be the subject of market transactions. For example, suppose we could somehow determine that the "correct" price an omniscient, wholly rational person would sell a kidney for is $200,000. I seriously doubt that the people who now oppose kidney donations would agree to drop all their opposition so long as the government passed regulation requiring all kidney sales to be for $200,000. But maybe I'm wrong; would it change the opinion of any anti-sale posters here is we could determine such a price?

In short, instead of organ sales being about limited rationality, it's about some people wanting to impose choices they would make on other people. And here's another good example of this:


Prohibiting prostitution is actually pretty similar to prohibiting organ sales. In both cases you're talking about selling something that most people would refuse to sell because it's worth more to themselves than it would bring on the market. These kinds of goods are typically sold by desperate people at a loss, and market analysis doesn't work well when applied to desperate people.


I agree that prostitution is similar to kidney sales, and think making the sale of those illegal is problematic for similar reasons:

1. There's not a lot of evidence that prostitutes are "desperate," whatever that means. Some people think monogamy is precious and people shouldn't sleep around; others enjoy having three one night stands a week with people they'll never see again. Presumably people in the first category won't become prostitutes, but what's their basis for prohibiting people in the second category from doing the same? If a woman (or man) enjoys having sex generally, or enjoys having sex with strangers in particular, and can make more money or otherwise have better work characteristics (lower hours) doing that than other potential jobs, then it's rational to choose to become a prostitute, not desperate. (This is assuming that prostitution were legal; obviously in the US that are a lot of other transaction costs that need to be considered, including those described in point 2 below)

2. Prohibiting those sales can make the "desperate" worse off, not better. Prostitutes who might otherwise be able to operate independently and be free to call the police to enforce standard criminal laws and instead inhibited from doing so and forced into abusive situations. The poor, or middle-class, or whomever who could see a kidney and get money for self-improvement or whatever are instead denied that possibility. Or they end up with a less-qualified doctors in less-than-ideal conditions trying to perform a kidney removal and transplant.

3. Finally, there's not a lot of logic I can see in saying you can do something for free but not sell it. If the claim is to avoid "exploitation," whatever that means, the ban is a failure. Paying money isn't the only way to "exploit" someone; how many people are emotionally "exploited" into giving up kidneys to relatives without thinking through all the consequeneces? If you're concerned about exploitation, why not ban all live donor transplants? What's with the bizarre fetishism concerning market transactions to the exclusion of everything else?
7.29.2009 11:26am
David M. Nieporent (www):
Prohibiting those sales can make the "desperate" worse off, not better.
Exactly. There are two relevant classes of desperate people: (1) those who would sell (kidneys/sex) if it were legal but don't because it isn't;
(2) those who sell (kidneys/sex) even though it's illegal.

The first class are made worse off because they're still desperate after the ban. If they had some other, better means of getting money, they'd have chosen it; the fact that they were willing to sell means that they don't have another means, which means they suffer.

The second class are made worse off because black market transactions are always less safe, since the government is working against you rather than for you.
7.29.2009 12:41pm
Anatid:


Because that is equivocating between different meanings of "people" such as "an average person", "a particular person, chosen at random", and "a particular person, chosen by some non-random method". It's certainly possible for one person, chosen by majority rule, to make decisions that are better (on the average) than a person chosen at random.


Anything is "possible." A three year old with a Ouija board can discover the theory of special relativity. But is it likely? Why would it be? If a bunch of stupid people who make stupid choices choose a representative, why would we expect them to make a non-stupid choice?


Perhaps the process by which one selects a representative is not identical in cognition to the process by which one decides, when under stress, whether to make a risky decision. Social judgment and risk evaluation occur in related, but different, parts of the brain. Decision-making is a much more complicated affair than simply "some people will always make better decisions than others." If you want to look at the related literature, it also finds that the region for social judgment and self-inhibition of negative impulses reduces in activity in people as they rise higher in a power structure. Fun stuff, huh?

Anyway, at an absolute bare minimum, in order to run for most elected positions, you have to demonstrate certain criteria: meet an age requirement, or collect thousands of signatures, or have a certain license or degree. These people will, as a general trend, have more experience, expertise, motive, and skill than randomly chosen people from the population at large. Even if we choose randomly among the candidates (or worse, poorly among them) we are still probably going to come out better off.
7.29.2009 12:55pm
Larry Fafarman (mail):
Ken Arromdee said,
In both cases you're talking about selling something that most people would refuse to sell because it's worth more to themselves than it would bring on the market.

I still think that there is little or no similarity. In prostitution, any loss is purely psychological (except for the risk of STD's, which can be virtually eliminated by the use of condoms), and decriminalizing and destigmatizing prostitution and making it a more respectable occupation would reduce or eliminate the psychological loss. In contrast, the loss in organ donation is real, one-time, and permanent. Prostitution is the poster child of victimless crimes. Legalizing it would do more than anything else to help eliminate the nanny-state mentality.
7.29.2009 1:39pm
JT1441 (mail):
Interesting discussion mostly. Unfortunately, nobody has really mentioned what would actually happen if unfettered organ markets existed. The main point is that virtually all body parts would eventually come from countries with large populations and low cost of living. We would then have to deal with the reality of harvesting our organs from poor, foreign lands. It would also be virtually impossible to prevent exploitation of individuals from overwhelming family/group pressure to donate (for what will likely not be all that much money going to the actual donor)
7.29.2009 4:31pm
Roger_Z (mail):
Michael Smith has persuaded me completely: As an adult - rich or poor, stupid or smart - what I do with my body is my own business. You other people (aka "the government") have no moral right to tell me what I may do with it [insert standard "such that I can't violate others' rights" disclaimer here].

All other arguments on this thread are irrelevant, including the mainly utilitarian ones offered by Professor Somin.
7.29.2009 7:50pm
q:

We would then have to deal with the reality of harvesting our organs from poor, foreign lands.

Which undoubtedly would make some people feel uncomfortable. However, from a utilitarian argument, it's no different than having the majority of our manufactured goods come from poor, foreign lands. But most people now realize that "exploiting" the labor of such peoples is actually quite a boon to them, despite whatever preconceived notions we have about their ability to manage their own finances.
7.29.2009 9:31pm
kurt9 (mail):
If poor people are rendered so incompetent by their poverty that they cannot control their own bodies, what else should we forbid them to do?

Reproduction?
7.29.2009 10:26pm
kurt9 (mail):
It's certainly possible for one person, chosen by majority rule, to make decisions that are better (on the average) than a person chosen at random.

Thats only possible if the majority that you are talking about are not given to impulse and poor choices. If the majority are flawed in this manner, then the people they select will also share the same flaws.

In any case, the endless debate about exploiting the poor is silly because Somin has already suggested in his original post that perhaps "poor" or vulnerable people should not be allowed to partake in selling their kidneys. I agree with this social safeguard. For some reason, the liberal-left commentators on this board seem to not have read that part of the original posting.

Differentiating freedom of action between different kinds of people is an accepted practice in the investment community. Certain kinds of risky investments are mandated by law to preclude solicitation of funds from those who lack the net-worth such to absorb the hit if the investment should fail. Limiting an organ trading regime to those deemed "fit" enough to make rational choices would operation on the same principle.

Restrictions on personal freedom to protect "poor" people from their own actions should never be applied to those who are not "poor".
7.29.2009 10:43pm
L_Tirelli (mail):
The exploitation argument still can't justify banning organ sales by the nonpoor as well.

Everyone here seems to have missed this part.
7.29.2009 10:46pm

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