HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, June 4, 2006

Organ Donation

The University of Chicago Law School Faculty blog has an interesting post on organ donation and the current UNOS system.  The post by Professor Epstein states,

The centerpiece of the United States organ policy is a flat prohibition against the use of “valuable consideration” to purchase a live or cadaveric organ. One obvious consequence of this (indefensible) decision is the creation of chronic organ shortages that result in the death of thousands of individuals per year. As happens in all other markets where prices are capped or exchanges are prohibited, queues form. The money that would have been a simple transfer payment between buyer and seller can no longer be paid. Instead, frustrated buyers invest in time by waiting in line for the goods or services that they so desperately need. The upshot is that the buyers have to pay in time, not cash. But their outlays in time are deadweight losses, not simple transfer payments. Organs are no exception to the general behavioral response to maximum prices, here set at zero.

The queues themselves are, however, not stable because people at back of the queue are desperate to get to the front. In dealing with gasoline queues, they could easily arrange to make a side payment to take the place of some lower demander who has obtained a preferred place on the queue. Swaps of this sort are not possible with organ donations, because the list for cadaveric kidneys is tightly controlled by the United Network of Organ Sharing (UNOS), which has received a federal statutory monopoly to run the organ transplant system. So other efforts take place to beat the queue. If purchases of organs are not allowed, then individuals will advertise privately in order to persuade someone to make an organ gift. That gift is almost always a kidney. The risks to an organ donor of a kidney transplant are quite low (but by no means zero), and the palpable gains on the other side are the extension of life and liberation from the tyranny and pain of dialysis.

There is, however, at present resistance to individuals making end runs around the queue. As Sally Satel reported in the May 29th issue of the Weekly Standard, ( the guardians at the gate include transplant surgeons who have one-upped UNOS taken the position that they will not perform even legal kidney transplants if the organ gift comes from a stranger and not a family member or friend. As Satel reports, Dr. Douglas Hanto, head of transplant surgery at Beth Israel Hospital uses the collective “we” to state “We are in favor of donors coming forward and donating to the next person on the waiting list. ”

As a defender of institutional autonomy, I would be the last person the right to challenge Dr. Hanto’s right to steer whatever course on organ transplant that he chooses. But by the same token, that principle of institutional of institutional autonomy does not, and should not, insulate him from the savage criticism that Satel and others have launched in his direction. The most obvious criticism is that he endorses the suicidal position that will result in practice in kill all live donations to strangers. As such it contravenes the fundamental principle of charitable conduct, which treats charity as an “imperfect” obligation. Society may, by moral suasion, insist that individuals who are well off give charity to someone. Because that obligation is imperfect, no legal compulsion may be used to seek compliance. Nor does any particular individual have any claim right to some charitable contribution from any particular donor. The matches are purely voluntary. If therefore one person wishes to go beyond the call of duty and give to a stranger, the charitable duty is meet, and indeed exceeded. We all should be grateful for the gift, and not carp that it is not given to someone else first.

There is, moreover, a more systematic objection to Dr. Hanto’s ill-advised position that also needs elucidation. Why do we imbue the UNOS transplant list with any legitimacy at all? That list itself is not the result of any deep moral principle, but represents the only workable compromise that a statist organization like UNOS is able to put into effect. As a matter of first principle, one sensible test for the allocation of organs in a nonmarket setting is to place them where they are likely to do the most good. That question in turn resolves itself into two different issues. The first is how much benefit with the organ provide to its recipient, measured the number and quality of life-years obtained. Next there is a moral dimension: which individuals do we wish to help and why? . . . .

Many years ago, the late George Stigler wrote that on all important questions of public policy, matters of allocation—here getting more organs—would “swamp” matters of distribution—here who gets which organ. He is surely right: first and foremost we need to do anything to increase the supply, here subject to the unwise external prohibition against organ sales.

Viewed in this light, the UNOS list—albeit one filled with hidden minefields—is a technocrat’s contrivance that is necessary to avoid the pitfalls of collective choice that do not haunt individual owners. It has zero intrinsic moral worth. Dr. Hanto has it exactly backwards. Any decision that circumvents the UNOS list for individual judgment should be welcomed for its moral seriousness. How tragic it would be if the rigidities of collective choice remain impervious to correction by the generous acts of strangers. Sally Satel is right to ask why mainstream medical ethicists have such a high tolerance for gratuitous cruelty. I wish I knew the answer to that one.

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