Seems like everybody’s got a price
The case for a human solution
HUNDREDS of thousands of people wait anxiously for an organ transplant at any one time. That is unsurprising as not many people donate when altruism is the only reward. In almost every country, bodily organs cannot be bought or sold legally. The issues of organ sales and transplants also lack the hard emotional appeals of gay marriage and civil rights nor do they have the urgency of religious extremism; such absence of discussion meant that the Human Organ Transplants Act of 1989 has never been seriously challenged in Britain, and as a result, thousands of people die waiting each year. It really deserves more attention.
One reason why it isn’t already a global drama is that most people outright reject the idea of organ sales. Societies—even Western democracies—take the selling of one’s organ as an act of despair and unscrupulousness, and the word ‘sell’ has particularly displeasing connotations. Religious perspectives support this norm: the human body is, after all, a holy temple and its sanctity can never be transgressed. Television programmes also agree: organ buyers are gang-masters and villains who pay ridiculously to rob organs intended for the poor and needy. For the law though, a range of social and judicial arguments have to be heard.
First, the impression that organ trades allow more room for exploitation by the wealthy is correct to a large extent. Injustice is said to be furthered if organ sales are legalised because financial compensations are only relevant for the impoverished people, and while there are immediate gains, people who leave the surgery room with an organ fewer also have their work capability diminished, to say the least. Hence the trade of organs exacerbates poor people’s conditions in the long-term. Some may even feel pressurised to sell their body parts for money into a market where abuses are rife, just as the old is coerced to death if euthanasia was legal. This defeats the purpose of a fair, well-managed waiting list as well as the value of selfless giving, albeit there aren’t many of them.
The sense of aversion—amongst other gross intangibles feelings—against organ sales is also prominent in both Western and Eastern cultures. There is simply something forbidding about exchanging fundamental body parts for money that sets it apart from the selling of your hair, for instance. It assaults our moral sense in a way that cannot be put into words, just as the way most people deem prostitution to be inherently wrong. In truth, there are some tangible justifications for that feeling—the gruesome fact of transplants tourists rackets, for one, has no advocates for legalisation. Thousands of executed prisoners are said to have their organs looted in China, with “consent”, of course. Until its official ban in 2006, recipients from all around the world are suspected to have travelled to China.
What is undeniable, however, is that organ trades potentially save lives. To make it legal will most likely provide the privilege of living longer to many more than just China-goers. In some cases it accommodates both actors perfectly: a person with terminal illness may wish to donate his or her remaining (healthy) organs upon death, which not only greatly increases another person’s life expectancy, but also allows some money consolation for the relatives of the deceased. Besides, altruism comes as an additional bonus. This conjecture is consistent with a utilitarian worldview, with some supporters going a step further to say that organ donations upon death should be compulsory or at least presumed to be consented. In theory, this will greatly reduce our patients’ current waiting times.
The present system of organ transplants is indeed a sorry state of affairs. The NHS collated that an encouraging 4,655 organ transplants were carried between April 2013 and March 2014, but it also says that there are 6,900 still waiting by the end of 2014. That number is roughly 100,000 in America, and 4,400 names are added every month. The NHS’s quarterly statistics also showed that only 1% of people in the UK died in circumstances that they can donate. An even smaller percentage of that are registered donors. The logical conclusion from this is that in every part of the world more and more people will die from the lack of organ transplants as demand always outweighs supply.
Thus it can be said that—of all states—Iran has done an unimaginable feat in eliminating its waiting list in 1999, just eleven years after organ sales became legal. Since its conception, a kidney market flourished, and a fixed compensation was put in place for Iranian donors only. This model blatantly violates World Health Organisation’s 1991 Guiding Principles but it works. Iranians no longer go abroad for organs and, despite being illicit on paper, foreign recipients are attracted to Iran’s services. Similarly in the Philippines, where organ sales were legal to some extents until 2008, foreigners accounted for nearly half of its organ transplants. This demonstrates how supply increases drastically where organ sales are legal.
We don’t have to look to Iran to understand why legalisation works. There are existing markets of commodities which are entirely comparable to human organs. Alexander Berger, an analyst and whom himself donated one of his kidneys, wrote on the New York Times quoting a 2011 Circuit Court of Appeals ruling that legalised the sale of bone marrow in America, just as it has been legal for plasma, sperm and egg, and surrogacy.
The problem with surrogate mothers has traditionally been their emotional attachment to the child they bear and consequently they refuse to give the child to the biological parents. The introduction of a fee removes that barrier as the commercial aspect makes the whole process an inanimate one. This is also the case in prostitution, and can be the case in organ sales. Those who agree says mild monetary reimbursements to organ donors in Australia, Singapore, and some states in America is working and can progress further; those who disagree say that an organ, just as the bearing of a child, can never be priced.
The Nobel Prize winning economist Gary Becker begs to differ. He purported an economic model which quantified a kidney to $15,200 and a liver to $37,600. Small wonder that the poor are willing to part with their organs in order to procure just the sum to maintain decency, and the law should not penalise these choiceness reactions. Some say it is also an issue of rights: the fact that the selling of organs does not harm others meant that it is an act of private self-determination, no least an act that takes tremendous courage and worthy of respect.
What about donations? Would making organ sales legal not undermine that? The BBC reported a 10% yearly rise of organ donations in the past six years in the UK. Religious oppositions towards the issue have also dissipated; a bumper sticker reads ‘Please don’t take your organs to heaven. Heaven knows that we need them here on earth’. Yet social prodding on its own is no panacea. The law should change to allow organ sales, and there are good reasons for that.
As always, legal supervision is a tremendous advantage. Organ sales’ unlawful status everywhere bar Iran and our aversion to it has not stop them from taking place in black markets. Legalisation introduces regulatory effects that can halt human traffickers and kidnappers from bullying victims into selling their parts. Clandestine donors and recipients who expose themselves to numerous health jeopardies in order to evade prosecution will no longer be. The poor, who is most likely to sell their organs, needs to be protected rather than criminalised.
The opposition will contend that this slippery slope method of legalisation insults the integrity and independence of the law, which has to be well-defined and is not malleable to changing circumstances, such as whether organ trades are already going on. The moment it does, there is the danger of legitimating acts not according to its merits but according to the tyranny of the majority and circumstances. Yet that is exactly what laws are. Changing parameters do affect laws because, as rigid and well interpreted laws are, practicality is (almost ironically) one of the first considerations made by our highly held lawmakers, and subsequently, written into laws, and executed by judges.
Justice and the rule of law is undoubtedly of the highest priority. Nevertheless, the law takes into account how feasible it becomes in practice, and in the case of organ sales this swings in favour of legalisation. The fact that the selling and buying of organs does not infringe on the rule of law meant that the constructiveness of either criminalisation or legalisation becomes more relevant. Assertions such as legalisation brings protection, eradicates fraudulent organ rackets, and greatly reduces waiting lists also become more relevant.
The job now is to have the discussion on how to establish an effective system. While the immediate legalisation of organ trade may be improvident, long-term transitions beginning from the Australian and American model is sensible, and the presumed consent system in Spain is also worth exploring. Of course it makes sense not to allow people to sell their organs to the point of seriously endangering themselves (e.g. selling both kidneys) because, not needing to invoke arguments against suicide, the point of legalising organ sales is to persuade well-regulated donations which would ease demand and save lives. Death defeats that purpose.
I began this line of reasoning with the critical need of more organ donors in the real world as opposed to a legal judgement because there are always two sides to an argument, and the law often picks the lesser of two evils. The legal answer, in this case, is the human one.