Shortage of Human Organs

There is currently a widespread shortage of human organs available for transplantation. In the United States alone, according to the U.S. Department of Health and Human Services, eighteen people on the transplant waiting list die each day as a result of this shortage. And this is only the tip of the iceberg of human suffering that this shortage of organs causes. For every person who dies while waiting for a transplant, many more have to continue to suffer painful and debilitating treatments while they endure their macabre wait for someone else to die and have their transplantable organs harvested. This terrible situation has not gone unnoticed. There have been many suggestions as to how this shortage of organs could be alleviated, ranging from encouraging donation to conscripting person’s transplantable organs after their deaths. But one way to alleviate this shortage has received almost universal condemnation: legalize markets in human transplant organs, in which a vendor sells his organs while he is still alive. It is clear why such a market would be widely condemned. After all, it conjures up the ghastly specter of the poor being forced by their economic desperation to sell their organs to the rich. Worse yet, we might worry that allowing such a market might lead the desperate poor to be driven to sell not just their non-vital organs, such as a single kidney, but those needed for their very existence, such as their hearts.

This condemnation of markets in human organs typically coalesces into two major objections: that allowing such markets would lead people to commit suicide for pay, and that such markets would enable the economic plight of the poor to subject them to coercion. Yet despite the popularity of these objections neither of them can withstand scrutiny. Before showing why this is so, it would be sensible first to outline why allowing markets in human transplant organs might be a good idea. After all, if there is no reason to allow such markets in the first place, there would be no reason to spend time showing why these two objections to them are mistaken.

Two Objections

The most obvious reason why allowing markets in human transplant organs taken from live vendors is an appropriate response to the current shortage is that it would increase the supply of transplantable organs. The current prohibition of such markets and the reliance on donation has failed to produce anywhere near enough organs to meet the demand for them. But if people could be paid for their organs then many who would not donate them would sell them. This isn’t just a theoretical point that relies on the basic economic claim that to increase the supply of a good one only has to increase the price paid for it. It is also supported by empirical evidence. For example, since Iran instituted a system of payment for transplant kidneys from live vendors it has eliminated its waiting lists for kidney transplants. The second reason why legalizing such markets is an appropriate response to the current shortage is related to the first: that they would increase the availability of high-quality transplant organs. Patients who receive organs that are taken from live people typically have a far better prognosis than patients who receive organs taken from persons who are legally dead, for the organs they receive are typically of better quality. Furthermore, since the number of organs that would become available for transplantation would increase dramatically were markets for them to be legalized, transplant surgeons would have more options as to which organs they would choose to transplant into their patients. They would thus be less often faced with having to offer their patients only “marginal organs”, such as those taken from elderly people, drug users, or the morbidly obese.

Legalizing a market in human organs in which people can sell their organs for transplant to others while they are still alive is thus likely to result in both more and better organs becoming available for transplantation. We thus have good reason to legalize such a market. But what about the objections to such markets that were outlined above: that they would lead to the poor being driven to commit suicide for pay, and that it would lead to them being coerced by their poverty into selling their organs? The view that allowing a market in human organs would lead to the poor committing suicide for pay (by, for example, selling their hearts) can be dismissed immediately. Even if one believes that the sale of her heart by a living person is immoral, one could still favor markets in other body parts from living vendors, such as blood, ova, liver lobes, or kidneys. Advocating allowing a market in such non-vital body parts does not commit one to advocating a market in vital organs such as whole livers or hearts.

The second objection to markets in non-vital body parts is harder to dismiss – although on close examination it too can be seen to be misguided. This objection is that allowing markets in non-vital human body parts, such as kidneys, would result in the desperate poor being coerced into selling such body parts by their poverty. Since such coercion would compromise the autonomy of the poor, and since autonomy is one of the preeminent moral values of the secular West, respect for autonomy should lead us to oppose allowing markets in such body parts. To make their case the proponents of this objection first note that if a person is coerced into selling something she will suffer from a diminution in her autonomy with respect to that sale. For example, if you coerce me into selling one of my prized possessions by threatening me with violence it’s really not me who is directing myself to sell, it’s you. To the extent that this is so, then, I will lack autonomy, I will lack self-direction, with respect to my sale of my possession to you. With this point in hand the proponents of this objection to markets in transplantable non-vital human body parts note that since the typical seller of, for example, a kidney, would sell only because of her dire economic circumstances, it makes sense to claim that these circumstances have coerced her into selling. Thus, they conclude, since a person’s subjection to coercion compromises her autonomy, and since allowing markets in non-vital body parts would enable persons’ poverty to coerce them into selling, then if we are really concerned with respecting autonomy we have good reason to continue to prohibit markets in non-vital human body parts.

Coercion and Autonomy

Despite its popularity among those who oppose legalizing markets in human body parts this objection is fatally flawed. To see why, we should look more closely at how subjecting someone to coercion compromises her autonomy. Let us consider in this regard a classic case of coercion: that of a highwayman who coerces his victim into giving up her purse by offering her the choice of “Your money or your life!” Thinking carefully about this case, it’s not as obvious as it might seem at first sight that the highwayman’s coercion of his victim compromises her autonomy, her self-direction. After all, it is she, and not he, who decides what course of action to pursue. Yet it would seem strange to claim that a person who is subject to coercion is fully autonomous, fully self- directed. As the proponents of the coercion-based objection to allowing markets in non-vital human body parts not, a person who is coerced does seem to be directed by something external to her: her coercer.

When we look at the relationship between autonomy and coercion more carefully, then, we are faced with a puzzle. On the one hand, we want to say that the person who is successfully coerced still does direct herself, and so is fully autonomous. On the other hand, we want to say that a person who is successfully coerced into performing certain actions does so under the direction of another, and so lacks autonomy with respect to them. There is, however, a way to resolve this puzzle – and one that will enable us to see how it is that the claim that markets in non-vital human body parts would enable persons to be coerced by their economic situations is terribly mistaken. First, we should recognize that a person who is successfully coerced decides to allow her coercer to tell her what to do. This person, then, directs herself to submit to her coercer. She is thus autonomous with respect to her decision to submit. This explains why it is that we think that a person who is coerced retains her autonomy as she still directs herself to choose how to respond to her coercer’s threat. However, in deciding to allow her coercer to tell her what to do, she has decided to abdicate control over her actions to him. It is thus he, and not she, who will direct what actions she is to perform. To the extent that this is so, then, she will suffer from a diminution in her autonomy with respect to her actions. This account of the relationship between coercion and autonomy enable us both to say that a person who is coerced is still fully autonomous with respect to her decisions (this captures our first intuition, above), and yet suffers from a diminution in her autonomy with respect to her actions (this captures our second intuition about cases of coercion, as expressed above). Our puzzle concerning the relationship between autonomy and coercion is now solved.

So, how does this account of the relationship between autonomy and coercion undermine the above objection to allowing markets in transplantable non-vital human organs? Very simply: it shows that for a person to suffer from a loss of autonomy as a result of being coerced she must give up control to another person who will direct her actions for her. As such, a person can only be coerced by someone who can tell her what to do. She cannot, then, be coerced by her economic situation, for this cannot tell her what to do. Rather, she guides and directs her own actions in the light of the choices that are available to her. Allowing markets in human body parts will thus not enable the poor to be coerced into selling by their economic plight.

Markets in transplantable, non-vital human body parts would thus be likely to produce more and better organs, and would do so without leading to a situation in which the poor would commit suicide for pay, or be coerced by their economic desperation into selling their organs. The case for legalizing markets in such organs is thus a strong one. This case can be further strengthened by recognizing, as Mark J. Cherry does in his book Kidney for Sale By Owner, that legalizing such markets is also supported by the United Nations’ Universal Declaration of Human Rights. According to this Declaration,

“Everyone has a right to life, liberty, and security of person.” This supports allowing markets in transplantable non-vital human organs in two ways. First, by increasing the supply of available non-vital transplantable human organs markets in them would enable many persons who would otherwise die while waiting for an organ to continue to enjoy their right to life. Second, since such markets consist of voluntary transactions between consenting adults, the continued ban on them infringes upon persons’ rights to the liberty to trade with each other in cases (such as organ markets) where such trade is beneficial to all who are party to it, and harmful to no one. Thus, if we are truly concerned with the well-being of those who need transplant organs and their families and friends, with the autonomy of the would-be buyers and sellers of organs, and with the rights to life and liberty as enshrined in the United Nations’ declaration, we should legalize markets in transplantable, non-vital, human organs.

James Stacey Taylor lectures in the Department of Philosophy at the College of New Jersey. This is the text of his paper presented at the Global Bioethics Conference organized by the IHEU.

See also: But the logic is not always right...