Organs on the Open Market: Too High a Price

By ERICA A. ZAKEN and MICHAEL A. GRODIN

In the October 17, 2005 issue of The Jerusalem Report, Robert Berman, founder and director of the New York-based Halachic Organ Donor society asserts that legalizing payment to live organ donors would increase the safety of organ donation and reduce the gap between organ supply and demand. However, we believe Berman’s justifications for these claims are wholly unsubstantiated in Jewish law and empirical literature, and contradict the ethical notions of autonomy, informed consent and distributive justice. Berman fails to present a persuasive argument for the legalization of payment for organ donation, and as such, present bans on payment should remain intact.

In 2002, the Transplantation Society, consisting of over 3000 members from 65 countries, reiterated its position that “organs and tissues should be freely given without commercial consideration of financial profit.”¹ Likewise, for the past 20 years, the United States Congress has been adamant that the exchange of organs must not be permitted enter the commercial market. Specifically, in the Senate Report accompanying the National Organ Transplant Act of 1984, it was stated that “human body parts should not be viewed as commodities.”² Thus, there has been much precedent for the barring of payment for organs among the international community as well as within the United States.

Justification for the prohibition against payment for organs is derived from a number of ethical viewpoints, one of which is that a commercial process for organ donation would “prey upon the disenfranchised and poor by creating incentives that manipulate or coerce their inclination to donate.”³ This viewpoint speaks to the notion of voluntary, informed and understanding consent, and asserts that such a consent is compromised among poorer populations, who may be exploited if payment is provided for organ donations. Voluntary, informed and understanding consent assumes that the person supplying consent has the capacity to understand the nature and consequences of his/her decision. This involves a calculus of the risks and benefits of the various alternatives as well as the provision of any information that would be material to making an autonomous and informed choice. If the disenfranchised are presented with the dangling carrot of payment for organ donation, their decision to donate cannot be deemed an act of truly free will. Financial straits will undoubtedly exert undue influence on the decision-making process; forcing a poorer individual to weigh the option that provides monetary relief more heavily than if they were merely to consider the choice to donate. This is undeniably a coercive consent, which would be commonplace were payment for organs to be legalized.

Berman claims that it is the ban on purchasing organs that allows for discrimination against the poor, as the wealthy may buy organs on the black market while the poor are left wanting. However, his assertion that this condition would somehow be ameliorated by legalizing payment is misguided. If the wealthy are the only individuals who can afford to buy organs on the black market, then the wealthy will be the only individuals who could afford to buy organs on the fair market. Providing payment to donors makes it no more likely that poorer persons will receive a donated organ. Contrastingly, it would seem to increase the likelihood that a wealthy individual would receive an organ from a poorer individual because the poorer segments of society would be more likely to view payment as an incentive to donate. Therefore, vulnerable populations would be further exploited and distributive justice further compromised by legalized payment for organs.

A second justification for barring legalized payment for organ donation takes the position that donation as a “business arrangement” would lead to the misrepresentation of medical information by potential donors, as was the case with 38-year-old Oren Azarya.⁴ However, Berman asserts in contrast that were payment to be legalized, more people would elect to donate, increasing the likelihood of a safe donation. This argument assumes that more donors will mean better donors. It also presupposes that current selection practices operate under a “take what I can get” mentality, whereby doctors expedite the screening process in favor of the most readily available organ. This is undoubtedly false. The fact that Azarya may have hidden an underlying medical condition to get money for donation would not be altered by legalizing payment. In fact, with payment more readily available, it is increasingly likely that patients in desperate need of money will hide medical conditions to obtain it. Legalization simply creates added opportunity for patients to conceal preexisting conditions in order to reap financial benefit, and does not safeguard against unfit donors.

Berman’s argument that if payment for organs was legalized, the supply of organs would invariably increase, assumes that the majority of people who are not currently registered to donate would be motivated to do so by financial gain. However, in most cases, live organ donors are typically blood relatives or friends of the transplant recipient. For example, less than 1% of all live kidney donations in the United States are received from strangers.⁵ Thus, in the large majority of cases, organ donations are made through a system that values the altruism of donors rather than a desire for personal profit. If organs are commodified and the act of selflessness is removed, altruistic individuals may potentially be deterred from making a donation. This is evidenced in studies of a recent pilot program sponsored by The British National Blood Service offering payment for blood transfusions. Studies reported that only 1% of those people who did not donate, or who had lapsed, said they would be attracted to donate blood by an offer of payment. In fact, when payment was provided for blood transfusions, the number of people who opted to donate was noted to decline.⁶ Payment for organs removes the “donation” aspect from organ donation, making the act of charitable giving obsolete. This would likely reduce the number of individuals who would be inclined to donate organs for altruistic reasons and therefore reduce the organ supply, contrary to Berman’s assertions.

Berman’s statement that people are dying for “lack of organs available for lifesaving transplants” is also unsubstantiated. With modern medical technology being what it is, a person can often live a full and active life for many years while awaiting an organ transplant. Likewise, Berman’s likening of illicit organ donations for money to the “abortions of yesteryear” does not hold up under strict scrutiny. Abortions involve far less invasive measures than organ donation and may therefore be performed in any number of outpatient settings. In contrast, organ procurement involves complex surgery that must occur in an operating room and must coincide with a corresponding transplantation. Organ donations require a fair amount of recovery time and could not be carried out in back alleys. This image, while gruesome, is decidedly false.

Lastly, Berman justifies his argument for the legalization of payment by stating that the Halachah not only permits organ donation, but encourages it as a mitzvah. However, Berman fails to represent the entirety of the Halachic viewpoint by neglecting to distinguish between dead and live organ donors. Regarding post-mortem organ donation, Jewish law generally prohibits the removal of body parts from the dead, as this act is viewed as a “violation of the positive mitzvah of burial and a source of anguish and humiliation to the soul of the departed.”⁷ However, these prohibitions may be yielded if there is a strong possibility that a donated organ will save the life of a direct recipient. This is true solely because post-mortem organ donation poses no risks to the potential donor. However, in the case of a live donor, the risks, and therefore the Halachic issues, are decidedly different. In general, the Torah forbids a person from placing him/herself into a situation wherein there is a potential danger to life, even if this action may prevent the death of another.⁸ Live organ donation is just such a situation; involving anesthesia, invasive surgery, and potential death or reduced capacity for the donating party. However, Halachah permits live organ donation so long as it is “requested as an act of [loving kindness and piety].”⁹ Consent to donate is necessary, but by no means sufficient according to Jewish law, and one can never be obligated to rescue another if the risks to oneself are great. By introducing financial gain into the equation, legal or otherwise, potential organ donors are being asked to endanger themselves not as a mitzvah, but rather as an act of self-service: which would not be justified according to Halachic tenets.

It is irrefutable that donated organs are in short supply. However, Berman’s claims that legalized payment for organ donations would lead to safer and more plentiful organs for transplant do not hold up in the face of legal and Halachic precedent, empirical evidence, and ethical considerations. Thus, Berman’s arguments cannot be said to provide an incentive for removal of the long-standing ban on payment for organ donations.

 

¹ Science Blog. August 2002. Available at http://www.scienceblog.com/community/older/2002/C/20025415.html.

² Medscape. Buying and Selling Organs for Transplantation in the US; Ethical Questions Pose Additional Concerns. Available at http://www.medscape.com/viewarticle/465200_4

³ id.

⁴ id.

⁵ Steinberg, D. Kidneys And The Kindness Of Strangers. Narrative Matters. July/August 2003. Available at http://cust.idl.net.au/fold/Kidney/Steinberg_article.html.

⁶ Butler, P. Blood Transfusions ‘Extremely Safe.’ Guardian Unlimited. December 20, 2000. Available at http://society.guardian.co.uk/health/news/0,8363,414057,00.html.

⁷ Breitowitz, Y. What does Halachah say about organ donation? HealthandMedicine. Jewish Action. Fall 5764/2003.

⁸ id.

⁹ id.