Problematizing Organ Sales
GABRIEL PLEASANTS
Abstract—This paper critically explores the global sale of organs from two
perspectives. The first belongs to those who argue that the phenomenon is
beneficial to both the rich and the poor; it is a “life for life” transaction. The
second is the medical human rights position that argues against organ
sales because they exploit and destroy the health of the poor. It is found
that the latter view is much stronger because it is based on rigorous
ethnographies that demonstrate that organ sales in fact only benefit the
economically privileged. It is suggested that the sale of organs is merely
one symptom of larger global ills.
The discourse surrounding the international movement of organs to sick
bodies can be illuminated by looking at the words used to describe the
phenomenon: “trade” and “traffic.” Those who argue for sales of organs
refer to the “organ trade,” a term that calls to mind a legitimate market.
They argue from a philosophical/rational perspective that reveres individual
autonomy and holds aloft the right of the poor to sell bodily tissue in order
to secure a better economic future. They argue that it is doubly beneficial
because that bodily tissue also secures the health of the buyer.
Proponents of an organ trade argue on the grounds of “life for life”
(Radcliffe-Richards et. al. 1950-1952, Cherry 20). The school that opposes
the sale of organs describes it as “organ trafficking,” which calls to mind
the “human trafficking” of the slave trade. This camp argues from a
medical human rights perspective based on years of fieldwork examining
organ trafficking among the vulnerable (Scheper-Hughes 1645-1648,
Cohen 135-165). The biopolitical discourse is focused on the opposition of
the perspective of individual autonomy versus that of medical human
rights. Yet the discourse is situated within a cosmology that leaves the
foundation of those arguing for an organ trade unquestioned. The ethical
argument assumes that the body parts of the poor are assets in a world of
globalized capitalism; it also assumes that the poor are autonomous in the
same way as those who are not economically constrained. This essay will
critically examine the unquestioned foundation of those advocating an
organ trade by looking at the devastating repercussions that such a
perspective has on the health of the poor as cataloged by those who resist
organ trafficking.
To undercut the foundation of the argument for organ sales, it is necessary
to first examine the structure that has been built upon it. “The Case for
Allowing Kidney Sales,” by Janet Radcliffe-Richards and coauthors takes
the standpoint of a philosopher, soundly rational and ethical (supposedly).
The article is an attempt to rationally overcome the “feelings of outrage and
disgust that led to an outright ban on kidney sales” (Radcliffe-Richards et.
al. 1950). The argument of the article, very briefly outlined is this:
There is a shortage of kidneys for transplantation throughout the world that
is leading to the “suffering and death” of many. Living vendors are
available to meet this need, to the benefit of those who are sick and dying.
It is objected that the living vendors are poor and are being exploited by
the rich; however, the economic privilege of the buyers can be used to
compensate the sellers, who will also come out with a positive result (“life
for life”). Those who argue against the exploitation of the poor are in fact
harming the poor through paternalism; the poor are “anxious to sell.” The
poor are autonomous individuals with a valuable asset that they should be
allowed to sell; they can be protected from exploitation through regulation.
The argument for organ sales is based on “FINANCIAL AID to supplement
altruistic sacrifice” (Frati 2433-2435). It puts faith in the strength of a
regulated market: “People would be free to negotiate a bargain in which
both parties win: on the one side a life is saved, on the other a family is
lifted from poverty” (Cherry 20). Yet the “life for life” argument is essentially
founded on the premise that the parts of the body can be commoditized
and capitalized and that they fit within a global capitalist system.
Furthermore, the argument assumes the perfection and naturalness of that
system in using institutions like the state to regulate the “trade.”
The medical human rights perspective that fights the trafficking of human
organs implicitly resists the foundation of the “life for life” argument, which I
will refer to as a global capitalist cosmology. Nancy Scheper-Hughes
explains that, “the kidney as a commodity has emerged as the gold
standard in the new body trade, representing the poor person’s ultimate
collateral against hunger, debt, and penury” (1645). Scheper-Hughes’s
perspective is grounded in years of work gathering ethnographic accounts
of “the global traffic in human organs,” rather than in a theoretical
perspective. It has led her to equate the “circulation of kidneys” with
“established routes of capital from South to North, from East to West, from
poorer to more affluent bodies, from black and brown bodies to white ones,
and from female to male or from poor, low status men to more affluent
men” (Ibid 1645). Rather than a positive, “life for life” choice, ScheperHughes and her colleague, Lawrence Cohen, have found that instead of
raising organ sellers up out of their conditions of poverty and
marginalization, the sale of their organs was in fact a nonchoice produced
by those conditions; it almost always marginalized them further.
Cohen’s interviews with women who sold their kidneys in India at first
reveal what the “life for life” camp expects: “Yes, I would do it again if I had
another to give.” But it is their next words that capture the reality of the
organ “trade”: “I would have to” (Cohen 138). Both Scheper-Hughes and
Cohen explain how the primary transaction is certainly not beneficial to the
organ seller: “Bioethical arguments about the right to buy or sell an organ
or other body part are based on Euro-American notions of contract and
individual choice. But these create the semblance of ethical choice in an
intrinsically unethical context” (148). Unlike those who argue from the
rational perspective, those who argue for medical human rights take their
argument against organ “trafficking” further, beyond the primary
transaction.
“The problem with an ethical argument of this sort is the unrelenting
presumption that ethics can be reduced to a primary transaction” (148). By
examining the “second-order phenomena” that result when a poor,
marginalized person sells an organ to one of the world’s affluent minority,
the reality of organ transactions on the ground crushes the theoretical
argument of ethics and philosophy. Scheper-Hughes and Cohen again
provide the soundest foundation because they have compiled years of
ethnographic research in a way that few others have. Both anthropologists
found that the crucial factors when investigating organ sales were well
beyond the limited scope of the primary transaction. In India, Cohen
explains that debt plays an instrumental role in kidney sales before and
after the primary transaction. In “kidney belts,” moneylenders push more
aggressively for debts to be paid knowing that the extremely poor there
have at least one asset. The kidney takes a straight path from the poor
seller to the affluent buyer, but the other side of the “life for life” equation,
the money meant to pull the seller out of poverty, is usually diverted to
PAY OFF DEBTS already accrued. South Africa’s Sunday Times tells the
story of what happened to Alberty Da Silva’s money:
Then, Da Silva’s cash evaporated. His two former girlfriends, the mothers
of his children, made off with a large chunk of it and, with what remained,
Da Silva bought a USED CAR to look for work. When he couldn’t meet the
monthly payments, he downgraded to an old jalopy. When the jalopy broke
down almost immediately, he traded it for a second-hand bicycle. The
bicycle and a pair of running shoes are all he has left to show for the sale
of his kidney—that, and a huge, disfiguring, sabre-like scar across his
midsection (8).
The experiences of “sellers” before and after they sell an organ
demonstrate that it is not simply the first-order phenomenon of the financial
transaction, the most important part of the equation for global capitalism
(goods for money), that must be considered.
Nancy Scheper-Hughes worked with a group of Moldovan kidney sellers
and documented the ostracism and stigmatization of that group. One
young seller in his late twenties said: “They call us prostitutes….Actually,
we are worse than prostitutes because we have sold something we can
never get back. We are a disgrace to our families and to our country”
(Scheper-Hughes 1647). Lawrence Cohen’s poignant evidence of the
consequences for the poor of selling an organ cannot be ignored, either.
He tells of a woman who sold her kidney and was beaten by her husband
on her scar when she no longer had any of the money that was supposed
to get her out of poverty; Cohen calls it, “a postoperative complication of a
painful scar that began to hurt when the money ran out” (Cohen 162). The
distressing examples of stigma provided by Scheper-Hughes and Cohen
have no place in the rational/philosophical argument for kidney sales; that
line of argument is only interested in the first-order phenomenon of the
financial transaction. It is not surprising, though, because actual
ethnographic evidence from organ sellers had no place in it either. When
confronted with the second-order phenomena, the ethical argument
dodged it by advocating regulation: “The best way to address such
problems would be by regulation and perhaps a central purchasing
system, to provide screening, counselling, reliable payment, insurance,
and
Besides ignoring that global capitalism has created the need for the poor to
sell their “organ of last resort,” the “life for life” argument presumes that
mechanisms, such as regulation by states and other institutional bodies,
will be able to resolve the devastating second-order phenomena that result
from the extraordinarily harsh conditions that those at the bottom of the
world economic system live in. This faith in global capitalism is a result of
being enveloped by the dominant paradigm and not being able to see
oneself within an unnatural frame. Proponents of a
philosophical/rational/ethical argument for organ sales treat their Western
epistemology as the only epistemology, and inherently natural. So, too, do
they regard global capitalism as the only economic system and
biomedicine and its advances as moving toward what it is to be human.
Organ transplantation reveals the resistance of the world’s poor and
marginalized to the global capitalism of the West, which has been
presumed legitimate and natural when it is actually unnatural. We are left
with no easy answers like the neat and rational arguments for the sale of
organs, however. By finding what isn’t, we are left with the question, What
is?
Kidneys for Sale: A Reconsideration
By Miriam Schulm
The Commodification of Human Life
Even if legalizing organ sales might inspire more donations, many ethicists
reject this approach because they fear where it may lead: to the
commodification of human life. Cynthia Cohen from the Kennedy Institute
of Ethics at Georgetown writes, "Human beings…are of incomparable
ethical worth and admit of no equivalent. Each has a value that is beyond
the contingencies of supply and demand or of any other relative
estimation. They are priceless. Consequently, to sell an integral human
body PART is to corrupt the very meaning of human dignity."
Despite these concerns, the black market itself has put a value on human
organs—about $5,000 according to most reports. Peter Minowitz,
professor of political science at SCU, suggests, "The actuality is there's a
thriving market for organs, even crossing global boundaries. So even
though the sale of organs may, in itself, violate human dignity, that dignity
is being violated now on a fairly large scale, especially among the most
desperate. Maybe it would be better for them if we legalized the sale and
imposed certain standards on it. It's a very complicated series of
considerations, mixing moral judgment with what's going on in the real
world."
Do No Harm
Undoubtedly, increasing the supply of living donors would
be good for organ recipients. According to the Organ Procurement and
Transplantation Network, about 90 percent of people who receive a livingdonor kidney and 82 percent of those who received a deceased-donor
kidney were alive five years after the transplant.
But what happens to the donors? "Usually, IN MEDICAL ethics, we are
looking at harm and good respective to a single patient," says McLean.
"Here we are looking at harm and good for two patients where good is
going to accrue to one and potential harm to the other."
Generally, kidney donation from a living donor is seen as a relatively safe
procedure, as the human body functions adequately with only one kidney.
The mortality rate for the removal of a kidney (nephrectomy) is between
0.02 and 0.03 percent, major complications affect 1.5 percent of patients,
and minor complications affect 8.5 percent. The University of Maryland
Transplant Center states:
The risks of donation are similar to those involved with any major surgery,
such as bleeding and infection. Death resulting from kidney donation is
extremely rare. Current research indicates that kidney donation does not
change life expectancy or increase a person’s risks of developing kidney
disease or other health problems.
While this picture may accurately reflect the experience of donors in first
world countries, those in the developing world report less benign
outcomes. Madhav Goyal, Ravindra Mehta, Lawrence Schneiderman, and
Ashwini Sehgal studied 305 residents of Chennai, India, who had sold their
organs. Participants were asked to rate their health status before and after
the operation. Eighty-nine percent of the respondents reported at least
some decline in their health. "Fifty percent complained of persistent pain
at the nephrectomy site and 33 percent complained of long-term back
pain."
McLean points out that society also incurs risks when someone donates a
kidney. "Who pays if the donor is harmed or develops renal failure of
unrelated etiology 15 years later and needs a transplant?" she asks.
In bioethics, where the first rule is "Do no harm," can the sale of kidneys be
judged to conform to this basic principle? Are there better ways to protect
donors so that no disproportional harm comes to them?
The Problem of Exploitation and Informed Consent
The Indian
experience points to another of the key objections that have been raised
against the sale of organs: the danger that poor people will be exploited in
the transaction. Nicky Santos, S.J., visiting scholar at the Ethics Center
and an expert on marketing strategy for impoverished market segments,
argues strongly that desperation "drives the poor to make choices which
are not really in their best interests." Such lopsided transactions may
exacerbate already existing inequities, where the rich have access to
excellent HEALTH CARE and the poor do not.
That was the conclusion of the BELLAGIO Task Force Report to the
International Red Cross on "Transplantation, Bodily Integrity, and the
International Traffic in Organs":
Existing social and political inequities are such that commercialization
would put powerless and deprived people at still graver risk. The physical
well-being of disadvantaged populations, especially in developing
countries, is already placed in jeopardy by a variety of causes, including
the hazards of inadequate nutrition, substandard housing, unclean water,
and PARASITIC infection. In these circumstances, adding organ sale to
this roster would be to subject an already vulnerable group to yet another
threat to its physical health and bodily integrity.
On the other hand, some view this attitude as paternalistic. "You could
raise the question," says Michael McFarland, S.J., "Are the rich or those in
power in a position to tell the poor they are not capable of making a
decision? Doesn't that violate their human dignity? It seems to me that a
person in desperate circumstances could be making a perfectly rational
decision that the sale of a kidney is in his or her best interests."
McFarland, a Center visiting scholar and the former president of College of
the Holy Cross, goes on, "You could see the sale of organs as a way for
the poor to derive some benefit from donating an organ, which they
wouldn't otherwise get. For example, if a poor person was willing to
donate a kidney but couldn't afford to take the time off, wouldn't it be
reasonable to allow him or her to be compensated for that time?"
More people might be persuaded by this argument if, in fact, kidney sales
really did help the poor financially. But in India, donors often did not
receive the benefit they expected from the sale of their organs. Ninety-six
percent of the people in the study had agreed to the donation to pay off a
debt, but six years after the operation, 74 percent of those studied still
owed money.
Most of the benefit from organ sales goes to middlemen. Havocscope,
which monitors black markets, found last May that the average reported
amount paid to kidney donors was $5,000, while the average price paid by
recipients was $150,000. "The real injustice to the poor is they are getting
so little, while those who are involved in these illegal sales are getting all
the money," says Rev. Brendan McGuire, vicar general of the Diocese of
San Jose.
Santos believes that the poor cannot really make free decisions to sell their
organs because they are so driven by their dire
circumstances. McFarland agrees that the issue of consent is the real
sticking point for creating a market for organs. "I think what stops us is the
concern about being able to count on a genuine free consent on the part of
the donor." But he does not believe any moral absolute makes the sale of
kidneys unacceptable. "It comes back to the issue of truly informed
consent. Do people understand the risks they are taking on? Are those
acceptable risks? Are people capable of making free decisions about
whether to take those risks?"
Altruism or Justice
Informed consent is, of course, as crucial for organ
donation as it would be for organ sale. But donation frames the process as
a wholly altruistic act. "For a living donor," says McLean, "it may be a
chance to help a family member or friend or even a stranger." For a person
signing on to donate organs after death, it may be seen as a way to give
back or not to die in vain. And for the family of a deceased donor, it's "a
way to have a little bit of someone alive in the world," she CONTINUES.
Many people value this altruistic aspect of the current system and do not
want to see organ donation reduced to a business transaction. But,
McFarland asks, "Is it the wisest and most moral policy to run a social
system like kidney donation entirely on altruism?" That may be the ideal,
he agrees, but since it has not been very effective at meeting the need for
organs, it may be better to "strive for justice and not depend totally on
altruism."
The idea of justice encompasses concern about the exploitation of the
poor, but it raises even broader concerns about fairness. These might be
summed up in another email we received at the Ethics Center:
So what? Is the sale of one's kidney lawful? Morality or ethics has nothing
to do with it when you're down and out. Why doesn't someone ask the
same of doctors and hospitals when they sell the transplant
operation? Why is it when John Q. Public sees a way into the open
markets, that he gets hit with the morality/ethical questions?
Is it fair that everyone involved in organ transplantation—doctors, hospital,
nurses, recipient—gets something out of the process except the donor or
the donor’s family?
Also, donors on the black market are rarely paid anything approaching
what the kidney is worth. Justice might be better served if donors were
paid more. In the Indian study, the average price of an organ in 2001 was
$1,410. Nobel Laureate in Economics Gary Becker and his colleague Julio
Elias have calculated $45,000 as a fair price. Fairer, still say some
ethicists, would be a system that pays the donor a figure closer to the
actual cost of maintaining a patient on the waiting list for organs, including
the cost of dialysis over many years. Arthur Matas and Mark Schnitzler
have calculated that a transplant from a living unrelated donor would save
at least $94,579.
Alternatively, the donor wouldn't necessarily need to be paid to be
compensated. McLean reviews some other proposals to give something
back to donors: "One suggestion has been to at least offer to
pay FUNERAL EXPENSES for a deceased donor because for many
people that's a stumbling block. For live donors—and this could be hugely
attractive in the current environment —we might offer to cover their health
care for the rest of their lives in exchange for doing this good. "
Another cut at fairness has recently been adopted by Israel and is
advocated in the United States by the private organization Life Sharers.
Top priority on Israel's waiting list goes to candidates who have
themselves agreed to be donors. Those who don't sign up as donors get a
transplant only if there is an excess of organs.
All proposals to allow the sale of organs raise ethical as well as medical
risks. However, as E.A. Friedman and A.L. Friedman argue in Kidney
International, Journal of the International Society of Nephrology:
At least debating the controlled initiation and study of potential regimens
that may increase donor kidney supply in the future in a scientifically and
ethically responsible manner, is better than doing nothing more productive
than complaining about the current system's failure.