Christopher Varney
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Christopher S. Varney
English 2089
Dr. Burns
4/09/2013
Is There A Place For A Legal Market For Human Organs?
As early as in ancient Greece, people envisioned organ transplantation: if diseases
affected a particular organ of the body, could it be replaced just like replacing parts of machines
(Mancuso, 2006). This dream was not realized until the 20th century, when the first successful
organ transplant in a human being was a kidney transplant between twins in Boston,
Massachusetts, in 1954 (Gruessner and Benedetti, 2008). When a medical treatment, like organ
transplantation, becomes so prevalent and manages to achieve impressive success rates in
improving the quality of patient’s lives worldwide, then intriguing ethical questions will be
raised by default.
The purpose of this research article is to do an overview in organ donation and
transplantation and more intricately to take a closer look in the continuing objection to a free
market in human organs to discuss the reasons why the legal prohibition ought to remain in force
and what other options can be available in the future to overcome the increased demand of
human organs. My goal is to help you as a reader better understand why a market for human
organs should not exist.
Nowadays, the sheer gap in supply and demand, which clearly cannot be filled by organ
donations alone, inevitably results in a great number of premature deaths, otherwise eminently
preventable by a life-saving transplant operation. Then the debate over whether a commercial
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market in human organs from living donors ought, to some extent, to be permitted, is more
important than it ever was. To some it will seem strange that what is putatively the most
meritorious purpose behind commercial dealings in organs - the preservation of human life - is
the target of the most uncompromising prohibition. Indeed, identifying the strong reasons
tending in favor of lifting the ban on the sale of organs for transplantation is probably the most
straightforward part of any discussion on the matter.
Organ and tissue donation is considered an optimal treatment for several end-stage
medical conditions. Unfortunately, there is a mismatch between the need for and the availability
of organs. Organ/tissue donors are always in short supply. Most of the organs/tissues that are
available come from deceased donors. A smaller number of organs and tissues come from
healthy people, who are called living donors. Anyone, regardless of age or medical history, can
sign up to be a donor. A person younger than 18 years old needs the consent of a parent or legal
guardian (Johnson, 2012).
To donate an organ or tissue after death, a person can either register with the state’s
donor registry or fill out an organ donor card when taking or renewing the driver’s license. To
become a living donor, a person can either work directly with their family members or contact a
transplant center to find out who is in need of an organ. For the organ donation after death, which
is determined by a person’s brain death, medical assessment will be done to determine what
organs can be donated and the transplant team will determine at an individual’s time of death
whether donation is possible. Certain conditions, such as cancer, HIV, or severe infection would
exclude organ donation. Such a donation does not mar the body or cause any postponement of
funeral procedures and the identity of the donor or the donor's family is not disclosed to anyone.
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In order to stimulate living organ donation, federal and state legislation are providing
time off for future donors. Federal employees receive 30 days paid leave for organ donation, in
addition to their sick and annual leave. Some states also offer tax deductions or credits for travel
expenses and time away from work. Currently, more than 100 million people in the U.S. are
signed up to be a donor.
There are four types of organ/tissue transplant: isograft (the donor is an identical twin),
autograft (the own individual is the donor), allograft (the donor is another person from family or
not) and xenograft (transplant between species). The allogenic transplant it is the most common
type and as mentioned before can be from a living or cadaveric source.
In the United States, six types of organ transplants are now performed and include
kidney, pancreas, liver, heart, lung, and intestines. Sometimes, double transplant can be done.
Worldwide, the kidneys are the most commonly transplanted organs; the least common singleorgan transplants are the intestines. The tissues that can be transplanted include bones and
tendons (musculoskeletal graft), cornea, veins, heart valves, and skin. Cornea and
musculoskeletal graft are the most commonly transplanted tissues. Some organs, such as the
brain, cannot yet be transplanted in humans.
Depending on the organ needed, organs are matched using several characteristics,
including blood type and size of the organ needed. Also taken into account is how long someone
has been on the waiting list, how sick they are, and the distance between the donor and the
potential recipient.
When it can be transplanted organs and tissues have to be removed as quickly as possible
after brain death is confirmed in an operating room under sterile conditions, while circulation is
being maintained artificially (Burande, 2011).
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There are no costs to become a living donor, to donate after death, or to the family of the
donors. Medical expenses associated with living donor evaluation are covered by either the
recipient's insurance or in certain circumstances, by the Transplant Centers Organ Acquisition
Fund (OAF). In either instance, the living donor should not incur any expenses for the
evaluation. However, expenses related to another health concern that may be identified during
the evaluation process will not be covered by the recipient's insurance or the OAF.
The actual donation surgery expense is covered by the recipient's insurance. The
transplant center will charge a recipient's insurance an "acquisition fee" when a patient receives a
transplant. The medical costs related to the donation procedure and required postoperative care is
also covered by this fee. In some instances, the actual itemized bill for the donor procedure is
submitted to the recipient's insurance.
Anything that falls outside of the transplant center's donor evaluation is not covered by
insurance. These costs could include annual physicals, travel, lodging, lost wages and other nonmedical expenses. Although it is against the law to pay a living donor for the organ, these costs
may be covered by the recipient.
The ethical view points on this topic vary due to personal beliefs, morals, and experiences
that some might have went through. However, three people in the medical field that I have talked
to about the legalization of human organs unanimously declared that it should stay banned and
that a market of such should never be implemented. I was able to do an interview with a nurse
educator from Jewish Hospital who worked years in the intensive care unit and worked closely
with trauma victims, and people in need of new organs. Please see the attached hyperlink for the
full interview. http://www.youtube.com/watch?v=WhkF_92X6Ws
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Although each time more donations of organs and/or tissues have being encouraged two
main aspects continue to negatively influence the donation of organs: religion cultures and
family refusal. Despite the majority of religions in United States support organ donation and
consider donation as an act of love and generosity toward others some religions around the world
do not see the donation in the same way. For example in the Chinese culture donation, numbers
are low because the modern Chinese individuals have failed to develop and secure relevant ritual
practices that support the central concerns of organ transplantation in their population (Fan,
2012). The family refusal also plays an important role in decreasing the number of possible
donations and the main reason is poor acceptance of brain death as shown in Ghorbani study
(Ghorbani et al, 2011). The results of this study show that increase the knowledge of people
about brain death and organizing strategies to confirm brain death for families are necessary to
meet the organ shortage.
Furthermore, although the benefit in becoming an organ donor is to know that you are
saving a life, organ donation is a major surgery and because of it becomes a disadvantage for a
living donor once the donor is exposed to all surgery procedures risks, such as pain, bleeding,
infections, allergic reactions, and so on.
A unified transplant network established by the United States Congress in 1984 called the
Organ Procurement and Transplantation Network (OPTN) is who links all the professionals
involved in the donation and transplantation system and generates update statistic analysis
regarding the supply of donated organs available for transplantation and numbers or transplant
procedure performed. The OPTN is administered through contract by United Network for Organ
Sharing (UNOS).
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The latest update report (OPTN report, 2011) showed that the need for organ/tissue
donors in the United States is more than real; more than 114,000 people are waiting for organ
transplants in the United States. Of these, more than 92,000 await kidneys; more than 16,000
need livers; and more than 3,000 need hearts. In 2011, a total of 6,669 patients died while
waiting for organ transplants. On average, 18 people died each day because of the shortage of
donated organs. The average wait time for an organ transplant varies by organ, age, blood type,
and other factors. For instance, waiting time can reach seven to ten years for candidates waiting
for deceased kidney organ donors.
Unfortunately, there were just 8,126 deceased organ donors and there were even fewer
living donors (6,019) in US in 2011. From a total of 28,535 organ transplants performed in 2011,
a total of 22,517 transplants came from deceased donors and many deceased donors gave the gift
of multiple organs.
Deceased and Living Organ Donors in the United States: 2004 - 2011
(Organ Procurement and Transplantation Network, 2012)
The lack of effective cadaveric recovery systems around the world is pointed as one of
the main reasons for the still low number of donors and it is caused by multiple factors, ranging
from a lack of political will or influence on the part of governments, to a lack of transport
infrastructure, to significant cultural taboos regarding the treatment of deceased bodies.
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Despite the efforts of international transplantation societies, it is still not possible to
access accurate source for numbers, rates and outcomes of all forms of donation and
transplantation globally.
Another issue that can affect donation is the gap between existing guidelines and
legislation regarding consent processes for the exchange, trade and commercialization of human
tissue products. For instance, there appears to be no current requirement that donors be informed
of commercial applications of products derived from their donated tissue. Legal and ethical
restrictions prohibit payments to donors of tissue and their families, but once the tissue has been
subjected to some kind of manufacturing process, it is considered freely available for commercial
applications as a human tissue product.
Between the donations of human tissues (which are not permitted to be bought or sold)
and the manufacture of saleable products from those tissues, a practical legal and ethical
distinction may have arisen that has not been articulated in any legislation or guideline. There
appears to be an assumption that once human tissue becomes a tissue product (and this includes
cell lines), it may be offered for sale, that a price may be paid, and that profits may accrue to
those who manufacture and sell the products (Maier and Willson, 2012).
The development of ethical guidelines on commercial uses of human tissue products
would help determine when commercial use may be ethically permissible, and what restrictions
are needed to protect individuals and maintain community support for such activities. The trade
in human tissue should remain prohibited, however, it should still be of interest to the
community to allow the continued development of trade in human tissue products, but only
within ethical guidelines that protect the interests of donors and their families and the
community.
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In the absence of an adequate number of available organs from deceased and live donors,
however, there has emerged a global black market for the sale of human organs. Although selling
or purchasing a human organ is illegal in most industrially developed nations and is classified as
trafficking, such laws are notoriously difficult to enforce due to the clandestine nature of the
black market. Moreover, some national governments simply choose not to enforce the laws they
have made, whereas other governments have no such laws or even regulate the organ markets
that already exist. Due to the cumulative effect of these factors, third-party brokers of the global
organ market continue to use a variety of highly profitable and exploitative techniques with
relative impunity in order to obtain and sell human organs. The sad reality is that the vast
majority of persons who sell an organ (usually a kidney) on the black market typically live in
conditions of abject poverty and more frequently in developing countries. Conversely, the buyers
of black market organs tend to be citizens of wealthy, industrially developed nations. Invariably,
it is claimed, any market in human organs will be structured with poor people on the supplying
end and richer people on the receiving. The problem of exploitation in this context is often
referred to as an issue of ‘defective consent’ on the part of the vendor, whose poverty and
desperation precludes him from making a truly autonomous choice to exchange his organ for
money.
“Transplant tourism” has become the term most commonly used to refer to this economic
activity, in which persons who need organ transplants travel to another nation in order to
purchase organs from vendors, with the facilitation of third-party brokers, in order to undergo a
transplant without risk of legal prosecution (Budiani-Saberi and Delmonico, 2008). The
international political response to the reality of organ trafficking has been to convince as many
governments as possible to pass laws prohibiting the sale of human organs and transplant
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tourism, to cooperate in the enforcement of such laws, and to advocate for the establishment and
use of cadaveric organ donation systems.
However, there is also a steadily growing party of voices calling for the exact opposite
approach to the problem, namely, to legalize and regulate the market of human organ sales.
Those who advance this approach claim that it will both eliminate the coercive practices
employed by third-party brokers of the black market and increase the supply of organs, thus
eliminating the root problem of organ scarcity. More than that this group of people points other
justifications for what they think the legalization of human organ sales should be accepted. One
of them is the fact that if a person’s poverty is so severe that it compels him to sell an organ, it
may merely add insult to injury to then prevent him from improving his situation by selling one.
Whatever unfortunate situation he is in has certainly been deemed by him to be even worse than
being without, say, one of his kidneys. Therefore, the argument goes, if the state will not or
cannot intervene to better his situation; it should at the very least not obstruct him from helping
himself however he is best able to do so. The other one is that when organ selling is seen on
grounds of exploitation we are frankly ignoring the fact that the same basic objection applies
with equal force to many other, more widespread, practices, which we do not similarly regard as
impermissible for that reason. Many people work extremely dangerous jobs out of necessity or
for high pay, or submit to the use of their labor for very scant remuneration. Given the vast and
multifarious ways in which we already allow poverty to be taken advantage of, the challenge
placed is as to why organ selling is any different. Does this problem of the double bind therefore
conclusively settle the question in favor of legalization?
The answer is far from an easy task but remains a no to legalization and the
argumentation can be met with more than one answer. First, despite of organ sales are not
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fundamentally different from any of these other forms of exploitation, yet attest that it is not
acceptable for any such practices to carry on, and that organ selling is merely no exception.
Alternatively, it may be argued that although no exploitative practice is justified, organ selling is
quite simply one of the more extreme cases, so that it falls more clearly within the bracket of
exploitative behavior which is serious enough to invoke the coercive power of the law (slavery
and child labor being clear examples of other practices in that category). The permanency of
losing one’s organ, the invasiveness of surgery, the particular health repercussions and
psychological impact on the vendor may lead one to the conclusion that this form of exploitation
is especially objectionable. Lastly, even though serious poverty is often an inducement for
people to accept risks in employment which they otherwise would not. It might be argued that
there is yet a morally significant difference, in that although there may be a risk involved, there
is every chance that the risk will not materialize. In contrast, poor people who sell their organs
do not just take a risk - they incur a certain loss, a loss which they only deem justified on the
pretext that it will do something that in reality it does not: help alleviate their poverty.
Then with the remarkable shortage of donor organs for transplantation and the sale of
human organs not is an ethically possible option, what would be the option for overcome the
organ shortage? Organ engineering seems to be the answer. The tissue engineering employs
aspects of cell and stem cell biology, material sciences and bioengineering to develop biological
substitutes that can restore and maintain the normal function of damaged tissues and organs.
The two most basic components of tissue engineering strategies are cells and
biomaterials. Sources of cells for therapeutic implantation include human embryonic stem cells,
induced pluripotent stem cells, gestational stem cells, resident adult stem cells, as well as
lineage-committed cell types. Cell types can be sourced from donors autologously, allogenically
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or xenogenically. Unfortunately, one of the limitations of applying cell-based regenerative
medicine techniques to organ replacement has been the inherent difficulty of growing these
specific cell types in large quantities. Even though major advances in cell culture techniques
have been made within the past decade, not all human cells can be grown and expanded in vitro
(Brivanlou et al, 2003).
In tissue engineering, biomaterials replicate the biological and mechanical function of the
native extracellular matrix (ECM) found in the tissues of the body. An important engineering
challenge is the development of suitable biomaterials from which scaffolds can be fashioned.
The correct macroscopic and molecular architecture of scaffold, cell and microvascular tissue is
essential for the functioning of any bioengineered tissue. Recent success has come from utilizing
decellularized organ scaffolds that already contain the ECM components, microvasculature, and
tissue architecture of the native tissue.
Now the challenge is to replicate these complex components utilizing suitable
biomaterials and cell types. With advances in high resolution micro-imaging and bio-printing
techniques (Ozbola and Yu, 2013) , in the future, therapies may involve generating computer
models of a patient’s organ, which could then be used by a bioprinter to deposit ECM
components, differentiated cell types, and growth factors so as to generate a faithful and
functional replacement of the patient’s organ.
Recent progress suggests that laboratory-engineered tissues may present a viable option
for tissue replacement or repair, and perhaps be the beginning of a new era in medical therapy.
It is undeniable the benefits of organ and tissue donation and transplantation.
Unfortunately, as presented in this research there is a worldwide shortage of organs and tissues
available for transplantation. Even though an increase in the number of organs available is the
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ideal solution to supply the demand of organs needed for transplant I believe we are better off
not having the legal sale of human organs.
In conclusion, at present it appears that the national and international community is
fundamentally opposed to the market in organs. If it is agreed that the disadvantages, both ethical
and practical, of a commercial market in organs outweigh any perceived advantages, then one
approach would be to try and ensure that the international community presents a consistent
policy on commercial dealing in organs. If all countries put legislation in place and then
effectively regulated it, it could be hoped that the problem would disappear—a global solution to
a global problem. This option would present the ideal solution, but the reality is likely to be
somewhat different; indeed, it is possible to have considerable disparity between law and
practice on this issue.
As noted previously, this is a highly controversial question, and there will inevitably be
major practical challenges that would arise in relation to the enforcement of the law in this area.
Nonetheless it is submitted that rather than dismissing this issue out of hand, perhaps it is time
for a broader dialogue between healthcare lawyers, criminal lawyers, and policymakers as to not
only the question of extraterritorial jurisdiction in relation to organ trafficking but also perhaps,
more broadly, the issue of jurisdiction over and indeed enforcement of health crimes in the
future. With all of the information and research given, it is clear that the legalization of human
organs should stay banned.
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WORK CITED

Brivanlou, A.H., et al. “Stem Cells. Setting standards for human embryonic stem cells”.
Science May 9. 2003:913-916. Print.

Budiani-Saberi D.A., and Delmonico, F.L. “Organ Trafficking and Transplant Tourism:
A Commentary on the Global Realities”. American Journal of Transplantation 8.5
(2008):925–929. Print.

Burande, Abhay. “Organ donation facts and Statistics”. Buzzle website, 21 Dec. 2011.
Web. 9 March 2013.

Fan, R.P. “Confucian reflective equilibrium: Why principles are misleading for Chinese
bioethical decision-making”. Asian Bioethics Review 4 (2012):4–13. Print.

Ghorbani, F., et al. “Causes of Family Refusal for Organ Donation”. Transplantation
Proceedings 43.2 (2011):405-406. Print.

Gruessner, R.W.G., and Benedetti, E. Living Donor Organ Transplantation. New York:
McGraw-Hill, 2008. Print

Johnson, Derek K. “The legacy of organ donation”. WebMD website, 1 Sept. 2012. Web.
9 March 2013.

Maier, Thomas, and Willson, Katie. “Medical Journal Warns on Human Tissue Trade”
The International Consortium of Investigative Journalists (ICIJ) website, 15 Nov. 2012.
Web. 8 March 2013.

Mancuso, Dominick. Progress in kidney transplantation. New York: Nova Science
Publishers, Inc., 2006. Print.

U.S. Department of Health & Human Services. “Organ Procurement and Transplantation
Network /Scientific Registry of Transplant Recipients/United Network for Organ
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Sharing, Update Report”. The U.S. Department of Health & Human Services website, 17
May 2012. Web. 8 March 2013

Ozbolat, Ibrahim, and Yu, Yin. “Bioprinting Toward Organ Fabrication: Challenges and
Future Trends”. IEEE transactions on biomedical engineering 60.4 (2013):691-698. Print.