I’ve written a fair amount about organ transplantation in the past (for example, here and here). But it was only in reading SuperFreakonomics that I learned that “the Iranian government [pays] people to give up a kidney, roughly $1,200, with an additional sum paid by the kidney recipient.” The book also tells the story of our own country’s brief flirtation with donor compensation:
In the United States, meanwhile, during a 1983 congressional hearing, an enterprising doctor named Barry Jacobs described his own pay-for-organs plan. … His most vigorous critic was a young Tennessee congressman named Al Gore, who wondered if these kidney harvestees “might be willing to give you a cut-rate price just for the chance to see the Statue of Liberty or the Capitol or something.”
Congress promptly passed the National Organ Transplantation Act [NOTA], which made it illegal “for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation.” (p. 112)
NOTA’s criminal prohibition of donor compensation has now just been challenged in a lawsuit filed by the Institute for Justice. On October 28, a group of plaintiffs (including people with deadly blood diseases) sued Attorney General Eric Holder, claiming that the criminalization of compensation violates their equal protection rights. The suit does not challenge the general ban on organ sales but argues that the application of the ban to renewable tissue is arbitrary and irrational:
NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells — such as blood — for which compensated donation is legal. … The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.
(Here’s a link to the full complaint.) You can hear the plaintiffs tell their story in this video:
The suit is also joined by MoreMarrowDonors.org, a California nonprofit that “intends to use privately contributed charitable funds to reward the most needed donors, especially minorities, with a $3,000 scholarship, housing allowance, or gift to the charity of the donor’s choice.”
A lot turns on this classic question of economics and ethics. Plaintiffs say that “[e]very year, 1,000 Americans die because they cannot find a matching bone marrow donor.” Plaintiff physician John Wagner says that of the 2000+ patients he has treated in need of bone marrow transplants, at least 20 percent “have died because they have been unable to find a matching bone-marrow donor.” Jeff Rowes, a senior attorney with the Institute for Justice, said, “The only thing the bone marrow provision of the National Organ Transplant Act appears to accomplish is unnecessary deaths.” Rowes is guest blogging about the case this week at The Volokh Conspiracy.
I’m not sure if NOTA is unconstitutional. It’s pretty hard to convince a court that a statute is unconstitutionally irrational. But I’m pretty sure the United States would be a better place if MoreMarrowDonors.org could offer college scholarships without ending up in jail.
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“It’s also morally repugnant that healthy people who need money are giving unhealthy people who have deadly diseases temporary life. ”
Michelle, I think that’s what doctors do every day (since presumably they need their salaries). Perhaps you meant to say that unhealthy people should die? But, then, that would be truly repugnant.
Eric M. Jones,
Yeah! Lord knows they won’t work!
Michelle, the relatively new procedure that I did last week is not very painful and does not involve anesthesia at all. For five days leading up to the procedure I received a drug that causes the stem cells to move from the marrow into the blood. Then the procedure just involves removing the blood from one arm, filtering out what they need and putting the blood back in the other arm. I was completely fine 36 hours later and even immediately after I was pretty much OK.
Blood is also renewable, and as far as I can tell, it’s still illegal to pay blood donors. (We get t-shirts and other trinkets when reaching X-gallon milestones, but nothing like cold cash.)
I can understand the motivation to encourage more marrow donations – donations really do save lives. It is tragic, selfish or out of ignorance that more people do not donate until a crisis occurs. Remember how much blood was collected the days following 9/11, yet was thrown away because there were so few survivors?
But the idea that some group will pay a $3000 scholarship for a young person’s bone marrow is chilling. Where does it stop? How much for a unit of whole blood? What about platelets? Do we monitor supply and demand of different blood types and pay accordingly? At some point, those with the most resources will get the organs they pay for. Is that what we really want – trading organs on eBay?
My own feeling is that we should have a priority system whereby registered donors and their immediate relatives are first in line to receive organs and blood in time of need. Regular blood and registered marrow donors at the top of the list, and people who don’t want to donate (or abuse their bodies) go at the other end.
The “More Bone Marrow” group makes a compelling offer of college tuition, or a charitable donation, to lever their claim. That’s good rhetoric.
But what happens when the donor has been typed as a suitable donor, and then says “well, actually, the price is fifty thousand. And if you don’t like it, why don’t you ask the recipient’s family before you get all moralistic.”
Your article makes the case that there’s strong demand for harvestable tissue. And lord knows that we live in a country that worships at the altar of commerce, where every commodity with a seller and a buyer has a price…
SEO
I find this lawsuit disturbing and the whole concept offensive. I was an unrelated donor and it was a wonderful experience. I would like to believe my “gift” was worth a heckuva lot more than the nominal college scholarship or mortgage payment that this group would like to offer. Permitting a third party to place value on my donation is insulting. I was a donor because it was the right thing to do — pure and simple.
Now if you were a recipient in need of a transplant, would you want the donated cells to come from someone who was motivated only by the money? How truthful do you think they would be about high risk behaviors? Our history clearly demonstrated the negative effect of paying donors — that was routine practice in the blood industry during the 50′s, 60′s and 70′s. Hepatitis infections were transmitted through the blood supply because donors were motivated by the money. It is a dangerous, slippery slope America. Be careful what you ask for because you might get it.
something Al Gore isn’t making money off of…
why can we give plasma for money, but not bone marrow?
All our lives are temporary …
Here’s one more situation where an economic analysis without regard to morality is insufficient. Without morality, we could all be organ farms for richer and more powerful people. Without economics, the newer and more convenient processes might not have been invented. We have to balance a moral outcome with an economic means. The moral outcome is that only willing donors would provide tissues; the economic outcome is that we would want to create enough willing donors to fill the transplant requirements.
A balanced solution might be to allocate a set pool of money based on actuarial expectations of transplant needs over a given time. Then provide everyone who makes a donation over that time with the same payment regardless of need or blood type. The point of this scheme would be to eliminate any opportunity for gaming or negotiating from the transaction while allocating the pool of money so that the prospective needs are met.