Numerous arguments—ethical, political (public policy) and practical—have been made against sales (Table 1). Yet, it is noteworthy that the debate about sales is occurring in an environment in which we accept living donation. Any effective argument against sales must be able to justify the ban on sales while simultaneously permitting donation (37).
Strongest arguments against sales
The two strongest arguments against sales are fears about ‘exploitation’ of the poor and ‘commodification’ of the body. It would be ideal if debate about sales could take place without use of these two quoted words, because both have a pejorative connotation, making discussion difficult.
‘Exploitation of the poor’: The core of this argument is that since are involved with nephrectomy, the poor are more likely to sell a kidney than the rich, and the financial offer will override their better judgment. In a broader context, the concern is that citizens of Third World countries will become vendors for citizens of industrialized countries.
The fact that uninephrectomy has risks plays an important role in this argument. For example, it was never seriously suggested that commercialization of blood supply exploited the poor. But the risk of uninephrectomy, alone, cannot justify the ban on sales. As discussed above, if surgical risk alone is sufficient to justify a ban on sales, it should also be sufficient to justify a ban on donation. In addition, our society allows the less wealthy to take many high-risk jobs that the rich are unlikely to apply for (e.g. police officers, deep sea divers, firefighters, military ‘volunteers’, North Sea oil rig workers). And, we allow both rich and poor to engage in recreational activities that have considerably greater risk than uninephrectomy (e.g. smoking, mountain climbing, skydiving, bungee jumping).
Serious objections have never been raised about permitting financial incentives to encourage middle-class and upper-class people to be vendors (37,41). One possible solution to the possibility of ‘exploitation’ is to establish a minimum income for one to be a vendor. But, if it would be permissible for the middle or upper classes to sell a kidney, why should it not be permissible for the lower classes?
Thus, in a regulated system, the ‘exploitation’ argument against kidney sales becomes, in part, the argument that the poor are more likely to be vendors than the rich. The dictionary definition of exploitation is “utilization of another selfishly” (61), that is, deriving wrongful advantage from the calamity of others. A policy of organ sales would be an attempt to benefit a subset of the population (i.e. rich or poor with ESRD waiting for a transplant). However, if the vendor makes an autonomous decision and, in return, receives a substantial payment that may significantly improve his or her quality of life, we must ask, is this truly exploitation? Or, all things considered, is the notion of ‘exploitation’ even of moral importance in this context? As one scholar points out, “In reality, any financial transaction would seem to have effects that differentiate based on income level” (41).
Clearly, the ‘exploitation’ argument is not about equality. As noted by Gill and Sade, “if paying for kidneys is legalized, the ratio of poor people with only 1 kidney to rich people with only 1 kidney probably will increase” (38). This result could be seen as not being equal. But, as Gill and Sade emphasize, “the kind of equality that matters to egalitarians, however, concerns not the presence of 1 kidney vs. 2 but economic and political power. There is no reason to believe that allowing payment for kidneys will worsen the economic or political status of kidney sellers in particular or of poor people in general” (38).
In a regulated system as described above, the ‘exploitation’ argument is not about coercion, which is defined as “persuasion (of an unwilling person) to do something by using force or threats” (62). No potential vendor can be coerced by the opportunity to sell an organ. But when the term is (mis)used in this way, many authors argue that a payment is coercive in that it might “manipulate the victim's preferences, even if it would be rational to accept” (42) or in that “the intent of the offer is to elicit behavior that contradicts the individual's normal operative goals” (43). However, the fact of payment does not necessarily mean that the vendor's choice was not free and voluntary (37,38,41). As noted by Radin, “it is unclear why engaging in market transactions with the poor constitutes the use of coercive power, while doing so with the middle class or the wealthy is an appropriate expression of personal freedom” (44). Moreover, Harvey suggests that, first, if this ‘financial pressure’ is sufficient to justify a ban on sales, then psychological or emotional pressure that may occur in related donation could justify a ban on donation, and second, a ban on sales also stops potential vendors who are not financially vulnerable (45).
Cherry distinguishes between ‘coercion’ and ‘peaceful manipulation’. Coercion violates the free choice of persons, whereas peaceful manipulation “grounds the very process of negotiation through which individuals fashion consensual agreements”. Cherry argues that “to be coercive, rather than peaceably manipulative, requires showing that making such an offer places potential vendors into unjustified, disadvantaged circumstances”. Financial offers may be ‘seductive’, but they ‘are not subtle threats’ (46).
Most important, the ‘exploitation’ argument centers on whether a regulated system of organ sales takes wrongful advantage of the calamity of others and on whether the financial offer will override the better judgment of individuals in desperate need. No doubt, a significant financial offer will provide hard choices for people in need. But there is a difference between a ‘hard choice’ and an ‘involuntary choice’. I do not think we are willing to say that being poor removes the ability to make rational decisions (if we believed that, we would need legal guardians to protect any decision an impoverished person makes). A regulated system is not necessarily exploitive if it pays a significant amount (an amount that has the potential to make a positive impact on the vendor's life) and if it includes procedural safeguards to ensure that vendors know what they are doing and are acting voluntarily to seek their individual best. In the case of kidney sales, the system would not be seeking the typical exploiter's ‘wrongful gain’, but would be established to help patients in need (T. Gutmann, personal communication).
Many authors have countered the ‘exploitation’ argument by suggesting that the ban on sales removes one potential option for the poor, and leaves them poor; whereas if they could sell a kidney, it would give them the possibility to better their lives (37,47). Andrews notes, “Banning payment on ethical grounds to prevent [exploitation] overlooks one important fact: to the person who needs money to feed his children or to purchase medical care for her parent, the option of not selling a body part is worse than the option of selling it” (47). Thus, there is a difference between having limited options versus being able to choose rationally in one's best interests among the options available.
Most authors accept that the ideal solution to the problem of the poor being more likely to be vendors would be to end poverty. Zutlevics suggests that, rather than allowing sales, we should provide additional aid to the poor (48). The reality, however, is that no evidence suggests that poverty will disappear in the near future. And not allowing sales does nothing to eradicate poverty and has no effect on whether or not additional aid might be forthcoming. One prominent bioethicist, Veatch, once suggested that, rather than permit sales, we should prompt social change to end poverty, but he has become pessimistic about the possibility of social change and now favors sales (41). Veatch offers a different perspective, noting that ‘irresistibly attractive’ financial offers are not usually felt to be unethical. He asks why offers to induce consent to procure organs that are irresistible only to the poor are deemed unethical, while offers of jobs and offers of basic necessities are not. In addition, he suggests that the ethical problem is not that the offer is attractive to its recipient, as compared with the alternatives available, but “must be understood in terms of the options available to the one making the offer” (41). Veatch's original concern about sales was that the (political) decision makers could, in effect, force the poor to sell their organs by withholding alternative means of addressing their problems. He now reexamines the issue 20 years later, and concludes that our society has done little to help the poor, and with ‘shame and bitterness’ proposes that it is time to lift the ban on sales: “If we are a society that deliberately and systematically turns its back on the poor, we must confess our indifference to the poor and lift the prohibition on the one means they have to address their problems themselves” (41).
A final concern regarding ‘exploitation’ has been that, in a government-controlled single-payer system, there would, be pressure to lower the price paid for each kidney—that is, there would be institutionalized ‘exploitation’ (as described by Veatch, above). But, a system could be defined with safeguards to prevent such institutionalized exploitation.
‘Commodification of the body’: The second major argument against sales is that they would lead to ‘commodification’ of the body. Literally speaking, the definition of commodify is “to turn into a commodity” (62). Therefore, using a strict definition, the argument becomes circular. But, escaping the verbiage, the concern seems to be that a vendor will, in some way, lose human dignity and be seen as only being worthwhile as a provider of spare parts. As Sutton phrased it, “if we allow body parts to enter the marketplace, we depersonalize and devaluate ourselves” (49).
In fact, there is no evidence that sperm or egg donors, or surrogate mothers, have diminished self-dignity or self-worth. And, as noted in a detailed analysis by Wilkinson, “there is no necessary connection between the commodification of bodies or the commodification of persons” (50). He suggests that “it is not clear that organ sale is any more likely to cause persons commodification than other widely accepted practice—most notably (free) organ donation, and (paid) labor” (50). Thus, this argument against sales has tremendous emotional impact but no data to support it. As Gill and Sade state, “my kidney is not my humanity” (38); they continue, “humanity—what gives us dignity and intrinsic value—is our ability to make rational decisions, and a person can continue to make rational decisions with only one kidney”.
No doubt, some of the concern regarding commodification comes from our own (industrialized Western civilization) history. Andrews notes that “some of the finest advances in society have resulted from a refusal to characterize human beings (blacks, women, children) as property”, but elaborates, “I am advocating not that people be treated by others as property, but only that they have the autonomy to treat their own parts as property” (47). Just as attitudes and laws have changed regarding characterization of blacks, women, and children as property, societal attitudes are critical to the dignity of vendors. If, in a regulated system, vendors are treated as heroes who receive compensation for their pain (as suggested by Gutmann and Land) (28), and have their rights and interests protected, it would be quite possible to sell a kidney without loss of dignity.
Implied in the concern regarding ‘commodification’ is the concept that ‘body integrity is highly valued’ (50). The fear is that vendors would have some longstanding emotional or psychological damage because of the breaks in body integrity. Wigmore et al. argue that “violation of this integrity is not well compensated for other than by spiritual/philosophical gains such as acting in an altruistic fashion” (51). But, again, little evidence supports this concept of negative violation. Surgical procedures, a direct violation of body integrity, do not usually lead to long-term psychological harm or damage to human dignity. One could argue that surgical procedures are necessary for cure of disease and this, in some way, leads to personal justification for the violation of body integrity. But, in fact, the entire field of plastic surgery requires a break in body integrity. In addition, numerous occupations and recreational activities are associated with risks to body integrity; yet, we have no compunction to limit people's involvement in these activities. And many cultures and religions throughout the world violate body integrity as part of their beliefs (e.g. piercings, male circumcision).
In reality, individuals who value their body integrity over compensation for a kidney could choose not to be vendors. Thus, it is unclear how the ‘commodification’ argument justifies the total ban on sales.
Harm to the vendor: A third powerful argument against sales is the (probably inevitable) death of a vendor. Currently, the mortality associated with living kidney donation is 0.03%. If vendors are screened as thoroughly as living donors, mortality would likely remain about 0.03%. So, on a purely rational level, the concern about vendor death does not differentiate kidney sales from donation. But, on an emotional level, death of a vendor ‘feels’ different than death of a donor. When a living donor dies, we might suggest that the death occurred while doing something ‘noble’. Of course, a vendor might also have a ‘noble’ use for the money. However, there is no doubt that the practice of transplantation requires the goodwill of the public, and it is unclear how the press or public would react to the death of a vendor.
Similarly, the surgical and long-term risks for vendors are identical to the risks for living donors. As discussed above, if these risks alone are sufficient to justify the ban on sales, they should also be sufficient to justify a ban on donation.
Weaker arguments against sales
Lack of genuine consent: Some argue that, because money is involved, a potential vendor cannot ever truly provide genuine consent. But, this argument rests on a paternalistic attitude that ‘we’ are best able to weigh the risks and benefits for others and, as described above, ignores a fundamental tenet of current medical practice and philosophy—autonomy. Some also argue that some potential vendors may be unable to fully understand the risks; but this also applies to living donors, and we feel capable of screening and educating them. If the fact that some potential vendors may not understand the risks justifies the ban on sales, then the fact that some potential donors may not understand the risks should justify a ban on donation.
Difficulty in changing the law: Some argue that because organ sales are currently a contentious issue, politicians (always concerned about reelection) would be reluctant to propose and fight for a change in the law. Whether or not this is true, it is not an argument either for or against sales. Certainly, it was difficult to change the law to allow emancipation of women and blacks. Presumably, if polls find that the public generally supports a regulated system of organ sales, then politicians would be willing to eliminate the ban.
Objections of organized religions: Almost all organized religions currently support organ donation. In Judeo-Christian culture, saving lives takes precedence over other religious laws and customs. Yet, it is unclear whether individual religious authorities would take a formal stand against sales. According to Steinberg, almost all rabbinic authorities who have expressed an opinion have stated that, from a Jewish moral point of view, there is “nothing wrong in receiving reasonable compensation for an act of self-endangerment, whereby one still adequately fulfills the most important commitment—to save life” (58).
The Catholic church has taken a somewhat mixed stance. Capaldi argues that it is morally permissible for Catholics to participate in a market in organ sales (59); he quotes Pope Pius XII as saying, “It would be going too far to declare immoral every acceptance on every demand of payment. The case is similar to blood transfusions. It is commendable for the donor to refuse recompense; it is not necessarily a fault to accept it” (63). In contrast, Pope John Paul stated, “The body cannot be treated as a merely physical or biologic entity, nor can its organs and tissues ever be used as items for sale or exchange. Such a reductive materialistic conception would lead to a merely instrumental use of the body, and therefore of the person” (64).
In a subsequent address to the Transplantation Society, Pope John Paul II stated, “any procedure, which tends to commercialize human organs or to consider them as items of exchange or trade must be considered morally unacceptable” (65).
Clearly, individuals with religious objections can choose not to be vendors. But it will require a change in the law to eliminate the ban on sales. In theory, religious belief should not determine law and public policy (38), yet strong opposition from organized religion could have an impact on political discussion and action.
Desire for altruistic donation: Historically, it has been felt that donation should be altruistic. But there is no reason it must be this way. With our current practice of altruistic donation, the waiting list and resultant waiting time are getting longer every year.
If there is a market in organs, some fear that altruistic living donation may decrease. But, no evidence supports this concern (it is a hypothesis that can be tested). In fact, there are many reasons to believe that altruistic donation will continue. First, some recipients would continue to want to know their donor. As discussed below, there may be concerns about the ‘quality’ of vendor kidneys. Families with these concerns might opt for donation. Second, with a regulated system of sales, waiting time is likely to be reduced but not eliminated. Outcome for kidney transplant recipients is better with a preemptive transplant (7,8), so many recipients would still opt for preemptive transplants from altruistic donors. Third, potential vendors may be demographically different (e.g. older) from potential altruistic donors, providing another reason for preferring a donor (over a vendor) kidney.
Nevertheless, in some situations, a family might rather turn to a government-regulated vendor system than to a family member or altruistic friend. If so, there could be some decrease in altruistic donation (probably related to how long the waiting list is, once a vendor system is implemented). Some of this decrease may be good. First, we do not know how much coercion is involved in living-related donation; presumably a vendor system could eliminate this form of family coercion. Second, criteria for acceptance of living donors are being expanded (e.g. single-drug hypertension is allowed in some centers). An expanded-criteria donor is usually accepted only if he or she is the sole available donor for an individual recipient. A large vendor system might eliminate the need to use expanded-criteria donors. Clearly, whether sales will result in a significant decrease in donation needs to be studied.
If there is a market, there is also a concern that deceased donation may decrease. But there will continue to be a great need for livers, hearts, lungs and pancreases, all of which could never be supplied by vendors. However, it does need to be recognized that, if we eliminate the ban on organ sales, families of deceased donors may also lobby for a payment.
Erosion of trust in the government or doctors:
- (i) Government. If the government (or its appointed agency) is the sole buyer of kidneys (in a regulated system), there is concern that the government will be seen as preying on the poor rather than providing a safety net (51). And, in fact, one function of the government (providing for the needy) would be in direct conflict with the other (buying kidneys). But, in reality, government agencies often have competing priorities (e.g. consumer advocacy vs. environmental protection, development of the economy vs. raising the minimum wage, minimizing dependence on foreign oil vs. preserving the country's wilderness). And, the goal of purchasing kidneys would be to save lives—certainly an acceptable goal for the government. It is not unreasonable to believe that a regulated system, with appropriate screening, good postoperative follow-up, and a substantial payment to the vendor, could also be managed with care and dignity so that respect (for either the government or the vendor) does not suffer.
- (ii) Doctors. It is also argued that allowing organ sales would disrupt the traditional doctor-patient relationship. But, there is no evidence to suggest that sales would have any negative impact on either patient care or a patient's (vendor's) expectations of the physician. No evidence suggests that medical care for surrogate mothers (analogous to vendors) has differed in any way from the current standard of practice. Presumably, in a regulated system, vendors would be given the same care as current living donors (and better care than current vendors in unregulated markets).
Fears of abuse of the system: It is possible that potential vendors will lie about their health care status and risks, or alternatively, that physicians (who are paid when a transplant is done) will relax acceptance criteria. But, of course, such fears do not differentiate sales from living donation. And, the possibility of abuse is not used as justification for a ban on numerous other priorities (e.g. paying taxes, driving powerful cars).