18 Kidneys, commerce, and communities
The problem
My topic is the relationship between kidney markets and communities. A group of people forms a community when, and to the extent that, it is animated by mutual goodwill and trust. A community may include all the residents of a country, or only those who share a common interest, purpose, status, origin, set of values, or religion. By this definition, nearly everyone belongs to more than one community. I will call the latter “special-interest communities,” and the former simply “community.” I will focus on community and kidney markets, or the lack thereof, in the USA and India, and on a special-interest community that I call the “International Transplant Community” (ITC). By “free market” I mean a system of voluntary exchange for mutual benefit, whether legal or illegal, between individuals or groups.
It is widely recognized by philosophers and economists that free markets can create a spirit of community where there was none before by eroding distinctions of class and caste and fostering mutual goodwill and trust (Friedman 1962; Anderson 1993; Badhwar 2008; Satz 2010). It is less widely recognized that a lack of community spirit – of mutual goodwill and trust – can also prevent free, non-exploitative markets from arising or flourishing (McCloskey 2006; Satz 2010; and Rose 2011 are notable exceptions here). As, of course, can communities that are hostile to markets, such as the ITC. This community consists of bioethicists, transplant surgeons and nephrologists; organizations that educate potential donors, procure organs, or match donors and recipients; and international organizations like the World Medical Association, the International Transplantation Society, and the World Health Organization. The exploitative, even involuntary, nature of kidney markets in India and many other developing countries is best explained both by the lack of community spirit between or even within the different strata of society, and by the power of the ITC and Western governments to prevail on governments everywhere to ban markets in kidneys.
The absence of legal markets in kidneys has also created a situation in which tens of thousands of people all over the world needlessly suffer and die. The number of kidney patients on the waiting list in the USA now is around 98,787 (The Organ Procurement and Transplantation Network, http://optn.transplant.hrsa.gov/data/annualreport.asp, accessed July 2013). Only 16,812 got a transplant in 2012 and 4,903 died for want of a kidney (The National Kidney Foundation [NKF]. http://www.kidney.org/news/newsroom/factsheets/Organ-Donation-and-Transplantation-Stats.cfm, accessed July 2013) – not including those who were never put on the waiting list because the doctors judged that, in their condition, they would never get a kidney in time. It is not, of course, only kidneys that are in short supply; so are other transplantable organs, such as livers and hearts. But the shortage of kidneys is special for two reasons: one is that nature has been unusually generous by endowing each of us with a spare kidney, and the other is that kidney removal and transplantation are now extremely safe for both parties, at least in the West. Yet most of us spend our lives carting around an extra healthy kidney, and take both of them with us when we die, even as those with kidney disease usually lose both kidneys and die for lack of a kidney. These facts make the issue of the kidney shortage especially urgent and poignant.
Many excellent articles and books defending kidney markets of one kind or another have been written (Cherry 2005; Taylor 2005; Epstein 2006; Satel 2012; Matas 2007; Hippen 2008; Radcliffe-Richards et al. 1998). My aim is not so much to add to these arguments as to show that free and non-exploitative kidney markets can flourish only if society is animated by a sense of community, and that in developing countries the best hope for such a society is allowing global free markets. It is a mistake to think that legalizing kidney markets would undermine community spirit in the USA or other countries. Most of the arguments against legalizing kidney markets, as I show below, are variations on the theme that commodifying the human body is fundamentally incompatible with human dignity and equality, which, in turn, are necessary for community. These arguments, however, while purporting to protect objective values, merely express some people’s feelings or opinions. So using them to advocate that markets be banned is merely to impose one special-interest community’s opinions on other communities. Another argument is that a market in kidneys would crowd out the altruistic motive behind kidney donations and, thereby, undermine community. I argue, however, that even if the crowding-out premise is true, the conclusion doesn’t follow. Moreover, this insistence on altruistic motivations has become a fetish that is morally unjustified. I then challenge the claim that by crowding out altruistic motives, kidney markets would lead to fewer kidneys overall. This argument is contrary to everything we know about markets and human psychology. I also address another worry cited by opponents of kidney markets, which is that the rich will feed off the life and health of the poor. This claim has some merit in the case of poor countries, but none in the case of the USA or other Western countries. Moreover, banning markets and driving them underground only exacerbates the problem of involuntary or exploitative markets in poor countries. Some economists regard the very idea of a free, mutually beneficial, but exploitative exchange as mistaken, if not incoherent. I explain why this is not so, and argue that the best hope for non-exploitative markets in poor countries is foreign medical investment and global trade in kidneys. In concluding, I hypothesize that the ITC’s continued opposition to kidney markets, in spite of the ban’s tragic consequences and violation of potential sellers’ and buyers’ liberty, is best explained by the psychology of community membership and the phenomenon of “moral entrapment.”
The meaning(s) of the human body
A common cure for a persistent shortage in some good is to allow a free market in that good. But markets in solid organs, both cadaveric and inter vivos (from living donors), were outlawed in the USA in 1984 when Congress passed the National Organ Transplant Act (NOTA). As is often the case with legislation that stems from moral outrage or a public outcry, NOTA was written broadly enough that it banned not only money but all forms of compensation to anyone from anyone, whether poor, middle class, or rich, both in life and after death. (The NKF does support leave for live donors and reimbursement for their direct expenses [see http://www.kidney.org/transplantation/livingdonors/pdf/LDTaxDed_Leave.pdf, accessed July 15, 2013], but it still opposes compensation for non-living donations.) Since then, it has been held as an article of faith by most bioethicists and kidney organizations that the only morally acceptable kidney is an altruistically donated kidney, regardless of the dearth of such kidneys. According to some opponents of markets, selling body parts, whether inter vivos or cadaveric, somehow degrades the body and corrupts its “meaning,” thereby weakening communal bonds (Sandel 2012; Kass 2002, ch. 6). Leon Kass adds that this corruption is evident in the repugnance “we” feel at the very thought of such an action.
Given the controversy over selling body parts, however, clearly not all of us feel such repugnance. The “meaning” of the body and its parts varies from context to context, from individual to individual, from community to community. Socrates thought that he was identical with his soul, and called the body a prison of the soul, the death of which could not possibly affect him – if, he clarified, his soul survived the death of his body. Till recently, the Zoroastrians of Iran disposed of their dead by exposing the corpses to the vultures and other birds of prey in “Towers of Silence.” They did this both because they regarded burial or cremation as a pollution of nature by the dead body, and because they regarded letting the vultures feed on dead bodies as an act of charity. In India many Parsis, Zoroastrians of Iranian descent, still dispose of dead bodies this way. Tibetan Buddhists also engage in “sky burial,” but go one better than Parsis, hacking and cutting the body to make the vultures’ work easier (Logan 1997). As they do so, they laugh and chat.
Are Parsis and Tibetan Buddhists guilty of a perversion of some objective value that only those who bury or cremate their dead recognize and respect? It would be terribly parochial to think so. Many different evaluations of, and practices concerning, the body are compatible with the facts of human life and human dignity. Hence, agreeing to sell one’s body parts after death to hospitals for transplantation, in exchange for a payment now or a bigger payment to one’s estate after one’s death, might be expressive of nothing more than a desire for reciprocity.
Attitudes towards the living body also vary widely. The Catholic Church holds that selling an organ uses the body as an “object” and, thereby, violates human dignity (John Paul II 2000). But most other religions disagree. On some interpretations, Jewish scriptures do not forbid the selling of a kidney even by a living vendor if it is meant to save a life (Tracy 2009). Neither do Hinduism or Buddhism, as far as I know, and, indeed, selling kidneys was legal in India till 1994 (Reddy 1993). Given the existence of thriving kidney black markets in most Muslim countries, and legal markets in Iran and, before 2007, in Pakistan, it seems that Islam also does not forbid such sales. True, some vendors have been ostracized for their act (Hippen 2008, 6), but some have also stated that they wish they had three kidneys so that they could sell another one (Scheper-Hughes 2002, 70).
In thinking about the meaning people attach to the body and its parts, it helps to remember that many practices we are comfortable with now were at one time seen by elites as degrading when done for money, including teaching in ancient Greece, which was frowned upon by Plato and Aristotle. Likewise, till very recently, the selling of plasma, eggs, sperm, surrogate motherhood, and bone marrow in the West were prohibited. (Sales of bone marrow were legalized only in March 2012, and only if collected by apheresis. See http://www.ij.org/bone-marrow-release-6-25-2012, accessed July 2013). The meaning-of-the-body argument, then, cannot justify the ITC and Western governments in pressuring non-Western governments to ban organ selling. Nor can it justify a ban in a pluralistic society such as the United States with its diverse communities. Doing so merely imposes one community’s norms – the ITC’s – on other communities. Even Kass, one of the leading voices in condemning organ sales, admits: “regardless of all my arguments to the contrary, I would probably make every effort and spare no expense to obtain a suitable life-saving kidney for my own child or grandchild – if my own were unusable … [and] I would readily sell one of my own kidneys, were its practice legal, if it were the only way to pay for a life-saving operation for my children or my wife” (2002, 179, emphasis mine). So either Kass realizes that buying or selling kidneys is compatible with humanity and dignity, or he realizes that saving a child’s life is more important than humanity and dignity.
Crowding-out anxieties and altruism-fetishism
A second reason often given for banning kidney sales is that allowing them would “crowd out” the altruistic motive that undergirds communities. I will grant the crowding-out premise for the sake of argument and focus on the complaint that this will damage community spirit. On this view, even if kidney vendors are fully informed about the possible (in the USA now, minimal) risks of the surgery, guaranteed a kidney should they ever need one (or dialysis if they are not eligible for surgery), and offered an ample sum for their kidneys, transactions between them and recipients are incompatible with community spirit. Some proponents of altruistic donations even insist that reimbursement for lost wages and travel expenses for living donors, or funeral expenses for cadaveric donors, must be banned, lest the purity of the donor’s altruism be tainted by the dark shadow of self-interest.
The quest for such Kantian purity, however, is elusive: human beings typically have multiple motives for their actions, a fact that led Kant himself to declare that we could never be sure that our actions came from a pure heart (1948). The many excellent arguments against this (what can only be called) altruism-fetishism have largely fallen on deaf ears. These arguments point out that many so-called altruistic donations are motivated by shame or guilt in the face of family pressure, rather than by, or in addition to, altruism. Moreover, most living donors are relatives or close friends of the recipients. Hence their motives are a mixture of self-interest and altruism. In addition, many live donations are actually paired or chain exchanges, in which the altruistic component of the donor’s motivation is directed at someone other than the recipient. In paired exchanges, if A wants to donate to B, but cannot do so because her blood type is incompatible with B’s, she makes an agreement with C, who is in the same situation vis-à-vis D, to donate her kidney to D in exchange for C’s donating to B. When a paired exchange is not possible because either A or C or both are incompatible with both prospective recipients, a chain exchange involving more potential donors and recipients can save several people (Sack 2012). Both kinds of exchanges are arranged by the National Kidney Registry, founded by Garet and Jan Hil, whose longest chain was between thirty donors and thirty recipients. Purely altruistic live donations from one stranger to another are rare. Cadaveric donations, which in 2012 were more than twice as many as live donations (11,043 vs. 5,769, according to the NKF), are, of course, made largely for altruistic reasons, but are far from meeting the need for kidneys. In light of these facts, the claim by two nephrologists that we have a viable system of altruistic donations can only be regarded as wishful thinking: “Our greatest concern is that kidney selling would distort and undermine the altruism and common citizenship on which our whole organ donation system currently relies. The … moral commitment to do one’s duty can be weakened by financial compensation and monetary reward” (Danovitch and Leichtman 2006, 14).
Not only is there very little altruism relative to the need, the altruism that does exist is largely confined to white Americans. In particular, although African-Americans are the most likely to need a kidney, they are far less likely to donate one, in part because they mistrust the medical system, or fear that their kidney will be used for a white patient instead of an African-American patient (Goodwin 2004, 2007). So it is an exaggeration to claim that the current system expresses a sense of “common citizenship.” This claim is further undermined by the fact that we now have a commons in cadaveric kidneys to which everyone has an equal “right” but no one any obligation to keep stocked (Tabarrok 2002). In other words, the ban on markets has led to a tragedy of the commons, the very opposite of the ideal of common citizenship or community.
The most important objection to the crowding-out-of-the-altruistic-motive worry is a moral one: if altruism is a concern for others for their own sake, the insistence on altruistic-only kidneys is its very opposite, for it forcibly prevents patients and prospective vendors from saving their own lives or lifting themselves out of poverty, respectively, through peaceable, mutually beneficial exchanges. Both justice and compassion dictate that the important thing is to have enough kidneys, voluntarily and non-exploitatively donated or sold, and not the motive of the giver. There are some things that we ought to do for others without compensation: everyday acts of kindness and generosity, low-risk rescues in emergencies, such as the proverbial pulling out a drowning child from a pond, helping our adult children or aging parents if they need help, and so on. And in a good society – a society that constitutes a community – most people do do such things. A society in which people merely respected each other’s negative rights, while being indifferent to their weal and woe (should it even be psychologically possible for rights-respecters to be thus indifferent), would not be much of a community. But becoming organ donors after death, in spite of the not-unreasonable fear that our lives might be prematurely terminated on the operating table, is not something we are morally required to do as an expression of our concern for others. A fortiori, donating a kidney to a perfect stranger inter vivos is far from something we are morally required to do. Indeed, not only is this not a duty, it is supererogatory, far beyond the call of duty. Moreover, a society in which most people did believe that they had a duty to offer their kidneys to strangers for nothing would be neither very happy nor very moral. For in such a society, most people would also believe that they were entitled to other people’s kidneys. On a promiscuous theory of our duties to others, it can easily be argued, as one writer already has argued, that “the sick have a right, under some circumstances, to the body parts of the healthy,” and that “the state has the moral power to enforce that right” (Fabre 2003, 131).1 But a society in which people felt they had a right to each other’s body parts would be a society in which they regarded each other and themselves as mere means to each other’s ends – the very antithesis of a community.
The insistence on altruistic-only donations, legally enforced, amounts to a death sentence for the vast majority of kidney patients. Instead of treating people as ends in themselves by respecting their freedom to benefit themselves, the ITC has elevated altruistic donation to the status of an end in itself, an end to which people may be freely sacrificed. A typical expression of this altruism-fetishism is the response of Michael Boo, chief strategy officer of the National Marrow Donor Program (NMDP), to the recent legalization of bone marrow sales in the USA: he refuses to list prospective vendors of bone marrow on the NMDP site, asking rhetorically: “Is that what we want people to be motivated by?” (see Satel 2012). Altruism-fetishism has even led some members of the ITC to protest against organizations like LifeSharers for trying to enclose the organs commons by introducing the principle of reciprocity into organ transplants (LifeSharers 2007).
Crowding-out anxieties and misbehaving markets
A third reason for the ITC’s opposition to kidney markets is also based on the assumption that markets would “crowd out” the altruistic motive. The worry here is the practical one that without this motive, we would get even fewer kidneys for transplantation. Granting, again, that the assumption is true, is it plausible that the crowding-out of altruism would reduce the supply of kidneys? If common sense and evidence from analogous phenomena are any guide, there is reason to believe the exact opposite. Blood donations went down after payment (though not all material incentives; Domen 1995) for blood was banned in the USA, whereas plasma, which continues to be paid for, is so abundant that the USA now exports a large amount of the world’s plasma stock (Hippen and Satel 2008, 100–101). In the UK, which never allowed payment either for plasma or for blood, there is a constant shortage of both. In both the USA and UK, as in many other countries, organizations constantly appeal for volunteers to donate blood to keep their transfusion stock at a safe level (3 days, in the USA). The only time there is more than enough volunteer blood in the USA is during emergencies. By contrast, Iran eliminated its waiting list for kidneys 11 years after it legalized kidney markets.
If an altruism-only policy fails even for plasma, the donation of which requires less of a sacrifice in terms of time, pain, and risk than a kidney donation, and a largely altruism policy just barely works for blood, what reason is there to think that it will ever work for kidneys? Conversely, if payment produces an abundance of plasma in the USA and eliminates a shortage of kidneys in Iran, what reason is there to believe that payment for kidneys will have the opposite effect here or anywhere else? More strongly, if markets in other goods for which there is a strong demand make those goods more plentiful, why should a market in kidneys make kidneys less plentiful? The idea that this might happen is contrary to the most basic law of economics: the law of supply and demand, and to one of the most basic features of human psychology: the desire for, and expectation of, reciprocity. Ignorance of markets has combined with wishful thinking and altruism-fetishism to perpetrate an ongoing tragedy.
The USA: community without kidney markets
A final reason for the ITC’s opposition to kidney markets is its belief that they would be inevitably unequal and exploitative of the poor, since only the poor would sell their kidneys and only the middle class or rich would buy them. The rich would live off the bodies of the poor, who would be left vulnerable to disease and early death. A society that tolerated such inequality would be a community only in name. While this claim has some merit in developing countries, it has little in the USA or, I expect, other developed countries. I will start with inter vivos markets in the USA, since a successful defense of these is also a successful argument for cadaveric markets. The first point to note is that in the USA many poor would-be vendors would be excluded from the market precisely because low socio-economic status is an independent risk factor for kidney disease (Hossain et al. 2009). It is likely, however, that of the healthy candidates, most would be relatively poor, as would most kidney recipients, who would continue to be paid for by Medicare.
But is it such a terrible thing that most kidney vendors would be relatively poor? After all, only relatively poor people take janitorial jobs, house cleaning jobs, or exhausting farm jobs. For many people, selling a kidney would be far preferable to picking blackberries all day in the sun, or cleaning office buildings every day, for a fraction of the sum they would get for a kidney, and not much more of a risk, since laparoscopic nephrectomy, the procedure used in the USA for removing a kidney, is extremely safe (Department of Health & Human Services; cf. Radcliffe-Richards et al. 1998). Since a patient on dialysis is far more expensive to maintain than a patient who gets a kidney transplant, the American government and insurance companies would save money even if they paid a kidney vendor up to $90,000 and provided him or her with free medical care for all subsequent problems related to the nephrectomy (Major 2008). In addition to poverty, being African-American is also an independent risk factor for kidney disease, yet African-Americans rarely donate kidneys. If poor but healthy African-Americans could sell their kidneys, they would improve their own lot, and also provide better-matched kidneys for other African-Americans. This last point also applies to members of other minority groups. Far from exacerbating inequality, then, a legal market in kidneys would reduce inequality and strengthen the bonds of community. It would also reduce exploitation in poor countries by reducing black-market “transplant tourism” the practice of well-off people in Western and other countries traveling to poor countries to buy kidneys from living vendors in the black market.
India: kidney markets without community
Freely chosen, non-exploitative relationships of mutual advantage promote a sense of community by fostering mutual goodwill and trust and undermining social hierarchies. The vegetable vendor on a New Delhi street and his customer deal with each other as independent equals, even if the vendor lives in a shack and his customer in a mansion. This is all the more remarkable because their equality is limited to their relationship as seller and buyer of vegetables: in India there is almost no other social sphere in which poor vendors and non-poor customers can meet as equals. In commuter and long-distance trains, as well as in cinema theaters, the poor sit in third-class coaches or sections, respectively, while the rest sit in the first and second classes. Most marriages are still arranged on the basis of class, caste, and religion. Markets alone cannot wipe out these differences. Indeed, kidney markets, both black and legal, face special problems in India, thanks to a generalized distrust and lack of mutual goodwill between the various classes: the well-off often prey on the not-so-well-off, the not-so-well-off on the poor, and the poor on the very poor. Sometimes, as Katherine Boo (2012) documents in her book on an Indian slum, the very poor also prey on each other. The vast socio-economic differences between the various strata of society, and the struggle for existence on the margins by the poor, serve as a barrier both to the development of a sense of community and to a strong rule of law. And the absence or weakness of a sense of community and the rule of law serves as a barrier to a genuinely free, non-exploitative market in kidneys. The result, all too often, is involuntary or exploitative exchanges. Poor people are promised huge sums of money that dwindle to a fraction of the original sum after the surgery or fail to materialize at all (Goyal et al. 2002; Jha 2004; Taylor 2006). This happened in the legal market before 1994 and happens in the black market now. Even when they are not cheated, they are offered paltry sums (between $1,000 and $2,000) for their kidneys, and often undergo badly performed nephrectomies, with little or no post-operative medical care forthcoming. This, in turn, often leads to an inability to work, leaving them worse off financially as well. In short, the poor are treated as a collection of “spare parts” (Scheper-Hughes 2002), mere means to the ends of others. Some studies – although not all – have reported that the vast majority of vendors in India, Pakistan, Egypt, and the Philippines regret their decision to sell their kidneys on account of worsening health and, consequently, worsening financial condition.2 For their part, desperate to earn some money, vendors sometimes deliberately hide their problems from doctors (or doctors from patients) and pass on their infections to kidney recipients. Thus, kidney markets in India are often involuntary, and even when they are not involuntary, they are often exploitative of kidney vendors in taking unfair advantage of their desperation. In short, exchanges in kidney black markets in India, like exchanges in drug black markets, are often predatory (see, for example, Scheper-Hughes 2011).
Kidney black markets in India also often have adverse third-party effects, such as husbands coercing wives to sell their kidneys or money-lenders pressuring their debtors to sell their own or their wives’ kidneys to pay off their debt, or insisting on their kidneys as collateral before making a loan (Satz 2010). Extreme poverty, lack of community bonds, and the demand for kidneys, together suffice for these third-party effects. Yet selling a kidney is sometimes the better alternative: if it weren’t for their kidneys, it might be their children that poor people had to sell (Robertson 2009).
Some would reject my claim that a freely entered into, mutually beneficial transaction can be exploitative as mistaken, perhaps even incoherent. And on the Marxist understanding of exploitation, it certainly is incoherent. For on this understanding, the worker is exploited because he is coerced by circumstances to work for the capitalist, and his fate is increasing immiseration. The worker does not engage in market transactions voluntarily. If he did, there would be no ground for saying that he was exploited.3 But a conception of coercion that does away with the distinction between economic pressures and a gun to the head is conceptually and morally indefensible, and the claim of increasing immiseration in capitalist countries is plainly false. So those who state, as Murray Rothbard does, that exploitation does not occur in a free market, do so because they reject Marx’s conception of coercion, but agree with his conception of exploitation as necessarily coercive (2008).4 They maintain that all that is needed for a non-exploitative and thus just exchange is that it be voluntary and give both parties what they expect, ex ante, to get from it. Further, they maintain, all that is needed for a voluntary exchange is that it be free of force and fraud.
However, the claim that all exchanges free of force and fraud are equally voluntary equally just rests on very narrow conceptions of voluntariness and justice, conceptions that reflect neither everyday thinking about, nor philosophical analysis of, either notion. Consider, for example, a desperately poor but healthy woman whose family is on the brink of starvation because of a drought. Her circumstances have reduced her options to only bad ones. Hence, when she agrees to sell her kidney in exchange for $100 or a large sack of rice from a well-off man (a payment actually deemed sufficient by a nephrologist in Manila, according to Scheper-Hughes 2004, 58), her choice is made under duress. It is not coerced, but it has a feature in common with coerced choices: it is made unwillingly, in response to unusually constrained external circumstances and an unreasonable offer far below the usual market price. Her action is neither involuntary nor fully voluntary, but mixed, done only to avoid something even worse (see Aristotle 1999 on voluntary, involuntary, and “mixed actions” in Nicomachean Ethics, III.1). Likewise, when her well-off buyer drives, as we say, “a hard bargain,” he doesn’t coerce her, but his action has a feature in common with coercion: it exploits her vulnerability to gain a hugely disproportionate advantage for himself. Like coercion (and fraud), an exploitative exchange shows scant regard for the vulnerable person.
This last might invite the reply that since the exchange in question both respects the kidney vendor’s rights and saves her life, it can hardly be described as showing scant regard for her. Nothing I’ve said so far shows that a non-coercive, mutually advantageous exchange can be exploitative. The kidney-for-a-sack-of-rice deal will enable the kidney seller and her family to survive for a month instead of, say, only five days.
The claim that an exchange must be harmful to one party to count as exploitative has been disputed. For example, Feinberg argues that exploitation can occur “without harming the exploitee’s interests and … despite the exploitee’s fully voluntary consent to the exploitative behavior” (1990, 176–179). But whether or not harm is necessary for exploitation, in the case at hand the harsh terms of the exchange do make it harmful to the kidney vendor in the long run. For a nephrectomy on a woman about to go on a starvation diet is all but guaranteed to kill her. The kidney recipient saves the desperate woman’s life at time t1 at the cost of depriving her of her health and perhaps even life at time t2. Compared to the baseline of no-exchange (and certain death from starvation in five days), she is better off. This is reason enough not to ban kidney sales. As Alan Wertheimer argues, however, the no-exchange baseline is not the only relevant baseline in evaluating an exchange (1996; Wertheimer and Zwolinski 2013; see also Locke 1661). Evaluating the justice of an exchange requires comparing it to the baseline of a just exchange, an exchange that does not take advantage of either party’s vulnerability to harm. And by this baseline, the woman is worse off.
The woman’s situation is akin to that of a man dying of thirst in a desert, and the buyer’s to that of a well-stocked, well-off tourist who agrees to give the dying man water in return for all his property after they reach home. Every philosophical theory of ethics joins commonsense morality in condemning such a deal as unconscionable, and the common law agrees by refusing to uphold it if the thirsty man reneges on it. For an almost costless rescue such as this ought to be done without demanding anything in return (even though, as most of us believe, this ought not to be legally compulsory). Any well-off tourist with water to spare ought to give the thirsty man some water just because the thirsty man is a human being like himself who has been rendered helpless by circumstance. Likewise, any well-off buyer of a kidney ought to give the desperate woman the price she would have commanded had she not been desperate, and ought to do so just because the kidney seller is a human being like himself rendered helpless by circumstance. The tourist and the kidney buyer would see this for themselves if they asked themselves that most familiar of questions: “How would you like it if someone did this to you?” In both the desert and the kidney exchanges, the well-off parties save the desperate individuals from imminent death in exchange for long-term advantage to themselves and long-term grievous harm, perhaps even death, for the desperate individuals. In so doing, they treat the desperate individuals as mere means to their ends, resources to be sucked dry and left to their fate. Their actions and attitudes say, in effect, that the life and well-being of these individuals are of no moment after they have served the interests of the better-off parties. Thus, they both degrade the vulnerable individuals and harm them. The snapshot view of exchanges typical of economics obscures these facts because it omits the details that make them visible. Like force and fraud, benefiting ourselves by imposing a grave cost on others just because we can violates Kant’s “humanity principle,” the principle that says that people are ends in themselves, not mere means to our ends. And violating this principle is unjust, because it fails to give people their due.
Ironically, it is the attempt to save people from exploitation or coercion by banning kidney markets that has led to the unimaginably high levels of exploitation and coercion that we see in underground kidney deals. Although fewer people in India sell kidneys now than before the 1994 ban, those who do have no possibility of legal redress against those who cheat or coerce them. The ban has also created more rent-seeking opportunities for bureaucrats, who now have the power to harass potential “donors” who need their permission to “donate,” but who cannot get it without wading through several yards of red tape, multiple layers of bureaucracy, and absurd last-minute additional requirements (Menon et al. 1997; Iyer and Masand 2012).
Legalizing kidney markets in India would not, of course, solve all the problems of coercion, fraud, exploitation, corrupt politicians, or adverse third-party effects, because most of these problems are due to extreme poverty and ignorance combined with a lack of community spirit and the rule of law. But legalizing kidney markets would allow investigative journalism and social media to expose poor-quality transplant centers and cheating or exploitative brokers and doctors more easily, and give some legal recourse to those who are cheated. It would also lead to a healthy competition among transplant centers, brokers, and doctors for vendors and kidney recipients, and create more nephrologists and transplant surgeons like Thiagarajan et al. (1990), whose careful selection methods, including extensive counseling of prospective vendors, successful surgeries, and three years’ free follow-up medical care, made them the most “popular” team in South India.
Unfortunately, some of the widespread anti-market bias among professionals infects even Thiagarajan et al. (1990), who state proudly that when kidney sales were legal, they did not advertise or allow the market to play a role in deciding payment for the vendor. But advertising would incentivize transplant clinics to improve, and spread news of trustworthy clinics to prospective vendors. The market price would be higher than what seemed then, and seems to be still, the going price in India: between $1,000 and $2,000 (Havocscope, http://www.havocscope.com/black-market-prices/organs-kidneys, accessed July 2013). The higher price would enable the prudent vendor to escape his poverty and also have the salutary effect of preventing government hospitals too poor to pay for patients’ anti-rejection drugs from performing transplants on people too poor to buy anti-rejection drugs. But far greater improvements would result from a global free trade in kidneys. Global markets would lead Western insurance companies and transplant centers to establish branches in poor countries that would bring higher standards of screening with more sophisticated laboratory facilities, better drugs, better post-operative care, and perhaps life-long free care for any problems connected with the nephrectomy. Under a consistently free-trade regime, people would be free to go anywhere to get transplants or sell kidneys. Consequently, prices would rise in poor countries and fall in wealthy countries, as they do in other products that are allowed to be freely traded. This would also reduce incentives for black markets that, apparently, still exist in Iran, where kidney vendors are not allowed to sell to foreigners (Ghods and Savaj 2006). Moreover, immigrants to the USA and other Western countries who have a smaller potential supply of kidneys from their own ethnic group in their chosen countries, could go to their countries of origin in order to get matter-matched kidneys. Finally, if kidney markets were legalized, charitable organizations would spring up to help people in poor countries who could not afford a kidney transplant or the necessary drugs after the transplant.
Why, then, does the ITC as a body still oppose kidney markets?
Communal conformity and moral entrapment
Some charge that the medical personnel who oppose markets are motivated by greed: a shortage of kidneys results in a higher price for their services (Barnett et al. 2002). Some argue that the real value of a kidney is folded into the fees charged for the removal, storage, transportation, and transplantation of kidneys, and this creates an incentive for people in this business to oppose payment for kidneys (Tabarrok 2002). Radcliffe-Richards et al. argue that the opposition is simply an attempt “to justify the deep feelings of repugnance which are the real driving force of prohibition” (1998, 4–5). Whatever the merit of these speculations (and the last one certainly has a lot of truth in it), we must not overlook psychological reasons for the strong objection to kidney markets. One common reason for agreement among members of a community, or for lack of opposition to the dominant view, is fear of disapproval by their peers or their community’s authority figures. This pressure to conform or obey is the dark side of communities and communalism. The hostility of most members of the ITC towards markets leaves those who favor markets afraid to speak their minds. The mavericks are thus robbed of – or allow themselves to be robbed of – any practical influence on the issue. Although some who have suffered disapproval for their defense of kidney markets, such as Thiagarajan et al., don’t let it silence them, most people are not made of such stern stuff. Cherry (2005) reports that many transplant surgeons in the USA have told him privately that they favor incentives for organ donations, but are loathe to say so publicly. Indeed, fear of disapproval or even ostracism by peers or people in authority, leading to conformity to the former and obedience to the latter, is a potent factor in human behavior, observable in the playground as much as in private and public organizations. It has also been demonstrated in many experiments, including, most famously, the Asch and Milgram experiments (Asch 1955; Milgram 1974, 170–178; I discuss these experiments in Badhwar 2009).
Another everyday, observable phenomenon that has been demonstrated by the Milgram experiments is “moral entrapment.”5 As the name suggests, moral entrapment occurs when, by small innocuous steps, we end up committed to a project of wrongdoing, unable to free ourselves because the cost of doing so seems too high to bear. This might explain why no one in a position of authority in the ITC has come out in favor of markets. If they were to admit now that they were wrong to oppose kidney markets, they would have to admit that they had been wrong all along. Hence they would have to admit their share of the responsibility for the unnecessary suffering and thousands of deaths over the years. And this is far too hard to admit. It should therefore not be surprising that my letter to the NKF in October 2012 asking why it was so adamantly opposed to kidney markets brought the same hackneyed reply: “there are proven, effective ways to increase donation that should be used more widely, instead of paying for organs.” When I pointed out that the waiting list had grown, not decreased, since the NKF adopted its “End the Wait!” resolution in January 2009, I got no reply.
Conclusion
There is no easy remedy for the tragedy created by the ban on kidney markets. One hope is that scientists will soon create an artificial kidney (Ellis 2013). Another is that pro-market individuals will gain positions of authority in the ITC and start to change the climate of opinion. Another is that the Institute for Justice (IJ) or other similar organizations will successfully challenge the ban in court, as IJ has in the bone marrow case (Kramer 2012). Should the USA legalize markets, India and other poor countries will also eventually follow suit. Insurance companies are already paying for certain treatments, including heart surgeries, in centers of excellence in India, Singapore, and other countries where high-quality health care can be had much cheaper (McQueen 2008). Legalization of kidney markets will make it possible for insurance companies to pay for transplants as well.
Acknowledgments
Thanks to the editors for their helpful comments on an earlier draft. Thanks also to Christopher Freiman, and to Eric Chwang and his students, for their helpful comments. I regret that I was unable to take them into account.
Notes
1 Fabre (2003) adds, however, that in the present state of public opinion, the government should not enforce this right. Fortunately, the law doesn’t even give parents a blanket permission to force their own children to donate their organs or bone marrow to their siblings. (See Beck 1990).
2 Goyal et al. (2002) interviewed 305 kidney vendors in 2001 in Chennai, India, an average of six years after the selling of their kidneys. The authors report that the vast majority of vendors were either poorer than before because their health had deteriorated, or were no better off financially than before. On the plus side, only 2 of the 305 reported having been coerced into selling their kidneys. Budiani-Saberi and Delmonico report that many studies done in Pakistan, Egypt, India, and the Philippines show that kidney vendors deteriorated in their health as well as their financial status (2008, 928). The same was true of vendors in Iran, where kidney markets are legal.
3 This is a simplification. Marx’s exploitation theory also rests on the labor theory of value and his view that the capitalist’s profits are stolen from the worker.
4 Milton Friedman and Rose D. Friedman (1980) suggest a more expansive conception of exploitation when they write, “The consumer is protected from being exploited by one seller by the existence of another seller from whom he can buy and who is eager to sell to him” (Ch. 7). Here exploitation is understood as taking advantage of someone through monopoly pricing.
5 Sabini and Silver (1982) explain the escalating obedience of many in the Milgram experiments, as well as the escalating obedience of many in Nazi Germany, partly in terms of moral entrapment.
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