Fresh Kidneys for Sale

International organ markets aren't the same as slave markets.

"Part of the notion of treating individuals with dignity is that they have control over what is done with their own bodies and their parts." Who could disagree with that principle? A new study, "Trafficking in Organs, Tissues, and Cells and Trafficking in Human Beings for the Purpose of Organ Removal" done at the behest of the United Nations and the Council of Europe, correctly observes, "In order to obtain organs and tissues from the living, there is agreement that, from an ethical standpoint, it is necessary to have a legally competent individual who is fully informed and can make a voluntary, uncoerced choice about donation." Right on.

However, once these principles are enunciated, the report—co-authored by University of Pennsylvania bioethicist Arthur Caplan and three European colleagues—oddly concludes that individuals have the right to control their bodies, except when they want to sell one of their organs. Let's be crystal clear: It is heinously wrong to treat people like slaves, coercing their labor without voluntarily agreed upon compensation. The question is: Are poor people who sell their organs coerced?

Caplan and his colleagues argue that they are coerced, and therefore conclude that organ sales are immoral and should be prohibited. For the most part, the report offers a good definition of what constitutes illicit trafficking in persons, including the use of force, threats of force, fraud, deception, or taking or making payments to gain the consent of someone who has control over another person to exploit that person. The study goes awry when it introduces the idea of the "abuse of a position of vulnerability" which is defined as "any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved."

Caplan and colleagues argue that poverty is so coercive that a poor person could not "rationally" decide to sell one of his or her organs for some ready cash. "Talk of individual rights and autonomy is hollow if those with no options must 'choose' to sell their organs to purchase life's basic necessities," asserts the report. "Choice requires information, options and some degree of freedom, as well as the ability to reason about risks without being blinded by the prospect of short-term gain."

Oxford University bioethicist Julian Savulescu rejects the notion that poverty is, in and of itself, a form of coercion. "People take risks for money," observes Savulescu. Since this is case, he adds, "We need to ensure that the risk involved is reasonable compared with the benefits it will offer to the person undertaking the risk and society." Interestingly, Caplan's study notes that the mortality risk of donating a kidney is about 0.03 percent. Given that we already allow lots of people to take the risk of organ donation for no money now, it would be hard to argue that paying people for taking that risk is wrong. Savulescu further argues that prohibiting poor people from selling their organs as a way to alleviate their poverty is a "double injustice." Why? Because such a ban, in effect, says "to a poor person: 'You can't have what most other people have and we are not going to let you do what you want to have those things.'"

The study acknowledges that there is a severe and growing shortage of transplant organs. At the end of 2007 in Europe, some 58,000 patients were on waiting lists for a kidney, a liver, or a heart transplant and only 26,000 had received transplants during that year. In the U.S., the situation was worse, with more than 95,000 people on transplant waiting lists, while about 25,000 transplants were performed. According to the World Transplant Registry, globally about 40 percent of all transplanted kidneys came from living donors as did 10 percent of liver transplants.

Research cited in the study shows that the one-year transplant survival rate from living kidney donors is 95 percent compared to 89 percent from deceased donors. The five-year transplant survival rate is 80 percent from living donors and 65 percent from deceased donors. Kidney transplants are much cheaper than maintaining a patient in renal failure on dialysis.

Right now, 55 countries legally prohibit giving or receiving payment for organs. However, 62 countries do allow living donors to be compensated for their lost wages and medical expenses. Caplan and colleagues want to clearly distinguish between sales of organs, tissues, and cells, on the one hand, and trafficking in people whose organs are removed for transplantation on the other—and rightly so.

But the Caplan study cites estimates that "up to 5 to10 percent of kidney transplants performed annually around the world are the result of trafficking." That translates into somewhere between 3,400 to 6,800 gray or black market kidney transplants per year. Until tissue engineering becomes a reality, enabling replacement organs to be grown in vats, the demand for "donated" organs will increasingly outstrip supply.

By prohibiting the development of legal markets in human organs, the United Nations is ultimately forcing more desperately poor people who wish to sell their organs into black markets, penalizing them for their poverty, and implying that they lack the ability to make rational decisions about what to do with their bodies. Paternalism is bad enough, but banning organ markets is ineffective and counterproductive paternalism at its worst.

Ronald Bailey is Reason magazine's science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is now available from Prometheus Books.