The Case for Legal Organ Sales

How legalizing the trafficking of human organs would save lives and protect the poor


Last month, 60-year-old Levy Rosenbaum pled guilty to trafficking in human organs, collecting more than $400,000 for arranging the sale of three kidneys. He faces up to 20 years in prison and is the first person in the U.S. to be convicted of organ trafficking.

As the prosecutor in the case, New Jersey's U.S. Attorney Paul Fishman, declared triumphantly: "A black market in human organs is not only a grave threat to public health, it reserves lifesaving treatment for those who can best afford it at the expense of those who cannot. We will not tolerate such an affront to human dignity."

But before you condemn Rosenbaum completely, think about this: There are three people out there, who before they paid Rosenbaum to get them new kidneys, were sick and dying. Now those same people are healthy and well. Indeed, standing before U.S. District Judge Anne Thompson, Rosenbaum didn't sound like a bad guy at all, he sounded like a savior. "The son told me the father has kidney failure," Rosenbaum explained. "I helped him."

As kidney-donor Virginia Postrel sees it the Rosenbaum case is predictable. "This is exactly the situation the law was designed to prevent: a broker soliciting people to sell their kidneys. It's also exactly the situation the law creates: a broker getting a huge markup as a premium for breaking the law, rather than letting the donors receive an above-board price set by hospitals or insurers." Harvard Economist Jeffrey Miron agrees: "The law prevents a practice that benefits both the donors and the recipients, so it creates a large temptation to break the law."

But are Postrel and Miron actually suggesting that you could solve the black-market in kidneys if you just legalized sales, with prices determined by the market? Indeed they are; they aren't alone, and with good reason.

Consider the sad data: There are 90,000 people waiting for a life-saving new organ. Of those on the waiting list, there were only 17,000 transplants last year. More than half of those were from dead donors (10,500), with another 3,000 from living donors. Meanwhile there were 28,000 names removed from United Network for Organ Sharing (UNOS) waiting list last year. What happened to the other 11,000 patients? A significant number—4,600—were removed from the list because the patients died waiting. And another 2,100 were deleted because the patient had become too sick to withstand a transplant. The current average wait time for a transplant is 3.5 years.

So there's incredible demand for kidneys but there just aren't enough donors. And one more technical matter: Transplants from live donors are more successful than transplants from dead donors. The National Kidney Foundation says about 94 percent of kidneys transplanted from cadavers are still functioning well at one year after surgery. But the results are even better for kidneys transplanted from living donors. One year after surgery, 98 percent of those kidneys were still functioning well.

Given the current situation, therefore, there's a thriving black market for kidneys. But if you imagine that Rosenbaum's $136,000 kidneys were transplanted into recipients in some back-alley, think again. The procedures all happened at reputable hospitals, Rosenbaum's attorneys said in a statement. According to Bloomberg, was procedure was done at Johns Hopkins Hospital in Baltimore.

As Postrel notes, in this case "there were no horror stories about people's health being harmed…The only harm was financial—the recipients paid much higher prices for the kidneys than they would have without the premium for breaking the law and the donors probably received a lower price than they would have in an above-board system." Miron argues that a regulated, legal market would actually lower the cost per kidney because the donation pool would be expanded.

But that's what Dr. Francis Delmonico, a transplant surgeon at Massachusetts General Hospital and the Medical Director of the New England Organ Bank, is worried about.

Delmonico acknowledges the kidney shortage, but he says legalizing the system will only end up exploiting the poor. "Sellers are disadvantaged because…they don't really need to sell their organs, they need money," he argues. Delmonico believes that any free-market system of selling kidneys would never be contained within, say, the United States, but rather would explode throughout the world where any regulation would simply not be enforced. The sellers, therefore, would be exploited, and would primarily come from the poorest countries, selling their organs to the highest bidder out of desperation.  

But Professor Nadey Hakim, transplant surgeon at St Mary's Hospital, London, argues that not legalizing sales could be an even bigger problem. "As this trade is going on anyway, why not have a controlled trade where if someone wants to donate a kidney for a particular price that would be acceptable? If it is done safely, the donor will not suffer."

And Sir Peter Bell, professor of surgery at the University of Leicester, suggests that "compensatory payments" should be made to relatives who donate the kidney of a family member, as a way of staving off the growing trade in organs from the developing world.

One of Delmonico's colleagues meanwhile has a plan to regulate kidney sales.

Arthur J Matas, medical director of kidney transplants at University of Minnesota Medical Center argues that there can be a viable legal system with many of the same terms and precautions as the current voluntary system.

According to Matas' plan the donor would get paid by the government or insurance company; the selection of who gets a transplant could still be done by a UNOS-type system; all donors would be fully evaluated (as they are now), and a legal system would include oversight, long-term follow-up, and "treatment of the donor with dignity and appreciation for providing a lifesaving gift." Matas says "the payment could be a fixed sum and/or include term life insurance, long-term health insurance, reimbursement for travel expenses and time out of work, or a tax deduction."

Matas makes one other important point about cost. Because dialysis is so much more expensive than a transplant, paid donation could be cost-neutral to the health care system.

What the debate comes down to is whether or not one believes in the power of markets. Public policy experts and the public at large will also have to get over their revulsion at the thought of selling organs to the highest bidder.

Abby Wisse Schachter authors Capitol Punishment, the New York Post's politics blog.