Kidney Donations

I recently learned that my colleague and Dean, Jennifer Mnookin, donated a kidney to her father, Harvard law professor Bob Mnookin; my hat would be off to her, if I wore a hat, and I'm delighted to hear that both daughter and father are doing well.

This also reminded me that my longtime friend and recent guest-blogger, Virginia Postrel, had donated a kidney 15 years ago to her friend Sally Satel (who as it happens was cited in a post here last week). Again, hat off to Virginia.

I have long thought that people should be compensated for kidney donations (and that heirs should be compensated for post mortem donations). Put a $0 cap on a scarce good, and unsurprisingly you get a shortage—as to kidneys, an often deadly shortage. I have even argued that there should be a constitutional right, stemming from the right to self-defense, to pay for kidneys, sections of livers, and the like (see my 2007 Harvard Law Review Article, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs). But whatever you might think of the constitutional argument, I think the policy argument for a properly run system of payments is very strong.

But in the meantime, I think we should appreciate those who donate their kidneys, and celebrate the scientific and medical advances (which would have been mind-boggling, if we hadn't gotten used to them) that allow these operations to work, generally with great success and very few side effects.

Comments

[Dan Schiavetta]

You've GOT to be joking. You want people to be able to sell their kidneys??

[BadLib]

I suspect that Professor Volokh is mostly focusing on people selling a kidney, not their kidneys.

(Although, I honestly have no idea how the Professor feels about selling even organs that are essential to the donor's life.)

[Eugene Volokh]

Indeed, I'm talking about one kidney per seller for the living suppliers, though both as to post mortem suppliers. (For the liver, it would be parts of a liver, since it regrows.)

[Intelligent Mr Toad]

Two medical facts which some may find relevant: 1. A normal, healthy person has five times more kidney tissue than he needs. You could donate one kidney AND half of the other one, and not notice much change to your lifestyle (after you had recovered from the surgery, and assuming that you are leading a normal lifestyle and not trying to be a professional sumo wrestler or a Wagnerian opera singer or anything like that). AND 2. Like liver, when you donate (or lose) one kidney, the other one hypertrophies and in time replaces most or all of the lost kidney tissue. I saw this myself during my abortive run at med school: the woman whose corpse I dissected had lost a kidney in life, and the remaining one was almost twice as big as a normal kidney. (She had also had a triple coronary bypass.) You're still vulnerable, of course, because if something happens to your remaining kidney, like cancer or injury, your backup kidney is gone, but, as far as pure nephro-power is concerned, you live a normal life.

You can also donate bone-marrow, and it's not very dangerous or demanding. It's easier than, for instance, going through a pregnancy and giving birth.

I recently signed up as a post-mortem donor. It's a family tradition: my step-dad signed up to donate his brain for research, when he realized he was developing dementia, and my mother is signed up too (although she is not demented, at least not so far. 88 years old, and still writing books which her fans actually buy and actually read!) But my plan, if I get diagnosed terminal, is to withdraw from the general donor plan and specify in my will that I want my corpse to be used as a teaching specimen for some first-year med student (or a team of them-- we had four to each corpse) to dissect in gross anatomy lab. Then, I will get a tattoo on my chest which will read: "Med school sucks. Drop out while you still can!" Hopefully this will give some stressed-out first-year med student a much-needed laugh.

[Eugene Volokh]

1. Indeed, as I argued at some length in pp. 1832-45 of the cited article. (Note that the policy arguments against allowing payment to living providers differ somewhat from those against allowing payment to the relatives of those who had just died; I tried to respond to both.)

2. While I think my constitutional argument was original, the policy argument is definitely not original to me. Lots of serious scholars have made and are continue to make this argument, quite seriously. You can agree or disagree with it, but there’s nothing risible about it.

[Commenter_XY]

I strongly support that = letting people sell kidney, or liver lobe.

Why not?

[BadLib]

Esp. the liver as, if I understand correctly, the liver grows back to its full size and function fairly quickly - but that due to vascular bits that were removed and given to the recipient, the donor can't make another liver donation (at least not until death).

[Sidney r finkel]

The problem with Prof. Volokh's post is that it takes a very complicated issue and reduces it to a simplicity, with no acknowledgment of the opposing points.

Yes, there are very good reasons to allow payment for organs, but there are also very good reasons not to. A market in body parts could easily evolve into a 'poor people sell so rich people can live' and other things like auctions, brokers making money, low level intelligence people being exploited, etc. etc.

This is one of the most difficult and complex issues facing us and it is a tremendous disservice to present certainty as dogma rather than engaging in serious debate. Disclosure: I am the father of a son who donated a kidney to a friend, and he did not get paid. As he said "I have two kidneys and Jeff needed one, so . . . .

https://www.wivb.com/news/local-news/friends-reflect-one-year-after-life-saving-kidney-donation/1768956874/

[Eugene Volokh]

Well, I spend 13 pages of the article I linked to in the post (pp. 1832-45) setting forth the argument and of course discussing the counterarguments, both in some detail. But since this post is primarily about acknowledging Jennifer Mnookin's and Virginia Postrel's donations, I didn't think I needed to quote or summarize those 13 pages here.

[Sidney r finkel]

Point taken.

I did not go there because I did not realize that it was other than a more detailed argument in tune with what was presented in the post of this site.

Even though it may be redundant I think it is always helpful in any post to acknowledge that the other side has merits and that the issue is not cut and dried in one direction or the other. In statistics we talk about these things as a type 1 and type 2 error, that when you move to make one set of actions more safe you end up making something else less safe. The dilemma here cannot be decided without someone getting harmed.

[Rossami]

There are reasons not to but they are not very good. The reasons you cite have been tested in many, many other markets and your parade of horribles consistently fails to occur.

[santamonica811]

Agreed. If if it's a concern; why not try it for 5 or 10 years? If there are horrible results, then we end the practice. But the countless lives that would be saved . . . it sure seems worth at least trying novel ways to increase the number of organ donations.

[Kevin Smith]

The reasons always seem to boil down to "poor people are too stupid to be allowed to make these decisions for themselves"

[Sidney r finkel]

This is just another prejudicial conclusion that equates being poor with being stupid. The low income people I have associated with in various volunteer efforts are smart, intelligent, hard working and the kind of people you would want as neighbors.

I suggest you take a look at the victims of the Bernie Madoff scam. All of them, every single one was a wealthy individual or a highly endowed non-profit. I suggest you might want to revise your attitudes towards those less fortunate.

[Toranth]

I think you may have misread Kevin Smith's post.
As I read it, he does not seem to be saying that poor people are "too stupid...". Instead, he seems to be saying that many of the arguments against allowing people to make their own decisions about organ donation can often be accurately summarized as other people claiming that "poor people are too stupid to be allowed to make these decisions for themselves”.
To me, his phrasing seems to exhibit disagreement with that position, and thus agree with you that poor folk are not stupid, and are perfectly capable of making these decisions themselves.

[Stephen Lathrop]

Toranth, poor people, stupid or smart, are differently situated than people with more money. Suppose we did have a trial period. How many free market advocates would be willing to call the trial a failure if it turned out that poor people were disproportionately the donors?

Or, to put a sharper point on it, I would prefer to hear Professor Volokh's advocacy after he himself had named his price, and actually donated. I am not particularly interested in the views of well-off people on paid organ donations unless they advocate some system to assure the least-wealthy donors get the same price as the richest donors demand for themselves.

[santamonica811]

Interesting. I had just assumed that, if implemented, there would be one price paid. But maybe not. Maybe it would be more efficient to have an objective criteria, from say, 1 to 5. You get max dollars if you're a "1." (Perfectly healthy liver). Fewer dollars if it's a perfectly viable liver, but not the most healthy.

No idea which would be better. (My hunch is that, if there were a sliding scale of payments for donations, more sophisticated [ie, more wealthy] donors would indeed game the system and get more money at the expense of poorer donors.)

[Noscitur a sociis]

How many free market advocates would be willing to call the trial a failure if it turned out that poor people were disproportionately the donors?

Zero, I hope? Obviously poor people (i.e people who are in greater need of money) will be more likely to want to sell, just as rich people (who have more money to spend) will be more likely to be the purchasers.

[EscherEnigma]

[...] just as rich people (who have more money to spend) will be more likely to be the purchasers.

You do realize this is one of the major objections, right? To the degree that it's already true that money buys health in the US, that's a failing of the system, not something to intentionally amplify.

[Toranth]

Why not?
There is a limit for health care goods and services, period - these things are not infinite and effortless.
Therefore, it will always take money to procure health care. Someone will pay for it, so it is always true that "money buys health" not only in the US, but everywhere. At least, until the Singularity comes.

Allowing people to benefit themselves - such as, to buy healthier food or better education - by selling organs benefits all parties involved. Denying them this right benefits no one and nothing.

[Commenter_XY]

lathrop....Can you tell me what is wrong with a person of lesser means, who wants to procure financial security for their family, selling a lobe of their liver to a billionaire who needs a transplant? It is a completely voluntary transaction.

I am 100% certain the fine lawyers here at VC will gladly protect the interests of the donor...for a cut of the proceeds.

[Absaroka]

I honestly don't know exactly I feel about the issue, but some thought experiments:

1)Healthy poor parent's kid needs expensive ... transplant 🙂 in order to live. The only way the poor parent can fund it is to sell their heart for transplantation. All OK, just a voluntary transaction? Maybe so. After all we'd consider it unremarkable if a parent gives the last space in the lifeboat to their kid. But it also gives me pause.

2)Same situation, but the parent wants to sell an eye to pay for the kid's college. So closer to the kidney case, since the parent will still have one good eye (although one good eye still isn't as good as two good eyes).

3)Same situation, but the parent wants to sell both eyes. So not as drastic as selling your heart, because the parent will still be alive, but it's not so great to be blind.

Maybe those all seem cut and dried one way or the other to some people, but I see a lot of uncomfortable grey areas.

[Absaroka]

Followup for people who think that clearly poor people shouldn't be permitted to sell a kidney, does the same logic apply to rich people?

Hypo: someone with a net worth of $1M, an annual income of $200k, and a PhD wants to sell a kidney to pay for a new Lamborghini. Do you outlaw that, because Mr. Warbucks is being exploited?

If you don't, what's your answer when Joe the Plumber complains that Mr. Warbucks is being afforded opportunities denied to him?

[Intelligent Mr Toad]

Well, apart from the fact that you seem to have misunderstood the post you are replying to, it's not really fair to judge someone's savvy or gullibility by how he responds to Bernie Madoff. Bernie Madoff was not an ordinary guy; he was an exceptionally talented con-man. To argue, as you do, that his victims' great wealth shows that very wealthy people are just as gullible as ordinary people, is like arguing that Olympic-level discus-throwers aren't really very athletic, because Mike Tyson in his prime would have been able to beat them all up. Sure he could have, but that only shows that Mike Tyson in his prime was Mike Tyson in his prime, not that discus-throwers are as flabby and weak as ordinary people.

[Absaroka]

"...he was an exceptionally talented con-man. To argue, as you do, that his victims’ great wealth shows that very wealthy people are just as gullible as ordinary people..."

I dunno. He was promising some people 46% a year:

"Further, to induce new and continued investments by clients and prospective clients, MADOFF promised certain clients annual returns in varying amounts up to at least approximately 46 percent per year."

Believing that is pretty doggone gullible.

[DaivdBehar]

You are nitpicking and 50000 die a year.

[santamonica811]

I agree with one of your posts. (Is that one of the signs of the Apocalypse?) 🙂

[bratschewurst]

You write in your brief that:

The courts' rule in creating religious exemptions under RFRAs is also similar to their roles in creating other exemptions under other statutory grants of power...These are legitimate grants of discretion to courts, precisely because they leave legislatures free to later substitute their own decisions about "reason and experience" for judges' decisions.

It seems to me that the exact same logic applies to the extension of the anti-delegation doctrine proposed by those who want to overturn Chevron - a decision praised by Scalia for pretty much the same reasons as he explained in Smith. The legislature is free to delegate reasonable interpretation of the laws it passes to the executive branch, because the legislature can always "substitute [its} own decisions about 'reason and experience'" for the executive branch's decisions.

Why aren't these the same things? In fairness, those who seem to want to overrule Smith don't appear to be fans of Chevron either.

[DaivdBehar]

Comparable jurisdictions that enacted presumptive donation of organ have had 10 fold the rate of transplants as those that did not. One was in the US, with corneal transplants in Florida. Presumptive means, one has to check a box in the driver's license to refuse to donate in the case of one's death. The same disparity happened between Austria and Germany, between Portugal and Spain, with their similar populations and cultures.

I agree that health systems should compensate people for their organs, their time, their operative pain, and their for their inconvenience. 50000 people die waiting for a transplant. Those who want to feed the organs to the worms in the ground should be crushed legally.

Technology will eventually grow organs from the person's own adult stem cells, and avoid the necessity for immunosuppression. That would be profitable. Instead of the outrage of the radically obstructionist Democrats with a $50 pill, they can be outraged by a $50000 organ.

[Gasman]

That merely solves one problem by a government coerced taking of private property.

[DaivdBehar]

Kelo allows the taking of chattel. Kelo does not specify real property. A corpse is chattel. Such a taking should be compensated, in accordance with the Fifth Amendment.

[California Dreamer]

My wife got a kidney, donated by a family friend, 12 years ago (they couldn't use mine). The kidney's still going strong, as is the donor, and it has hugely improved my wife's quality of life. Whether or not there's financial compensation, I urge everyone at this site to consider a live donation if you know someone who needs one and at a minimum to agree to have your organs donated if you die and your organs can be harvested.

[DaivdBehar]

There is no comparison between the pathetic condition of dialysis patients, and renal transplant patients. The dialysis prevents potassium from rising and stopping the heart. The kidney likely has 100's of functions, many of which have yet to be discovered.

[AtR]

Should parents get paid for taking care of their children?

The most important and valuable things you do in life, you do without pay. One of the reasons why scientific studies limit compensation to volunteers (besides avoiding to coerce poorer volunteers into experiments) is that significant payments actually *reduce* participation.

[Gasman]

Currently zero dollars to the donor is in reality negative dollars. The donor will loose time from work, require help at home, and have a small, but definite risk of life long medical needs.

I donate blood 4-6 times per year for the past 30 years. The cost in time is minimal, and comes out of otherwise slack time. But ask most people to loose a couple month's pay, and that's a full stop right there.

[Voize of Reazon]

Italy has an interesting middle ground solution, blood donors aren't paid for their donation but employers are required to give them a paid day off work.

[EscherEnigma]

Should parents get paid for taking care of their children?

Disclaimer: I am not, and never have been, a libertarian or Libertarian.

I don't know about you, but I can us my paid sick leave to take care of sick family members. And I'd see nothing wrong with extending (by statute, since employers that pay the lowest wages refuse to do it on their own) this privilege to all workers in the US.

Anathema to libertarians/Libertarians I know, but some of us believe that McDonalds shouldn't be punishing their employees for staying home when they're sick.

[Gasman]

Without even coming close to a slippery slope it would be entirely fair to compensate donors for all incurred costs. Truly try to make donors fiscally whole. These costs should be covered by the insurer who would otherwise acquire the kidney for free from the donor (cost for the surgical team, hospital, transplant organization, etc. still in play). No body else is giving away anything for free. Organ transplantation is big business.

-Pay for time off from work, at the donor's current rate of pay. And do not require the donor to first use vacation/PTO, a consumable thing of value to the donor. This is a minimum of 4 weeks, but could be 2-3 months for jobs that require significant physical labor.
-Pay for help around the home. A convalescing person needs assistance, and that should not fall to family members taking time off work.
-Lifetime health coverage for kidney related issues. This guarantees that the single kidney person is not penalized as having a preexisting condition.
-Priority on the transplant list should the donor one day require kidney transplant. Single kidney individuals are more likely to suffer end stage kidney failure because they have half as much kidney going forward (kidney function does increase for the one kidney, but unlike the liver it does not regenerate. It merely achieves higher function per nephron by working harder. This is also why it can fail earlier.)

[santamonica811]

All excellent suggestions.

[bernard11]

Yes.

[Intelligent Mr Toad]

Could someone argue that his religion requires him to sell his extraneous or regenerating organs or tissues for profitable compensation (and perhaps to donate the money to his religious organization, and that the RFRA guarantees him a right to do so? Even if the answer is no, it sure would be fun if someone were to try.

[Doug Huffman]

I was fortunate to be able high volumes of platelets for ten years, in sufficient volume and frequency to sustain a number of dependent patients at a research hospital. I am sure that a now progressive political organization made a fortune.

I went to the ARC blood center and was informed by a sign PROHIBITING GUNS that my presence was no longer desired - after 10 years, 500 wounds and 1,000 hours.

[Ilya Shlyakhter]

Hat off and much respect sir.

If I understand correctly, you stopped donating when you could not bring a gun to the hospital? May I ask, if you had a plan to fly somewhere to donate an organ, would you cancel the plan if the airline didn't let you bring your gun?

[Occasional Visitor]

I’ve been considering donating a kidney for quite some time. Before the pandemic, my tentative plan was to study abroad during this (current) academic year, then donate my kidney in summer 2021. I want use my summer off as a student to recuperate, rather than take unpaid time off work. Mainly, I’m worried that I won’t be able to take that time off after graduating, whether it’s due to student loan obligations coming due, my employer not granting me that time off, or just life growing even busier post-college.

I’m glad to see both the Mnookins are both recovering well! May it continue that way.

[Ilya Shlyakhter]

What of the teenager who sold his kidney to buy an iPhone, and is now bedridden for life? What safeguards are there to prevent such occurrences?

[Toranth]

I'm not clear why a "teenager" would be allowed to donate an organ, being a minor.
Unless you mean an adult, in which case it's that person's decision - just like an adult that gets a vaccine shot but has a bad anaphylactic reaction and ends up crippled for life.