Health Care

Lawsuit Highlights the Case for Legalizing Organ Sales

The lawsuit, by a man seeking to win the right to sell his organs, is unlikely to succeed. But the law he challenges causes thousands of needless deaths every year.


New Jersey resident John Bellochio recently filed a lawsuit challenging the constitutionality of the National Organ Transplant Act of 1984 (NOTA), the federal law banning the sale of kidneys and other human organs for transplant:

A New Jersey man found out it was illegal to sell his own organs after he attempted to do so when he was short on cash, and he is now suing the federal government.

John Bellocchio filed a lawsuit in Manhattan federal court against U.S. Attorney General Merick Garland Thursday for the right to sell his organs, The New York Post first reported.

Bellocchio's attorney, Matthew Haicken, told the Post in a statement "if John ever had the opportunity, he should be legally free to sell his kidney."

"I believe the current law is unconstitutional. People should have the right to do with their body whatever they want," Haicken said.

Much as I wish it were otherwise, I fear the lawsuit has little, if any chance of succeeding. Under current Supreme Court precedent, laws restricting economic transactions are subject only to very minimal "rational basis" scrutiny. I believe that precedent should be reversed, or at least significantly revised. But that is unlikely to happen any time soon.

But even if the lawsuit fails, perhaps it can call attention to the enormous harm caused by NOTA. The ban on organ markets quite literally kills thousands of Americans every year, who die because they cannot get kidney transplants  in time to save them. It also condemns many more people to years of needless suffering on kidney dialysis.

I summarized some of the issues at stake in this comment quoted in a story published by Fox News, which interviewed me on the subject of the lawsuit:

Many who are opposed to a legal market for organs argue that it would lead to the exploitation of poor people, but Ilya Somin, a law professor at George Mason University and adjunct scholar at the Cato Institute, said this concern is misguided.

"Donating a kidney is actually less risky than all sorts of other things that we allow people to do all the time, including poor people, like being a lumberjack. That's much more risky in terms of risk of death and serious injury, but no one says, 'Poor people shouldn't be allowed to be lumberjacks,'" Somin told Fox News….

Even though there may be some risks, Somin argued that the benefits of a legal market for organs far outweigh the costs.

"Whatever objection you have to this, whether it's a left-wing objection or right-wing objection or something else, you have to ask: not only is there some sort of a problem, but is it a great enough problem that we should be willing to consign thousands of people to death every year, and many more thousands to kidney dialysis?" Somin said.

I also agree with Bellocchio's attorney, when he points out (in the same story), that "'My body, my choice,' shouldn't just be for abortion." Legalizing organ markets is indeed an implication of the "my body, my choice" principle at least as much as being pro-choice on abortion (which I also am). In my view, the former is actually an easier case than the latter, since there is no even remotely plausible plausible argument that organ markets are somehow equivalent to murder.

I addressed "exploitation of the poor" and other objections to organ markets in greater detail here and here.

Paranthetically, it was interesting to me that the Fox reporter who interviewed me on this issue was so sympathetic to the idea of organ markets, even though much of Fox's socially conservative audience probably opposes it based on religious or "sanctity of the body" objections. On the other hand, increasing allowable compensation was for expenses incurred by organ donors was one of the Trump administration's relatively few good policies, as explained in this piece on the liberal Vox site, which rarely had much occasion to praise the Trump administration on other issues.

The organ market issue actually cuts across conventional partisan and ideological lines, with libertarians, economists across the political spectrum, and liberals concerned about increasing access to health care aligned against other left-wingers who fear that organ markets will lead to exploitation of the poor, and social conservatives concerned about protecting what they view as the sanctity of the body.

Over time, I hope more people will see the enormous life-saving and misery-reducing potential of organ markets. Even if they don't set aside their concerns entirely, they might begin to recognize that any such issues are not weighty enough to justify forcibly consigning many thousands of people to suffering and death.



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  1. When I think of “despicable, leftist, law professor,” I think of Ilya Somin.

    1. May I add “obtuse”?

      What Ilya fails to understand is that this could be compelled in bankruptcy and I like to think that even he isn’t a fan of *that*….

      Once we place a value upon our organs, they then become assets and that is where this will inevitably lead. It’s bad enough with paying for blood, which many states have banned for sound medical reasons involving the safety of the blood supply itself, and not even the well-being of the donors.

      Ilya does not live in the real world — and it shows…

      1. What about a corpse as part of the assets or of the estate? Can a corpse be taken in your book, instead of getting incinerated or fed to the worms?

        1. We can always take it to its logical conclusion as was demonstrated in the Larry Niven novel, The Jigsaw Man.

          The state can sentence you to death over any trumped up charges and in this example speeding tickets and in turn your organs are harvested for law abiding citizens. The bar for being sentenced to death just keeps getting lower and lower

          1. The death penalty is disappearing. Far more condemned people die of old age, now.

            1. That might change if people could benefit from it.

          2. There’s a meaningful case that riding a motorcycle without a helmet should be accepted as an explicit choice to be an organ donor. BASE jumping, too (as if any organs so procured would be useful to anyone.)

      2. “Once we place a value upon our organs, they then become assets”

        The main problem is one of valuation. Your kidneys are very likely worth $0 on the open market, since they’re useless to someone who is not a tissue match.

      3. What Ilya fails to understand is that

        I guarantee that not a single true thought that ever-so-rarely entered your head is something that Ilya fails to understand.

  2. Jurisdictions with presumptive donation of organ have transplant rates 10 times those next to them with similar cultures. In the US, Florida is an example, with a high rate of corneal transplants. People have to opt out of donations in such jurisdictions.

    Kelo refers to property, not to real property. It applies to chattel. These organs should be taken instead of transplanted to the worms as the dumbass lawyer policy is today.

    50000 productive, middle aged people with high levels of responsibility would be salvaged.

    This is obviously a task for the legislatures of the nation, and not for the courts. I would support a more assertive, more physical approach of the families and of the doctors of such patients to crush the lethal lawyer profession, killing 50000 patients a year.

    1. ” People have to opt out of donations in such jurisdictions. ”

      How does a dead guy opt out of anything?

  3. What is this sanctity of the body thing? Are Christians not allowed to donate organs? Or are they just not allowed to be paid for it? I don’t understand the difference in sanctity.

    Can they accept cookies and juice for giving blood? If so, everything beyond that is just about negotiating.

    1. “If so, everything beyond that is just about negotiating.”

      I don’t have strong feelings one way or the other, but in fairness donating things that grow back – hair, blood, plasma – are somewhat different than donating things that don’t.

      There’s the old joke that the chicken and the pig both give something up for the ham-n-eggs breakfast, but the pig is making rather a larger sacrifice.

      Donating blood is on the order of the chicken donating the egg, donating your heart is like the pig, and donating a kidney is somewhere in between.

      1. But donating bone-marrow is only a little bit worse for the donor than donating the egg is for the chicken.

        1. Donating eggs is trivial for the chicken. Only the unfertilized ones are taken and then not until the chicken has laid it.
          The human analogue would be a blood donation taken from a post-birth placenta.

      2. Absaroka, for all I know, pragmatists might make a case for the chicken, and its sacrifice of a presumably more-numerous progeny than the pig’s. Those kinds of arguments tend to discount to near-zero the immediate sacrifices of the animals themselves. Reproductive potential can always promise greater potential for happiness than any of us individually can claim.

        I think there is a bit of that kind of discounting going on in Somin’s argument, which seems arbitrarily to discount to zero the difficulty of confining market effects within the scope of easily replaceable organ donations.

        1. Chickens aren’t giving up progeny, because in general you keep roosters away from layers. They are doing what most of us do – producing something of value for our employers in return for wages.

          Admittedly, their wages are chicken feed, and the retirement plan is kind of harsh.

          But however you slice it, the pig gets the worse end of the deal.

    2. Umm, the cookies and juice are medically necessary….

      1. “the cookies and juice are medically necessary….”

        How many people have to die of juice-and-cookie-withdrawal before the rest of you understand how medically necessary they are?

        George Washington, in his final illness, wasn’t given any cookies after the physicians bled him, and he died as a result.

    3. RE: “What Ilya fails to understand is that this could be compelled in bankruptcy…”

      So pass a law saying “No court nor any other agency shall be permitted to compel anyone to donate any of his organs or tissues against his will, neither for bankruptcy, or as compensation for any tort or crime, nor as punishment, nor for any other reason.” Problem solved!

      1. All you’re going to do is push the compulsion underground.
        “Donate the kidney Big Tony needs, see, or something might happen to this happy family of yours. Capiche?”

        1. But that could happen regardless.

    4. Jehovah’s Witnesses are not even allowed to donate, or receive donations of, blood. A Jehovah’s Witness is expected to let himself die rather than receive a blood-transfusion.

      1. Well, they didn’t get AIDS…

        1. Unless you count the ones who did.

  4. Given the years of austerity that are likely to follow the completion of the fight against the virus, I find this argument particularly repugnant. It’s simply illogical to monetize a part of yourself; money is what allows you to survive; the only value money has is in keeping one in good kidney. But since this culture tends to make us think of ourselves as disembodied moral centers, the disordered calculus becomes how to strengthen that illusory center by making the more empirical aspects of our being into merchandise.

    Money (as opposed to moral justice) is not a good in itself, despite the popular perception to the contrary. Its only good is in strengthening the empirical aspects of our being. These common errors in thinking are the only things making it seem logical to sell off a bit of one’s stomach to assuage the hunger.

    Mr. D.

    1. Good point — we are heading into the second great depression — and if you look at the nonchalant approach towards employee safety in the first one, you can see where things are likely to go in this one.

      So being burnt to death by the steam in an accident involving an unsafe railroad locomotive versus being euthanized for your body parts — while the latter may be less painful, I don’t consider it any less repulsive.

      After all, the ChiComs currently do the latter on a daily basis…

      1. Austerity at the level of the recent southern European experience, I think. Though the Hollywood version of the times to come might result in more innovation in the law of Tortz.

        (Actual Law French spelling of the field, on occasion. Surprised it hasn’t caught on.)

        Mr. D.

      2. we are heading into the second great depression


      3. How many times did the Chicoms euthanize you for your body parts? And how do they get the heart beating again without a functioning brain stem? And WHY?

  5. It is strange that every, single person involved in organ transplant benefits from it, except the donor…

    The recipient, clearly benefits, as do his friends and family: Society as a whole benefits, the surgeons and staff on the transplant team benefit, the hospital(s) benefit, the insurance companies clearly benefit….only the donor (or his estate) not only doesn’t get anything, but loses….

    If it’s ‘My Body, My Choice’ season, then the donors should be able to sell their spare kidney or lung (or perhaps a piece of liver) and receive a negotiated sum for it… The market will establish that figure.

    But it is clearly not Leviathan’s business what people do with their spare sweetmeats…

    1. Doc. The lawyers are too stupid to solve this problem. Eventually technology of organ printing or growing will be the solution.

      In the meantime, do you support presumptive donation? That means people have to actively opt out of donation on a driver license, otherwise donation of the body is legally presumed.

      1. As long as people have a choice (presumptive or not) to donate, or not….I’m good.

        I have a real problem with the way many states donor laws are written: If you agree to be a donor, any and all parts of your body are up for grabs. Want to just donate a heart or kidney? Well, that’s what your family will be told is happening, and then they bury 150 lbs of scrap iron.

  6. It is interesting that sales of kidney is allowed in Iran and we can look to see how that system has worked. It should also be noted that with sales allowed there will also likely come regulation to insure that the compensation is reasonable. In a quick scan of papers on the Iranian system I noted there were requirement to follow through and see that donors health needs, following donation, must be provided. All this suggests that even if paid donations were allowed this likely would not be a free market system.

    Mr. Bellochio might want to consider a trip to Iran and see if he can sell his kidney there.

    1. Interestingly, that is why the vast majority of studies on kidney transplants comes from Iran.

  7. I’d say no human sales to anyone, but libertarians think it’s ok.

    1. You should leave your brain to a university for research. Maybe they can figure out why you’re so dumb.

    2. That’s exactly the discussion. Now why do you want to keep banning sales?

      1. I don’t want to be worth more money to somebody as a pile of spare parts than as a living, breathing patient.

  8. Donating bone-marrow for a life-saving transplant is less dangerous, less painful, less demanding of hospital time (average), less permanently damaging, less injurious, and less life-changing, for the donor, than childbirth is for the woman who gives birth.

    1. Which is true and irrelevant.

  9. Unfortunately, some practices are too prone to abuse to allow. And history has demonstrated it. Slavery, selling of children, and the commoditization and selling of human organs.

    Because these allow the commoditization and selling of humans, or pieces of humans that cannot be regrown, they are extremely prone to abuse in a way that cannot be rationalized. We’ve seen in the modern era how this works in China. Politician dissents are jailed then executed for their organs, which are then sold.

    Allowing the sale of these organs, like the sale of children, like selling people into slavery, all are part of the same road. And it is contrary to the ideals of freedom and liberty for people.

    1. That doesn’t make any sense. Are you seriously claiming that involuntary servitude and involuntary organ harvesting are the same as voluntary organ sales? But at the same time somehow different from voluntary employment and voluntary organ donations?

      And then claiming that these bans have more to do with “the ideals of freedom and liberty” than allowing those people to make their own choices?

      1. “Are you seriously claiming that involuntary servitude and involuntary organ harvesting are the same as voluntary organ sales?”

        Yes. Think about it this way.

        Why shouldn’t you be allowed to voluntarily sell yourself into slavery? It’s your body, your choices, why not? It’s voluntary. Why shouldn’t you be allowed to sell off your children? They’re YOUR kids, aren’t they? Why shouldn’t you be able to sell off your liver or kidneys? I mean, they’re your organs.

        The reason is, it’s too prone to abuse and damaging to liberty in the long run.

        1. People are not organs, for a start. And, despite certain silly people, children most certainly are people.

          There’s a lot I disagree with in your post, and so here’s a poorly organized response:

          Slavery is the act of using violence to force another person to work as you demand against their will. Organ harvesting is the use of violence to remove essential portions of another person’s body against their will.
          Neither of these is the same as a voluntary act.

          You’ve also failed to explain why money changing hands somehow turns organ donation (which I assume you think is OK, although you haven’t explicitly said so) into a bad thing? Or do you think any form of organ donation is a bad thing, even unpaid?

          People have certain rights just for being people. Exactly what those rights are is a matter for debate, but this is the first time I’ve ever heard that parts of a person have rights independent of the person they grew from. Under what basis are you comparing sales of body parts to the sales of people, since these are almost always treated as separate categories?

          In an aside, does your claim also apply to sales of hair? I don’t think you mean for that.

          You seem to have decided that organ sales are bad, and then are groping backwards to find a justification. Let’s try to start at a lower level, then: why, exactly, do you think the sale of organs would be “too prone to abuse” or “damaging to liberty”? What abuses? What evidence do you have of these abuses happening, or why do you think they would happen in voluntary transactions in the modern world?

          1. Toranth, you and Armchair seem to divide over the question whether under conditions of privation, money becomes useful as a tool of compulsion. That is a premise libertarians must perforce reject, or largely abandon their ideology. Some folks (not libertarians) think history shows that valorizing money-in-relief-of-privation has not worked out well as a social system. Too much encouragement of privation, to empower the money.

          2. “Slavery is the act of using violence to force another person to work as you demand against their will.”

            Yes, and what would happen were a person to sell themselves into slavery, spend the money, and then want to get out of the contract? Would the courts force a person to fulfill the contract by threat of force?


            1. What happens if you make ANY contract, take the payment, but then refuse to perform the work?

              It’s called “Due process of Law”, and it isn’t the first time I’ve heard debt repayment compared to slavery. But it’s an old and tired misdirection.

          3. So, a few points.

            1. When we’re talking about organ sales, we’re talking about those organs that don’t easily regenerate, if at all. Kidney, Liver, Heart, etc. We’re not talking about plasma or hair.

            2. One reason why slavery (and selling oneself into slavery) is looked at as a negative is the PERMINANCE of the situation. No one objects to selling your own labor (IE working). It’s the situation where you sell your labor forever without any way out that is abusive.

            3. Likewise, the situation where organs that are critical for life that are sold, organs that cannot be regenerated, is a permanent situation. The organ is gone. It’s not coming back. Like slavery, it’s a permanent situation. And there can be major health implications.

            4. Money in this situation (as opposed to donation) acts as a major coercive influence, especially on the poor. It is, in essence, a transfer of “health” from the poor to the rich. And the pressures can be enormous. Just “pay off your debt” for a kidney. Or a heart. Or sell a child.

            5. In addition, the ethical implications are enormous.

            1. Slaves could be freed, and many were. Does that lack of permanence somewhat make it better?
              But organ selling and slavery are not the same thing. You keep trying to force this analogy, but the very foundation of it is inaccurate. It’s an old deflection, but it is irrelevant to this topic.
              Please stop.

              The argument about money as coercion is also an old one, but it applies to anything, be it organs, sex, stand up comedy, or professional football. As the joke goes, “We’ve established what you are, now we’re just haggling over the price”. Living donations to strangers may be for social acclaim, religious beliefs, or any number of other motivations. Why are these forms of benefit acceptable, but money not? Would it be acceptable if the payment was in something other than cash?

              Payment is already allowed, up to certain limits, to provide “recompense” – determined without reference to the actual monetary costs of donation. Is this acceptable to you, because the payment is small enough?
              Exactly what limit, would be allowed? Just monetary expenses? What about inconvenience, or lost work, or coverage for future medical complications from the loss of the organ?
              What about posthumous sales? Can I arrange to have my heart or kidneys sold after I die, say to cover my debts, or benefit my family? It’s not like there would any harm to me in that, much less any “permanent” one.
              How does the temptation, excuse me, “coercion” apply any less to risky jobs? Should poor people be denied the right to take high-risk jobs like logging, fishing, trucking, or lawncare? The risk of permanent medical problems by performing those actions is quite high, which is why the pay is higher.
              As Mr Toad said below, should it be made legal for for only rich people to sell organs? Is it still coercive if I don’t need the money, but merely want it?

              As for enormous ethical implications, well, sure. Less than abortion, but someone we manage to have that. Less than genetic modifications, but that’s a topic that came and went.

              And, again one last time, children are people, and despite your frequent attempts to distract, we are not talking about slavery. Organ selling is not slavery. Please stop trying to use guilt-by-association on these two different topics.

              1. Let’s address one of your points, because it’s particularly relevant.

                “Can I arrange to have my heart or kidneys sold after I die, say to cover my debts, or benefit my family? It’s not like there would any harm to me in that, much less any “permanent” one.”

                OK, let’s assume that happens. You can sell your heart after you die. What happens next? You have a rich guy come forward. He needs a new heart. Luckily, you happen to be a match. One problem…you’re still alive. But you can fix that. You can kill yourself. And then you can donate your heart posthumously to this rich guy. He’ll offer a very substantial price for your heart. And your current debts…he owns many of them…will be wiped out. But if you DON’T choose to kill yourself, well… Some of those debts will need to be called in.

                Is there any ethical problem with this in your opinion?

                1. Does life insurance horrify you?

                2. Oh, the man is demanding I kill myself, or somehow these massive debts I have that he also somehow controls, will be “called in” (because obviously, massive debts never have payment schedules)?
                  Well, I declare bankruptcy, and he goes to jail for blackmail then dies. Problems solved!

                  This hypothetical is like the “Do you torture someone to get the location of a bomb” type irrelevant questions asked in freshman highschool philosophy classes. It completely ignores that the real world, and real people, are vastly more complicated than you can posit in a question like this.

                  1. Ah, idealism. The concept that someone won’t be pressured into killing themselves for their organs would never occur to you.

                    The world doesn’t work that way.

                3. “OK, let’s assume that happens. You can sell your heart after you die. What happens next? You have a rich guy come forward. He needs a new heart. Luckily, you happen to be a match. One problem…you’re still alive. But you can fix that. You can kill yourself. And then you can donate your heart posthumously to this rich guy. He’ll offer a very substantial price for your heart. And your current debts…he owns many of them…will be wiped out. But if you DON’T choose to kill yourself, well… Some of those debts will need to be called in.”

                  what happens to my debt when the guy who holds it dies from heart failure?

            2. Well, you’re mostly right, but while a donated kidney does not grow back, the kidney-tissue does. The other kidney hypertrophies, and in not too long a time, all the lost kidney-tissue is restored. That doesn’t prevent a problem if you get cancer on that one remaining, big kidney, or injure it, and have to have it removed, but, you don’t suffer reduced life-style forever from donating a kidney.

              Also, normal healthy people have about five times more kidney tissue than they need. If you’re young and healthy, you could donate one kidney AND half of the other one, and not feel the difference (after you finished healing from the surgery).

  10. So the problem is we need transplant-organs, and people want to sell their spare organs, but we’re worried that poor people will be exploited? Here’s a simple solution:

    Allow some people to sell their spare organs, but only if they’re not poor people. So you’re allowed to sell one of your kidneys, or a lobe of liver, or some bone-marrow, for money, but only if you can show that your net worth is greater than a certain minimal threshold amount. Like, maybe, only let people who have assets worth at least half a million dollars donate organs for money. That way, poor people won’t be exploited.

    Maybe we should also impose the same requirement on people who want to work as lumberjacks.

    1. Or, alternatively, Mr. Toad, go ahead with organ markets, but peg the prices. Price to be paid to the donor of a kidney? The amount a healthy younger adult worth at least $50 million will need to be paid to induce a donation. At least that way, privation won’t be the driving agent in the moral calculus by which the price is set.

      I don’t think libertarians who want to ignore the risk of privation as a factor in organ sales markets are necessarily moral nincompoops. I do think they tend to be ideological nincompoops, and that crowds out capacity for moral reckoning.

      1. The US government prices a human life at between $6 and $9 million, depending on the agency and purpose.
        Economists price it about $1 to $2 million, using risk/cost models.

        Going with the high end, do you think $10 million for a heart would be a good price?
        Losing one kidney has no direct measurable impact on life span these days. Should the price be close to $0, then, as the fraction of a life lost?

        Or, just maybe, people can make their own decisions about the value of their organs – even if they make bad decisions?
        It seems like the refrain I’m hearing from those objecting is “poor people are too dumb to always make good decisions, so we must take up the Great Moral Burden of making sure they are never allowed to potential make any decision I would consider bad.”
        I mean, Prohibition was an attempt to do that – and for the same sorts of reasons – and we know how that turned out.

        1. In the long run, and probably in the medium-to-short run, this whole discussion will be moot, because we will learn to grow transplant-organs in the lab, from the patient’s own cells. That’s why Larry Niven’s “organlegger” stories and novel(s) are not as realistic as he seems to have thought.

          It’s funny, him overlooking this. It reminds me of Arthur C. Clarke, who foresaw the computer-age, but thought it was gonna be one very large computer mounted on a satellite, with a dedicated crew of resident astronauts to change the computer’s vacuum-tubes when they burnt out.

          1. In a century or so, yeah, custom grown organs will probably be common.
            Part of Niven’s oversight was that the rest of medicine overtook the supposed benefits of organ replacement. We now know that replacing livers/kidneys/hearts on demand still wouldn’t let people live to 200+ years without other assistance. It’s also why, for all the drama people have with opinions on this topic, it’s a fairly minor issue overall – there simply isn’t that large a market for it.
            If we had 100,000,000 people worldwide clamoring for kidneys, plus another billion wanting new livers, then I darn well bet we’d see the ethical concerns quietly swept aside by politicians and doctors.

            Of course, the wierdest Niven mis-prediction to my mind is from Oath of Fealty – where people have radio-neural interfaces to a strong AI, and still use 300 baud data transfer rates.

            1. LOL

              It’s pretty funny what futurists overlook.

              John Brunner’s Stand on Zanzibar is a great classic, but (as I recall) he seemed to think that the overpopulation problem was living-space, rather than food. An embarrassing error for him.

            2. I’ve never been able to get through any of Larry Niven’s novels. I lose interest. I like the short story “Neutron Star” (of course), but I think my favorite of his stories is “Death by Ecstasy”, where the victim sits in a “happiness-machine” with a short wire, so he only feels the happiness while he stays close to the machine, so he can’t summon the will-power to go get water or food, and he sits there chuckling happily to himself about the fact that he’s going to die of thirst and how great he’s gonna feel while it’s happening.

            3. “Of course, the wierdest Niven mis-prediction to my mind is from Oath of Fealty – where people have radio-neural interfaces to a strong AI, and still use 300 baud data transfer rates.”

              What’s the mis-prediction here? That people DON’T have connections to an AI?

              1. It’s not Niven, but William Gibson has his cyberspace cowboy hiding out hoping to fence a few stolen megabytes of RAM in the early chapters of NEUROMANCER.

  11. I don’t really see a problem here.
    All this guy has to do is identify (for a time) as a woman, then “abort” a kidney. One “clump of cells” is pretty much the same as another, right?
    His/her body, his/her choice. Settled law.

    1. How long have you been identifying as a nimwit?

  12. Not all things are a good idea to commoditize.

  13. A basic limitation of classic libertarianism is its false belief that government is the only entity that can have power over people and if it were just limited enough, people would be able to bargain for what they want as complete equals.

    The truth is that money is a form of power, and allowing everything to be for sale enables the powerful to have ever increasing control over the powerless.

    Just as we see that arbitration as practiced is almost never a bargain between equals and almost always a contract of adhesion imposed as a condition of holding a job or obtaining basic necessities on people who have no realistic ability to say no if they want ro participate in normal life, so contracts for the sale of internal organs will not be as freely entered into as Professor Somin imagines them to be.

    1. I think that more sophisticated libertarians don’t actually think that zero-government or minimal-government would be perfect. I think the argument is that it would be better than other forms of government. I myself don’t agree with them, but it’s a LITTLE bit better than the badly-dressed stunted-intellectual-growth types who think that government is the ONLY source of suffering, wrongdoing, or coercion.

    2. “The truth is that money is a form of power, and allowing everything to be for sale enables the powerful to have ever increasing control over the powerless.”

      This is one problem. Another is that other forms of power exist, and they will also come to be used to exert power over the powerless. If the head of a foreign drug cartel needs a kidney and you are a tissue match, how long will it be until he has two kidneys and you have none?

      1. This is one problem. Another is that other forms of power exist, and they will also come to be used to exert power over the powerless. If the head of a foreign drug cartel needs a kidney and you are a tissue match, how long will it be until he has two kidneys and you have none?

        I’m not sure what the legalization of organ sales has to do with that problem. To be sure, I’m not an expert on the subject, but I wasn’t aware that heads of foreign drug cartels were generally punctilious about obeying the law.

  14. I agree that NOTA is bad policy, but what is the constitutional hook? Justice Douglas’ opinion in Williamson seems convincing to me, as it did for the other eight justices.

    1. You might hang such a decision on privacy rights, or go ahead and “find” a right to conduct commerce in the tenth.

  15. ” The ban on organ markets quite literally kills thousands of Americans every year”

    In the sense that it literally kills none.

  16. The problem with assuming that everything has a price (and should have a price) in money is that not everybody starts out with the same amount of money. You made a million? Good for you, go spend it well. Someone died and gave you THEIR million? Sorry, that doesn’t mean your life is worth a million.

    Once you start letting people pay to cut into the organ-transplant line, the people who’ve been waiting their turn start getting cheated.

    1. First, this begs the question. They’re only getting cheated if one first posits that first come first served is the appropriate rule. If there’s a house for sale and I make a $750,000 offer, and then two days later someone makes a $1,000,000 offer and the homeowner agrees to sell to him, I wasn’t cheated just because I was first.

      Second, you misunderstand Prof. Somin’s basic premise, which is that there is a shortage of organs to be transplanted because we aren’t allowed to pay for them. If there were a fixed number of organs, then the cutting in line metaphor might have some force. But his whole point is that allowing donors to be compensated will increase the number of donors, allowing more people from this organ-transplant line to be served.

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