Creating an organ market

[drs. W.E. van de Griendt (Universiteit Twente, faculteit]

REPLY TO: D66 at nic.surfnet.nl

Dag mensen,

onderstaand bericht kreeg ik binnen via een andere emaillijst. Gezien de
discussie in Nederland en de controversiele mening die in dit stuk wordt
gegeven, leek het me wel leuk als anderen er ook kennis van konden nemen.

Bij deze.

Met vriendelijke groet,

Wim van de Griendt

-----Original Message-----
From: lloyd cohen
Sent: woensdag 23 maart 2005 6:48
Subject: creating an organ market


As some of you amy know I have been involved for the last 15 years in an
effort to bring about financial incentives for organ donation. Thusfar with
no success. I have decided to change tactics and raise the stakes. Attached
you will find a paper I am publishing shortly.I copy below the opening
paragraph of the paper. I send this on to you in the hope that some of you
may be sympathetic with the effort and can find some way to support, join or
publicize this effort.


Lloyd Cohen
George Mason University
School of Law



Directions For The Disposition Of My Vital Organs

By Lloyd Cohen*
*  Ph.D., J.D. Professor of Law, George Mason University School of Law. I
gratefully acknowledge the financial support of the Law and Economics Center
at George Mason University School of Law and the able research support of my
research assistant Justin Stone.

C 2005

Directions For The Disposition Of My Vital Organs

I, Lloyd Robert Cohen, do hereby declare that in the event of my death I do
not give permission for any of my major organs (i.e., kidneys, heart, liver,
lungs or pancreas) to be harvested from my body unless at least one of the
two conditions specified below is satisfied:
1.	that the harvested organ be designated for transplantation into my
direct descendent, wife, mother, aunt, first cousin or any of their
descendents or,
2.	that all costs attendant to the preservation of my body and the
harvesting           of my organs be paid by a third party and:
a.	that the sum of at least eight-hundred sixty four dollars and
twenty-seven cents ($864.27) be paid to my estate in exchange for each
organ, or,
b.	that the harvested organs be designated for transplantation into a
member in good-standing of the Lifesharers list entitled to receive the
organ.

Should any member of my family, in contravention to the wishes expressed in
this document, permit transplantation of any of my major organs, the amount
that they would otherwise inherit from my estate by devise or intestacy
shall be reduced by fifty-thousand dollars ($50,000).
Well there you have it. My organs will likely go to waste unless my estate
gets paid. I think the amount I am asking for these irreplaceable
life-saving organs is rather modest. I hope that it will pay for a nice but
not extravagant party celebrating my life. I am asking for a sum that will
not unduly strain the budget of most recipients. It represents a bit more
than 1% of the initial cost of a renal transplant and considerably less than
that for the other organ grafts. If it is too much of a financial strain I
would hope that there are more than a few generous souls out there who could
pick up the tab for these sick and dying people. Ask no more of me and my
family. You are not catching us at a particularly generous moment. I will
have just suddenly lost my life and my family will have suffered the shock
of having a husband and father ripped from their lives. We are already
supplying the indispensable component, and at a very modest price at that.
If no one is willing to step forward and pay the fee it suggests that the
great concern many express for those suffering from organ failure is mere
self-serving pretense.
While I am not being flippant perhaps I am not calculating properly. What if
everyone similarly situated were to ask for the same payment for their
organs? Would that overwhelm the capacity of private donations?  The number
of suitable cadaveric organ donors is probably less than 25,000 per annum.
So if each one were to optimistically provide four organs we are talking
about 100,000 organs. At $864.27 a pop that comes to $86,427,000 a year. I
think private donors could easily pick up the residual tab not paid by the
recipients and their families. And if not, surely that amount can be found
in the federal budget to save the lives of 100,000 people. Note as well, as
I and others have argued elsewhere that in fact the availability of these
organs would likely yield a larger saving from other portions of the Health
and Human Services budget.
Why?

But what is the point of these Directions For The Dispostion? Surely my
family is not desperate for the money and given that the payment I require
is illegal it is doubtful that the conditions will be satisfied such that
they can collect. Nor I am so egotistical as to think that my wishes for the
disposition of my remains are something that the DePaul Law Review should
think valuable enough to grace its pages. So why after years of effort
trying to encourage reform to increase the supply of organs do I now
withhold my organs from transplantation?
With all due respect to Tom Peters  and David Kasserman  (two other
contributors to this volume) there is really very little more to say of
importance in favor of employing a market incentive to increase organ
donation. The proposals are varied and nuanced. The arguments in favor are
simple, clear and overwhelming. The opposing arguments are weak and fatuous.
So the puzzle is why we have had so little success in achieving our goals.
Why despite more than fifteen years of effort do we still live under a
regime that condemns people to death and suffering while the organs that
could restore them to health are instead fed to worms? And what more can we
do to create a system of market incentives that will end this tragedy?
The core idea that lies at the base of the various market based reform
proposals seems so obvious and incontrovertible as to be banal. It is that
the principle reason that we manage to recover less than half the
transplantable organs from cadavers is that those who are asked to donate
receive nothing in return, and as a corollary, if they were offered a
substantial material reward a significantly larger proportion of organs
would be made available for transplantation. It is almost embarrassing to
have earned some renown for championing a proposal based on this
ridiculously obvious proposition.
Reform proposals based on the notion of harnessing self-interest have been
around for more than two decades. And on a regular basis new variations are
offered in the apparently futile hope that one will catch on. They feature
numerous subtle and not-so-subtle differences in the form and path of
compensation. Some are directed at the next of kin and offer compensation
for their surrendering the organs. Others would offer compensation to the
living person for the pledge to donate his organs at death. In the latter
case compensation can come in one of three generic forms. Either you
compensate the donor's estate or designee after the organs are harvested, or
you compensate the donor financially at the time his pledge is made (perhaps
a reduction in health insurance premiums), or you compensate him in kind by
giving him priority to organs if he needs a transplant.
I will not recite for you the full catalogue of proposals nor argue for one
in particular. For that is not what this article is about. I entered this
arena sixteen years ago proposing an options or futures market as the best
device for alleviating the shortage and relieving suffering. I still believe
that is the overall best solution. I have over the years written a book and
perhaps a dozen articles promoting that program,  I have spoken before a
variety of bodies including the plenary session of the World Transplant
Congress and the Joint meeting of the annual conference of U.S. Transplant
Surgeons and Physicians  and I have appeared on Sixty Minutes, the BBC,
Australian television, and too many other television and radio shows to
remember. Oh yes, and I even met individually with senior aides to perhaps
half a dozen leading Republican Senators. And what has been the outcome of
all of this? Well aside from a wonderful trip to Paris for my family in
1992, nothing! And it is not merely that there has been no political support
for the market I proposed; there has been no progress for any market.
While, I like most of those who wish to marshal self-interest in the cause
of increasing th supply of transplant organs, have our own favorite solution
we tend to be ecumenical in our efforts. For example, while I still think
that an options market is the best solution I have added my name and support
to my co-panelist Dave Undis's Lifesharers program. And he has been
broad-minded as well. We along with Tom Peters and David Kasserman  are
members and supporters of a group that goes by the acronym AHCSIOS organized
by Harold Kyriazi, a scientist at the University of Pittsburg. That group is
trying to promote a "rewarded gifting" proposal that would offer
remuneration to next-of-kin in exchange for a right to harvest organs from a
deceased loved one.
Unfortunately, and with all do respect to and support for Dave Undis, Tom
Peters, David Kasserman, and Harold Kyriazi, I see no progress and am not
optimistic in the near term. So the question I return to is why have we been
so unsuccessful for so long?  How can it be that the shameful system under
which so many needlessly suffer and die continues in place without the
slightest indication that it is withering and tottering under our assault.
Now, it may seem to you the height of arrogance and immature petulance on my
part to think that I must get my way in this matter. I know I take the risk
of presenting myself as the very embodiment of self-centeredness in assuming
that the world is bad and wrong and I am good and right. But give me a
moment and I will make an effort to persuade you that indeed it is
foolishness, cowardice and evil which bar the path forward, rather than some
unrecognized blunder or failing in our proposals.
Before we reach the conclusion that is the venality and stupidity of others
that bars the path the principal of Occam's Razor demands that we dispose of
more mundane and banal explanations. Well, perhaps banal is the wrong word.
After all as Hannah Arendt told us in Eichmann in Jerusalem, evil-though we
should have known it all along-is thoroughly banal. Nonetheless, I will try
to demonstrate to you that the conventional explanations all fail.
Impractical?

The first objection to these various proposals that must be overcome is that
for one reason or another they are impractical. Either they would not be
successful if enacted or would be too costly.
Let us begin with the question of likelihood of success. First, we should
note that the epistemological burden of our opponents on this question is a
heavy one. That is, it will not do for them to merely argue that a market
might not be successful, or even that it probably would not work. For unless
they could establish that there is some great cost to trying and failing,
their argument must be that it is almost certain to fail.
Some times I have heard this objection put in the form of the assertion that
our proposals are without empirical support. Surely there is some cynicism
in this accusation.  The obvious, perhaps the only, way to resolve the
empirical question is a market test.  Let us try one or several of these
market proposals somewhere for a few years and see if it works.  But of
course we can not try it because such a market is illegal.  Well then repeal
the law.  No!  No!  They respond we must not repeal it until we have
empirical support.
When I first heard the demand for empirical support and the claim that a
market solution would not be successful I was frankly caught off-guard.  In
my first articles on this subject I thought that the practical virtues of a
market were so apparent as not to deserve extensive discussion.  It did not
occur to me that there would be a serious question raised about whether a
market would increase organ retrieval.
Given that market rewards are almost everywhere the most effective incentive
for eliciting the provision of goods and services, the burden of proof in
the debate over the efficacy of an options market is on the other side.  It
is they who must persuade you that there is some peculiar reason why in this
market, unlike virtually all others, permitting price to rise above zero
will not increase the quantity supplied.  And I can not imagine what
sensible argument they might offer.  There is, after all, nothing very
economically peculiar in the proposition that if we offer people a fairly
substantial amount of money for something that is of virtually no value to
them (a cadaveric organ), that more of them will surrender it than currently
do so. Notwithstanding that the burden is not mine but my opponents, I will
offer a few arguments on the efficacy of a market.  First, let me note that
the mere possibility that a market might not work in the sense of increasing
supply is never a sound argument for prohibiting it.  If we are to prohibit
it, it should be because it presents some substantial downside risk such as
that it might decrease supply.  Is there such a risk?
Some critics assert that a market might dissuade donation.  Their fear is
not totally baseless.  Some markets, such as "rewarded gifting" payments to
next of kin, could conceivably discourage some people from donating.  Next
of kin have custody, not ownership, of the decedent's body, and thus have no
moral right to profit from their decision as to its disposal.  My point is
not that you or I believe that they have no right to profit, but more
importantly that they may believe that they have no such right.  Many next
of kin would therefore be disinclined to accept payment.  At the same time,
if money were offered for agreeing to donate some next of kin might feel
foolish donating and not receiving payment.  So, it is at least conceivable
that some families who now donate would decline to do so in a world of
"rewarded gifting."  On the other side however there is the far more
powerful tendency towards increased donation by those not dominated by such
moral squeamishness or willing to simply decline payment when offered and
donate nonetheless. But, I could be wrong. It is in the end an empirical
question and thus leaves open the possibility of a net reduction in organ
retrieval.  But, this far-fetched disincentive effect of a market only
applies to the behavior of next of kin, and I reiterate, next of kin play no
decisionmaking role in an options market.  I have heard no sensible reason
why anyone who would now sign an organ donor card would decline to do so if
informed that they could in the process also specify a designee of their
choice-which of course could be a charity-that would receive a substantial
sum of money as a consequence.
Even if an organ market can do no harm in the sense of reducing supply what
further arguments can I offer that it will increase supply? While each
culture is different, we can draw some inferences from various organ markets
elsewhere in the world.  I hesitate to compare a market in cadaveric organs
with a market in organs from living donors.  Clearly the sacrifice on the
part of the vendor is incomparably greater if the organ is to be taken when
the vendor is alive. But, if there is a thriving market in organs from
living donors in India, Turkey, and various other countries then it
certainly bodes well for a market in cadaveric organs.
The very reason that our opponents have such faith in altruism provides
further support for the efficacy of a market.  They believe that altruism
should work because transplant organs are of no value to the dead and of
enormous value to the ill.  Whatever this vast disparity should say about
the power of altruism it speaks volume about the power of markets.  Markets
are most effective at transferring goods from low valued uses to high valued
ones.  And, I can think of no object that fits this category better than a
cadaveric organ.
Can we learn anything from the limited American market in cadaveric organs.
It is true that it is illegal to buy and sell organs, but, it is legal,
indeed encouraged, to donate them.  At the zero price currently paid to
organ donors we have a substantial but far less than a satisfactory amount
of organ donation.  While the rate of donation has not been allowed to vary
with price, it has varied depending on whether, and how, people are asked to
donate.  Many potential donors who would otherwise decline to donate can be
badgered, bullied, embarrassed, cajoled and perhaps even persuaded into
donating.  Thus it is fair to infer that potential donors will respond to
more substantial financial incentives as well.
A second use of the limited observation we have of the supply curve provided
by the current zero-price market requires a thought experiment.  Imagine
that the price of organs is not raised above zero, as I propose, but lowered
instead.  Despite our great respect for the generosity of those people who
currently donate, is there any doubt that if donors were charged a fee of a
mere $500 for each organ they donate that most of the current supply would
dry up?  So, if on one side of the current zero price the supply curve is
highly responsive to price is there a good reason to think that on the other
side of a zero price supply is totally unresponsive?
Ultimately I believe that virtually any of the proposed markets will be a
resounding success because those who refuse to donate do not have a strong
objection to having their organs harvested.  Under the present regime they
are being asked to assume some real, albeit limited, psychic costs without
being offered any compensating benefit.  The simplest, most direct, most
efficient, and least expensive way to induce them to make the sacrifice is
to compensate them.  For those who remain skeptical there is only one piece
of evidence that will persuade.  Try it and see!
Perhaps I should have anticipated that some would object that a market would
be ineffective.  The prospect of an effective organ market places our
opponents in a terrible bind.  A market that would recover the many vital
organs that are now being buried and burned would be the salvation of
thousands of innocent patients who now must suffer and die.  What great
moral principle condemns such a beneficent market?  As against the saving of
innocent lives, poetic statements about the dignity of human life being
degraded by commercialism would be revealed as the empty moral pieties of
armchair philosophers incapable of a reasonable balancing of human needs.
Our critics would therefore prefer to believe that a market would not work,
and take the unjustified epistemic position that we must prove that it will.

Shallow?

At times our opponents cast their objection to financial incentives in terms
of the shallowness of a market. They are right; a market is a shallow
solution. Its efficacy does not rest on some profound understanding of the
human spirit. The pretense of the critics is that depth is to be prized and
shallowness disdained. They are wrong and I think in their heart of hearts
they know it.  Weighty tones and dewy eyes are not a substitute for good
reasons. The tool we bring to bear, economics, is a shallow one. And that is
its virtue!  Our opponents make a simple error: they assert a truism and
follow it with a non sequitur.  The truism is-and here I quote myself-"The
human body is a peculiar thing.  At the moment of death it is transformed
from the exalted state of the corporeal incarnation of the human spirit to
the irreversible status of a cadaver.  It is understandably difficult for
people to immediately recognize and accept such an awesome transformation."
The non sequitur is that because feelings about the human body and its
meanings, alive or dead, have a root deep in human consciousness that we
therefore can not motivate people's behavior with regard to it by something
as base as financial reward.
In simultaneously having deep meanings and being subject to base economic
force, transplant organs are not unique; indeed they are not even very
special.  Consider human waste.  Human beings have a deep-rooted, not fully
rational, antipathy to excrement.  Despite the deep root of this antipathy
you can, for a not exorbitant sum of money, hire people to empty your septic
tank.  And, we would think it most odd were an ethicist-medical or
otherwise-to suggest that because the antipathy to excrement has its root
deep in human consciousness that we must terminate all paid drainage of
septic tanks and instead rely on altruism to provide this service. So too
with transplant organs.  Yes our approach is shallow, and I am proud of that
aspect of it.  There is neither necessity nor virtue in delving deep into
man's consciousness to find and change the root cause of uneasiness about
organ donation.  Offer compensation and people will sell.
Ideologically Driven? The Pot Calling The Kettle Black!

Then there are those who accuse us of being ideologically driven? This
reminds me of the saying that he who sees fault in his neighbor would do
better to cast his glance upon himself.  Our proposals are designed to be as
ideologically uncontroversial as possible.  Though I am a libertarian, my
goal in formulating my options market proposal was to increase the supply of
organs not of liberty.  Indeed, I sacrificed liberty to achieve political
acceptability.  How so?  Some are concerned that the poor will be coerced to
sacrifice too much, my options market does not permit it; others are
concerned that the rich will acquire organs ahead of the poor, my market
does not require it; I am concerned that mothers not be asked to traffic in
their dead child's flesh, my market does not entail it.
To the extent ideology is evident in my proposal, it is the ideology that
the laws of social science are generally applicable.  That is to say, my
argument that raising the purchase price of organs above zero will produce
more organs does include the belief that supply is responsive to price.  But
such a belief is as grounded in observation and rational thought as the
belief that the earth revolves around the sun.  A critic who labels a
proposal based on either of these beliefs as "ideologically driven" reveals
more about himself than the proposal he is criticizing.
The ideology is not with us but with my opponents.  They are so driven by a
loathing of markets, that no market, however many compromises it
incorporates to answer wealth based or other ethical objections, can ever
satisfy them.  They simply can not abide the notion that even with regard to
cadaveric organs,--which, after all, are a uniquely human gift, of enormous
value to the recipient, and valueless to the decedent,--that altruism should
prove clearly inferior to self-interest as a motivation to donation.  Driven
by this fanatical ideology they would sacrifice the lives of thousands of
sick patients.
Pious Empty Moralisms

Finally, when all the practical arguments are answered we get into the true
currency of the "ethicists" who oppose us, pious intellectually empty
moralisms.

Consider the following typical argument, offered by a Dr. Freedman, against
permitting a market in organs:
That which cannot be bought and sold is by definition
priceless.  By removing human life and health from the
marketplace, we affirm this principle which underlies much
contemporary thinking about ethics: the intrinsic,
ineliminable, ineluctable value of human life and health.
This affirmation is itself a process which can and should be
constantly repeated without ever exhausting its point.

Despite Dr. Freedman's eloquence and evocative power I confess to not being
able to decipher this passage sufficiently to reach a comprehensible core.
What does it mean to say that life and health are priceless?  Does the
author mean that they are of a nature that they literally cannot be bought
and sold?  If life and health are priceless in that sense then something
very peculiar is going on when people shop for medical services, drugs, and
equipment.  Most of us believe that the medical goods and services we
purchase will on balance improve our health and extend our lives.  Are we
mistaken?  I think not.  Freedman must mean something else when he says that
life and health "cannot be bought and sold."

Perhaps Dr. Freedman means that they should not be priced rather than that
they cannot be priced, that life and health should not have their sacred
spiritual character soiled by contact with the profane market.  But if that
is his position then why doesn't he follow the argument to its logical
conclusion?  Why does he limit his concern to transplant organs?  After all
transplant organs are but the tiniest fraction of the vast range of goods
and services that extend life and restore health.  Why doesn't he argue for
outlawing the remuneration of physicians, nurses, pharmacists, hospitals,
etc?  After all, the life and health of the sick and injured depends on the
service of these people.  Does it not profane life itself that medical
practitioners are paid for their services?

On the other hand, perhaps Freedman does not mean that life and health
cannot be priced or should not be priced but rather that they are priceless
in the sense of being of infinite value. If that is the case then his
position on paying for organs is a complete non sequitur.  Indeed, the logic
of his position is that we should spare no expense in our willingness to
acquire organs for transplantation; we should be willing to pay small
fortunes for an additional organ.  Further, if life and health are of
infinite value then logic would seem to demand that all things of finite
value should give way in the face of preserving life and restoring health.
I am surprised that he doesn't argue for a prohibition of all discretionary
spending not related to the preservation of life and health so that all of
society's resources could be directed to that singular and incomparably
important goal. And how does one choose between lives, e.g., life support
for the elderly and infirmed or pre-natal care.

The quotation from Dr. Freedman is one of a class of "moral" objections to
markets in general and to this market in particular that bear the
infelicitous name of "commodification."   Let us examine this class more
closely to see if it has any sensible application to an organ market.

Those who use the term "commodification" suggest that every exchange, or
attempt at exchange, of goods and services across a market is of necessity
also a species of communication, that is that it conveys information or a
view of the world.  If nothing else the attempt to exchange a good or
service across a market suggests that such an exchange is possible.  That
is, that the good or service in question retains its character or value
despite being transferred for cash in a market.  While this would seem an
innocent enough assertion with respect to most goods or services (food,
clothes, haircuts) it is at least suspect with respect to some (friendship
or love).

The next step in the anti-commodification argument is to posit that the
communication being made is somehow harmful or untruthful.  It may be
harmful to the parties conducting the transaction or to third parties.  It
is in order to prevent this harm that the anti-commodifiers would ban such
transactions in order to thereby eliminate such communication.

Let us move beyond these generalities to illustrative examples.  I concur
with the anti-commodifiers that attempting to sell or buy certain services
conveys a message that transforms, diminishes, or destroys the value of
those services.  For example, if this evening you wished to make love to
your wife and she were disinclined, were you to offer her cash remuneration
for her acquiescence, it is hardly likely to improve your marriage.  It is
generally recognized that sexual union between loving spouses precludes the
exchange of money.  To offer payment for the act would imply a spiritual
distance inconsistent with the marital bond, thereby destroying the meaning
your wife wishes to attach to the act.  Another example that I recall from
my youth is a child saying, "if you share your potato chips with me I'll be
your best friend."  The instinctive and correct reaction to such an offer is
that friendship is the sort of thing that cannot be bought, and offering to
sell it makes transparent that it is not there to be purchased.

The existence of such value transforming exchanges is quite interesting from
the perspective of economics, philosophy, and psychology.  But what
connection does this have to public policy? And what possible connection
could it have to organ procurement policy?  I think the answer to the first
question is none, and to the second, a fortiori, none.

Anti-commodification is fundamentally an argument against communication.
That is, those who object to organ sales or any other act on this ground are
in effect saying "it sends a bad message" and so should not be permitted.
Even if there were substance to the view that the message is bad, and if
there were a practical benefit to silencing it, which I will argue below
there is not, Americans in particular should be loath to follow such a path.
It is offensive to our legal and constitutional heritage, for we are a
nation that honors freedom of speech.  We are all entitled to voice our
opinions no matter how mistaken, loony, hateful, or pernicious they may be.
If the worst that can be said against an organ market is that it sends the
wrong message, then we need not even question the accuracy of that assertion
or place on the other side of the scales the benefits that a market would
offer.

Returning to Dr. Freedman's quotation.  He apparently believes that there is
some morally compelling message being delivered in the refusal to either
accept or offer payment for a transplant organ, and perhaps other medical
goods and services as well.  I accept not only his right to his opinion, but
also his right to sacrifice his wealth and even his health to deliver that
message by refusing to commercialize that aspect of his life.  What is
offensive to our American tradition is that he, and others who echo his
argument, have made it a crime for anyone who does not share his beliefs to
deliver a different message through their actions.

But there is much more that can be said against commodification than merely
that it offends our traditions of free speech and personal liberty.
Whatever intellectual interest there is in the notion that the willingness
to engage in an exchange conveys information of what one values, it is hard
to imagine any natural and necessary public policy implications this has.
Returning to my earlier examples, prohibiting the exchange of money for sex
between spouses or the exchange of friendship for potato chips would be like
killing the bearer of bad tidings.  If you and your wife exchange money for
sex, it is merely the outward manifestation of the degraded spiritual
character of your marriage.  That spiritual character will not be elevated
by prohibiting this transaction.  Therefore, it is difficult to see why any
third party, to say nothing of the state, should object.  Similarly, suppose
that Dr. Freedman is correct in his objections to an organ market, and that
those who would either buy or sell organs are depraved.  Do they become any
less depraved if the only reason that they do not engage in this commerce is
that it is illegal and they fear punishment?

Dr. Freedman and the anti-commodifiers would argue in response that there is
something akin to what economists call an externality at play.  Returning
again to my earlier examples, they would argue that the demonstration of the
vacuous character of your marriage is a virus that might infect my marriage.
Well what if they are correct?  It is difficult to see how outlawing the
exchange of sex for money between spouses would have any but a trivial
effect on arresting the spread of the virus of loveless marriages, if there
be such a thing.  The loveless marriage will give evidence of itself in a
thousand other, more visible, ways.  Similarly, it would hardly make sense
to outlaw the exchange of potato chips for friendship in the hope that we
would then get more friendship.  We would not, instead we would only get
less obvious evidence of false offers of friendship.  Returning to Dr.
Freedman again, does he perhaps believe that the depravity displayed by
selling or buying organs is catching?  At the very least he seems to be
ascribing far too much influence to one minor market.  Moreover, the
alternative view that virtue is its own reward and serves as a beacon to
others seems compelling.  In other words if selling one's organs is a
degraded act then permitting a market would give a demonstration of the
degraded character of those who would participate in it and the exalted
character of those who would not.

Even if a compelling case could be made for prohibiting the sale of sex
between spouses, or some other service, the underlying moral objection, that
is, that one may not sell what cannot be sold because the effort to do so
conveys a stance towards the exchange that diminishes the value of that
which is exchanged, has no application to the exchange of goods, and
certainly has no application to an organ market.  The sort of goods, or
rather services, that generate this value transforming effect when sold, do
so because the service is meant to establish, cement, or signify a
particular relationship, such as that of friends, or lovers.  The service
can only serve that function if it is transferred in a donative fashion.
Exchanging it for money would be inconsistent with the posited and desired
relationship.

But this argument is completely inapposite to the transfer of organs.  A
transplant organ is not a relationship.  It is not degraded by a market
transfer.  Indeed a strong case can be made that a cash transfer increases
the value of that which is exchanged.  Recipients of transplant organs are
generally not much interested in entering an emotional relationship with the
donor.  They are largely indifferent to the inner spiritual stance of the
donor.  They want the organ and little else.

Transplant organs harvested from cadavers are not the only human tissue
transferred between individuals.  In the case of other human tissue, rather
than destroying or diminishing the value of what is offered, the vendor for
cash generally provides the purchaser with something more valuable than the
altruistic donor precisely because he demands cash payment.  In the case of
sperm donation, or surrogate motherhood, typically the last thing that the
recipient wants is an emotional attachment on the part of the donor.  Those
who provide sperm for cash are less likely to have as strong an interest in
what becomes of the offspring they sire.  The surrogate motherhood phenomena
provides an even more dramatic illustration.  Couples who wish to employ a
surrogate mother, generally want a woman who will assure the delivery of a
healthy baby and then disappear.  What they most fear is the woman who will
change her mind and keep or abort the baby.  Of all the motivations that
might enter the calculus of a potential surrogate, financial gain will
usually be the most reassuring to the couple on the other side of the
transaction.  Similarly, in inter vivos kidney transplants, psychological
examination of the donor is required to weed out those who wish to donate
for reasons that portend future difficulties for the donor or his
relationship to the recipient.   Selling your kidney rather than donating it
out of love, guilt, or the desire to inspire guilt, will be less problematic
for the recipient.

But what of the effect on the community?  While this absence of charity may
be unimportant to the purchaser of the organ, some commentators argue that
it is of significance to the wider society.   Here, I am addressing, not the
practical objections that fewer organs will be retrieved or that they will
cost more, but only the moral/social argument that charity should be
encouraged, and that a market would either partially displace, completely
eliminate, or change the nature of charity in this sphere of life.  Why is
the reduction in charity not a cause for concern?

First, because transplant organs represent such a small portion of the
occasions for charity.  If charity should be completely driven from this
sphere of life its effect on the totality of charitable acts in society
would be trivial.  By permitting the sale of food, clothing, shelter, and
medical care rather than insisting that they may only be transferred by
charitable donation we suffer the exact same loss of charity, and on an
infinitely grander scale.  We recognize in those cases, as we should in
this, that the efficiency gains in terms of lives saved and suffering
ameliorated is worth the marginal sacrifice of a sense of living in an
altruistic community.

Second, even if we accept the notion that donation of organs should be
encouraged because charity in all its forms is a good thing, it hardly
follows that sale should be prohibited.  Permitting sale does not mandate
it.  Charitable donation of organs not only remains possible it becomes a
more noble act when sale is permitted.  Prohibiting sale only encourages
donation to the extent that it diminishes its character.  It is hardly an
act of great generosity to donate that which you cannot use and may not
sell.

Third, it is incorrect to treat sale and charity as mutually exclusive
categories.  It is a specious canard to suggest that if one accepts payment
for one's goods or services that one is not also motivated by generosity and
sympathy towards the recipient.  After all, should we assume that merely
because physicians are paid for their services that they feel no sympathy or
compassion towards their patients?

Fourth, it must be remembered that the market I propose must fundamentally
rest on a spirit of charity, albeit generally one that begins at home.  The
seller of the option under my regime will get no direct personal benefit.
For him it is really a case of giving two separate gifts, one to the
recipient of the organ, and one to the recipient of the money.  All
financial benefit will accrue to his designee.  Most often I suspect this
will be his family.  Is uncompensated generosity towards one's family such a
knavish motive that it carries no weight?

I have left the most telling argument against commodification for last.  In
a sense it is no argument at all.  I simply present to you, the reader, the
implication of giving sufficient weight to commodification such that it
carries the day against a market.  To believe that it does, you must hold
that it is morally preferable, because it celebrates "the intrinsic,
ineliminable, ineluctable value of human life and health" that a twelve year
old girl die from liver failure rather than that the organ that would save
her life be provided by a market.

It is not my position that no moral argument can stand up to saving the life
of an innocent twelve year-old girl.  On the contrary only a moral argument
could carry the day.  For example, I expect that virtually all readers
believe it would be immoral to forcibly take the kidney of a healthy person
to save that twelve year-old girl.  The failing of the anti-commodification
position is not that it is a moral argument it is rather that it is a
perverse moral argument.  By what leap of moral logic could it be that the
very preciousness and sacredness of human life is affirmed by condemning
innocents to death, and that saving human life through market transactions
degrades life?

Those who present the anti-commodification argument will often pair it with
an assertion that an organ market will not provide more organs (a
proposition I discussed and dismissed above).  But, if a necessary condition
for those who adhere to anti-commodification is that there be no price to
pay in terms of lives saved and health restored, then, at least as far as
the policy debate is concerned, anti-commodification is completely
superfluous to the argument.  The only interesting question is, if a market
will save lives is there a good reason not to employ or permit it. 	

So, in conclusion, with regard to the moral objection to the sale of what
cannot be sold, I cannot accommodate it in my market but I find no substance
to it.  It seems to me that these commodification objections are mere
pseudo-intellectual moral posturings rather than thoughtful serious
arguments.  They are the fabrications of the over-active intellects of
academics who have never seriously addressed the possibility that they or
their loved one might one day need a kidney and find none available for lack
of a market.

I would not be so harsh and unguarded in my assessment were it not that the
effect of this anti-commodification nonsense is so pernicious.  Ideas have
consequences, even--perhaps especially--very bad ideas.  They affect public
policy.  Anti-commodification lies at the base of the legal prohibition of
an organ market.  Those who voice these noble and eloquent sentiments
intimidate many into silence and thereby condemn the innocent to death.
Reasonable men and women should recognize how trivial is the moral weight of
"anti-commodification

Where Do We Go From Here?

You might be inclined to dismiss my Directions as the ravings of a strange
and dark mind. But that will not do. Whether I am perverse or not does not
affect the moral and political burden I place on you. You may think I do not
have a good reason for withholding my organs, but that is of no moment. I
may withhold my organs for a good reason, a bad reason, or no reason. Indeed
it is because thousands of people go to their graves each year with organs
that could return others to health and do so for no reason that they or you
consider very important that I write this.

There is old saying about how one gets a mule to do what you want. First you
hit it across the head with a 2 by 4-to get its attention. Well the
Directions For The Dispostion are my effort to focus the attention of both
my opponents and the wider public on the core question. There are those who
insist that it is good and just that it be illegal and criminally punishable
that any organs be exchanged for money. Well now there is no ambiguity about
the price of this legal regime. It is my organs. If I die in appropriate
circumstances they could restore four or five people to health but they will
not unless my estate is paid.

The question is what is your response to my Directions For The Dispostion?
As I write these words I want to engage you in a real question, a vital
question. I ask you not to think of this as some abstract question, but
instead to imagine that later today you (or perhaps your child) feel that
twinge in your lower back, or that shortness of breath, or that abdominal
pain and fatigue. And, that this time it is not mere muscle strain or
influenza, this time it is the first sign of the failing organ. This time it
is the beginning of the end, an end that can only be forestalled by the
transplantation of a healthy replacement organ. So here is the question
sport. Are you willing to pay me $864.27 for an organ to save your
daughter's life? Do not look for an easy out. Do not imagine that she will
get an organ from another source. For even if she could that organ would
otherwise have gone to someone else. Now there is merely another "you" out
there who is parent of another girl who will now die for want of an organ.
So, are you willing to pay me or not? Unless you are the most unfeeling
fanatic you will answer in an instantaneous affirmative. Now the next
question is do you feel the slightest sense of moral guilt at having paid an
additional $864.27 to the supplier of the single irreplaceable input in the
restoration of your child to health beyond the many tens of thousands of
dollars that were paid to the surgeons, nurses, hospitals, drug
manufacturers, equipment vendors, patent holders, etc?

These questions are too easy! Maybe we can make it more difficult. I have
just given you and your child a reprieve. It is just a muscle strain! Now
aren't you relieved? Okay sport now there is another parent out there with a
dying child. Do you believe that by barring this commercial transaction and
thereby condemning that child to death, that you are thereby recognizing and
expressing  "the intrinsic ineliminable, ineluctable value of human life and
health."  Because life is precious, indeed priceless and we must reinforce
that shared understanding it is necessary that we enforce a prohibition on
the sale of organs. To do otherwise profanes life itself. I am sure that
that will be a great comfort to the parents of the seventeen year old girl
dying of end-stage liver disease.

The evil is not that innocent people are dying to uphold a principle. Indeed
it is only for principles that people should be compelled to die. It is
rather that this is an infantile pretentious principle. It is no principle
that any mature empathetic honest intelligent person would adhere to. It is
only because these smarmy feel-good sentiments are indulged in the safety of
the halls of the same blowhard industry peopled by those who earn their
daily truffles by mouthing such arrant nonsense that it manages not to be
laughed out of court.

These are not and never were mere word games. What to some are occasions for
posturing moralists to cut a fine figure of deep, enlightened, caring
people, are for others quite literally matters of life and death. The
arguments made against employing market incentives to increase the supply of
organs are nothing more than flatulent nonsense. Those who would mouth such
heartless, unthinking pernicious nonsense are evil and stupid. My goal is to
expose that evil and generate the political will to change the law so as to
permit compensation for organ donation. It is not the market that offends
human dignity, but rather the fanatical unwillingness to make use of the
market to harness self-interest in the cause of saving the lives of
thousands of people who are dying for want of organs that is a great offense
to human dignity.

So I offer these Directions For The Dispostion to make real, clear, and
unambiguous what the costs are of the current legal prohibition. I call on
others to join me and make, and publicize, similar statements. Put them on
websites. Shout it from rooftops. The only way that we can escape the
current lunacy is by making clear to all the price of the current idiocy. I
do not take this path as a first resort but as a last resort. Had I been
more prescient and courageous I would have done this fifteen years ago and
perhaps generated the political energy to have long since changed public
policy. It is fifteen years of frustration and the final recognition that
our opponents can not be swayed by reason that leads me down this path.
Please join me.

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