Today in America there are about 93,000 people awaiting kidneys for transplant. If you’re one of these individuals you’ll likely wait about four years before getting a kidney, enduring dialysis in the meantime — unless, of course, you’re among the one in twenty people who die each year for want of a kidney.
Thomas Sowell famously says about economic reality that “there are no solutions, only trade-offs.” He’s correct, mostly. Every now and then we encounter a problem that does have a solution. The kidney shortage is one of these problems. And the solution is to allow kidney donors to be paid for their donations.
The case for freeing the market in transplantable kidneys is strong, both economically and ethically. Thousands of lives would be saved every year and thousands more delivered from the misery and indignity of dialysis. The downside is almost nonexistent.
Nevertheless, most people steadfastly refuse even to consider supporting a policy of allowing any living individual to be paid a market price in exchange for one of his or her kidneys. Many of the arguments against a free market in kidneys spring exclusively from people’s aesthetic revulsion at the thought of commerce in kidneys. This revulsion is curious, given that it’s surely more revolting to allow people to die unnecessarily simply in order to protect other people’s aesthetic sensibilities.
While I would immediately lift the prohibition on kidney sales, there are several intermediate measures that would yield much benefit if a complete lifting of this prohibition is off the table. One of the most promising was proposed by the late George Mason University law professor Lloyd Cohen.
Cohen recommended that all of our body organs be considered to be parts of our estates in the same way that our homes and jewelry are parts of our estates. When someone dies, his or her heirs would own the deceased person’s body organs just as they own that person’s other properties. These heirs could then sell, give away, or ignore these organs.
The advantages of Cohen’s proposal over the current blanket prohibition on sales are clear. Each year, tens of thousands of healthy transplantable body organs are buried or cremated, needlessly destroyed despite their ability to extend and improve the lives of thousands of people. By treating all transplantable organs as property of each deceased person’s estate, this wholesale destruction of lifesaving body parts would be significantly reduced.
It’s easy to bury a loved one with his or her healthy kidneys or heart if agreeing to have those organs harvested for transplant brings nothing more than a sense of satisfaction from helping a stranger live longer or better. But if the sale of the loved one’s organs will bring thousands of additional dollars to the estate, I’ll bet my pension that the number of kidneys — as well as hearts, lungs, and other body organs — harvested for transplant from newly deceased persons will skyrocket. As a result, thousands of living people will enjoy longer, healthier, and more productive lives.
Of course, as with all properties destined to become part of a person’s estate, that person would, while still alive, have great leeway to determine the disposition of his organs. If someone objects religiously to his organs being harvested, that person must merely specify in his will that no such harvesting is to take place. That man’s family and the courts will be bound to honor this demand.
Or if someone specifies in her will that she wants only her daughter Ann or her nephew Bob to receive her kidney (or heart, or lungs, or liver, or …) for transplant, that provision, too, would be honored.
Cohen’s proposal avoids a major objection to a free market in kidney sales — namely, that too many living persons will impair their health by selling their kidneys to make a quick buck. Cohen’s proposal can be adopted without permitting living persons to sell their organs.
Still, objections are raised, most notably, that potential heirs will skimp on the quality of a sick loved one’s medical care.
No one knows what the prices of transplantable cadaveric organs would be if these were salable on the market. But it’s implausible that adding the value of these organs to our estates will endanger our lives given that our homes, automobiles, and many other assets are already part of our estates. It makes no sense to dismiss Cohen’s proposal on such flimsy speculations.
Another intermediate measure, proposed several years ago by Adam Pritchard and me, is even more modest than the one proposed by Cohen. Pritchard and I propose allowing living people to sell rights to harvest their organs upon their deaths. That is, while I’m still prohibited from selling my kidney when I’m alive, I would be permitted to sell to you — or to a hospital, to a medical insurer, to anyone — the right to harvest my kidneys (and other organs) upon my death.
Today we are all encouraged to become organ donors. But moral encouragement is all we get. How many more of us would sign up to become donors if we received some payment for our agreement while still alive?
Because no one knows what condition my body organs will be in when I die — and because I likely will not die until around 2040 — the prices that I would be able to fetch in 2024 for the rights to harvest my organs upon my death would be modest. My guess is that the right to harvest my kidneys and other organs in the future would fetch a total price today of no more than $250. Still, for $250 I’m more likely to take the necessary steps to agree to become an organ donor than I am when the price I earn from taking such steps is $0.
Is there any good reason to exclude the market value of deceased person’s body organs from being reckoned as part of the deceased’s estate? Is there any good reason for preventing still-living people from selling the rights to harvest their organs in the future, after they die? I can think of no such reason that begins to stand up to the enormous good that such measures would unquestionably produce in the form of more live-improving and life-saving transplant surgeries.
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