Wednesday, July 16, 2003
My Organs, My Property?
posted by Alan
No one, I think, would seriously question my right to sell my hair, especially given the prevalence of baldness. But losing one’s hair is nothing compared to losing a bodily organ; there is no equivalent of a toupee for one’s missing kidneys. So should the market be given a chance to solve?
Rather than boring you by focusing on the stock arguments I presume kidney-selling cases have generated (fortunately, I have yet to hit one; I had Marcus remove his from his “Wheel of Legality” before our round at Brown last year), I will consider the question I think is at the heart (no pun intended) of the matter: What are the implications of consistently treating organs as property?
A host of issues spring to mind concerning organs-as-assets. Before addressing these, it is worth noting that the law currently allows one to donate an organ to a particular person under certain conditions, but prohibits donation limited to recipients of particular racial, ethnic, or social groups. Thus, if I am only willing to give my kidney to someone who hasn’t run a case about kidney-selling, I may be inclined not to donate at all. Curiously, then, the law of organ donation sometimes favors the preferential distribution of benefits to the absence of benefits, and sometimes it doesn’t; for some reason, preferring a friend or a family member is legally legitimate, but preferring young people and nonsmokers isn’t.
That said, it appears that putting bodily organs on the same economic plane as their church counterparts has a number of interesting consequences, some of which are quite counterintuitive. First, suppose I lose a civil suit and cannot afford to pay the damages. My wages are likely to be garnished, and my assets are likely to be sold off. If I am in good health, should these assets include one of my kidneys? Similarly, what if I’m poor and I can’t pay a fine? Second, suppose I stipulate in my will that, after I die, any viable organs of mine are to be preserved only in case my immediate family needs them. Should these organs, along with the rest of my estate, be taxed? Third, should the government be allowed to declare eminent domain on people’s organs? This concern may be absurd, but it logically follows from treating organs as property; in the case of eminent domain, particular property is needed and the government cannot be paid off. Fourth, if organs are property, the government cannot mandate donation after death (even in the case of executed prisoners) or presume consent to donate. Fifth, if I am deemed mentally competent, should I be allowed to commit suicide and sell all of my organs? Sixth, might creating a market for organs raise not only organ supply, but also the cost of transplants, thereby shutting out more poor people? Perhaps the inequity would outweigh the efficiency. Seventh, will families be tempted to have their relatives denied medical care in order to profit off of their organs? Will families fail to uphold wills asking for cremation or “proper” burial and instead sell their relatives’ organs? Eighth, many poor people will sell their kidneys out of desperation, hardly the epitome of a voluntary transaction. In addition, the loss of a kidney, as opposed to periodically selling blood, can have serious long-term health consequences, including, ironically, the need for socially-costly dialysis. This is especially true of the poor, who generally have worse health care and less healthy lifestyles.
Of course, there are some very persuasive arguments in favor of the sale of non-essential organs. Nevertheless, treating organs as property across the board has its difficulties.
Rather than boring you by focusing on the stock arguments I presume kidney-selling cases have generated (fortunately, I have yet to hit one; I had Marcus remove his from his “Wheel of Legality” before our round at Brown last year), I will consider the question I think is at the heart (no pun intended) of the matter: What are the implications of consistently treating organs as property?
A host of issues spring to mind concerning organs-as-assets. Before addressing these, it is worth noting that the law currently allows one to donate an organ to a particular person under certain conditions, but prohibits donation limited to recipients of particular racial, ethnic, or social groups. Thus, if I am only willing to give my kidney to someone who hasn’t run a case about kidney-selling, I may be inclined not to donate at all. Curiously, then, the law of organ donation sometimes favors the preferential distribution of benefits to the absence of benefits, and sometimes it doesn’t; for some reason, preferring a friend or a family member is legally legitimate, but preferring young people and nonsmokers isn’t.
That said, it appears that putting bodily organs on the same economic plane as their church counterparts has a number of interesting consequences, some of which are quite counterintuitive. First, suppose I lose a civil suit and cannot afford to pay the damages. My wages are likely to be garnished, and my assets are likely to be sold off. If I am in good health, should these assets include one of my kidneys? Similarly, what if I’m poor and I can’t pay a fine? Second, suppose I stipulate in my will that, after I die, any viable organs of mine are to be preserved only in case my immediate family needs them. Should these organs, along with the rest of my estate, be taxed? Third, should the government be allowed to declare eminent domain on people’s organs? This concern may be absurd, but it logically follows from treating organs as property; in the case of eminent domain, particular property is needed and the government cannot be paid off. Fourth, if organs are property, the government cannot mandate donation after death (even in the case of executed prisoners) or presume consent to donate. Fifth, if I am deemed mentally competent, should I be allowed to commit suicide and sell all of my organs? Sixth, might creating a market for organs raise not only organ supply, but also the cost of transplants, thereby shutting out more poor people? Perhaps the inequity would outweigh the efficiency. Seventh, will families be tempted to have their relatives denied medical care in order to profit off of their organs? Will families fail to uphold wills asking for cremation or “proper” burial and instead sell their relatives’ organs? Eighth, many poor people will sell their kidneys out of desperation, hardly the epitome of a voluntary transaction. In addition, the loss of a kidney, as opposed to periodically selling blood, can have serious long-term health consequences, including, ironically, the need for socially-costly dialysis. This is especially true of the poor, who generally have worse health care and less healthy lifestyles.
Of course, there are some very persuasive arguments in favor of the sale of non-essential organs. Nevertheless, treating organs as property across the board has its difficulties.
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