Guest Post: Julian J. Koplin
Article: Choice, pressure and markets in kidneys
Paying people to donate a ‘spare’ kidney might help alleviate the current shortage of transplantable organs. However, doing so would conflict with a principle widely accepted within the medical community since the earliest days of organ transplantation: that bodily organs should not be bought and sold. My paper focuses on one important facet of the organ market debate: the question of whether it can be bad to have the option of selling one’s kidney.
Those in favour of opening a market in organs often argue that a market system would benefit people living in poverty; after all, presumably the main reason people would decide to sell a kidney is because they believe they would benefit from the exchange. This claim can be criticised on two fronts. First, it could be argued that many kidney sellers would not realise the expected benefits of selling a kidney, and may even be left worse by the transaction. This argument has been discussed extensively elsewhere (including by myself); for now, we’ll bracket off these concerns. The second avenue of attack (which is the topic of my paper) is to argue that merely having the option of selling one’s kidney could harm those facing financial pressures. Importantly, this second criticism is independent of the first; it might succeed even if we assume that potential kidney sellers will participate in the market only if doing so actually is in their best interests.
How can the mere option of doing something harm us? We usually think of having options as a good thing for the simple reason that having more options means we are more likely to find one that accords with our preferences. (To pick a mundane example: we are more likely to find a flavour of ice cream we enjoy if presented with three options than if presented with only one.) Yet not all options are beneficial or benign. Consider the history of duelling. In certain times and places public figures were expected to respond to public offense by challenging their adversary to a duel. This created a difficult dilemma for those who faced public offense or were challenged to a duel: either refuse at the expense of one’s reputation or else accept and run the risk of injury or death. (Among other notable duellists, US founding father Alexander Hamilton was fatally wounded in a duel he agreed to only because turning down the challenge would destroy his political career.) Legislation against duelling makes us better off because it removes the option of duelling from our choice sets, and thereby protects us from being forced to defend our reputation in ways we might reasonably prefer to avoid.
Options can be harmful. We have good reasons to want some options – like the option of duelling – removed from our choice sets. In the context of the organ market debate, the key question is whether the specific option of selling one’s kidney is one that people facing financial pressures might be better off without. In an earlier issue of the Journal of Medical Ethics Simon Rippon posed an influential argument to this effect. Rippon argued that if we treat organs as saleable commodities, people living in poverty may come to face legal penalties if they fail to sell a kidney in order to pay taxes, paternity bills, or rent. They may also face harmful social pressures. Those who can legally sell a kidney can be pressured to do so by family members, relatives, moneylenders. They can now be criticised if they choose not to sell a kidney – not only by moneylenders or family members, but by anybody who believes the poor should not seek public or charitable assistance if they can meet their basic needs by selling a kidney instead.
This is a powerful argument – and as I show in my paper, it is even stronger than it first appears. Rippon’s theoretical concerns are well supported by the literature on existing markets in organs. Sellers in both Iran’s legal market and black markets elsewhere in the world report having been coerced or pressured to sell a kidney by moneylenders, husbands, or other family members. A market in organs could also make some people worse off by altering the terms of trade. For example, moneylenders may offer less favourable terms for loans once they come to expect their borrowers can ‘mortgage’ their kidneys. Here, too, there is some evidence of this phenomenon occurring in existing kidney markets. I also argue, contrary to some recent work on the subject, that the kinds of market regulations commonly proposed in the pro-market literature would do little to protect against these harms.
If the above analysis is correct, a market in organs may violate a central tenet of transplantation ethics – that the decision to become a kidney donor must be made freely and autonomously. For some people facing financial pressures the ‘option’ of selling a kidney may not be an option at all, but instead an expectation or requirement.