Guest Post by Adam Shriver 

• Note: this post was originally published at the Practical Ethics Blog

Kidney transplants result in improved quality of life and increased longevity compared to dialysis for patients with end-stage renal disease (Evans et al. 1985, Schnuelle et al. 1998, Wolfe et al 1999).  In 2014, the national transplant list in the United States passed a milestone of 100,000 people waiting for kidneys.  However, the current rate of kidney donations, both from living and deceased donors, is not high enough to keep up with demand (Becker & Elias 2007). As a result, many people die each year and the quality of life of many more people is significantly diminished.

In response to this problem, various authors have proposed the creation of a regulated market for kidneys whereupon individuals may sell one of their kidneys in exchange for money and possibly other benefits (Matas et al. 2008, Gaston et al. 2006, Radcliffe-Richards et al. 1998, Radcliffe-Richards 2012, Veatch 2003).  Kidney sellers could be paid relatively large amounts of money (~$95,000) while maintaining a cost-effective system due to the savings obtained from moving people off dialysis (Matas 2008).  If implemented, a regulated kidney market could result in important increases in quality of life and in survival rates.

I admit I find the arguments from authors such as Matas and Radcliffe-Richards largely persuasive.  Nevertheless, their proposals have been subject to a number of criticisms from ethicists that pull on strong moral intuitions.  In what follows, I present an alternative model for a kidney market that I believe avoids the most serious objections to kidney markets.  In contrast to previous arguments that suggest that the benefits of regulated kidney markets would outweigh the harms, I will propose a model that is harmless, on the best way of understanding a harmful practice.  If, as I argue, we can design a kidney market where the decision to give up a kidney does not harm the seller, this suggests that we can reap the benefits of a kidney market without the ethical costs that have raised concerns.

Objections to a Regulated Kidney Market

In this section, I consider the strongest objections to the creation of a regulated kidney market and demonstrate that each one ultimately depends on the idea that kidney markets are harmful.   Before turning to objections, however, it would be useful to have in mind an example of a proposed kidney market. One of the most forceful and persistent advocates of regulated kidney markets is Arthur Matas (Matas 2008, Matas et al. 2008, Gaston et al. 2006).  Matas has proposed a system whereby kidney sellers are provided with a one-year life insurance policy for $1 million, lifetime healthcare, reimbursement of travel expenses, a fixed payment for time out of work, a fixed payment for providing a kidney, and a payment for $500 after completing a one-year evaluation (Matas 2008).  As noted above, due to cost savings from dialysis, Matas estimates that spending up to $95,000 per compensated donor would be cost neutral.

The strongest objections to this proposal, I will argue, depend on the fact that kidney sellers will be harmed by increasing their risk of early death and other non-fatal complications that decrease their quality of life. The most straightforward objection to Matas’s view along these lines comes from Arthur Caplan, who suggests that allowing people to sell their kidneys for moneys would violate the medical profession’s duty to “do no harm.” Caplan (2004, pp. 1933-4) writes of this principle, “Taking organs from living persons is in direct violation of this moral norm”.

In response to this objection, Matas has questioned why similar reasoning shouldn’t also apply to the relationship between kidney donors and the medical profession? We already allow people to engage in transactions that expose themselves to additional risk, and thus cannot truly be said to be preventing patients from engaging in harmful activities.

However, there is an explanation for why many people think of harm in the donor and seller cases differently. The assumption in the case of kidney donors is that they know the risks but are willing to take those risks in order to act in accordance with their values or their life goals. In this case, we suspend the idea “do no harm” because we feel confident the person is making an informed, altruistic decision.  However, introducing a payment into the process introduces new concerns about whether the money involved has a distorting effect on the potential seller’s evaluation of risk.

As such, one of the most prominent objections to a kidney market is that the high payments will create undue inducements for people to expose themselves to risk.  Unlike in the case of donation, in the case of payment we might suspect that the potentially large sums of money distort people’s judgments, and as such people are exposed to risks that ultimately are against their interests.

To better understand this objection, it is important to get clear on the notion of undue inducement. Ezekiel Emanuel has argued that four features must be present in a genuine case of undue inducement. On his account, in order for an undue inducement to occur, the following aspects must be present: “1) an offered good—individuals are offered something that is valuable or desirable in order to do something; (2) excessive offer—the offered good must be so large or in excess that it is irresistible in the context; (3) poor judgment—the offer leads individuals to exercise poor judgment in an important decision; [and] (4) risk of serious harm—the individuals’ poor judgment leads to sufficiently high chance that they will experience a harm that seriously contravenes his or her interests” (Emanuel 2005a p. 337).

For my purposes, one particular feature is key: the notion that individuals are exposed to the risk of harm.  As Emanuel notes, it is a mistake to describe something as undue inducement has occurred when there is no risk of harm[1].  For example, when Albert Pujols was paid $24 million to leave the St. Louis Cardinals to play for the Los Angeles Angels, this could not be considered a case of undue inducement, even if, as many Cardinals fans believed, conditions 1-3 were met.

In order to avoid worries that the word “serious” is doing too much work in what follows, I will use a definition of undue inducement where condition (4) is weakened to “risk of harm” rather than “risk of serious harm.”  As such, the relevant worry for kidney markets is that excessive offers of money in exchange for kidneys will impair the judgment of individuals who thereby expose themselves to a risk of harm they otherwise would have avoided.

A related idea is that of an unjust inducement, a suggestion that the structure of the inducement takes advantages of inequalities in our society.  The assumption is that less wealthy people will be more likely to participate in the kidney market, and as such the risks of the system will be disproportionately born by the poor, while the benefits are more evenly dispersed.

Again, however, this argument is importantly dependent upon the fact that kidney sellers will be harmed by the act of giving up their kidneys.  If we offered an exorbitant salary for a pleasant job with no major drawbacks, this might disproportionately attract the poor, but no one would call it “unjust inducement” if it didn’t involve some harm to the person accepting the offer.

Finally, there is one prominent argument against kidney markets that does not depend on possibility of sellers being harmed; the idea that a market would discourage people from making donations. However, without further argument, this is not an in principle objection to a kidney market; rather, it’s just a suggestion that the most efficient way of providing organs is via a voluntary process.  Moreover, initial empirical evidence, at least, has suggested that this claim isn’t true (Halperin et al. 2010). So I will not consider it further below.

A Harmless Kidney Market

With these objections on the table, I now consider if it would be possible to create what I will call a harmless kidney market.  If a kidney market could be designed that was harmless, and did not introduce any new moral problems, then this market would be morally permissible. For the purposes of this post, this is intended only as a theoretical exercise; I merely want to consider what conditions would need to be present in order to have a harmless market.   A further argument would be required to show that such a market is actually achievable; however, I think the framework I come up with is reasonably obtainable.

To establish the possibility of a harmless market, I need to define my terms.  I start with “market,” since it requires less explanation.  A market as I am discussing it just means a place or system where people engage in exchanges.  Note that the definition of a market does not specifically require that currency is exchanged, but only that something is exchanged.  This is relevant for my argument because the type of market I will propose does not directly involve currency, or does not necessarily involve currency.

The notion of “harmless,” or its negation “harmful,” is more complicated.  To start, let’s consider how a nephrectomy, or the removal of a kidney, can harm an individual.  Individuals with nephrectomies are exposed to increased levels of risk.  On one estimate, kidney donors face a 0.03% increase in mortality and a slightly less than 2% increase in morbidity (Gaston et al. 2006).   A more recent study, after controlling for the fact that most kidney donors are healthier than the average member of the population, estimated a “lifetime absolute risk increase of 76 per 10,000” after nephrectomy (Muzaale et al. 2014, p. 583).  To put this in perspective, they noted that, “kidney donors had a somewhat higher estimated risk of developing ESRD throughout their lifetimes (90 per 10 000) than similarly healthy individuals who did not donate (14 per 10,000), but still a much lower risk than the general population (326 per 10,000),” (ibid, p. 583).

So if an individual donates (or sells) a kidney, and then dies on the operating table or passes away later because of complications caused by the loss of a kidney, then clearly the transaction harmed that particular individual.  However, more than this is needed to say that the practice of donating a kidney is harmful.  Why? Because every action involves some degree of risk and, as such, given enough iterations of that action, at some point an individual will be harmed by so acting.

For example, consider the decision to have surgery in order to treat a heart condition.   Even for a very reliable procedure, out of all of the times people have made that choice, on some number of occasions people have been harmed during the surgery.  But it would clearly be a mistake to claim that the practice of undergoing surgery is harmful, given that, on the whole, having the surgery with that condition decreases the risk of harm. So to say that a practice is harmful is to say that choosing to engage in that practice increases one’s risk of harm over choosing not to engage in that practice.  And to say that a practice is harmless is to say that it does not increase one’s risk over the alternative.

It follows, on this account, that both the current kidney donation system and Matas’s proposed regulated market are harmful practices, since they do in fact increase the risk of harm to the people losing a kidney.  I do not mean this statement to imply that the debate is settled as to whether these proposals are morally impermissible, and it’s important to note that the actual risk of harm is actually rather low relative to many other types of risks we are exposed to.  Nevertheless, there is an increased risk of harm from nephrectomy and as such I think the objections considered in the previous section can at least gain a foothold.

What if, however, the transaction participants engaged in did not, on the whole, increase their risk?  We can imagine the trade of a kidney not for a sum of money, but rather in exchange for an intervention or set of interventions that decreases risk to the individual the same or greater degree than the nephrectomy increases risk.   So, simplifying for a moment to assume that mortality is the only possible harm, if nephrectomy increases mortality by 0.03%, but the kidney is exchanged for an intervention that decreases mortality by ≥ 0.03%, then it would follow on this account that the practice is no longer harmful.  The harmfulness of regulated kidney markets just is the increased risk of harm, and once we remove the overall increased risk of harm, we are left with a harmless kidney market.  Of course, some of the individuals who participate in the market will on occasion still be harmed by doing so, just as individuals are sometimes harmed by undergoing heart surgery, but the overall practice will not be harmful, and it will no longer be a violation of the principle “do no harm” for members of the medical field to participate in it.

But risk is more complicated than I’ve let on so far, since mortality is not the only risk associated with nephrectomy.  Complications can impair the quality of life of patients without leading to death. So a harmless kidney market would also need to ensure that whatever intervention is caused is one that also increases the expected quality of life for participants.  Though there are debates about the best methods for measuring quality of life, there is nothing in principle stopping us from using a similar method as above to require that the interventions exchanged in the market also increase the expected quality of life of kidney sellers.

So we can in principle create a harmless kidney market if kidneys are exchanged, not for money, but rather for some intervention that decreases all relevant risks to the same or greater degree that nephrectomy increases risk.  Before moving on, however, it is important to differentiate my view from a related, but ultimately very different view.  Consider the idea, common in some economics circles, that all human values can be reduced to a single measure of utility.  On this view, an act is harmful if it decreases net utility, and harmless if it did not.   It would follow then, that not only would a practice be harmless if it did not increase risk, but a practice could also be considered harmless if enough money was offered to sellers to increase the net utility for individuals.

This view assumes that the disvalue of risk can be directly measured against the value of money.  However, many would question this assumption.  In fact, the distaste many people have for the idea of buying an organ suggests that, whether justified or not, many people do not think that money can serve as a stand in for all other types of value.  We can question whether money and risk are truly commensurable types of value and disvalue.

However, it does not make sense to question whether increases in risk and decreases in risk are commensurable, since they are points along the exact same scale.  Since the harm of nephrectomy just is the increased risk of a number of bad outcomes, it follows that decreasing the risk of those outcomes to the same or greater degree would remove the harm.  As such, my proposal needn’t rely on dubious assumptions about the relationship between radically different types of value.

Returning to the Objections

If, as I have claimed, one type of harmless market is one where kidneys are exchanged for interventions that reduce risk to an equal or greater extent than nephrectomy increases it, does this expel the worries mentioned above?   As noted above, since the practice is harmless, I think it no longer makes sense to claim that this kidney market is in violation of the “do no harm” principle central to bioethics.  Of course, some individuals will be harmed, just as some very small number of individuals are harmed by undergoing heart surgery, but the practice as a whole will reduce rather than increase the risk of harm to its participants.

Consider next the worries about undue inducement.  As discussed above, undue inducement depends upon the risk of harm.  Given that the risk of harm has actually decreased, it follows that the above proposal would not lead to undue inducement.  Moreover, this proposal takes money out of the equation, and so eliminates the possibility of direct monetary transfers clouding the judgment of individuals.  If anything, it seems to me that drawing attention to interventions specifically designed to decrease future risks would actually sharpen participants’ awareness of the relevant risks, but I realize this is a hypothesis in need of empirical verification.

Similar reasoning applies to the unjust inducement objection.  Since unjust inducement depends on individuals being harmed, my proposal would avoid the possibility of unjust inducement.  Furthermore, by eliminating the role of money in the transaction, my proposal would actually create an exchange that should appeal to all levels of income earners equally.  A decrease in the risk of death should appeal to the minimum wage earner just as much as it does to a Wall Street tycoon.

Conclusion

I have argued that the strongest in principle objections to regulated kidney markets all depend, in an important way, on the assumption that such markets will be harmful.  However, under certain circumstances, it might be possible to create kidney markets that are not harmful.  As such, if the right interventions can be designed, we can dramatically improve the lives of tens of thousands of people with essentially no ethical downside.

One big challenge in implementing a system in the real world would be to create a market that is not just harmless, but that actually provides enough incentives to solve the kidney shortage.  To this point I note that having interventions that decrease risk as much as nephrectomy increases risk is only the floor, and not the ceiling of my proposal.  If we had a set of interventions that decreased risk five times more than the risk of nephrectomy, we would have a very enticing incentive available.  Moreover, this incentive could appeal to rich as well as poor, and need not place the entire burden on one segment of society.

People are currently suffering and dying from a lack of available kidneys.  If we can remedy the situation without imposing any new ethical costs, we have a moral obligation to do so.  I have not commented on particular interventions here, but I think this framework provides a useful starting point in trying to develop such a system.

@adamjshriver

 

[1] Emanuel (2005b, p. W10) makes an important point in response to a critic.  One could, of course, insist on a definition of undue inducement where it can occur even when the decision involves no additional risk of harm.  However, if we accept this definition, it no longer becomes clear that all cases of undue inducement are morally problematic.

 

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