Intended for healthcare professionals

Analysis And Comment Controversy

Payment for living organ donation should be legalised

BMJ 2006; 333 doi: https://doi.org/10.1136/bmj.38961.475718.68 (Published 05 October 2006) Cite this as: BMJ 2006;333:746

Payment for living organ donation should NOT be legalised

Payment for Living Organ Donation should NOT be legalised.

On 31st October on Radio 4’s ‘Thought for the Day’, Anne Atkins,
Christian Author and Broadcaster, said that whenever she had relied on her
logical (male) tendencies to override her intuitive (female) feelings she
had got things wrong. Intuitively, although male and Jewish, I feel
uncomfortable with the thrust of Amy L Freidman’s article (7.10.06) in the
BMJ on the legalisation of payment for organs from live donors. But
intuition carries no weight in this debate.

The opening question posed is: “If payment or reward for living
donors can be made legitimate and ethically consistent with other accepted
medical practices, exploitation can be prevented and both donors and
recipients can be treated equitably”. In the pages that follow this
question is not adequately answered, although the conclusion drawn is that
organ sale should be legalised.

The first argument is concerned about a 'balance of benefits’ in
which everyone except the living donor receives a ‘benefit’. The recipient
gets a kidney; their family gets relief from the burden of caring for
someone on dialysis; the doctors and nurses get paid for doing the
transplant and the hospital earns income from the insurer. The donor gets
nothing. Of course if the donor is related, the relief in having their
loved one returned to good health seems somehow to have been left out of
this ‘who gets a benefit’ discussion. Truly altruistic donation, in which
a stranger wishes to donate, is more difficult to understand in terms of
how that stranger will benefit. One person’s altruism is another person’s
madness. Part of any scheme that allows altruistic ‘stranger donation’
must involve a thorough psychological screening in addition to the usual
assessment of physical fitness.

The article uses ambiguous language that may mislead the reader.
“Living donors are prohibited from receiving ‘valuable consideration’ in
exchange for their gift”. In my understanding a gift is something that is
given without the expectation of payment.

The next step in the process of persuasion is to pretend that there
is little difference between ‘compensation for loss of earnings and
payment for the organ itself’. Under the North American system of health
insurance, reimbursement of the costs of immediate medical care is
allowed, but loss of earnings and travel expenses are excluded. It is this
financial reason rather than any profound ethical or philosophical
principle that is the driver for changing the law. Should a kidney donor
subsequently develop end stage renal failure they will be accorded
priority in the organ allocation formula currently used in the USA. The
author of the article concludes that this represents”a societal
determination that an individual’s act of donation is morally deserving of
a tangible reward”. But such tangibility does not automatically equate
with a monetary value. Nor do I think it would be in the interest of any
altruistic donor for it to be so, as ‘society’ could then argue in favour
of giving a monetary reward rather than priority to receive a kidney.

Next follows a series of arguments which depend upon comparability
with other ‘medical practices’. Step by step they walk us down a seductive
slippery slope.
Step 1: If you can get paid for ‘donating’ regenerative products, such as
blood, hair, or sperm, why not also legitimise payment for organ donation.
These products can be obtained at no medical risk to the donor although
the author does accept that there is an increased risk of disease
transmission to the recipient when such donors are paid because of the
greater likelihood of undeclared infection. Legal liability on the donor
of sperm, as opposed to medical risk, however has become a real issue in
recent years in the UK with the child’s right to discover the identity of
their biological parent.
Step 2. Egg donation is an established and accepted practice. It commands
high prices in the USA. This is not without risk to the donor. Even more
risky is surrogate motherhood but there are legal and financial
arrangements already established for this. There is also a tangible reward
for participating in medical research and putting oneself at risk for the
sake of a cash return.
Step 3. Ipso facto, by extension of the argument, people should be allowed
to sell their organs. Of course this is not the language in which the
final step is described. “The same person should be allowed a monetary
inducement or reward for donating an organ”.

Included in the paper is an interesting table which summarises:
‘Reimbursement and risks associated with donating or renting human body or
body parts in the US’. It classifies ‘Surrogate Pregnancy’ and
‘Participating in drug trials’ in the same ‘rentable’ category as
‘Prostitution’. The text explains this inclusion by saying that
prostitution has been legalised in several European countries and in one
state in the USA in order to control the criminal and disease related
risks of an illegal trade. By implication she would like the law on
prostitution extended to other states. The author clearly belongs to those
who advocate: “If you can’t stop a ‘morally bad practice’, then you should
legislate to minimise its effects on the vulnerable”. The classic
historical example in the US is the ending of prohibition; and more
recently in the UK, the legalisation of Cannabis, but these are instances
of changing existing laws to make the policing of a societal behaviour
more manageable. They seem to believe that the law is impotent to control
such behaviours, but do not necessarily endorse them as desirable or
morally good.

One final concept is referred to in which ‘developed societies have
become comfortable with the idea that tangible recognition for personal
self sacrifice is likely to flow to the most needy’. The example given is
Military Service where paid education, financial bonuses and compensation
for injury or death are accepted by society. Why, she asks, should the
decision to donate an organ be viewed differently?

The first assumption in this example is that it is those who mainly
can not afford an education or get another job who join the armed forces.
They do it for the money. That is not my understanding. There are such
things as: leading and exciting and interesting life; defending the
citizens and safety of one’s country; following in a family tradition;
keeping peace throughout the world; countering international terrorism and
so on. All of these worthy principles are not easily reduced to cash.
Soldiers like many other people in society do a dangerous job for the good
of society and society compensates them perhaps inadequately, for it. Do
we want to employ people to become donors on the same basis? It would seem
that this is the way the article is arguing. In times of national crisis,
compulsory conscription is legalised. When waiting lists for organs reach
a crisis point will compulsory donation become legalised in the US? Is the
defence of all of the people, equivalent to relieving the misery of some
of the people? This is an absurd conclusion but a test of ridiculous ideas
is to chase them down to such conclusions. (Reductio ad absurdum)

Lets us assume that we go along with the ‘new thinking’ and make
plans to put in place her suggested scheme for protecting donors and
regulating payment for the selling of organs: Limit donors to legal
residents, except ‘foreign’ family members (this will prevent the
exploitation of non-resident people from low income countries); a
regulatory body will determine the criteria for donors and recipients as
well as a uniform fee; local panels would adjudicate on individual
applications not clearly meeting the accepted protocols. And her sweeping
conclusion is that “bringing these activities out of the closet by
providing governmental supervision and funding will provide equity for the
poor, who will get equal access to such transplants”.

The conclusion is a remarkable aspiration for an American academic
who does not practice in the NHS. At least in the UK we have a health
service that is based on the principle of ‘Equal and Free access to all
according to need, irrespective of the ability of the patient to pay’,
even though in practice this may sometimes fall short of the declared
ideal. Schemes for organ donation certainly need to be nation or culture
specific and set in the reality of the prevailing health care system.
There are few in the Western world who would support the use of organs
from people awaiting execution or even immediately after they have been
shot, as allegedly occurs in China. A Channel 4 TV programme on 31.10.06
featured the Iranian system where kidney donation has been legalised.
Here, desperate people enquired about the highest price they could get for
one of their kidneys and asked if they met the criteria to become a donor.
They were filmed as they stood at an open public counter that was more
like a betting shop than a health care facility. Prospective organ
recipients were subjected to the same humiliating exchanges in seeking a
suitable donor and arranging the financial deal to buy the kidney. It may
be acceptable in Iran to completely discount confidentiality but it is not
something that would appeal to the Western citizen.

There is with out doubt a shortage of donor organs to relieve the
suffering of those who need them, but that shortage should be addressed
with morally defensible solutions, not by creating a bureaucracy that will
add to the misery. Encouraging truly altruistic kidney donation is to be
applauded. Indeed live donation from friends and families is one way in
which transplant waiting lists can be markedly reduced within the context
of the existing UK transplant co-coordinators network. Stranger donation
is more problematical, but paired donation, although not raising many
ethical difficulties may have resource implications, if multiple
simultaneous operations in one or more locations are to be guaranteed.

If it became a criminal offence in the US to carry out kidney
transplants privately, in which the doctors, nurses, technicians and the
institute itself were all liable to prosecution, this might curtail the
rich exploiting the poor. If the tariff for transplantation were set at a
standard rate that ‘society’ could afford (i.e. funded out of General
Taxation) and if the current UK transplant allocation criteria were
applied to those on the waiting list, then poor and rich alike will have
equality of access. This sounds remarkably like most of the kidney
transplants that are done in the UK. Perhaps Amy L. Freidman should be
arguing for a UK style NHS in the US instead of devising a morally suspect
scheme for solving its exploitation of the poor, and the inequality of
access to donor organs. If the law is changed in the way that she
envisages, the genii will be out of the bottle, never to return, and the
wealthy will feel liberated to continue their exploitation of the poor.

Simon Jenkins 1.11.06

Retired GP(due to renal failure)

Transplanted 26.12.2000

Vice-Chairman of the North West Kidney Patients’ Association.

Competing interests:
None declared

Competing interests: No competing interests

01 November 2006
Simon A P Jenkins
Retired GP;Vice Chairman North West Kidney Patients Association
81, Ringley Road, Whitefield, Manchester, M45 7LH