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

People should not be a means to the ends of others

The core factual driver of the argument is increasing demand for
renal transplantation set against the relative undersupply of these
organs. The question is not only whether payment to solid non-regenerative
organ donors will improve supply but also whether the cost is justified.

One key distinction between altruistic organ donation and paid organ
donation is that in altruistic donation the actual act of donation is a
goal of the donor. In non-altruistic paid organ donation the act of
donation is a means by which the donor acquires a bounty. This bounty is
something they can use to further their actual life goals. A second key
distinction is that one aspect of the goal of an altruistic donor is to
promote the welfare of the donee. A paid organ donor who donates to
receive the bounty does not need to concern themself with the welfare of
the recipient.

Many people feel moral unease when considering paid organ donation.
This flows (a) from the idea that paid organ donors are being induced into
actions that benefit organ recipients but which do not accord with their
own life goals and (b) from the more selfish nature of paid organ
donation.

The marginal benefit premise: The power of a given quantity money to
promote an otherwise unachievable life goal is directly related to the
amount of wealth a potential donor already possesses. A rich person is
unlikely to find the act of paid donation as tempting as a poor person
because the marginal impact upon life options of the bounty is likely to
be smaller.

From the subgroup of non-altruistic paid donors only those for whom
the marginal benefit is sufficiently large to outweigh the potential risks
and costs of donation would commit themselves to donation. Thus even if
the purchase of organs was limited to the legal residents of a single
country the flow of organs would still be from the poorer parts of the
population.

Freidman1 argues that such incentivisation is justified on the basis
that the present supply of kidneys is inadequate to meet the current
demand.

It is correct that failure of medical system to prevent disease
progression should not preclude treatment of those not in a position to
influence their own treatment. Accepting this should money not go first
into the Organ Donation and Recovery Improvement Act 2004 and a drive to
prevent preventable renal disease before moving on to try and purchase
kidneys?

The payment of money in return for kidney donation reduces the act of
donation to a commercial transaction and the kidney to a commodity. The
question then arises why should a paid kidney donor have any higher right
to a transplanted kidney than any other person in need of a kidney? After
all they have been compensated in kind for their donation.2

In relation to kidney donation within the US Friedman identifies that
“Doctors will be paid for each transplantation”. This highlights one
problem with a market solution. Many of the key decision makers in the
process are incentivised to move to donation. In some cases this can
result in conflicts of interests which can become manifest. For example in
relation to human egg donation Friedman recognises that donors are “rarely
fully educated about the risks…”1, 3

Other problems arise with the restriction of paid donation to legal
residents. Could an illegal resident be in receipt of an organ donated
through the system? Paradoxically a non-resident could only donate
altruistically to a resident. In such a system a foreign national could
seek a broker and offer them the kidney donation bounty if in return the
broker could obtain legal residency for the potential donor.

The fixed fee also raises problems. If market price outside the
country is lower than the price paid by the monopsony then brokers are
incentivised to obtain residency for potential overseas donees.
Alternatively recipients would still be able to travel overseas to obtain
their kidneys. If a supply demand imbalance remained within the country
then the market price within the country would rise above the monopsony
price. If this occurred then the organ donor would be best served by
going to a broker who could give them a better price, i.e. outside the
monopsony.4,5,7 If we accept the marginal benefit premise above, a higher
market price should yield a greater supply of organs albeit outside the
monopsony. The problem for Freidman’s consequentialist position is that
the actions of brokers would increase the supply of organs and therefore
should be welcomed. If brokers are permissible then their profits should
be taxed and, if possible, the monies paid back to the monopsony. If such
sales were made illegal a black market would be likely to emerge.

Analogies

There is an important distinction between regenerative and non
regenerative organs making their comparison difficult.

It is clear that analogies with controversial subjects e.g. surrogacy
for profit6, prostitution and human egg donation for profit7 do not move
the argument forwards.8,9 A separate argument exists for those professions
whose professional career includes risk taking. Friedman’s list includes
those in military service, police, firefighters, doctors and nurses. Her
point is that it is permissible to be paid to take a risk with one’s
health. However note how these professionals choose their profession as a
goal in their life. They gain more from their work than just the money
e.g. training, job satisfaction, comrades etc. They do not, in general,
choose to take those risks purely as a means to some other end. The money
is necessary to survive but the work they perform adds something more to
their lives. The analogy is closer to the altruistic donation than to the
paid donation.

In relation to volunteers for paid medical experiments this is
generally risk taking in the context of a commercial exercise. Most such
paid volunteers do not elect to surrender a non-regenerative organ as part
of the process.10

On balance the case for paid donation still has difficulties. Under
s.32 of the Human Tissue Act 2004 commercial dealings in human material
for transplantation remains illegal in the UK.

1 Friedman AL. Payment for living organ donation should be legalised.
BMJ 2006;333:746-748

2 United Network for Organ Sharing. Allocation of deceased kidneys.
Section 3.5.11.6: donation status.
www.unos.org/policiesandbylaws/policies.asp?resources = true (accessed 25
Apr 2006).

3 Mastroianni Jr. Risk evaluation and informed consent for ovum
donation: clinical perspective. Am J Bioethics 2001;1(4):28-9.

4 Harris J; Erin C. An ethically defensible market in organs. BMJ
2002; 325: 114-115

5 Mohindra R. An ethical monopoly. Really? bmj.com 2002.
www.bmj.com/cgi/eletters/325/7356/114

6 S.2(1) Surrogacy Act 1985 makes surrogacy for profit illegal in the
UK

7 S.12(e) Human Fertilisation and Embryology Act 1990
http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900037_en_2.htm#mdiv12; Para
4.25, 4.26 HFEA code of practice sixth edition.
http://www.hfea.gov.uk/cps/rde/xbcr/SID-3F57D79B-
6A70A03E/hfea/Code_of_Practice_Sixth_Edition_-_final.pdf (accessed
15.10.2006). Only expenses allowed for human egg donors.

8 See also David Hunter. Is consistency enough? eBMJ 8 10 2006.
http://bmj.bmjjournals.com/cgi/eletters/333/7571/746?ehom#143587 accessed
15.10.2006

9 See also Roff SR. Thinking the unthinkable: selling kidneys. BMJ
2006;333:51

10 Mohindra R. Selling kidneys: An indecent proposal?

Competing interests:
None declared

Competing interests: No competing interests

16 October 2006
R K Mohindra
SpR Cardiology
Freeman Hospital, Newcastle yupon Tyne, NE2 3NT