Friday 21 August 2015

Need a kidney? Try facebook!

 Recently it was reported that Facebook had failed to take down organ adverts whereby customers in need of an organ could buy organs online. Not only is buying and selling both cadaveric and living organs illegal in the UK[1] ,but it is also an offence to publish or advertise for sale of an organ punishable by 51 weeks in prison. In this article I am going to suggest that this should not be the case and that we should in fact be able to buy organs in a structured and monitored organ market. I propose that the purchase of cadaveric organs should be legalised but not the purchase of living donor organs. In the following  paragraphs I am going to explain: firstly what the law is on these matters and why it is illegal to pay for cadaveric organs, secondly I will explain why paying for cadaveric organs is a good idea and why some of the points against purchasing cadaveric organs are unjustified, thirdly I am going to explain why the law should be changed to allow payment for cadaveric organs but not living organs and finally I will outline by proposal for a new system whereby cadaveric organs can be paid for morally and efficiently. 



The law
The main statute in this area is s32 HTA 2004. Which states that it is illegal to give monetary reward in return for a living or cadaveric organ but that payment to the hospital in money or money’s worth is not the same as a reward if it is to cover the costs of the transplant and any expenses in connection with transporting, storing, removing or preserving the material are not deemed to be a reward and also that payment of the donor’s expenses and compensation for time off work is not a reward.

The reason this is the law[2] is that it is deemed that it prevents the exploitation of poor organ donors who are willing to sell organs and risk their health in order to make money, to prevent the commodification of the human body and to maintain a level of altruism within the organ donation system. In the next section I will outline why these justifications are erroneous and why it would be better if we could create an organ market whereby cadaveric organs are bought and sold in a structured and closely monitored way.

We should not be allowed to pay for cadaveric organs because it involves the commodification of the human body
This is the point often raised by anti-organ payment ethicists, it appears to be a strong argument against payment for cadaveric organs but it is not. English law frequently commodifies human body parts and emotions. For example tort law literally puts a price tag on different injuries and awards damages for broken or lost limbs and emotional trauma. 

Paying for cadaveric organs takes the altruism out of the organ donation system
Again, prima facie this seems like a logical and strong argument however, Harris[3] argues that payment does not negate altruism- more so with cadaveric donors as they would not benefit from the money. Harris explains brilliantly that doctors are all altruistic and provide care and attention for those in need however no one ever suggests that these roles are less altruistic because the people performing them are paid. This is a very strong argument for paying for cadaveric organs. I suggest that we should pay the relatives and the estates’ of the deceased organ donors to recognise the altruistic nature of their  donation and so appreciate of the massive emotional trauma that the families of the deceased must go through knowing that their deceased relative is having their organs removed for donation.

Payment for organs exploits the poor
In her very informative article Nancy Scheper- Hughes[4] argues that vulnerable, poor donors who have no real choice but to donate are exploited by systems across the world, such as in Iran, where organs can be paid for. I must point out here that I agree with this point however I would like to make two further points. Firstly the issue of exploitation could be solved with a regulated market which Erin and Harris[5] suggest could involve the NHS paying donors using money that would be for used for medical alternatives to transplantation such as dialysis and secondly, this is why I suggest that only cadaveric organs should be purchasable because then the donor is not making the choice to donate based on their current financial situation but instead as a good will gesture to help create financial stability for his/her family in the future. If one did want to argue that living organs should be allowed to be bought and sold also, one could even suggest a deontological argument whereby that because living donors have rights over their bodies they should be able to have the right to sell organs. The reason that I have chosen to argue only for the right to sell and buy cadaveric organs however is because I believe that the pressure of families on living donors is already too intense and that adding money into the equation will only increase pressure on living donors and may unduly influence donors decisions to donate organs whilst they are alive.  Also as Goyal[6] argues if poor living donors sell organs this will not actually help their financial situation because if they are too ill to work after, for example, their kidney is removed or even later in life due to the weaknesses associated with living with one kidney then they will lose earning that may amount to an equal value to or more than that of the organ.

Why cadaveric organs should be eligible for monetary purchase
There are 3 main reasons why cadaveric organs should be able to be purchased:
  1.      It will help reduce the organ shortage and save lives.
  2.     The altruism of cadaveric organ donation is actually increased with payment because the deceased donor will have altruistically donated an organ and also altruistically insured some money for their estate that will support their family in future after their death.
  3.           Medical professionals and the public have a moral duty to save lives where possible and by encouraging as many people as possible to donate organs we can create a culture of giving and healing whereby our duty to save lives is satisfied.

My proposed model for paid cadaveric organ donation
My proposal contains 5 main principles which could be manipulated and altered depending on the legal system in which this law reform is taking place.  I have created this proposal to follow on from and expand on the model that Erin and Harris suggest[7] and for the sake of this article I have assumed that it is the English legal system that would be trying to create a paid cadaveric organ donation system.

  1. The potential donor signs the donor register as normal but selects what the payment will go to (e.g. estate, funeral costs, gift in a will). It is made clear to the donor that the payment is conditional upon the organ/s being used for transplant in that both the organ is suitable for transplant and there is a done available to receive the organ.
  2.  The NHS pays the money for the organ/s based on a commodification bill drawn up by experts whereby each organ is valued based on the type of organ and that state it is in. the money will only be paid if the organ is fit for transplantation and a donee is available to receive the organ.
  3. The donor dies and his/her organs are taken after the body has undergone cold infusion and the organ/s has been deemed suitable for transplantation and a recipient is ready in theatre.
  4. The organ/s is transplanted into a patient and the NHS pay the agreed amount for each organ donated to the desired cause of the donor eg funeral costs, gift in a will etc
  5. The entire system is regulated by an Act of parliament and it is only legal for the NHS to pay for organs and all organ transplantations are done in certified hospitals and via the official process outlined above.



Further reading in this area that may be of interest
For a general audience


For legal professionals and students:
  •         M Brazier, ‘Retained Organs: Ethics and Humanity’ (2002) 22 Legal Studies 550.
  •         Department of Health, An Investigation into Conditional Organ Donation (2000) http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4035465.pdf
  •          V English and A Sommerville. ‘Presumed Consent for transplantation: a dead issue after Alder Hey?’ (2003) 29 Journal of Medical Ethics 147.
  •        CA Erin and J Harris J. ‘A monopsonistic market—or how to buy and sell human organs, tissues and cells ethically’, in Robinson I, ed. Life and death under high technology medicine. Manchester: Manchester University Press in association with the Fulbright Commission, London, 1994:134–53 (for an earlier, fuller version of the JME argument).
  •        J Herring and P.-L. Chau, ‘My body, your body, our bodies’ (2007) Medical Law Review 34.
  •        MA Jacob, Matching Organs with Donors (University of Pennsylvania Press, 2012)
  •        K Liddell and A Hall, ‘Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue’ (2005) 13 Medical Law Review 170.
  •       NC Manson, ‘Normative Consent is not Consent’, (2013) Cambridge Quarterly of Healthcare Ethics 33-44
  •      J McHale, ‘Organ Transplantation, the Criminal Law, and the Health Tourist’ (2013) Cambridge Quarterly of Healthcare Ethics 64-76
  •        S Pattinson, ’Directed donation and ownership of human organs’ (2011) 31(3) Legal Studies 392-410
  •       D Price, ‘End-of-Life treatment of potential organ donors:  paradigm shifts in intensive and emergency care’ (2011) Medical Law Review 86
  •       D Price, ‘The Human Tissue Act 2004’ (2005) 68 Modern Law Review 798.n
  •              M Potts and D W Evans, ‘Does it matter that organ donors are not dead?  Ethical and policy implications’ (2005) Journal of Medical Ethics 406.
  •         C Waldby and R Mitchell, Tissue Economies: Blood, Organs and Cell Lines in Late Capitalism ch 6 (Duke University Press, 2006)
  •       Welsh Government, Proposals for Legislation on Organ and Tissue Donation (2011)
  •       S Wilkinson, Bodies for Sale (Routledge, 2003) ch. 7



[1] Human Tissue Act 2004 s 32
[2]  For more analysis of law  in this area see: A Cronin and J Douglas, ‘Directed and conditional deceased donor organ donations:  Laws and misconceptions’ (2010) 18 Medical Law Review 275-301 http://medlaw.oxfordjournals.org/
[3] J Harris, ‘Organ Procurement: dead interests, living needs’ (2003) Journal of Medical Ethics 130.
[4] N Scheper-Hughes, ‘The Ends of the Body – Commodity Fetishism and the Global Traffic in Organs’ (2002) 22(1) SAIS Review 61-80; available at: http://web.mit.edu/writing/2010/June/Scheper-Hughes_endsofthebody.pdf
[5] C Erin and J Harris, ‘An ethical market in organs’ (2003) 29 Journal of Medical Ethics 137-138; available at http://jme.bmj.com/content/29/3/137.full
[6] Goyal M, Mehta RL, Schneiderman LJ, Sehgal AR. Economic and health consequences of selling a kidney in India. JAMA. 2002;288:1589–93. [7] C Erin and J Harris, ‘An ethical market in organs’ (2003) 29 Journal of Medical Ethics 137-138; available at http://jme.bmj.com/content/29/3/137.full

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