Considering a Market in Human Organs
| Publication year | 2002 |
I. Introduction
In 1963, Nobel Prize winning geneticist Joshua Lederberg predicted that medical advances would impose "intolerable economic pressures on transplant sources."1 His prophetic statement has become more undeniably true as current altruistic methods for organ donation have failed to meet organ demand for more than thirty years.2 As a result of these failed organ procurement methods, along with moral and legal barriers to other procurement methods, thousands of people die each year from the organ supply failure.3 The lost lives and recent technological advances surrounding organ transplantation are leading to a reconsideration of alternatives to altruistic donation as the most effective means of organ procurement.4
Advancing medical technology is a central consideration in the discussion because human ingenuity has created immeasurable lifesaving value in organs that was not previously possible.5 This technology-driven value increase has contributed to a developing tension between societal and individual rights over human organs and other valuable bodily derivatives.6 At the center of this tension is the battle to create some form of market for human organs.7 Throughout this paper, "market" will be used in its broadest sense, exchanging some form of valuable consideration for a human organ.8 Creating or not creating such a market will necessarily involve judgments about what weight should be given to the claims of society and those of the individual over organs as property.9 This article discusses the possibility of creating an organ market that respects individual autonomy, prevents exploitation, acknowledges the sanctity of human life, and increases the supply of human organs. Such a market may save thousands of lives each year.10
This paper surveys the medical, legal, and policy considerations that surround a market in human organs.11 Each of these areas is important for a complete discussion and understanding of the topic.12 The paper begins by discussing the organ shortage problem and proceeds to discuss the medical technology driving the moral choice toward a market in human organs. There also is a discussion of the relevant case law and statutory law surrounding the body as property. Finally, the paper concludes with a policy level discussion of organ markets.
A. The Problem
As of January 18, 2003, there were eighty thousand people waiting for an organ donation; a name is added to that list every thirteen minutes.13 Twelve Americans die every day waiting for a vital organ.14 These deaths are particularly troubling because the medical technology necessary to save those lives exists and is rapidly advancing.15 The consensus of the organ transplant community is that the organ supply shortage is a major concern, if not the greatest obstacle, to saving lives through transplantation.16
Donating an organ posthumously, or while living, is a difficult choice for many.17 The decision to donate an organ has complex religious, medical, and financial considerations.18 Given the weight of the decision, it is easy to sympathize with the vast majority of people who decide not to donate their organs.19
The organ shortage is not a new problem.20 A shortage has existed as long as there has been successful transplant technology, and this shortage has increased every year.21 The medical profession has tried to work around the organ shortage for decades.22 The transplant community has attempted to use artificial organs, animal organs, and wholly new organs engineered from basic materials.23 These methods have met with limited success, with some new solutions, such as growing new organs in vitro, still lingering in the realm of science fiction.24 Human organ donation and transplantation remain the most successful and viable methods for the majority of people needing organs.25
II. The Medicine of Transplantation
A. History of Human Organ Transplantation
Human organ transplantation is a relatively new technology.26 Although surgery is thousands of years old, it has only been within the past fifty years that the medical community has been able to transplant an organ from one human to another with any measure of success.27 By comparison, the modern computer pre-dates the first human transplant by more than a decade, as does atomic weaponry, the Porsche, and antibiotics.28 The first kidney was transplanted in 1951, the first lung in 1963, the first intestine in 1964, the first liver in 1965, the first pancreas in 1966, and the first heart in 1967.29
Transplant technology is rapidly advancing because of its youth as a medical discipline and the accelerated pace of scientific discovery in our age.30 As a society, policy decisions and value judgments were made about the appropriate boundaries of transplant technology near its inception, judgments that no longer hold true given technological advancement.31 Several contemporaneous factors informed those original policy decisions and value judgments. For example, the wait for donor organs initially was not as long as it is today, the need was not as great, and the life saving power of transplantation was more mythic than real.32 In the early days of transplantation, some religious and ethnic communities resisted the idea of human organ transplantation in any form.33 Currently, however, most people have accepted transplantation as an important life saving technology and organ donation as an important societal goal.34 The remaining questions revolve around what type of procurement and distribution methods should be encouraged and the related property claims of society, and of the individual, implicit in these procurement and distribution methods.
This is a pivotal point in the history of transplantation. People must now reconsider many of the moral and legal aspects of organ transplantation due to the increasing demand for organs coupled with an unmatched supply. The need for donors, with scientific advances and measures of transplant success, is growing daily.35 Technologically advanced societies are nearing the point, if they have not already passed it, where legislative judgments prohibiting a market in human organs have restricted the organ supply to such a degree that the current restrictive position appears less ethically defensible, if not morally culpable, as thousands die each year.
B. Current State of Transplantation
Transplantation is safer and more successful than ever before.36 One-year survival rates for most organ transplants are nearing ninety percent and five-year survival rates are now greater than seventy percent.37 Transplanting organs and living with a transplanted organ now border on being medically routine given the current success of transplantation, but this was not always so.38 Technical successes with organ transplantation have been largely attributable to technological advances in equipment, advances in surgical technique, and, primarily, the immunological benefits realized by anti-rejection drug regimens.39
First, transplant technology has advanced rapidly with the assistance of some key equipment developments. The first piece of equipment that proved essential for advances in transplant technology was the heart-lung machine.40 First used in 1953, it allows surgeons to artificially pump and oxygenate blood during a surgical procedure.41 The ability to pump and oxygenate blood is particularly important where the transplanted organ is either the heart or lungs.42 This machine is also, in part, the intellectual ancestor of both the modern Left Ventricular Assist Device ("LVAD") and the internal artificial heart.43 Second, the equipment developed by anesthesiology for monitoring transplant patients and delivering drugs has greatly improved in the last fifty years.44 Anesthesiologists are now able to maintain patients in more physiologically controlled states for longer than was previously possible.45
In the realm of surgical technique, there is no substitute for practice. In the early 1900's, Nobel Prize winner Alexis Carrel recognized the importance of blood vessel anastomosis46 when transplanting major vascularized organs in animals.47 His methods, including using fine needles and thread, careful dissection, controlling bleeding at both ends of a blood vessel, exact identification of vessel layers, and sewing vessels together in a way that everts48 the intima,49 have been used with few modifications since 1902.50
Carrel was also a pioneer in organ preservation.51 He was one of the first to develop a physiologically balanced solution to maintain the viability of organs much longer than was previously possible.52 Carrel began by using a room temperature solution.53 It was not until the 1960's that Geoffrey Collins substantially improved on Carrel's work by cooling the solution and changing its composition to essentially what is still in use today.54 Specifically for lung transplants, Frank Veith discovered in 1979 that reattaching a lung using a shorter donor bronchial length leads to better healing.55 This technical modification has been called "the single most important detail" for successful bronchial anastomosis.56
The greatest advances in organ transplantation, however, have probably resulted from immunologic manipulation using anti-rejection drug regimens.57 Advances in anti-rejection drug regimens have proven difficult, and the benefits resulting from new developments in this area cannot be overstated.58 The primary problem in the area is gaining a functional understanding of the human immune system and using that understanding to develop pharmaceuticals.59 To be effective, pharmaceuticals must manipulate the hypothesized immune mechanisms in a way that prolongs organ survival.60 Without immunological intervention, an organ recipient's body will not tolerate the organ and will reject it, a process termed graft rejection.61
Graft rejection can be hyper acute, acute, or chronic.62 Hyper acute rejection occurs...
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