Kidney for Sale by Owner: Human Organs, Transplantation, and the Market.

• Author: Goodwin, Michele
• Position: Book review

KIDNEY FOR SALE BY OWNER: HUMAN ORGANS, TRANSPLANTATION, AND THE MARKET. By Mark J. Cherry. Washington, D.C.: Georgetown University Press. 2005. Pp. ix, 258. $26.95.

INTRODUCTION

For prospective transplant patients, options are limited under the present organ donation model in the United States. Risk takers--patients frustrated by government bureaucracy--now leave the United States and travel straight to the black market in developing countries where the wait for organs is four weeks, instead of four years. They bargain--contract, if you will--for their organs. Nevertheless, their organs are contraband of sorts, obtained by flouting the National Organ Transplant Act, (1) which proscribes the buying and selling of body parts, as well as international protocols prohibiting trafficking in persons and organs. Both the sellers and purchasers of these organs participate in a delicate, if not dangerous, process. Kidneys, lungs, livers, and other body parts are obtained from prisoners on death row in China, from mothers in India wanting food to feed their families, from equally desperate Brazilian and South African men hustling to survive the cruel realities of poverty. Patients acknowledge that organ trafficking is a cruel process within which informed consent may be more illusory than real, but Americans line up to participate. Transplant coordinators can be found on the internet, and because of a falling U.S. transplantation system, most of these patients believe they have no other choice.

Yet most bioethicists seem wedded to the current federal model of "altruistically" obtaining organs. They argue that "organs should be understood as gifts, not commodities" (p. 4). They refuse to endorse most if not all proposals that provide incentives for organ sharing or that allow individuals to negotiate privately for organs. Most bioethicists continue to represent a global alliance against markets and private ordering in body parts, finding such practices "deeply morally repugnant" and fearing the demeaning of personhood (p. 8). Their arguments--that organ procurement incentives lead to the commodification of the human body, coercion, medical exploitation, the demeaning of human dignity, and disregard of the sanctity of life--are clearly persuasive and impact public policy. There is nearly global consensus on prohibiting the sale of organs. But whether an absolute proscription on organ sales makes sense is debatable in light of human suffering, high rates of mortality on transplantation waitlists, the rise in the number of children forced to become organ donors domestically, exploitation of people in the third world to meet our organ demand, and the acceptance of organ transplantation as a beneficial and preferred medical treatment for many illnesses and diseases.

In Kidney For Sale By Owner: Human Organs, Transplantation, and the Market, Mark Cherry (2) chronicles the bioethics movement that produced the ban on organ sales in favor of altruistic organ procurement. Cherry's thesis, that organ sales should be legal, radically challenges conventional wisdom and represents a refreshing departure from traditional hegemonic transplantation discourse in three nuanced ways. First, he makes a moral case against altruism and rejects the gift of life concept, asserting that laws which reduce organs to a "community good" controlled by the government undermine patients' health options and "color[] much of the debate regarding the permissibility of an organ market" (p. 5). In this, he argues, the government exploits rather than aids dying patients.

Second, Cherry critically assesses whether offering financial incentives to donate organs actually coerces the poor and exploits the economically vulnerable, rather than providing some benefit to them. Cherry challenges the conventional wisdom that incentives necessarily violate the poor. He critiques the validity of that entrenched position in light of inadequate evidence to buttress that claim.

Third, and finally, he concludes that the consensus against selling human organs is flawed because it inadequately addresses the distinction between different body parts, privacy rights, and the strength of ownership rights in bodies. In an era of increasing dissatisfaction with the inefficiency of the United States' transplantation regime, this book issues a spirited call to reevaluate the wisdom of an organ procurement system that relies exclusively on altruistic transfers.

Scholarship in this domain is long overdue, and Cherry builds a marvelous case for his proposal. However, the author leaves the question of racialized exploitation, one of the central objections to commodification, virtually unchallenged. Indeed, the most poignant critiques against organ selling are race-based, particularly the claim that commodification would harm racial minorities in the United States and abroad. Most scholars ignore the disproportionate demand for kidneys among African Americans, but in making their case against commodification, they invoke horrific images about the exploitation of African Americans and the destitute.

Thus, African Americans are a transitional good in these intense debates. Proponents of commodification regimes in organ transplantation typically, and artfully, avoid race landmines and in doing so unnecessarily (and perhaps unwittingly) concede that African Americans will not fare better under a commodification regime or that African Americans are incapable of deciding whether or not to commodify for themselves. Cherry's fine attempt to breathe new life into a rather stagnant debate offers a slight refraction to the most crucial aspect of that debate. Before Cherry's book, African-American patients were virtually invisible, and after the book, their concerns remain static. Here is a critical opportunity to redefine the debate about financial incentives in medicine and expose how commodification of organs might work if we pay attention to the needs of African Americans and other people of color.

In this review, I wish to push the thinking about the public/private distinction a bit further and to study both analytically and empirically the legitimacy of organ commodification. I wish to uncloak the notion that public regulation always benefits the disenfranchised. In particular, this review seeks to add the concept of law and status to the public/private ordering debate and to suggest that in the context of organ and tissue demand, private ordering maximizes participation and promotes more equitable participation among those of vulnerable status, including racial minorities and children. By contrast, the federal prohibition on body-part selling undermines private ordering, exacerbates organ demand, increases waiting time, penalizes the poor, and results in thousands of unnecessary deaths per year. A market-based system that coexists with altruistic donation introduces greater reliability to the larger complex of organ procurement and distribution. Greater reliability is likely to inspire greater confidence in the organ procurement system.

This review moves beyond a critique of Cherry's study to incorporate a radical new way of thinking about organ commodification as a social justice issue. Part I provides a brief empirical overview of organ demand in the United States, offering an alternative perspective and introducing data ill-examined in commodification debates. Part II challenges the notion that private ordering abandons liberal and egalitarian values in favor of individualism over communitarianism. It also acknowledges the limitations of private ordering and addresses how its more problematic features, including the abuse of power, might be avoided. Part III argues for a hybrid system that reorders regulation of intimate spaces. It proposes a system that allows incentives to coincide with altruistic donation. Finally, Part IV contends that the discussion of commodification needs to change in order to incorporate all members of society. Only after we change the discussion from whether or not to commodify to what degree of commodification is socially acceptable will this incorporation happen.

1. ORGAN COMMODIFICATION AS SOCIAL JUSTICE?: AN EMPIRICAL OVERVIEW

   Over 92,000 people in the United States wait anxiously for the elusive phone call that an organ donor has been located. (3) Scattered throughout the United States, this odd mix of men, women, and some children comprises all socio-economic classes, religions, and ethnicities. The gravity of the organ procurement process may be best understood if we examine the actual waiting lists, and observe the potential kidney patients' death rates. For example, every four hours a patient waiting for a kidney dies. In 2000, 47,280 people were waiting for kidneys. (4) As of August 21, 2006, the waitlist had increased by nearly fifty percent to 67,373. (5) Well over one third of these patients were African-American. (6) The median waiting period has also increased substantially. (7) In 1994, the wait for a kidney was 715 days, (8) and by 2001-2002 (the most recent year for which data is available) it increased to 1284 days for whites and inexplicably to 1842 days--nearly two years longer--for African Americans. (9) Near the end of the 1990s, so few kidney transplantations had occurred as compared to need that the Organ Procurement and Transplantation Network (OPTN), which coordinates and collects data on organ transplants, found it "impossible ... to calculate an overall median waiting time for 1996 and 1997 registrants" for its report in 1998. (10) Opponents and proponents of organ commodification agree that the statistics are daunting and likely only to worsen with the increasing population of patients diagnosed with diseases that lead to kidney failure, including severe obesity and diabetes.

   African Americans are disparately impacted by the organ shortage; they suffer the longest waits and experience the highest death rates on...