The Case for Small Government

A Libertarian Perspective on Economic and Social Policy

March 17, 2006

Legalize Purchase and Sale of Organs

Why is it illegal to buy and sell organs?

Opponents of legalization make two arguments.

The first is that legalization helps wealthy patients at the expense of everyone else. The second is that legalization encourages the poor to sell their organs out of desperation.

Neither argument is persuasive. Legalization is likely to increase the supply of organs, thereby benefiting everyone. Access for the poor is a separate issue best addressed by programs like Medicaid. Legalization also means the market for organs will be above ground, which promotes informed consent and appropriate medical care for donors. In the black market that now exists, donors do not have these protections.

Concern for the equity of organ transfer is sensible. But legalization of organ purchase and sale eases equity concerns in addition to making this market more efficient.


At 6:00 PM, Blogger Bob Schubring said...

Apparently in the aftermath of St. Patrick's Day, a number of folks may be contemplating the purchase of a larger skullbone into which their aching meninges may fit...

Whatever the reason, it appears that I have the honor of starting this discussion, so I will raise a couple of points of medical ethics and law.

Firstly I will address the law. Most nonlawyers have never heard of the common-law concept of "unconscionable contract". This ancient tradition holds that a contract to do a wrongful thing (known in statute law by the name "conspiracy") is unenforcable. Thus, were a hitman paid to whack an organ donor to get suitable organs onto the market for a particular recipient, the hitman and prospective recipient would be guilty of a capital crime, and at the very least, the recipient could be made to forfeit the illegally-obtained organ as of the date of execution. Much of the public fear associated with the market in human organs stems directly from the perception that the crime of murder-to-procure-organs would somehow become legal were we to legalize organ marketing.

This brings us squarely across the ethical question: Just who is it that has the divine right to decide whether a patient must live or die? Anyone who sets himself up as the arbiter of organ delivery must necessarily assign a different value to each of the human lives hanging in the balance. So, in a perfect world there'd be no disease...but in a politically perfect world where there'd be someone of high ethical standards to give answers to these kinds of questions, we yet have the daunting task of deciding whom to save and who to let die. In the real world, we are likely to hand that task to politicians and bureaucrats, who have every incentive to use the organ donor registry as a tool for political terrorism.

In short, the recipient's key question is: "How do I make sure that I can obtain a new liver before I expire?". If the answer is to refinance the house and pay someone, is there any real social benefit to have that payment to go to some corrupt politician or bureaucrat, instead of, say, to the family of an organ donor?

But we must also consider this transaction from the point of view of the organ donor. Many people cannot afford proper healthcare in this country, for a variety of reasons, most of which relate to the disincentives to cost containment in a healthcare industry that masquerades as a charity, and resorts to the ancient formula of government contracting, "Cost Plus a Guaranteed Profit"...meaning that higher costs mean higher profits.

It should be evident that an organ donor who was in good health before some catastrophe caused the donor to die, will likely have healthy organs available for transplant. Thus, prospective organ recipients have every reason to fund good health care for their prospective donors. The prospective donor who wants better health care improves his or her bargaining position, from that of a mere beggar, to that of a person with something of value to trade.

At 6:41 PM, Blogger Collin Imhof said...


In a world of legalized organ sales, the only markets that would change would be for those of alienable organs -- namely, those people could live without. (What value is money to a dead person?) Therefore, all your arguments about public fears and political terrorism regarding who lives and dies seem moot.

If people were allowed to sell a kidney or a regenerating piece of liver, the supply of these often necessary organs would increase, thereby decreasing the costs. This would mean that more people are more likely to get those life-saving organs. This is pareto efficiency at work.

Unconscionability in contract law arises from unequal bargaining power, not conspiracy. Since there is a great supply of people with an extra kidney and relatively few with no kidneys, it seems that there would be an oligopsonistic market where the bargaining power is on the side of recipient rather than the donor.

In other words, it appears that you have confused illegal contracts with unconscionable contracts. It seems to me that the only unconscionable result would be to maintain the status quo despite the obvious lack of readily available and greatly needed goods.

At 6:55 PM, Blogger Mike Huben said...

This is a pretty pathetic post. Compare it to the Becker-Posner blog post on the same subject.

All the marketization arguments overlook most of the important factors.

First, you are legalizing taking yet one more resource from the poorest members of society. Enclosure and other privatization of land forces the poorest to rely only on their ability to labor for others, rather than self-provisioning. Now their bodily integrity (already threated more severely than anybody else's because of the circumstances of poverty) would merely be another asset that they would need to sell to survive.

If organs are transformed into truly liberal property (and libertarians have no reason to stop short of this), then we'll have truly arrived at the position of Shylock. Loans will be guaranteed with organs, debts will be collected with forced collection of organs, etc. How would libertarians stop the operation of common law here? With government regulations?

Legal organ sales would immediately create a large opportunity for fraud: sale of low-quality or diseased organs. As opposed to today's high-quality organs, where there is no incentive to fool the system.

Increasing volume of organ transplants by legalization of sales would also undercut the important research (government funded) to find alternative therapies to transplantation.

We have experience with legalized sales that show some of the problems: poor outcomes for donors in India, and private blood banks with low-quality blood in the US.

There are plenty of alternatives to legalization which easily would increase the supply. For example, we could take the libertarian solution and legalize riding motorcycles without helmets again. Or we could simply fund a PR campaign to encourage more donation. The latter solution avoids a host of problems due to moral hazard and perverse incentives to game the system.

At 11:02 PM, Blogger Ananda said...

Mike Huben's comment is pretty pathetic.

First we have the usual mindless rhetoric, like a bad aperitif (as if nationalization of land means that the poorest members of society work for themselves all of a sudden... gee, except for those cases such as EVERY TIME IT'S EVER BEEN TRIED. But hey, it's working for Mugabe, right? Right?).

Then we have the "organs will be seized by bankruptcy courts". Apparently on Huben's home planet, courts have never heard of anything but specific performance as a remedy for breach of contract.

Then we have "But people will sell bad organs!" It is apparently self-evident that this is not worth the large increase in healthy organs that would become available.

Next in line is "If we solve the problem, then a government-funded solution will be undermined, and we can't have that." Not sure what to say to that, other than that it boggles the mind.

Finally we have alleged, relevant real-world experience. I guess receiving a "low quality" kidney is worse than having NONE AT ALL. I have personally been on dialysis. Luckily my own kidneys were able to recover from what ailed them. But let me tell you, if they hadn't, I'd have rolled the dice on a new kidney rather than staying on dialysis.

But hey, I'm sure a PR campaign would work wonders. Maybe it could be modeled on those NBC "The More You Know" spots. I'm sure lots of people would start donating organs if Rob Lowe told them to.

At 1:49 AM, Blogger James said...

mike huben,

I believe the line "First, you are legalizing taking yet one more resource from the poorest members of society." belongs elsewhere. The post was about purchase and sale, not theft, of organs.

Meanwhile, I do appreciate your attempt at a worst case analysis, but I don't see the logic in considering the theoretical worst case result of legal organ sales without making some comparison to the worst case outcome of forbidding such transactions.

For example, sales of blood are legal here and now. In the worst case, blood transfusions can lead to the spread of some epidemic, but I wouldn't see that as a reason to forbid the sale of blood.

At 5:18 PM, Blogger Bob Schubring said...

Mr. Imhof seems not to comprehend that a living person, who contemplates dying at some time in the future, assigns a present value to things that are to be done upon his or her demise. The entire subject of wills, probate, and living trusts fills many volumes at any law library, not because lawyers like to write books, but because clients spend money on these legal services to address what is to become of their possessions when they are no longer living.

In answer, Mr. Imhof, the future resale of a dead person's organs are of value to that person while living. At present, only the non-economic benefit of living in the belief that a part of oneself might live on to help another person, drives the decision to bequeath one's organs to a transplant patient. If a person's estate lawfully might be paid for bequeathing an organ, there is nothing to stop a living person from selling the future rights to the use of his or her organs upon his or her natural death, for a portion of their cost.

As to the remainder of your post, you clearly have not read any caselaw on unconscionable contracts. While a court of equity may vacate a contract on the grounds that one party to it had unequal bargaining power (such as case of the stroke patient who supposedly signed the letter "X" to a quitclaim deed to his house while comatose, vs the recipient of the alleged deed, when an eyewitness testified that it appeared the recipient held the comatose person's hand and moved it in the shape of an "X" but could not be absolutely sure there was a pen in the comatose person's hand at the time), the principle of unconscionable contract holds in the case of anyone who makes a contract to perform an act that is contrary to law. (The USCA, and the volumes of reported cases indexed in it, take up a lot more shelf space than a Black's Law dictionary, precisely because Black's is a true but incomplete copy of what passes for law in this country.)

Also it should be noted that my argument, though subtle, was in favor of the legalized sale of organs, and sought to debunk the most common of the associated myths and scaremongering. Just as Black's will supplement, but not supplant, the law library's collection...skimming a document will not give one the same level of comprehension that one gets from reading it word for word...a useful thing to know if one is ever given a court order to read, comprehend, and obey.

As to Mr. Huben's commentary, it should first be recognized that Ananda has correctly asserted, in summary, that we do not live in the Garden of Eden. People have struggled to procure the basic necessities of survival. What little they've been able to put aside is invested in every possible means of making life less difficult, be it loincloths, shoes, plowshares, shingled roofs, or the Internet. High on the list of necessities has always been medical treatment for the ill.

It is only recently in human history that physicians have been able to do anything other than amputate gangrenous limbs, induce defecation, and alleviate pain. However, those advances in medical technology come with a cost. It is plain as mud that if a person lacks the capacity to fund his own healthcare, but could motivate someone to buy healthcare for him so that his organs would be viable for transplant when he dies a natural death, that the impoverished person would acquire funding to maintain himself in a reasonable state of health and would be far less likely to leave the world a corpse with only diseased organs that must be diposed of by incineration or landfill...ahem...cremation or burial in a cemetery.

Mr. Huben appears to be angry that people have to work to survive and that some of us have more advantages than others. He certainly is free to feel any such emotion as he cares to feel. However, when we return from our emotive rantings to face the reality that created them, we are still stuck with the fact that some people have transplantable organs, which will deteriorate for lack of health care, as they have no money...while some other people have money to pay for health care but someday will need an organ transplant.

That matter aside, Mr. Huben next asks us to address the subject of unconscionable contracts that guarantee loans by the forced collection of organs, prior to the natural death of the user. Repeating my allegedly-pathetic comments posted earlier, the operation of the common law is that the person who contracts to remove an organ from a person who still needs that organ to remain alive, is contracting to commit homicide, which contract is unenforceable as an unconscionable contract under common law. Accordingly, we Libertarians would need to enact no new government regulations to address this problem, for the law against murder predates the invention of paper and ink, having existed in oral tradition in every society ever found.

Lastly, Mr. Huben objects that important research to find alternatives to transplantation would be somehow "undercut" by a private market in organs. For centuries, shamen, priests, and sorcerers sought a magical means of inducing water to travel against the pull of gravity and run uphill, without the expenditure of energy. The invention of the pump certainly undercut research into this important area of the occult, which would have economic benefits nearly as great as the spontaneous generation of life (in spite of what all those nasty scientists had to say about the superiority of chemistry over alchemy, the impossibility of lifting water against a gravitational field without expending energy, and the reasons that spontaneous generation of life cannot happen either). Meanwhile, billions of people worldwide have benefitted from the availability of pumped water. I am going to make a wild stab in the dark here and guess that Mr. Huben considers himself in perfect health and unlikely to need an organ transplant any time soon...please correct me on that point, Mr. Huben, if I am wrong. A person so situated that their personal need for a transplanted organ is purely hypothetical, is likely to put a greater value on the discovery of a "magic pill" that regenerates diseased organs, than on the more mundane subject of how to improve the supply of transplanted organs, make transplantation safer, limit the problems of organ rejection, etc. Please contrast that point of view, with that of a person who has suffered organ failure and requires a transplant to remain living. Would that person voluntarily die so that a few dollars of tax money got diverted away from his or her end-of-life care to go toward research that might someday produce the magic pill that regenerates diseased organs? Actually, some would. Most would prefer to go on living, by any means necessary, and they choose transplantation if it becomes available to them.

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