In Defense of A Regulated Market in Kidneys From Living Vendors

Journal of Medicine and Philosophy
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In Defense of a Regulated Market in Kidneys from

Living Vendors
BENJAMIN E. HIPPEN
To cite this article: BENJAMIN E. HIPPEN (2005) In Defense of a Regulated Market in Kidneys
from Living Vendors , Journal of Medicine and Philosophy, 30:6, 593-626
To link to this article: https://doi.org/10.1080/03605310500421397
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Journal of Medicine and Philosophy, 30:593–626, 2005
Copyright © Taylor & Francis, LLC
ISSN: 0360-5310 print/1744-5019 online
DOI: 10.1080/03605310500421397
In Defense of a Regulated Market in Kidneys

1744-5019
0360-5310
NJMP
Journal of Medicine and Philosophy,
Philosophy Vol. 30, No. 06, October 2005: pp. 0–0
from Living Vendors1
BENJAMIN E. HIPPEN
A Regulated
Benjamin E. Hippen
Market in Living Vendor Kidneys
Metrolina Nephrology Associates, Charlotte, North Carolina, USA
The current system of organ procurement which relies on donation

is inadequate to the current and future need for transplantable
kidneys. The growing disparity between demand and supply is
accompanied by a steep human cost. I argue that a regulated mar-
ket in organs from living vendors is the only plausible solution,
and that objections common to opponents of organ markets are
defeasible. I argue that a morally defensible market in kidneys
from living vendors includes four characteristics: (1) the priority of
safety for both vendors and recipients, (2) transparency regarding
the risks to vendors and recipients, (3) institutional integrity
regarding guidelines for cooperating with kidney vendors, and (4)
operation under a rule of law. I conclude with some remarks on
remaining problems with this account, and offer some suggestions
as to how these problems might be addressed.
Keywords: kidney failure, kidney transplantation, organ dona-
tion, organ market, organ trafficking, organ vendor
I. INTRODUCTION
The current commitment to the principle of equal access to the waiting list
for deceased donor organs is degenerating into an equal opportunity to die
on the waiting list. Though the number of living donors has increased in
response to a growing number of patients in need of kidney transplants,
this response has been and will be inadequate to the current and future
demand. This has spurred interest in novel strategies to increase the number
of available organs, including market solutions.
Address correspondence to: Benjamin E. Hippen, M.D., Metrolina Nephrology Associ-

ates, 928 Baxter Street, Charlotte, NC 28204, USA. E-mail: benjaminhippen@hotmail.com
593
594 Benjamin E. Hippen
Opponents of organ markets often conflate market proposals with the

underground practice of organ trafficking. This paper critically examines
some premises common to many opponents of organ markets. I argue for a
moral distinction between organ trafficking and organ markets. By identify-
ing salient moral wrongs in the current practice of organ trafficking, I argue
for the moral permissibility of a market in organs subject to certain side-
constraints. I conclude that the theoretical basis for the current legal prohi-
bition on a regulated market in organs is flawed, and should be rejected.
II. THE COST OF QUEUING
It is well established that the number of organs available for transplantation

is far exceeded by the number of patients whose lives might be improved
and prolonged by renal transplantation. The rate of increase in patients with
end-stage renal disease (ESRD) is such that the number of patients who will
require either dialysis or transplantation is expected to double by the year
2010, to 650,000 patients. Of those, approximately 100,000 will be on the
waiting list for a renal transplant, a near-doubling of the current waiting list
(Xue, Ma et al., 2001). The cost to Medicare for the care of dialysis and
transplant patients is expected to grow from $17 billion in 2002 (2005) to
$28 billion in 2010 (Xue, Ma et al., 2001). These patients, who represent
approximately 0.5% of Medicare beneficiaries, were responsible for 5% of
the Medicare budget in 2002 (Xue, Ma et al., 2001).
Concomitant with the rapid rise in demand for transplantable organs has
been the stagnant growth in the number of deceased donor kidneys, and the
subsequent rise in number and importance of living related and unrelated
donation. Nationally, the rate of growth in the number of deceased donors
has been stagnant since 1997. As a consequence, the number of living donors
exceeded the number of deceased donors in 2002. Living unrelated donation
alone now accounts for 29% of living donation in the United States.2
The consequence for individual recipients without a donor is longer
time on the waiting list. How much longer is still unknown. Median waiting
times for patients on the deceased donor kidney waiting list with less com-
mon blood types, as well as highly sensitized recipients,3 have not been
reliably calculable since 1999, since fewer than 50% of these patients have
been transplanted since listing. If the waiting list for deceased donor kid-
neys doubles in the next 5–7 years, waiting time on the list for patients in
these categories will exceed the median life span of most dialysis patients.
Dialysis patients with ESRD not due to diabetes have a mortality of 60% at 5
years (2005). Patients with renal failure due to diabetes (the leading cause
of renal failure in the U.S.) fare worse. It is also clear that time on dialysis
is a significant risk factor for worse outcomes after transplantation. Even
a short (<6 months) duration on dialysis is associated with a substantial
A Regulated Market in Living Vendor Kidneys 595
decline in long-term outcomes when compared to preemptive transplanta-

tion (Meier-Kriesche & Kaplan, 2002). About 5% of people on the waiting
list for deceased donor kidneys die annually,4 though this fraction will
increase in the next several years. The advantages of transplantation over
dialysis for virtually all categories of patients with ESRD are not controver-
sial. Transplantation confers a longer life span, a better quality of life, and is
less expensive than dialysis. This remains true for recipients over the age of
65 (Oniscu, et al., 2004), and recipients of so-called “marginal” deceased
donor kidneys (Ojo, et al., 2001).
Recent proposals to increase the number of available organs are more
notable for their novelty than as serious attempts to address the magnitude
of the problem at hand. Current schemes aimed at increasing the number
of available organs, such as donor-recipient swaps and list-paired
exchanges (Delmonico, Morrissey et al., 2004) crossing blood group and
sensitization barriers (Tyden, Kumlien et al., 2003; Sonnenday, Warren
et al., 2004; Warren, Zachary et al., 2004), and non-directed living dona-
tion (Jacobs, Roman et al., 2004; Gilbert, Brigham et al., 2005) are moti-
vated in part by a common recognition that the current system is not
working. Unfortunately, none of these strategies can conceivably meet the
forecasted demand.
If median waiting times approach 10 years, then only the very small
fraction of patients who survive on the waiting list for 10 years will receive
kidneys. Longevity on the waiting list should correlate with variables that
predict longevity on dialysis. Recipients likely to live out the long wait will
be disproportionately younger (<40 years old), Black, obese (defined as a
Body Mass Index > 30 kg/m2), and have ESRD from primary rather than
secondary causes, such as diabetes and hypertension. A 10 year waiting
time biologically excludes almost all patients who initiate dialysis after age
55 (the fastest growing cohort of patients with ESRD), and persons with
ESRD due to diabetes (the most common cause of ESRD in the U.S.), since
such patients are far more likely to die after 10 years on dialysis (2005). In
short, waiting time as a means of distributing this scarce resource privileges
one measure of equality (equal time on the list) at the expense of any other
understanding of equal treatment. When the demand for kidneys substan-
tially outstrips supply, the waiting time model privileges younger and
healthier patients under the patina of “equal access” to the waiting list. Iron-
ically, if the mean waiting time for a deceased donor kidney exceeds the
mean life span of most dialysis patients, waiting time will be superseded by
chance, since even the youngest and healthiest dialysis patients will pay a
steep biological price in the form of cardiovascular morbidity, which will
render many too ill for transplantation.
There is no strategy to increase the number of available organs cur-
rently entertained in policy circles that addresses the magnitude and
scope of the problem, and the consequences of inaction or insufficient
action are foreseeable. A plausible defense of a market in organs requires

demonstrating that (a) an organ market is likely to be more successful in
meeting the magnitude of current and future demand than other strate-
gies, and (b) common moral objections to an organ market are defeasi-
ble. With these requirements in mind, I address some common criticisms
of organ markets.
III. CRITICISMS OF THE MARKET COMPENSATION MODEL

A. People May Withdraw from Altruistic Donation If a Market
is Created
There are two versions of this criticism. The first is that altruistic donors will
abandon living donation in response to the creation of an organ market due
to popular revulsion, desire to avoid personal risk where other options are
available, etc., resulting in fewer organs available for transplantation. The
short response to this criticism is that organ markets, unlike other proposed
incentives, can credibly adjust to donor attrition by the expansion of organ
vending. The second version of this criticism is that an organ market might
result in an increase in the net number of organs, but would reduce altruis-
tic donation by replacing donors with paid organ vendors, an outcome
opponents of organ markets view as bad. This argument is demonstrably
false. Organ markets may or may not reduce donation, numerically speak-
ing, but an organ market would have the effect of increasing altruistic
donation, rigorously understood.
Popular revulsion against an organ market might reduce the number of
donated organs (Prottas, 1992), but donor attrition might also occur for rea-
sons other than revulsion. For example, some donors might be reluctant to
undergo an invasive procedure because of safety concerns (Pence, 2002),
though the available data suggests that it is reasonably safe over the short
term (Matas, Bartlett et al., 2003) and long term (Gossmann, Wilhelm et al.,
2005; Ellison, McBride et al., 2002). Similarly, despite their urgent need for a
kidney, many recipients would rather not expose their potential donor
(often a relative or close friend) to physical or psychological risk, however
small.
Although the best available evidence suggests that kidney donation is
safe, a potential donor who declines to donate their kidney because of con-
cern over the risk of donation, or the desire not to be inconvenienced, is
not usually understood as having violated any prima facie moral obligation
to donate. Indeed, a premise of the donor screening process is the assump-
tion that donation is not a moral obligation.5 Accordingly, the decision to
donate and accept the attendant risks is properly understood as an act of
supererogation, since donors perform a morally salutary action they are not
morally obligated to do.6
Suppose it is the case that the establishment of an organ market

resulted in a decline in organ donations.7 It is possible, but implausible, to
suppose that siblings and spouses would cease to donate organs to a loved
one to voice opposition to an organ market, since the penalty for this moral
opposition would be most proximately visited on their designated recipient.
A more plausible reason for a decline in living donation would be that an
organ market offers an alternative source of organs. However, a donor’s
refusal to donate on these grounds implies that altruism may not, in fact,
have been the dominant motive for these particular donors. If an organ mar-
ket does not prevent supererogatory action, and altruistic donation is super-
erogatory, donors whose dominant motive is altruism should not be dissuaded
from donating. In short, the existence of an organ market may or may not
reduce living donation, but an organ market does ensure that those who
nevertheless choose to be organ donors are far more likely to do so for
altruistic reasons. Just as some potential donors might decline because of
an alternative possibility of procuring an organ through a market, some
potential donors will make their altruistic moral commitments clear by freely
donating their organs, explicitly rejecting compensation. In this instance, the
altruism of the donor is clarified by explicitly declining to participate in a
market exchange. Similarly, recipients who object to the propriety of organ
markets can actualize their moral principles by declining an organ procured
in a market exchange.8
Raw self-interest need not be the only reason potential donors and
recipients decline to participate in altruistic donation. Complex interactions
of guilt, residual resentments on the part of the recipient for persistent feel-
ings of indebtedness toward the donor, family pressures on both the donor
to donate and the recipient to accept the donation and (justifiably or not)
accept the moral responsibility for its success or failure all contribute to
what Fox and Swazey have called the “Tyranny of the Gift”:
This psychological and moral burden is especially onerous because the

gift the recipient has received from the donor is so extraordinary that it
is inherently unreciprocal … As a consequence, the giver, the receiver,
and their families may find themselves locked in a creditor-debtor vise
that binds them one to another in a mutually fettering way (Fox &
Swazey, 1992, p. 40).
The existential complexity of the donor/recipient relationship is insufficient

justification for prohibiting living donation. But the “tyranny” of a gift-rela-
tion arises, at least in part, from the curtailed options available to donors
and recipients under the current system of procurement and allocation.
Recipients are free to choose between dialysis (and an early death) and
accepting a donated organ, just as donors are free to choose between
donating and being thought complicit in the consequences of not donating.
But as is often the case, these choices are made in the context of suffering
and tragedy, compounded by the fact that the range of choices available to
donors and recipients are circumscribed by the proscriptions of federal law
(National Organ Transplant Act, 42 USC 273).
If Fox and Swazey’s criticism of donor/recipient relationships is true,
the option of procuring an organ through an organ market actually confirms
a choice of altruistic organ donation as morally salutary in a way that the
current system does not by the application of a strict counterfactual. A
donor who donates even when an organ market offers an alternative source
of organs donates for altruistic reasons, since the alternative source of
organs is irrelevant to the other-regarding feature of the donation. Donors
who refuse to donate when an organ market is available are not motivated
primarily by altruism. Under a market system, the donor’s choice to become
an altruistic donor, with the attendant moral commitments of gift-giving and -
receiving, can be unambiguously interpreted as a courageous, generous act
of supererogation, freely accepted because both the donor and recipient
could have chosen otherwise without the threat of the continued suffering or
untimely death of the recipient. As living donation increasingly becomes the
only plausible route to transplantation, the pressure on potential donors
from the donor’s recipient, family members, or larger moral community is
likely to increase. Most donors will freely renew their moral commitments to
family, community, or faith and donate. For the same reason, donors who
decline to donate because of the alternative of a market in organs perhaps
ought not to be donors in the absence of a market. Donors and their recipi-
ents who choose to accept the burdens (where they exist) of their new rela-
tionship can do so freely, since each had other choices that would still
result in the recipient receiving a transplant.
B. Market Compensation Risks Kidneys Becoming Commodities Only

Available to the Rich, and the Demand Will Drive the Payments up to
Large Amounts (Israni et al., 2005)
It is widely assumed that a market in organs would necessarily result in
preferential access to organs by the rich. This argument relies on a number
of dubious assumptions. First, it assumes that the potential number of organ
vendors is fixed and small. Relative to demand, an organ market has the
flexibility of valuing organs at whatever price results in adding organs from
a pool of organ vendors which is potentially quite large. Consider: there are
currently 60,000 persons on the waiting list for a kidney transplant in the
United States. The U.S. has approximately 290 million people, of which
about 60%, or 174 million people, are between the age of 18 and 65, a rea-
sonable age range for a potential vendor pool (Census 2000). Since about
100,000 people are expected to be candidates for transplantation in 2010
(Xue, Ma et al., 2001), the needs of all recipients could be met by 0.06% of
the relevant population, assuming that all other living and deceased organ
donation ceased entirely. Even postulating the most rigorous screening cri-
teria for vendors, future demand (driving the cost of organs) would be sub-
stantially offset by the far greater supply of potential organ vendors.
Second, this argument assumes that the only type of valuable consid-
eration available for exchange is personal wealth. However, every U.S. cit-
izen with ESRD who qualifies for Medicare, regardless of their material
wealth, is provided a welfare entitlement to dialysis. Permitting potential
recipients with ESRD to bargain with the state (or simply granting a new
entitlement) in exchange for a transplant would permit a mutually advan-
tageous exchange: longer and improved quality of life for the recipient,
financial benefit to the vendor, and substantial cost-savings to the federal
government.9
Other types of “valuable consideration” might include lifelong health
care insurance coverage (analogous to benefits afforded to veterans), term
life insurance, loan forgiveness programs, scheduled deposits in a tax-shel-
tered retirement account, etc. Alternatively, vendors with less of a need or
interest in personal enrichment can designate a beneficiary, such as a chari-
table or non-governmental organization. Part of a model vendor contract
might include a life/disability benefit in the event of a post-operative catas-
trophe, one that might be extended free of charge to altruistic donors as
well. As a group, appropriately screened kidney donors appear to have the
same long-term outcomes as their age-matched non-donor counterparts. If
vendors were screened as carefully as donors, they would be a comparably
low-risk group to insure.10
Whatever the cost of organs might end up being in a hypothetical mar-
ket in the United States, the potential cost-savings from a functioning trans-
plant compared to dialysis is substantial. As Matas and Schnitzler have
shown (2004), a doubling of the number of organs procured from a market
system would permit Medicare to pay $50,000 per organ and still break
even. As the number of organs procured increases, the break-even price
also increases.
To be sure, the price of organs would change based on a host of fac-
tors, including the quality of organs and small fluctuations in demand and
supply. The enormous supply of potential vendors would ensure that the
price of any one organ would not be dramatically different from any other.
The growing fraction of highly-sensitized patients on the waiting list, most
of whom are almost biologically untransplantable in the current system,
would especially benefit from this arrangement, since the size of the poten-
tial vending pool would markedly improve the chance of finding an immu-
nologically compatible kidney. The flexibility that market relations make
possible permits vendors to accept valuable consideration substantially
tailored to their needs. The argument that organs would only be available to
the rich rests on an overly narrow view of market relationships.
C. Organ Markets, Like the Market in Blood, Would Make

Transplantation Unsafe through the Procurement of Lower Quality
Organs and Result in Worse Outcomes for Vendors and Recipients
The blood and blood product supply does provide insight into the pitfalls of
markets and prohibitions, but not in the way critics suggest. Citing the work
of Richard Titmuss (1970), critics repeat the argument that blood from paid
donors contributed to an increase in hepatitis among transfusion recipients.
This was true in 1970, when Titmuss’s research was published. However,
reliable serologic detection of the hepatitis B surface antigen was not devel-
oped until several years after Titmuss’s research, making prospective sero-
logic screening of blood donations at the time impossible.
Unfortunately, the converse premise, that altruistic blood donation would
inevitably result in a safer blood supply, turned out to be dangerously false.
In his work on the history of blood, Douglas Starr documents that the trans-
mission of HIV through the blood supply in the 1980s was partially attribut-
able to false assumptions about the safety of blood products obtained
through altruistic donation (1998). Starr documents that an outbreak of HIV in
the French blood supply was due to the widely-held assumption that blood
obtained from unpaid donors was inherently safe. Starr’s research shows that
the miniscule risk of becoming infected with hepatitis or HIV from transfusion
of blood has less to do with the voluntarism of blood donors than it does
with substantial advances in the ability to screen blood for infectious agents,
and oversight of blood procurement by institutions committed to safety.11
While the supply of whole blood in the United States is obtained on a
voluntary basis, the supply of blood products required for plasma exchange
and intravenous immune globulin (regularly used in most transplant cen-
ters) is obtained through payment to individual human vendors (Schwartz,
1999).12There is no evidence, in the era of reliable and redundant serology
screening, that blood products used for plasma exchange or intravenous
immune globulin pose a higher risk of transmitting disease compared to
whole blood collected from volunteers (Simon, 1998). On the contrary, in at
least one large study reviewing some 50,000 donations to the DeGowin
Blood center in Iowa, investigators found that donations from volunteers
were more likely to be deferred due to positive infectious serologies com-
pared to paid platelet/plasma vendors (Strauss, 2001).13
Two reports detailing the results of anonymous, or “non-directed,” liv-
ing donation illustrate the relevance of this point to kidney transplantation.
The University of Minnesota (Jacobs et al., 2004) received 360 inquiries over
six years regarding non-directed donation. Of these, only 51 returned a
follow-up phone call, 22 were eliminated during the initial testing for medi-
cal (fourteen) or psychological (eight) reasons, and two did not complete
the initial testing. Among the medical disqualifiers were: HIV infection, can-
cer, heart disease, morbid obesity, and hypertension. The Minnesota group
has now successfully transplanted kidneys from 22 non-directed donors
with good results, a yield of 6% (22/360) of the initial inquiries.14 As with
blood products, altruistic organ donors are not always the best candidates
for donation. Careful screening overseen by transplant professionals who
are committed to safe practices allows transplant centers to eliminate poten-
tial donors (or vendors) with medical or psychological contraindications.
It might be objected that the profit motive would make screening more
difficult, by creating an incentive on the part of the vendor to lie about condi-
tions that are contraindications to donation.15 However, it is difficult to lie
about objective measurements, such as proteinuria, a positive hepatitis serol-
ogy, or pre-existing conditions such as hypertension. Concerns about fraudu-
lent reporting can be addressed through random and redundant screening
prior to accepting candidates for vending. As the examples of blood product
sales and non-directed donor programs show, it is difficult to support argu-
ments against the efficacy of objective screening methods as applied to organ
vending without applying the same arguments to the screening methods in
altruistic donation. It does not denigrate organ donors to argue that altruistic
donations are not safe just by virtue of being altruistic. It is plausible to
believe that for some potential donors, faced with the suffering and prema-
ture death of a loved one on dialysis, the obligation truthfully to reveal facts
that might disqualify them from donating may be of secondary importance.
And, it is a dangerous conceit to suppose that even the most experienced,
empathetic transplant professionals possess an exhaustive, penetrating insight
into the minds and motives of donors, vendors or recipients. The transplant
community, like the transfusion community, relies on imperfect but highly
effective methods of screening. The approach taken with altruistic donors can
be equally applied to organ vendors: trust, but verify.
It might be argued that a small amount of risk to altruistic donors is
only morally justified because their motives are morally salutary and the
donors (and their doctors) undertake the risks freely. Absent this worthy
motivation, the same risk for the same person as a vendor is not permissi-
ble.16 However, this standard of permissibility renders impermissible a great
many procedures currently deemed morally permissible, if not exactly mor-
ally salutary. For example, the legal licitness of elective liposuction permits
patients and physicians to accept a numerically comparable risk of death
from the procedure.17 If it is true that safe practices ought to be a condition
for the participation of transplant professionals in an organ market, the out-
comes by which the safety of organ vending is judged should be the same
outcomes by which the safety of organ donation is judged. Evidence that an
organ market governed by safe, evidence-based practices resulted in
substantially greater harm to vendors as compared to altruistic donors

would be cause for transplant professionals to suspend their participation
and call for a moratorium.18
D. A Regulated Market Would Not Be the Only Source of Organs, and

If the Current Prohibition against Sales Were Rescinded, There Would
Be Little Justification for Preventing Persons from Bypassing the
System to Obtain Organs through Internet Transactions or Organ
Traffickers. (Delmonico et al., 2002; Delmonico and Scheper-Hughes,
2002; Delmonico and Scheper-Hughes, 2003)
Opponents of organ markets sometimes conflate the purchase of an organ
with a successfully transplanted organ. This premise is false. Negotiating a
“better price” for an organ presumes that the quality of the evaluation of
both vendor and recipient, the technical expertise of the surgeons, the post-
operative care and a host of other variables that can impact outcomes are
equal and interchangeable between transplant centers. The widely cited
reports of donor complications and poor recipient outcomes from trans-
plants obtained through organ trafficking proves this is not the case
(Scheper-Hughes, 2000; Zargooshi, 2001; Goyal, Mehta et al., 2002). Limit-
ing the hypothetical market value of a successful transplant to the cost of
the organ discounts the competing market value of a safely performed
transplant with a good long-term outcome. The fact that vendors and recip-
ients have been harmed because of substandard care in organ trafficking
means that a “better price” does not imply a “better value,” morally, eco-
nomically, or medically speaking.
It is disingenuous to argue that organ markets are morally impermissi-
ble because organ trafficking has failed to improve, and in many instances
has worsened, the lives of some vendors. The limited number of available
organs in the face of ballooning demand, and the consequent development
and flourishing of an underground market in organs are the unintended
consequences of the inadequacy of current organ procurement policies.
More than any other strategy, a regulated market in human organs is better
suited to reduce organ trafficking by offering vendors and recipients alike a
safe alternative, while significantly reducing the demand for organs that per-
petuates organ trafficking.
E. An Organ Market Would Necessarily Result in Symbolic Harm to

Vendors, with Adverse Consequences for the Respect Due to Human
Beings as Moral Agents
It is true that organ trafficking treats the vendor as a means rather than an
end in himself. But the same need not be true of organ markets, which
treat the vendor as an end in himself by establishing an organ market in

which his safety and contractual rights would be protected by the rule of
law.
For some critics, this response fundamentally misunderstands the objec-
tion. Nancy Scheper-Hughes, an anthropologist and prominent critic of
organ trafficking in the Third World, argues that using the language of mar-
kets itself subverts the dignity of human beings by conceiving of them as
mere commodities to be bought and sold to recipients. Furthermore, she
alleges these recipients are motivated by a subterfuge perpetrated by trans-
plant professionals: “. . . the transformation of a person into a ‘life’ that must
be prolonged or saved at any cost has made life into the ultimate commod-
ity fetish” (2002, p. 62).19 On this account, it is the very activity of applying
the language and concept of markets to human activity that causes harm.
Margaret Radin describes commodity fetishism as “. . . false objectification—
false separateness from us—in the way we conceive of our human
attributes, our social activities and our environment reflects and creates
dehumanization and powerlessness” (1996, p. 82). Of course, fetishized
commodities are fetishes qua objects of desire, and the procurement of
objects of desire need not only occur through the exchange of money. If it
is true that organ vendors are conceived as repositories of desired commod-
ities, any desire for this commodity must be supported by false or deeply
misleading premises. Scheper-Hughes argues that the hope offered by trans-
plantation is based on a manufactured desire for eternal life, made all the
more desirable by the market language of scarcity:
. . . this scarcity, created by the technicians of transplant surgery, repre-

sents an artificial need, one that can never be satisfied, for underlying it
is the unprecedented possibility of extending life indefinitely with the
organs of others. I refer, with no disrespect intended to those now
patiently waiting for organ transplants, to the age-old denial and refusal
of death that contributes to what Ivan Illich identified as the hubris of
medicine and medical technology in the face of mortality (Scheper-
Hughes, 2000, p. 192).
This view is seamlessly transposable onto relations between “altruistic”

donors and recipients. If recipients are viewed as being driven by a false
desire for eternal life, perpetuated by transplant professionals to further
their own interests, then the activity of publicly encouraging altruistic dona-
tion becomes merely sinister. Donors, in this view, are subverted as merely
means to enrich physicians and hospitals, parasitic upon on the false prom-
ise of a technological “denial of death.” Trading on the precept from com-
mon morality that selfless donation is praiseworthy, transplant professionals
are viewed as enriching themselves personally and professionally by foster-
ing a never-ending cycle of desire to receive and to give.
If, on the commodity fetishism model, the “altruistic” model is insuffi-

cient to meet the (impossible) desire for eternal life though perpetual trans-
plantation, transplant professionals can be expected to exploit other
strategies on the margins of acceptability for common morality. On this
view, if financial incentives or explicit compensation proves to be impracti-
cal, playing on the donor’s fear that their recipient may die might be a more
tactically effective approach to increase the number of transplantable
organs, thereby increasing the financial and professional power of the trans-
plant professionals involved: “The specter of long transplant waiting lists—
often only virtual lists with little material basis in reality—has motivated
physicians, hospital administrators, and various intermediaries to employ
questionable tactics for procuring organs” (Scheper-Hughes, 2000, p. 198,
italics added). Absent other measures to protect themselves from what she
refers to as the “neo-cannibals” of transplantation (Scheper-Hughes, 2000, p.
198), Scheper-Hughes argues that the spare-parts proletariat can only liber-
ate itself by spreading false rumors about transplantation (Scheper-Hughes,
2000, pp. 201–2).
It is true, but insufficient, to observe that this account is a grotesque
distortion of the actual practice of organ transplantation, or that it slanders
the valor of organ donors and transplant professionals past and present, or
that it condescends to legions of transplant recipients, or that it irresponsibly
suggests that rumor-mongering is a useful tool for addressing social inequal-
ities. The main reason commodity fetishism is a poor explanatory model for
transplantation is its relentless reduction of human motives to a set of dubi-
ous ideological assumptions that are not subject to dispute. The concept of
commodity fetishism offers a very limited capacity to explain the variety of
reasons recipients want a transplant, donors wish to donate, and vendors
wish to sell. Since the actions of recipients, donors and vendors are all
indexed to their relationship to commodification and the achievement of
false desires, each actor is incapable, on this model, of intelligible action
outside these desires, with the notable exception of acting to disparage or
destroy the system of transplantation itself. Thus, the person motivated by
religious faith to pursue non-directed living donation to a stranger, the
recipient who wishes to live long enough to see his teenage children get
married, and the vendor who wishes to improve the lot of himself and his
family are painted with the same conceptual brush: they are ensnared and
deluded by the same false promises which secretly serve powerful interests.
The limited explanatory capacity of commodity fetishism is illustrated
by Scheper-Hughes’s explanation of why the rate of deceased organ dona-
tion from Blacks and Hispanics is less than that of Caucasians:
They [Blacks and Hispanics] are being asked to give organs to support a
social and medical system that excludes them and within which they
would have a lower probability of receiving an organ, should that need
arise. One needs to be relatively affluent and otherwise healthy and well
looked after to be recommended for organ transplant. Widespread
refusal to donate among poor Latino and African Americans is a politi-
cal act of considered resistance (Scheper-Hughes, 2001, p. 66, italics
added).
Is it? Studies of Black American attitudes to organ donation suggest that this
is not the best explanation. Siminoff et al. (2001) has reported less of a will-
ingness to donate a deceased family member’s organ after brain death
among Black Americans compared to Caucasians. However, the differences
between the two groups disappeared when family members knew the
deceased’s wish regarding organ donation (Siminoff & Saunders Sturm,
2000). Siminoff and Saunders Sturm also found that one-quarter of the Black
American respondents had not made up their mind about donating their
organs after death, and some 60 percent of respondents had not discussed
the issue with their family. They conclude, “African Americans’ reliance on
knowing their family member’s wishes may explain their lower rates of con-
sent to donation in actual situations where family members, rather than the
potential organ-donors themselves, become the decision makers” (Siminoff &
Saunders Sturm, 2000, p. 66). Other studies have identified this combination
of family member preconceptions about the wishes of the deceased with
the lack of prior communication regarding the deceased’s actual wishes as a
predictor of unwillingness to donate (Siminoff, Arnold et al., 2001; Haustein
& Sellers, 2004). Haustein and Sellers correlated misconceptions about organ
transplantation more generally with unwillingness to donate. In this survey,
persons less willing to donate were also more likely to believe allocation of
deceased donor organs is based on race and income, that it involves
expense for the donor family, that brain-death implies a chance of recovery,
and that designated organ donors are thereby less likely to receive the care
they need (Haustein and Sellers, 2004). A recent review of deceased kidney
donors in the United States from 1996–2001 revealed a net transfer of 18%
from white donors to black recipients, confirming that the direction of
deceased kidney donation runs in the direction of need rather than in pro-
portion to the ethnicity of the donor (Sehgal, 2004). Misapprehension of
verifiable facts, ambivalence about donation and a lack of communication
with others is unconvincingly described as “a political act of considered
resistance” to the enterprise of transplantation.
Fortunately, arguments alleging the symbolic harm of organ commodi-
fication can be formulated without the conceptual baggage of commodity
fetishism. Arthur Caplan has argued that a market in organs would demon-
strate insensitivity to the legacy of human slavery in the United States by
treating human beings as chattel (Delmonico & Scheper-Hughes, 2003;
Israni, Halpern et al., 2005). This argument is difficult to reconcile with
results of a study Caplan cites in support of this position, which shows that
Black Americans are far more favorably disposed to paying families who
agree to donate the organs of their deceased loved ones (43.2% versus
12.9% of Caucasians, p < 0.01 (Siminoff & Saunders Sturm, 2000, p. 68). Of
course, the study in question reviewed attitudes regarding deceased donor
organs, not living organ vending. And, the mere fact that Black Americans
were more disposed to accept compensation does not constitute a justifica-
tion of such practices. However, when Black Americans were actually
asked, the purported symbolic link between compensation and slavery was
not prominent enough to dissuade a substantial number of Black Americans
from approving of compensation in principle.
Speculative assertions of symbolic relationships between organ markets
and slavery are not interchangeable with moral justifications for or against
organ markets. On the contrary, when these equivocations are taken to be
normative, it deprives individual moral agents of the opportunity to fashion
the meaning of such relationships for themselves. The same criticism can be
applied to arguments which relegate certain moral relationships (like altru-
ism) to the prejudices of a “dominant white majority” (Siminoff & Saunders
Sturm, 2000).20 Reducing altruism to a feature of ethnic hegemony cheapens
the moral worth of altruism as practiced by free individuals. On this
account, neither whites nor blacks are truly free to practice altruism; for
whites, altruism becomes merely an extension of ethnic identity, whereas
for blacks it becomes understood as something like acquiescence with
white hegemony. This interpretation of altruism is strikingly different from
how free individuals who choose to act altruistically understand their own
action, and suggests there is something more generally wrong with defend-
ing moral arguments with assertions about speculative symbolic relation-
ships that are either not verifiable (and therefore not subject to dispute) or,
on examination of the evidence, simply not verified.21
When individuals are free to interact with one another, within the con-
straints of moral permissibility, any single relationship might be interpreted
in a variety of ways. Exchanging money for an organ not essential to life
might be viewed as exploitative of the poor or, alternatively, as empower-
ing of a poor person. The burden of justifying restrictions on these interac-
tions shifts from individual moral agents to those who would impede their
free and peaceable interactions with one another, but the standard of proof
includes fulfillment of the necessary conditions for the morally permissible
participation of transplant professionals. Hence, recognizing the fact of
moral pluralism does not entail a defense of moral relativism. Restrictions
remain on how moral agents may permissibly be treated, regardless of one’s
moral commitments, restrictions which I describe as “side-constraints,”22 and
defend in the final section of the paper. In the case of organ markets, such
side-constraints detail the obligation of transplant professionals to limit their
participation in an organ market to situations in which safe, evidence-based
practices can be reasonably assured.
This latter point is of special significance in distinguishing a justifiable

market in organs from the current practice of organ trafficking. Organ traf-
ficking requires conditions of fraud, corruption, and a weak rule of law as a
condition for successful operations.23 My defense of permissible organ mar-
kets also justifies a moral and legal prohibition of organ trafficking without
contradiction.
The history of renal transplantation is one of technical success, prompt-
ing challenges to a succession of moral boundaries and the moral imagina-
tion of critics. In 1986, a discussion of expanding the use of living-unrelated
donors for renal transplantation took place in the pages of the New England
Journal of Medicine. Gabriel Danovich, a transplant surgeon, took a dim
view:
Dr. Levey and his colleagues are proposing . . . that after various safe-
guards are observed, we permit and even encourage kidney donation
from a stranger to an unknown recipient. I find their proposal objectionable
and unacceptable. Such donations would not be an act of love, and it is
unclear to me what the prospective donor’s motivation would be, if not
financial. Human ingenuity knows no bounds, and in our fortunately
free society it would be exceptionally difficult to be convinced of the
purity of the motives of a “living stranger donor” (Fox & Swazey, 1992,
p. 47).
Some 20 years after this remark, living-unrelated donation represents 28.4%

of all kidneys from living-donors, and is the fastest growing category of
recipient in renal donation (http://www.ustransplant.org, Table 2.8). Aside
from the excellent technical outcomes of living-unrelated transplantation,
the moral consequences of permitting living-unrelated transplantation have
been quite different from what Danovitch imagined. Living-unrelated
donors include altruistic non-directed or “anonymous” donors, spouses,
close friends, and fellow members of a moral community.
It is plausible to conclude simply that Danovitch happened to be wrong
on this point. However, there is a relevant parallel between Danovitch’s
incorrect generalization about living-unrelated donation and generalizations
made by organ market opponents about the motives of those who would
be organ vendors. Danovitch’s generalization was wrong because it failed to
capture the depth, the complexity, and the diversity of moral relationships
between human beings that extend beyond biological family relationships
when it comes to assessing motives for living-unrelated donation. Oppo-
nents of organ markets often build their case on equally false generaliza-
tions about the motives and circumstances of organ vendors. Vendors are
widely assumed to be exploited by economic circumstances beyond their
control. Curiously, the same critics who argue that human relationships ought
not to be reduced to market exchanges often operate on the assumption
that if enough money is involved, humans are rendered incapable of acting

against their financial self-interest (Caplan, 2004). The idea that potential
vendors might act outside of their economic self-interest and choose not to
be vendors because of different moral commitments is dismissed as hope-
lessly naïve: How could one expect a person in poverty not to sell an
organ, if given the chance? Proscribing the free will of vendors in this fash-
ion allows opponents to justify prohibition of vending in the name of their
unique understanding of the common good. Since the fact of poverty makes
the choice between selling one’s organ and declining to do so “irresistible,”
poverty also eliminates the possibility the potential organ vendors could
choose not to vend; the “correct” choice must be made on their behalf, by a
general prohibition on organ vending.
Other prominent opponents of organ markets have argued that permit-
ting organ vending would “foster class distinctions,” and “infringe on the
inalienable values of life and liberty” (Delmonico, Arnold et al., 2002), and
is therefore morally impermissible. Rhetoric aside, class distinctions are
fostered more starkly by the assumption that an entire class of persons are
irresistibly alienated from life and liberty if enough money is involved. A
dependence on the caricature of “economic man,” driven entirely by mate-
rial ends, remains an assumption of critics of organ markets, not proponents
(Epstein, 1995). Proponents of organ markets hold that the rationale for
choices made by free moral agents are inadequately explained by economic
determinism and are less transparent to observers than is commonly
assumed. Accordingly, proponents recognize that the value of permitting
market exchanges is instrumental. There is nothing morally salutary about
market relations in themselves. Rather, markets are instrumentally valuable
in permitting persons with diverse, conflicting moral commitments to meet
and interact on the basis of mutual assent and peaceable negotiation, just as
abstaining from certain market relationships can be equally demonstrative
of one’s moral commitments.
The view that enough money results in the loss of a vendor’s ability to
act according to her moral commitments mistakenly oversimplifies the com-
plexities of the moral life of vendors, much in the way Danovitch’s general-
ization mistakenly oversimplified the moral life of unrelated donors.
Vendors might choose to sell their organ for a wide variety of reasons.
Some may use the money to pay medical bills, to start a business, to pay off
a credit card, to save for a child’s college education, or for retirement, or
food and shelter. Others may view a second kidney as one more than they
need, and feel little compunction about separating it from themselves for
cash. There is no reason to suppose the varieties of reasons why persons
would be motivated to vend should be any less diverse than the motives of
persons who become unrelated donors.
A final example of the limits of oversimplified accounts of vendor moti-
vation can be found in a recent volume on bioethics in the Third World,
focusing on the Philippines (Tiong, 2001). The author describes a moral com-
munity which focuses on the centrality of lifelong debts of gratitude to one’s
family (utang na loob), the normative force of authority figures, loyalty to
social units, and profound religious commitment, arguing convincingly that
moral discourse in Philipino culture, to be intelligible, ought to be interpreted
with this context in mind. As an example, Danilo Tiong describes the hypo-
thetical case of an imprisoned Philipino (“Pusakal”) who is offered the oppor-
tunity to discharge obligations to his family by selling a kidney:
Pusakal’s choice takes advantage of the most efficient and effective means
at his disposal, powered with the noble and morally acceptable motive of
love. Absent the kidney sale, there is little likelihood that he could ever
achieve such opportunities for his family. . . . The case is structurally simi-
lar to a case in which Pusakal donates his kidney to another person, who
then agrees to provide for Pusakal’s family. The only difference in this case
is that the purchase is outright, explicit, and honest (Tiong, 2001, p. 92).
It is presumed in this scenario that Pusakal’s imprisonment is not unjust,

and that the culturally-grounded moral commitments listed here are cor-
rectly attributed to Pusakal. It is true that Pusakal’s choices regarding how to
fulfill his moral commitments are limited, but it is true that (a) Pusakal has
choices about whether and how to discharge these obligations, and (b)
though one might not envy his choices, it isn’t implausible to recognize a
moral valor in Pusakal’s choice to sell his organ for the reasons offered. To
view Pusakal’s story simply through the prism of financial self-interest or as
a tale of exploitation would be to ignore the narrative through which
Pusakal achieves a measure of self-understanding and self-worth.24
Accepting that people in other cultures live within a moral valence dif-
ferent from one’s own does not entail accepting a vulgar cultural relativism.
Difference, by itself, has no normative significance. Recognizing that per-
sons in cultures different from our own, with moral commitments quite dif-
ferent from our own, can nevertheless lead rich moral lives, does not entail
approval of such moral commitments, or that one’s own moral commit-
ments are flawed, or false. However, such recognition commends humility
in making generalizations about the moral lives of others.25
For transplant professionals and policy makers, humility entails viewing
the moral commitments of potential organ vendors from the vantage of
whether cooperation with individual vendors would result in complicity
with incompatible moral commitments. Thus, a transplant professional may,
without contradiction, view participating in organ vending with Pusakal as
permissible, but view participating in organ vending with prisoners targeted
and incarcerated by the state to make money from organ harvesting as a
grave moral violation. Humility notwithstanding, some will in good faith
judge all vendor relationships morally unacceptable. However, for those
disposed to pay heed to it, humility may require that the moral commit-
ments of vendors, like donors, be evaluated on a case-by-case basis. Humil-
ity and a concern for avoiding complicity might well result in judging
cooperation with some vendors permissible, and with some donors imper-
missible, with the result that the currently accepted distinction between
donor and vendor may be morally relevant, but not decisive, in determining
for transplant professionals the moral permissibility of cooperation.
IV. DEFENDING A REGULATED ORGAN MARKET: THE PRIORITY

OF SAFETY, TRANSPARENCY, INSTITUTIONAL INTEGRITY,
AND THE RULE OF LAW
In his treatment of the philosophical implications of viewing the body as

alienable property, James Childress observed that the most common argu-
ments against organ markets simply fail. Childress argued that prohibiting
organ markets was nevertheless justified because proponents of organ
markets had not, to date, come up with a safe alternative to the current sys-
tem of organ procurement (Childress, 1992). To answer that challenge, I
begin with what a morally defensible organ market is not.
Two salient differences distinguish a regulated market in organs from
the current practice of organ trafficking. First, virtually all of the reports of
organ trafficking in developing countries describe a substantial decline in
health of the vendor after harvesting, a finding that stands in stark contrast
to reported outcomes from altruistic living donors in developed countries.26
The data for altruistic donor outcomes in developing countries is lacking,
but anecdotal reports from India (V. Jha, personal communication) suggest
that altruistic living donors have comparable outcomes to those in devel-
oped countries. The question remains as to why vendor outcomes in organ
trafficking are substantially worse. Obvious answers suggest themselves: (a)
the vendors are disproportionately poor, thus exposed to substantially
greater health risks compared to altruistic donors; (b) organ traffickers are
far less motivated to care about the health of the donor, surgical quality or
medical care; (c) the illegality of organ vending encourages subterfuge
regarding disclosure of risks to vendors or recipients. Neither vendors nor
recipients have avenues for redress if defrauded or physically harmed.
These factors conspire against the capacity of vendors to make free deci-
sions about their life and property. Trafficking built on principles of fraud
subverts the autonomous decision-making capacities of vendors and virtu-
ally ensures harm to the vendor and/or the recipient.
Second, payment promised to vendors is routinely much less than what
was promised (Zargooshi, 2001; Goyal, Mehta et al., 2002; Jha, 2004). Sys-
tematic corruption and the absence of any appeal to an enforceable rule of
law that binds individuals to contracts means that defrauding vendors is
routine. Arrangements in which one party routinely defrauds another,

exacts a measurable harm through the fraud, and in which the defrauded
have no method of recompense or appeal, is a minimally controversial defi-
nition of harmful exploitation, and would be prohibited in a regulated
organ market without contradiction (Cherry, 2000).27
The current system of underground organ trafficking may be inten-
tionally designed to use vendors whose health will deteriorate, and
whose economic status will decline. Since vendors from the lowest strata
of society are more likely to do poorly, unlikely to be informed of these
risks and unlikely to have effective means of redress when deceived
through application of a transparent and promulgated rule of law, they
are also the least capable of acting freely in deciding to become vendors.
This is not to say that they aren’t capable of acting freely, or that poverty
in itself deprives persons of the capacity for free decision-making. But, a
system in which 80% (Goyal, Mehta et al., 2002) to 85% (Zargooshi, 2001)
of vendors unequivocally stated they would not be vendors if they had it
to do over again plausibly suggests a system that subverts rather than
upholds free and informed decision-making by design rather than by
chance alone.
In sum, organ trafficking as described and as currently practiced is not
morally permissible, and legal prohibitions against it are justified. However,
the reason organ trafficking is not morally permissible is not because ven-
dors are poor, or are somehow incapable of autonomous decision-making
regarding organ vending. It is because the successful operation of organ
trafficking depends on defrauding vendors and recipients by routinely vio-
lating contractual agreements without avenues for redress, and deceiving
vendors and recipients about the short- and long-term risks to their health.
Trafficking fraudulently trades on the successful outcomes of reputable
transplantation, at the expense of vendors and recipients through inade-
quate medical and psychological screening.
Opponents of organ markets suggest that permitting a regulated mar-
ket in human organs would open the door to “unregulated” markets
(Kahn & Delmonico, 2004). On the contrary, an organ market would offer
a plausible alternative to organ trafficking, addressing the need of recipi-
ents while providing mechanisms to avoid the dangers and abuses of
organ trafficking. On the other hand, the many previous public condem-
nations by individuals, editorial boards, and professional organizations, as
well as international legal prohibitions on organ trafficking, do not appear
to have substantially abated the practice. Without a plausible alternative to
reduce the growing demand for transplantable organs, there is no reason
to suppose the failing policies of past and present will be any less of a
failure in the future.
A defensible market in human organs should, at a minimum, have the
following four characteristics:
• The priority of safety of the vendor and recipient;

• Transparency regarding risks to the vendor and recipient, and regarding
institutional outcomes and follow-up care;
• Institutional integrity with regard to establishing guidelines which broadly
reflect the conditions under which a given institution will and will not
participate in organ vending, including a mechanism of mediating institu-
tional financial conflicts of interest; and
• Operation under a rule of law, providing an avenue of enforceable
redress if contractual obligations are violated.
A. Safety and Transparency

Safety has both moral value and market value. The moral value of safety has
its foundations in the obligations of physicians to treat donors, vendors, and
recipients in a manner consistent with the current state of knowledge
regarding best practices and standards of care. In accepting this responsibil-
ity, individual physicians are therefore under no moral or legal obligation to
participate in a transplant if it is their opinion that either the donor or the
recipient are medically unsuitable for donation or transplantation. Further,
the transplant professional may be morally obligated to abstain from partici-
pation in such circumstances. Evidence-based practice guidelines regarding
the pre-transplant evaluation of donors (Davis, 2004), vendors, and recipi-
ents (Kasiske et al., 2002), obligations regarding proper informed consent
regarding the risks of donation (Abecassis et al., 2000), and the expected
morbidity and mortality rates from living donation (Matas et al., 2003) and
risks of subsequent renal failure after donation (Ellison et al. 2002) could
stand as the standards of safe practices. There is no reason that the obliga-
tions of transplant professionals to operate according to standards of care in
organ markets should be any more or less stringent than those expected
of such professionals and institutions involved in non market-based organ
procurement.
Along with moral value, safety and transparency have market value. If
it is true that the desperation of vendors and recipients motivates them to
overlook the many attendant risks of participating in organ trafficking, an
alternative without those hazards would be more appealing, and would be
more likely to be patronized. Indeed, the market value of safety may well
succeed where moral prohibition and legal sanction have failed in reducing
the practice of organ trafficking. One might correctly object that viewing
safety and transparency merely as a market value opens up the possibility
that safety might be compromised in exchange for a reduction in cost to
the recipient, or an increase in compensation to the vendor. Recipients and
vendors might be willing to incur more risk for a less costly vending
transaction. However, when safety and transparency are also viewed as con-
comitant moral obligations on the part of transplant professionals, when the
standards of proof regarding safety are clear (institutionally established

practices of safe evaluation, transplantation, and provision for follow-up
care) and the burden of proof is placed on transplant centers to be transpar-
ent regarding safe practices, the “negotiability” of safe practices ought to be
negligible.
B. Institutional Integrity
Some who view organ vending as permissible will nevertheless also view it as
a morally reprehensible practice. But nothing obligates individual vendors,
donors, recipients, transplant professionals, or transplant centers to participate
in an organ market. Just as some donors will manifest their moral objection to
organ commodification by refusing to accept compensation, some transplant
centers may communicate opposition to all organ markets by refusing to
cooperate with vendors. By fashioning policy on an institutional level, profes-
sionals, vendors, donors and recipients with compatible moral commitments
can cooperate with each other, and, unlike the current system, the forbear-
ance rights of each can be respected in full.
Beyond the other side-constraints, the specific content of different institu-
tional policies might vary widely. Different institutions may alternatively wel-
come, exclude, or maintain a case-by-case policy regarding vendors, internet-
based donor-recipient pairs, non-directed donors, and directed donations to
members within a specific moral community (such as within a religious faith
or ethnic group). Indeed, with enough agreement across individual transplant
centers, few changes need be made to the current system that governs the
allocation of deceased kidneys by privileging waiting time and HLA-matching.
Alternatively, in conjunction with a willing transplant institution, some wait-
listed recipients might choose to bargain with the state, offering Medicare an
opportunity to save the cost of a lifetime dialysis welfare entitlement in exchange
for acting as the purchasing agent for a transplantable kidney and a few
decades of coverage for immuno-suppression medications. In the event a
directed deceased donation is requested that is incompatible with the moral
commitments of one institution, the deceased donor organ might be shipped
to another institution with compatible moral commitments, perhaps in exchange
for an in-kind deceased donor organ transfer in the future.28 The specific con-
tent of individual institutional policies would be of less relevance than the
more general requirement for institutions to formulate policies that articulate
the moral commitments of the institution’s members.
C. Rule of Law
Legislative oversight of an organ market is necessary to ensure that stan-
dards of safety are met, to ensure good-faith enforcement of contracts
between vendors and other entities, and to protect against fraud. Ideally,
the law should serve as a side-constraint on other means of assuring institu-
tional integrity, such as accrediting powers of professional organizations
with voluntary membership.
In the context of an organ market, and using a distinction developed
by James Buchanan, the rule of law should have two basic functions
(Buchanan, 2000). First, the rule of law should have a productive function,
which facilitates freely agreed-to arrangements between individuals and
institutions. Second, the rule of law should be designed to protect the con-
tractual and forbearance rights of vendors, donors, recipients, professionals,
and institutions. The productive functions of law include provisions for a
common market in which potential vendors and institutions can meet and
negotiate transactional terms, as well as opportunities for vendors to bargain
with the State regarding the exchange-value of existing welfare entitlements.
The protective functions of the law might include designing sample con-
tracts that satisfy the side-constraints of safety and transparency, offering
adjudication and mediation mechanisms for resolving a range of contractual
disputes, and mediating conflicts of interest such as financial inducements
to increase vending through subversion of safe practices.
I have not offered a specific account of what a regulated organ market
would look like in practice. This is a deliberate omission. The proscriptions
I have argued for are side-constraints, which do not entail a single, specific
account of how an organ market must be structured in order to be consid-
ered morally permissible. These side-constraints are hypothetically compati-
ble with the monopsony model advocated by (among others) Nicholas
Tilney (Radcliffe-Richards et al., 1998) and Arthur Matas (2004) or with more
decentralized market models. On my account, fulfillment of the side con-
straints is a necessary condition for a morally defensible organ market. Of
course, the decision of individuals to be participants in an organ market
would depend on much more than that, namely, the dictates of the moral
commitments of the individuals in question. But, all such interactions ought
to satisfy the side constraints of safety, transparency, institutional integrity,
and operation within the rule of law.
V. ENDURING PROBLEMS FOR ORGAN MARKETS
Several problems remain for this view of organ markets, even operating
under the side-constraints previously described.
A. The Ambiguity of “Safe Practices” and Conflicts of Interest

The limitations and controversies in the literature on the evaluation and
long-term outcomes of living donors should be of special concern to
proponents of an organ market. In the context of abuses of organ traffick-

ing, the burden of proof is on transplant institutions to prove that properly
evaluated organ vendors can safely vend. Though there is no a priori rea-
son why properly regulated organ vending cannot be as safe as organ
donation, conclusions from the literature on living donors is not transpos-
able onto potential organ vendors, and the outcomes of organ vending
would require similar study to prove safety. Along these lines, reported
short- and long-term outcomes of living donors in developed countries
suggest a reasonable standard of safety. However, concerns and contro-
versies in the literature on living donors merit special consideration in the
context of an organ market.
A few examples of controversies about the safety of donating a kidney
include: patients with easily controlled hypertension (Textor et al., 2003),
who are obese and therefore at risk for developing kidney disease (Davis,
2004), or who have a strong family history of kidney disease (Davis, 2004)
or have had a kidney stone (Lee et al., 1994; Davis, 2004). Adjudication of
these risks is currently done institution-by-institution, and in some instances
on a case-by-case basis. Though donors are routinely apprised of these risks
when they are identified, the unique burdens of the donor role can conspire
to encourage both potential donors and transplant professionals to judge
the benefits to outweigh those risks that don’t rise to the level of an abso-
lute contraindication to donation (Fox & Swazey, 1992; Surman et al., 2005).
This problem is complicated by the dynamics of an organ market, but the
problem remains essentially the same. In this case, any number of influ-
ences may cause vendors and transplant professionals, even acting in good
faith, to modify judgments about acceptable risk. Financial incentives may
motivate either vendors or professionals to act in bad faith by deliberately
setting aside even less controversial assessments of risk. The slippery slope
is in clear view.
The problem can be addressed (if not resolved) with the companion
side-constraint to safety: transparency. Transplant centers should formu-
late and publish policy governing the center’s criteria for evaluation of
donors and vendors alike, with the goal of setting policy on acceptable
and unacceptable medical criteria based on a good-faith assessment of the
available evidence. Donor and vendor evaluation would be overseen by
an evaluation committee, which could include committee members who
have no financial or professional obligations to the vendors, donors, or
transplant center. Included on the committee might be the equivalent of
an ombudsman, charged with publicly reporting on the efforts of trans-
plant centers to ensure safe practices. Nevertheless, the question of who
watches the watchers would remain an important and persistent concern.
The ever-present realities of organ trafficking place the burden of proof
squarely on those seeking to morally distinguish a defensible market in
organs.
B. Vendors from Nations That Do Not Afford Protections

Which Fulfill the Side-Constraints
An obvious strategy to circumvent the side-constraints of safety and trans-
parency is cross-border brokering of human body parts. Countries in which
the side-constraints were enacted and enforced would be faced with screen-
ing potential organ vendors from other countries which have no provisions
for vendor protection. With minor adjustments to existing schemes of organ
trafficking, organ brokers could arrange the passage of vendors from coun-
tries without protections to countries with protections, only to return the
vendor to the country of origin after the transaction. Vendors would be as
unprotected from fraud and abuse as they are under the current practice of
organ trafficking.
Organ trafficking operates outside the laws of most countries. The suc-
cess of a legalized organ market governed by side-constraints rests on a
fragile trust. It requires trust in transplant professionals and institutions
operating according to a moral and professional commitment to place the
safety of vendors first, and in accord with a rule of law which protects the
contractual rights of vendors that is credibly enforceable. While some ven-
dors, even apart from the pressures of organ brokers or the constraints of
poverty, might be prepared to forego standards of safety, transplant profes-
sionals have a moral obligation not to participate in a vendor relationship
that violates the side-constraint of safe practices. In some circumstances, this
may result in a policy of not accepting any vendor who is not a citizen of
the country in which the transplant center is located, simply out of an abun-
dance of caution (Matas, 2004).29 It is possible that some vendors, frustrated
at being turned away by transplant centers which take the side-constraints
seriously, will turn to organ brokers and organ trafficking. In response, defend-
ers of organ markets can observe that an organ market governed by side-
constraints is the only plausibly effective means of substantially reducing
the demand that drives the practice of organ trafficking, by offering a safe
and morally defensible alternative.
A central argument of this paper is that the documented realities of organ
trafficking should serve as a basis for how a defensible market in human
organs can and should be distinguished. The longer prelude to this argument
is that purported analogies between a regulated organ market and various
dystopias should be viewed skeptically to the degree that they trade on dis-
tortion for rhetorical gain. The side-constraints of safety, transparency, and the
rule of law all stem from what is conspicuously lacking in the recorded prac-
tices of organ trafficking. These side-constraints are designed to permit per-
sons and institutions that share moral commitments to peaceably pursue their
projects and goals. It is not presumed that all persons will choose identically,
or that each person’s moral choices are somehow “equal” in value to the
choices of others, or that the choices of some would not represent examples
of grave evil to others. The side-constraints are designed with the assumption
that persons do and will continue to disagree radically over the answers to
substantive moral questions, and proceeds on the assumption that such per-
sons can nevertheless sometimes peacefully cooperate with one another. An
organ market, subject to side-constraints, is of instrumental value in the
peaceable mediation of these profound moral differences.
C. Portia’s Wisdom: Limits on the Fungibility of Organs qua

Commodity
Viewing organs as things that can permissibly be bought and sold raises the
question of whether entities other than a single buyer and seller can legiti-
mately claim property rights over an organ. In the case of deceased donor
organs, this question is partially addressed by the model of a futures market
(Cohen, 1989). In this model, the organ of a living person is purchased in
advance, and the property right is transferred upon death to the possessor
of the “organ future.”
The question remains as to whether the owner of an organ future is
thereby free to dispose of the organ in any way they see fit. For example,
could the owner of a deceased organ future (a) destroy “surplus” transplantable
organs in order to make remaining organ futures more valuable, or (b) allo-
cate procured organs according to criteria of the owner’s choosing? Cogni-
zant of these problems, futures market proponents stipulate that the owner
of an organ future should be a single entity, and disposal of the procured
organ should be limited to allocation for transplantation (Cohen, 1989).
However, the rationale for why property rights over organs should be cur-
tailed in this way is important, because such a rationale (whatever it is) may
entail other commitments as to how property rights may permissibly be
conferred and transferred. So, if the rationale for limiting organ property
rights to a monopsony is to prevent manipulation of the supply of organs
for personal gain at the direct expense of recipients, the source of this obli-
gation and what other restrictions on organ property rights becomes an
important question.
This is not an idle concern. Scheper-Hughes has alleged that hospitals
in several developing countries have conspired to dispose of transplantable
organs from potential deceased donors to avoid damaging the underground
trade in organs from live vendors (Scheper-Hughes, 2000). Other commen-
tators in India have observed that the presence of organ trafficking dilutes
the political will to institute a robust program for deceased donor procure-
ment (Jha, 2004). This is conceptually identical to the owner of an organ
future destroying an organ to manipulate the value of competing financial
interests. If it is impermissible for an individual to destroy an organ in his
possession to advance his financial self-interest, it would seem equally
impermissible for institutions to deliberately destroy transplantable organs
for the same reason. Even if the lack of a robust deceased donor procure-
ment program is not conspiratorial, the lack of a deceased donor program
that results in an increase in demand for organs from living vendors is a sys-
tem which benefits organ traffickers.
A market in organs from living vendors poses further problems. Since
the vendor is selling an organ while alive, an organ qua commodity could
also be viewed as a valuable asset by third parties who have other financial
relationships with vendors. Throughout, I have argued that vendors might
choose to sell their organs for a wide variety of reasons, including the
repayment of accumulated debt. If this is permissible, and absent other
means of payment, may a creditor require the sale of an organ (for living
vendors, or after death) for the purpose of debt repayment? If an organ qua
property is part of the estate of a living or deceased vendor, this question
tests the limits of viewing a vendor’s “right to vend” as a forbearance right.
If it is permissible to allow vendors to sell their organs and use the exchange
to further their own ends, it seems arbitrary to prohibit third parties from
insisting that vendors fulfill a financial obligation by selling a kidney. Nor
does this scenario necessarily violate Epstein’s (1995) caveat regarding con-
tracts that do not mutually benefit both parties, since paying off a debt is
arguably a benefit to the debtor.
However, it does not follow that such exchanges (or such contracts) are
therefore defensible. When, in The Merchant of Venice, Shylock demands a
pound of flesh as payment for a broken contract, Portia (disguised as a
judge) pronounces that the extraction of this gruesome restitution is indeed
part of a legally valid contract. But, Portia qualifies a crucial difference
between what the law permits, and what justice demands.30 Portia’s admo-
nition is a reminder that the side-constraints previously discussed do not
only apply to health care providers and institutions. To treat the side-
constraints as merely pro forma conditions for permissible action is to fail to
accord individuals the respect required by their moral agency. Persistent or
systematic violations of respect for moral agency may require that the con-
tent of the side-constraints be revisited and revised accordingly.
VI. CONCLUDING REMARKS
In this paper, I have argued for the following propositions:
• The current system of organ procurement, which inconsistently but insis-

tently emphasizes donor altruism, is positioned to fail;
• Arguments by analogy against organ markets rely upon demonstrably
false comparisons, involve circular moral reasoning (organ trafficking,
human slavery, commodity fetishism), or fail when the analogized system
is considered in greater detail (blood product sales);
• Participation in an organ market, subject to the side-constraints of safety,

transparency, institutional integrity, and the rule of law, is sharply distin-
guished from the current practice of organ trafficking; and
• Questions regarding the structure of and limits on the property rights of
organs from living vendors persist.
Public policy in renal transplantation is at a crossroads. There is no

serious disagreement regarding the forecasted increase in demand for
organs in the next decade, nor about the fact that current strategies and cur-
rent reforms of organ procurement are vastly insufficient to meet this
demand. Transplant professionals are increasingly put in the absurd posi-
tion of evaluating patients for transplantation who will be far more likely to
die on the waiting list than receive a deceased donor organ. Potential trans-
plant recipients face something worse than absurdity because the possibility
of transplantation offers a fading hope: not hope for eternal life, but the
hope that they might be spared a life cut short too soon. It is a hope that is
becoming progressively out of reach for thousands more each year.
None of this justifies policies that treat people as “spare parts,” or any
other epithet denoting organ vendors as less than the moral agents they
unmistakably are. Taking the moral agency of organ vendors seriously
entails abandoning the easy, but ultimately false, generalizations about the
moral and psychological makeup of vendors and the workaday dismissals
of a market solution. These generalizations reduce vendors to characters
in a passion play about exploitation and greed, rather than as human
beings capable of fashioning and acting on their own moral commitments,
hopes, and aspirations. This is not an argument, as some will undoubtedly
assume, that “the ends justify the means.” The argument is that the
means themselves, as I have argued for them here, do not warrant blanket
prohibition.31
NOTES
1. The arguments in this paper represent the views of the author alone, and do not represent the
policies or opinions of the UNOS ethics committee, nor the Carolinas Medical Center or any department,
division or other employee thereof. The author does not condone the violation of any existing state or
federal law governing transplantation in the United States or elsewhere.
2. In 2002, 6,233 persons were living kidney donors, of which 1,789 (28.7%) were from a spouse
or other biologically unrelated persons. From http://www.ustransplant.org, Table 2.9.
3. As many as 30% of patients on the waiting list for a deceased donor kidney have circulating
antibodies specific for antigens found on renal allografts from human beings. The presence of these anti-
bodies can result in an accelerated rejection of the allograft after transplantation, and can be identified
by a test called a crossmatch. A recipient’s sera may have antibodies against a wide array of antigens
identified in humans, identified by testing against a “panel” of known antigens. The practical conse-
quence for recipients of having such antibodies is that it can make finding a compatible organ much
more difficult, since the donor kidney would need to be both of compatible blood type and not express
antigens against which the recipient has antibodies.
4. In 2002, 68,468 patients were listed for a deceased donor kidney transplant, and 3,396 died on
the waiting list (4.9%). From http://www.ustransplant.org, Table 1.7.
5. The choice to donate or not to donate an organ often occurs in the context of observing a
recipient’s progressive illness and consequent suffering. This context is not neutral with regard to donor
motivation. Even if the suffering of recipients does not generate prima facie moral obligations on the
part of donors, the experience of a recipient’s suffering can impact the moral psychology of donor moti-
vation in variable ways. As Elaine Fox and Judith Swazey have shown (Fox & Swazey, 1992), a decision
to donate made in the context of the recipient’s suffering does not ensure that altruistic motives for
donation are paramount.
6. The process of screening organ donors operates on the premise that organ donation is super-
erogatory, rather than merely obligatory. Most every transplant center emphasizes to the donor that they
are not obligated to donate, that participation in the donor screening process in no way obligates them
to proceed with donation, and that the donor can withdraw their consent to donate for any reason, at
any time, and with assurances that the reasons for this decision will not be communicated to anyone. It
is implausible that such safeguards would exist to ensure that donors would be free to refuse a moral
obligation.
7. Note that a reduction in donations in response to an organ market does not imply a reduction
in the number of available organs for transplantation, just a reduction in the number of donated organs.
8. As Tibor Machan explains, “[State-imposed restriction] deprives the person who is the target of
such restrictions or constraints from being able to take charge of his or her conduct, to direct himself or
herself in life, thus robbing the person of the opportunity to earn moral credit, to become morally better
(or worse)“ (1997, p. 249).
9. Yen et al. (2004) calculated that costs to Medicare for a renal transplant and immunosuppression
over 20 years was $311,473, compared to $530,746 for a dialysis patient with a 10-year median life span.
10. In addition, a program providing health care coverage to persons in exchange for donating a
kidney could also serve a dual purpose as an ongoing registry, where the long-term health effects of
donation could be studied in a detail previously not available to researchers.
11. Starr concludes: “But, in examining the tainted-blood tragedies of the 1980s, it becomes clear
that no system was immune from mistakes, whether capitalist or socialist, monolithic or decentralized.
Countries that emerged from the crisis with relatively low blood borne disease rates had a few simple,
common elements: diligent people in charge who fostered rapid response, open communications, and
close control over the source of their supplies. Safety is a matter of practice, not ideology“ (italics added)
(1998, p. 355).
12. As Joel Schwartz observes, “All together, collection facilities pay plasma donors well over
$200 million each year. The plasma-products industry, facilitated by these transactions, generates more
than $4 billion in revenues worldwide. American firms are responsible for more than 60% of these sales.
America exports plasma and plasma products to 80% of the world’s nations.” (1999)
13. 3.1 per 1,000 donations from volunteers deferred compared to 0.7 per 1,000 from paid
“donors”, p < 0.001. (Simon, 1998; Strauss, 2001) An important difference between organ vending and
plasma vending is the fact that plasma vendors are frequent vendors. The safety of the products sold by
plasma vendors is ensured through multiple, repeated screenings. Analogous effective safeguards in
screening organ vendors would need to be identified and adopted for the analogy to withstand scrutiny.
14. Gilbert et al. (2005) reported similar attrition, for similar reasons, in Washington, D.C.; how-
ever seven of their potential donors were found to be active substance abusers.
15. I deal with the companion concern, that the profit motive would cause an insoluble conflict of
interest for the transplant center, in the final section.
16. The fact that harvesting a kidney entails some physical risk does not provide sufficient reason
to prohibit an organ market, since the objection applies equally to living organ donation. But, the
known risks of living kidney donation (Ellison et al., 2002; Matas et al., 2003) can serve as a standard by
which vendor safety can be compared.
17. The risk of post-operative death from a lipoplasty procedure was recently reported to be 95/
496,245 or 0.019%. (Grazer & de Jong, 2000)
18. Even when safe practices are able to be reasonably guaranteed, transplant centers and trans-
plant professionals would still be free not to accept organs from vendors. Objections to some or all
organ vending is entirely consistent with understanding the right to donate (or to be a vendor) as a for-
bearance right (Cherry, 2000). Concerns regarding a potential tort on the part of an organ vendor against
a transplant center fall outside vendor’s forbearance right to donate, and the correlative obligation of
non-interference on the part of transplant professionals, and are therefore unfounded. Also, acting on
disapproval of organ vending need not be limited to transplant professionals. Just as some recipients
might find centers that assure them a transplant in the near future more attractive, some donors and
recipients with principled objections to organ vending might prefer to receive their operations and sub-
sequent care at centers that share these moral commitments.
19. Commodity fetishism describes a subversion of proper human activity and social relationships
by changing the concepts by which these activities and relations are understood into the language and
concepts of commodities, which in turn are governed by market forces rather than by moral agents
(Radin, 1996, p. 81).
20. “The current U.S. organ procurement system is based upon values that reflect the attitudes and
beliefs of the dominant white majority. The primary moral basis of this system is altruism” (Siminoff &
Saunders Sturm, 2000, p. 68). This provocative conclusion, (while false), does demonstrate that sweep-
ing generalizations regarding social perceptions of organ markets are frequently unfounded.
21. Discussing the importance of the symbolic relationship of offering tokens of thanks rather
than compensation to donors, Delmonico and Scheper-Hughes argue that symbols are “figurative
representations of core social values and boundaries [that are] both subtle and complex, and do not
always stand up to rational analysis” (Delmonico et al., 2002, p. 2004). Nonetheless, the authority of
asserted symbolic value over the product of autonomous decision-making is apparently justified if “. . .
it can be shown that the social fabric of society would be threatened or weakened” (Delmonico and
Scheper-Hughes, 2003, p. 694). The reason this argument doesn’t stand up to rational analysis is
because there is no single set of “core social values” that bridges the deep moral disagreements
which are the hallmark of moral pluralism in contemporary secular societies (Engelhardt, 1996;
Engelhardt, 2004). Judgments about the “weakness” or “strength” of the “social fabric” are transpar-
ently circular, depending entirely on the content of the various moral commitments of persons who
make up society. Attempts to identify normative symbols of “core social values” that trump the moral
commitments of rational individuals are inevitably shown to be ciphers for specific moral commit-
ments over which there is profound disagreement between such individuals (Engelhardt, 1996).
Fashioning public policy in an attempt to paper over these disagreements with appeals to “societal
norms” subordinates moral pluralism to political power, obscuring in practice the distinction between
power and authority.
22. The term “side-constraints” is a widely recognized term coined by Robert Nozick (1975).
23. For example, Vivekanand Jha (2004) plausibly argues that such a system is not currently possi-
ble in India, due to widespread corruption and lack of legal protection for vendors, but might be permis-
sible in countries where such protections could plausibly be enacted and enforced.
24. This contrasts with the reluctant defense of a market in organs by Veatch (2003), who
sanguinely argues that a society that conspicuously fails to provide for its worst-off citizens might as
well permit them to sell their organs. As with the critics of organ markets, Veatch assumes that
organ vending would always be an act of desperation, a view which inadequately explains Pusakal’s
situation.
25. Humility is not quietism. Rather, humility with regard to evaluating the moral commitments
of others should entail a reconsideration of the burden and standards of proof as to what constitutes
morally permissible actions, and does not entail that no such standards exist. Thus, for example, invol-
untary female circumcision may properly be judged a grave moral violation, regardless of the coher-
ence of the practice with other moral/cultural commitments of a culture. There is a legitimate question
as to why such a judgment is not merely circular or unjustifiably ethnocentric. While the burden of
proof regarding the moral wrongness of cultural practices may lie with the accuser, a cross-cultural
standard of proof includes the assumption that while persons in all cultures may be influenced by
moral commitments arising from cultural norms, persons are not exhaustively defined by cultural
norms. Thus, the judgment that involuntary female circumcision is a grave moral wrong begins with
the observation that it is involuntary, an implicit recognition that persons possessed of reason, instan-
tiated within a set of cultural commitments, can nevertheless peaceably dissent from those commit-
ments, and ought to be able to do so without fear of physical violation. As I have argued above, while
the fact of difference (and therefore dissent) does not have normative significance in and of itself, the
moral authority to suppress difference (and therefore dissent) is quite limited. However, within the
limits of protection is the ability of dissenters to peaceably dissent without subjection to physical harm
by a moral community. I concede that the cultural/psychological harms of ostracism are also harms,
which in turn may lead to physical harms (such as destitution) but confess that the narrow moral
authority I am committed to does not justify intervention by the state to resolve these problems. Indi-
viduals, on the other hand, may be obligated by their own particular moral commitments to assist
where the state lacks authority to do so. Alternatively, individuals may also be obliged not to partici-
pate in transactions judged to be grave moral wrongs.
26. Long-term follow-up data from participants in organ trafficking is difficult, since most return to
their country of origin, and none have any interest in admitting their participation in illegal activity.
Organ traffickers have little incentive to publish outcomes data, since their activities are subject to legal
and professional sanction. Good outcomes will not reduce the legal and professional risks of their enter-
prise, and advertising poor outcomes can only serve to increase such risks and possibly reduce patron-
age. Though there is disagreement in the literature on this point, a review of small studies from a variety
of countries suggest that on the whole, recipients’ outcomes from paid vendors are worse compared to
transplants from living related donors. See (Reddy et al., 1990; Thiagarajan et al., 1990) for examples of
positive results and compare with (Chugh, 1996; Ivanovski et al., 1997; Lawrence, 1997; Chugh and Jha,
2000; Goyal et al., 2002; Higgins et al., 2003; Jha, 2004). This outcome is not country-specific. (Sever
et al., 2001).
27. As Richard Epstein argues, “The case in favor of freedom rests on the postulate of mutual gains
through trade. The rationale for the institution provides the essential clue for its limitation. When bar-
gaining takes place in settings where mutual gain is not the probable outcome, there is sufficient warrant
for the law to step in and set that transaction aside” (Epstein, 1995, p. 80).
28. Institutions with a policy of refusing to cooperate with all organ vendors would face derivative
problems of moral complicity with organ vending. If an organ market were to substantially increase the
number of available organs for transplantation, and the rates of altruistic living donation and deceased
donation did not drop substantially, the result would be that fewer recipients on the deceased donor
waiting list would compete for a similar number of deceased donor organs, increasing the rate of trans-
plantation while on the waiting list. Thus, institutions that did not directly participate in organ vending
might derive “free-rider” benefits from the shortened waiting list. Conversely, if an organ market resulted
in a marked decrease in the number of altruistic living donors and deceased donors, recipients at that
institution might either be more disadvantaged by virtue of competing for even fewer organs, or decide
to pursue organ vending opportunities at another institution. In this situation, the institution may not be
complicit in organ vending, but the recipients wait-listed at that institution might be disadvantaged by
the institution’s policy of non-participation. This disadvantage might not matter if the moral commit-
ments of the disadvantaged recipients are nevertheless reflected by the institution’s policy of non-
cooperation with vendors.
29. Eventually, this caution would need to be either supported or refuted by evidence. It should
be emphasized that the side-constraints I argue for would require any study of the safety of organ vend-
ing in other countries to report outcomes data on both vendors and recipients.
30. PORTIA.
Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are ‘a pound of flesh’:
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.
GRATIANO. O upright judge! Mark, Jew: O learned judge!
SHYLOCK. Is that the law?
PORTIA.
Thyself shalt see the act;
For, as thou urgest justice, be assur’d
Thou shalt have justice, more than thou desir’st.
The Merchant of Venice, Act IV, i (Shakespeare, 1974).
31. I am grateful for discussions of issues related to this paper with Lisa Rasmussen, Maureen
Kelley, Robert S. Gaston, Mark Deierhoi, Francis Delmonico, Lance Stell and Gregory Pence. I am espe-
cially indebted to the intellectual labors in this area of Mark Cherry, and more generally to the mentor-
ship and friendship over the years of H. Tristram Engelhardt, Jr. The responsibility for all errors of fact,
judgment, or reasoning rest with the author.
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In Defense of A Regulated Market in Kidneys From Living Vendors

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Journal of Medicine and Philosophy

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In Defense of a Regulated Market in Kidneys

from Living Vendors1

Metrolina Nephrology Associates, Charlotte, North Carolina, USA

The current system of organ procurement which relies on donation

Address correspondence to: Benjamin E. Hippen, M.D., Metrolina Nephrology Associ-

Opponents of organ markets often conflate market proposals with the

II. THE COST OF QUEUING

It is well established that the number of organs available for transplantation

decline in long-term outcomes when compared to preemptive transplanta-

action are foreseeable. A plausible defense of a market in organs requires

III. CRITICISMS OF THE MARKET COMPENSATION MODEL

Suppose it is the case that the establishment of an organ market

This psychological and moral burden is especially onerous because the

The existential complexity of the donor/recipient relationship is insufficient

B. Market Compensation Risks Kidneys Becoming Commodities Only

C. Organ Markets, Like the Market in Blood, Would Make

substantially greater harm to vendors as compared to altruistic donors

D. A Regulated Market Would Not Be the Only Source of Organs, and

E. An Organ Market Would Necessarily Result in Symbolic Harm to

treat the vendor as an end in himself by establishing an organ market in

. . . this scarcity, created by the technicians of transplant surgery, repre-

This view is seamlessly transposable onto relations between “altruistic”

If, on the commodity fetishism model, the “altruistic” model is insuffi-

This latter point is of special significance in distinguishing a justifiable

Some 20 years after this remark, living-unrelated donation represents 28.4%

that if enough money is involved, humans are rendered incapable of acting

It is presumed in this scenario that Pusakal’s imprisonment is not unjust,

IV. DEFENDING A REGULATED ORGAN MARKET: THE PRIORITY

In his treatment of the philosophical implications of viewing the body as

routine. Arrangements in which one party routinely defrauds another,

• The priority of safety of the vendor and recipient;

A. Safety and Transparency

standards of proof regarding safety are clear (institutionally established

V. ENDURING PROBLEMS FOR ORGAN MARKETS

A. The Ambiguity of “Safe Practices” and Conflicts of Interest

proponents of an organ market. In the context of abuses of organ traffick-

B. Vendors from Nations That Do Not Afford Protections

C. Portia’s Wisdom: Limits on the Fungibility of Organs qua

VI. CONCLUDING REMARKS

In this paper, I have argued for the following propositions:

• The current system of organ procurement, which inconsistently but insis-

• Participation in an organ market, subject to the side-constraints of safety,

Public policy in renal transplantation is at a crossroads. There is no

2003 OPTN/SRTR Annual Report: Transplant Data 1993–2002. [On-line]. Available:

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