Time to reconsider?

Despite the protestations, when illegal behavior is widely and openly followed, the purported restrictive legislation ought to be re-examined. Thus, in 2008, it is pertinent to review lessons from the wild and extensive racketeering spawned by America’s 1920s “Prohibition” of the sale of alcoholic beverages. A key inference is that legislation, per se, may not force adherence to rules viewed contrary to human behavior.

While marketing human organs is illegal in nearly every country, purchased kidney transplants are widely available through devious and often unsavory vendors in India, Turkey, China, Russia, and South Africa as described in a May 2001 New York Times Magazine article, “This Little Kidney Went to Market.”

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Some countries do allow organ sales. As previously noted, Iran has, since 1998, permitted payment to kidney donors, a policy endorsed by its leading transplant surgeons as having sharply reduced the nation’s waiting list for deceased donor kidneys (Saudi J Kidney Dis Transpl. 2007;18:648-655).

Similarly, it is legal in Pakistan to purchase a kidney from a willing seller. At the opposite extreme, to limit a booming, unquestionably exploitative trade in kidneys, many obtained from minors, the Philippines, in 2008, banned performance of kidney transplantation in noncitizens.

Organs Watch, a non-government transplant-monitoring organization, estimates that “…thousands of illegal transplants occur every year bought by patients from the Persian Gulf states, Japan, Italy, Israel, the United States and Canada supplied by ‘donor’ nations, including India, Pakistan, Turkey, Peru, Mexico, Romania, and South Africa.”

Underscoring this assertion, the late Michael Friedlander, MD, a transplant nephrologist at Hadassah University Hospital in Jerusalem, was quoted as saying: “What’s happening now is absurd. Airplanes are leaving every week. I’ve seen 300 of my patients go abroad and come back with new kidneys.…it’s a free-for-all” (Rifkin J. The Biotech Century: Harnessing the Gene and Remaking the World. New York, N.Y.: Jeremy P. Tarcher/Putnam; 1998). The kidney market, according to Dr. Friedlander, forces potential kidney purchasers to be “exposed to unscrupulous treatment by uncontrolled free enterprise.”

A newspaper report from India recounted how 400-500 kidneys were deceitfully obtained from young male donors, some tricked and/or threatened into yielding their organs without payment.

Countering the tumultuous unhappy reality of many under-the-counter kidney sales are credible voices favoring development of a rational system of fair compensation to permit transactions between willing organ sellers and their recipients. Endorsement for legalization of human organ sales was provided by Robert Berman of the Orthodox Jewish Halachic (interpreted by orthodox rabbis) Organ Donor Society writing in The Jerusalem Post of August 9, 2005: “The choice before us is not between buying or not buying organs. This is happening regardless of the law. The choice is whether transplant operations and the sale of organs will be regulated or not.” That is a key point. Like the rum runners during Prohibition, the absence of supervision of a thriving market in transplanted kidneys denies protection to both donor and recipient.

Nobel Laureate in economics Gary S. Becker and his colleague Julio J. Elias computed a “market price” terming a live donor kidney a commodity. Assuming an American earning a mean salary of $40,000 annually (i.e., a life valued at $3 million), a 1% risk of death from nephrectomy, a 5% decrease in quality of life, and loss of $7,000 in income due to convalescence from surgery, appropriate compensation for that potential donor’s kidney would be $45,000. Using a more probable death risk of one in 3,000 nephrectomies (the reported risk is three in 10,000) reduces the kidney price to $20,000.

By contrast, the present “non-system” promotes kidney sale on a black market available only to wealthier individuals bearing the total expense for what may be inadequately screened (HIV, hepatitis, tuberculosis), suboptimally-matched organs inserted by undertrained (inferior?) surgeons. A regulated market equivalent to the present management of maintenance hemodialysis would eliminate the advantages of wealth in organ acquisition for poorer individuals who would obtain kidneys via Medicaid or Medicare.