Organ Markets, Social Justice, and the Poor: A Reply to Professor Pasquale

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Joshua D. Wright, Organ Markets, Social Justice, and the Poor: A Reply to Professor Pasquale, Truth on the Market (July 20, 2006),

Frank Pasquale at Madisonian is concerned that organ markets do not show enough concern for the poor. He writes:

I’d be more sympathetic to the economic approach to the topic if it showed a bit more concern for the plight of those unable to pay for organs (and for the very poor in LDC’s whose organs are most likely to be utilized). There are many ways to do so: Steven Calandrillo’s approach to the topic is one of the best current treatments that injects concerns of social justice into the organ shortage crisis. In short, I think I’d be ready for an organ market if one were to tax all the transactions to assure wider access to the less advantaged.

Frank goes on to submit for our consideration some empirical data “to back up his egalitarian concerns,” citing the following statistic:

Over the years 1950 to 1970, for each additional dollar made by those in the bottom 90 percent of income earners, those in the top 0.01 percent received an additional $162. In contrast, from 1990 to 2002, for every added dollar made by those in the bottom 90 percent, those in the uppermost 0.01 percent (today around 14,000 households) made an additional $18,000.

Let me say from the start that I am not quite sure what these numbers are supposed to prove in the way of support for “egalitarian” concerns. As far as I can tell, the point of these numbers is that there exists income disparity in the United States. So what does that have to do with depriving low-income earners of the choice to earn some extra cash? Is the point that it rich folks will be running around stocking up on organs with their extra cash? Perhaps the point is that the poor are so poor that they will be lining up to sell kidneys and other organs. But I’m not sure what this has to do with the relative incomes of the rich and poor.
But all of that is a bit of an aside. Hoisting the exploitation and social justice banner in the name of prohibiting market transactions that will almost certainly increase welfare and save lives is not a new strategy. But I am not convinced that in this instance, nor in many others, social justice and markets are somehow assumed incompatible. What criteria are we using for to order outcomes on the basis of their propensity to mete out “social justice?” As best I can tell, there is no criteria being used other than individual policy preferences for these outcomes and some hand waving about how markets are … “market-based” and “financial” and “commoditize” things — which, by the way, is bad. Quod erat demonstrandum.

Let me start with the proposition that I do not know whether a market solution will maximize social justice. But it will certainly help to clear the market for kidneys, which will save lives, which must have something to do with social justice, no? Frank’s post suggests that concern for the poor is at least an element of this social justice criterion. But, I fail to understand how depriving those with low incomes of a choice they currently do not have shows a greater concern for the poor than giving them an option not previously in their choice set. This objection masks, and not very effectively, an assumption that the poor either cannot or will not economize on the potential costs and benefits in the language about justice.
Economists more involved in the organ market debate than I have frequently responded to the notion that organ markets will decrease the welfare of the poor. For example, here is Gary Becker from a recent blog post:

Another set of critics agree with me that the effect on the total supply of organs from allowing them to be purchased and sold would be large and positive, but they object to markets because of a belief that the commercially-motivated part of the organ supply would mainly come from the poor. In effect, they believe the poor would be induced to sell their organs to the middle classes and the rich. It is hard to see any reasons to complain if organs of poor persons were sold with their permission after they died, and the proceeds went as bequests to their parents or children. The complaints would be louder if, for example, mainly poor persons sold one of their kidneys for live kidney transplants, but why would poor donors be better off if this option were taken away from them? If so desired, a quota could be placed on the fraction of organs that could be supplied by persons with incomes below a certain level, but would that improve the welfare of poor persons?

Moreover, it is far from certain that a dominant fraction of the organs would come from the poor in a free market. Many of the organs used for live liver or kidney transplants are still likely to be supplied by relatives. In addition, many middle class persons would be willing to have their organs sold after they died if the proceeds went to children, parents, and other relatives. Although this is not an exact analogy, predictions that a voluntary army would be filled mainly with poor persons have turned out to be wrong. Many of the poor do not have the education and other qualifications to be acceptable to the armed forces. In the same way, many poor persons in the US would have organs that would not be acceptable in a market system because of organ damage due to drug use or various diseases.

More from Becker in a second post:

A common concern among the critics is that the poor will both give too many of their organs, and not have access to transplants. I have more confidence than these critics do in the ability of the vast majority of poor people to make decisions in their self-interest. Moreover, market forces rather than rich persons would determine the price of organs, in the same way that rich people do not presently set the price of maid services.

Most organ transplants are paid by private insurance, Medicaid, or Medicare. Since that would continue, and since I indicated that market-determined organ prices are unlikely to add much to the total cost of transplants, the poor should not be at more of a disadvantage in getting transplants if organs were sold than they are under the present system. Indeed, they are likely to be at less of a disadvantage when the supply of organs clears the demand for organs. For the rich and famous sometimes can now use influence to get priority, and they can travel to countries where they are assured of getting a transplant.

And finally, from Don Boudreaux’s column in the Pittsburgh Tribune-Review:

[T]hese fears are baseless and an insult to poor people. People such as my law-school classmate presume that someone with only a modest income is so short-sighted that he’d prefer to sell his kidney in exchange for a few car or rental payments rather than to economize elsewhere or to drive a less-expensive car or live in a less-expensive apartment.

Perhaps some Americans are so poor that they have no ways to economize further. Maybe this (very small) group of people are the ones my classmate worries about. If so, her concerns remain insulting and dangerous. If someone is so poor that he judges selling his kidney to be worth the money it will bring to meet current expenses, we must still presume that he is the best judge of his welfare.

The problem in this case — and it is a genuinely serious problem — is this person’s desperate poverty. Selling his kidney is a way to help him relieve the consequences of that poverty. How does denying him this opportunity for some extra income help him?

Nevertheless, I do not deny that most kidney sellers would be people whose incomes fall on the lower part of the American scale. Would this fact be evidence of exploitation? No — not any more than is the fact that most supermarket cashiers, house painters, and used-car salesmen are people whose incomes fall on the lower part of the American scale.

Would we make these workers better off if we announced that they are free to give away their labor at such jobs but cannot receive payment for it?

Seems to me that the real exploitation is to demand that kidney donors not receive payment for donating their valuable bodily organs.

A related argument against legalized kidney sales is that people should not profit from other people’s serious illnesses. But physicians, nurses and pharmaceutical companies, along with many other folks and firms, routinely profit from other people’s illnesses. Would we improve our world by prohibiting doctors, nurses and pharmaceutical companies from ever being paid? Of course not.

It’s time that practical concern for the very real lives of very real people replaces a lethal commitment to wooly aesthetic and philosophical notions.

There is a serious cost to taking seriously the notions of bioethicists, law professors, medical professionals, and others that a market in organs is immoral or dismisses the poor. Thousands of people are dying every year while waiting for transplants. Increasing the supply of organs is a problem that deserves the most serious consideration and there is no serious theoretical reason to believe that, in the case of organ donation, supply curves do not indeed slope upwards.