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

Josh Wright —  20 July 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.

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

    Frank Pasquale 30 July 2006 at 4:55 pm

    By the way, if anybody commenting above would like to get into this issue in more depth next summer, perhaps we could submit to that new Yale Law Journal forum a “twinned set” of articles. Details appear here:

    This fall, I plan to start writing an article called Taxing Tiering: From Binary to Subtlety in the Regulation of Inequality of Access to Health Care. My basic points will be:

    1) There are a number of new innovations in health care finance and delivery that both offer superior health care to those who can afford them and promise to generate innovative methods that will diffuse more generally. (My focus will be on specialty hospitals, concierge medicine, and perhaps cosmetic surgery.)

    2) These innovations threaten the intricate system of cross-subsidies that have funded health care generally. For example, a specialty heart hospital siphons away well-compensated surgery away from general hospitals, which used those funds (in part) to fund things like charity care and medical education.

    3) Entrenched players who benefit from the cross-subsidies (such as community hospitals, non-concierge physicians, and advocates for uninsured or poorly insured patients) are using a variety of laws and regulations to stop these innovations entirely (such as CON laws, Medicare fraud and abuse statutes, etc.).

    4) A better approach would be to tax care at the new, innovative, high-end entities, and to direct that tax to care for the uninsured or poorly insured. Some states have already taken this approach; I’ll be applying to present a paper at a conference at Hamline this Spring to develop the idea generally.

    There have been many comments invoking theories of taxation, efficiency, etc. I would like the chance to develop the article in dialogue with a critic who, say, believes that this sort of tax policy would not achieve its intended affect.


    To clarify my comment above: we don’t impose an extra tax on supermarkets to fund a food stamp program; we don’t impose an extra tax on private schools to fund public schools; and we don’t impose an extra tax on apartment buildings to fund Section 8. Why should we tax organ donation to subsidize transplant surgeries? A dollar is a dollar is a dollar. It should come from wherever marginal tax increase causes the least damage.


    Why in the world would anyone want to impose an additional tax on a particular type of a life-saving surgery? I know people who believe in taxing inherited wealth. I know people who believe in taxing luxury consumption. I know people who believe in taxing behaviors that we want to reduce (e.g., smoking). But why tax life-saving medical procedures? Beats me.


    Kate: there are some eloquent reflections here on why inequality, per se, is a religious concern:

    some quotes:

    “[G]reat disparity seems likely to make it harder for people to practice the value of solidarity, that is, ‘see[ing] the other-whether a person, people or nation-not just as some kind of instrument, . . . as our ‘neighbor,’ . . . to be made a sharer on a par with ourselves in the banquet of life to which all are equally invited by God.'” Berg, quoting Solicitudo Rei Socialis, para. 39.

    I explore this idea a bit in the comments on my post on ventilators embedded in the original postt.


    Christine–You may be right that I am wrong to assume that in “the new system. . . only marginally more transplants will happen and that all will be for wealthy people.” But I see no reason why a small tax on the transactions you foresee in your post (to help “level the playing field” of buying power) would foreclose those transactions.

    All I’m trying to assure is that these transactions generate some funds aimed at helping those currently left out of the system. There is nothing radical here. The radical idea is a pervasive, dogmatic skepticism about tailored taxation’s ability to help the least-well-off take a fairer share of the benefits created by a transition to a more market based approach.

    Christine Hurt 21 July 2006 at 8:07 pm

    How do we know that the new system will be that only marginally more transplants will happen and that all will be for wealthy people? That assumption doesn’t strike me as irrefutable. The market price of an organ may reach equilibrium lower than that, and as Kate points out, Medicaid, Medicare and insurance will pay for organs, just as they do for surgeries. Here’s a hypothetical. Today, Christine needs a kidney, or she’ll die. Her only friend, Kate, would love to give her a kidney, but they aren’t a match. Christine has no blood relatives. No matter if Christine is rich or poor, she dies. Under a different regime, Christine could purchase a kidney. Perhaps she is poor. But wait, her friend Kate could sell the kidney she would gladly give up and use the money to buy Christine a matching kidney. Now, a poor person lives who otherwise would have died.


    Antony: I agree that something is better than nothing, but in this case, “something� is just not enough. As you well know, even if all appropriate kidneys were harvested from dead people, we would still be in a dire need for more. So, even a real market for cadaver kidneys won’t solve the problem.

    Likewise, Lifesharers barter is better than the outright ban, but is substantially worse than the market. Another form of barter would be to actually donate today in exchange for a priority tomorrow; the biggest problem here is that the priority is not assignable to the third party. So, if I donate my kidney today, and my child will need one in twenty years, I can’t put him to the top of the list by handing him over my priority slip. Which means I won’t donate today. And, of course, if we allow transferable priority slips, we are de facto allowing markets. In which case we could just as well allow real markets unpolluted by bizarre distortions that the trading of priority slips would create.

    This isn’t to say I wouldn’t take the transferable-priority system or tradable-cadaver-organs system over the current system. I’d take almost anything over the current system. Lifesharers is certainly a great undertaking, and we all should be grateful for it.


    Frank: you in fact continue to be utterly confused. You keep treating the cost of transplant as qualitatively different from the cost of other medical services — for no apparent reason. Substitute “kidneyâ€? for “surgery,â€? and watch most of your argument fall apart. You also keep speaking as if the main consequence of compensation (here and everywhere) were to affect distribution, rather than to affect the supply of compensated services.

    Just as we don’t expect the ban on doctors’ compensation to improve poor people’s access to surgeries, we can’t expect the ban on donor services to improve poor people’s access to organs. In both cases, the costs of the collapsed supply far outweigh dubious benefits of redistribution. Again, the identity of the payor is an issue completely separate from whether the market transaction should ever take place. And again, just as we can come to some sort of consensus on state subsidy to poor people’s health care, we can come to consensus on state subsidy to poor people’s cost of transplants.

    Finally, your comment that Americans won’t like to pay cash to subsidize poor people’s kidney transplants, so we should devise a clandestine regulation, which would force Americans pay for the same thing a substantially larger sum in-kind, smacks of the sort of self-congratulatory cynical elitism that should be truly shameful for a person yakking about morality, spirituality, and the Pope.


    I have a sense that, in the end, our debate comes down to an irreconcilable conflict over values (concerning distributive justice) and facts (concerning plausible political action).

    1) Values: Imagine two worlds:

    a) there are 9000 transplants done, and they are purchased by the 9,000 wealthiest people
    b) there are 8000 transplants done, distributed randomly.

    I think all the critical commenters above would choose a) over b), every time. And I probably would, too. But if we are in the process of moving from b) to a), I do not think it illegitimate for those already deprived in many areas of life to demand, as part of the cost of the transition, that some of the social surplus from the transition be devoted to them.

    So the commenters have Shavell/Kaplow on their side, and I draw on a tradition of Catholic Social Teaching
    and egalitarian philosophy. These are very different views about values. Neither side can simply dismiss the other out of hand as “utterly confused.” Rather, we are obliged to give a richer sense of the kind of world our proposals would create.

    2) Facts: Many commenters suggest that the proper answer is simply to have an organ market, then rely on redistributive taxation to help the poor participate in it. I have given up on the possibility that politics (particularly American politics) will result in such an outcome any time soon. It’s just too easy for politicians to convince large swathes of voters to believe that tax cuts aimed at, say, estates of over $5 million are a populist effort to help everyone get government off their backs. See, e.g., Ian Shapiro’s award-winning book Death by a Thousand Cuts, or, more abstractly,

    Given this political background, I put more faith in administrative agencies to manage the transition to an organ market. And following Mashaw’s argument in Greed, Chaos, and Governance (136), I believe one could even develop a public choice based argumetn for broad delegations of authority to administrators here.

    3) Assumptions: I just don’t feel that many of the commenters adequately acknowledge the degree to which present distribution of resources may be unjust. Even Nozick acknowledged (in ASU) the legitimacy of some government effort to rectify “injustice in transfers”). In many arenas,

    “[W]e are preserving our great economic
    advantages by imposing a global economic
    order that is unjust in view of the massive and avoidable deprivations it foreseeably
    reproduces. There is a shared institutional
    order that is shaped by the better-off and
    imposed on the worse-off.”

    Thomas Pogge, available in PDF.

    I have little doubt that this shared economic order has done wonders to lift tens of millions out of poverty–so I’m not as critical of globalization as a Pogge. But I have no qualms about trying to increase its justice.

    4) A suggestive case: Finally, I’d like to ask anyone incensed by my views to just watch a bit of the film “Darwin’s Nightmare,” about fishermen in Africa who supply Europe with Nile Perch. All I would ask is whether the conditions that arise organically out of a thriving market system for the locals in the area are just. Given the bargain forced on them, I join Harrington in believing that only organ markets *within* nation could be just…not international ones.


    A couple issues to bring up:

    1) The quote that “markets allow those who can pay to get to the front of the line� is so incomplete as to be almost useless…presumably the market would become a component of the current priority system, which doles out organs based on certain factors including prospects of success, age, and consultation with transplant doctors. My understanding of the theory was that legalizing an “organ market� in the United States would be sanctioning the personal selling of organs, not the personal buying of organs…and Becker indicated as much by writing that the current payment regime would most likely continue…recipients wouldn’t write a check for their organs anymore than patients write a check to Blood Mart before surgery. Money alone isn’t sufficient to move to the front of the line.

    2) Moreover, what truth exists in the statement applies more fully to the current black market for organs, fueled partially off Chinese executions. As alluded to by the Becker quote, the rich and famous could utilize these markets for their own benefit…but in a different and more exploitative manner than would be done under a theoretical U.S. market. Since these black markets allow for the personal buying of organs, the current system allows for the rich and richer to “buy their way to the front of the line� regardless of prospects of success or the manner in which the organ was acquired. On a more theoretical level, fewer market forces creates more inequality between the rich and the poor…the gap between access to health care for rich and poor Canadians or English is astounding for countries that are held up as role models for socialized medicine.

    3) The argument that this is exploitation of the poor by the rich is flawed…the rich wouldn’t “outbid� the poor for organs, they would simply have weaker financial motivation to sell their organs. But to cry exploitation is an insulting argument. If we believe the poor are such worthless stewards of their own bodies and so lacking in foresight that they would sell themselves to the brink of death, organ by organ, to the highest bidder then why do we trust the poor with any responsibility at all? If the poor can’t be trusted with their bodies why trust them with food stamps? With Medicaid provided prescription drugs? With cigarettes? With children? With alcohol?

    4) I don’t deny the problem of disproportionate access to health care between the rich and the poor, but that problem is so far beyond the scope of what would be entailed in organ market that it is almost a red herring. Indeed, because the cost of dialysis is so high, the current system exacerbates the “wealth gap issue� far worse than would an organ market. Today, the rich are better equipped to sit around and pay for dialysis for two or three years, waiting for their kidney donor to die or materialize, than are the poor, who would be better off not waiting on dialysis and instead have their insurance pay a premium for a kidney NOW and perhaps get back to work before their COBRA benefits ran out. (Dialysis can cost $50,000 per year, giving a better economist than I a rough estimate of potential price points.)


    I’m loath to disagree with anything Kate Litvak writes, but when she says “[i]f we want to increase that supply [of transplantable body parts], we must allow compensation for donors,� I’m skeptical.

    Doesn’t opt-out versus opt-in make a big difference to the supply? Also, to increase supply, does “compensation� have to be monetary? e.g. Giving those who have agreed to be donors priority should they need transplants in the future could be a powerful incentive for some. ( is an example.) Either of these approaches may be preferable for Americans who fear commodification of body parts. (Of course, this isn’t to claim that these approaches would result in an optimal level of supply.)


    Frank Pasquale is utterly confused. If he wants to redistribute wealth in general, he should be calling for a massive tax-and-spending hike. If he wants to ensure that the poor get their share of transplantable body parts, he should be calling for a subsidy for indigent transplant recipients. If he simply wants to ban a category of transactions that the Pope announced to be immoral, he should stop trying to obfuscate it by posting random quotes about wealth disparities.

    If we want to save lives, we have to increase the supply of transplantable body parts. If we want to increase that supply, we must allow compensation for donors. Who exactly bankrolls that compensation (government, insurance, charities, recipients) is a question completely separate from whether the compensation should be paid. Just like the question of who pays the surgeon is completely separate from whether the surgeon should be paid for his work.

    The total cost of subsidizing poor people’s transplants is substantially lower than the total cost of lost life and health caused by the ban on compensation for transplants. One simply cannot argue that Americans aren’t willing to pay for the former, but are willing to bear the costs of the latter. Americans really aren’t that stupid – they were just never asked.


    Frank, I thank you for your thoughts. Though I hesitate to characterize your much welcomed comments as a response to my post.

    The fundamental point was that there is something lacking in the social justice criteria for organ markets (and other markets) in terms of logical coherence. My thesis was that this criteria:

    (1) masks individual policy preferences;
    (2) has little to do with improving the welfare of the poor,
    (3) necessarily involves a rather patronizing view of those with low incomes in terms of ability to economize costs and benefits, and
    (4) the actual operation of organ markets is likely to improve the welfare of the poor.

    Your response, as I have read it, ignores points (1), (2) and (4) and responds to (3) by repeating the familiar mantra that organ markets could be “more” fair and under the market regime, some folks will still be unable to pay for organs. We are not told what it means to increase the fairness of an allocation by the Pope, or a blue ribbon panel, or Congress.

    To quote:

    “Barring fantastic success of the organ-market, there will always be those who need organs who will be unable to pay for them. Currently, they, along with those who could pay, are (generally) in an undifferentiated mass. Markets allow those who can pay to get to the front of the line.”

    Yes, some folks will be unable to afford organs who want them. Just like some people cannot afford housing, food, or clothes at current market prices. But your point seems to be, unless I have missed it completely, that the world of the undifferentiated mass is better than the one where those who pay can differentiate themselves from the rest of the mass that do not get kidneys.

    This is nonsense. The point is that the mass unable to receive kidneys becomes much smaller under the market regime. You concede this point when you write that markets will increase social welfare. You cant really mean that a world where 6,000 folks waiting for a kidney die each year is better than a world where say, 1,000 a year die, because of the presence of prices? Perhaps we can change the numbers around, but this is the logical implication of your position isn’t it?

    The reason that social welfare increases is because we get closer to the market clearing outcome. In the kidney market, this means that lives are saved. Isn’t the “socially just” solution the one that saves more lives for those in need of kidney transplants?

    Next. Geoff has a nice job of attacking this view that the appropriate lens for this policy issue is the impact on the rich and poor. I would like to make one additional point made by my colleague Lloyd Cohen who is on the front lines of the organ market debate: Would you trade places with any of the folks in need of a kidney transplant for $ 1 million? I would not. How about $ 2 million? $5 million? None of these figures would be enough to induce me to trade places. The point is that the in allocating kidneys we are, at least in this respect, always deciding between the poor and the poor, not the rich and the poor. Monetized wealth is just one form of wealth. The most appropriate lens I can think of to address this policy issue is the number of lives saved. I am not convinced by moral “logic” that condemning to death those waiting for kidneys produces some form of value while saving life through market transactions somehow lessens the value of life.

    Let me finish by expanding on a point Geoff raises in response to your notion that prices should be faithful to some “objective value.” Geoff points out that a blue ribbon panel, the Pope, you, and I dont know what this “objective value” is. He also makes the point, and it is worth repeating, that such a policy choice necessarily involves running a very high risk of “under” or “over” pricing organs. The error on each side, by your criteria, is necessarily unjust and in the case of overpricing, necessarily hurts the poor. The current policy avoids some of this by setting the price at zero and avoiding hiring the blue ribbon panel.

    Let me simply add that if you are seeking an “objective value” or organs to which to compare the price, the market mechanism is a pretty good candidate (though concededly, does not necessarily involve the wisdom of the Pope). As Becker points out in the post I linked to, the price of kidneys will not be determined by the rich any more than the rich determine the price of maid services. The price will be determined by supply and demand.


    Frank — with all due respect, this comment is as devoid of economic logic as your original post. You are prone to see this (and everything) as a pitted battle of poor against rich. It just isn’t. There are competitive aspects to any interactions as complex as those that make up the market, but it is just absurd (and against all history and facts) to think that the competitive battle lines fall or even tend to fall between “rich” and “poor.” This is, in fact, one of the many examples that prove this to be a fallacy.

    First of all, in the enclosure context as here, the perception that the rich were eating the poor rests on that most common of fallacies — the failure to count the unseen as well as the seen. I’m sure that better-enforced property rights harmed, in the first instance, those squatting on others’ land. If you stop your analysis there you get your pre-conceived — and utterly incomplete — result. But what happened to those squatters? What was the result for folks who would have bee squatters but did something else instead? How much did the price of food fall? How much economic development is attributable to the stronger property rights? How many poor, non-squatters were able to become land owners who wouldn’t otherwise have? Etc., etc., etc. The notion that this was simply a benefit to the rich at the expense of the poor is ridiculous (it’s not surprising that the quote comes from Polanyi).

    The same goes in the organ context. You continue to claim it will be “more fair” to slow the availability of organs in order to correct some perceived distributive slight. As Josh notes, it hardly seems “fair” to condemn many to death in order to . . . prevent others from capitalizing on the few resources they may have.

    Do I really need to point out that the poor — relatively unhealthy and unlikely to purchase preventive care — are probably more likely to be in need of organ transplants? When the price falls as organs become more available (and transplant surgeons stop appropriating for themselves the value of organs), the poor will benefit, as well. Do I know for sure that they will benefit exactly as much? Who cares? It just seems ludicrous to condemn many poor people to death in order to protect other poor people from the market, all in the name of protecting the poor.

    And then you suggest that we must preserve an organ’s “objective value?” Your reference to pharma rhetoric ought to demonstrate well enough that this is bunk. (And just because I believe pharma should have strong IP protection (for the social benefit; not just pharma’s!) doesn’t mean I don’t also think they’re full of shit when they claim their drugs have “objective value” for which they must be compensated). You may think you know what this value is, even what the term means, but it is an empty set; this is just hand-waving. How do you possibly propose to operationalize this? And if you set the price wrong on the high end — is that not also unjust? In what sense is this near-random “objective” price somehow better than the price in a well-functioning (if imperfect) market? Oh, unless, of course, you propose to have Jurgen Habermas and the Pope setting prices — then I would concede, of course.

    Moreover, you seem to believe that as long as we will them away, markets won’t exist and people won’t respond to incentives. In reality, there is scarcity, there is rationing and people pay more for what they want more, even if what they want can’t legally be bought in a store. You refer to the undifferentiated masses, and count it a feature that we all suffer together, dying needlessly for want of organs, but no more the poor than the rich. This is “social justice” at its most contemptible. In fact, there is surely rationing of organs under the current system, and it is a certainty that the currency in this market (power; connections; excessive amounts of money) is not possessed at all by the poor. And meanwhile, many more people die than would otherwise. It is neither just nor socially-minded.


    I apologize if someone has already made this point in a different forum, but can we compare the hypothetical kidney market to the plasma market? It is my understanding that people can sell (renewable) blood plasma. I’m sure that most people that sell their plasma are not rich, but I don’t know if we have ever had a crisis of plasma-low poor people because of this market. (I’m not sure that hospital patients pay for plasma or blood units, but I would not be surprised if they did. I have not heard of poor people dying because of not being able to pay for blood or plasma, however.) Also, we allow people to sell sperm and eggs. Has anyone looked into these markets to assess overall utility or benefits to one income sector or another?


    There is a lot here to respond to, and I appreciate the interest in the idea. But let me confine an initial response to an analogy, which might be helpful in getting a sense of my distrust of an untrammeled organ market.

    Imagine we’re back in the days of pre-enclosure agriculture. Farms are really unproductive, in part because there aren’t clear property rights. Some genius of incentivization proposes that clearer, more defined property rights will give the landowners more of an incentive to invest in their land, develop better farming habits, find its “highest and best use,” etc. The only problem is that the people who once made a living as “squatters,” or collecting “gleanings,” will be swept off the land.

    There’s a much more eloquent “take” on this transition in the first few pages of James Boyle’s article “The Second Enclosure Movement,” at Let me just quote one of Boyle’s sources:

    “Enclosures have . . . been called a revolution of the rich against the poor. The lords and nobles were upsetting the social order, breaking down ancient law and custom . . . They were literally robbing the poor of their share in the common, tearing down the houses which, by the hitherto unbreakable force of custom, the poor had long regarded as theirs and their heirs.”

    What’s the analogy? First, that there’s no stopping history…we are on the way to an organ market, just as agriculture inexorably moved towards its own efficiencies. But we now know (as medieval lords were likely unable to know) that equity concerns can balance this type of move to efficiency. It’s not a zero sum game–we can choose more and less fair transitions. And the fairer transition to an organ market would be one that a) skimmed some money to benefit in the future those who can’t benefit from the market now and b) prevent the price of the organs of the poorest from being driven down to levels that fail to recognize the value their organs have objectively.

    (Note that b) is a variant on precisely the argument that drug companies make to justify charging, say, $10,000 a month for a cancer-delaying drug. THey no longer only say “our R&D costs need to be paid for.” They say “a drug that saves someone’s life deserves remuneration commensurate with its importance.” See article.

    Barring fantastic success of the organ-market, there will always be those who need organs who will be unable to pay for them. Currently, they, along with those who could pay, are (generally) in an undifferentiated mass. Markets allow those who can pay to get to the front of the line.

    Admittedly, a transition to a market based system will likely increase social welfare. But is it too much to ask that, along the way, we get some “tribute” from those who benefit most in order to assure that others don’t get left behind? And, more importantly, that we prevent a relatively wealthy group of buyers (say, first-world ones) to bargain down the price paid to those in less-developed-countries who have only their bodies to sell?

    That last point is something approaching a religious duty to me, especially given this gloss on the recent dialogue between Jurgen Habermas and Pope Benedict:

    “We must recognize the danger of the reification of the human body through its commercial uses [such as organ trading]…’Man becomes a product, and thus the relation to himself changes radically.'”

    p. 13

    Only if we maintain objectively just prices for organs can we avoid creating an unjust system of using citizens of LDC’s for our ends.

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  1. TRUTH ON THE MARKET » Medical Self-Defense, Organ Markets, and the Poor - November 13, 2006

    […] Eugene Volokh has posted a series discussing his new article (forthcoming in Harvard L. Rev.) “Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs,” which I point out because the article claims that bans on organ payments violate patients’ medical self-defense rights. As readers of TOTM know, organ markets are a topic of substantial interest around here. Eugene dedicates a separate post to refuting the oft-repeated mantra that the ban on compensation is necessary to prevent the wealthy from buying up all of the organs. I remain unconvinced by claims that organ markets will harm the poor for reasons addressed in greater detail in this post. Eugene’s article admirably contributes to a substantial literature refuting the claim that organ markets will make the poor worse off (see, e.g., Cohen, Epstein, Boudreaux, Becker links in this post). […]

  2. » Facts and Values in Political Debates - July 21, 2006

    […] There’s been a spirited discussion of one of my posts here. (Okay, “spirited debate” is my euphemism for “clobbering”). I’d like to get some sense of why we’re so deeply divided. For now, I’m turning to this article, which tries to disentangle individuals’ value priorities from factual judgments. (Yes, I admit, it’s experimental philosophy, which I usually find less than helpful). […]