Some people clearly are itching to do it. Consider this classified ad from Ruth Sparrow, a 55-year-old woman who was $20,000 short for a needed gallbladder operation, which ran in the May 17, 1997, St. Petersburg Times under “medical supplies”: “KIDNEY–Runs good, Taking offers. $30,000/obo.”
Someone must have called the newspaper, because it pulled the ad after three days, noting that organ selling is against federal law. That didn’t stop John Curtis, though. The 63-year-old immigrant from England managed to slip this ad into the same newspaper on May 10, 1998: “BRITISH MADE Kidney shaped item; will swap for 45’ motor/sail boat.” When it came out that he was selling one of his kidneys, the newspaper pulled his ad, too.
Awful, right? Not at all, some say. Organ selling–click here for more examples–is gaining a respectable fan club. Recently, the Cato Institute posted an article on its Web site backing organ markets, and former Delaware Gov. Pete du Pont, policy chairman of the National Center for Policy Analysis, has endorsed the idea. Its most sophisticated defense, however, comes from University of Chicago law Professor Richard Epstein.
Epstein is pursuing an honorable but difficult mission. He wants to alleviate the enormous shortage of organs for transplantation. He also wants to bring libertarianism into medicine, an arena in which few ideologues survive. In his book Mortal Peril and a recent Wall Street Journal op-ed, he stakes a simple claim: Even in health care, people should be allowed to do what they wish with their own bodies (as long as they don’t hurt anyone else). And that includes selling their body parts. It’s not just because he believes people have the right. It’s because he thinks giving people that freedom will save lives.
It’s harder to refute Epstein than you might think. He is probably right about saving lives. The transplant waiting list currently includes 55,560 patients, and about four thousand of them will die waiting. Healthy people could conceivably sell their eyes, some skin, a few bones, a kidney, a portion of their liver, and even a lung and still survive. If Epstein’s organ market opened for business, patients with the resources would certainly bid up prices enough to attract sellers. Perhaps, as he says, charity will even raise money for patients who can’t pay the going rate. (“If you could spare just a couple of dollars, ma’am, we’ll have enough to buy someone a beautiful cornea.”)
Epstein has a ready response for the arguments. Won’t organ selling draw down-and-outs with lower quality organs? So what, he says. The market will reduce the price for their organs, testing will weed out unacceptable risks, and the risks will outweigh the lives saved anyway. What about the risk that some people will be coerced or will act impulsively? He says that we can do careful screening and require waiting periods. Aren’t people who sell their organs out of desperate financial need acting involuntarily? No more so than when they stoop to cleaning bathrooms for minimum wage, he says. You might reply that this isn’t just cleaning out toilet bowls. But, he says, if you’re really worried about exploiting the poor then we can require a minimum income for anyone who sells their organs.
Well, I am no philosopher, and I remain unencumbered by legal training, but I still believe the whole idea is warped. My opposition stems from exposure to ordinary people as they make decisions about whether to undergo surgery, to take their medicines, and so on. Libertarians have great faith that people nearly always make rational choices and that having more choices can’t be bad. But any doctor can tell you that’s not true. In medicine, you come to recognize how unreliable the faculty of reasoning is and how susceptible it is to subtle forms of exploitation.
Consider a common decision faced by patients with asymptomatic carotid stenosis, a blockage of the carotid artery. These patients have about an 11 percent chance of a stroke or death in five years. Surgery to remove the blockage carries a 2 percent risk of causing immediate stroke or death, but the five-year risk is just 5 percent. Patients must decide whether the upfront risk of surgery is worth cutting their overall risk of having a stroke in half. It’s not an easy task. Each individual must define what’s most important in his or her life, then calculate the best course to meet these goals. I can tell you that a lot of people fail to reason through the options very well. Even when they understand their goals clearly, they often pick a choice that runs against their aims. In academician’s terms, they fail to maximize their self-interest.
Studies have shown that the brain has systematic faults in reasoning, especially when processing risk information like this. For example, the order in which a doctor presents options can easily sway people. Also, saying people are fine 98 percent of the time after surgery can lead patients one way, while saying people experience strokes 2 percent of the time can lead them in the other direction. Yet there is no right way to frame the options. Another quirk, as gamblers and con artists know all too well, is that the brain is not good at weighing small chances of big gains (or losses) against large chances of small losses (or gains).
When an organ seller is trying to decide whether the terrible dangers from kidney removal or the certain loss of sight from surrendering an eye is worth a sudden cash infusion, his effort to identify his best interest will be confused by how the question is framed, by difficulties sorting out the statistical risks, by the vision of all that money, and many other factors. These vulnerabilities are easily exploited. But even when not taken advantage of, plenty of people get serious decisions wrong–enough that we should question libertarian beliefs that people should do what they want and live with the consequences.
Some options are so terrible and irrevocable, so unlikely to be in a person’s self-interest, and so open to exploitation and flawed decision-making that society outlaws them. In human experimentation, for example, researchers cannot pay volunteers so much that the poor could be exploited. Rules limit how much blood you can donate or sell at one sitting. And while we allow people to give a kidney to their child, we do not allow them to donate their heart. Likewise, hawking an organ would be right for so few, if any, that permitting the option makes no sense at all.
Isn’t this paternalism? Yes. Even Epstein seems to recognize we need some when he accepts laws stopping people from selling themselves into slavery or selling a vital organ such as their heart. People will argue about where to draw the line. Some think seat belt laws, for example, go too far. But few would discard laws against organ selling.
Iknow that I could find myself on that transplant waiting list someday. But I’ll take my chances. It’s certainly better than living in a society that allows money to entice people to convert their own health into a commodity. People can be weak, and money is all too often the way to their heart.