In a recent Rolling Stone piece, Selena Gomez announced that her only friend in the entertainment industry is Taylor Swift. Gomez is the epitome of the modern celebrity and has a staggering 355 million Instagram followers. The durability of her brand depends on her willingness to reveal private details about herself, and a recent documentary, My Mind and Me, chronicles her private struggles with mental health as well as her struggle with lupus. In fact, it was lupus that likely led to her worsening kidney failure, ultimately necessitating a kidney transplant.
In 2017, in a highly publicized event, Gomez’s friend Francia Raísa donated one of her kidneys to Gomez. Soon thereafter, according to tabloid reports, Raísa protested what she believed to be dangerous post-transplant lifestyle choices on the part of Gomez, including consumption of alcohol. Fast-forward to 2022, when Raísa, an actress herself, caught wind of Gomez’s public comment about having one single friend in showbusiness. Raísa publicly registered her displeasure at what she perceived to be a snub. In reply, Gomez issued the following statement on TikTok: “Sorry I didn’t mention every person I know.”
This spectacle is not a childish spat, or regular tabloid gossip. It speaks to how fraught the organ donor-recipient relationship can be, whether or not in the context of celebrity.
Kidney transplants greatly improve quality of life in recipients, and, on occasion, such transplants can be lifesaving. As a result of the improved immune system modulation in kidney donation recipients, a very close genetic match is no longer needed. Individuals can safely donate to someone unrelated to them, even to strangers, if they so choose. Yet the relationship between donor and recipient is challenging—among other reasons, due to the legal characterization of organ donation as a gift under the Uniform Anatomical Gift Act. A gift is legally defined as the voluntary transfer of property from one person to another without compensation. The law considers gift giving to impart no obligation on the recipient. But in the Raísa-Gomez disagreement, we sense some lasting expectation indeed is at stake.
In his extended 1925 essay “The Gift,” French sociologist and anthropologist Marcel Mauss famously argued that gifts are never free, even as they are framed as disinterested and without obligation. Rather, history is full of examples of gifts bringing about positive reciprocal exchange. According to Mauss, in a commodity economy, objects and persons are separated by the idea of private property. When an object is sold, it transfers from the original owner and thereby becomes alienated from that original owner. But in a gift economy, the given object is inalienable. The identity of the giver is bound up with the object, which gives it power and a desire on the part of the recipient to reciprocate. Gift giving is a social bond that continues through time, and leads to interdependence between giver and receiver. The bond of the gift brings social cohesion to a community. Although gifts are seemingly given and repaid voluntarily, in truth, reciprocity is an obligation.
Likewise, for many gift givers, a generous gift often feels like it might yield some durable consideration, like friendship, even if this is not an explicit or formal agreement. Francia may lament that her friendship with Selena has declined, despite the bond she expected would be formed around the kidney donation. If so, her expectation would be supported by common understandings of the gift—but not by organ donation law. Despite Francia’s moral objections, according to the law, her former kidney now belongs to Selena to use—and even abuse—as she sees fit. The law would say that Selena owes Francia nothing.
Indeed, the law is careful to eliminate any possibility of future obligation, including payment, in part because federal law prohibits the purchase or sale of organs. One might imagine that it would be inappropriate, for example, to consider contract law as a legal framework for organ donation. For a contract to be legally binding, there must be “consideration” payment for the promise to transfer something—like money or friendship—from one individual to another. The Uniform Anatomical Gift Act avoids constructing the exchange of organs in this way, but shades of mutual reciprocity still haunt the exchange. We ask donors to give out of altruism or as virtuous acts of charity, but we lack much direct consideration of their reasons for engaging in this exchange. We ask our recipients to be forever grateful and promise to treat the gifted organ with reverence, but this demand for virtue is not something we ask of other medical patients as a condition of treatment.
We do this because the demand for donated kidneys greatly exceeds the supply; we want the gifted organs to be put to “good” use. We do not apply the same standard to donors, however. Although many individuals would likely fail the virtue test, we still permit, and even encourage, the donation of organs as gifts.
Organ donors may be motivated by Maussian understandings of the gift as opposed to the colder Uniform Anatomical Gift Act. These understandings may be encouraged in medical practitioners’ calls for organ donors, but they are not written into law. As a matter of public policy, organ donation has a much better chance of being embraced when we configure the gift in the Maussian model, promising reverence, parades, bumper stickers, and bragging rights. This return defies money, and even other forms of status—as an alternative, the commodification of the body won’t enrich the spirit of the donor. In Viktor Frankl’s seminal work, Man’s Search for Meaning, Frankl states that a person’s deepest desire is to find meaning in their life, and if they can find that meaning, they can survive anything. Organ donation might bring meaning to the lives of donors and recipients in a fashion that far exceeds whatever can be extracted from the enormity of celebrity.
Many may feel no sympathy for the apparent public breakdown of the friendship between Gomez and Raísa. When celebrities fail, we may even experience schadenfreude. Social media makes a sport of the failings of the famous and infamous. Indeed, such sordid tabloid versions of this event rob us of our capacity to see the characters in this story as real people. Here, one might be tempted to seek a legal remedy for a spoiled social contract. When it comes to organ donation, should the law write in some form of reciprocity or obligation? How can the law better comport with people’s cultural assumptions about the gift? Are we simply saying that organ donors would be well advised to understand that this misalignment exists when they are examining their own motivations and their possible benefits?
The law can only go so far here. If we create objective rules of gift giving, we blunt the alluring edge of risk where human relationships thrive. The meaning of the gift is arguably gleaned from the uncertainty of the return on investment. It is powerful because it is not explicit. Raísa’s gift of her kidney failed to generate the sort of reciprocal satisfaction that she had desired, but she might still be the beneficiary of the joy of giving. On the other hand, while organ donation law shields Gomez and others from alleged “misuse” of their gifts, it is easy to apply the Maussian model to understand why donors like Raísa might crave some form of reciprocity. Regardless of the discrepancy between dictum and decorum, stories like these should not deter potential organ donors. On the contrary, this form of gift giving is worth it, even if it fails—as long as the organ transplant succeeds.