Two Birds, One (Kidney) Stone: The Bilateral Benefits of Legalising Organ Sales.

Many of the arguments opposing legalising organ sales revolve around overexaggerated fears with little evidence. The English legal system has never shied away from making uncomfortable but rational decisions – it certainly should not start now.

by Toni Adejuyigbe

© Arne Rosenberg

The law should permit the buying and selling of organs (human biological material) for one reason only: human beings should be able to fully exercise their autonomy, and this extends to their biological material. Unfortunately, this is currently prohibited almost universally. In the UK for example, the sale of human biological material is currently prohibited under section 32 of the Human Tissue Act, with section 53 defining the relevant material in such a way that it prohibits all forms of bodily material except for hair, nails and those which can be used for reproduction. The only time when we accept the law’s restriction of our autonomy is when we believe that there are good reasons for it. Despite the many arguments that have been deployed in favour of prohibiting the sale of HBM, none of them are convincing and for that reason, the law should permit it. The following limits should be imposed: the sale of such material should only be to the NHS; only living humans should be allowed to sell this material and; any sale which would result in the death of that person should be prohibited i.e. the selling of one’s heart with the foregone conclusion that they will be dead after the operation. Within this scope, there seems to be no persuasive reason why the buying and selling of such material cannot be allowed.

Vendor Consent & Exploitation

One of the most common arguments against legalising the sale of organs is that the poor could be exploited and pressured into such a sale, which would be immoral. Those in support of this view argue that in order to protect the poor, we need to make it illegal so that nobody can pressure them to do so. One of the strongest proponents of this view is Simon Rippon – a moral philosopher at the Central European University – who argues on behalf of poor people, that are “best off” when they do not have this option, because the social and economic pressures of poverty may push them to sell their organs in order to raise money. Rippon uses the story of people in Chennai (where the sale of organs was legal) to back up his point, as research showed that up to 96% of those who did sell their organs did so to pay their debts. In particular, Rippon fears that this option may “easily be transformed into a social or legal demand” where debt collectors can request for you to sell your kidney or a pint of your blood in order to pay your creditors. Moreover, he does not believe that good regulations can avert this kind of harm because it “would do nothing to address the problem that some might sell their organs out of economic desperation, rather than out of a choice made free from external pressure.” Therefore, if the law cannot adequately control the risks that may emerge from legalising the sale of organs, it should remain prohibited.

There are a few responses which may be made to this argument. Firstly, there are social and economic pressures in almost everything we do in life — a lot of people work out of the fear that they would be poor if they did not — so to criticise organ sales on this basis is not sufficient. Those who are poorer often do things that endanger them, such as the plaintiff in McGhee v National Coal Board (1972) who was employed to clean out brick kilns and developed dermatitis from the accumulation of coal dust on his skin. Kate Greasley agues that risky jobs are different from giving one’s organs different because “the permanency of losing one's organ, the invasiveness of surgery, the particular health repercussions and psychological impact on the vendor may lead one to the conclusion that this form of exploitation is especially objectionable.” She is right about the impacts and the pain caused by the donation, but this fails to answer the question of why it cannot still be permitted. After all, there is nothing about donating the organ rather than selling it which reduces any of the features of the operation that she detailed above. If we praise people for being selfless when they endure all this pain and donate their organs, why do we suddenly see it as objectionable when they receive some financial reward for it? It is inconsistent at best, and hypocritical at worst.

Secondly, Rippon’s claim of a “legal demand” for one’s organs seems divorced from the reality of what is permitted under debt collection. Debt collectors are not given freedom to collect everything and anything one owns in order to pay their debts. For example, under US Federal rules for bankruptcy, up to $33,000 of personal property — cars, jewellery, household goods — is exempted from collection, and such an exemption could be applied to bodily material if the sale was permitted in the UK. In the same way that the exclusion of liability for death caused negligently is illegal under the Unfair Contract Terms Act 1977, a similar amendment could prohibit the inclusion of a term under a loan agreement that allows for the possibility of collecting the borrower’s organs if they default on payments.

Finally, regarding Rippon’s claim that the law cannot address the problem of selling out of economic desperation, this should be seen as a good thing. The best thing which the law can do is to ensure that it was a decision made “free from external pressure”, and this can be done by transposing case law from Contract Law, particularly the decision in Etridge (2001), where the House of Lords laid down the circumstances under which actual and presumed undue influence can be argued to vitiate consent to a contract. The NHS could be put on constructive notice to ensure that everyone who attempted to sell their organs had received independent advice about what they were entering into. The law cannot, and should not, go further by trying to inquire whether the choice was made out of “economic desperation” or not. This paternalistic approach would violate the principle of freedom of contract and individual autonomy. The suggested safeguards are good enough — a basic part of autonomy is also the freedom to make bad decisions.

Commercialisation of the Body

A similar but distinct point which has been raised is that the sale of organs would change the nature of the relationship we have with our bodies as we see it as a commodity that can be exchanged for financial rewards. As Mark Cherry – the applied ethics professor at the University of Texas Austin – argues, we begin to respect our bodies less when we come to see it this way, but also the bodies of others. We think of human life as intrinsically valuable, but a commercial view of the body could lead to an alternative view: human life is only valuable if one possesses organs that can be sold or traded.

This is clearly undesirable and for that reason the status quo should be maintained.

This argument is less convincing than the first, and for a few reasons. Ignoring the vagueness and speculative nature of the argument for a second, we may ask if the human body is not already commercialised? For example, American singer Dolly Parton reportedly insured her breasts for $600,000, illustrating that we already see certain body parts as sources of income. Moreover, in various jurisdictions worldwide, prostitution is legal, and some sex work is legal in the UK including “webcam” girls and strippers. A 2014 documentary called “The Truth About Webcam Girls” explores why young women to get into the sex industry, with a substantive number citing economic pressure in repaying student loans and the desire to earn more than a minimum wage job could offer without the high requirements for experience. It is clear that some of us already use our body to generate income when we are desperate, but the law permits it because it as a consensual activity between two people, regardless of the financial incentives involved.

We could also view the sale of organs as a transaction between X and the NHS, two consenting parties. Although the language of a ‘shortage’ of organs has been criticised by Silke Schicktanz and Mark Schweda — medical ethics professors at the universities of Gottingen and Oldenburg respectively — who argue that using the language of shortage assumes that there is a legitimate expectation that there will be extensive donation: it is still clear that many more people need organs than currently have them. By permitting the sale of organs to the NHS, they can see a rise in the supply while fairly compensating people. In addition, we can at least ensure that people are benefitting more members of society — entire families being overjoyed now that their relative has another chance at life due to a new kidney, or the increased likelihood of finding a cure for a fatal disease after scientists obtained more diverse tissue samples — than they would have if they were webcam models performing for the pleasure of one individual. As Harris and Erin argue, even if the NHS was a central supplier, the need to incentivise people to sell their organs would see reasonable prices being set without overburdening the NHS’ resources. Given that a kidney donation saves a Primary Care Trust (PCT) about £22,000 a year, any price this for sale below this would still lead to a profit for that PCT.

Harm to Altruism

The final common argument often deployed in favour of prohibition is the harm to altruism by allowing people to sell their organs. The current system celebrates selflessness, which is a virtue that we as a society should uphold. Keown argues that allowing the creation of a market for organs would actually reduce the supply as people who currently donate selflessly would be put off by the commercial aspect. Rippon refers to this as the ‘crowding out’ effect: altruistic people will donate less especially if they assume that more people will offer their organs because of the money.

While it may be true that less people will donate their organs and blood as a result of a market for it, it does not follow that people would choose not to donate something simply because it can now be sold. For example, it is possible for me to sell my used items on eBay and other online retailers, but this does not stop me from donating them to charity shops who can use it to help the less fortunate. The fact that something can be sold does not mean that it can also not be donated. In actual fact, it would be absurd if under a scheme for sale, the NHS forced people to collect money for their organs. In the unlikely event that this happened, those who are truly altruistic can donate the money to charity if they are doing it for selfless reasons. Moreover, if people who donated their organs previously decide not to anymore, we may question whether their motives were truly pure or if in fact they only donated because they appeared altruistic. If the latter is true, that is not symbolic of a virtue society should try to uphold.

The strongest reason in favour of permitting organs sales is the freedom and autonomy of the individual. The law — and society at large — only accept restrictions on our liberty when there are sound reasons for doing so. Space precluded a review of all arguments in favour of the status quo, but those which have been evaluated show that our approach to the sale of organs is inconsistent with our approach to other spheres of social life. Perhaps the reason for this boils down to intuition: the idea of people being allowed to sell their body parts just doesn’t sit well with our guts, so we perform all sorts of mental somersaults to justify the prohibition. While this understandable, it does not change the fact that the current legal position does not stand up to scrutiny and requires a change. We have never used our ‘gut’ (but always our brain) to legislate, and we should not start now.