The 1984 National Organ Transplantation Act prohibited sales of organs for transplantation, reflecting Congressional concern for individual and public health and for the nation's moral sensitivity. The ethical position embodied in the prohibition of "organ markets," however, seems to ignore economic realities that may undermine Congressional intent. A law prohibiting sales of organs does not make them valueless. Such a law only bars organ suppliers
from reaping the economic value of their organs. The law makes organs free goods that can be harvested by anyone who can establish a claim to them.
To understand how the intent of the 1984 law might be subverted, imagine that a market for transplantable kidneys exists. Say there are three parties to a transaction: a donor, a surgical-and-hospital team and the recipient, and they are able to carry out the transaction at prices agreeable to all. Let's assume that the amount required by the owner of the kidney to provide the kidney is $20,000, the amount for the team's services is $30,000 and the recipient is willing to pay the total sum of $50,000.
Suppose that a law like the 1984 act is passed requiring all transplants to be gifts. Who would reap the $20,000 value of the kidney? Undoubtedly, the intent of the law was to treat the kidney as a gift to the recipient; thus, he pays $30,000 rather than $50,000. However, nothing in the law insures this outcome. The medical team could reap the entire value of the kidney by charging the recipient $50,000.
A series of articles in the Pittsburgh Press in 1985 reported that in 1984-85, while nationwide 10,000 Americans waited for transplants, at several hospitals nearly 30 percent of kidney transplants were performed on foreigners allowed to jump the line of Americans, and that surgeons' fees were as much as four times and hospital charges almost twice as high for foreigners as for Americans. The Department of Health and Human Services confirmed last month that a high percentage of American kidneys were being transplanted into foreigners who were being charged fees several times that charged Americans.
Is this what Congress had in mind in passing the law? No. Nor is it what most organ donors and their families have in mind. Potential donors may be happy donating to sick foreigners but not if those foreigners are given an unfair advantage over equally needy Americans. Furthermore, if donors believe that middlemen are being unjustly enriched by their donated organs, their altruism might vanish.
A federal task force on transplantation recently called for important changes in the system, including creation of a nationwide organ procurement system, government financing of transplants for the poor and a limit on transplants into foreigners of 10 percent of kidneys from cadavers. Even these steps will not eliminate financial and distributional inequities if the system leaves the value of the organ up for grabs.
However repugnant the idea, the body now has economic value that cannot be wished away or ignored. As new techniques increase the value of the body, the nation will need far more stringent controls in order to preserve the trust between donors and recipients. But if we are unwilling or unable to organize an efficient and equitable system in which the generosity of donors is not abused, then it may be time to consider paying donors for their organs.