Organ Peddling

       As you might expect from a surgical resident like me, squeamishness–ethical or otherwise–has nothing to do with my opposition to your proposal for a legal market for the sale of organs. Far from it being a “brave” cause hindered only by a couple of “practical difficulties,” I think it is fundamentally flawed. Indeed, it lays bare serious inadequacies in a no-holds-barred libertarian worldview.
       Your e-mail briefly mentions the issue of selling organs from cadavers. That raises many altogether different problems (like who owns them and who decides and how you get this kind of market to actually function in the real world) that I won’t take up here. The idea of living people selling off some of their organs has enough troubles for one conversation.
       You start your rebuttal by saying we should permit people to sell their organs because it could save lives. But we should be clear that, even if lives would be saved, such sales would be horrifying–and should be kept illegal–if irrational thinking or exploitation are likely driving sellers’ decisions. If people signing a sales contract for their kidney are making a big, dumb mistake or being unjustly taken advantage of, then it would not be “better that we have 200 people alive with one kidney each than 100 people alive with two kidneys.” My argument is that, given how unlikely it is that hawking one’s organs will be in one’s self-interest, mistakes and exploitation will likely rule the day. Given how serious and irrevocable the decision is, organ-selling should remain banned.
       What person could possibly have reason to accept the substantial health risks and disfigurement of selling their organs? You dismiss the two people in my article who took out ads offering to sell a kidney. One wanted to buy a boat. The other needed an unaffordable operation. They were “odd” examples, you said, for they were oldish (although a transplant surgeon would not necessarily think so) and perhaps infirm. Instead you suggest a good example is a young family man who desperately needs funds for an operation on his child. But he’s a reason for enacting universal health insurance, not for dropping the ban on organ-selling. Your chosen example is a classic case of exploiting a desperate situation, like charging a man dying of thirst $1,000 for a glass of water. If our wealthy society has many people in such a state of deprivation that it would be rational for them to sell their organs, society is what needs to be fixed.
       As dubious as I am, however, let’s suppose that we could somehow screen exploitation out. There would still be some people left trying to sell their organs. Perhaps a few have lives that would be so enriched by the payment they get that the risks are worthwhile. But many, like a lot of gamblers, will be enticed to do it by a weakness for money or a mistaken estimate of the risks involved. Indeed, given what we know about the rationality of people, it is a safe bet that organ markets would be dominated by folks with faulty reasons for selling their organs.
       Professor Epstein, you approach this issue and others in your book with a presumption that people nearly always act rationally, and then you conclude that people should be allowed to engage in virtually any transaction. But everything that I’ve seen in my modest experience watching how patients actually make vital decisions about their lives–like whether to undergo a risky surgery or not–indicates that decision-making is usually far from rational. That’s just the way people are.
       You avoid grappling with my argument by saying the problem is merely “confusion,” which can be fixed with your prescription for more information, but it’s not. Our reasoning process has fundamental flaws. For three decades, neuropsychology research has shown that our decisions are heavily influenced by irrelevant factors–such as the order in which options are laid out, the way they are framed, and who presents them. The brain is particularly dreadful at weighing probabilities and risks. We do not carry around statistical programs in our heads. Instead, we deal with probabilities using mental shortcuts that often fail us. Anecdotes are more powerful than data. Immediate gains and losses loom larger than distant ones, regardless of size. In my essay, I cite still other examples.
       The upshot is that, no matter what is done, humans will reliably and frequently make irrational choices. That is no less the case when weighing the losses of having an eye or kidney removed against the gain of a bunch of cash. Where a decision is this open to exploitation and irrational thinking, has consequences this serious and irrevocable, and is so unlikely to be in a person’s self-interest, we ban it. It is no different than prohibiting, as we do, people from donating three-quarters of their blood at one sitting or entering into a heavyweight boxing match when they are unfit.
       I wonder if you recognize these concerns to some extent. You write in your book that you agree with laws preventing living people from donating their heart or enslaving themselves. Why? After all, it’s conceivable that people may rationally wish to do such things. A parent, for example, may rationally wish to give up his or her heart and life to a child. Nonetheless, I stick with the ban because of the large likelihood that exploitation or a nonrational factor is driving a decision of such terrible consequences. Why do you?