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Organ Peddling

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from: Richard A. Epstein
to: Atul Gawande

Posted Wednesday, July 1, 1998, at 3:30 AM ET

Dear Atul,

I'm glad that you crystallized the points of difference between us so well in your last response. But I still think that you fail to make good on the ban on all organ sales. Here's why.
First, as a background presumption, I think that we have to start with the world as sensible rather than the world as nutty. We could not organize any form of political or market behavior if we thought that irrationality were so endemic to the system that there was simply no way in which any individual could step outside the system in order to stamp that irrationality out. The basic difficulty is that no one could escape the charge against his own preferred solution. The politician could point to the irrationality of markets, and the marketeer could point to the irrationality of politicians. Each side could veto the actions of the other, and no cooperative behavior could take place.
Second, once we recognize that the corner position of universal irrationality is untenable, we do not have to move to the other position and assume that all individuals are rational in their behaviors all the time. If they were, the problems of political economy would be far less interesting than they presently appear to be. We could choose politics or markets and rely on benevolent and informed individuals to come to the right conclusion on a wide range of social questions. The problem here would be in a sense too easy, because either solution would work so well that we would never worry about issues of incremental improvement.
Third, the first two points leave only one workable position. We start with a rebuttable presumption of rational behavior and then look for evidence that certain transactions lie outside that field. And we can surely find them, given the problems that individuals have with greed, with haste, with anxiety, with coercion pressures, and the like. Here there is no doubt that organ transplantation is an area that quite literally breeds these problems, especially when the ban is in place. Most people have never been in this market before, they come only in time of crisis or desperation, and they are often uninformed of the risks and benefits of certain procedures. And, of course, they are cut off from learning from those who have gone before them.
Fourth, and most critical, from these near self-evident truths, the ban on organ transplants does not follow. It is an extreme solution that cuts out lesser remedies that could control the excesses while allowing the transactions that do offer real gain to go forward. To review the bidding, we allow donations because of the judgment that two people with one kidney each are better as an end state than one person with two kidneys. But in the donation situation, we should expect to see exactly what you mentioned: all sorts of subtle family pressures, precisely because there is no way to compensate the family losers with cash. We could therefore get better decisions by allowing purchase, knowing that the web of social connections will allow compensation that offsets some of the serious loss to the donor without extracting all the potential gain from the recipient. If you are uneasy about donations in the family context, the injection of other forms of compensation should be regarded as an opportunity for improvement and not as some dreaded alternative.
Fifth, even in stranger type situations with live organ donations, there are less intrusive remedies than the ban, and they should be tried. One could require individuals to receive counseling and literature before engaging in organ sales. (Or one could assume that these services would emerge voluntarily so long as it is no longer illegal to supply them.) We could have some waiting periods before the transactions could take place. Most important is that the dense experience of real markets gives people an opportunity to learn. They can make phone calls, watch talk shows, read testimonials to find out whether they want to undertake so critical a decision. Ironically, total bans work to increase the chances of total irrationality. They simply cut too deeply to be justified on any general social calculus.
Sixth, you point to the empirical evidence that notes the want of regret of individuals who at the time felt coerced into making familial donations. Are we so confident that the same outcomes would not take place in the sale transactions, knowing that another individual may live because of the risks that you have been prepared to take? I fully recognize that the role of empathy is likely to be weaker in these settings than in familial ones. But so too are the external pressures to contribute, and of course the cash is there to help fill up the void and to allow expenditures on other items. Once again, the ban prevents us from getting the information that would allow an intelligent assessment of the psychological consequences to organ suppliers. Indeed, I would feel much more respectful of the ban if it were implemented after programs of organ sales were allowed and failed (if they failed) than I am with bans that are done on the strength of a priori hunches that necessarily fail to take into account the adaptive responses that private individuals and third-party intermediates would take once the market were legal.
Seventh, and last, I don't therefore understand, Atul, how you can be so confident that the consequences of selling organs would be so terrible when the practice has never been tried. I could understand it if we saw no potential gain from the outcome, which is why we think that lethal heart transplants make no sense, or why a market in eye transplants has never emerged, either. There are no voluntary donations, so we can be quite confident that there would be no sensible sales either. In the first case, it is a big loss (to say the least) to the donor and a smaller gain (given the risk of failure) to the recipient, so we should not expect to see this market emerge at all. And with eyes, we know that no transplant has ever worked, so if the benefit side is close to zero, why endure the very heavy costs? But we have no such priors with kidney transplants. So, even if we thought that some form of limited paternalism were appropriate, this would not be the case in which to apply the rule.
In the end, Atul, I think that your objection is largely aesthetic. And that's a good reason not to participate in the program. It is not a good reason to prevent others from so doing. The burden is on those who think that they can overcome the presumption of liberty. In the case of live kidney sales, I don't think that you have been able to carry that burden.

dialogues
entries
12345
from: Richard A. Epstein
to: Atul Gawande

Posted Wednesday, July 1, 1998, at 3:30 AM ET
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Richard A. Epstein is a professor at the University of Chicago Law School and author of Mortal Peril: Our Inalienable Right to Health Care? Atul Gawande, M.D., writes a regular column on science and policy for Slate. This dialogue grows out of Gawande's article "Organ Meat," which appeared recently in Slate. Click to purchase Mortal Peril from Amazon.com.
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