Harry Burns, When Harry Met Sally

Perhaps Dr. Richard Batista should have put his name on his kidney before agreeing to have it transplanted to his wife in 2001. Although, even had he taken that precautionary measure, it's still unlikely that he would be able to regain custody of his transplanted kidney during his current divorce proceedings, as he is trying to do now.

Dr. Batista's highly publicized efforts to either reclaim his kidney or collect the monetary value of his life-saving contribution (calculated by his attorney at $1.5 million) demonstrate an extreme measure of donor remorse, which was described by Dr. Sally Satel:

While the vast majority of donors report a lasting feeling of self-worth and experience a deep sense of gratification from the act—according to surveys, about 95 percent of donors say they would do it again—some regret having donated. It may be that a hoped-for closeness with the recipient failed to materialize, an anticipated demonstration of gratitude was not forthcoming, or the donor felt he did not get the social recognition he deserved. These dynamics prompted sociologists to coin the phrase "the tyranny of the gift." It represents the dark side of altruism; the sense of entitled reciprocity that can be a burden to both donor and recipient. This is not part of the standard gift-of-life storyline, however, and few people are aware of it.

Although this episode has attracted attention largely for its novelty and tawdriness, it does illustrate systemic problems with our current system of living organ donation that relies solely upon individual altruism. Like all living donors, Dr. Batista received no legal consideration for his donation. In fact, it would have been illegal for him to receive consideration of any kind.

Would the situation be viewed the same way if he had been compensated in some way? If he had received a contribution to his retirement fund? If he had been able to claim a substantial tax exemption or credit after his donation?

Does the organ recipient have a moral obligation to perform or behave in a certain manner to satisfy the organ donor? Would their obligations - whether real or perceived - change in any way if the recipient knew that the donor received significant compensation for their donation?

The introduction of incentives would likely change the perceptions held by both donor and recipient, in both positive and negative terms. The living organ donor would lose some of the altruistic luster that currently defines their life-saving donation, and by receiving some level of compensation their continued sense of "ownership" would almost certainly diminish.

Likewise, the perceived obligations of the transplant recipient would shift. The gratitude would always remain, but the tyranny of the gift would be removed and may actually benefit the recipient who no longer has the same measure of overwhelming obligation constantly hanging over them. After all, if the donor were to receive compensation, then the recipient's personal obligations would diminish proportionally.

For those who celebrate and cling to the current system of purely altruistic donation, these considerations are abhorrent. But for those of us who seek to eliminate entirely the transplant waiting list, we understand that there are tradeoffs in every aspect of organ donation. If introducing incentives for living organ donation and diminishing the notability of altruistic donation could result in increased donation and saved lives, that's a tradeoff we're willing to embrace.

I’ve never met anyone who won’t sign a donor card because they aren’t going to be paid. If money isn’t the reason why people don’t donate, then why do so many believe that compensation for donors would make the list disappear?

Lora, it appears, is one of the virtuous organ donors who doesn't want to tarnish the unadulterated altruism of her gift with commercial corrosion. Which is fine, as long as her personal sentiments don't interfere with the life-saving opportunities sought by 83,000 others. I applaud her sacrifice, though I don't ascribe any greater value to her gift because she did not receive any compensation. I simply commend her for the life-saving result.

Although she may not have met anyone who won't sign a donor card because they aren't going to be paid, I have. Just ask GMU law professor Lloyd Cohen about his intentions to donate his organs. Or you can download his Directions for the Disposition of My Vital Organs. You want his organs? Then have a check ready for $864.27 for each organ. Why? because...

Despite more than two decades worth of self-interest harnessing reform proposals, with new variations regularly offered to meet the unending stream of ill-founded objections, there has been no progress. The proposals are varied and nuanced. The arguments in favor are simple, clear and overwhelming. The arguments in opposition are muddled, weak, and fatuous, and yet we make no progress.

The core of the various market based reform proposals seems so obvious and incontrovertible as to be banal—the principle reason that we manage to recover perhaps half the transplantable organs potentially available from cadavers is that those who are asked to donate receive nothing in return. A significantly larger organ supply would become available if donors were offered a substantial—though less than exorbitant—material reward. I am almost embarrassed to have earned some renown by championing a proposal based on such a trivially obvious proposition.

And should anyone disagree with Professor Cohen's assertion, answer a simple question: what would the effect on organ donation be if we were to charge all voluntary organ donors $500 for the altruistic privilege of donating their organs? Go ahead, take a minute.

Is there anyone who doesn't know, with certainty, that implementing an organ donation fee would virtually eliminate all voluntary organ donation?

So, it stands to reason that if organ donors can be persuaded to change their behavior by financial disincentives, then they would also be persuaded to alter their behavior when induced with financial incentives. The only question remaining is: How large do the incentives have to be?

Still think markets won't work for organs? There's only one way to find out. Make me an offer.

The opponents of any and all market incentives to promote organ donation typically refer to any transaction involving a human organ as trafficking. As Epstein points out:

"trafficking" is an evocative term that often carries a lot more punch. Exhibit A is this past May's "Declaration of Istanbul on Organ Trafficking and Transplant Tourism." Its definition of trafficking starts sensibly with coercion, abduction, deception and the abuse of power over vulnerable persons. But then it lurches downhill by condemning brokers who receive payments to aid "transplant commercialism." Organs, we are solemnly instructed, are not a "commodity" to be "bought and sold or used for material gain."

Now the rubber hits the road. The initial critique of "trafficking" rightly targets first transactions that make one side better off at the expense of the other. That is close enough to theft to richly merit the strong condemnation it receives. But the second half of the prohibition unwisely attacks all transactions intended to leave all parties (brokers included) better off. At this point the doctors from Istanbul seem to be on a collision course with libertarian thought.

Can an eventual crash be averted? One quasi-libertarian argument treats organ transactions as so corrupt that it is regrettably necessary to shut down the market entirely. But the worthy doctors thereby commit the deadly sin of regulatory overkill that could knock out 100 beneficial transactions in order to block one undesirable one, which can be hit by individualized sanctions.

The unintended consequence of this reflexive opposition to any commercial intrusion into the transplant process has been an expanding transplant waiting list and institutional acceptance of critical organ shortages. As Epstein notes, when the price of any object is arbitrarily set to zero, the inevitable result is a shortage of that object. This is as true of oranges as it is to organs. And the cold, hard truth of reality reveals that public approbation and the potential to bask in the deserved glow of selfless altruism is insufficient to attract the number of donors - both living and cadaveric - that we need.

The sympathies of moralists offer only a feeble response to unnecessary suffering, premature death and an annual $20 billion budget for dialysis that lets sick people abuse their bodies in the often futile quest for a serviceable kidney.

Praising altruist donations as "heroic and honored" hasn't dented this shortage. But more tangible forms of consideration could.

And the pious bioethicists have opposed and obstructed any efforts at introducing freedom to the transplant process at every turn. Thankfully, there is some gleam on the horizon as Pennsylvania Senator Arlen Specter intends to introduce a bill that would remove penalties for providing non-cash incentives to promote organ donation. It's not enough, but it's the first positive legislative step in nearly 25 years.

For all those who support the concept of simply legislating the taking of organs upon an individual’s death, a few thoughts:

1) even if every organ were seized from all patients who died under circumstances that allowed their organs to be harvested, we would still have a critical shortage. The US already has the highest voluntary donation rate in the world, with some states approaching 80% participation. There simply aren’t that many incremental organs to collect. The bottom line is that there is no solution for the 83,000 people lingering on the kidney transplant list other than securing organs from living donors.

2) why are you so eager to empower the government to seize personal property (and I can’t think of anything more personal than an organ) without any remuneration? Simply because you want it? Because it has tremendous life-saving value? Because it is coveted by tens of thousands of people? The reality is that you recognize the immense value of these organs and simply do not want to compensate the donor. Instead, you wish to seize them using the force of government and deprive the donor's estate of their organ's actual value. If you want 100% participation, you know how to get it: compensate the donors.

3) an examination of the transplant process reveals that every participant in the process is compensated with one exception: the organ donor. It’s hard to comprehend how the purity of the transplant process would somehow be irreparably sullied if, in addition to the transplant coordinators, social workers, nurses and doctors, the donor received some type of compensation, even if in non-cash form.

We know how to solve the problem, now we just need the will. Provide incentives now to living organ donors and immediately save over 80,000 lives. It’s the ethical choice.

Although Tierney did not add anything significant to the WSJ's take on the subject, it's always interesting to compare the comments from the readers of the two newspapers. The WSJ's readers are almost unanimously in support of the concept of incentives. Based on historical observation, I anticipate that the NYT's comments will bemoan the exploitation potential of any inventive program.

I'll monitor and keep you posted.

The Journal correctly identifies the tragic, yet inevtiable, unintended consequences of Al Gore's 1984 National Organ Transplant Act (NOTA), which specifies federal punishments for anyone providing "valuable consideration" to any organ donor. Nor surprisingly, threats of federal prison and $50,000 fines dampen the enthusiasm of those wanting to encourage living organ donation.

As the Journal notes:

After Pennsylvania passed a pilot program in 1994 to pay burial expenses for organ donors, state employees refused to implement the law for fear of federal prosecution. The impact of the federal statute is as appalling as it is ironic. Kidney transplant recipient Sally Satel has noted that burial and cremation expenses can be provided when a body is donated to science -- as long as it isn't used to save the life of a current patient.

Senator Arlen Specter is proposing legislation that would allow states to introduce non-cash incentives, e.g. tax credits, to encourage living organ donation. It's a small step, long overdue and deserves our support.

To be fair to some of the commentators, Steigerwald's column didn't clearly elucidate the fundamental premise of Dr. Sally Satel's book, which supports the introduction of non-cash incentives for living organ donors. His column calls for the buying and selling of transplant organs and never mentions the wide assortment of non-cash incentives that Satel and her contributors propose. These include retirement accounts, healthcare, tax credits and scholarships, among others, that provide significant long-term value but do not include any direct cash payments. (update: Since Satel's book has not been released yet, Steigerwald gathered his information about the book from the publisher's website which does not clearly identify the book's main contentions in support of non-cash incentives.)

This delineation is critical since the majority of the opponents to incentivized donation base their strident obstructionism on the potential for exploitation of the poor by the irresistible temptation of quick cash. By removing cash payments from consideration, their arguments weaken considerably. After all, if the incentive for donating an organ and saving a life is a $40,000 contribution to an IRA that cannot be accessed for 30 years, the ability to exploit the donor virtually disappears, replaced by thoughtful consideration and long-term thinking.

As an ardent fan of Friedrich Hayek, Milton Friedman, the Cato Institute and unfettered free-markets, I can construct persuasive arguments in support of a free market in organ procurement and distribution, but I understand that political realities and communal distrust will demand some sort of government control and oversight. Accepting this inevitably, my focus shifts to designing a safe, ethical, affordable and practical government-regulated system for rewarding individuals who donate their organs.

Satel's book, When Altruism Isn't Enough, arrives on January 5 and should receive careful consideration for the thoughtful, ethically neutral and efficacious proposals she suggests that could immediately alleviate the interminable suffering and extravagant cost of keeping over 70,000 patients lingering on dialysis while they wait for a life-saving transplant. It's hard to think of anything less ethical than to let thousands of people die each year rather than testing and implementing incentives that are guaranteed to secure the necessary life-saving organs.

Britons are facing the same critical shortage of life-saving organs that we face in the USA - more than 1000 people died last year while waiting for a transplant, and their transplant waiting list has grown by over 50% in the last decade.

What is to be done? Strongly backed by the British Medical Association, Gordon Brown, the prime minister, has been looking at increasing the supply of organs by shifting to the system of “presumed consent” that most other European countries use. Under this approach, a person is assumed to be a potential donor unless he registers his objection.

Typical. In reflexive response to the critical organ shortage, both here and in the UK, the tenured government apparatchiks immediately consider ways to expropriate the most personal property imaginable for the greater good rather than consider ways to introduce market forces to solve the crisis.

Government confiscation of patients' organs will only increase institutional distrust, skepticism and conspiratorial assumptions. As this year's exposure of UCLA's transplant accomodations for wealthy criminal members of Japan's yakuza demonstrates, government monopoly of critically scarce resources doesn't preclude the perception of favoritism and cronyism - in fact, by centralizing control in the hands of a monolitic entity, the likelihood of corruption increases exponentially.

The solution? As Sally Satel wrote in Slate:

It is time for the federal government to acknowledge that altruistic giving has not produced enough organs. Repealing the ban on donor compensation would permit the federal or state governments to devise a safe, regulated system in which would-be donors are rewarded for giving an organ to the next stranger on the list. If only the organ shortage itself provoked as much outrage as the UCLA mobster transplants.

While correctly claiming that inaction is exacting a human toll of over 7000 lives per year, Steigenwald writes:

Justifications for prohibiting the trade in major human body parts -- including that the world's poor will be forced into selling their children's organs to Westerners or people will be kidnapped and have their organs harvested -- are largely irrational, exaggerated or bogus, as an Oct. 11 article in The Economist magazine pointed out.

Meanwhile, the "moral" arguments of the ivory-towered medical ethicists, who think treating human body parts like a commercial commodity is an indignity that trumps saving lives, are indefensible. So is the position of the National Kidney Foundation, which recently lobbied against a bill that would have permitted the mere testing of financial incentives.

Steigenwald then delivers an enthusiastic plug for Dr. Sally Satel's new book When Altruism Isn't Enough, (publicly available Jan. 5th) which details how to design a safe, ethical, affordable and practical government-regulated system for rewarding individuals for donating their organs.

British doctors performed this amazing surgery this past June, replacing a woman's windpipe with with one created from stem cells grown in a laboratory at Bristol University.

Scientists hailed the procedure as a breakthrough and predicted surgeons could be regularly replacing hearts with laboratory-grown organs within 20 years.

The technique would "revolutionise" surgery, they claimed, and has the potential to save thousands of lives.

The team behind the operation hope to replicate the procedure to grow voiceboxes within five years and say that from there the door would be open to use the technology to create any organ including a bladder, kidney or even a heart.

The promise of replacement organs grown to order is profound, but there are still over 100,000 patients on the US transplant waiting list who can't wait 10 or 20 years for these emerging technologies to fulfill their potential. We need living organ donors today.

Let the National Kidney Foundation know that they need to test incentives now to attract life-saving living organ donors. Fill out the NKF survey at http://kidney.org/survey/