I.INTRODUCTION
Throughout the world, organ transplantation has emerged as an
important medical advancement in solving the problem of end-stage organ
failure. Over the years, the success rates of these transplants have
significantly improved, providing the critically ill with a chance for a
new life.(1) For example, medical science has developed
immunosuppressant drugs which greatly increase compatibility between
donated organs and their recipients.(2) Other advancements include
preservation techniques that extend organ life outside of the
donor's body, more effective recipient registries, and increases in
capable transplant teams.(3) Some new technologies are raising ethical
and legal concerns among commentators. For example, British transplant
surgeon Dr. Hany Riad pioneered elective ventilation, a process by which
dying patients are sustained by respirators for brief periods to keep
their internal organs alive.(4) Although the practice was made unlawful,
causing scarcity in available organs, both the British Medical
Association and the British Transplantation Society believe the practice
is ethical so long as the donor's relatives give consent.(5)
Despite the advancements, the demand for organs significantly
exceeds the available supply in countries around the world.(6) This
organ shortage is the most devastating obstacle that organ transplant
patients face. As technology continues to expand, the number of patients
diagnosed as potential organ transplant recipients increases.(7) The
disparity between supply and demand often leads to unethical and illegal
methods of procuring needed organs. In many instances, the impoverished
members of society supply organs for the privileged classes who can
afford them.(8) Poor people are often coerced to sell their kidneys
through unethical and unsafe procedures for a meager fee.(9) The organ
deficit forces medical providers to decide which patients will receive
life sustaining organs and which will not.(10) Desperate patients
purchase organs on the black market when they feel they can no longer
afford to wait for an organ to be supplied through legal channels.(11)
In recognition of the human rights abuses that are occurring to
satisfy the demand of anxious organ recipients, many countries are
passing laws to protect the exploited.(12) Recently, several European
countries met in Spain to sign a treaty to protect living donors.(13)
The council agreed that donor consent was necessary for any organ
procurement law and that financial gain in the organ market was highly
unethical.(14) The World Health Organization has also condemned the
trade of human organs, asking member nations to fight organ
trafficking.(15) Reports of underground organ brokers preying on
children has spurred the United Nations to investigate allegations of an
international kidnapping ring in Latin America.(16)
Fortunately, a sufficient quantity of potentially transplantable
organs does exist to satisfy the demand for nearly every type of
transplant.(17) The challenge is implementing an organ procurement
policy that will maximize the supply while at the same time safeguarding
human rights. Part II of this comment explores a controversial Brazilian
law that was designed to increase the supply of transplantable human
organs. This law was later repealed.(18) The advantages and
disadvantages of the law will be presented as will the reaction from
lawmakers, scholars, the medical community, and the public. Part III
describes several different approaches to organ procurement in use
throughout the world. Part IV outlines the strengths and weaknesses of
various organ procurement policies. Part V examines the market system of
organ procurement in more detail and describes various proposals that
have been advanced in favor of adopting such a system. Part VI concludes
that a market system may well be a viable solution to the desperate
shortage of organs.
II. BRAZIL'S SOLUTION
The demand for organs overwhelmingly exceeds supply in the
Brazilian organ market.(19) In 1996, a mere 2.7% of Brazilians in need
of transplanted organs received them.(20) The low level of organ
procurement in Brazil can be traced to both cultural and geographical
factors.(21) The human corpse is treated with particular reverence in
Brazil and cremations are very rare.(22) Many Brazilians are reluctant
to consent to organ donation and many families are concerned with
"desecrating" the remains of a loved one by allowing the
harvest of organs.(23) Furthermore, the long distances between remote
rural towns and the rugged terrain in between impede the successful
transportation of organs.(24) Only 10% of the organs arriving at
hospitals are in suitable condition for transplant.(25) Rural hospitals
lack the modern health care facilities and equipment necessary to
perform these complex operations.(26) Most transplants in Brazil are
performed in Sao Paulo, where they average twenty-four per month(27) in
contrast to the U.S. average of fifty-five per day.(28)
In response to this problematic organ deficit, Brazil decided to
take legislative action to increase the supply of human organs for
transplants. On January 1, 1998, Brazil enacted a law declaring all
adults potential organ donors unless they filed for an exemption.(29)
The law allowed organ removal from the deceased without any notification
or family consent.(30) Upon death, if a person had not registered his or
her intent not to be an organ donor with a special government agency, it
was presumed that he or she had consented to donate his or her
organs.(31) The family of the deceased from whom organs were removed had
no remedy under the law unless they could show that the deceased had
filed for non-donor status.(32) Furthermore, family members interfering
with organ removal could have been sued.(33) According to Federal
Attorney Geraldo Brindeiro, the law allowed doctors to remove organs
against the wishes of the family but did not legally obligate them to do
so.(34) Therefore, a doctor could have refused to remove organs if the
family objected.(35) In contrast, the legal coordinator for the health
ministry warned that doctors who refused to extract organs, regardless
of the family's wishes, could be prosecuted for failing to assist a
person in need.(36)
Despite the desperate need for human organs, scholars, the medical
community, and the lay public expressed opposition to the Brazilian law.
Critics feared the law would unfairly target the rural and uneducated
who might not have realized that the new law made them potential organ
donors.(37) Others were concerned that the law might have led to the
removal of organs from a non-donor even before his or her actual death
due to conspiracy or mishandling of documents.(38) A recent poll in Sao
Paulo revealed that the law might actually have been counterproductive.
While 75% of residents indicated a willingness to be an organ donor in
1995, this number fell to 63% in 1997 while the presumed consent law was
being debated.(39) The poll also found a significant drop in the
willingness of residents to consent to donating the organs of deceased
relatives.(40)
The Brazilian Federal Medical Council, an independent association
that monitors medical practices in the country, claimed that
Brazil's infrastructure was incapable of administering such a
complex plan.(41) Some critics maintained that the problem was not a
lack of voluntary donors, but rather a lack of structure capable of
distributing organs safely and rapidly to hospitals across the
country.(42) Waldir Mesquita, president of the Federal Council of
Medicine, believed the law violated "independence and freedom of
belief," noting that millions of illiterate people could not afford
to miss a day of work in order to pursue a non-organ donor identity
card.(43) Even groups of patients awaiting transplants openly opposed
mandatory donations.(44)
The first patient to benefit from the presumed consent law was Jose
Morais Reis, a fifty-five year-old heart transplant recipient.(45) Reis
received the heart of an unidentified donor who was declared brain-dead
minutes before the operation took place.(46) According to Dr. Herbert
Alves, Reis had been waiting four months for a donor heart and the
transplant was a success.(47) Despite this success story, hospitals
worried that presumed consent would prompt a permanent backlash against
organ donation by the people of Brazil who treat the human corpse with
special reverence.(48) The Federal Council of Medicine found fault with
the requirement that two doctors, one being a neurologist, were required
to determine whether a patient was legally dead.(49) Council officials
claimed this approach was unsophisticated, adding that it would be
virtually impossible to find a neurologist to make that
determination.(50) However, some aspects of Brazil's law were
embraced by medical professionals. One important feature of the law was
the creation of a single waiting list for organ recipients.(51) Before
the law was passed, patients were placed on waiting lists at individual
hospitals, and as organs became available, they were distributed to both
private and public hospitals, via rotation.(52) However, the lists at
private hospitals where patients had more money, were considerably
shorter than lists at public hospitals, which served the
underprivileged.(53) Doctors "admit to cases when patients have
died in over-stretched emergency facilities at public hospitals, only
for the body to be whisked away for a transplant operation to a well
staffed private hospital, full of the modern machinery which might just
have saved the patient's life."(54)
Many Brazilians, fearing corruption and human rights violations
such as the extraction of organs while the donor was still alive, rushed
to register their non-donor status with the government. In Porto Alegre,
83% of the residents registered their refusal before the law officially
took effect.(55) Although it might appear that the people of Brazil
overreacted to the presumed consent legislation, recent history suggests
that their fears were not unfounded. Some residents, complaining of the
disparity in health care between the rich and the poor, maintained their
distrust in the government's ability to successfully run the
program in a fair and just manner.(56) In 1997, a well publicized
account from rural Brazil informed citizens about a worker who awoke
from a drunken stupor in the middle of a desolate field without his
eyes.(57) According to newspaper reports, his eyes had been removed
surgically, yet the man was unable to remember anything about the
experience.(58) In July of 1997, Lucimaria Feitosa Santos went to the
hospital due to chronic fatigue and high blood pressure.(59) During the
examination, doctors discovered that her right kidney was missing.(60)
Apparently, a Sao Paulo hospital had removed the kidney nine years
earlier when Santos underwent investigative surgery for stomach
pains.(61) The Santos family is now suing the hospital for removing her
kidney without consent.(62)
The law was also attacked on the constitutional front with many
critics claiming that it violated personal autonomy.(63) When the law
was first passed, the Federal Medical Council challenged the
constitutionality of the law arguing that many people would not have the
opportunity to oppose donation before their deaths.(64) Federal Attorney
Geraldo Brindeiro claimed that the law was constitutional but admitted
that relatives of the deceased should have had a right to prevent the
removal of organs for transplant.(65) The Federal Medical Council
appealed that decision to the Supreme Federal Tribunal in January
1998.(66) According to its Federal Constitution, Brazil is a legal
democratic state founded on the dignity of the human person.(67) Article
3 of the document states that a fundamental objective of the Republic is
to build a free, just, and solidary society and to reduce social and
regional inequalities.(68) The right to health is a social right
guaranteed by the constitution.(69) Perhaps the legislature was
promoting this social right to health by ensuring that organs would be
readily available to those in need. Although the government had the best
intentions, public opinion and Brazil's medical organizations
forced the government to abolish the presumed consent system.(70) To
bring the law in line with medical practice, Brazil now requires
physicians to seek family authorization before harvesting organs.(71)
Brazil is not the only country to adopt presumed consent laws.
Until recently, most European countries were operating under presumed
consent laws.(72) Although in theory the law is very strict, enforcement
of the law has been flexible. Most doctors choose to follow the wishes
of family members even when the law would allow them to harvest organs
without the consent of living relatives.(73) European countries are
beginning to turn to voluntary systems. For example, a treaty signed in
Oveida, Spain in 1997 provides that the express and specific consent of
a donor must be given before an organ is removed.(74) The treaty
prohibits the removal of organs from those unable to give consent.(75)
Presumed consent laws do not necessarily result in larger organ
supplies. Although countries such as Austria, Belgium, France, and Spain
have produced more organs than many countries that have voluntary
donation systems, other countries such as Switzerland, Greece, and Italy
actually have lower transplant rates than countries where organ donation
is voluntary.(76) Hong Kong legislators have consistently rejected
presumed consent legislation and maintained a policy of requiring
express consent since 1990.(77) Although Hong Kong physicians originally
agreed with the legislature,(78) the Hong Kong Medical Association
recently supported the adoption of a presumed consent system to address
the urgent need for transplantable organs.(79) With European countries
abandoning the practice of presumed consent in favor of voluntary
donation programs, it became more controversial for Brazil to maintain
its presumed consent law. On the other hand, Singapore has administered
a presumed consent system since 1987,(80) and it has been successful in
increasing the number of transplantable organs.(81)
Advocates of presumed consent statutes claim they provide the most
efficient method of maximizing organ procurement.(82) In Austria, for
example, the rate of cadaveric kidney procurement is double that of the
United States and most European countries.(83) Despite this success, the
demand for organs significantly exceeds the supply even in countries
with presumed consent laws.(84) The problem in Brazil and other
countries stems from incompetent administration and a lack of
infrastructure rather than a defect in the law itself.(85) Still,
presumed consent countries are more successful at augmenting organ
supplies than countries relying on altruism.(86) According to one study,
the success of presumed consent laws in other countries led 78% of
transplant surgeons polled in the United States to favor the adoption of
a presumed consent system.(87)
Critics argue that despite success rates, presumed consent laws are
constitutionally questionable because they violate personal
autonomy.(88) Specifically, opponents argue that presumed consent laws
violate the principle that a person has a legal right to make decisions
concerning an invasion of his body.(89) Critics also cite the potential
disparity between the rich and the poor. Many fear that the
underprivileged will be less likely to exercise autonomy, especially
since most are illiterate and legally disenfranchised.(90) Others are
concerned that altruism and charity will lessen in the face of such
laws.(91) Critics also worry that organs will be harvested from people
who have registered as non-donors due to administrative
deficiencies.(92) Others worry that anxious physicians will extract
organs before a donor is truly brain-dead.(93)
Many arguments have been advanced to counter these criticisms.
Those in favor of presumed consent argue that because organ donation is
generally supported and potential donors are given the opportunity to
opt-out, individual liberty is not significantly hampered.(94)
Proponents further argue that the slight inconvenience of registering
actually promotes individual freedom by expressly ensuring that a
donor's desires are carried out, rather than leaving the decision
to the family.(95) Supporters of presumed consent also contend that a
person can experience altruism by simply deciding not to opt-out of the
donation system.(96)
Another advantage of a presumed consent system is that it is easier
to manage than voluntary consent.(97) For example, if there is no
registered objection to organ donation, a transplant surgeon can remove
organs without contacting the next of kin for consent.(98) By reducing
the lapse of time between death and organ extraction, there is a better
chance that the transplant will be successful because the organ will be
fresher.(99) However, logic would suggest that a database indicating
consent to organ removal would be as equally timesaving as a database
indicating non-consent. Proponents of presumed consent point out that a
properly functioning presumed consent system provides important
spillover benefits.(100) Not only will the transplant rate increase, but
the success rate will increase also.(101) As the pool of available
organs increases, a physician will be better able to implant an organ
with tissue matching that of the donee.(102) An increased supply also
eliminates the temptation to obtain organs through unethical means such
as the black market. This in turn will diminish underground kidnapping
rings that currently affect countries across Latin America.(103) A
presumed consent system would also positively affect taxpayers by
reducing the amount of government spending on dialysis treatment for
patients awaiting kidney transplants.(104)
III. ALTERNATIVE SOLUTIONS
Many lessons can be learned from the implementation of presumed
consent in Brazil and other countries. Although persuasive arguments
have been made for and against the policy, other alternatives must also
be examined in the quest for a stable and efficient organ procurement
system. The sections below briefly analyze the pros and cons of the
following organ procurement policies: conscription, importation,
voluntary donation, required request, and a market system.
A. Conscription
One variation on presumed consent is an organ draft that does not
permit opting out at all.(105) Conscription is accomplished by the
nationalization of cadavers.(106) This alternative is seldom initiated
and results in serious violations of human rights.(107)
Chinese law has permitted organ harvesting from executed prisoners
since 1984.(108) In China, harvest is allowed when the prisoner's
body is not claimed, the prisoner consents, or if the prisoner's
family has consented.(109) Despite the law, many prisoner executions are
conveniently scheduled to meet transplant needs and, in some cases, are
purposefully blundered in an effort to keep the prisoner alive until
their organs are removed.(110) According to Chinese policy, the harvest
of organs from executed criminals must be discreet.(111) Although a
surgical vehicle from the health department is allowed to enter the
execution grounds to remove the organs, it must not bear the official
insignia of the health department.(112) Furthermore, workers from the
health department are not allowed to wear white clothing.(113) The
transplant takes place at the execution facility with guards watching
until the procedure is finished.(114)
A study issued by the Bush administration found an even more
shocking example of how far such a policy could be taken.(115) The study
reported that a Serbian doctor serving in an internment camp allegedly
killed prisoners of war to obtain their organs for transplantation.(116)
B. No Organ Procurement Policy
Some countries such as Japan and Iran have not instituted an organ
harvesting policy due to cultural and religious taboos.(117) In Japan, a
strong Buddhist belief that a corpse should be buried intact prohibits
the removal of organs.(118) In addition, physician mistrust and a
refusal to legislatively define death as brain death rather than
cardiopulmonary death, have resulted in an extreme shortage of organ
donations in Japan.(119) However, despite the lack of organ donors,
Japan has satisfied most of its transplant needs by importing organs
from other countries.(120)
C. Voluntary Donation
Under a voluntary, non-pecuniary system of organ donation, a donor
gives prior consent for doctors to remove needed organs.(121) In most
circumstances, the volunteer donor is dead, although live donations also
occur.(122) Some supporters of the voluntary donor allocation system
argue that the commercialization of organ donation contradicts the
values of society. The precise motivations behind these laws, however,
vary from one jurisdiction to another; altruism,(123) coercion,(124) and
moral duty(125) have all been argued as incentives.
In 1984, the United States established the policy of voluntary
donations by passing the National Organ Transplant Act which made the
sale of human organs a federal crime.(126) The United States cited the
encouragement of altruism as the overriding principle pushing Congress
to promulgate the act.(127) Many lawmakers felt that commercial sales
would cause the voluntary organ donor system to collapse, causing a net
decrease in organs.(128)
Although the altruistic characteristic of voluntary donation laws
is appealing, such laws have failed to reduce the organ deficit and are
much less efficient than presumed consent in providing needed
organs.(129) Despite this failure, proponents of a voluntary system
maintain that it is unethical to force people to donate organs upon
their death despite the desperate need.(130) Supporters of a voluntary
system point out that education campaigns(131) and non- pecuniary
incentives,(132) rather than compulsion, should be implemented to
increase the organ supply.
D. Required Request
Responding to criticism that the voluntary system is ineffective,
some jurisdictions have adopted required request laws to increase
voluntary donation. These laws mandate that medical providers ask the
donor's next of kin if organs may be harvested for use in
transplants.(133) Required request laws avoid the unfortunate and ironic
loss of organs from potential donors whose families are willing to
consent to organ donation but are simply not asked. In the United
States, hospitals and doctors are obligated to inform patients or
patients' families about the possibility of organ donation.(134)
This system has resulted in an increased organ supply in the United
States, yet a significant organ deficit still exists.(135)
E. Market System
The most controversial policy of organ procurement is legal organ
sales on the open market.(136) The sale of human organs includes live
organ brokerage,(137) an organ futures market,(138) tax deductions,(139)
and health insurance reductions.(140) The legal theory behind a market
procurement system is that an individual has a property right in his or
her body,(141) and therefore, the ban on organ sales is an infringement
by the government on a fundamental right.(142) Supporters of the market
system claim that the financial compensation provides necessary
incentives to augment the supply of available, transplantable
organs.(143) A commercial market provides the motivation for donors who
simply do not want to contemplate their own death.(144) Although some
countries currently permit the marketing of organs, a well regulated
commercial market does not exist.(145) Indeed, "those countries
where organ sales are legal are among the worst violators of human
rights and exploitation of the poor."(146)
Those who oppose the market system argue that it is unethical and
immoral to profit from the sale of human organs.(147) They claim that
the existence of a market in human body parts cheapens life.(148) The
practice of selling organs has been compared by some opponents to
selling one's self into slavery.(149) Others argue that human
organs simply fall into a category of something that cannot be
sold.(150)
IV. WHICH SYSTEM IS BEST?
The remaining issue is which organ procurement system will result
in the largest pool of organs to meet demand without violating human
rights.
A. Presumed Consent Short Lived in Brazil
In October 1998, the Brazilian government abolished its presumed
consent law.(151) With opposition from the Brazilian Medical Association
and the Federal Council of Medicine, as well as the general public, the
law was destined to fail.(152) Furthermore, the law was ineffective
because most doctors were unwilling to harvest organs against the wishes
of family members, even though the law required them to do so.(153) The
reaction of panicked citizens who rushed to public offices to register
themselves as non-donors also weakened the effectiveness of the
law.(154) Not only did the law fail due to opposition, it was also
impractical. The lack of infrastructure needed to maintain the intended
register of recipients, as well as the inability to transport organs
efficiently, further led to the law's demise.(155)
Presumed consent, which has been replaced by voluntary systems in
most European countries, is a quickly dissipating method of organ
procurement.(156) Compulsory donation is indeed an oxymoron. Although
the organ supply might be augmented by such a system, particularly when
education programs or conscription are instituted, the system is
undesirable due to its infringement on personal autonomy and
liberty.(157)
B. The Problematic System of Conscription
Similar to presumed consent, all cadavers are presumed to be donors
under conscription.(158) The only difference between the two is that a
conscription system does not permit withdrawal from a donor
register.(159) If the only goal of organ procurement was to increase the
supply of donors' organs at any cost, then this system would be
laudable. However, conscription laws conflict with concepts of human
rights and personal liberty.(160)
Conscription is highly objectionable, as it presents potential
ethical and political problems in nearly every country as well as grave
legal problems in most Western countries.(161) Conscription transfers
ownership and autonomy of one's own body from the individual to the
state. The experience in China and Serbia(162) demonstrate that
nationalization is an unacceptable organ procurement plan despite its
effect of reducing the organ deficit.(163)
C. No Organ Procurement is not an Option
Because Japan made no active effort to procure organs, yet consumed
them on the world market, resentment and anger grew towards the
country.(164) This has caused Japan to change its attitude toward organ
procurement. On October 16, 1997, Japan enacted legislation allowing
transplant operations using organs from brain-dead donors.(165) Within
two months of implementing the new law, the number of hospitals capable
of transplanting organs doubled from thirty-four to seventy of
Japan's ninety-six hospitals.(166) On November 13, 1997, less than
one month after the law was passed, the first transplant based on donor
cards was performed.(167) The positive results occurring in Japan in
such a short period indicate the importance of implementing an organ
procurement policy. Although it is debatable which of the existing or
proposed policies is most efficient, it is clear that any policy is
better than no policy at all.
D. The Reluctance to Donate
Proponents of a voluntary system cite altruism, personal liberty,
ethics, and morality as reasons to support the practice of voluntary
donation.(168) Although such a system may avoid the violation of
personal liberty, it does not end the suffering and needless deaths of
patients awaiting transplants.(169)
Under U.S. criminal law, there is no duty to aid a person in
need.(170) A person who sees a small child drowning in a swimming pool
has no legal duty to rescue the child even if the person is an expert
swimmer. Although a criminal can be punished for his or her actions, the
failure to act is generally not a crime.(171) Thus, it would follow that
the law cannot force a citizen to donate organs even though it might
save the life of a terminally ill patient. The patient in need of a
transplant is similar to the drowning child. He must rely on the
goodness and altruism of others to come to his aid. Most people, upon
seeing a small child drowning in a swimming pool, would exercise their
moral duty to save the child even though no legal duty exists.
Unfortunately, the fact that voluntary organ donation is ineffective in
meeting the demand for organs suggests that most people do not feel a
similar moral duty to become an organ donor.
There are several reasons that people do not donate organs: denial
of mortality, fear that medical providers will not use every effort to
save the donor patient's life in order to harvest the
patient's organs, religious or cultural beliefs, and revulsion at
the thought of having one's organs removed.(172) Family members who
may be emotionally and psychologically traumatized by the sudden death
of a loved one are sometimes unable to consent to organ removal.(173)
The family may feel that authorizing an organ harvest is symbolic of
giving up hope of recovery if the patient is still alive. Denial that a
brain-dead patient with a still functioning heart has passed away might
also cause family members to withhold consent.(174)
In addition to the reluctance to donate, the voluntary system often
fails even when a donor candidate intended to donate his organs.
Although donors must carry donor cards to show intent, only 3% of organ
donors are actually in possession of their donor cards when they
die.(175) Even if a donor is carrying a donor card, physicians generally
will not harvest organs if the family of the deceased withholds
authorization.(176) In Australia, which has laws similar to those of the
United States, many patients are dying despite the availability of
donors simply because the next of kin decides to withhold consent.(177)
Additionally, many doctors fail to ask the family of a dying person if
the patient's organs can be used for transplants.(178) Even though
thousands of people do carry donor cards, the final decision is made by
the next of kin, and many organs are lost because doctors do not want to
breach the subject at such an emotionally devastating time.(179)
V. PROPOSED SOLUTION
An increase in legal organ procurement is desperately needed to
meet the needs of the terminally ill. However, this must be done without
exploiting the poor. Many human rights violations could be prevented if
human organs were made available legally and inexpensively.(180) Many
medical experts believe that current law is to blame for both the
inadequate supply of legally donated organs and the existence of the
underground market with its many human rights violations.(181) Although
the experts can logically assert that the law needs to change, some of
their proposals are less than desirable. In Australia, for example,
successful drunk driving and speeding laws have reduced highway
fatalities which in turn has reduced the supply of viable organs.(182)
This led some experts to oppose the introduction of mandatory seat belt
laws due to the detrimental effect it would have on the transplant
front.(183) In addition to being inefficient, this justification for
opposing traffic laws seems to value the lives of motorists less than
those of transplant patients. Reducing vehicular fatalities and
increasing donor organs are both laudable objectives; however, one goal
should not be furthered at the expense of the other. Laws are needed
that encourage organ donation through legitimate and ethical channels
while reducing the atrocities that are currently being committed by
organ traders on the black market.
It is probably impossible to implement an organ procurement policy
that is perfect. Even a system that completely satisfies current demand
is likely to have some negative impacts on society. For example, a
strictly enforced conscription policy would probably meet the demand for
transplantable organs but such a policy would violate individual
liberty.
A market system for organ procurement may be the right solution to
overcome the organ deficit for end stage organ failure patients. Many
critics, considering it to be a taboo alternative, refuse to consider
the possibility of a market system, even if it is safeguarded against
exploitation of the poor. Although there are legitimate concerns
regarding a market in organs, the feasibility of a market system should
not be ignored or dismissed without consideration of its virtues.
Instead, a market system should be carefully studied with an emphasis on
creating a system that will resolve or substantially decrease the
problems and concerns cited by critics.
The greatest advantage of a market system is its ability to
increase the availability of organs for transplants.(184) Recognizing
that a futures market would likely increase the organ supply, the
American Medical Association called for the implementation of a pilot
futures market program that would use economic incentives to encourage
organ donation.(185) A market system with just enough incentive to
override the prevailing concerns that deter people from becoming donors
may very well eradicate the organ deficit.(186) Furthermore, the payment
will provide consideration that converts a donor card into a binding
legal contract.(187) The compensation given in exchange for organs may
include an allowance for a decedent's burial costs,(188) a health
insurance reduction,(189) or direct payments to a donor either upon
signing a contract or upon extraction of the organ.(190)
A market system may also have advantageous side effects, such as
reducing human rights violations by eliminating, or at least limiting,
trade on the black market.(191) Despite fears that a market system will
exploit the poor and increase violations of human rights, the system may
actually function to eliminate those problems.
Critics argue that the destitute will be exploited and may feel
compelled to sell their organs for profit wh