Kidney Theft and A Modest Proposal

The front page of Wednesday’s New York Times reports that police uncovered an illegal kidney-transplant program in India. The program targeted day laborers and other poor people, who were either deceived and then forced to undergo kidney removal or persuaded to sell their kidneys, so that wealthy Indians and foreigners – known sometimes as “organ tourists” – could receive kidneys unavailable to them through ordinary channels. One of the victims of the kidney ring became so ill after his surgery that he could not work anymore to support his destitute family. The story is disturbing and sheds light on the power of wealth to motivate predatory conduct toward the less fortunate.

In this post, however, I want to focus on the other people whose lives are implicated in the kidney story: the wealthy organ recipients. In a story of rich people raiding poor people for their organs, of course, the rich do not tug on our heart strings. It is often largely through the accident of birth that one is able to acquire wealth, and in any event, wealth does not entitle people to pressure or coerce the poor to supply them with organs.

If poverty and wealth are often unearned, however, it is no less true that good and ill health are often unearned. It is not self-evident that people who happen to be born with a kidney defect and/or become ill in adulthood have no right to ask the surrounding society for help. It is out of desperation, indeed the same sort of desperation that might motivate a poor but healthy man to sell one of his kidneys, that wealthy but sick people attempt to use their money to save their own lives. Though hardly praiseworthy, one can easily understand why they do what they do.

One could, in fact, invoke such desperation as evidence that organ sale ought to be permitted but regulated. The law of supply and demand is stronger than the criminal law, and it therefore makes sense for the law to minimize abuse within an inevitable business rather than drive it underground. Such was said (correctly) of alcohol prohibition, and Judge Posner has made this sort of argument in a variety of contexts (including, quite controversially, in condoning a market in babies).

Rather than criticize or defend such arguments, however, I would point out a simple but sad reality in the United States and many other countries: relatively few people consent to donating their organs upon their death. If there is a proper time to require redistribution from the “haves” to the “have nots,” it would seem to be when the “haves” are no longer alive. Rather than honoring the desire to bury or burn people’s earthly remains, the law could instead require that organs be available to others in need. After all, we already violate the wishes of the deceased in requiring autopsies, and there is often much more to be gained from a donated organ than from confirmation that a victim died of gunshot wounds to the head.

This proposal of the ultimate “death tax” probably sounds shocking to many, so let me suggest that a less radical idea could go a long way. At the present time, in the U.S. and elsewhere, the law presumes that we do not consent to donating our organs upon death. Let us change the law to make the default presumption that every person consents to donating his or her organs to save lives at death. To rebut the presumption, one must actively opt out. This has been the approach in Belgium, and they have not suffered the organ shortages plaguing our country and others. Perhaps if the desperate demand for organs could be met more effectively in western countries, their inhabitants would not be driven to act like starving men on a lifeboat who cannibalize those around them.

Posted by Sherry Colb