Kidney Vendors in Regulated Organ Markets

the better. If solutions like microcredit or affordable housing could be effectively implemented, probably many vulnerable people, well informed of the risks of selling organs, would prefer these alternatives over the sale of an organ. After all, offering more appealing and less risky options is another way of discouraging organ sales. But even the presence of extra—and perhaps more rational—options is not sufficient to dismiss liberal arguments in favor of markets in organs. &

Dworkin, G. 1994. Markets and the morals: The case for organ sales. In Dworkin, G., ed., Morality, harm, and the law. Oxford, UK: Westview Press. Koplin, J. 2014. Assessing the likely harms to kidney vendors in regulated organ markets. American Journal of Bioethics 14(10): 7–18. New York Times. 1989. Sales of kidneys prompt new laws and debate. Available at: http://www.nytimes.com/1989/08/01/ science/sales-of-kidneys-prompt-new-laws-and-debate.html (accessed July 3, 2014).

REFERENCES

Radcliffe-Richards, J. 2012. The ethics of transplants. Why careless thought costs lives. Oxford, UK: Oxford University Press.

Brecher, B. 1990. The kidney trade, or: The customer is always wrong. Journal of Medical Ethics 16:120–123.

Zutlevics, T. L. 2001. Markets and the needy: Organ sales or aid? Journal of Applied Philosophy 18(3): 297–302.

A Further Lesson From Existing Kidney Markets Erik Malmqvist, Link€ oping University The target article challenges the increasingly popular portrayal of living kidney sale as potentially a mutually beneficial arrangement, capable not only of saving or improving the lives of patients in need of transplants but also of significantly benefiting poor vendors. Carefully reviewing the literature on harms to vendors in illegal kidney markets and in Iran’s legal market, Koplin (2014) argues that many of these harms would persist in the sort of legal regulated system that kidney sale advocates envision. This is an important argument. The kidney sales debate has been skewed in favor of permitting sales by a simplified view of the potential harms involved and excessive optimism about the capacity of regulation to prevent these harms (Malmqvist 2013). The article counterbalances these tendencies and thus considerably weakens the case for allowing sales. Nonetheless, some market proponents might remain unconvinced. I suggest that in addition to the lessons that Koplin draws from existing kidney markets, there is yet another one, which casts further doubt on the advisability of allowing kidney sales. Suppose that Koplin’s assessment of the harmfulness of living kidney sale in a legal regulated system is roughly correct. This might not be enough to make friends of kidney markets change their views. They could continue defending a market approach in at least three ways. First, they might propose confining the market to the societies where the harms that Koplin identifies are least likely to occur. Vendors would be much less susceptible to harms associated with low socioeconomic status, poor follow-up

attendance, and lost employment in countries with robust welfare systems and universal health care than in countries where organ trade currently abounds (Omar et al. 2010). Second, as Koplin notes, kidney sale advocates might concede that vendors would risk serious harm even in a regulated market, but argue that these harms are outweighed by the potential benefits to kidney recipients. Third, as Koplin also notes, they might appeal to the autonomy of potential vendors. People should be allowed to decide for themselves whether the risks of selling a kidney—significant as they may be—are worth taking, the argument goes, rather than having that decision paternalistically made on their behalf. Each of these responses has some prima facie plausibility. However, another look at the literature on existing organ markets makes them lose much of their appeal. Not only does this literature provide reasons to believe that vendors would risk significant harm even in a carefully regulated system of sales, as Koplin points out. It also raises serious concerns about the vendors’ consent, some of which seem likely to remain in such a system. The quality of consent in existing organ markets is often questionable, to say the least. Vendors frequently report poor understanding of the consequences of the sale, as well as coercion and deception at the hands of brokers (Awaya et al. 2009; Goyal et al. 2002; Zaarghoshi 2001). These deficiencies could presumably be reduced in a carefully regulated system where middlemen are removed and vendors receive appropriate information and

Address correspondence to Erik Malmqvist, Link€ oping University, Department of Thematic Studies, SE-58183 Link€ oping, Sweden. E-mail: [email protected]

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counseling. Much depends on the effectiveness of regulation, of course. It is one thing to introduce protective measures and quite another to ensure that relevant parties comply with them—a crucial point that supporters of regulated organ markets tend to overlook. However, ensuring understanding may in principle be no more difficult than in unpaid donation schemes. And there would seem to be little room for brokering in the sort of single-buyer, fixedprice system without interaction between vendors and recipients that organ sale proponents typically envision (Omar et al. 2010). However, other deficiencies in consent are likely to prove more intractable. Some kidney vendors in India (Goyal et al. 2002), Pakistan (Naqvi et al. 2007), and Iran (Zargooshi 2001) report having been coerced or pressured to sell by family members, debt collectors, or employers. The potential for similar pressure on vendors in the sort of regulated system that kidney sale advocates propose must not be underestimated (Malmqvist 2013; 2014). Such a system would, after all, put a price on kidneys. A person’s kidney would be a potential economic asset not only for that person, but also for others. Anyone with an interest in or claim on that person’s money would then have an incentive to try to make the person cede it. It seems naive to deny that some may be prepared to resort to coercion or other forms of illegitimate influence to achieve that goal. It might be objected that there is no difference between commercial and altruistic systems in this regard, because unpaid living donors may also be coerced. It is true that unpaid donors are often under heavy emotional pressure from family members to donate. However, the potential for coercive pressure would considerably increase with the introduction of payment. Vendors are no less susceptible than donors to family pressure, but arguably more so: Financial need seems equally likely as the need for an organ to make relatives contemplate coercion, and it is undeniably much more common. And unlike donors, vendors are susceptible to pressure from anyone outside of their family interested in their money. In this connection it is important to note that, as in existing kidney markets (Awaya et al. 2009, Naqvi et al. 2007, Zargooshi 2001), vendors would primarily be recruited among the very poor. A financial incentive is likely to be the most attractive to the economically neediest. We should certainly not exaggerate the influence of poverty on decision making. A poor person who sells a kidney because she lacks other ways to improve her situation could be making a genuine, reasonable choice in harsh circumstances. A limited range of options does not entail incapacity to choose among the few options one has, as kidney sale proponents emphasize (Wilkinson 2003). But the significance of poverty should not be underestimated either. Poverty makes one especially vulnerable to the sort of coercive influence already described. One is likely both to face heavy expectations to provide money for other people (moneylenders, needy dependents, etc.) and to have little opportunity to obtain the needed funds. One is therefore susceptible to being pressured by others to raise

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money in ways one would not voluntarily pursue—for instance, by selling a kidney. Some might propose regulation to handle this problem. One approach might be to delay payment in order to discourage coercion. Potential coercers may not be prepared to wait for the desired money for months or years. However, those most inclined to sell—the very poor—are unlikely to want to wait either, so much fewer vendors would come forward. Another approach might be to screen out coerced vendors through careful assessments of decision-making capacity, motivation, and personal circumstances. However, apart from being costly, such assessments would likely be experienced as intrusive and thus discourage many other vendors as well. Again, much fewer organs would be obtained. Both forms of regulation would considerably limit the efficiency of the organ market—its main rationale—and decision makers may therefore be reluctant to introduce them. There is reason to believe, then, that concerns about vendors’ consent would remain even in a carefully regulated kidney market. These concerns complicate the three possible defenses of such markets noted at the beginning of this commentary. Coercive pressure on vendors cannot be ruled out even in countries with welfare systems and universal health care, in part because even these countries have poor populations vulnerable to such pressure, which is where vendors would primarily be recruited. And harms to vendors are much harder to justify by invoking their autonomy if some vendors incur these harms involuntarily. Nor are they easily justified by appealing to benefits to kidney recipients; we rightly hesitate to benefit some people by significantly harming others against their will. The considerations about consent that I have discussed here thus complement the harm-based ones insightfully discussed by Koplin. Taken together, they present a powerful challenge to the promarket view—though perhaps not a decisive one, as benefits to kidney recipients remain a potentially weighty countervailing consideration. More specifically, I believe they together support the sort of rationale for banning sales I have detailed elsewhere. Under this rationale, all who might consider selling a kidney are denied that opportunity in order to protect from significant harm those among them who would not sell voluntarily (Malmqvist 2014). &

REFERENCES Awaya, T., L. Siruno, S. J. Toledano, F. Aguilar, Y. Shimazono, and L. D. de Castro. 2009. Failure of informed consent in compensated non-related kidney donation in the Philippines. Asian Bioethics Review 1(2): 138–143. Goyal, M., R. L. Mehta, L. J. Schneiderman, and A. R. Sehgal. 2002. Economic and health consequences of selling a kidney in India. Journal of the American Medical Association 288(13): 1589–1593. Koplin, J. 2014. Assessing the likely harms to kidney vendors in regulated organ markets. American Journal of Bioethics 14(10): 7–18.

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Kidney Vendors in Regulated Organ Markets

Malmqvist, E. 2013. Kidney sales and the analogy with dangerous employment. Health Care Analysis (published online December 27). doi:10.1007/s10728-013-0270-3).

Omar, F., G. Tufveson, and S. Welin. 2010. Compensated living kidney donation: A plea for pragmatism. Health Care Analysis 18 (1): 85–101.

Malmqvist, E. 2014. Are bans on kidney sales unjustifiably paternalistic? Bioethics 28(3): 110–118.

Wilkinson, S. 2003. Bodies for sale: Ethics and exploitation in the human body trade. London, UK: Routledge.

Naqvi, S. A. A., B. Ali, F. Mahzar, M. N. Zafar, and S. A. H. Rizvi. 2007. A socioeconomic survey of kidney vendors in Pakistan. Transplant International 20(11): 934–939.

Zargooshi, J. 2001. Quality of life of Iranian kidney “donors.” Journal of Urology 166(5): 1790–1799.

Are Kidney Markets Morally Permissible If Vendors Do Not Benefit? Samuel J. Kerstein, University of Maryland, College Park Julian Koplin (2014) argues forcefully that, according to available data, it is doubtful whether poor people in developing countries would benefit from selling their kidneys in regulated markets. He points to studies suggesting that in unregulated markets, kidney sellers suffer physical, psychological, social, and financial harms. Moreover, Koplin makes a plausible case that these studies, coupled with data regarding the regulated market in Iran, raise serious worries that sellers in developing countries would suffer such harms in regulated markets as well. If regulated markets in kidneys get established around the globe, organs would presumably flow from citizens of poor countries to citizens of wealthier ones. Let us focus on regulated markets in developing countries. Let us assume for the sake of argument that in such markets only vendors who give their informed, voluntary consent to nephrectomy would sell, and they would receive the promised payment, as well as appropriate medical attention, before, during, and after the procedure. Koplin gives us reasons for thinking that sellers might still typically fail to benefit. But if he is correct, might such markets nevertheless be morally permissible? In my view, the strongest basis for an affirmative answer given our assumptions would be that these markets would help to extend many lives. If the markets would significantly increase the supply of kidneys for transplant, it seems that they would do so. Consider, for example, that in 2011 in the United States the average expected life span of a 50- to 54-year-old with end-stage renal disease treated with dialysis was about 5 years, while the average expected life span of someone in this age range with the same malady but who received a transplant was about 20 years (U.S. Renal Data System [USRDS] 2013, 266).

But there is another argument that might support markets from the standpoint of the sellers. Regulated markets, one might say, express respect for the sellers’ autonomy. Let us specify that a person’s action is autonomous if and only if she is acting on some preference of hers and, based on reflection on her values, she either does or, if she thought about it, would choose to have this preference, even in light of understanding how it arose in her. Kidney sellers might be acting autonomously. They might hold, for example, that without money from a sale they would be unable to pursue effectively goals of moral importance to them, such as that of securing a good education for their children. (They might at the same time acknowledge that selling will diminish their own happiness.) Allowing market exchange respects autonomy if it provides options for individuals to effectively direct their lives in accordance with plans they reflectively endorse, contends the argument. A difficulty with this argument is that while vendors might effectively exercise their autonomy in a particular action of selling a kidney, this action might result in an overall impairment of its effective exercise (Kerstein 2009). As Koplin suggests, kidney selling is associated with psychological suffering. A study of kidney sellers in Iran has shown that vendors frequently experience feelings of worthlessness and shame. They perceive themselves as akin to prostitutes and their scars as stigmata (Zargooshi 2001). Common psychological effects of selling a kidney in Iran seem to be anxiety and depression, which can surely make it difficult for one to promote one’s ends. “Vending, especially the psychological complications, severely affected employment potential,” says one researcher (Zargooshi 2001, 1794). If vendors cannot get jobs, it is hard for them to exercise their autonomy effectively, it is reasonable to say. In sum, an appeal to the moral importance of

Address correspondence to Samuel J. Kerstein, Department of Philosophy, University of Maryland, College Park, College Park, MD 20742, USA. E-mail: [email protected]

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A further lesson from existing kidney markets.

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