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Selling Organs for Transplantation LEWIS BURROWS, M . D .

Abstract

The need for transplant organs has far outstripped the supply of available cadaveric organs. Hundreds of people on waiting lists, who could be saved by transplantation, die each year. This severe shortage has justified the extension of transplantation to the use of living donors, but there are still not enough organs to meet the need. This paper discusses the justification for changing policies in order to encour- age organ donation. It presents reasons for allowing payments to be made to families that donate cadaveric organs. It also presents reasons for allowing payments to be made to living donors, and guidelines for how an ideal policy could be structured. Key Words: Selling, payment, organs, transplant, financial remuneration, presumed consent, altruism, ethics.

LIVING DONOR ORGAN TRANSPLANTATION is the only field of medicine in which two individuals are intimately involved: the donor and the re- cipient. It is also the only field of medicine in which altruistic giving of oneself is the basis of the medical practice. I have been asked to ad- dress a very specific aspect of this process, that is, living organ donation for financial remuner- ation. No other subject in the transplant experi- ence is as controversial. Many of those in- volved in the field—surgeons, physicians, so- cial scientists, ethicists, and theologians—have expressed an opinion on this issue.

As a result of impressive gains in this field, organ recipients now have a significant chance for both long-term survival and a reasonable quality of life. These successes have led nearly 80,000 individuals to opt for transplantation as a form of therapy. Unfortunately, the number of organs available has lagged far behind the de- mand. Every year thousands die while waiting for the gift of life that an organ transplant could provide.

In the case of cadaveric giving, the family of the brain-dead person is asked to donate.

Address all correspondence to Lewis Burrows, M.D., 201 East 17th Street, Apt. 27H, New York, NY 10003; email: Rock- [email protected]

Adapted from a presentation at the Issues in Medical Ethics 2001 Conference on "Medicine, Money, and Morals" at the Mount Sinai School of Medicine, New York, NY on November 2, 2001, and updated as of Eebruary 2004.

There is a serious shortfall in cadaveric organ donations, with only 40-60% of U.S. families consenting to organ recovery. Countries that have adopted the doctrine of "presumed con- sent" (such as Spain, Austria, and Belgium) have a much higher rate of organ recovery. In these countries, families can "opt out" of dona- tion; if they do not, the organs of deceased fam- ily members can be used for transplantation. In most of the rest of the world, families have to "opt in" before organs can be used for trans- plantation. "Presumed consent" countries that require "opting out" obtain more than 40 dona- tions per million population, as contrasted with half that amount elsewhere. The lower rate is obviously not adequate for meeting current needs.

The number and rate of donations have reached a plateau and leveled off following the enforcement of lower speed limits for automo- biles and the introduction of seat belt laws. It is said that donation is a middle class, suburban phenomenon; those groups donate at a some- what higher rate than others. Why is the rate of donation lower among the poor and in the big cities? We truly do not know. Education, family cohesiveness, trust in medicine, and moral and religious sensibility may all play important roles.

In light of the gap between organ need and organ donation, we are beginning to consider various forms of financial incentives to families as a stimulant for donation (1, 2). I am not re-

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252 THE MOUNT SINAI JOURNAL OF MEDICINE September 2004

ferring to the token $399 that the state of Penn- sylvania has offered for funeral expenses. That amount would hardly pay for a plain pine cof- fin. Nor am I referring to the more than $10,000 state income tax credit that the Wisconsin sen- ate approved in January 2004 (3). That incen- tive would he of little use to the poor. I am re- ferring to a suhstantial amount, to he included in the financial transactions that occur during the transplant process.

Organ transplantation involves payments of large sums of money. Huge sums go to the hos- pitals, the transplant surgeons, the physicians, the ancillary staffs and the insurance compa- nies. And most of the money actually goes to the pharmaceutical industry. Many millions of dollars flow into their coffers for the immuno- suppressants, antihypertensives, antihiotics, anticholesterols, antacids, and so on, that recip- ients routinely receive in the course of their treatments. The only people who are not heing remunerated are the families of the donors. They alone are being asked to he altruistic.

Just try to do a transplant today on an un- insured patient. I can assure you, the patient will not get through the front door. Medicaid will pay for dialysis treatment of an uninsured alien. But Medicaid will not pay for his or her transplant.

What would be the harm of providing a pay- ment to the donating family of, let's say, $20,000? A liver transplant can cost upward of $300,000, a heart transplant $200,000, and a kidney transplant more than $100,000. In kid- ney transplantation, even the insurance com- pany would benefit from the payment, since they would no longer have to pay for dialysis therapy.

The most controversial remuneration of all is payment to a living donor who has no rela- tionship to the recipient. Because of the organ shortage, most centers in this country accept the donations of living donors who are related, or emotionally related (for example, a spouse or a friend) as the source of transplant organs. In sit- uations where there is an obvious relationship between the donor and recipient, people find no violation of ethical principles. In spite of the in- herent risks of donating a kidney or a segment of liver, and the pressures and emotions related to the desire to save a loved one, these organ donations are found acceptable.

But, what of the donor who has no obvious relationship to the recipient? What should we say of someone who only wants to donate an organ to someone with the means to pay for it, perhaps out of financial desperation? About

twenty years ago, a foreign-born nephrologist at our institution offered me the opportunity to perform more than two hundred kidney trans- plants each year. He proposed bringing donor- recipient pairs from his country to our hospital for the surgery. I was to be paid a sizable sum. The apparently wealthy recipients would pay all the involved expenses, and each donor would receive approximately $2,000 for his or her kid- ney. Apparently, $2,000 was then a substantial sum for a poor person in his country. According to my nephrologist friend, that amount of money would change the donor's life and the standing of his family for generations. Yet even aside from the legal considerations, I rejected the offer outright, because it included no assur- ance of the donor receiving adequate long-term aftercare. I also felt a sense of revulsion at the idea of a poor, desperate individual peasant being used in this manner by some wealthy businessman or aristocrat.

Nowadays, this form of commercialism is prevalent in the Third World, where either there are no laws prohibiting these transactions or ex- isting laws are not enforced. I shall not address those practices. Instead I want to consider pay- ment for organ donation in an ideal situation. I want to consider the situation where the donor and recipient are carefully selected and care- fully matched, and where the operation is well controlled. The donor would be offered long- term care, and the recipient would pay the donor a significant sum. There would be no "middle-men" or brokers involved, and the al- location process would be carefully controlled by the national or regional organ allocation mechanism. Under such circumstances, would it be ethically acceptable for one individual to use another for his own survival and well- being? Would the infliction of pain and suffer- ing on one individual be justified by the benefit to another individual? Should someone with the financial wherewithal be allowed to purchase transplant priority? Does allowing such finan- cial transactions undermine what has been a truly altruistic practice? Would payment to liv- ing donors inevitably undermine the public's faith in the process?

Let us examine the proposal in light of the ethical principles involved, to see if they would be violated. But first, I would like to rule out several factors that would be inconsistent with the organ exchange ideal that I imagine: 1. The donor comes from a country where

aftercare is deficient or unavailable. Such a situation would subject the donor to an

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unacceptable risk of harm and would there- fore exceed a reasonable balance of harms and benefits.

2. Third-party brokers, profiteers, or entre- preneurs are involved in the transaction. Removing any portion of the transplant process from the oversight of medical pro- fessionals would remove it from the fidu- ciary relationship that assures that the donor's life and health would be safe- guarded. And commercialism introduces possibilities of exploitation and conflict of interest.

3. The donor does not truly understand the nature of the donation and the potential risks involved. Evaluation of the donor by an impartial psychiatrist would be a crucial element in assuring that the donor is making an informed choice that reflects personal values and priorities.

4. There are bidding wars for organs. The assurance of donor and recipient safety must be a crucial feature of living donor trans- plantation. Organ auctions could compro- mise long-term safety or lead to unexpected and untoward outcomes of living donor transplantation. Auctions can only assure price compatibility between buyer and seller. While the selling price should be set high enough to elicit donors, the larger process must take into account the costs of long-term care and emergencies such as pri- mary non-function of the transplanted organ, or organ rejection. Because the transplanta- tion community has the ultimate responsibil- ity for the careful management of these situ- ations, the transplant community must have oversight of any financial exchange.

I would like to summarize the considera- tions that incline me to accept payment to organ donors in the ideal situation. 1. Autonomy. Certainly the donor and the re-

cipient have the right to proceed if those in- volved in their care are assured that they have freely accepted the transaction with a complete understanding of the risks and benefits involved.

2. Beneficence. Both the donor and the recip- ient stand to gain from their contract, as does everyone else on the waiting list below the recipient. All of the others waiting for a

cadaveric organ will benefit by moving up a notch in the process.

3. The "do no harm" principle (primum nolle nocere). There is obviously some harm done to the donor in the surgery in- volved in organ donation. There is also the immediate exposure to surgical risks, and the certain disfigurement and loss of an organ. Also there are possible long-term consequences of organ loss. These risks of harm are so well defined in the kidney transplant experience that donors can be as- sured that the risks, both long- and short- term, are minimal. The risks associated with the liver, lung and pancreas donation process are not as well defined. Perhaps this element of uncertainty justifies a morato- rium on these donations until the risks can be carefully assessed in well-controlled clinical studies.

4. Justice. I am less confident about whether an ideal organ payment system will con- form to the basic principle of fair and equi- table distribution of benefits and burdens. The main benefit of payments for organ procurement would go to relatively privi- leged individuals. They would get trans- plant organs more readily than others, in ad- dition to all the other privileges that accrue to the wealthy (e.g., better homes, health care, service, etc.). Yet no one else would be harmed by the paid organ donation, unless there is a general loss of faith in the dona- tion process, with a fall in the rate of altru- istic giving. This is an empirical question that can only be answered by a trial.

It is clear that I have changed my position somewhat, on this form of donation. I have ac- cepted the libertarian thesis that selling one's organs does not necessarily violate the right of self-determination, and should fall within the protected privacy of free individuals on the basis of the principle of autonomy. I have also been persuaded by pragmatic and utilitarian considerations — the current system is failing, and the benefits for all recipients of an increase in available organs outweigh most objections.

Of course, I would insist on controls. The donor must be healthy, both physically and mentally, as determined by competent physi- cians and psychiatrists who are not directly in- volved in the transplant process. We must be as- sured that the donor fully understands the risks

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involved and must sign a statement demonstrat- ing true informed consent. Paid donors must be guaranteed long-term medical care and life in- surance for themselves and their families in the event that complications occur. The transplant should be controlled by medical professionals and medical agencies that are intimately in- volved in transplantation and that can adminis- ter the process with due care and impartiality.

I offer a final personal note. I am not en- tirely pleased that I have had to reach this deci- sion. I would certainly prefer that an ample source of cadaveric organs be available to those in need. Available organs would allow us to avoid the dilemmas of living organ donors and paid donations. But for the time being, while

my patients are dying for want of an organ, I tiave accepted this libertarian, utilitarian ap- proach. We do not live in ivory towers. In life, we have to make hard decisions and accept the consequences when all of our options have seri- ous flaws.

References

1. Arnold R, Bartlett S, Bernat J, et al. Financial incentives for cadaver organ donation: an ethical reappraisal. Transplanta- tion 2002; 73(8):1361-1367.

2. Delmonico FL, Arnold R, Scheper-Hughes N, et al. Ethical incentives—not payment—for organ donation. N EngI J Med 2002; 346(25):2002-2005.

3. Napolitano J. Wisconsin senate approves tax deduction for organ donors. N Y Times 2004 Jan 23; A: 12.