It Is Dangerous to Be Right When the Government Is Wrong (21 page)

109

By preventing the buying and selling of organs, the government is making it extremely difficult to find sufficient organ donors because there are zero incentives to donate. According to the federal National Organ Transplant Act of 1984, you cannot compensate another person who selflessly donates a kidney (even though the donor has rescued you from fatiguing dialysis and premature death). In fact, this altruistic human being (and violator of the 1984 Act) could be slapped with a fifty-thousand-dollar fine and a felony prison term of up to five years!
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Organ donation is just one more way the government usurps control of decisions—personal and bodily—that are rightfully ours as sovereign individuals.

Because your body is your property, you should have the right to decide to live without one of your kidneys and be compensated accordingly (and conversely, to acquire a kidney through a voluntary trade). It is your body, your decision, your choice. Why does the government even care what you do with your organs, especially when that organ is saving the life of another human being?

Currently, the federal government acts as the
only
authority with the power to buy and allocate kidneys for transplantation. The 1984 Act established the Organ Procurement and Transplantation Network (OPTN), to contract the United Network for Organ Sharing (UNOS), which administers the OPTN under contract from the Department of Health and Human Services.
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(See how the government did that—taking absolute control through a complicated mess of inefficient networks so that we have no control over the destiny of own organs?)

As you read this, there are more than 85,583 people waiting on the official kidney-transplant list in the United States.
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With kidney, pancreas, liver, intestine, heart, and lung combined, there are more than a whopping 108,098 people waiting for some kind of organ in homes and hospitals across the nation. In the United States alone, just 16,500 individuals received a kidney transplant in 2008 while almost 7,000 died waiting for one.
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Thirteen die daily.
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With a population of more than 300 million, we have a grand total of more than 600 million kidneys (we each have two, but can function with one)—my instinct is that the government is doing something wrong.

110

How Did We Get Here?

While people may be repulsed at the discussion of organ trading for compensation, they shouldn't be; we already engage in forms of it. Every day, heart valves are replaced, and amputees receive other people's limbs. People exchange their semen, eggs, and plasma for money. For tens of thousands of dollars, women generously rent out their wombs for those who cannot bear children. We donate blood in exchange for little perks like movie tickets and candy. How can an exchange take place in these situations but not under circumstances including vital organs? The federal government flippantly and arbitrarily makes these rules, but does it have its reasons? Does it have the authority?

In 1984, an “overzealous entrepreneur” testified before Congress of his plans to ship in impoverished people from developing countries, remove their organs to undergird our shortage, and return the “donors” to their homelands with a sum of money to compensate them for their efforts.
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Appalled, Congress, spearheaded by Al Gore, a Tennessee congressman at the time, enacted the National Organ Transplant Act. While the legislature may have been well intentioned, the consequences have been highly intrusive and purely negative. People are dying, and the need for organs has increased yearly. Although Gore did propose “a voucher system or a tax credit to a donor's estate” if “efforts to improve voluntary donation are unsuccessful,”
¹⁵
the United States continues to flounder despite attempts to promote donation after more than twenty-five years. Clearly, the government's efforts have been unsuccessful with more than 80,000 people on kidney-transplant waiting lists. The system is broken, and the time for change is now. It is time to look to compensation, incentives, and market practices to solve the problem. However, under current federal law, we can't. In Pennsylvania, for example, the state legislature proposed an allowance of a mere three hundred dollars to go toward funeral expenses if an individual were to donate organs.
¹⁶
The bill, however, failed because government officials feared that it might violate federal law. Whatever happened to federalism?

Sally Satel, M.D., who received a kidney transplant in 2006, tells a story in her article, “The Waiting Game,” about a proactive young man on dialysis.
¹⁷
Amazingly, Alex Crionas met a man at a party who offered to donate one of his kidneys to Crionas. Unfortunately, Crionas had also created a Web site to help attract potential donors via the Internet, violating parts of the National Organ Transplant Act. As a result, the transplant center refused to perform his surgery, even though Crionas and the donor did not even meet on the Web site (they met at the party). The surgery center's reasoning for denying him the transplant: Brokered transplants “undermine trust in the whole system.”
¹⁸
It seems to me the system has already been undermined. Fortunately, after seeking out a different transplant center, Crionas was finally able to receive his transplant, which was a success.

Bad Effects and the Black Market

The organ black market is alive and well. In fact, the black market may account for 5 to 10 percent of transplants worldwide.
¹⁹
I do not have to look to faraway places like India or the Philippines to back up my claim; I can look as close as my home State of New Jersey. In July 2009, Rabbi Levy Izhak Rosenbaum was accused of conspiring to broker the sale of a human kidney for a transplant. The recipient would pay $160,000 while the donor received $10,000. According to the complaint filed in federal district court in New Jersey, this was not Mr. Rosenbaum's first dance. He had brokered many deals over the past ten years.
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Unfortunately, the effects of criminalizing organ donation are exactly opposite of the government's intent. Dr. Satel states that the strategy of “cracking down” on organ trafficking is doomed because “it ignores the time-tested fact that efforts to stamp out underground markets either drive corruption further underground or cause it to flourish elsewhere.”
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So, instead of allowing people to be compensated for their altruistic act of donation, the government must monitor and build criminal cases against rabbis selling organs in New Jersey. In addition to the danger of black markets, there is the threat of physicians being forced to use organs of lesser quality because of such low supply. The United States' intense shortage has increased the use of these so-called expanded-criteria organs—in other words, organs that are not suitable for transplant.
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Kidneys are not as “good” when they are donated by people over sixty years old or by people who have a history of medical problems. These organs are more likely to fail in the recipient than organs from younger, healthier donors. Because of the federal government's restrictions, these lesser quality organs are transplanted anyway.

112

In his
Wall Street Journal
piece, “The Meat Market,” Alex Tabarrok described the level of desperation reached by those in need of organs. The situation is so dire, “at the University of Maryland's School of Medicine, five patients received transplants of kidneys that had either cancerous or benign tumors removed from them.”
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These acts of desperation are forced upon these ailing individuals based on rules and regulations passed by the government. Tabarrok goes on to explain that while expanded-criteria organs can be a useful (albeit dangerous) alternative to the shortage, their use also means that the organ shortage is even more drastic than it appears “because as the waiting list lengthens, the quality of transplants is falling.”
²⁴
These “alternatives” are not alternatives at all. The fact that people are resorting to these extreme measures to access organs when organ donors could be compensated is unacceptable and immoral. The government must take a second look.

And the Money?!?

Kidney dialysis is a federal entitlement (no) thanks to the 1972 End Stage Renal Disease (ESRD) component of the Social Security Act. In 2006, Medicare spent almost $23 billion on ESRD, and the total cost per person, per year, was $61,164.
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The real punch: Only one-third of dialysis patients survive after five years. More specifically, a thirty-five-year-old spending nine years on dialysis will accumulate a total cost of $600,000 while a sixty-four-year-old over four years will cost $300,000. Now compare these extravagant treatment costs with the $75,000 onetime cost of the “surgeries and hospital stays of the donor and recipient, plus the first year of follow-up care (including medicine).”
²⁶
It is more cost-effective to cure than to treat, and we already have the cure. It is called a transplant.

And check out this number crunch. Virginia Postrel of
The Atlantic
magazine suggests transplant centers pay $25,000 or $50,000 to each living kidney donor.
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As a result, taxpayers would save billions: “Eliminating the waiting list would save taxpayers $8 billion, or $4 billion if each living donor received a lump-sum payment of $50,000.”
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To make an even starker point, Nobel Laureate economist Gary Becker and economist Julio Elías estimated that a mere payment of $15,000 per donor would eliminate the kidney shortage in the United States. These economists suggest the federal government make the payments so as to avoid any inequality in allocation.
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That, of course, would be unconstitutional.

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The bottom line is transplants are cheaper than dialysis, and since dialysis treatment is paid by Medicare's ESRD program, it is in our interest to cut costs. Even more convincing, these monetary calculations completely ignore the benefits enjoyed by the recipient in the form of health, happiness, and quality of life. It seems like a no-brainer, but our government cannot seem to pull it off.

Success Stories Around the Globe

There is only one country in the world that has eliminated its shortage of transplant organs. Interestingly enough, it is Iran. Iran began its system of organ donation incentives in 1988 and eliminated its shortage by 1999.
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If Iranian patients are not assigned a kidney from a deceased donor or cannot find a family donor, they apply to a non-profit called Dialysis and Transplant Patients Association (Datpa). Datpa finds donors in its pool of applicants, and an independent third party evaluates them. The government pays the donors $1,200 and provides one year of limited health coverage while those that worked through Datpa receive an additional payment (from Datpa) between $2,300 and $4,500.
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Although the Iranian donor system is not fully a free market system, it does demonstrate that an organ shortage can be fixed by offering financial incentives. The United States government could learn a thing or two.

Singapore and Israel, on the other hand, use non-monetary methods of incentivizing their people to donate. Alex Tabarrok calls the program, “no give, no take.”
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If an individual “opts out” of Israel's presumed consent system, he or she is assigned a lower priority on the transplant list should one day he or she need an organ.
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In other words, if you do not give, you do not receive. While this presumed consent program may seem potentially harmful to an individual's autonomy, anyone can “opt out” at any time. Other countries that have adopted presumed consent have had great success in decreasing their waiting lists. Spain, for example, adopted presumed consent in 1989, and within a decade had doubled its donor number.
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Austria quadrupled its donation numbers when it adopted presumed consent.
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114

Whatever Happened to Personal Autonomy?

Our government has done it again. The rules of the kidney game are wholly dictated by a governmental monopoly. As a result, you cannot determine what is best for you and your body. However, by attempting to quell organ trafficking, all the government is doing is running the black market further and further underground, making it more and more dangerous for everyone involved.

While opponents of organ trade argue that it is an exploitation of the poor, who am I (or the government) to say that the poor should not be able to make a rational decision to part with an organ—and free themselves from poverty at the same time? That decision is entirely theirs. While outlawing payments to donors is technically a way to keep the system “fair” by giving the rich and the poor equal access, it is only “fair” insofar as both the rich and the poor have an equally rotten chance to receive a healthy kidney. It is simply unfair that people at all economic levels have to succumb to that sad destiny. Why is it that I can purchase poison with which to kill a rodent, but I cannot purchase a finger to replace the one I lost to my saw?

The fact that healthy (and redundant) kidneys are a scarcity makes a compelling case for their economization. We should be using our resources more carefully. If there are thirteen people dying every day because they need a kidney, surely we can incentivize free people in some way. Altruism, apparently, is not enough. The government's plan is not working. We must leave this predicament, like any supply-and-demand scenario, to the markets. While other governments are actually searching for answers to the organ shortage problem, our government is unnecessarily policing—and failing in the process.