Medical Self-Defense or Bidding War?
posted by Frank Pasquale
Eugene Volokh’s paper on “medical self defense” has raised a spirited discussion at the Volokh Conspiracy, centering today on the degree to which we permit individuals to take risks in order to make money. Volokh’s paper argues that a “right of medical self-defense . . . makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people’s lives.” But he concedes that “some concerns about organ markets may justify regulations of such markets.” I’m interested in Volokh’s concessions on the regulatory side, particularly his (hedged) sensitivity to distributive concerns.
Volokh addresses “the concern that allowing payment for organs would let rich patients buy up all available organs, and leave poorer patients without the chance of a transplant.” He addresses the issue as follows:
The “rich outbidding others” concern only arises if (1) the rich or their insurers pay so much that other health care funders can’t keep up, and (2) the other funders’ payments don’t suffice to make enough organs available for all patients. Even if we think this is likely—if we think the rich would pay $200,000 per kidney, other health care funders wouldn’t pay more than $100,000, and this payment wouldn’t yield enough organs for everyone—this only supports capping payments at the level that all funders would pay, likely the level at which they’ll still be saving money by getting an organ instead of paying for long-term dialysis.
Given my earlier posts on “dedicated ventilators,” I think this is a perfectly reasonable way to think about the matter. But I wish to dispute some reasons Volokh gives to believe that “preventing inequality isn’t reason enough to interfere with medical self-defense” . . .
In a recent post, Volokh argues that we should
think again about the argument that organ sales should be banned because allowing organ sales would unduly pressure poor providers to put their health and their lives at risk. We let people become professional fishermen or loggers, and we’d consider a ban on those occupations to be no service to the poor. Yet these occupations, with their modest return on investment and risk, likely appeal especially to the poor, and thus may (by analogy to the organ argument) unduly pressure poor workers to put their lives at risk.
True enough. But we also tend to think that job safety regulations and minimum wage laws should govern these occupations. Moreover, the “reasonableness” of the risk decisions discussed by Volokh is premised on the idea that fisherman has a choice between a dangerous job that allows him to save “$5000 per year” or sell a kidney for $30,000. But as this news report shows, the choice is often a lot more grim:
“We do this because of our poverty,” said Kausar, who is in her 30s and lives with her family in Sultanpur Mor, a village in eastern Pakistan. A kidney nets the donor $2,500, sometimes less than half that amount, while recipients — some 2,000 a year — pay $6,000 to $12,000, compared with $70,000 in neighboring China.
Critics blame an economic system that enmeshes farmers in chronic debt, forcing them to sell their kidneys, and say the trade should be banned. The government says it is taking action. In the United States, donating kidneys for money is banned. But the Belgium-based International Society of Nephrology has suggested expanding the pool of kidney donors by legalizing payment of about $40,000 to donors.
So we are moving toward a consensus that people in desperate circumstances should be given some fair compensation for risking their lives on behalf of someone capable of paying them for an organ. I think the direct tradeoff of risk for cash here makes it an ideal place to transform perhaps outdated anti-commodification norms into the egalitarian commitments that are their ultimate normative rationale.
I also hope that we can agree to avoid a world where organs are simply auctioned off so that the highest bidders get them–unless there are very compelling reasons to believe that, in that process, sufficient funds are being diverted toward innovation that will lead to the development of organ-substitutes (or donor organ availability) for all. We allow that kind of tradeoff in patent law–thus life-saving treatments may be denied on account of patents only because those rights are limited in scope and duration and will eventually result in innovation that is in the public domain. To the extent those types of rationales are inapplicable in the context of organs, we should be very suspicious of auction-based approaches.
Photo Credit: Flickr/Mildly Diverting
November 13, 2006 at 11:33 am
Posted in: Health Law
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