Legalizing kidney sales would end America’s lethal kidney shortage

In a recent article in Regulation, economist Frank McCormick and medical school professor Philip Held describe how America could solve its lethal shortage of kidneys needed for transplants. The shortage kills 40,000 Americans every year:

News stories abound of kind people—relatives, close friends, and even complete strangers—who donate a kidney to someone suffering from kidney failure. These stories usually explain that people whose kidneys have failed must either obtain a transplant, which enables them to live 10–20 years in reasonably good health, or suffer on dialysis for an average of four to five years as their health steadily deteriorates until they die.

Sometimes these stories explain that many kidney failure patients never receive the optimal treatment of a transplant because there is a drastic shortage of transplant kidneys. About 125,000 patients are diagnosed with kidney failure each year, but only about 22,000 receive a transplant. In a 2022 Value in Health article, we estimate that more than 40,000 additional kidney failure patients would be saved from premature death each year if they received kidney transplants….

Few if any of these news stories lamenting the kidney shortage or touting high‐​tech breakthroughs mention that we already have a solution to the shortage: compensating kidney donors to induce more supply. Frustratingly, the U.S. government is obstructing this solution.

NOTA is the problem / Virtually all economists who have studied the issue believe the basic cause of the kidney shortage is a provision in the 1984 National Organ Transplant Act (NOTA): “It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.”

This sentence seems innocuous, but it imposes a price ceiling of near‐​zero on the market for kidneys. Both economic theory and abundant evidence have shown that whenever the government holds the price of a good below the market‐​clearing price, it causes a shortage of that good. Moreover, if the government holds the price far below the market‐​clearing price (our 2022 article estimates that price would be about $80,000 per kidney), then the shortage will be huge: more than 40,000 kidneys per year in the United States alone. For context, that is more deaths than from motor vehicle crashes each year.

Legalizing organ sales would also save thousands of people from the chronic pain and expense of spending years on kidney dialysis while waiting for a transplant, often in vain.

Legalizing kidney sales would not lead to individual patients buying kidneys at some sort of auction. Instead, notes law professor Ilya Somin, they would be obtained for patients by health care providers,

just as other complex medical supplies currently are. They would have strong incentives to assure quality and safety (as is currently true with unpaid donations). Indeed, the option of payment can actually improve quality, by eliminating shortages that may currently lead to pressure for lower standards. Medical insurance providers would have strong incentives to cover the cost of organs, because—among other things—it’s a lot cheaper than paying for the alternative of kidney dialysis (as public and private insurance plans currently do in most cases).

Banning organ sales causes enormous suffering, as is shown by a study in the Journal of the American Society of Nephrology, titled “The Terrible Toll of the Kidney Shortage.” It notes that the “106,000” people “who do not receive a transplant” due to the current kidney shortage “are fated to live an average of 5 years on dialysis therapy before dying prematurely.”

Right now, people have to be unusually altruistic to donate a kidney, spending several days in the hospital, taking time off, and running a tiny risk of death.

Somin and others say the ban on organ sales should be repealed to save lives. Back in 2011, kidney donor Alexander Berger explained why kidney sales should be legal in The New York Times. Berger was a researcher for GiveWell, a nonprofit that helps charitable donors decide where to give. Berger predicted that allowing kidney donors to be compensated would save countless lives by giving people an incentive to donate their kidneys, resulting in a vast increase in kidney donations.

Right now, people have to be unusually altruistic to donate a kidney, since you have to spend several days in the hospital to donate one, take off a lot of time from work, and run a tiny risk of death. Few people are that selfless. Allowing kidney sales would also help the poor, who currently often are unable to obtain kidneys: as Berger notes, people unable to get kidney transplants now are “disproportionately African-American and poor.”

If kidney sales were legal, the taxpayers would save money, too. The government would be able to simply pay for kidney transplants for poor and elderly people who need them (including the cost of buying the kidney needed for the transplant), rather than paying for years and years of costly dialysis treatment through Medicare and Medicaid. The purchase price of a kidney would be much less than the ongoing cost of dialysis.

As Berger noted, if the government paid for kidneys, that would actually “save the government money; taxpayers already foot the bill for dialysis for many patients through Medicare, and research has shown that transplants save more than $100,000 per patient, relative to dialysis.” (By legalizing organ sales, one nation, Iran, was able to eliminate waiting lists for transplants, and avoid the staggering costs of widespread dialysis.)

The case for organ sales is even stronger than for allowing professional football, which has greater risks associated with it.

As Berger observed, people who receive compensation for their kidneys will not be “exploited.” While there is some risk associated with donating a kidney—the whole reason compensation is needed—“the risk of death during surgery is about 1 in 3,000,” smaller than many risks that everyone is already allowed to take in exchange for money or just for the heck of it. Moreover, a kidney donor’s “remaining kidney will grow to take up the slack of the one that has been removed.” So donating a kidney does not interfere with leading a normal life.

Professor Somin says the exploitation argument against organ sales is logically inconsistent. Most of the people who “oppose legalizing organ markets because they believe it would lead to exploitation” have “no objection to letting poor people perform much more dangerous work, such as becoming lumberjacks or NFL players.”

This makes no sense, because, unlike the ban on organ sales, which kills thousands of people, a ban on professional football would not kill anyone. So, the case for organ sales is even stronger than for allowing professional football, which has greater risks associated with it, such as widespread traumatic brain injury and degenerative brain disease.

As one commenter notes, “The risk of dying during kidney donation (0.03 percent) is equivalent to going sky diving twice or driving 20,000 miles. Donating a kidney has the same risk as commuting 40 miles to work for one year,” a risk people commonly assume just to get to work.

Moreover, as Somin notes,

In addition to offering payment to living donors, we can pay potential donors in advance for the ‘option’ of harvesting organs after they pass away, a strategy that eliminates any negative health effects on donors, since, by definition, the option can only be exercised after they have died, and have no further use for the organ themselves.

Such an option eliminates any risk of “exploitation.”

As Berger notes, the ban on kidney sales is most harmful to minorities and low-income people:

The victims of the current ban are disproportionately African-American and poor. When wealthy white people find their way onto the kidney waiting list, they are much more likely to get off it early by finding a donor among their friends and family (or, as Steve Jobs did for a liver transplant in 2009, by traveling to a region with a shorter list). Worst of all, the ban encourages an international black market, where desperate people do end up selling their organs, without protection, fair compensation or proper medical care.

Many kinds of body tissue can be purchased, so why not organs like kidneys, livers, and hearts? In 2011, the Ninth Circuit Court of Appeals ruled that it is legal to compensate bone marrow donors. Similarly, as Berger points out:

[W]e already allow paid plasma, sperm and egg donation, as well as payment for surrogate mothers. Contrary to early fears that paid surrogacy would exploit young, poor minority women, most surrogate mothers are married, middle class and white; the evidence suggests that, far from trying to ‘cash in,’ they take pride in performing a service that brings others great happiness.

And we regularly pay people to take socially beneficial but physically dangerous jobs — soldiers, police officers and firefighters all earn a living serving society while risking their lives — without worrying that they are taken advantage of. Compensated kidney donors should be no different.

People in need of other organs, like hearts, would also benefit from legalizing organ sales. As Emily Largent observes at the Harvard Law School website, there is also a large “unmet need for hearts, lungs, livers, and other vital organs” that might be filled, if organ donations were compensated.

In the past, critics argued that organ markets should be banned because it is inherently wrong to profit from or “commodify” the human body. Yet, as Professor Somin observes, most of them don’t object to letting a wide range of people profit from organ transplants, including doctors, insurance companies, hospital administrators, and medical equipment suppliers. All of these people get paid (often quite well) for doing so.

Strangely, the only participant in the transplant process who is forbidden to profit from the organ is the one who provided it in the first place. As Professor Somin notes,

If you believe that people should be forbidden to sell kidneys because earning a profit from organs is immoral ‘commodification’ of the body, you must either oppose paying all the other people who currently earn money from organ transplants, or explain why they, unlike the original owner of the kidney, are not also engaged in commodification.

As Somin observes,

The same goes for people who argue that kidney markets should be banned because earning money from transactions involving body parts will somehow corrupt our morals. If the morals of doctors, nurses, and others are not corrupted as a result of repeatedly earning a large part of their livelihood from organ transplants, it is not clear why the morality of donors will be corrupted by earning money from selling a body part on just one or a few occasions.

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