Why Can't I Sell You My kidney?

August 1, 2009 — Stop me if you’ve heard this one: three mayors and five rabbis walk into a bar—no, excuse me, they’re behind bars. Actually, it’s no joke. Along with 36 others, these political and religious leaders were arrested in New Jersey and New York on Thursday, July 23 , on various corruption and money laundering charges. References to The Sopranos and On the Waterfront abounded in various news reports.

But the really juicy bit to this story is its connection to trafficking in human body parts. A certain Levy Izhak Rosenbaum of Brooklyn stands accused of brokering kidney sales between poor Israeli donors and rich American recipients willing to pay big bucks to jump the kidney queue. Mr. Rosenbaum has apparently admitted to helping supply meet demand in this fashion for 10 years. But is this really a sufficiently good reason to throw the man in jail?

BLACK MARKET BLUES

It is illegal to buy and sell human organs in the United States, as it is in most countries around the world. As a direct result of this, there are not enough organs to go around. According to Dr. Sally Satel, editor of When Altruism Isn’t Enough: The Case for Compensating Kidney Donors (American Enterprise Institute, 2009), there are over 80,000 Americans currently waiting for a kidney. “Thirteen of them die daily,” Satel wrote Monday in the Wall Street Journal; “the rest languish for years on dialysis.” Although just about everyone has a kidney to spare—we are born with two but can live with only one—there are simply not enough people willing to go through the ordeal of donating a kidney to a stranger without getting something in return.

It is illegal to buy and sell human organs. As a direct result of this, there are not enough organs to go around.

When markets are forbidden from functioning freely, shortages are the predictable result. And when shortages are extreme enough, black markets are sure to follow. Ironically for those who are concerned about the exploitation of poor donors, prohibition actually makes the poor worse off. It is the very illegality of the black market that victimizes those who are ready, willing, and able to trade a spare kidney for cash. After all, if donors are swindled out of their fee or don’t receive proper follow-up care, they currently have no recourse before the law, as they themselves would be branded criminals if they were to seek justice.

If a legal, free market would quickly whittle away the long waiting lists and provide better protection for kidney donors—which it would—what, exactly, is the problem? The reason it remains illegal to buy and sell kidneys despite the strong practical arguments against prohibition is that many people feel it is just wrong, morally, to profit from the misery of others.

REDUCING MISERY BY PROFITING FROM MISERY

A good part of the outrage directed at people like Levy Izhak Rosenbaum has to do with the profits they enjoy from brokering. If a donor and a recipient agreed to exchange $5,000 or $10,000 for a kidney and it ended there, that would be more like direct barter, about which many people have romantic notions. It is the middleman, buying a kidney for $10,000 and selling it for upwards of $150,000—as Mr. Rosenbaum is said to have done—who really gets people upset.

Of course, some of the difference in this case is surely attributable to other costs, and some of it is just as surely inflated by the illegality of the transaction and the risks it therefore entails. Nonetheless, in a free, legal market, middlemen would still be rewarded, at a price determined by competitive forces, for providing the very valuable service of helping supply and demand find each other. Again, I have to ask: what, exactly, is the problem?

The problem is that some people do not like the idea of profiting from the misery of others. Maybe it feels too close to profiting at the expense of others, such as a thief or a thug would do. But kidney donors and kidney brokers do not cause people to become sick; on the contrary, they want to help them get better, and they want something for their trouble. Some people refer to this type of phenomenon as “voluntary exchange to mutual benefit.”

Indeed, as Adam Smith put it so many years ago, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” What would happen if we were to count solely on the benevolence of food suppliers, as we do on the benevolence of organ donors? Many of us would be dying of hunger, just as many today die for the want of a kidney.

ALTRUISTIC TENDENCIES

In a piece I wrote when a similar story was all over the Canadian headlines last year, I quoted from an article by economist David R. Henderson. He pointed out that most people in the medical system—doctors, nurses, and so on—are rewarded for their services, and giving organ providers the same incentive would take care of our perennial shortages. “No one would be surprised at the lack of doctors,” Henderson argues, “if we insisted that doctors perform their services for free.”

It would be bad enough if people’s uneasiness about profiting from the misery of others merely led to the prohibition of organ sales, but it goes far deeper than that. This uneasiness is also behind people’s concerns about private, for-profit medicine in general, be it for-profit hospitals, for-profit insurance providers, or for-profit pharmaceutical companies. The result is a push for greater and greater government control of the health care industry.

Even Canadians, though, haven’t quite gotten to the point of asking doctors to perform their services for free. We just want to tell them how much profit is acceptable, and who can get what treatments when. We think government bureaucrats and politicians can make these decisions better than millions of private actors pursuing their interests and coordinating their actions on a free market. And we think that forcing people to pay for others’ medical care through taxation makes us more benevolent than Americans.

But what about people like Shona Holmes, who felt ill-served by Canadian health care, remortgaged her home to pay for faster diagnosis and a brain tumor removal at the Mayo Clinic in Arizona, and then had the nerve to speak out against the system that had failed her? She is “vilified as a traitor” and gets little sympathy, despite having had to increase her home security after receiving death threats.

Shona Holmes had the gall to pay for her treatment, just as many who need a kidney have the audacity to buy one on the black market, from providers who have the audacity to sell them. Well, the world could use a little more audacity when it comes to defending the right of individuals to contract freely on an open market instead of sacrificing themselves for the benefit of others. Clearly, it is the altruistic code of enforced charity through taxation—which has no room, it seems, for dissenters—that must be challenged. If we do not challenge it, someday finding a doctor might actually become as hard as finding a kidney donor.

‍