The following post is part of the Mason Institute student blog series which publishes the excellent work undertaken by Edinburgh postgraduate students on the Contemporary Issues in Medical Jurisprudence course, which forms part of our Masters in Medical Law and Ethics degree programme.
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Introduction
With over 500 people waiting for an organ transplant in Scotland, and 50 people dying each year while waiting for organ transplantation surgery, important questions arise as to how we can reduce these figures in years to come. Some academics believe that a legal market in organs is the only solution. However, I argue that such a market would inevitably exploit people experiencing poverty, due to the physical and mental health consequences following transplantation. In addition, I explore the counter-argument which suggests that a legally regulated market would eliminate the harmful effects of the black market in organ sales. I refute this by looking at how the world’s only legal organ market operates in Iran and conclude that even this market is inevitably exploitative, as it does not actually benefit the donor or alleviate their suffering. Consequently, I believe the opt-out provisions contained in the Human Tissue (Authorisation) (Scotland) Act 2019 are a substantially better way of addressing organ shortage in Scotland.
Inevitable Exploitation
The primary objection to a legal market in organs is that this will ultimately play on the existing disadvantages of people experiencing poverty. Greasley states ‘we can assume that any market in human organs will be structured with poor people on the supplying end and richer people on the receiving.’ This dynamic raises questions as to whether the organ donor has truly consented to treatment, or whether their economic desperation has ‘tainted’ their consent, rendering them unable to understand the possible consequences of transplantation. A full picture of what lies on the other side can be seen by looking at the situation in the Indian city of Chennai, where the sale of kidneys is rife due to a loophole in the legislation. A study of 305 paid kidney donors[1] found that 96% had sold their organs to pay off debts. Despite this, 74% of participants were still in debt six years after surgery, thus showing there is no long-term economic benefit to selling a kidney. What is more, 86% reported deterioration in their health status post-operation, resulting in the average family income declining by one third after some donors were forced to give up work. It is doubtful whether any donors knew of these statistics before consenting to treatment, and even more doubtful whether they would have consented if they were made aware of these potential outcomes.
Rubbing Salt in the Wound?
In objection to the above, does denying poor people the right to donate an organ merely rub salt into the wound? Where a person’s financial suffering is so severe that it forces them towards organ sale, some commentators believe they should have every right to improve this situation by selling an organ. Indeed, this argument would be successful if we could be sure that person’s financial situation would be improved. However, this is certainly not the case. Iran is the only country in the world where the sale of kidneys is legal, and whilst some may view the market regulation as successful, it suffers many of the same defects as Chennai, mentioned above. In particular, studies found that 60% of donors[2] experienced negative effects on their physical abilities following transplantation, and with most being unskilled labourers, this had a knock-on effect on their earning capacity. The majority also stated that they had not worked their way out of poverty and debt. Alternative studies have reported donors feeling shameful and depressed after transplantation, with some admitting suicidal thoughts. Thus, denying people in Scotland the right to sell organs does not ‘rub salt into the wound’; instead, it appears the organ sale itself is the problem.
Combatting the Black Market
It is estimated that the black market accounts for 10% of all global transplants, and these markets exacerbate the exploitative practices donors are exposed to. Organ trafficking, the ‘unseen form of human trafficking‘, comprises of ‘brokers’ luring in donors through false advertising, often promising the kidney seller a visa to the US, for example. Alternatively, they target refugee camps, where victims are desperate to escape their country and view kidney selling as the only option. Further exploitative practices include surgeons convincing donors their kidney will grow back, or removing their kidney with no prior consent after advising them they are going in for a different surgery. Then, when it comes to payment, the kidney seller will be lucky to receive a mere $5,000 of the $200,000 paid by the recipient, with the trafficker and corrupt surgeon pocketing the rest.
Those who are in support of a legal market in organs often take the view that market regulation would eliminate the existence of black markets, thus eliminating exploitation. However, organ trafficking is taking place in countries where legal prohibition is not seriously enforced. Governments and hospitals turn a blind eye to the exploitative practices, continuing to carry out transplants which are clearly a commercial exchange. This is not the case in Scotland, as legal prohibition is taken very seriously. Moreover, even where the legal market operates in Iran, exploitative side deals have still been struck out with the government regulated system. Regardless, a legally regulated market will still play on the disadvantages of the poor; in fact, such a market may actually rely on this exploitation for its very existence. In Chennai, 96% of surveyed donors had sold their organs to pay off debts. Thus, a legal market in Scotland may actually expose debtors to further pressures by creditors if they know a person can sell their organ, consequently aggravating exploitation.
Viable Alternatives
The 2019 Act, which introduces an opt-out system in Scotland for people to donate their organs after death, seems to be a much more viable solution to the problem of organ shortage. It is predicted this new system will result in a 50% increase in donor rates within 5 years, and entirely avoids the problem of exploitation. Moreover, with new medical advances in tissue engineering underway, we can hope that one day artificial kidneys will be made available. Until then, in my opinion, there is no place for a legal organ market in Scotland.
References
[1] Madhav Goyal et al, ‘Economic and health consequences of selling a kidney in India’ (2002) 288(13) JAMA 1589 < https://doi.org/10.1001/jama.288.13.1589 > accessed 3rd April 2023.
[2] Javaad Zargooshi, ‘Quality of life of Iranian kidney “donors”‘ (2001) 166(5) The Journal of Urology 1790.
About the author
This article was written by Anna Rae, LLM student in Medical Law & Ethics, in March 2023 for the Contemporary Issues in Medical Jurisprudence course.
Photo by Robina Weermeijer on Unsplash