Michael Novak’s daily article today raises some fascinating moral and economic issues. In arguing that providing certain benefits (but not cash) to induce people to donate their organs, Novak is moving towards the view, commonly accepted by law-and-economics scholars (see the entries on selling organs on the Becker-Posner Blog here ), that allowing a market in bodily organs would greatly increase the supply of such organs and so save a great many lives.

Now, in making this argument, Novak is careful to reiterate his opposition to creating a full-blown market in bodily organs. He mentions, in fact, two distinct reasons for this opposition. On the one hand, there is the idea that, creating a market in bodily organs “could lead to awful abuses” because “the poor and vulnerable would be victimized by ‘harvesters,’ who would make money by using intimidating techniques” to induce them to sell their organs. On the other hand, following John Paul II, there is the idea that “any procedure which tends to commercialize human organs . . . must be considered morally unacceptable, because to use the body as an ‘object’ is to violate the dignity of the human person.” These ideas, however, do not sit easily together.

The first argument—that a market in bodily organs would lead to abuses—does not show that such a market, in and of itself, is immoral; it shows only that, if we have such a market, we should regulate it in certain ways to prevent abuses. Lots of markets are like this. When we worry that people will sell their labor too cheaply or otherwise on unfair terms, we don’t prohibit employment; we create minimum-wage laws and other legal protections for workers against employers. By parity of logic, if the objection to a market in human organs is that unscrupulous dealers will coerce the poor and vulnerable into selling their organs on unfair terms, then there would presumably be a regulatory solution in the form of licensing requirements for dealers, informed consent laws, required disclosure, waiting periods, and, at the extreme, legally-required minimum prices. Hence, if this first argument is correct, the solution is to regulate the market, not suppress it entirely.

The second argument—John Paul’s argument that all commercial dealings in bodily organs violate the dignity of the human person—does indeed entail that any market in bodily organs, even when not leading to abuses, should be suppressed. This argument, however, proves too much. For example, some blood banks pay cash for a blood donation; does this violate the dignity of the human person? What about when women cut their hair and sell it to wigmakers? If someone offers you cash for a glass of warm spit, do you sin if you take the deal? I think not. Pace John Paul, there are some cash transactions in body parts that are morally unobjectionable.

Now, these unobjectionable transactions suggest another argument why a market in bodily organs is undesirable. For one big difference between donating blood and donating a kidney is that, while there is no appreciable danger in donating blood, donating a kidney involves risking one’s life—both in the initial surgical procedure and down the road if the remaining kidney fails. Hence, if someone sells a kidney, he is taking money in exchange for risking his life, and this makes us uncomfortable because we worry that the price, no matter what it may be, is necessarily too low. We worry that the buyer is thus taking advantage of the seller. How right we are to worry about this in unclear, for we don’t object when people accept higher wages for more dangerous (even life-threatening) work—think lumberjacks, oil-rig workers, stunt pilots—but worry we do. Consider this thought-experiment: If someday, because of advances in medical technology, donating a kidney becomes as safe as donating blood or paring one’s fingernails, would there be any objection to people selling kidneys? Even if accepting money for a bodily organ was immoral , it would be hard to see why a transaction that would save one person’s life and endanger no one else’s should be illegal .

Of course this argument does not apply to organs that can be donated only once the donor is dead—hearts, for example. Why a market in organs like that should be illegal is even more obscure. There is a danger, of course, that people would be murdered so that their organs—now valuable commodities on the organ market—could be harvested. For example, if relatives of an otherwise healthy person severely injured in a traffic accident could profit by selling his organs, they would have added incentives to cease life-prolonging treatment. That would be a real problem, but there may be a regulatory fix even for that.

Even more curious is why it is acceptable to offer people things of value—like burial services, health care, and access to national parks—to donate their organs, but not cash. Cash, after all, is merely a medium of exchange. It has no value in itself; it just facilitates the exchange for real resources—things like, for example, burial services, health care, and access to national parks. I don’t think Novak is right when he says that such transactions are not commercial , for it seems clear that bodily organs are being exchanged for things of value. The transactions are not financial , for there is no money involved, but that’s quite different. If I offer to pay your health care costs for life in exchange for the title to your car and you accept, you’ve sold me your car. The same is true if we’re talking about your right kidney. The item is being bought and sold in the only sense that counts in economics.

The argument for the system Novak advocates, therefore, cannot be that the system doesn’t create a market in organs. It certainly does, albeit a very limited market because the currency is restricted to a short list of real resources and there is only one permitted buyer—the government. The argument for this system must be that it will not lead to the abuses of a full-blown market. That is very likely correct, but that the system does indeed create a market—a system of voluntary exchange for things of value—seems to be incontestable. This suggests, as do the other examples above, that the real concern is with abuses in a market for bodily organs, not with such a market in and of itself. And if that is right, it is an empirical question as to which restrictions on the market will best eliminate abuses while maximizing supply.

Articles by Robert T. Miller