Human Organ Transplantation: Economic and Legal Issues
Quinnipiac Health Law Journal, Pp. 87-110, 2000
Posted: 7 Sep 2000
Recent advances in technology which are advancing the frontiers of transplantation dramatically are now poised to combine with another powerful force-that of free markets-to impel society to confront the mechanism by which providers and users of human organs are brought together. With its new rulemaking in 1999, the Clinton Administration ordered the organ sharing network to come up with better distribution methodology within the current donor-based system, but the Administration ignored the major flaw in the present system.
The major problem associated with the current donor-based process is lack of supply. Apart from psychic gains, donors have no possible way of benefitting from this system. All observers agree that a relatively low proportion of the organs potentially available for this purpose are in fact donated. The reason is that our law prohibits economic incentives. There is simply no financial gain in donating organs. Only a free market organization of the transaction can satisfy this motive. We rely upon monetary incentives in many other walks of life to good effect. The laws of economics apply here as well. It is not the wealthy man's "fault" that he is wealthy, or that other men did not use their intelligence to produce great value. Likewise, one can not claim that the organ was bought by the wealthy man at the expense of those who are not wealthy. He did not buy the organ at the expense of anyone; he bought it for his own benefit, and to that of the seller.
Present law itself is the cause of the organ shortage and of the ensuing and unnecessary deaths. Individuals are guaranteed property rights in the United States. But what could be characterized as personal property more than one's own body? A person should have the right to decide what will be done with his body, including his organs, upon his death. This opportunity should not be stolen by unwise law. The U.S. operates what basically is a free market. But in this one case, people are dying because the market cannot efficiently use the resources readily available. It is the responsibility of politicians, bureaucrats and judges to get out of the way of citizens who, through private arrangements, can organize markets to save precious lives.
JEL Classification: K110, K320
Suggested Citation: Suggested Citation