Beyond Gift and Bargain: Some Suggestions for Increasing Kidney Exchanges
30 Pages Posted: 14 Mar 2019
Date Written: 2018
Each year thousands of people in the United States die preventable deaths waiting for a kidney transplant. The fundamental problem is that the demand for organs exceeds our current supply. Federal law currently makes it a crime to provide “valuable consideration” in exchange for an organ. However, there is already a well-entrenched political and legal consensus in favor of allowing paired kidney-donations. Such organ exchanges can be extended beyond bi-lateral trades into extended chains of donations that have the potential to greatly increase the number of organs available for transplant. However, such exchanges require high levels of trust among the donors. Without such trust, many life-saving exchanges simply will not happen. This article offers two proposals for facilitating such trust. The first is the use of standby letters of credit by donors. Such letter would serve primarily to provide increased — although admittedly far from perfect — assurances of performance and — again admittedly imperfect — insurance against counter-party risk. The second proposal is that we allow limited financial incentives to be paid to donors who are willing to make undirected donations when such donations catalyze a chain of donations among altruistic donors. The presence of a single gratuitous donor on the front end of a chain can eliminate exposure to ex post opportunism down the chain of donation. Such financial incentives would represent at most an imperfect commodification of kidneys. Current law already recognizes the legitimacy of such imperfect commodification by allowing kidneys to be traded for other kidneys. Like such uncontroversial organ swaps, paid donations for initial donors in extended exchanges would nest bargains in a network of altruistic acts and donations. The result could be an increase in the number of life-saving transplants without the creation of a full-fledged market in human organs.
Keywords: Organ Donation, Organ Markets, Kidney, ESRD, NEAD Chains, Commercial Law
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