Human Organs, Incentives and Sale: Moral Contexts and Emerging Imperatives

 

 

 (This article  is a modified version of the paper presented  on 22 September, 2003 at Kyoto, Japan in the International Conference on “Dialogue and Promotion of Bioethics in Asia” Human Organs, Incentives and Sale: Moral Contexts and Emerging Imperatives

By Dr. R. R. Kishore, MD, LLB Advocate Supreme Court of India, President, Indian Society for Health Laws and Ethics, New Delhi, India   e.mail:  rrkishore@vsnl.com)

Before I start, I would like to express my gratitude to  Japanese Ministry of Education, Culture, Sports, Science and Technology, and also to organizers of this conference, namely the “Dialogue and Promotion of Bioethics in Asia,” and in particular Prof. Ryuichi Ida.  I would also like to clarify that what I am going to speak reflects  my personal views and does not, in any manner, project  the policy of the government of India.

Introduction

“a.        ‘A’,  in the terminal stage of renal failure, is fighting for his life and needs immediate kidney transplantation but nobody is prepared to donate his kidney to him.  ‘B’, totally depleted and impoverished requires money to buy food for himself and medical aid  for his child  dying of serious illness but nobody is prepared to provide financial support to him.   ‘B’ gives his kidney to ‘A’  who in turn extends consideration to ‘B’ in order to safeguard his and his child’s survival.

b.        ‘A’ is blind and requires corneal  transplantation to restore his vision. ‘B’, under renal failure, needs immediate kidney.  ‘A’ gives kidney to ‘B’  who donates one of his corneas to ‘A’.  ‘B’ survives. ‘A’ sees the world.

How should the above interaction be viewed in the context of organ transplantation? Immorality? Commerce? Trade? Trafficking? Exploitation?  Perhaps none.  Truly speaking, it is an expression of mutuality  and reciprocity, based on pragmatic considerations, and is not in divergence from essential human traits. So long  the  society is not capable of catering to the genuine and compelling needs of ‘A’ and ‘B’,  they have the right to look after themselves  with the help of each other.  The instinct to survive is a biological reality and the human beings equipped with intellectual faculties will not allow their survival to be imperiled without exploring all reasonable possibilities”(1)

There has been much debate since the time I wrote the above article (1995) and during this period many persons have died of organ failure and many continue to be terminally ill, but there has been no breakthrough in ethical principles or legislative strategies. Recently,  “Walter Land, the internationally renowned transplant surgeon from Munich University Hospital, Grosshadern, was suspended”  because he, allegedly, carried out a kidney transplantation in Al-Mafraq Hospital, Abu Dhabi  for which “ethical and legal doubts were raised about a possible involvement in organ trade”(2) Investigations are also on in Germany for “alleged organ trading in four cases of kidney transplantation carried out by a prominent surgeon” Christoph Broelsch, who “has often and controversially said that he would like to have the transplantation law changed so that living donors or relatives of deceased donors would be able to receive payment”. Pending investigation, “Johannes Scheel has had to step down as director of his department because of his involvement in the organ trading case” and “the liver and pancreas transplantation programme has been put on hold.”(3)  In India there are periodic reports of organ trafficking involving clinicians, managers of  clinical centres, middle-men and even state officials and several cases are under active investigation and trial. The “worldwide shortage of kidneys from cadavers has resulted in illicit organ sales and even kidnapping and murder of children and adults to “harvest” their organs, which is morally much worse than allowing a person to voluntarily donate a kidney for compensation.” (4) Millions of people are suffering, not because the organs are not available, but because ‘morality’ does not allow them to have access to the organs.

The question is what is good and what is bad. How to measure the moral content of a particular act? Morality is always contextual. It depends on how and in what context we interpret values. “The famousRoman physician Galen, for example, did most of his anatomy researchon pigs and dogs as it was regarded as immoral to dissect humansat that time” (5) but, subsequently, dissection of human cadavers during medical education became a routine practice. The issue of biotechnological achievements  and their social assimilation contemplates a much deeper dialogue than what is being done in the contemporary ethical discussions. This paper is an attempt in that direction.

The problem

 “About 65 000 transplant operations are done each year worldwide, of which about 45 000 are kidney transplantations.”(6) As on 20 June 2012,  114730 people are on the organ transplant waiting list in the USA. (7) In India, specific studies are yet to be conducted but keeping in view the countries large population of nearly 1.2 billion and the rising incidence of ESRD, the requirement for kidney transplantation alone is expected to be around 100, 000 per year.

Shortage of available organs is a global feature of organ transplantation and has been a challenge almost since its inception. Strategies such as liberalization of brain-death concept, introduction of presumed consent, routine harvesting, required request, mandated choice, enhancement of donor’s upper age limit, relaxation of consanguineous riders and allowing altruistic donations from strangers have not resolved the problem. Organ scarcity continues to prevail leading to inequitable therapeutic dispensation, escalating costs, trade and crime. The extra human sources of organ supply have not so far borne fruits. Xenotransplantation is confronted with serious scientific and ethical challenges and production of artificial organs is still in the conceptual stage. Cloned organs are not morally acceptable since  “the notion of human cloning to produce individuals for use merely as organ donors is repugnant, gruesome and unimaginable” (8) While the ethicists are busy debating moral content of biotechnological promises millions continue to die of avoidable causes. In the context of organ sale, the most commonly advanced arguments are human dignity, preservation of life, safeguarding of future generations, protection of vulnerable sections, distributive justice and slippery-slope. The forgotten ones are continued human suffering, exorbitant costs, substandard procedures,

circumvention and non-compliance of law, underutilization of biotechnological feats, preference to non-existing over the existing and harassment to transplant surgeons and clinical centres. It seems moral introversion has overtaken pragmatism thereby closing several candid options such as growing organs from stem cells, legitimizing mutual donations and allowing consideration in lieu of organs, and an immensely promising intervention like organ transplantation is not able to effectively unfold itself.

Changing concepts

A discussion about  “possible payments to living donors for time off work, lost income, pain, and suffering and a move by prisoners to become donors in a bid to reduce their sentences” has already begun (9) In view of chronic shortage of organs, the Bellagio Task Force examined different aspects of organ sale and recommended “some incentive should be in place for families of deceased organ donors’ (10) and, in USA,  the Pennsylvania Department of Health proposed granting US$ 300 financial incentive as a “funeral grant” to “help defray the expenses for organ donors” (11) It does not stand to reason to “prevent adults from entering into contacts from which both sides expect to benefit, and with no obvious harm to any one else” and the “potential harm of losing a kidney must be weighed against the potential benefits of whatever payment is received”. (12) According to Professor Peter Bell, vice president of the Royal College of Surgeons, “family members who donate kidneys to ailing relatives” ought to be  remunerated “for the inconvenience caused in terms of the convalescence period, time off work, and so on.” (13) One of Britain’s leading transplant surgeons, Dr. Nadey Hakim, has called for the legalisation of payment for kidney donations since he feels that the ” trade is going on anyway, why not have a controlled trade where if someone wants to donate a kidney for a particular price, that would be acceptable?. If it’s done safely the donor will not suffer.” (14)  “The Department of Health is considering softening the rules against payments to donors, in a bid to clear the backlog of patients awaiting transplants.” (15) Then there are people who find organ sales to be beneficial to the poor owing to “a net flow of cash from the richer” but feel that such sales may adversely affect the ‘cadaveric donation of organs other than kidneys” (16) “The severe shortage of kidneys for transplantation has induced Israel’s health ministry to make a 180 degree turn in its policy and prepare a bill allowing compensation to be paid to people who donate a kidney for transplantation.” (17)

Liberal thinking is a not a  new phenomenon. More than  a decade ago, people realized that prohibition on payment for organs was “overly broad” (18) and “a market for organs is morally and ethically superior to the current altruistic procurement system” (19) The Council on Ethical and Judicial Affairs, American Medical Association  in their report, accepted for publication  on September 16, 1994, concluded that “No incentives should be allowed for organs procured from living donors” but strongly argued in favour of financial incentive to “prospective donors” for “future contracts” of cadaveric organs. (20) Even those who are not in favour of financial incentives feel it is worthwhile  to subject the idea  to “market test” through “carefully evaluated pilot programs” (21) While some feel that “paid donation is more transparent than other situations where altruism and voluntariness cannot be established” (22) Others  believe that in the event of reversal of existing moral positions “the profession will suffer a serious setback” (23) Even those who oppose monetary consideration in lieu of organs feel that donor’s recognition by means of  “awards, plaques and ceremonies” (24) would be a step in right direction. There is also a view  that “Human behavior can be shaped and manipulated by incentives, financial and otherwise” (25) However, people who feel procuring organs for a consideration is not unethical are cautious while making their views open because of the fear of strong public reaction.

At times one feels persuaded to conclude that organ sale is more ethical than presumed consent. On one hand the ethicists  talk of informed consent while on the other they practice presumed consent. This is a striking example of double standards.  Those who are dead do not lose personhood. A “person is living one moment and a cadaver the next” (26) Sale is a conscious decision  taken  by a  person after considering all aspects of the matter and is fully consistent with individual autonomy unlike organ removal based on presumed consent, which is devoid of any participation by the person concerned.

Essential questions and values

Denunciation of organ sale reflects a kind of emotionalism rather the principlism. The basic ethical principle involved in organ transplantation is whether a person has a right to enjoy life on the basis of organs belonging to others. Once we choose to answer it in affirmative we concede that we are prepared to inflict harm on others in order to improve our health or to prolong our life. Thus we sacrifice the long cherished principle of non-maleficence in medicine. Whether the organs come through donation, gift or sale is a matter of individual choice and circumstances. Even if a persons gives his organ without any consideration he suffers harm to his body. In this context it may be worthwhile to refer to the Guiding Principles adopted by the Forty-Fourth World Health Assembly in May 1991 which have been the touchstone of legislative strategies in many jurisdictions, including India. (27) Guiding  Principle No. 3 states “Organ for transplantation should be removed preferably from the bodies of deceased persons. However, adult living persons may donate organs, but in general such donors should be genetically related to the recipients. Exceptions may be made in the case of transplantation of bone-marrow and other acceptable regenerative tissues.” These guiding principles are an express example of  dominating attitude of the few by laying rules of conduct for the rest of the world. It is a fact that in every gift or donation some kind of expectation is involved though it may be different from a material consideration. In case of live organ donors the organ is donated to a particular person who, in fact, may not be the neediest or the most deserving keeping in view the depth of illness, period of waiting, age, family circumstances, capability to afford post-transplantation therapy  and other criteria. This means that the act of donation  is tainted with considerations of personal relationship, choice and preference which in other words means that the donation is not a candid act of altruism or human solidarity, rather it is  motivated by desire to save life of a near and dear one which may, at times, be in order to secure one’s own comfort and future. Such urges and motives  also constitute consideration since they are aimed at pleasure and fulfillment. Even a donation made to a stranger is not without consideration which in such cases may be in the nature of discharging a religious duty, correction of wrong done in the past, mental or moral satisfaction or the lure to become a good Samaritan. As such, in order to determine the moral content of organ donation/sale and before embarking on any moral shift, following questions need to be addressed

1.   Who owns the organs?

2.   Does an individual have a right to organ transplantation?

3.   Why should the human organ and tissues not be exchanged for a consideration?

4.   Is organ sale contrary to the established values in medicine?

5.   What constitutes consideration, only the material gain or other kinds of gratifications also?

6.   Is the urge to survive against a terminal illness by buying organ and the urge to survive against poverty by selling organ inhuman or immoral?

7.   Which is the greater evil? To compel a person to die of a curable illness or to allow a person to sell his/her organ in order to save the life of a fellow-being ?

8.   Are there any other ways to ensure availability of organs to the needy except sale?

Once the practice of organ donation by the genetically related and also by strangers, based on altruism, has been accepted as ethically sound following components of organ removal stand morally vindicated-

(a)   A person’s expectation to enjoy life with the help of organs belonging to others is valid

(b)   Breach of donor’s bodily integrity and the consequent harms are permissible

The above moral vindication is rooted in fundamental human values namely beneficence, compassion, altruism, sacrifice, human solidarity, mutuality and reciprocity. All ethical concepts and strategies ought to be founded on these basic human values. These are the values which impart strength and endurance to human beings as a cohesive society. Judged on these values a person’s act of severing his/her organ in order to liberate a fellow  being from a terminal illness or to save his/her life cannot be dubbed as immoral simply because the act is accompanied by a reasonable material consideration. “when a person sells anorgan he or she acts both selfishly, in advantaging him- or herself,and altruistically, in contributing to a publicgood” (28) Presence of consideration is not a sufficient reason to transform an otherwise pious act in to a sin.  Otherwise, selling water to thirsty will be an equally big sin, rather bigger.

To equate an organ vendor with a criminal committing heinous crime like murder, robbery or theft, as is reflected in the legislative strategies of almost all jurisdictions,  is a monstrously misconceived act. A person who sells his organ does so because he knows that his organ is going to save the life of a fellow human being and as such he is convinced that he is not committing anything immoral or inhuman. Had he known that his act would lead to loss of life, property or inflict any other kind of injury on the buyer he would not have sold his organ. While a criminal does not have any such moral conviction or justification and commits the act solely for his personal gain, without caring for the loss or injury suffered by the victim. As such, it seems that the legislative strategies in the area of organ transplantation have not been realistic.

Donor and vendor compared

Donor                                                                                               Vendor

Injury and risk to the body                                                                    Do

Purpose of donation is to save life of a family     Purpose of donation is to save his/her  member or a fellow human being                         own life or the life of family member /

members and a fellow human being

Gain in terms of joy, satisfaction, goodwill                     Gain in terms of money and survival

Expectation of emotional or material support     No such expectation

and social security in case of donation to a near

relative such as wife, father, mother, sister,

brother, son or daughter

Free and informed consent is not possible                      Free and informed consent is not

owing to emotional stress and fear of losing                   possible owing to pressures of

a near relative and the consequent  loss of                     poverty and insecurity

security and support

Thus it may be seen that although the donation seems an innocuous and charitable act and the sale a commercial and profitable exercise there is not much difference between the two in terms of bodily consequences, purpose, intention and motive. It may be noted that sale, gift, donation and lease are rooted in recognition of property rights and which particular course is to be adopted for the transfer of property depends on the choice and circumstances of the parties.

Arguments against financial incentive and sale:

Moral arena has a vast scope of disagreement. One’s attempts to address the crisis of organ scarcity (29) may appear “satirical response’ to the other. (30) “In donation matters, emotion is a key factor” and “Live tissues and organs are not plain goods like drugs or pieces of equipment.”(31)  A  “loved one’s body is more than a piece of meat to be sold to the highest bidder and for this reason the “firefighters at the world trade center kept watch for months to discover and recover their deceased relatives and friends.” (32) The “integrity of the human body should never be subject of trade” and “it dangerously undermines human dignity by promoting the gloomy overlapping of human being and marketing” (33) There is a feeling that marketing of organs will lead to “redistribution of healthy organs from the poor to non-poor.” (34) as ““organ procurement will be increased only by contributions by the poor.” (35)

Policies on organ transplantation reflect unique social paternalism. Objections against sale of organs such as “(1) the dilution of altruism in society; (2) the risk that the quality of donated organs would decrease; (3) doubts about the voluntariness of those who accept financial incentives for donation; and (4) the treatment of human beings and their parts as commodities.” (36) do not  reflect an objective approach.  Recent critics of markets in organs give two main reasons to support their opposition (1)  “the integrity of human body should never be subject to trade” (2) a system is unethical “when it penalizes the weakest people and exacerbates discrimination based on census” and generates “the risk of exploitation of vulnerable donors” (37)  Some are more skeptical and feel that the “poor of the developing world could become a vast reservoir” of organs for the developed world  (38) and that the poor in a “starved country” can never be “fully informed and autonomous donors”. (39) Others feel that it amounts to  “exploitation of potential donors” (40)

Arguments against organ sale are thus grounded in two broad considerations: (1) sale is contrary to human dignity (2) sale violates equity. Let me examine them one by one.

Sale is contrary to human dignity?

In the contemporary ethical deliberations human dignity has become a very handy tool to  measure the ethical content of biotechnological applications, at times, without appreciating its true nature, ambit, and implications. It is not with in the scope of this paper to deal with human dignity in its entirety but it may however be worthwhile to know as to what it means in its essence. Essentially speaking, human dignity is an expression of human content of Homo sapiens. It is a reflection of properties or virtues due to which human creature is known as human being. These are the characteristic or attributes which are unique to human race and are not possessed  by any other living form.  What are these virtues? These virtues, known in the Vedic thought as Dharma, are ten in number namely love,  trust,  righteousness, compassion,  tolerance, fairness, forgiveness, beneficence, sacrifice, and concern for the weak. With these human virtues in mind, any act done to save the life of a human being or to liberate him from suffering cannot be construed as contrary to human dignity. The presence of a consideration does not alter the basic content of an act like organ sale which is grounded in the need to save at least two human lives, one from terminal illness, the other from hunger. Human dignity does not contemplate that the people should be forced to die a premature death owing to curable illness or hunger and their family members should be left to starve. Rather, it will be contrary to human dignity to promote such an act. Matter of payment is a logistical dimension, not the substantial aspect. Retrieval of organs from the dead by presuming consent on their behalf or the act of declaring a person dead in order to remove organs from his body are the devices discovered solely to augment organ supply but they are not treated as contrary to human dignity. Prohibition on sale makes the matters worse  by restricting transparency, fairness and choice and by generating arbitrariness, fear and bribes.  Vendor and buyer attain  vulnerability owing to unwarranted legal component which brings in many players such as police, lawyers, adjudicators and  social activists each with its own philosophy and interest thereby transforming a candid activity in to a highly complex exercise..

It is significant that the concept of human dignity is being selectively applied, in case of certain tissues only. Blood, bone marrow, sperms and eggs are being openly sold and  a woman  can “command $ 50,000 for her donated eggs” (41) but their sale, it seems, does not attract  notions of human dignity.

The argument that there cannot be genuine and free consent to the sale of organs is not sound. In fact such an argument is an antithesis of the concept of autonomy. The decision to sale organ taken by a person after considering all circumstances, consequences, options and possibilities cannot be disregarded by others on the ground that it has been taken under “undue influence or inducement” The individual is the best judge to decide as to what is best for him under a given situation and so long his decision does not affect others he cannot be stopped from acting upon his decisions. If the vendor is not able to give free and informed consent owing to pressures of poverty and the lure for money, the buyer is also not able to give such consent owing to pressures of illness and urgency of saving his life. The donor too is unable to give free and informed consent owing to fear of losing a near relative and the consequent insecurity and loss of support. Thus none of the parties involved is capable of giving free and informed consent owing to compelling circumstances. It means that the whole exercise of organ transplantation is not consistent with the principle of free and informed consent and therefore it is unethical. Why should then only the vendor be declared an offender?

Arguments linking  person’s autonomy to bodily “integrity’ or “fullness” and thereby declaring organ sale as “misuse” of  “our autonomy” (42) appear misconceived because if that is the case “integrity’ or “fullness” is breached in case of donation also, which is not considered to be unethical..

In order to reconcile with the failure to provide organs to the needy various considerations such as old age, associated diseases, bad prognosis and irresponsible behaviour etc. are brought in to exclude a number of potential organ recipients, knowing fully well that in such cases “the alternative to transplantation is death” (43) Organ scarcity has polluted the moral concepts and some feel “alcoholics should be given lower priority  for a liver because of their moral vice of heavy drinking” (44) and “lung transplantations” should not be offered “to people who smoke or have other substance abuse in the last six months” (45) Despite the fact that brain death and human death are not the same, the definition of death has been liberalized in order to give “incessant push to expand the pool of potential organ donors” (46) Thus, prohibition on sale is not without heavy costs which include untimely death, poor quality of life, higher disease burden, moral bias and premature certification of death. Is it consistent with human dignity?

Sale is violative of equity?

1.   The apprehension that the organs will become costly, going beyond the reach of common man is not true. Costs can always be controlled by the state by regulatory mechanisms as is being done in case of other goods and services. Furthermore, socio-economic inequalities reflect themselves in all walks of life, not only in organ transplantation. The whole healthcare system is subject to market forces. Many drugs, equipments, appliances, procedures and services are prohibitively costly and are not accessible to all those who need them. In many jurisdictions, they have to be imported from the developed and industrialized countries which, at times, monopolize their trade. Despite strong objections from the public who desire healthcare as a welfare measure there has been increasing commodification of healthcare services. Organ transplantation is also a part of this overall milieu.

2.   Purchase of the organs is likely to have only marginal impact on the cost of transplantation procedures. In many countries, including India, where there have been reports of organ trafficking, kidneys are sold for as little as 200-500 US $ while the reports on total cost of a kidney transplantation vary widely, ranging from 1000 US $ (47) to 8000 US$ (48)  Dr. Raymond Crockett, debarred from practicing in Britain in 1990,   for professional misconduct, arranged kidneys from Turkish people for 2500-3500 Pounds but charged 66000 Pounds from the patients for each transplantation. (49) This means that cost of organ is just a fraction of the total transplantation cost which, in fact, is much higher if the post transplantation  immuno-suppresive therapy and the other follow-up care is taken in to account. The apprehension in some quarters that organ sale will create a market mechanism that will enhance the transplantation costs is unfounded. Rather, the free availability of organs will reduce the costs of transplantation by curbing the expenses incurred on clandestine operations and the middle-men who are invariably associated with the organ trade, as is clear by the recent exposures in London (50) and Punjab (51)  Organ transplantation is a costly medical intervention, mainly because of the high fees of  the surgeons and others involved in the process.  Organ sale therefore is not likely to enhance the transplantation costs substantially.  Moreover, in case organ sale is legitimized the cost can always be regulated by the state as is being done in case of other commodities. A better option to reduce the transplantation costs is to regulate the surgeons fee, nursing home charges, prices of equipments, appliances and drugs.

3.   As regards the concern that once organ sale is legitimized organs will mainly be sold by “those who cannot afford to keep their organs”, (52) the matter requires deeper examination. As per the available input, in almost all cases, organs have been sold by persons in the state of abject poverty. In one case when I asked an organ seller as to why he sold his kidney his reply was devastating: “I had nothing else to sale!” Persons surrounded by such brutal poverty and social deprivation do not have many options. Even when their organs are intact their lot is miserable as they suffer from hunger, diseases and scorn. Society has so far done nothing to alleviate their suffering. Selling of organ may provide them with some additional means and prolong their existence. If organ sale amounts to exploitation of the poor it is a continuum of long drawn process of their exploitation watched by the society for centuries. They have been selling all that they possess in order to continue their existence. At the end, organs are the only source of money to prolong their existence for some more time. How can the society stop them from this act unless the society  provides them with adequate means to survive.  Why is this sudden concern for the poor? A society passive to their problems for ages has got no authority to interfere with the arrangement evolved by them to safeguard their survival. In case society truly feels that they should not sale their organs their genuine needs should be addressed so that they are not forced to sale their organs. What kind of morality is this to snatch from the poor the only asset offered to them by the Nature? The prohibition on sale of organs has worsened the  poor’s  lot. Buyers quite often refuse to pay or do not pay the agreed price. The vendor cannot assert his claim because of the fear of being prosecuted. Thus the strategy which was evolved for protecting the poor has been causing just the opposite impact. There is one more aspect to this issue. If a person who is not poor and in whose case there is no possibility of being exploited chooses to sell his organ will he be allowed to do so? If not, it means that the reasons for prohibiting organ sale are grounded in some other considerations, not in the concern for the poor..

4.   The argument that permitting organ sale is not an equitable proposition since it restricts availability of organs only to affluent sections of the population is misconceived.  How far is it fair to deny healthcare to those who wish to buy it through their legitimate money, earned by honest means, on the ground that it is not available to others due to their inability to pay? And if that is fair, why have we chosen a system of pricing the healthcare  despite the fact that many cannot pay even for basic necessities such as food and drinking water? Ours is an essentially heterogeneous society and equity has to be defined in realistic and pragmatic terms.

5.   Prohibition on organ sale generates inequity by exerting undue pressure on the near relative who  may “feel compelled to overlook the risks of organ donation when their loved one stands to receive so great a benefit” (53) This pressure amounts to coercion which is as bad as that exerted by the poverty and as such “should equally rule out donation” (54) The sale provides a wider choice and the vendor may be much more healthier than the donor and the organ may be much more compatible with the recipient. Furthermore, during “removal of a vital part like kidney the donor is subjected to a major surgical intervention which is not without risk. The recipient who is already sick is also exposed to a major surgical procedure with possibilities of complications. This means that two members of the same family are placed in a vulnerable situation thereby affecting the fate of other members of the family also. In case of any complications or untoward outcome the said family may be the victim of serious adversities. As such it seems safer to accept donation from a member of a different family” (55)

6.   There is also a concern that there  may be trans-national movement of organs. The affluent countries, with their money power,  may drain organs from the poorer countries thereby imparting undue vulnerability to their population. This again is a problem of regulation which can always easily be handled by banning exports of human organs or by adopting other suitable strategy.

7.   The purpose of allowing organ sale is not to improve health status of the sellers or to award them “a long-term economic benefit”, as conceived by some (56) Such economic or health benefit does not occur in altruistic donations too but they are permissible. The reasons for permitting organ sale are grounded in the concern for saving lives of terminally ill patients with the help of available medical knowledge and technology by curbing “a contrived shortage created by existing organ procurement policies.” (57) As regards poverty and ill health, they are rooted in factors other than organ sale and need to be addressed accordingly.

Conclusion

Those who were earlier destined to die carry a hope to survive, provided the biotechnology is allowed to unfold itself. It may be worth appreciating that medicine is always need-based i.e., it is an aid to overcome physical or mental  disability or disease. It cannot be equated to justice, art, or spirituality. It is also worth remembering that the right to relief from pain and suffering is intrinsic i.e. it is non-divestible. Any social policy leading to infringement of such a valuable right has to be founded on equally vital considerations.  Donor and recipient are the major stakeholders in policies relating to organ transplantation and as such any policy that does not take into account  their perspectives and  views is not valid. Organ sale is essentially rooted in the urge to survive. Recipient wants to survive against a terminal illness, seller wants to survive against povertyThe ethicists continue to debate the moral content of biotechnological promises, subordinating therapeutic advantages to ‘higher’ goals but I am forced to draw the same conclusion which I did in  1995 i.e.,

“Neither  the diseased persons nor the genetic relations provide an answer to trading in human body parts.”

“Live human body constitutes a vital source of supply of organs and tissues and the possibilities of its optimum utilization should be explored”

“There is no scope for dogmatic postures and open-mindedness should be the approach while dealing with the issue of organ transplantation”

“Society owes a duty to save the life of a dying man and in the event of failure to do so, it is absolutely immoral to interfere with his own arrangements by making unrealistic laws.”

“The scarcity need to be urgently overcome otherwise unwarranted trade and crime are liable to thrive”

“Commercialization should be curved by making the enforcement agencies efficient and not by depriving a needy person of his genuine requirements. Legislative craftsmanship lies in providing an answer without curtailing freedom of the people” (58)

There is near universal agreement that human tissues should not be commercialized. But, unless the expressions like ‘human’,  ‘ownership’ and ‘commercialization’ are appropriately conceived and defined the ethics will remain obscure.

References

(1)        Kishore R. R., Organ Transplantation: Consanguinity or Universality. Medicine and Law (1996) 15:93-104

(2)        Heidelberg Annette Tuffs. Surgeon suspended in transplant row. BMJ    2003;326:1164 (31 May)

(3)        Annette Tuffs Heidelberg. German surgeon under investigation over organ trading. BMJ 2003;326:568 ( 15 March )

(4)        Judy Siegel-Itzkovich. Israel considers paying people for donating a kidney. BMJ 2003;326:126 ( 18 January )

(5)        Kim D Arcus and Anthony S Kessel. Are ethical principles relative to time and place? A Star Wars perspective on the Alder Hey affair. BMJ 2002;325:1493-1495 ( 21 December )

(6)        Janice Hopkins Tanne. BMJ 2002;325:514 ( 7 September )

(7)        The United Network for Organ Sharing (UNOS) http://www.unos.org

(8)        Cloning of Human Beings. Report and Recommendations of National Bioethics Advisory Commission, USA, June 1997, pA7

(9)        Janice Hopkins Tanne. International group reiterates stance against human organ trafficking.  New York. BMJ 2002;325:514 ( 7 September )

(10)      The Bellagio Task Force Report on Transplantation, Bodily Integrity, and International Traffic in Organs. D. J. Rothman, E. Rose, and T. Awaya et al. Transplantation Proceedings, 29, p2739-2745 (1997)

(11)      “Paying respect to organs” Editorial in Lancet Vol. 353. No. 9170, June 19, 1999

(12)      Janet Radcliffe Richards. Nefarious Goings On. The Journal of Medicine And Philosophy.. 21:375-416, 1996 p377

(13)      Owen Dyer London. Organ trafficking prompts UK review of payments for donors. BMJ 2002;325:924 ( 26 October )

(14)      Owen Dyer. Surgeon calls for legalisation of payment to kidney donors. BMJ  2003;326:1164 (31 May)

(15)      Owen Dyer. Organ trafficking prompts UK review of payments for donors. BMJ 2002;325:924 ( 26 October)

(16)      Jeremy P. Wight. Proposal is problematic. British Medical Journal 325 12 October 2002, 835

(17)      Judy Siegel-Itzkovich. Israel considers paying people for donating a kidney. BMJ 2003;326:126 ( 18 January)

(18)      Hansman , H. (1989) The Economics and Ethics of Markets for Human Organs. J Health Polit Policy law (Spring) 14(1), 57-85

(19)      Barnet, A.H., Blair, R.C. and Kaserman, D.L. (1992) Improving Organ Donation: Compensation Versus Markets. Inquiry 29, Fall 1992, 372-378

(20)      American Medical Association (AMA). Financial incentives for organ procurement: ethical aspects of future contracts for cadaveric donors. Council on Ethical and Judicial Affairs. Archives of Internal Medicine 1995;155:581–589

(21)      DeJong, Drachman, Gortmaker et al. (1995) Options for Increasing Organ Donation: The Potential Role of Financial incentives, Standardized Hospital Procedures, and public education to Promote family Discussion. The Milbank Quarterly 73(3), 463-479

(22)      Editorial “Not everything has a price” Cahata’s Newsletter Issue 26 May 2002 p1-3

(23)      Donald Joralemon Shifting ethics: debating the incentive question in organ transplantation .J Med Ethics 2001; 27:30-35

(24)      Jeffrey Kahn. Making Organ Donation a Better Deal. Bioethics Examiner. Summer 2002, Vol. 4, Issue 2, p4)

(25)      Daniel Callahan Medicine and the Market: A research Agenda. Journal and Medicine and Philosophy 1999, Vol. 24, No.—-, pp—–, quoting Becker

(26)      Dukeminier, J. and sanders, D. (1968) Organ Transplantation: A Proposal for Routine Salvaging of Cadaver Organs. New England Journal of Medicine 279, No. 8, 413-419

(27)      Resolution No. WHA 44.25 of the World Health Assembly

(28)      Harris J. Erin G. An ethically defensible market in organs. British Medical Journal 325 (2002), 114-5 (20 July)

(29)      Harris J. Erin G. An ethically defensible market in organs. British Medical Journal 325 (2002), 114-5 (20 July)

(30)      Rachel Abela. Tongue in cheek. British Medical Journal (20 July 2002)

(31)      Francois Mosimann. A market place for organs is not a realistic solution. British Medical Journal (25 July 2002)

(32)      Nancy K Oconnor. Ideational agnosia Rapid responses to): An ethically defensible market in organs John Harris and Charles Erin. BMJ 2002; 325: (25 July 2002).

(33)      Ignazio R. Marino, Claudia Cirillo and Alessandra Cattoi. Market of organs: unethical under any circumstances. Bitish Medical Journal. 23 August 2002

(34)      Stephan Jan. An ethically defensible market in organs? It depends.. British Medical Journal. 23 July, 2002

(35)      Ignazio R. Marino, Claudia Cirillo and Alessandra Cattoi. Market of organs: unethical under any circumstances. British Medical Journal. 23 August 2002

(36)      American Medical Association (AMA). Financial incentives for organ procurement: ethical aspects of future contracts for cadaveric donors. Council on Ethical and Judicial Affairs. Archives of Internal Medicine 1995;155:581–589

(37)      Ignazio R Marino, Claudia Cirillo and Alessandra  Cattoi. Market of organs is unethical under any circumstances. British Medical Journal 325 12 October 2002, 835

(38)     Stephen J. Wigmore, Jen A. Lumsdaine and John L. R. Forsythe. Defending the indefensible. British Medical Journal 325, 12 October 2002, 835-36

(39)      Francois Moslmann. The right to buy or sell a kidney. The Lancet. Vol. 360, September 21, 2002, 948

(40)      Jeffrey Kahn. Wanted: Tall, Smart and Fertile. Bioethics Examiner Spring 1999 Volume 3 Issue 1 p4,

  • 13 –

(41)     Jeffrey Kahn. Wanted: Tall, Smart and Fertile. Bioethics Examiner Spring 1999 Volume 3 Issue 1 p1

(42)      Cynthia B. Cohen.  Selling Bits and Pieces of Human to make Babies: The Gift of Magi Revisited. . Journal of Medicine and philosophy 1999, Vol. 24, No. 3, pp. 288-306, at p295

(43)      Volker H. Schmidt. Selection of Recipients for Donor Organs in Transplant Medicine. Journal of Medicine and philosophy 1998, Vol. 23, No. 1, 99. 50-74, p52

(44)      Walter Glannon. Responsibility, Alcoholism, and Liver Transplantation. Journal of Medicine and Philosophy 1998, Vol. 23, No. 1, pp 31-49, at p31)

(45)      Dr. Greg Snell, respiratory surgeon at Melbourne’s Alfred Hospital. Quoted in The Hindustan Times, Friday February 9 2001

(46)      Stuart Youngner and Robert M. Arnold. Ohilosophical Debates About the Definition of Death: Who Cares? Journal of Medicine and Philosophy 2001, Vol. 26, No. 5, pp. 527-537, at p527

(47)      Praveen Swami. Punjab’s kidney industry. Frontline. February 14, 2003 p115-117

(48)      “Kidney transplant racket busted”  The Hindustan Times. Thurseday 7 December, 2000

(49)      Doctor appeals against ban on kidney sales. The Times Saturday September 23, 2000

(50)      Owen Dyer. GP struck off after offering to “fix” kidney sale. British Medical Journal 325, 7 September, 2002, p510

(51)      Sanjay Kumar. Police uncover large scale organ trafficking in Punjab. British Medical Journal 326, 25 January, 2003, p180

(52)      Eike-Henner Kluge. Improving Organ Retrieval Rates: Various Proposals and Their Validity. Health Care Analysis 8: 279-295, 200, p283

(53)      Jeffrey Kahn. Dying to Donate. Bioethics Examiner Spring 2003 Volume7 Issue 1 p4

(54)      Janet Radcliffe Richards. Nefarious Goings On. The Journal of Medicine And Philosophy.. 21:375-416, 1996 p377

(55)      Kishore R. R., Organ Transplantation: Consanguinity or Universality. Medicine and Law (1996) 15:93-104

(56)      Goyal M., Mehta R. L., Lawrence J. S. and Sehgal A. R. Economic and Health Consequences of Selling a Kidney in India. JAMA. October 2. 2002 – Vol. 288 No. 13, pp 1589-1593

(57)      Barnet, A.H., Blair, R.C. and Kaserman, D.L. (1992) Improving Organ Donation: Compensation Versus Markets. Inquiry 29, Fall 1992, 372-378

(58)      Kishore R. R., Organ Transplantation: Consanguinity or Universality. Medicine and Law

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