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Can Regulation Allay Opposition to Organ Markets?

Each day, an average of eighteen people die in the United States while waiting for an organ transplant. The U.S., like every other country except Iran, prohibits the sale and also has a shortage of organs. Thus, when a U.S. patient is unable to get a transplant from a willing family member or friend, that patient typically joins a long list of people awaiting transplants from donors. By the end of last year, that list had more than 120,000 people.

457344351In a forthcoming article, Professor Glenn Cohen at Harvard Law School identifies the most common objections to organ markets and posits some regulatory measures could be an effective response. These measures could help the U.S. transition to an organ market system, which some argue could alleviate the dire shortage of available organs.

However, organ markets also face numerous objections. The American Medical Association, for example, has objected that organ sales “dehumanize society by viewing human beings and their parts as mere commodities.” Others have argued that allowing people to sell organs would “crowd out” altruistic donations, leading to fewer donated organs and perhaps even fewer total available organs.

Other concerns focus on harm to organ sellers, such as from coercion, exploitation, and undue inducement. Poor people may be coerced into selling organs, Cohen explains, because they may lack any “reasonable economic alternative” to accepting a buyer’s offer. Likewise, organ sellers may face “undue inducement” from buyers by receiving “offer[s] too good to refuse,” but which leave sellers worse off than before selling the organ. For these reasons, critics have sometimes argued that organ markets will disadvantage people with fewer economic means, favoring the wealthy.

Cohen admits that organ markets do present potential for injustice, although he also points out the injustices associated with the current complete prohibition on organ sales. He argues that there is no reason to treat the current system as “a just baseline against which to measure the distribution that results when compensation is permitted.” After al donation-only systems tend to advantage only those with ample family or friends who are willing to donate an organ, Cohen points out. People with fewer such relationships find themselves at a disadvantage.

Cohen further argues that regulation could effectively address many of the concerns about organ sales. For example, regulators could establish price controls for organ sales, even perhaps allowing only non-monetary compensation (such as only allowing organ exchanges). Regulators could authorize only a select number of sales agents, perhaps even making the government the only legal purchaser. They could restrict the types of organs available for sale. Furthermore, under any regulatory regime, the government could prohibit advertisements for organ sales.

Cohen explains how each of the qualms about organ markets could be addressed through well-designed regulation. He attempts to “map normative concerns onto regulatory options” to envision different ways an organ market could be structured to minimize harm. For example, limiting what constitutes allowable compensation might ease concerns about corruption and avoid turning organs into a mere commodity.

Unfortunately, regulatory solutions for certain concerns to organ markets might undermine the most effective solutions for other concerns. For instance, Cohen notes that setting high fixed prices could prevent exploitation but might lead to undue inducement. Preventing undue inducement calls for low prices so that potential organ sellers will retain their ability to make truly voluntary choices to sell, rather than be swayed by attractively high payments. Thus, regulators attempting to structure an organ market would face the difficult task of deciding which concerns to address, and which to ignore.

Nevertheless, by closely analyzing potential regulatory mechanisms for addressing concerns about organ markets, Cohen’s article advances the debate over how organ needs should best be met. Cohen does not propose a single regulatory approach that will resolve all concerns; instead he identifies various regulatory tools, ranging from price controls to limiting types of allowable compensation, which could address discrete objections to certain aspects of organ markets. By presenting the strengths and weaknesses of different regulatory solutions, Cohen provides a roadmap for decision makers wanting to structure organ markets to address the concerns these markets raise while also overcoming the significant unmet need for organ donors under the current system.

Cohen acknowledges that some “normative concerns … justify conflicting forms of regulation.” But in the end, he stresses that people may need to prioritize their concerns about permitting organ sales in order to find a workable solution to meet the pressing demand for more organs.