Organ Donations: Sorting or Queuing?

The centerpiece of the United States organ policy is a flat prohibition against the use of “valuable consideration” to purchase a live or cadaveric organ.  One obvious consequence of this (indefensible) decision is the creation of chronic organ shortages that result in the death of thousands of individuals per year.  As happens in all other markets where prices are capped or exchanges are prohibited, queues form.  The money that would have been a simple transfer payment between buyer and seller can no longer be paid.  Instead, frustrated buyers invest in time by waiting in line for the goods or services that they so desperately need.  The upshot is that the buyers have to pay in time, not cash.  But their outlays in time are deadweight losses, not simple transfer payments. Organs are no exception to the general behavioral response to maximum prices, here set at zero. 

The queues themselves are, however, not stable because people at back of the queue are desperate to get to the front.  In dealing with gasoline queues, they could easily arrange to make a side payment to take the place of some lower demander who has obtained a preferred place on the queue.  Swaps of this sort are not possible with organ donations, because the list for cadaveric kidneys is tightly controlled by the United Network of Organ Sharing (UNOS), which has received a federal statutory monopoly to run the organ transplant system.  So other efforts take place to beat the queue.  If purchases of organs are not allowed, then individuals will advertise privately in order to persuade someone to make an organ gift.  That gift is almost always a kidney.  The risks to an organ donor of a kidney transplant are quite low (but by no means zero), and the palpable gains on the other side are the extension of life and liberation from the tyranny and pain of dialysis.
There is, however, at present resistance to individuals making end runs around the queue.  As Sally Satel reported in the May 29th issue of the Weekly Standard, (http://sallysatelmd.com/html/a-ws5.html) the guardians at the gate include transplant surgeons who have one-upped UNOS taken the position that they will not perform even legal kidney transplants if the organ gift comes from a stranger and not a family member or friend.  As Satel reports, Dr. Douglas Hanto, head of transplant surgery at Beth Israel Hospital uses the collective “we” to state “We are in favor of donors coming forward and donating to the next person on the waiting list. ”
As a defender of institutional autonomy, I would be the last person the right to challenge Dr. Hanto’s right to steer whatever course on organ transplant that he chooses.  But by the same token, that principle of institutional of institutional autonomy does not, and should not, insulate him from the savage criticism that Satel and others have launched in his direction.  The most obvious criticism is that he endorses the suicidal position that will result in practice in kill all live donations to strangers. As such it contravenes the fundamental principle of charitable conduct, which treats charity as an “imperfect” obligation.  Society may, by moral suasion, insist that individuals who are well off give charity to someone.  Because that obligation is imperfect, no legal compulsion may be used to seek compliance.  Nor does any particular individual have any claim right to some charitable contribution from any particular donor.  The matches are purely voluntary.  If therefore one person wishes to go beyond the call of duty and give to a stranger, the charitable duty is meet, and indeed exceeded.  We all  should be grateful for the gift, and not carp that it is not given to someone else first.
There is, moreover, a more systematic objection to Dr. Hanto’s ill-advised position that also needs elucidation.  Why do we imbue the UNOS transplant list with any legitimacy at all?  That list itself is not the result of any deep moral principle, but represents the only workable compromise that a statist organization like UNOS is able to put into effect.  As a matter of first principle, one sensible test for the allocation of organs in a nonmarket setting is to place them where they are likely to do the most good.  That question in turn resolves itself into two different issues. The first is how much benefit with the organ provide to its recipient, measured the number and quality of life-years obtained.  Next there is a moral dimension:  which individuals do we wish to help and why?
This second question blows apart in the face of any collective decision making.  Thus what committee wants to play God and decide whether to give the organ to a 40-year old mom like Lisa Cunningham, featured in Satel’s piece, who has suffered from diabetes all her life, or to a gifted but erratic scientist with no family to support.  It is easy to see how people could split on that choice, so that a government agency that has to assign places to hundreds of individuals would back off any effort to make the judgments that will pit one good person against another.  One unfortunate consequence of this collective system is that the first-in-time, higher-in-right principle leads to this odd inversion: organs go to the individuals who have waited the longest, and who are in the weakest condition.  They will get fewer years of benefit than others further down on the queue.  Seniority is not an attractive criterion for organ allocation.
It just here that the genius of voluntary gifts to strangers proves its worth.  On the first point, perhaps there is no committee who can decide between the scientist and the mom.  But there are many individuals functioning as a committee of one who are in a position to act on their decided views on the subject.  Now that collective deliberations are no longer required, some donors could prefer the moms to save a family, and others could prefer the scientist to save all humanity.  The public wins both ways.
So too on the question of timing.  Here moral intuitions may be hard to capture, but on balance I suspect that most individual donors would choose to give the organ to the person to whom, all else equal, it provides the longest term benefit.  This means that people who are on the queue for a short time will win out over others there for a long time.  Although UNOS may be so hog-tied that it cannot easily revise the queue, individual donors are not subject to that restraint. And their ability to pick donors will increase the likelihood that they will make some donation in the first place.  Hopefully, with time, as more short-termers get organs, the number of people languishing on the queue will shrink. 
Many years ago, the late George Stigler wrote that on all important questions of public policy, matters of allocation—here getting more organs—would “swamp” matters of distribution—here who gets which organ.  He is surely right: first and foremost we need to do anything to increase the supply, here subject to the unwise external prohibition against organ sales.
Viewed in this light, the UNOS list—albeit one filled with hidden minefields—is a technocrat’s contrivance that is necessary to avoid the pitfalls of collective choice that do not haunt individual owners.  It has zero intrinsic moral worth.  Dr. Hanto has it exactly backwards.  Any decision that circumvents the UNOS list for individual judgment should be welcomed for its moral seriousness.  How tragic it would be if the rigidities of collective choice remain impervious to correction by the generous acts of strangers.  Sally Satel is right to ask why mainstream medical ethicists have such a high tolerance for gratuitous cruelty. I wish I knew the answer to that one.

Comments

[Michael F. Cannon]

Fortunately, revulsion at UNOS is multi-ideological: http://www.cato-at-liberty.org/2006/05/25/ezra-klein-libertarian/.

[TJ]

Prof. Epstein,

You are right, of course, that broadening the list of non-price factors on which donees can compete will increase supply (broadening the list to include money may even make them balance). Economists and libertarians tend to care very little about distributive effects that occur in the process. But here is the extreme example that makes this disregard troubling as a practical matter:

Donor is a committed organ donor who is also a white supremicist. In the enforced, anonymous donee system, donor would donate to the next-in-line without knowing the race of the donee, since the probabilities strongly favor the donee being white. Allowing donor to choose, of course, donor would choose a white donee with 100% certainty. If there are enough white supremicists in the population, the line for blacks becomes much longer.

[The Law Fairy]

Do you have data on how many strangers volunteer to donate organs to specific persons? I'm inclined to think that it cannot be high enough that this is a Serious Issue. On the one hand, it's obviously correct that if I want to donate my kidney to a dying mother of four, I ought to have the right to do that even if I'm not family or a close friend (I'm also interested in how they determine who is a close enough "friend" such that non-close friends -- or recent strangers -- are forbidden from donating). But I think it's a valid and legitimate worry that this system of donations could be abused. What incentive does a stranger have for donating a kidney? I think you'll agree, Professor Epstein, that in general people act in their own self-interest. The vast majority of people, I would venture, derive no benefit from donating a kidney to a stranger. Thus, they will only "donate" if they are paid. Thus, making it harder to select persons to whom to donate chills the incentive to pay someone for a kidney, as it only moves the payer up one slot on the waiting list.

You note that the prohibition on purchasing organs is "indefensible." Do you mean to make the argument that people ought to be free to buy and sell organs on the market? I'd be interested to hear how any less "indefensible" this position is.

[priscieve]

Re blacks forming a longer line, if other blacks saw this happening they would start donating more &/or the price blacks would have to pay would go up creating more incentives for whites to donate to blacks thus driving the price right back down.

[Tim Lee]

TJ: If the white supremacist knows he might be forced to give his organ to a black person, isn't he more likely to simply refuse to donate an organ at all? Black people benefit from having white people in front of them removed from the queue. As long as at least some donors still give to the front of the queue, the white supremacist is benefiting black and white alike.

[TJ]

At the risk of hijacking this discussion, allow me to respond briefly:

Yes, enforced color non-discrimination may lead to less overall supply (white supremicists are less likely to donate than if they got to choose), but that is precisely my point: Enforced non-discrimination on any basis leads to less overall supply since you are restricting freedom of choice (and thus people's utility), but, sometimes, we might not like the allocative effects of those choices.

Money and race (or, for that matter, any other characteristic) are not that different in this discussion: X prefers to donate to whites because X is a white supremicist. Y prefers to donate to rich guy because rich guy will pay him money. Both X and Y may have donated anyway under a pure-charity anonymous donee regime, but they might not have.

Admittedly, our present enforced queue makes the only "permitted" discriminating characteristic, by default, the length of sickness. As Professor Epstein points out, that characteristic makes little sense since people may not want to donate to the sickest person, but at least no one (except a few hyperrational economists) finds that distasteful in any way. But the more freedom you allow people to choose, the more distasteful personal choices that might come into the equation.

[Tim Lee]

TJ: It's not clear to me that an anti-discrimination rule would help blacks at all. Rather, it would hurt them because blacks benefit when whites who are ahead of them in the line are taken out of the queue. Given that you're never going to force a white supremacist donor to give to a black person, isn't allowing him to give it to a white person better (for blacks as well as whites) than not allowing the donation at all?

[David J. Undis]

The generosity of live organ donors like is remarkable. But we wouldn't need many live organ donors if Americans weren't burying or cremating 20,000 transplantable organs every year.

There is a better solution to the organ shortage -- if you don't agree to donate your organs when you die, then you go to the back of the waiting list if you ever need an organ to live.

Giving organs first to organ donors will convince more people to register as organ donors. It will also make the organ allocation system fairer. About 60% of the organs transplanted in the United States go to people who haven't agreed to donate their own organs when they die.

Anyone who wants to donate their organs to others who have agreed to donate theirs can join LifeSharers. LifeSharers is a non-profit network of organ donors who agree to offer their organs first to other organ donors when they die. They do this through a form of directed donation that is legal in all 50 states and under federal law. Anyone can join for free at www.lifesharers.org or by calling 1-888-ORGAN88. LifeSharers has 4,497 members, including over 400 ominor children enrolled by their parents.

[Virginia Postrel]

In some cases, directed donations might involve racial discrimination, but DePaul law professor Michele Goodwin's research in Black Markets: The Supply ahd Demand of Body Parts suggests that, far from encouraging white supremacy, allowing discrimination would likely increase the donation of organs from blacks to blacks. Although African Americans are about as likely to donate organs as other groups, they make up a hugely disproportionate number of the people who need kidneys, and there is both anecdotal and survey evidence that many black Americans would be more likely to donate organs if they thought they would be used to save other black people. That racial identification may not be admirable, but if you want to save lives and relieve suffering you might want to allow it. It is pretty disingenuous to keep bringing up the KKK--hardly a major threat--when the reality is that black Americans are needlessly dying by the thousands under the current system.

[Two Comments]

Not to be inflammatory, but it is possible that black recipients might want kidneys that are given to them by a nondiscriminatory selection process, i.e., having a "black-power kidney" might make a black recipient feel as though he is alive because a nonblack person is dead. No one wants a "racial-guilt kidney".

I wonder why white supremacists are presumed to possess murderous intent. A white supremacist might, out of condescension, choose to have his "genetically superior" kidney go to a black person for the purpose of creating racial debt.