Duke sociologist (and Crooked
Timber blogger) Kieran
Healy visited my Taboo Trades
and Forbidden Markets seminar this week to discuss his book, Last Best Gifts
(University of Chicago Press, 2006) -- a study of the social organization of
exchange in human blood and organs – as well as his research on presumed
consent laws (See, Do Presumed Consent Laws Raise Organ Procurement Rates? DePaul
Law Review, 55:1017–1043 (2006)) (PDF). Healy has also written several other articles about gift and
market exchange in human blood and organs and, in addition, studies the moral
order of market society (See, for example, Marion Fourcade and Kieran Healy, Moral
Views of Market Society. Annual Review of Sociology 33:285–311 (2007) (PDF.))
This was an in-person meeting that I’ve been eager to arrange for some time. I discuss the book every year, and recommend it to anyone interested in blood and organ exchange. I have also assigned the Moral Views piece in prior years, and naturally all of this work has impacted my own research on these and related topics. But I had not read the Presumed Consent article until now, which has been my loss. And if you haven’t read it, you really should rectify that, even if you have no interest in organ procurement or presumed consent rules.
Here’s why. In brief, the article is a comparative study of rates of cadaveric organ procurement in seventeen OECD countries between 1990 and 2002. Those in the United States (and other countries, including the UK) concerned with insufficient cadaveric donor rates frequently advocate a switch to a presumed-consent legal regime (as opposed to the US informed consent regime), as a quick fix to the problem of under-supply. This seems logical enough – in other contexts we have reason to believe that alterations to the default rule, and particularly from an opt-in to an opt-out regime, may meaningfully impact behavior. This is especially plausible when the law functions as some sort of signaling device about societal norms or when, as in the case of organ donation, choosing involves scenarios – death – that one prefers not to contemplate, perhaps causing inertia.
But in the case of cadaveric organ donation an additional argument is typically put forward in favor of presumed consent: the removal of next of kin from the decision-making process. Though the Revised Uniform Anatomical Gift Act specifies that family consent or concurrence is not required, the reluctance of procurement organizations in the U.S. to proceed with organ retrieval against next-of-kin wishes has been generally recognized.
Yet Healey finds that presumed consent laws do not make a material difference to the procurement rate. Importantly, presumed consent laws typically do not remove the next of kin from the procurement process. Although presumed-consent countries have somewhat better procurement rates on average than informed-consent countries, Healy concludes that this is not because of any direct effect of the law on individual choices. Instead, improved donation rates appear driven by substantial investment in the logistics of organ procurement – better training, clear delegation of responsibility, and a strong presence in hospitals, for example.
This is not the first finding of legal regime irrelevance, of course, but it’s a particularly interesting one, nonetheless. Moreover, as I’ve noted in prior posts, questions about the structure of organ exchange and other taboo trades are dominated by debates about motives – whether those participating in the exchange are behaving altruistically or selfishly. But Healy’s research calls into question the extreme attention devoted to this aspect of the organ debate. At the least, it has a tendency to obscure structural, cultural, and organizational differences that may largely drive differences in procurement rates, and distract attention from possible reforms that could increase procurement rates.
To get a flavor of the day, watch this interview with Healy:
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