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: