The Faculty Lounge: Al Roth: The Pied Piper of Repugnance?

Stephen Dubner has labeled Al Roth (George Gund Professor Of Economics and Business Administration at Harvard University) the “dean of repugnance.” I prefer to think of Al as the “pied piper of repugnance,” with his many followers the children of Hamelin (who he doesn’t drown in a river, but rather leads to a magic cave where we talk about repugnance, kidney exchange, and other fun topics). All I know is that hosting Roth for a faculty workshop and visit to my Taboo Trades seminar last week was tons of fun and reaffirmed an impression previously formed from other sources and prior interactions: Al is incredibly generous with his time and expertise.

Roth was here to discuss his new draft, Organ Allocation Policy and the Decision to Donate, co-authored with Judd B. Kessler. I was the lucky workshop commentator, together with my colleague Kieran Healy (Sociology, Kenan Institute for Ethics). Kieran’s research interests are in market- and gift-based exchange in human blood, organs, genetic material, and cultural goods, and the moral order of market society, and it is always a treat to work with him.

The Kessler and Roth project is a laboratory study of an experimental game modeled on the decision to register as an organ donor, and investigates how changes in the management of the organ waiting list might impact the donation rate. Kessler and Roth find that an organ allocation policy giving priority on waiting lists to those who previously registered as donors (an example modeled on the regimes of Singapore and Israel) has a significant positive impact on registration. Although the increase in registration rates generated by the priority rule was also eventually achieved by experimental conditions creating a discount, that directly decreased the costs of donation, and by a rebate, Kessler and Roth conclude that the priority rule appears to have advantages over both rebate and discount, including simplicity.

For the lawyers among us, one of the more interesting aspects of the paper relates to the role of law and, particularly, the choice of default rule. The paper compares the priority rule to other policies designed to increase the number of registered donors, such as the “opt out” (a.k.a “presumed consent”) rule popular in some parts of Europe, and “mandated choice,” under which everyone (such as those applying for a driver’s license) are required to choose whether or not to donate. All three regimes are in contrast to the current U.S. “opt in” rule, under which everyone is presumed to be a non-donor unless they choose otherwise.

In contrast to so much work on the choice of donor registration rule, Kessler and Roth recognize that simply increasing the number of registered organ donors may not significantly increase the number of donated organs. As I’ve noted in prior posts, presumed consent laws are not the fix-all that advocates often assume. Although presumed-consent laws increase the number of registered donors, their effect on procurement rates is less clear. Specifically, presumed consent laws typically do not remove the next of kin from the procurement process, leaving a potential gap between registration rates and procurement rates.

So, the relevant question is not merely, “which rule increases registered donor rates?”, but also should be, “will any particular rule do a better job than the others of closing any resulting gap between registration rates and procurement rates?” (Note that the gap works both ways: Kessler and Roth report that the New England Organ Bank is able to recover organs from about half of all non-registered potential donors in New England by approaching next of kin.)

Kessler and Roth conclude that a change to the default rule “is likely to have legal consequences that could be detrimental to organ retrieval,” because it “may weaken the link between the registration decision and the legal clarity of the potential donors’ last wishes.” But this seems to me to overestimate the importance of law to current procurement practices and underestimate the understandable reluctance of procurement personnel to override the wishes of the deceased’s next-of-kin, even when legally entitled to do so. Overly cautious legal advice is a well-documented phenomenon in other contexts, especially when negative publicity is associated with legal actions, even those in which the defendant prevails.

Nonetheless, I think that Kessler and Roth may be right that a priority rule has advantages over both opt-out and mandated choice rules. Not because it increases legal clarity, but because it may increase the chances that potential donors have clearly signaled their wishes to next-of-kin, and thus mediates the space between donor wishes, procurement personnel, and next-of-kin.

Though it’s been suggested that the primary benefit of presumed consent lies in making the wishes of the potential donor more clearly known to her family, this strikes me as backwards. Although presumed consent could conceivably signal societal norms about organ donation expectations, and thus nudge next-of-kin donation decisions in that way, it seems a rather poor vehicle for signaling individual intent. A potential donor opting in to donation clearly indicates to her family that, at least at one point in her life, she affirmatively decided in favor of organ donation. But a failure to opt out doesn’t do so as clearly: did she even see this part of the form? Did she just not want to think about dying right now and so neglect to decide?

And mandated choice could be even worse on this front. A prospective donor unwilling to contemplate death and the potential future uses of her body may do nothing under an opt-in regime, leaving open the possibility of posthumous donation through next-of-kin approval. But, under a mandated choice regime, such an individual could well check no, thus signaling to family (perhaps incorrectly) a desire not to donate. So, Kessler and Roth conclude that “more than half of the people who are not currently registered under opt in would need to choose “yes” in mandated choice to increase the recovery rate.”

It seems possible that a priority rule, in contrast, could prompt potential donors to alert their family to their donation decision, because it carries with it significant benefits to the entire family (at least under the Israeli model). All of these conjectures about the role of the default rule on family decision-making are highly speculative, of course, but then so is most of what we think we know about donor registration and allocation regimes. Which is why projects such as this one by Kessler and Roth are extremely important.