Via Al Roth comes news of this Kenan Institute for Ethics profile of my colleague, Kieran Healy, which explores the question: Should there be a market in human organs?
But what is really wrong with having a market—a system for buying and selling—our own organs? Certainly, there’s little doubt that it would have some unpleasant aspects. There would be many cases where a wealthy individual bought a kidney from someone much poorer. The prospect of the poor literally giving up their bodies to the rich is enough to make many people recoil in disgust. . . .
In the end, there is less of a division between gift-giving and market exchange than we might think. Incentives are not incompatible with the kind of moral obligations associated with donation. We may wish for a bright line between virtuous gifts and selfish markets, but the boundary is constantly crossed, in both directions.
For example, gifts can be easy vehicles for getting people in your debt, or obtaining something for free, and people calculate very precisely what the “right” amount to spend on a present is when birthdays or holidays come around. On the other hand, markets routinely have strongly moralized aspects, as we take care to pay people in ways that signal our esteem for them. We discreetly reimburse people for their time, or give them an honorarium, say, rather than paying them in cash by the hour.
A lawful market in organs would probably be considered more legitimate if it resembled a gift exchange, as we see already taking place in the case of human eggs, where the language of donation predominates even though the eggs are bought and sold and prices are widely advertised. However, even today, with the exception of kidneys, you can’t get a transplant unless you have the insurance to pay for it, despite others’ willingness to donate their organs. So why should people feel any obligation to give to a system that serves those who need it so poorly?
I agree with Kieran that financial incentives for human organs are more likely to win social acceptance if they resemble the gift-based allocation systems that have already gained social legitimacy. And the oocyte market – a clearly market-based system with the trappings of gift, including the language of donation -- is a good example of this phenomenon.
In fact, as I’ve discussed before, this disconnect between market realities and gift narrative is an important feature of many taboo trades. By normalizing otherwise jarring transactions, gift narratives may facilitate markets that otherwise would stagnate under the weight of social disapproval. For those, like me, who believe there is social value in enabling the infertile to reproduce or those dying from kidney failure to live – and, by corollary, allowing those who consider themselves better off by the receipt of compensation in exchange for an egg or kidney – to do so, this is a good thing.
At the same time, though, the oocyte market example also illustrates the costs of denying market realities in favor of the pretense of gift exchange -- gifts in name only:
(1) Legal misfit
Gift-based exchange regimes are typically governed by a different set of legal rules than are market-based exchange regimes. We tend to recognize, for example, the possibilities for opposing interests and opportunistic behavior in a regime of market-based exchange. And many legal rules governing market-based regimes are designed with these considerations in mind. In contrast, we often assume (incorrectly, especially when the gift is one in name only) an absence of opportunism and an alignment of interests in the case of gift-based exchange.
(2) Social stereotypes
I do not know if, or how, this would play out in organ markets, but it has for some time concerned me with respect to reproductive markets, especially the oocyte and surrogacy markets. Scholars have long noted the presumption that many services provided by women, including reproductive and domestic labor, should be provided altruistically, despite their high economic value. Says Mary Anne Case, for example:
Much of what women have market power over, such as their sexual and reproductive services, they have long been expected not to commodify at all. Even when monetary compensation is allowed, it is often kept low and female providers are expected to be interested in rewards other than money.
The continued insistence that egg donors are, and should be, motivated primarily by altruism and the desire to help others, rather than by the desire for monetary compensation, threatens to reinforce gendered notions that the market activities of women are driven in large part by altruism and that women as a group are uninterested in reaping the full gains of trade from the provision of their goods and services.
The comparison to sperm markets is especially telling. The insistence on the altruistic motivations of egg donors is in stark contrast to the presumed motivations of sperm donors, who are recruited through materials that ask, “Why not get paid for it?” and advertise, “your sperm can earn!”
More directly, as Rene Almeling has documented, there is significant societal pressure for egg donors to profess altruistic motives, and oocyte donor agencies and consumers dislike egg donors who appear overly money-motivated. Do these attitudes affect compensation negotiations? Are prospective oocyte donors able to drive the hardest economic bargain without signaling a disqualifying character flaw—an overriding interest in monetary compensation? In the absence of accurate oocyte pricing data it is impossible to know for sure, but the possibility cannot be ignored.
(3) Market dysfunction
Treating market-based exchange systems as if they were gift-based can lead to a variety of distortions. For example, strict limitations on market exchange for products and services destined to be undersupplied by gift-based systems may lead to black and gray markets, whose participants are left without the regulatory protections that legal markets might provide.
And in the oocyte market, the narrative of donation has for many years distorted analysis of the market, facilitating open agreements to limit egg donor compensation of they type long considered per se illegal in less emotionally-charged settings. But rather than accepting the oocyte trade for what it is – a profitable industry -- the starting assumption has been that the egg market must differ from other markets because egg donors are engaged in a form of philanthropy that distinguishes them from suppliers in other industries. These restrictions on egg donor compensation are only now facing legal challenge, prompting a re-evaluation of the ethics of donor compensation limits among many in the fertility industry.
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In the end, gifts in name only represent a trade-off. On the one hand, the language of donation coupled with the realities of market-based exchange has the capacity to legitimate otherwise troubling exchanges, facilitating life-saving operations and parenthood for the infertile. At the same time, gift-in-name-only exchange has consequences for the social, legal, and market structure of these industries, and for the consumers, producers, and others, including the public-at-large, affected by them.
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