Super Bowl Week OpEd

As the Super Bowl approaches, Phil Cook and I have an OpEd running in the Raleigh News & Observer and other venues. Below is a taste, but you can read the whole thing here. Our paper on this topic, forthcoming in Law & Contemporary Problems, is available here. 

Why ban payment to kidney donors but not football players?

BY PHILIP J. COOK AND KIMBERLY D. KRAWIEC 

February 01, 2018 01:06 PM

Super Bowl week rivets national attention on America’s most popular and lucrative sport, professional football. If stories of concussion and permanent injury to players make some fans uneasy, there is always the reassuring fact that the players volunteer for the job and are well compensated – so well compensated that there are untold thousands of young men who would gladly take their place.

Football is so ingrained in our culture that we generally accept this situation without much scrutiny. However, our research got us thinking about the stark contrast with another risky but valuable activity – kidney donation.

About 6,000 people per year donate one of their two kidneys. This selfless act has some risk to the donor, both from the surgery and years later when there is a chance the remaining kidney will fail. In return, kidney donors are rewarded with the knowledge they helped save the life of a loved one. They receive nothing tangible. Indeed, federal law bans compensation for kidney donors, as do the laws of all other countries except Iran (really).

So, why do we pay football players to entertain the public, but are unwilling to pay kidney donors to save lives?

The stakes in both cases are high, but much higher in kidney donation. The total value of NFL teams is about $60 billion. If, in some unlikely future, the risk of serious permanent injury to players led to a ban on professional play, that value would be destroyed.

Meanwhile, the ban on compensation for living kidney donation currently costs thousands of lives and billions of dollars in taxpayer money every year. The waiting list for a kidney now includes 100,000 patients, who for the most part are kept alive by renal dialysis at federal government expense. If they survive long enough, typically more than five years, in this debilitated state, they may hope to rise to the top of the list and receive a kidney from a deceased donor.

. . . 

Millions of Americans, not just NFL players, work in occupations that have a substantial risk of serious injury. Loggers, fishermen and others accept these risks in exchange for compensation. Extending that list to include kidney donors is just common sense.

PHILIP COOK IS TERRY SANFORD PROFESSOR EMERITUS OF PUBLIC POLICY AND PROFESSOR OF ECONOMICS AND SOCIOLOGY AT DUKE UNIVERSITY’S SANFORD SCHOOL OF PUBLIC POLICY. KIMBERLY KRAWIEC IS THE KATHRINE ROBINSON EVERETT PROFESSOR OF LAW AT DUKE LAW SCHOOL.

Comments

[anon]

Is there no difference between payment for labor or services and selling one's body parts?

Presumably, we have workplace protections so that persons are NOT subjected to permanent bodily injury as a result of their work. Yes, some occupations carry risks of injury. Most do, actually. But, we are comparing the certainty of intentionally inflicted bodily injury (removing a body part) to risks that we are doing everything, presumably, to avoid or minimize. Risks that we decry, not celebrate or use as excuses for a wrongful exploitation.

To be sure, you have pointed out a failure of that sort of regulation. Likewise, boxing. These failures are all the more salient because, like cock fighting, these sports are occasions for players to injure themselves for the entertainment of others.

But, can you actually use such blatant examples of a wrong, to justify yet another wrong (exploiting the poor to serve the rich with their very bodies)?

[Kimberly Krawiec]

Thank you for your comment, anon, though I disagree with it.

You state: “Presumably, we have workplace protections so that persons are NOT subjected to permanent bodily injury as a result of their work.”

There were over 5000 fatal work injuries in 2016 and many, many more serious but nonfatal injuries. In other words, there are many jobs more dangerous than kidney donation that do not result in the direct saving of lives. Yet we pay people to perform them, recognizing that in the absence of payment these services will be underprovided.

You also state: “But, we are comparing the certainty of intentionally inflicted bodily injury (removing a body part) to risks that we are doing everything, presumably, to avoid or minimize.”

If you think that we are doing everything possible to minimize the risk of serious injury in football, then you have not read much of the research on this topic.

You do correctly note that the risk of injury may be considered incidental in most dangerous jobs, whereas injury is the purpose of kidney donation. A few points:

1-This is specifically why we include boxing as a comparison, where injury is also intrinsic to the activity, rather than incidental
2-Why the incidental/intrinsic nature of the injury should determine the legality of payment escapes me. Surely the probability of injury is more important?
3-Injury is inherent to kidney donation whether paid or altruistic. Do you oppose altruistic donation as well?

You keep bringing up the point of “exploiting the poor to serve the rich.” As I have explained at length in the paper and in prior posts, the tax savings from transplantation over dialysis would enable transplantation w/o regard to ability to pay, just as is the case now. In fact, because the poor disproportionately suffer from End Stage Renal Disease, increasing the number of kidney donors may disproportionately help the poor.

Finally, there are many risky jobs disproportionately performed by the poor. For your argument to hold, you need to distinguish kidney donation from those other dangerous jobs.

[anon]

Kimberly

Thank you for your comprehensive response.

I think we are thinking about different issues, however.

First, I'm thinking about whether an employer can, legally, intentionally injure his employees, if consent is obtained?

I think the answer should be: no. You point out that workplace injuries are all too common, and this is true. But, we do not encourage such injury for compensation. Rather, we recognize that many activities entail risk (e.g., driving, but how does that make the case for paid kidney donation?). We strive to minimize risks; generally, we do not encourage employers to intentionally or even recklessly or negligently enhance injury (and punish those who do).

I don't think that primitive forms of entertainment, like football and boxing, are relevant at all to this discussion. To be sure, society no longer watches, in our coliseums, animals tearing the flesh from slaves. But, the public does flock to see the blood, in boxing and similar sports.

We ban cock fighting and dog fighting, because we recognize that it is cruel and debilitating to the psyche to allow ourselves to be so entertained. ANd, yet, we allow boxing!

Perhaps, however, not for long. Commentators are pointing out that, since the issue of long-term injuries in football has come to the fore, the popularity of football, albeit still staggering, is waning. And, some are saying in 25 years it will be gone. Likewise, boxing. Perhaps you are using as examples examples that are decried, not recognized as valid purposes for inflicting injury, and that recognition, it seems to me, affects the validity of your argument based on comparison to these primitive sports (If it is ok in football, why not in medicine?)

As for the exploitation of the poor, it is just a fact that someone has to donate, and someone else has to pay for the kidneys. Will the rich sell their kidneys for money? Would you? I think not. One suspects you wouldn't trade the risks and serious medical issues associated with removing one of your kidneys for money.

No, the reality is that the poor will sell their kidneys.

Who will receive these organs? Well, if we model this market the same way I understand the fertility market works, the rich primarily will receive these organs. (Just as there are ways to game the waiting lists, as we have seen so evidently in cases of celebrities.)

If you propose taxing the public, to pay poor persons to give up their kidneys and then "equitably" distribute these organs, then I believe we may have some very real legal and ethical issues. Causing the government to be the buyer and purveyor of human body parts strikes one, at first blush, as problematic.

Perhaps there is a problem here with supply that just can't be solved by inducing the desperate poor to suffer mutilation, injury and very real medical risks for money.

Again, think about the problem in personal terms (or, from behind the veil of ignorance): what if you were so poor that you would sell your eyes, or your skin, or your kidneys, just because you need money so badly? (Donation is obviously another matter, but, if donations were frequent, the supply issue wouldn't arise. Of course, family members and some others might suffer personal injury for loved one. Yet, that is not an issue of exploitation, I think we'd agree.)

Preying on and taking advantage of a sort of desperation, even if the ends are to benefit someone else, seems wrong. We must not start using the very bodies of the poorer members of our society as a means to ANY end.

[Ed]

Thanks for the op-ed and the response to anon. A couple of thoughts regarding the latter, particularly concerning the incidental/purpose distinction.
"1-This is specifically why we include boxing as a comparison, where injury is also intrinsic to the activity, rather than incidental"
It was reasonable for anon to focus on football, which seemed to be the occasion for the piece. I'm not sure boxing changes anything, though. One can say that forceful contact was always thought to be intrinsic to both sports, and that disabling/lasting injury was envisioned (mistakenly) as incidental.
"2-Why the incidental/intrinsic nature of the injury should determine the legality of payment escapes me. Surely the probability of injury is more important?"
I agree with you that probability is very important, if not more important. But the intrinsic/incidental does seem important too. I think football was originally a more violent, no-holds-barred game that escaped a ban only when substantial rule changes were put into place; after that, the premise of its continuation was that the sport could be played by most without injury at all, and occasionally additional precautions were introduced. This origin story, in which harm is incidental, goes a long way toward answering the "why" question: that is, it's not just that (entertainment)>(recipient health), but that the practice was established on the premise that no particular harm to a participant was expected...and, because it was not the very objective of the sport, it was reasonable to suppose that harm might well be reduced further. If we now accepted -- as perhaps we should -- that the risk of injury was inevitably as high or higher than for invasive surgery, then we could focus solely on the pure question of whether a stipulated harm is the purpose or an incident; as it stood and perhaps stands, purpose is actually related to prospective consequences as well.
"3-Injury is inherent to kidney donation whether paid or altruistic. Do you oppose altruistic donation as well?"
This is to me closer to the core of the question. This may be addressed in your other/longer work, but the flip side of the comparison you're making is this: if you or anyone has health-related objections to pro football, are they different than as against college football? If free tuition etc. make college football too much like pro football, what about high school or sandlot football? It isn't easy to take relative youth out of these comparisons, but they might make the overall comparison more fruitful.

[Kim Krawiec]

Hi Ed - thanks for your comment and for reading the OpEd and comments. As to the intrinsic/incidental distinction, the difference (and to be clear, I am not defending this distinction as a policy matter, just accepting it as a given for purposes of argument) between football and boxing is that the way to win a boxing match (either through points or knockout) is to injure (make contact w/) your opponent - that is the point of the sport. The point of football, in contrast, is to move the ball into your opponent's end zone. In theory, this can be done w/o injury (or even contact) to players. You are correct that injury was, and is, always expected (which is why I find the intrinsic/incidental distinction unhelpful, as compared to risk assessments). But that is different from saying that injury is intrinsic to the sport.

You state: " I think football was originally a more violent, no-holds-barred game that escaped a ban only when substantial rule changes were put into place; after that, the premise of its continuation was that the sport could be played by most without injury at all, and occasionally additional precautions were introduced. This origin story, in which harm is incidental, goes a long way toward answering the "why" question: that is, it's not just that (entertainment)>(recipient health), but that the practice was established on the premise that no particular harm to a participant was expected.."

I can see why you would say this, as it is the origin story that is often told. However, it is flatly inconsistent with the reality of turn-of-the-century football reforms and injury data. As we explain in the longer paper (not the OpEd), football survived its early crises, in which its very existence was threatened, not because it became safe but b/c of a concerted PR campaign, influential advocates, and rule changes that eliminated the most obvious safety issues (e.g. death on the field). But it always has been and remains a violent sport.

I should note for both you and anon that there are numerous activities in which injury is intrinsic to the activity for which participants are paid: plasma and oocyte donation, boxing, MMA and other fighting sports (as I've mentioned), and being a pharmaceutical research subject, for example. I'm sure that we could think of others. The benefits to including kidney donation in this group far outweigh the costs.

Anon, thanks for your additional comments, though I think you and I are speaking past each other. You continue to refer to paid kidney donation as "preying on and taking advantage of" the poor, though you've provided no theory or evidence in favor of that conclusion. I repeat, many other paid activities are dangerous and many of them are performed by the poor. If you want to argue that paid kidney donation is particularly problematic, you need to explain why.

Finally, you urge me to "think about the problem in personal terms (or, from behind the veil of ignorance): what if you were so poor that you would sell your eyes, or your skin, or your kidneys, just because you need money so badly?"

First, there's simply no comparison between selling an eye or skin and selling a kidney (a low-risk proposition, as I have already explained). The better comparison is to egg donors, who are paid -- in both cases, the procedure is low risk, though not risk free, and in both cases you are born with more of the item (eggs or kidneys) than what you need. As to thinking in personal terms, are the thousands of people who needlessly die each year for lack of a kidney transplant not also worthy of our consideration? Why not put yourself in their shoes? If one person desperately needs a kidney to survive and another has decided - on a fully informed and voluntary basis - to provide it, why do you think you have the right to interfere with that choice? There's nothing inherently irrational about a willingness to accept medical risk in exchange for money, especially when that medical risk is far, far less than the risk of numerous activities that people perform each day, for money and for free.

[anon]

Ahh ... here's the rub.

" on a fully informed and voluntary basis - to provide it, why do you think you have the right to interfere with that choice? "

I don't. And, so here's where I'd leave it:

If the decision to donate a kidney is now permitted, why not leave it at that? The point you seem to elide is that money is unduly coercive when one is poor ... and this point is very well illustrated by the fact that you seemingly would not give up one of your kidneys, even for money, despite your concern for all those folks who desperately need a kidney.

One might undertake this risk for a friend or relative, one supposes. Seemingly, though, not many people do voluntarily give up their organs (while living) and you don't seem to be proposing an education campaign to induce this. If a sufficient number of volunteers were found, there would be no need to buy kidneys.

If the purchase is to occur, the money must come from somewhere: in the private sector, from the rich, or, the government must tax everyone and buy the kidneys for redistribution. The former model is, I believe you would agree, truly horrifying (the rich use the poor as vessels for new organs); the latter, as said above, presents a whole set of unique legal and ethical issues.

Either way, only the poor would sell kidneys, because, only were you poor enough, would you consider this intentionally inflicted mutilation and medical risk for money. (Again, this seems to be the crux of your entire argument, because there aren't enough people, even after being "fully informed" who will so donate?)

The shortage of organs is without question a dire problem. But, inducing the poor to put their very bodies on sale to solve it seems to be, to me, an incredibly poor solution.

[twbb]

Many financial transactions are coercive for the poor; that doesn't mean they should be allowed to do it. That's just paternalism. If the seller and the buyer both end up in better situations because of the transaction, then maybe we should let it go forward, as uncomfortable as it makes a certain class of upper-middle-class academic.

[anon]

If one enjoyed mutilating others (i.e., a sadist) would we permit it, provided the victim consents, for compensation?

There are two variables: the purpose (for the sadist, pleasure derived from hurting others) and the effect (the degree to which the mutilation actually injures the victim).

We could all agree, I think, There is no reason to permit a sadist to compensate victims simply to vindicate his immoral desire to derive pleasure from such injury.

We can identify plenty of bad purposes that involve enjoying the suffering of others that are tolerated, if not condoned (e.g., watching football and boxing, although these sports may be ushered out in the coming decades, for the very reasons under discussion and, as noted above, these sports have operated under the ruse that injury is not inevitable).

But not many practices are tolerated or condoned that involve a wealthy person paying a poor person to consent to an intentionally inflicted, permanent mutilation that will carry stigma, pain and suffering, and real medical risks.

(According to the National Kidney Foundation, in addition to a hospital stay, six month restricted activity, the donor will have a scar and possible long-term problems, including pain, nerve damage, hernia or intestinal obstruction (unfortunately, there are no national statistics on the frequency of these problems), high blood pressure, proteinuria, reduced kidney function.)

Of course, we can say that economic duress exists. Of course, some professions are risky, and some may actually entail probability of harm (e.g. soldiering). But, it is difficult, I think, to identify examples of a market, permitting one wealthy person to inflict intentional harm on a paid victim.

Kim argues that the purpose of paying the poor to give up kidneys (to benefit those who need kidneys and society as a whole) is beneficial, and not pernicious, even noble -- and thus outweighs the harm (the medical risks associated with removing a kidney, which she characterizes as "a low-risk proposition").

I cannot agree, however, that utilizing the kidneys of the poor to benefit the rich could ever be a permissible way to solve the problem of shortages of kidneys for transplant. And, if the government buys and distributes the organs, as I say, there would be potential legal and ethical obstacles which perhaps have not been fully developed by those who propose this market solution to an issue of medical treatment.

[Kimberly Krawiec]

Hi anon – thanks for your continued engagement on this issue and I think that you bring up some interesting questions/problems. However, your repeated statements about “utilizing the kidneys of the poor to benefit the rich” undermines your entire argument. As I’ve explained repeatedly, access to transplantation would be universal w/o regard to ability to pay (as it would be now, in the absence of a shortage of transplantable kidneys). Your repeated failure to acknowledge and/or understand this point makes it appear that you are either not listening, not understanding, or simply trolling.

At the same time, your point about the mutilating sadist is a good one, and is an issue that we discussed, debated, and researched at some length. Like you, I do not believe that this is a transaction that the law would or should condone, whether money is offered or not. But I don’t think that’s relevant to this debate – the question here is whether there are activities that we encourage people to do for free that we should nonetheless prohibit compensation for. The case of kidney donation thus presents an anomaly that the mutilating sadist does not – in the case of kidney donation we applaud altruistic donors and condemn paid ones. The sadist is condemned w/o regard to the presence of absence of payment.

FYI: it is simply untrue that we do not have good data on the risks of kidney donation. We discuss them at length in our paper and, as I have said more than once, they compare very favorably to the risks of numerous other paid activities, including football and boxing.

[Deep State Special Legal Counsel]

twbb:

The poor will still be poor even after this transaction. The rich always pay the poor to die for them. For instance, Cadet Bone Spur is the biggest cheerleader of our TROOPS (except for John McCain and Kahn).

Poor people have tons of externalities that allow for exploitation. In many ways, poverty is symptomatic of other things going on. They will get the short end of the stick because they have nothing and will do anything to get something.

[anon]

Interesting, you allow the comment by DSSLC immediately above, but did not allow my response to yours, on February 05, 2018 at 05:31 PM. That seems strange, because, among other things, I noted that the concept of "equitable distribution" had been addressed (contrary to your contention), noted that the risks of kidney donation were sourced directly from a highly reputable source (and really can be discerned with a modicum of common sense), and expanded on means by which you claim your proposal is designed to "protect" the disadvantaged.

[Deep State Special Legal Counsel]

anon^^^^

Maybe it's because I am a Stable Genius and you're not.

What probably happened is that your comment didn't get posted for technical reasons. Maybe, like that fellow in Hawaii, you clicked on the wrong icon---or didn't push the post icon... See Occam's Razor. Look on the bright side...at least you didn't start a nuclear war or create mass pandemonium.

[anon]

CBS News:

Report: Woman claims husband stole her kidney as dowry payment

You really have to read it to believe it.

[anon]

The BBC version of the story also reports, "In Cairo, the BBC spoke to those involved in the illegal kidney trade."

I suppose some would argue that a legal market would be preferable to an illegal market.

Buy the human and sell the human (in pieces), is it not all the same? How can one "legally" trade in human organs bought from the financially desperate? (For a price that will never even approach compensation for a lifetime of medical risk, not the mention the scarring, short term risks and stigma from mutilation for money, the latter factor being one that only a poor person could understand.)

One correction to the comments above, however: it appears that reliance solely on the poor to sell body parts is not the only foreseeable consequence of a "market" for body parts. We must also anticipate the outright theft of organs from those without the means to protect themselves.

Perhaps runaways would be a great first target group (leaving aside prisoners, etc.) for the organ merchants: young, desperate and unknowing. These persons could be easily duped, and thus vigorously supply the "market" ... a perfect herd for the pilferers to harvest!

Who knew that stealing a human organ from a living person is a thing? Oh, brave new world, with such people in it. I'm not speaking of the ones who steal: they are despicable, of course. I'm speaking of the ones who profit from the organ trade. There is a post above about using the bodies of slaves for medical research. Someday, perhaps, folks who look back on the barbarism of paying a relative pittance to literally butcher a living human being will marvel at the inhumanity inherent in such a trade.

Yes, we could relieve suffering by causing others to suffer.

So what?