UCL Laws Student
Scientific advances have made the transplant of, and therefore trade in, human organs a reality. This raises questions of ethics, law and human rights. The death of about 500 people annually in the UK because of insufficient donor organs has made these questions more pressing. In practice, this debate mostly concerns the donation of kidneys and livers as these are the only life-sustaining organs donors can give without putting their own lives at serious risk. In the UK, some 4,940 of the 6,330 total organs needed are kidneys. In this article I argue in favour of a regulated market in kidneys in the United Kingdom; a market for livers would be more complicated but once a satisfactory model has been developed it can be applied to livers and other organs. Currently in the UK, only organs from those who are brain dead can be transplanted, and additionally kidneys and livers that are altruistically donated – often by family members. I will call the person who donates the organ the donor and the person who receives the organ the recipient.
Allowing the sale of organs brings both positives and negatives. Among the positives, the supply of organs would be boosted, it would be cheaper for the NHS than long-term treatment for the recipient such as dialysis, and it would bring an end to much of the black market, where there are many human rights abuses. This would in turn reduce the number of people travelling abroad for surgeries that are unsafe and require further treatment once they return to the UK. A legal and regulated market can also ensure that the organs transplanted are safe. Among the negatives, organ donation carries risks for the donor, and by allowing the sale of organs more donors would take that medically unnecessary risk. There are fears that the vulnerable would be taken advantage of, which arguably would lead to the infringement of human rights. The problem is, however, avoidable. According to Professor Sir Peter Bell, the former vice-president of the Royal College of Surgeons, “Kidney donation has now become so safe it’s something you could ethically justify and it would stop all this illegal trafficking.” 
Many human rights questions arise in relation to this topic. Article 25 of the Universal Declaration of Human Rights enshrines the right to health and an adequate standard of living, including the right to medical care. Arguably the medical care should be to the highest attainable standard and therefore providing the greatest possible access to transplant organs to those who need them is necessary for these rights to be fulfilled. An additional argument is that a person in need of an organ is not enjoying rights to dignity or an adequate standard of living. Those who are reliant on dialysis multiple times a week do not have the freedom to enjoy their life independently and to the fullest. In developed countries such as the UK, a compensated organ donation market makes it possible to alleviate suffering from kidney malfunction and thereby better meet human rights obligations. For this reason, I argue that if it is feasible, it should be done.
From a financial viewpoint, regulating a market in human organs would make sense. Instead of paying for dialysis, which is very costly and could go on for years, this money could go into buying a new organ. In the current system, the donor suffers the drawbacks of undergoing surgery and putting his/her body under strain which may require a change in lifestyle. But, unless he/she is a family member, the donor receives almost no benefits. This causes an undersupply which results in long waiting lists for organs, expensive dialysis and other treatments to sustain the patients in need and death for those who do not get an organ in time. Furthermore a black market in human organs has developed which exploits donors, often in poorer countries. Some say that humans are naturally driven by gain, as is seen in our capitalist society, and so compensation for donors is the only way that the shortages and waiting lists can be brought to an end. It would also eliminate the disincentive to donate, as donors often incur costs of surgery, transport, and taking time off work.
From a consistency point of view, there is an argument that it is only fair that donors are paid for their organs because everyone else involved, including the doctors and nurses, is being paid. Furthermore, if one is allowed to donate an organ and undergo the same procedure without compensation, it should be allowed with compensation. The mere involvement of money in the transaction does not change the ethics. Some raise the concern that only poorer people will be willing to sell their organs for money. However, in the same way that people are allowed to take up risky jobs, they should be allowed to decide for themselves whether they are willing to sell their organs. Those from lower socioeconomic backgrounds are more likely to become construction workers, boxers, soldiers or police officers, and these are risky jobs. As these jobs are seen as important and heroic, there is no concern about them being paid as well. The selling of organs should be seen in the same light. It is up to the donor to decide the risks they are willing to take, and being paid does not necessarily detract from the altruism of the sacrifice.
Among the arguments against allowing the sale of organs is the complex question about the extent to which we own our own bodies and the right to bodily autonomy. Should we be allowed to separate individual parts from our body? Some feel that condoning the sale of body parts is ethically wrong, and that it’s a sign of society’s moral degradation as human bodies become commercialised. Another argument is that donors may try to conceal health conditions that make them ineligible for donation, thereby putting either the donor or the receiver of the organ at risk. There are also concerns that compensating donors would undermine the altruistic donor programme. The number of living donors is similar to the number of deceased donors currently. These voluntary donors may no longer donate as they either no longer feel the need or they are put off by the monetary transactions. Still, the net number of donors would go up, and many will donate for more than one reason. The implementation of a free market organ trading system could certainly result in human rights abuse and discrimination against the poor, as only the rich can afford to pay for organs. However, if the market was regulated by the state with strict controls and procedures it could work in an effective and fair way. Even so, there are negatives to such a market. It could lead to the exploitation of the poor as they feel pressured to resort to the sale of their organs to ease financial difficulties. People may disregard the risks it poses to themselves.
There are less drastic options to improve the supply of organs that could be trialled first. In the UK, the government has recently launched an extension of the organ transplant programme. This would allow for hospitals to retrieve organs from those who die in Accident & Emergency wards and Intensive Care Units. This will make hundreds more organs available. Among the challenges though is the fact that in some cases A&E wards lack the staff and equipment necessary for this programme to be effective, and only 1% of people die in circumstances that leave their organs viable.
An obvious way to increase the number of organ donations would be to make it easier to opt into the transplant programme for deceased organ donation. In England, while 66% of people say they would donate their organs after death, only 39% had signed the organ donor register. An alternative is an opt-out system such as the system Wales adopted in 2015 which saw an immediate increase in the supply of organs and has already saved dozens of lives. In this system, the organs of the deceased are automatically donated unless the deceased explicitly requested otherwise. There is, however, a concern that this could also lead to organs being donated against a person’s wishes.
A third alternative, donor clubs, such as LifeSharers in the US, gives members priority to the organs of other members if they promise to donate their organs when they die. Membership is free and the organisation is non-profit. The incentive to be given priority to organs increases the number of people who join these clubs. Another alternative to paying money for organs would be to provide in-kind compensation. This could take the form of many things, such as priority for future transplants or other medical procedures, reduced national service requirements where applicable, health insurance benefits or even reduced prison sentences in appropriate circumstances. However, economists would argue that money compensation is most efficient. 
There have been multiple proposals on the structure of a compensated organ donation market. The most realistic ones include an intermediary organisation that will pay for the organs. Professor John Harris from the University of Manchester has devised his own proposal for an ethical market. It would be run by the NHS as the sole distributer of organs. It would compensate the donor; the recipient is determined by need rather than the ability to pay for the organ. This system would initially be isolated to the UK to ensure proper regulation and could be expanded internationally. With rigorous checks on consent and the motivations for donating, it can be ensured that there is no undesirable pressure being put on people to donate for the wrong reasons. Similar systems could be introduced worldwide. An important aspect of an organ compensation system would be to foster feelings of solidarity and altruism which could be done by encouraging the recognition of these donors for their commendable acts of service. Most people will have multiple motives for donating their organs in addition to financial gain. In this way public support for a change to organ donation regulations would increase. Empirical support for this view is Iran which has introduced a compensated organ donation system and has eliminated waiting lists altogether. Although there are flaws in the system, such as a lack of enforcement of regulation, Iran’s experience could be studied and improved upon.
There is a dire need to address the drastic shortage of organs. The arguments against selling organs for purely ethical reasons can be countered with arguments that it is certainly unethical to let people die because of a shortage that could be reduced. Achieving the highest possible supply of life-sustaining organs for transplant is arguably needed to fulfil the human right to health. A well-regulated compensated organ donation system could provide the necessary organs in a way that does not exploit the poor or endanger those who require an organ. There would also be a cost-benefit as the donor organs alleviate the need to sustain patients through costly treatments such as dialysis. While there are other options to increase the supply of organs, none are as promising in eliminating waiting lists. Valid concerns of the potential for human rights abuse cannot be overlooked. Still, the risks can be reduced, enabling people to improve their lives at minimal cost to themselves. An added benefit would be the potential eradication of the black market as people donate to the legal market instead. Given the situation we are in today, a compensated organ donation scheme is a promising solution.
If you are interested in opting-in to the UK’s organ donation register, please visit this website: https://www.organdonation.nhs.uk/
 Smith, L., 2011. Sale of human organs should be legalised, says surgeons – Health News – Health & Families – The Independent. [online] Available at: http://www.independent.co.uk/life-style/health-and-families/health-news/sale-of-human-organs-should-be-legalised-say-surgeons-2176110.html [Accessed 7 April 2015] (Smith, 2011)
 This is because the majority of people have two kidneys which do the same job, and the liver has the ability to regenerate if some of it is damaged or removed.
 Liver transplants are much more taxing on the donor, only 4% of liver grafts in the US come from live donors: Beard, T.R., Kaserman, D.L. and Osterkamp, R., 2013. The Global Organ Shortage. Stanford University Press. pp.176. (Beard, 2013)
 This also raises questions about whether a deceased donor’s families should be compensated.
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