Wednesday, July 25, 2012

The Lure of Decriminalization

When people talk about the dangers of the black market, and the benefits that come from decriminalization, they are usually talking about drugs. Make drugs legal, they say, and most of the societal ills (and prison overcrowding) that come from the black market will go away almost overnight. This may be true. Particularly with low-impact drugs such as marijuana, this is an enticing idea. Today, on the Volokh Conspiracy blog, Ilya Somin trots out an even more extreme idea for decriminalization... creating a legal market in organs. Make it so that somebody who needs, say, an extra $10,000, can offer to sell a kidney on Craigslist. Somebody who needs a kidney can find one, pay the up-front cost, and get a new lease on life. I'm having a hard time finding the problem in his idea. I'm sure it's there, and I'm hoping one of you can point it out to me. It sure is a fascinating thought... Mark


Kevin said...

Hey, Mark! Ilya responded to your post with an update! :-) That's pretty neat. Some of the comments there are also interesting. I'll respond again after I think it over.

Kevin said...

I didn't get the impression that you were implying an increased vulnerability to negligence and fraud by referencing Craigslist, which is how Ilya interpreted your post, though I do think he's right that there would be less of those if selling organs were legal (assuming there actually is a significant black market for organs).

The first moral arguments which came to mind would ironically oppose organ donation itself, such as inalienable rights, or inability to achieve informed consent.

For example, Ilya makes the point that donating a kidney is minor in terms of life expectancy and added health risks, but I suspect the latter would be difficult to substantiate and, moreover, lacking an organ would reasonably result in limiting options which impact opportunities and quality of life. e.g. activities which stress the kidneys might be avoided. Is the donor aware of all of the subtle effects? I doubt it.

But again, these concerns apply equally well to giving an organ for free as to selling it to save a life. Given that the exchange is entirely voluntary, what does money add to the moral equation?

Even with money, I think my greatest concern is still informed consent. Consider this: if a poor person could see his future with perfect clarity, both with and without his organ, and he still chose to sell his organ, should we allow him to do so? I can see no argument to prevent the exchange in that case.

Essentially, I think we do not want to end up with people living miserable lives _because_ they sold their organs. So we impose our subjective valuation of our own organs upon them, because we think we know which life they should prefer.

And there are cases when we do know better, such as when someone is depressed and he would kill himself, but is prevented and is later grateful for intercession. But death eliminates all future options, while organ donation does not, which is the point.

Ilya's restricting the organ donor system to the non-poor is a fascinating hypothetical, but it would seem to be ineffective in practice given that the richer you are, the more you value your own organs, and the non-poor line would probably be raised until money is not a factor in the decision anyway.

Somehow by forcing donation rather than sale, we are establishing certain acknowledgement that it is inherently a losing proposition, and perhaps that is enough to account for an uncertain future.

One comment over there questioned the stats and facts in the article and perhaps implicitly whether this issue is even pressing. I similarly wonder, for example, of the 4,000 who die each year waiting for a kidney transplant, how long would they have survived _with_ a kidney transplant? I'd imagine that the need for a kidney correlates with having diseases which destroy the kidneys, and triage would leave them to the last in line.

How often does the government even prosecute someone for selling their organ? Is the ban even realistically enforceable?

I also don't buy Ilya's moral claim that people dying without organs amounts to killing innocent people. Nevertheless, it is enough that if the ban on organ sales does more harm than good (and I'm inclined to believe it does), it should be repealed. In fact, I think the government should have to overcome a high burden of proof to prohibit voluntary informed exchanges in general.

There may also be ancillary morally complicated scenarios when money becomes a motive (e.g. what if someone kills himself in order for their family to cash in?), so perhaps we ban it to avoid these other complex moral decisions?

Well, hopefully something in my ramblings will further the discussion. To sleep I go! Perchance to dream. Not about selling organs, I hope. :)

Douglas said...

Levitt and Dubner of Freakanomics fame have run several shows/aritcles on this topic. They are heavier on data than philosophy and morality. Just google, "freakanomics sale of organs" to read about/listen to them.