Simony and Kidneys

I think that people ought to be able to sell their kidneys. Especially poor people. My reasoning here is simple. By and large, we don’t really need the second kidney. It is an extremely useful back up, but strictly speaking my understanding is that we can get along well with out it. Basically, it is an insurance policy. Now, there are people who need kidneys, more people than there are kidneys, as it happens. I think that the poor should be able to sell their extra kidney to make some extra money. Forbidding them from doing so — as current law does — is rather like forcing them to pay for a very expensive insurance policy when they are having trouble making ends meet. They are poor and they have a potential source of wealth making them less poor. Let them sell it, I say.

Now there are lots of objections that can be made to this. They range from Coma-esque hypotheticals about killing people off in order to harvest their organs, (not a big worry I say, and easily guarded against) to stolid arguments about social welfare (for example, there is evidence to suggest that the UK does a better job of filling up its blood banks on an all-volunteer basis than does the US on a pay-for-plasma basis). There are also the mushy-headed arguments about the horrors of commidifiying the human body and the terrible way in which we commercialize something as sacred and personal as kidneys. To which I say, go make the argument to the starving masses yearning to sell off their kidneys or those who but for the rule against selling kidneys would not spend their lives on a dialysis machine. Better yet, make the argument to a college seminar, just let people sell off their kidneys to pay tuition!

Actually, the mushy-headed argument is what interests me. The arguments about organ availability and potentially perverse incentives are mainly empirical matters, and we are probably best off leaving such “boring” questions to social scientists who have the expertise to deal with them. (Unless, of course, the social scientist disagrees with me, and then to hell with my deference to your technocracy!) The mushy-headed argument forces us to ask the question about inalienability, whether there are certain entitlements — like those to our organs — that we should neither be deprived of nor allowed to deprive ourselves of (or perhaps just sell). Some time ago, we had a conversation about whether or not Mormonism had anything to add to this debate. We discussed the example of priesthood. The scriptures are pretty clear (Simon, the Book of Acts and all that) on the subject. You can’t buy or sell the priesthood. The problem is that this ends up being less useful for general debates about inalienability than one might hope. We basically came to the conclusion that the priesthood was inherently inalienable because whatever a purported seller of the priesthood might confer on an interested buyer would not really be the priesthood. The problem is that selling kidneys is conceptually easy to imagine. The kidney conferred in such a sale would be a real kidney. So other than Simon, are there any scriptural stories about inalienability that we can use to leverage the mushy-headed argument against kidney sales? If not, should Russell admit defeat, sell his copies of Lasch and begin reading Hayek?

74 comments for “Simony and Kidneys

  1. February 23, 2005 at 12:34 pm


    Along the same lines, why not legalize prostitution? There is an underserved market and poor people could sell a part of their body (or lease rather) and put food on the table. BTW, I like the way you characterize those who disagree with you as mushy-headed.

  2. Nate Oman
    February 23, 2005 at 12:40 pm

    One might distinguish prostitution from kidney sales by noting that the underlying nature of the transaction is different. The sale of kidneys to those on dialysis machines would result in less suffering and a happier society. The underlying substance of prostitution, however, is a particularlly sordid form of fornication and one might believe that this is an additional reason for banning prostitution. However, I think that you are correct that the arguments about alienability that I offer above provide prima-facie reasons for legalizing prostitution. The question is whether or not there are powerful coutnerveiling reasons.

    I suppose that the prohibition on prostitution in the scriptures, however, might provide a more useful starting place for thinking about alienability and inalienability than does the priesthood.

    The “mushy-headed” label, btw, was meant in good humor and is (I hope) transparent attempt to be provocative.

  3. February 23, 2005 at 12:41 pm

    Why would the absence of scriptural warrant to prohibit the commodification of (poor people’s) kidneys constitue an absence of, or a weakness in, other arguments against the commodification of kidneys? Why should I ditch Lasch just because I cannot plausibly demonstrate that Alma ever read the man?

    I suppose I’ll have to respond further eventually, but at the moment I’m writing a long defense of populist economics, the religious left, and William Jennings Bryan. Priorities, you know.

  4. Nate Oman
    February 23, 2005 at 12:44 pm

    “Why would the absence of scriptural warrant to prohibit the commodification of (poor people’s) kidneys constitue an absence of, or a weakness in, other arguments against the commodification of kidneys?”

    No reason at all. I don’t really think that you ought to stop reading Lasch. On the other hand, if Alma et al have nothing that is of any use in the discussion, then it may be that there is no Mormon contribution to the subject. This may be the case, but if so I find it a bit sad.

    I will let you get back to your defense of inflation ;->

  5. Boris Max
    February 23, 2005 at 12:54 pm

    Instead of validating an economic system that creates conditions that make it attractive for the poor to sell body parts like kidneys or rent out their genitals, wouldn’t it be more productive to, uh, help the poor out? There’s another interesting scripture in Acts that might have more bearing on this situation: Acts 2: 44-46

    Now all those who believed were together, and had all things in common.

    And sold their possessions and goods, and divided them among all, as anyone had need.

    But perhaps there is a bodypart-selling subtext here that I’m missing? BTW, if you can call me mushy-headed in good humor, I’m sure that you’ll get the joke when I call you a capitalist jackal

  6. danithew
    February 23, 2005 at 12:55 pm

    I don’t know if I would normally object to the selling of kidneys. I think the real problem is that the purchase of kidneys would be out-sourced. If I can buy a kidney, I’m going to find the person who will offer the lowest price for the organ I need. I’ve already seen a program about people selling kidneys in another country — I think it was India. I can only imagine the pressure that would come to bear on adolescents or even adults in the poorest countries. No doubt there would be middlemen would would arise to handle the traffic and who would eat up most of the profits (rather than the donors). Then again, with the internet, a lot of middlemen are being eliminated. Perhaps in a tech-savvy country like India, even the poor could eliminate the middleman and get the highest bidder on eBay.

  7. Nate Oman
    February 23, 2005 at 1:02 pm

    Boris “The Mushy” Max: The problem with your argument is that you fail to show how purchasing a kidney from a poor person is a more nefarious way of validating the unjust status quo than purchasing anything else from a poor person. Perhaps all commerce with the poor is morally problematic, but this seems like a bit of a stretch. (BTW, it would be a cool argument to see if you can pull it off.) What we need is a theory as to why kidneys are especially suspect.

    BTW, I have always preferred “Running Dog of the Decadent Capitalist West” to mere Jackal, but I suppose that I will have to work toward a promotion.

  8. February 23, 2005 at 1:11 pm

    Obviously you are trying to be provocative–desperate times call for desperate measures:) Reading between the lines, I see in your flippant comment about the sordid world of prostitution an acknowledgement that not everyone shares your view on the unsavoriness of the flesh trade and its inability to lessen suffering and increase happiness. And you know that a great deal can be said about the benefits of legalization: protect the health of the workers and clients, lessen exploitation between parties with unequal bargaining positions, protect workers from abuse and lessen their reliance on abusive pimps to enforce payment etc. etc. etc.

    I’m sure the scriptures are a better place to start when slicing it so fine–and I would never insinuate your timely turn to them is the last refuge of a scoundrel whose arguments otherwise don’t hold water [criticizing the way the argument was made, not the scriptural prohibition against hooking].

    BTW, I believe there have been a few things written about the benefits of an efficient baby market. Certainly that has the potential to alleviate suffering and increase happiness.

  9. Jed
    February 23, 2005 at 1:14 pm

    Anon (#1) is right. You can’t let people sell their body parts and still not allow them to sell their body. Even if you define the part from the whole, someone would successfully challenge in the courts eventually. They are of the same kind. If you commodified kidneys, the market would be insatiable, and more people would have their kidneys stolen than in the Third World (and eventually the First) than all the people who were ever on dialysis in the history of the world.

    Not that I feel strongly about this or anything.

  10. Nate Oman
    February 23, 2005 at 1:14 pm

    As I recall Posner and Becker did a fair amount on the baby market, although it is a bit of a misnomer. Strictly speaking, they are not talking about buying and selling babies, but about buying and selling parental rights.

  11. Matt Evans
    February 23, 2005 at 1:19 pm

    Nate, I too think restrictions on kidney sales are probably misguided. My concern is with who buys the kidney. The distribution problem is more daunting because of the marginal utility of selling organs to dying rich. One option would be to let each organ-seller determine how to balance the tension between money and utility, another to incorporate a price-discriminating model on a centralized exchange market.

  12. Matt Evans
    February 23, 2005 at 1:23 pm

    Jed, is there reason to believe more kidneys would be stolen in an open kidney market than in the current black market?

  13. Nate Oman
    February 23, 2005 at 1:23 pm

    ” If you commodified kidneys, the market would be insatiable, and more people would have their kidneys stolen than in the Third World (and eventually the First) than all the people who were ever on dialysis in the history of the world.”

    Jed this just doesn’t make sense. Why on earth would the bad guys start stealing kidneys if the the demand (those on dialysis machines) had been satisfied? Why would demand increase with the availability of kidneys? Who on earth is going to say, “Gee! Kidneys are selling low, maybe I ought to just get a kidney transplant while the market is down.” Nonsense.

    BTW, an alternative to a straight kidney market would be a sort of futures market. Essentially you sign up to be an organ donor with an organ donor clearing house that pays you. When you die, they get your kidneys. To the extent that you die old and with failed kidneys, they get no value from purchasing the right to harvest your kidneys. However, one should be able to accuarialize the risk here pretty easily. THe clearinghouse would know that in order to get X number of good kidneys it needs to buy some greater than X number of future kidney harvesting rights. These rights would be priced accordingly. This would remove any incentive for the poor to slice themselves open for kidneys, since they only give their organs in the ordinary course. Indeed, to the extent that the poor die on average slighly younger, I suspect that there might be slight premium on organs. Of course, this system would still create incentives to kill people but no more than do the current laws of inheritance or life insurance policies. This system would also create a market in organs like livers and hearts that cannot be easily donated inter vivos. It has the down side of reducing the number of available kidnes vis a vis a straight kidney market.

  14. Nate Oman
    February 23, 2005 at 1:25 pm

    Matt: You could also simply subsidize kidney purchases.

  15. February 23, 2005 at 1:27 pm

    For a primer on Nate’s other favorite argumentative technique see comment 10: Ignore the gist and point out a minor factual inaccuracy (possibly intentionally ignored so as to simplify the point) thus asserting once again the primacy of his scholarship in the bloggernacle.

    [Nate, I’m just taking the ___ out of you. I know you can see who I am; Kiami has probably outed me already, but today I have to be anon.]

  16. Derek
    February 23, 2005 at 1:28 pm

    > Now, there are people who need kidneys, more people than there are kidneys, as it happens.

    No, there are roughly twice as many kidneys as people.

    Scientific studies have proven that having kidneys is better than not. Are there any that have proven the same thing about Priesthood blessings?

  17. Jed
    February 23, 2005 at 1:31 pm

    Hey, let’s gang tackle Nate. :) I say your argument reeks of Bentham. It is all about the absence of pain. How do you get morality out of Bentham?

  18. danithew
    February 23, 2005 at 1:34 pm

    Whoops, my apologies for the length of that link.

  19. Nate Oman
    February 23, 2005 at 1:34 pm

    Sorry, Anon, I thought that I had already responded to the gist of your earlier comment. There are two ways, it seems to me, of differentiating prostitution from kidney sales. First, you say that there is something about the essence of the underlying transaction that is different. This amounts to the claim that purchased sex is morally bad in some way that purchased kidneys are not. The second argument is a straight forward policy one: the sale of sex presents great risks and externalities than does the sale of kidneys. I think that this is actually true, particularlly if you structure the sale of kidneys in terms of some sort of future right to harvest.

    Still, I am flattered that you feel called upon to relieve me of my ____. I appreciate the concern.

  20. Nate Oman
    February 23, 2005 at 1:36 pm

    Jed: You don’t have to be a Benthamite to believe that relieving human suffering is good. As I recall the Savior had something to say along these lines as well…

  21. Jed
    February 23, 2005 at 1:38 pm

    Nate: True enough, but the Savior’s own sacrifice means that suffering is good. The relieving of suffering doesn’t justify itself.

  22. Nate Oman
    February 23, 2005 at 1:41 pm

    “Nate: True enough, but the Savior’s own sacrifice means that suffering is good. The relieving of suffering doesn’t justify itself.”

    I am not sure that this is true. It seems to me that the scriptures teach that Christ suffers so that we can avoid suffering. In other words, his suffering is an evil that he takes upon himself so that we can avoid it. It is an act of love precisely because suffering is bad.

    Even if one could make the argument that certain sorts of suffering are good and cannot be conceptualized as simply avoiding some greater suffering (a position, btw, with which I have a lot of sympathy), relieving suffering could still be a prima facie good.

  23. February 23, 2005 at 1:43 pm

    Anon, even I know who you are. Don’t you have some remodeling to do?

  24. February 23, 2005 at 1:49 pm

    I do now. Ha.

  25. Jed
    February 23, 2005 at 1:54 pm

    Nate says: “It seems to me that the scriptures teach that Christ suffers so that we can avoid suffering.”

    Yes, avoid the suffering caused by sin. But is all suffering caused by sin?

    How could we ever carry another’s burden (Mos. 18:10) if we could not identify the burden as a burden. And how could we identify the burden as a burden to be liften unless we suffered with the person burdened? The “mind of Christ” is difficult to approach if all suffering is to be avoided.

    But the main point, again, is that useful and useless suffering requires some principle of arbitration, a principle that Benthamites cannot produce.

    Unfortunately, just as things get interesting, I have to check out now and prepare for class held next hour!

  26. Derek
    February 23, 2005 at 1:58 pm

    >…the sale of sex presents great risks and externalities than does the sale of kidneys

    I don’t know about that. With kidneys, you not only have to make sure the donor isn’t diseased, I think you also have to match blood types. So I strongly suspect that it’s more difficult to successfully transplant a kidney without rejection than to practice safe sex.

  27. danithew
    February 23, 2005 at 2:54 pm

    The JAMA article (linked above) about poor people in India selling kidneys has the following simple conclusion:

    Among paid donors in India, selling a kidney does not lead to a long-term economic benefit and may be associated with a decline in health. Physicians and policy makers should reexamine the value of using financial incentives to increase the supply of organs for transplantation.

  28. Frank McIntyre
    February 23, 2005 at 2:56 pm

    So Nate, you are wondering if there is a Mormon angle. Well I do not know of any scriptural injunction against organ donation, so the remaining question is can the donated good be sold instead? Prostitution is not quite the best comparison because one is not paying for marriage but for fornication, thus the outcome (fornication) is wrong regardless of whether it is donated.

    Baby selling seems like a better comparison. There are circumstances where it is okay to donate a baby, and so would that be wrong if there were a transfer of money also? Already I thin some adopters pay maternal expenses. And then there is the surrogate motherhood thing, which off-hand doesn’t seem obviously bad. Egg buying is legal, and that seems morally a little icky, but perhaps not so icky I’d ban it. DOes the Church have stand on that? If not, a kidney seems less objectionable than an egg.

    Certainly the church encourages adoption. What if the adopter also paid the adoptee a living stipend? I suppose that starts to smell like slavery. And yet the child is not enslaved or harmed, the parents are not harmed, and the recipient is not harmed in any obvious spiritual or physical way. One fear is that this would encourage the production of babies as a money-making endeavor. But one cannot manufacture more kidneys in one’s body, nor would I be inclined to think it wrong to do so even if you could. If one could hire someone to manufacture a new kidney in their body each year, I think that would, in fact, be something of a noble profession. So the increased production argument doesn’t apply to kidneys.

    We used to have dowries and bride-prices, which helped to redistribute income among a society. Kidneys seem far less objectionable.

  29. Frank McIntyre
    February 23, 2005 at 3:06 pm

    Danithew, the link required paying and so I didn’t, but let me guess, the researchers compared those who sold kidneys to others who didn’t sell kidneys? If so, that is completely inadequate to recover the effect of kidney sales on income. Those who sold kidneys did so base don some set of unobserved differences between them and those who didn’t.

    Medical people do fine when there is an experimental design, but they probably didn’t randomly assign some people to sell and some to not sell. In which case they need to account for the differences between sellers and non-sellers, something that econometrics is geared to do, although it often can’t, but that medical researchers are mostly (but not all!) clueless about.

    Think about it this way, suppose you took a sample of people who went to the doctor three times a year and compared them to those who didn’t. Who would have the worst health? Those who went to the doctor, not because the doctor made them sick, but because being sick is why they made the choice to go to the doctor. Likewise, those who sell their kidney quite possibly did so due to their dire financial straits.

    That said, I am willing to believe that kidney sales in India do not end poverty for the person. It depends on the health effects of the surgery, the price of the organ (which may be quite low in India) and other stuff.

  30. Brian
    February 23, 2005 at 3:33 pm

    You should consider that in addition to the moral issues involved, allowing people to sell their kidneys prior to their death may result in higher health care costs for the government. You suggest that not permitting someone to sell their kidney “is rather like forcing them to pay for a very expensive insurance policy.” In fact, that extra kidney is not just an insurance policy for the individual — it is also an insurance policy for the state.

    I will explain. It is reasonable to assume that the great majority of those who would choose to sell a kidney will be poor, and thus are people whose medical expenses are paid by the government through Medicaid. If Mr. X sells one of his kidneys, and then later in life has trouble with his other kidney (which becomes increasingly likely as he enters his elderly years), then the state will be stuck either paying for Mr. X to be on a dialysis machine for the rest of his life, or buying Mr. X a new kidney to replace the one he sold. While it is true that the kidney Mr. X sold helped someone else avoid expensive dialysis treatments, anyone who could afford to buy a kidney is also much more likely to have private health insurance. Thus, poor people selling kidneys to non-poor people would likely result in a transfer of kidney-related medical costs from private parties and private insurers to the government. In this case, the existence of Medicaid allows Mr. X to externalize a significant portion of the potential “cost” of selling his kidney (at least in financial terms). He gets the benefit of selling his kidney, yet the state bears a significant portion of the potential cost. It may turn out that Mr. X sells his kidney and pockets the money, and then ten years later the state has to buy him a new one. I suppose this situation could be addressed by requiring that any person who wants to sell a kidney must sign a waiver acknowledging that if they develop kidney problems in the future, the state will not pay to treat them, but that raises a whole host of legal and ethical complications.

    So, from a strictly financial perspective, the state may have a real interest is requiring people (at least poor people) to keep their “backup” kidney. One might consider this argument cold and unfeeling, but I don’t think it is “mushy-headed.”

  31. Bill
    February 23, 2005 at 3:44 pm

    Genesis 38 offers an interesting gospel perspective on both prosititution and sperm donation, although I’m sure contradictory scriptural passages could be found.

  32. Nate Oman
    February 23, 2005 at 3:48 pm

    Brian: Two quick points. First, none of these problems are present if you are selling future donation rights rather than kidneys outright. Second, the health care costs depend entirely on the sorts of health risks we are talking about. The question is whether an extra kidney staves off death or lengthy incapacity. To use an analogy from tobacco, the argument that tobacco costs the government money because of health care costs is probably spurious (almost certainly spurious as to the federal government). The reason is two fold. First, smokers pay a butt load in excise taxes. Second, they die young and relatively quickly. This means that the state avoids social security and pension costs. The other issue is that health care costs tend to come at the end of life as everything fails and efforts are made to fix everything all at once. It is an expensive way to die. On the other hand, a stroke or heart attack to a relatively young person is a comparatively a cheap way to die.

    I honestly don’t know what sorts of problems a missing kidney cause, but if it actually kills people it probably won’t result in increased social costs for medicine.

  33. Anna
    February 23, 2005 at 3:58 pm

    There are “starving masses yearning to sell off their kidneys”?

    Good grief. I had no idea.

  34. Kaimi
    February 23, 2005 at 4:13 pm


    I wasn’t planning on doing any outing of your identity. Of course, it looks like your well-established pattern and practice of misspelling my name has already alerted at least some readers.


    Does it matter if the end purchaser isn’t actually a user? What if I want to buy a bunch of human kidneys, for fun? What if I want to make them into a big art project by spray painting them and tacking them to the wall? Would that be permissible?

    If not, why not?

  35. danithew
    February 23, 2005 at 5:43 pm

    Odd, I had no idea that link required payment. My wife being a medical student, we must have a cookie on my laptop that gets me past all that. Sorry folks for the bother or inconvenience.

  36. Heather Oman
    February 23, 2005 at 5:44 pm

    I think y’all should know that Nate is extremely sleep deprived. When this happens, such a post as above occurs. You might also notice that the frequency of his swearing goes up as well.You are all welcome to gang up on Nate. He’s asking for it, and in his sleep deprived state, he’s actually enjoying it.

    Needless to say, he and I do not agree on any of these issues. This is usually the time in our marital conversations where I call him a right wing libertarian nutball, and roll over and go to sleep.

  37. Brian
    February 23, 2005 at 5:53 pm

    Your point about tobacco-related health care costs is right as far as it goes, but it is really a straw man argument that doesn’t apply here. The point is not that kidney problems will cause early death, like tobacco does (thus saving money for social security). Medical science has advanced to the point that a patient can be kept alive indefinitely with a dialysis machine, even if he or she has no fully-functioning kidneys — but this alternative is very expensive. The real question then is whether aging individuals with one kidney tend to incur higher medical expenses than aging individuals with two kidneys, all other things being equal. I’m no doctor, but I suspect that a single kidney, operating on its own at double capacity, is more likely to give out as a person ages than two kidneys. Consider that there are currently about 34 million Americans on Medicaid. If only 5% decide to sell a kidney, that’s 1.7 million patients with a heightened risk of expensive kidney problems in the future that the government will be obligated to pay for. And if kidneys are on the open market, then will the government be required to buy kidneys for all Medicaid patients who need one? Given the size of the Medicaid program, the government will certainly be the number one customer for kidneys, and this puts the government in the position of encouraging people (through market forces) to sell their own organs, and trying to negotiate for the lowest possible price.

    The futures market you propose is an interesting idea and does avoid these problems. With this sort of program in place, I assume that most people would stop donating kidneys, hearts, eyes and other organs, and would just sell them instead. You would be signing a contract to let someone pluck out a piece of your body right after your death. I’m not sure why, but this makes me uncomfortable — perhaps because it seems like a kind of indentured servitude. Imagine that years after selling a futures contract to have his kidney harvested on his death, Mr. X is diagnosed with lung cancer and has only a few months left to live. He changes his mind and decides that he really doesn’t want the doctors to cut out his kidney after he dies, but he doesn’t have the cash to buy his way out of the contract (if he is even allowed to do so). He is terrified, and begs the doctors not to do it. So do the doctors tell him “too bad,” and then act against his express wishes by cutting out his kidney after he dies?

    Perhaps the gospel principle I am gravitating towards is that our bodies are created in God’s image. To freely give up a part of our body to help heal another person is an act of Christ like charity. To sell a part of our body — given to us by God — for “filthy lucre” almost seems sacrilegious. Our bodies are one of God’s most precious gift to us. We are told they are temples of God. I think that selling off pieces of that “temple” for a few thousand dollars exhibits a lack of respect and thankfulness for that gift.

  38. danithew
    February 23, 2005 at 5:56 pm

    I can at least provide the abstract from the article:

    Context Many countries have a shortage of kidneys available for transplantation. Paying people to donate kidneys is often proposed or justified as a way to benefit recipients by increasing the supply of organs and to benefit donors by improving their economic status. However, whether individuals who sell their kidneys actually benefit from the sale is controversial.

    Objective To determine the economic and health effects of selling a kidney.

    Design, Setting, and Participants Cross-sectional survey conducted in February 2001 among 305 individuals who had sold a kidney in Chennai, India, an average of 6 years before the survey.

    Main Outcome Measures Reasons for selling kidney, amount received from sale, how money was spent, change in economic status, change in health status, advice for others contemplating selling a kidney.

    Results Ninety-six percent of participants sold their kidneys to pay off debts. The average amount received was $1070. Most of the money received was spent on debts, food, and clothing. Average family income declined by one third after nephrectomy (P< .001), and the number of participants living below the poverty line increased. Three fourths of participants were still in debt at the time of the survey. About 86% of participants reported a deterioration in their health status after nephrectomy. Seventy-nine percent would not recommend that others sell a kidney. Conclusions Among paid donors in India, selling a kidney does not lead to a long-term economic benefit and may be associated with a decline in health. Physicians and policy makers should reexamine the value of using financial incentives to increase the supply of organs for transplantation.

  39. danithew
    February 23, 2005 at 5:58 pm

    And the title of the article was: “Economic and Health Consequences of Selling A Kidney In India.”

  40. Kaimi
    February 23, 2005 at 6:28 pm


    Thanks for clarifying that. It’s good to know that there’s at least one member of the Oman household who hasn’t been deprived of sanity (due to sleep deprivation or other causes). If not for your comment, I would be worried about little Jacob going around asking his pre-school classmates if he can buy their kidneys off of them.


    Stop yammering on about kidneys and get back to document review!


  41. Jeff A
    February 23, 2005 at 6:33 pm

    “You should consider that in addition to the moral issues involved, allowing people to sell their kidneys prior to their death may result in higher health care costs for the government.”

    From a medical standpoint the most common causes of end-stage kidney disease leading to dialysis,and for some, kidney transplant in this country are hypertension and diabetes. The group of people in lower socio-economic classes who it could be argued would benefit most financially from such a program are the same group of people who are at high risk for tobacco use, being obese, having hypertension, and developing diabetes. The argument that the second kidney will be adequate in this population is therefore flawed. This would be the worst group to lose one of their kidneys volutarily.

    The best group to volunteer to offer a kidney for donation is a relatively healthy population who live a healthy lifestyle and don’t smoke (sound familiar). The real question is not why we don’t allow for the purchase of organs for transplantation but why there are not more people who are known to be at low risk for developing end-stage kidney disease do not voluntarily donate a kidney altruistically.

    The best

  42. Nate Oman
    February 23, 2005 at 6:50 pm

    Brian: If what you say about the health consequences of kidneys is right, then I think that there is some real force to your medicare argument. I said so in my inititial response, so I don’t see that I am arguing against a straw man. My only point is that when talking about the economic costs of bad health you have to factor in the economic benefits of early death.

    As for your regretted decision hypothetical, for what it is worth the default rule is that you can repudiate a contract at any time prior to the completion of performance. The standard remedy then becomes damages. We don’t generally speaking force people to perform their contracts. Rather, we simply force them to pay if they breach. One’s ability to repudiate a contract is not contingent on solvency or one’s ability to pay damages. Hence, in your hypothetical, the guy dying of lung cancer could say with his dying breath “I repudiate my contract selling the right to harvest my organs on death.” What would happen at this point, is that the kidney purchaser would now have a valid legal claim against the estate of the deceased. As I understand the law of intestancy and estates (it has been a while since the bar exam), the deceased’s assets would be partioned in this way: 1st, the government gets its money for taxes, 2nd, certain surviving family members are entitled to a statutorily defined amount of cash, 3rd the deceased creditors — which would now include the disappointed kidney buyer — would be paid; 4th any bequests made by will would be paid. (I may have 2 and 3 reversed; it has been a while). All of this is a way of saying it is a long way from “sale” to “ripping out kidneys.” The law is subtle and there are lots of intermediate arrangements.

    Your idea of sacrelig is interesting. Here are a couple of questions. Do the same objections apply to the sale of plasma? (I assume so.) What about to the sale of labor? One might argue that work is an activity in the image of God (ie “This is my work and my glory” etc.) and when done voluntarily to bless others is an act of Christ like service, but when done for “filthy lucre” it is deeply offensive. Do you find this line of reasoning compelling? Why are why not? Specifically, why is the sale of body parts after death worse than the sale of time during life? (Or perhaps they are not, and paid labor is also blasphemous. This is an extreme position, but it seems like it might be one that a consistent applicaiton of religious beliefs should lead us to consider seriously.)

  43. Keith
    February 23, 2005 at 7:40 pm

    I think people should be able to sell one of their hands. Especially poor people. As The Fugitve shows, a person can get along quite well without one.

    I realize some might object. This seems barabaric they will say. Other will say, in fact, if anything, the poor need an extra hand–a helping hand.

    But these are mushy-headed communists who don’t like the free-market. So let us raise our blogger-knuckled hands (and voices) in favor of selling the very thing we are raising in order to be able to sell.

    (Couldn’t resist, Nate. Follow Heather’s advice and go get some sleep.)

  44. Nate Oman
    February 23, 2005 at 7:47 pm

    Keith: The difference is that their is probably a demand for kidneys, but not much of a demand for hands. Indeed, as it now stands, I don’t think that there is any legal prohibition on chopping one’s hand off and selling it. Furthermore, nowhere have I said that removing the prohibition on the sale of kidneys is the only thing that we ought to do for the poor.

  45. danithew
    February 23, 2005 at 7:48 pm

    All I know is I’m keeping everything I’ve got two of … whether or not I could do ok without one of them.

  46. February 23, 2005 at 10:00 pm

    The problem being, of course, that if you can sell it, a court can order you to sell it. Dividing up an estate would be more than just the common res. (Ok, I’ve been reading Volokh’s slippery slope essay ….)

    The average amount received was $1070. Most of the money received was spent on debts, food, and clothing. Average family income declined by one third after nephrectomy (PConclusions Among paid donors in India, selling a kidney does not lead to a long-term economic benefit and may be associated with a decline in health.

    The important note is that almost all lump sum transfers of cash to the poor do not result in improvements for them. There is no reason to suspect that selling a kidney would be any different.

  47. February 23, 2005 at 11:19 pm


    Looks like you were in a Bruce Lee mood today (you know — the desire to take on 30-40 sparring opponents instead of a measly 1 or 2.) Well, carry on. You seem to be fairing as well as Bruce always did. And who doesn’t like a little Kung Fu Blogging Theatre every once in a while?

  48. obi-wan
    February 23, 2005 at 11:30 pm

    Anyone who has ever worked as an associate in a law firm knows that the Thirteenth Amendment doesn’t prevent slavery, it just prevents you from getting full value for selling yourself. Ditto for other inalienability rules.

  49. Jed
    February 24, 2005 at 12:39 am

    Nate says: “Jed this just doesn’t make sense. Why on earth would the bad guys start stealing kidneys if the the demand (those on dialysis machines) had been satisfied? Why would demand increase with the availability of kidneys?”

    Okay, I just saw this comment. Caught in hyperbole.

    Is everyone who needs a kidney in the Third World on dialysis? And is it need or perceived need? If people think they can find the next person to sell to they will steal.

  50. Sheri Lynn
    February 24, 2005 at 1:59 am

    I read a book about childhood cancer once, written by a physician. One of the stories in it was about identical twins, one of whom was gravely ill with (leukemia? lymphoma? I forget.) They were seven or eight years of age. The one twin could be saved by a bone marrow transplant from the other twin, and the mother took it for granted that her daughter would naturally consent to this. However, she was adamantly and resolutely opposed to it. I can’t remember how it turned out. The conflict between the mother and this young, stubborn daughter was extremely upsetting. The doctor was a twin herself and didn’t get along with her own sister, so she had insight into why the one girl was not interested in sacrificing anything to save her sister.

    I can’t remember if the transplant was done anyway, only the poignant way the doctor wrote about the conflict. Could that twin have been “paid” (bribed) to do this thing for her sister? Would that have transformed her refusal into free consent? Somehow I do not think so.

    I will be donating my body to medical research and education. I would gladly give marrow, kidney, whatever might be of use now, while I live, but since I have several chronic illnesses, I doubt I could. They won’t even let me give blood. Could someone get Systemic Lupus Erythematosus from one of my kidneys? Can we be sure my kidneys are healthy enough to be worth transplanting? Probably not. This is something to be given, not to be sold.

    Sell? I think this is a gift that ought to be given freely and far more often. If a whole embalmed (latex-injected) body is needed for the resurrection, there are a lot of people who couldn’t be resurrected. So let my remains be used to teach healers their trade. I owe surgeons so much!

  51. Anna
    February 24, 2005 at 9:01 am

    A few people have mentioned selling plasma. Although this probably won’t advance the discussion much, I thought I would clarify that (as far as I know) people are not paid for their plasma. I have “sold my plasma” multiple times and have always been told that I am being paid for my time. If you are approved to donate but cannot complete the donation (i.e., they can’t find your veins or you pass out halfway through), you are still paid the full amount.

    Of course, maybe “paying for your time” is just what they say to make it sound less unsavory, since everyone is paid the same amount regardless of how long it takes them to donate (though also regardless of how much plasma they donate). Even so, perhaps one could make a distinction between selling body parts that renew themselves on their own (plasma, hair, sperm) and those that are finite and non-renewable (kidneys, eggs, hands).

  52. Kaimi
    February 24, 2005 at 10:20 am


    Do scriptural injunctions that our body is the temple of the Lord come into play?

    Alternatively, do scriptural injunctions about not eating blood? (That’s the Jehovah’s Witness view, as I understand it).

    Alternatively, does the Adam’s-rib story suggest that we should be willing to give up a body part to aid in the creation (and maintenance, perhaps?) of another life?

  53. Ivan Wolfe
    February 24, 2005 at 10:31 am

    Anna –

    as far as plasma goes, it was explained to me like this (don’t know if this is accurate or not): the value of what you “donate” is so far above what you get “paid” what you are really getting is a “thank you gift” akin to those PBS fund drives where you get a mug and a CD for a 500 donation. You’re not getting paid at all – it’s a simple token of thanks. Or something.

    Plasma donation rocks. I’ve been doing it for over 7 years now! (however, I have to wear long sleeved shirts to interviews, since I have a big needle mark on either arm!)

  54. Frank McIntyre
    February 24, 2005 at 11:55 am

    The inherent value of a thing is an element of the demand for that thing, but has no relationship to its supply. Since prices are a function of both supply and demand, there is no neccesary relationship between the price observed and the value of the good.

    It is fascinating to see how the plasma market deals with the value issue. Of course, the price of plasma is determined by supply and demand of those who want plasma and those who are willing to give it. But that price has nothing to do with the inherent moral value of the commodity. Consider the price of a gallon of water. It is very little because water is abundant, but the value of a gallon of water, especially when you are thirsty, is immense. We would be willing to pay a great deal for that first gallon. Water is cheap only because it is plentiful.

    Also, on the India study, I wish we could look at it to better see their methodology, but in general I don’t think that Indian medical technology is that great compared to the U.S. Regardless, it does not provide information on the effects of the futures market, which seems to me the more logistically straightforward market.

  55. Brian
    February 24, 2005 at 1:30 pm

    You are correct that courts typically don’t order specific performance of an ordinary contract. You suggest that Mr. X who sold a futures contract on his kidney can simply rescind the contract prior to his death, leaving the kidney buyer with nothing but a cause of action for damages against his estate (i.e., either restitution of what it paid for the kidney plus interest, or “benefit of the bargain” damages). But you have to remember that Mr. X (and most others who are poor enough to want to sell their kidneys) will almost certainly be broke and judgment proof at the time of their death. The seller’s “estate” will have little if any cash, and as you point out, the kidney buyer has to stand in line behind several other preferred creditors. It is highly unlikely that the kidney buyer will ever get a penny of its money back in damages after the seller’s death, and the buyer knows this when it agrees to the contract.

    So, will kidney buyers really be willing to pay the seller several thousand dollars today, knowing that the impoverished seller can change his mind anytime in the future and refuse to perform with little or no possibility that the buyer can recover any damages? Of course not. The buyers will only agree to the deal if the contract contains a provision stating that the deal can only be revoked by buying out the full amount of the contract (plus a substantial penalty) prior to harvesting time, and will include a contractual provision guaranteeing that absent such a buy-out, the buyer has the right to insist upon specific performance of the contract. If the contract spells it out clearly enough, the courts will respect the remedy the parties have chosen. If the courts refuse to enforce the specific performance provision, then the market for kidney sales — at least from poor people (who this is supposed to help) — will collapse.

    On your other points, I thought Anna hit the nail on the head about plasma donation. Plasma is renewable as opposed to finite, and is really a substance inside your body, not part of your body (which is why the police can compel you, under certain circumstances, to give them a blood sample). Your argument that selling your time and effort is somehow equivalent to selling a part of your body goes a little too far down the slippery slope. God expects us to sell our time and effort for money (e.g., “By the sweat of your brow shall ye eat your bread all your days”). The exception would be when we affirmatively commit to devote our time and efforts to serve the Lord (e.g., going on a mission). In that situation, it would be wrong to use that time to earn money for ourselves. Of course, the law of consecration requires that we devote our time and efforts to the Lord, but that does not preclude us from using our time and efforts for other purposes (like earning a living), unless the Lord directs us otherwise.

  56. Nate Oman
    February 24, 2005 at 1:57 pm

    Brian writes: “So, will kidney buyers really be willing to pay the seller several thousand dollars today, knowing that the impoverished seller can change his mind anytime in the future and refuse to perform with little or no possibility that the buyer can recover any damages? Of course not.”

    Brian, the fact of the matter is that many many people and corporations who enter into executory contracts are judgment proof. The possiblity of being unable to collect damages in the event of breach is omnipresent. (See eg Lynn Lopucki’s article “The End of Liability” in the Yale L. J.) Yet people still tend to contract. The question is what is the risk of default, and how much will the risk depress the price. Let me give you an example: many businesses use executory contracts — money now for performance later — and many of these businesses have very few assets or — more likely — their assets are encumbered with security interests that make them effectively exempt from collection. Yet contracting still occurs. You are right in that the risk of repudiation by judgment proof sellers might be so great as to make the business model untenable. Who knows? My only point is that it is far from obvious that this danger leads inevitably to collapse. This isn’t the case in the real world. And again, I reiterate that we are far from your graphic image of heartless corporations dismembers the bodies of the unwilling dead.

  57. Brian
    February 24, 2005 at 4:26 pm

    You are right that the question is “How much will the risk of default depress the price.” Other comments here indicate that a kidney sells in India for just over $1,000 — that’s a delivered right now, no uncertainty, fresh from a living person kidney. Now ask yourself, what percentage of the people willing to sell a kidney will be effectively judgment proof as they near death? I’d say a lot. In addition to the not inconsequential risk inherent in the delayed aspect of performance (e.g., what if the seller dies in a plane crash, drowns in the ocean, dies at home alone, or dies in some other way that prevents the kidney from being harvested), the risk of the seller rescinding the contract while judgment proof would, in my view, necessarily drive the price of the kidney so low as to make it an unattractive option for the seller — especially where tens of thousands or hundreds of thousands of other poor Americans are flooding the supply side of the market and driving the price down. But at the very least, the risk of repudiation would give the buyer a big incentive to request a specific performance clause in the contract, and I believe that the significant increase in willing sellers this change in the law would likely produce would give the buyers the leverage they need to insist upon such a provision.

    You seem to imply that the courts will not really order specific performance in these cases, even if the contract states that it is the appropriate remedy — presumably based on some public policy concerns. That’s certainly true as the law now stands. But we already crossed that bridge when we decided to eliminate the public policy against allowing people to sell their body parts. If you can sell your kidney just like you can sell your ’56 Corvette, then a contract that requires specific performance of the obligation to deliver the kidney should be just as enforceable as a contract that requires specific performance of the obligation to deliver the Corvette. I think that is what a lot of people are uncomfortable with when we start talking about selling body parts. If we allow such sales, then there remains no principled basis for treating those transactions any differently from any other sales contract where the intent of the parties to the deal will determine the available remedies.

    By the way, thanks for this thoughtful exchange. It’s been quite enjoyable.

  58. Nate Oman
    February 24, 2005 at 6:08 pm

    Brian: ” If we allow such sales, then there remains no principled basis for treating those transactions any differently from any other sales contract where the intent of the parties to the deal will determine the available remedies.”

    The interesting thing about the law of contracts, of course, is that the intent of the parties is not dispositive on the question of remedies. For example, suppose that I wish the remedy for breach of my contract to be a penalty of $1 million above compensatory payments. No dice. Not enforceable. It’s a penalty clause. Likewise, suppose that we agree that the remedy for the breach of your contract with me will be specific performance. There is nothing that keeps you from breaching the promise to have specific performance as the remedy in the event that you breach your other promises.

    Hence, the important question is what is the default remedy and here the law of contracts has been crystal clear for a good two hundred years or more. The default remedy is money damages. Specific performance is an extraordinary remedy requiring special justification. Hence, I think that you have the assumptions of the argument backwards. Specific performance is not a remedy toward which one inevitably slips in the absence of especially compelling arguments for damages. Rather, it is a remedy that one never gets unless there are particularlly compelling reasons for granting it.

  59. Brian
    February 25, 2005 at 12:05 pm

    So how is this. The buyer arranges the deal so that when the sale is completed and he pays the seller the money, ownership of the kidney immediately passes to the buyer, but the buyer also agrees in the contract that the seller can lease the kidney from the seller for the rest of the buyer’s natural life for $1. Thus, as soon as the buyer pays the money, “title” to the kidney passes to the buyer. It would be like a person who sells his house to another person, but the buyer allows him to continue living there for a specified period of time — a standard sale and leaseback. The seller’s performance is complete when title passes (subject to the duty of good faith and fair dealing not to interfere with the harvesting of the kidney after his death), so there is nothing left for the seller to rescind. The seller’s protests prior to his death are irrelevant. That kidney he’s using already belongs to the buyer — it’s a done deal. Once the term of the lease expires (i.e., death), the buyer has the right to take possession of the kidney it already owns. Under those circumstances, taking the kidney is not specific performance of a contract, but something more like a bank repossessing a car or a landlord evicting a tenant who has overstayed his lease, and courts grant that remedy all the time.

  60. Nate Oman
    February 25, 2005 at 1:18 pm

    Brian: OK this is fun. -You might be able to structure the transaction this way, but there are some problems. My understanding is that with regard to the sale of goods (as opposed to land) the UCC has essentially abolished the concept of title. Rather what you have are the idea of lawful permanent possession, excutory promises to convey possession, and default rules about when the risk of loss passes from a seller to a buyer. However, all of these rules have been uncoupled from the concept of title under the UCC. (This was one of Llewellyn’s innovations over the earlier common law of sales.).

    The sale and leaseback provision is an interesting idea. Sale and lease back transactions have been traditionally treated as rather fishy by the courts. Under Article 9, a sale and leaseback will generally be treated as a loan with a security interest. In your case, because the amount promised in return is less than the amount given as a price for the kidney, you might avoid the Article 9 problem. (If it was treated as a secured loan under article 9, then I think that the seller could avoid transfer of the kidney by filing for bankruptcy prior to death. This would kick out any unrecorded, ie sale and leaseback, security interest on the kidney. The question would then arise of whether the bankruptcy trustee would be required to resell the kidney to pay the unsecured creditors.) I think that you might have a pretty good argument that the contract was a sham designed to get around the court’s traditional reluctance to let people bargain their way around the default damages remedy. If this is a good argument — and I don’t really know since I have never looked at sale and leasebacks outside of the context of Article 9 — then you would need to respond to it by structuring the transaction so as to create indicia of authenticity. The best indicia I can think of would be to transfer possession of the kidney to the buyer prior to the leaseback, but this would sort of defeat the purpose.

    On way of getting to specific performance would be to just structure the whole thing as a loan. The Buyer would loan to the the seller the purchase price of the kidney, with a single balloon payment due on death. Along with the promise to pay, the kidney seller would convey a security interest in his kidney, which the buyer would then record with the secretary of state’s office. On death, this contract would given the estate the option of purchasing the kidney back at the original purchase price. If they elected not to do so, then the estate would be in breach of contract for its loan payment, and the buyer could foreclose on the kidney. In fact, since a kidney is presumeably personalty, you could even get the repo man to take the kidney in the dead of night as a kind of self-help. Furthermore, provided that you get the security interest in the kidney properly recorded, the seller could not avoid it by filing for bankruptcy.

  61. Kristine
    February 25, 2005 at 1:22 pm

    Nate, this is why we love you.


  62. February 25, 2005 at 1:39 pm

    …and loathe you.

  63. Brian
    February 25, 2005 at 1:58 pm

    Sounds like an idea for a great new TV show: Kidney Repo Man!

    Something else occurs to me with setting up the transaction as a secured loan. If, prior to his death, the seller (or rather, debtor) declares that he has changed his mind and has no intention of either repaying the loan or allowing the harvesting of his kidney, then this will amount to an anticipatory repudiation, and the buyer (or rather, creditor) will have the right to declare the debtor in breach and immediately seize (i.e., reposess or foreclose on) the kidney while the debtor is still alive!

    Also, suppose that if, prior to his death, the seller learns that his sister needs a kidney donation, so he covertly gives his sister the kidney that is the collateral on his secured loan (and the sister has no intention of giving the kidney up when she dies). Can the original buyer/creditor then recover the kidney from the sister? Sounds like a fraudulent transfer to me.

  64. Frank McIntyre
    February 25, 2005 at 3:06 pm

    OK, I’m convinced. If it means that we get a TV show called “Kidney Repo Man”, I am all for allowing kidney sales.

    I nominate David Hasslehoff.

  65. Brian
    February 25, 2005 at 3:36 pm

    I was thinking of Lee Majors (The Fall Guy) teamed up with Lorenzo Lamas (The Renegade).

  66. Kaimi
    February 25, 2005 at 9:50 pm

    On poor people and sale of bodies, see also this somewhat recent BBC report on baby sales in Eastern Europe:

  67. Frank McIntyre
    February 26, 2005 at 7:01 am

    I have to admit that I was waffling between Lee Majors and Hasslehoff. But in the end, I just want to see if KITT can pull out some guy’s kidney.

  68. February 26, 2005 at 8:25 am

    Read the Bulgarian baby selling article and it reminded me of international trafficing in humans.

    The last “divine king” of Ethiopia was investigated for genocide. Turns out he “merely” sold two million human beings into slavery.

    Lots of organ trafficing going on in China and India, and the poor are only reduced by it.

  69. cynthia
    March 14, 2005 at 12:33 pm

    Its my body. I sould be able to do what I want with it. I’m a 32 year old female. 5’1 117 pounds. I have never done drugs and I have always taken care of my self. I am married and have two children. I am not poor but I’m not rich either. If I could sell a kidney I would. Heck I could pay off my house and have less stress and have a better life myself.I could take off from work for a year and spend more time with my children. I have two good kidneys I know one of them could help and benifit someone else greatly. It’s a win-win situation. Thats my thought on the subject. I am signed up as an organ doner. People should be compensated when they donate a kidney. They have to do numerous test and time off from work. Alot of people would get a kidney that needed it.

  70. Nate Oman
    March 14, 2005 at 12:45 pm

    “Also, suppose that if, prior to his death, the seller learns that his sister needs a kidney donation, so he covertly gives his sister the kidney that is the collateral on his secured loan (and the sister has no intention of giving the kidney up when she dies). Can the original buyer/creditor then recover the kidney from the sister? Sounds like a fraudulent transfer to me. ”

    My understanding is that the security interest would follow the kidney. Provided that the brother does not default on the loan payment the sister keeps the kidney. However, if the brother failed to repay the loan, the buyer/creditor could foreclose on the kidney in the sister’s possession. BTW, I don’t think that this sort of a transfer would necessarily be a fraudulent conveyance because the security interest is in rem rather than in personam against the brother. Of course, if the buyer/creditor is even a moderately sophisticated drafter, he will make the transfer of the kidney to a third party into a default under the loan agreement, which would force the brother to either repay the full amount or allow the buyer/creditor to sieze the kidney. Once the kidney is in the sister’s body, however, the repo man, alas, is out, since one cannot commit a battery in the course of repossessing collateral. The disappointed buyer/creditor would have to get a writ of fieri facias and have the sherriff levy on the kidney.

  71. Kaimi
    March 14, 2005 at 12:56 pm

    If you haven’t paid your doctor’s bill, can she assert a mechanic’s lien on your body parts? For that matter, can she sieze them and have them sold to pay the doctor’s bill?

  72. Kevin
    October 17, 2005 at 4:09 pm

    Need information on kidney’s sales for financial gain.

  73. chudemar
    January 4, 2006 at 9:19 pm

    The reason why people selling their kidneys just because of finacial problems. Even though it dangerous for them to sell their body parts, they have no choice but to sell it. What is the most important to them is the money that they use to survive in hungry situation together with their families..

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