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It doesn’t take Sherlock Holmes to link together the two most vital facts in the current dismal scene in organ transplantation: the explicit prohibition against the sale of organs for “valuable consideration” contained in the National Organ Transplant Act of 1984 (NOTA), and the chronic shortage of organs, especially kidneys (waiting list, 64,379), which now condemns thousands of people each year to living torture on dialysis until they receive a kidney-unless of course they die before relief comes. Economically, the prohibition against sale has the same consequence for organs that it does for widgets. Set a zero price, and effective demand is far greater than effective supply. Relax the prohibition, and the increase in price should over time obviate the shortage. The fundamental objection to this market approach usually involves the shopworn argument that selling organs (apart from saving lives) undermines individual dignity by treating people and their body parts as mere commodities. Yet the appropriate transaction for an organ sale need not blindly follow the norms at a supermarket check-out counter, any more than it does in other delicate interactions, involving marriage, adoption or death. Sensitivity, tact and decorum are usual occurrences within market institutions. A less-noticed consequence of systematic shortages lies in the determined efforts of individuals to circumvent them. Desperate people might enter black markets either at home or overseas to beat the prohibition. But that strategy has only limited value. A trip to some third-world country could lead to the transplantation of a diseased organ. Any effort to buy a healthy organ at home requires more than simple collusion between buyer and seller. But large transplant teams have little stomach for facing heavy criminal penalties for organ trafficking. So human ingenuity today takes advantage of family benevolence, limited altruism of strangers and a clever interpretation of the “valuable consideration” requirement in NOTA. These all add up to a rise, now around 50%, in donations from living, as opposed to cadaveric, donors. For donors and recipients who are related, natural affection does its work. But when these pairings fail because of, for example, incompatible blood types, new complications ensue. One notable response is the rise of Internet advertisement for suitable organ donors on sites such as matchingdonors.com, where desperate pleas for help occasionally do find altruistic donors. Unfortunately, not everyone applauds these acts of selfless generosity. Some hospitals and transplant teams have announced their unwillingness to do transplants between strangers because of the fear of an under-the-table payment (for which there can be other safeguards) or for the far more dubious reason that these private donations upset the integrity of the waiting list established by the misnamed United Network of Organ Sharing (UNOS) that administers much of our organ distribution system. The objection here is that directed donations to strangers count as an impermissible form of “queue jumping.” Better the altruist should give to a list, not a person. Fortunately, UNOS has resisted to date the effort to ban these transactions on the strength of ephemeral fairness arguments. Organ swaps A second line of escape from the sale prohibition relies on organ swaps between donor-recipient pairs, driven by blood-type incompatibility. In the simplest variation, Donor I has blood type A but Recipient I has blood type B. A direct organ donation results in death. Donor II has blood type B but Recipient II has blood type A, which again precludes the direct donation. So the two pairs make this deal: Donor I donates to Recipient II and Donor II donates to Recipient I. The upshot is two live transactions, instead of none. In principle, no one can oppose any swap that saves two lives. But this transaction should raise serious questions under NOTA. Each transaction is altruistic within each donor-recipient pair. But the swap between the two pairs is old-fashioned barter, a fully bilateral contract that offends the valuable-consideration requirement of NOTA. Fortunately, legal ingenuity overlooks the obvious and finds pure altruism because no cash changes hands. But this altruism takes a most peculiar form. The normal altruist will make his or her gift no matter what others do. But, obviously, no court would ever order a person to suffer an organ transplant against his or her will, no matter how solemn the promise. Set the first transplant on Monday and the second on Tuesday, then ask what likelihood that the second will take place after the first is successfully done. We thus resort to a novel form of simultaneous altruism in which both donors receive anesthesia simultaneously to avoid unraveling the transaction. Thousands of lives are saved by this maneuver, and a pox on anyone who would block these transactions. But the lesson here is clear. The barter works because there’s no cash to grease the deal. Yet even if these swaps allow for the most effective organ pairings, the chronic and growing shortage remains, and that shortage will persist no matter what the level of medical progress and no matter whether or not we adopt some system of national health care. One simple proposal is to use the same eligibility and safety requirements for organ sales that are used for donations. We can’t let our esthetic revulsion against the sale of body parts (which I share) become an iron barrier to sensible transactions that could save thousands of lives. Money is not the root of all evil. If we can manage organ barters, we can learn to manage organ sales. Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution.

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