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Sociological and ethical issues in transplant commercialism

Epstein, Miran

Current Opinion in Organ Transplantation: April 2009 - Volume 14 - Issue 2 - p 134–139
doi: 10.1097/MOT.0b013e3283219d8e
Organ preservation and procurement: Edited By Eytan Mor

Purpose of review ‘Global transplant commercialism’ (practices and policies involving international trade in organs from living vendors, e.g., ‘transplant tourism’) is currently subjected to unprecedented criticism. In parallel, the debate around ‘local transplant commercialism’ (practices and policies that confine trade in organs from living vendors to national markets or economic unions) is heating up. In an attempt to assess the potential outcomes of these trends, this article reviews and discusses some sociological and ethical issues, ending with a proposal for a reinvigorated anticommercialist strategy.

Recent findings The current international campaign against global transplant commercialism is conducted by an ad hoc alliance between strange bedfellows, proponents of local transplant commercialism on the one hand and opponents of any transplant commercialism on the other. Disparities in the rigor of the respective ethical discourses, the expanding list of precedents of legitimized commerce in the human body, and the political economy of transplantation, all suggest that the former have the upper hand.

Summary Recent achievements in the struggle against international organ trafficking may not herald the abolition of transplant commercialism but rather presage its reconfiguration in deglobalized forms. In light of such a prospect, those who wish to prevent the pervasive commodification of the human body from entering the gates of transplant medicine should consider devising a new, perhaps more radical, strategy.

Barts and The London School of Medicine and Dentistry, Queen Mary, University of London, London, UK

Correspondence to Miran Epstein, MD, PhD, MA, Senior Lecturer in Medical Ethics and Law, Academic Unit for Human Science and Medical Ethics, Centre for Health Sciences, Barts and The London School of Medicine and Dentistry, Queen Mary, University of London, 2 Newark Street, London E1 2AT, UK Tel: +44 20 7882 7086; fax: +44 20 7882 2552; e-mail: m.epstein@qmul.ac.uk

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Introduction

‘Global transplant commercialism’ – practices and policies that involve trafficking in organs (mostly kidneys) from living vendors across national borders, for example, ‘transplant tourism’ – is currently under attack. In parallel, the debate around ‘local transplant commercialism’ – practices and policies that confine trade in organs from living vendors to national markets or economic unions – is heating up. This review assesses the potential outcomes of these trends on the basis of disparities in the rigor of the respective ethical discourses, the expanding list of precedents of legitimized commerce in the human body, and the political economy of transplantation.

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The rise of global transplant commercialism

It was recently estimated that transplant commercialism accounts for 5–10% of kidney transplants performed throughout the world [1••,2•]. The transplant commercialism global-to-local ratio is yet to be gauged; however, the geopolitical–economic distribution of potential buyers and vendors and international differences in the implementation and enforcement of anticommerce norms suggest predominance of the former. It is evident, however, that, until recently, the absolute volume of the global type has only surged, despite the fact that it contravenes international conventions and notwithstanding the political stigma it carries [3–11].

This finding is not surprising. In offering virtually unlimited supply of kidneys, global transplant commercialism brings together the diverse interests of many stakeholders: patients on the waiting lists in rich countries and the parsimonious payers of their expensive dialysis (states, insurers, and providers), the middlemen involved (brokers, officials, and doctors), the hosting medical centres, the organ-exporting countries, the travel and tourism industries, and, finally, the impoverished men and women who can sell nothing but their body parts. On a more general note, global transplant commercialism tallies with the economic zeitgeist known as ‘neoliberal globalization’, the conception that purports to enhance competitiveness, among other things, by shopping around the globe for the cheapest commodities available, while promising that wealth will eventually ‘trickle down’ to benefit the poor too.

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Some failed promises

As it grew, however, global transplant commercialism transpired to be a double-edged sword: it has spared none of the stakeholders but the various intermediaries [12]. Rich countries that have been spellbound by its promises may have had no qualms about its morality, but they did find its practical drawbacks disturbing at times. Many of them are now experiencing a deepening shortage in organs. True, it is largely the result of increasing morbidity and could thus be depicted as the outcome of too little ‘outsourcing’ rather than too much. But this is apparently just a partial picture. Global transplant commercialism is said to have had a direct negative effect on local donation rates. It has thus sidelined the patients who could not ‘outsource’ and thereby increased the financial burden on their healthcare payer.

Global transplant commercialism has also sparked global competition for patients, organs, and investments between transplant services of rich and poor countries. In this competition, the former are increasingly disadvantaged (it may be of interest to note that the representation of this victim in the campaign against global transplant commercialism is particularly prominent) [13].

Moreover, global transplant commercialism has failed to deliver on its promises to the ‘tourists’ (transplant recipients) themselves, with outcome studies indicating increased morbidity mainly due to poor vendor screening, selection, and matching in the organ-exporting country complicated even further by poor record keeping. Moreover, the possibility that transplant tourists import not just kidneys but perhaps some transmissible infections as well has become a public health hazard [14–17]. Such upshots and dangers do not affect individual and public health only. They also call the very financial logic of outgoing transplant tourism into question.

Global transplant commercialism has affected poor countries too. Diverting organs and scarce public resources to the incoming transplant tourism industry, it has elbowed aside both the local patients on the waiting lists as well as the public services that should have treated them. And last but not least, whatever its benefits, few, if any, have trickled down to the impoverished vendors. On the contrary, the latter often fall victim to manipulation, fraud, and physical violence. At any rate, their posttransaction health and financial status tend to worsen [18–22].

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An impressive opposition

With these shortcomings, global transplant commercialism was due to breed some opposition. In fact, both the shortcomings and the opposition have already made a difference. Israel, for example, recently passed new legislation that officially outlaws organ trafficking and brokering, with severe penalties for offenders [23]. It did so partly in response to international criticism of its ‘outsourcing’-encouraging policy and partly to tackle a sharp decline in local donation rates. China and Pakistan, which used to take the bulk of transplant tourists, recently banned organ sales, too. Even the Philippines, which had filled the gap for a while, was forced to revoke its official protourism policy [24–27]. That having been said, ineffective enforcement and counter-pressures continue to threaten the stability of such moratoria. The death of global transplant commercialism is far too early to pronounce.

In any case, these victories should also be attributed to the effectiveness of the opposition. Orchestrated by a small number of highly committed individuals, it has become no less global than the phenomenon it was set to eradicate. The spectrum of the stakeholders who produced the Declaration of Istanbul on Organ Trafficking and Transplant Tourism, for example, was exceptionally wide, the same being undoubtedly true for a similar paper produced around the same time by the WHO [28••,29••].

However, the extent of the opposition turns out to be even more impressive in view of the bitter conflict it suppresses. As a matter of fact, the current ‘movement’ against global transplant commercialism is an ad hoc alliance between proponents of ‘local’ transplant commercialism and opponents of ‘any’ transplant commercialism (a relativistic view on these matters has been rare [30]). The two things that unite these strange bedfellows are their hostility towards global transplant commercialism and their desire to meet the local demand for organs. Otherwise, there is a war going on between them, a war about the appropriate solution to the organ crisis (interestingly, this partnership–rivalry knows no bounds; it exists in rich and poor countries alike [31–34]). Those who are ‘right’, whoever they are, might not necessarily win it. Those who are stronger certainly will. Put differently, this war is to be decided by the political economy of transplantation, that is, the ecology of the pertinent interests, and not by ‘reason’ or ‘ethics’. Similar to all cold wars, however, it takes place largely in the ideological theatre, that of ‘reason’ and ‘ethics’. In the assumption that the balance of power in this celestial arena reflects and reaffirms the balance of power in the terrestrial one, it might tell something about the potential outcomes of this war.

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The case for local transplant commercialism

The promarket discourse maintains that, however efficient, a transplant donor programme that appeals to social solidarity and the goodwill of individuals will inevitably fail to meet the increasing demand for organs. It asserts that letting patients suffer and die on the waiting lists, when so many organs are out there just begging to be harvested, is morally unacceptable, and so is wasting public resources. Noncommercial systems are thus both ineffective as well as immoral [35,36].

The promarket discourse holds that, in contrast, the market, and only the market, can provide unlimited access to these organs and be moral at the same time. Not any market, though. The international organ market, for example, is not just counterproductive but also immoral. This is because it creates, as its practical drawbacks clearly reflect, severe inequities in the distribution of power, benefit, and risk. Such faults, the discourse contends, result from the essentially unfettered nature of this market. An international organ market cannot be tamed and is thus bound to remain both counterproductive as well as immoral.

That said, an organ market that is free from any practical drawbacks and inequities is feasible within the bounds of a national market or an economic union. It must adhere to certain regulatory principles, though (these were outlined already in the mid 1990s [37]). As far as the protection of recipients is concerned, the principles include a single buyer, mechanisms assuring safety and quality, and systems that guarantee equitable, nonmeans-based allocation of the organs. The principles are no less attentive to the welfare of the vendors. In addition to the single buyer, they include mechanisms validating consent requirements, safeguards against buying organs from vulnerable people, strict prohibition of brokering, and systems assuring competitive remuneration, life insurance, continuous healthcare, and priority in transplant waiting lists [32,34,35,38–45].

Otherwise, the promarket discourse sees no essential moral problem with trading in organs. Firstly, body parts are private property. In the name of liberty, their owners should be free to do with them as they like. Secondly, both parties can make a free choice, at least in principle. The unpleasant nature of the dilemma each one of them is facing does not by itself make their choices unfree. On the contrary, it is rather the existing prohibition of commerce in organs that limits their freedom, often with dire consequences for both of them. Thirdly, the generally accurate classification of buyers and vendors as rich and poor, respectively, may perhaps seem to reflect inequities and suggest relations of power and exploitation. However, this does not have to be the case. In the regulated market, the parties would maintain perfectly symmetrical relations vis-à-vis each other. Their complementary deficiencies and surpluses would guarantee ‘mutual exploitation’ and hence equal distribution of benefits and risks. Fourthly, many instances involving commerce in the body are already legitimate. Making the kidney an exception would be ethically inconsistent. Fifthly, the real choice we are facing, and the only one, is between a regulated market and a black market. Considering the interests of buyers and vendors, the former is by far the better option.

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A weak rival

While the promarket discourse is robust in its own terms, its rival is not. Firstly, it falsely blames transplant commercialism for ‘violating human dignity’ [28••]. In fact, it is not transplant commercialism that violates human dignity but rather a society that forces many of its members to consider transplant commercialism as a viable option [46]. Otherwise, the antimarket discourse fails to tackle the essence of transplant commercialism, that is, the very principle of trade in body parts. Instead, it directs its moral critique at the grotesque features of what might be described rather as the unfettered market, namely, ‘exploitation’ of ‘vulnerable’ vendors [28••,47,48]. Ironically, this situation is exactly what the proponents of the regulated market do, which explains why they too accepted the recent international declarations and how seriously anticommercialist the latter really are.

Secondly, the pragmatic objection to the regulated market, which maintains that regulation would be counterproductive, if not altogether impossible, is no less problematic. With so much money at stake, it posits, the regulatory mechanisms that purport to assure liberty, quality, and safety are bound to fail. Doctor–patient relationship would be harmed, and people would start selling what they currently donate, which would rather increase public spending [48–55]. Whether such fears are sound or not is beside the point. The problem with this essentially empirical criticism is that it actually invites the proponents of the market to try to prove their case. They will not turn this invitation down. Who knows, they might also succeed. And even if they don't, there will be no easy way back.

Thirdly, the antimarket discourse tends to identify and denounce quasi nonmarket practices – such as those that purport to exclude commerce, but actually don't – only when these are overly blatant. It is usually silent about the more subtle fictions, notably ‘altruistic-directed living unrelated donation’ [56,57]. This situation may suggest that the antimarket campaign is willing to make a compromise with the market, as long as the compromise allows it to pretend that it has made no compromise.

Another problem with the antimarket discourse concerns its recent appeal to all countries to assume enduring responsibility for healthcare and financial welfare of local organ donors [2•,28••,29••]. This plea, which purports to protect organ vendors in poor countries and ‘remove disincentives’ to donation in rich countries, is certainly compassionate and rational, respectively. At the same time, however, it makes vending even more attractive.

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Precedents and political economy

While the weaknesses of the antimarket discourse should make one wonder whether its proponents really want to win the ideological debate, the promarket campaign seems to be doing well on the ground too. Firstly, it has an expanding list of nonmedical and medical precedents of legitimized commerce in the body to support its case (e.g. commerce in labour power, prostitution, paid participation in clinical trials, commercial gestational and sexual surrogacy, and commerce in reproductive tissue). Although the very fact that these practices have been legitimized, at least in some countries, does not attest to their morality, it does reflect the increased normalization of the general principle and thus helps to promote commercialism in transplant medicine too (an ingenious suggestion to buy patients' compliance to immune-modulating agents in order to prolong renal graft survival is probably the most recent example in this field [58]). In fact, Iran, the only precedent of a regulated market in organs so far, already serves as a model for the promarket campaign [59].

As it happens, however, developed countries are still generally more comfortable with buying organs than selling them. There, a rather insidious commercialization is taking place, and it makes no distinction between organs from the dead and those from the living. Indeed, commercialist suggestions concealed behind euphemisms such as ‘prohibition of commerce’ combined with ‘compensation’, ‘rewarded gifting’, ‘incentive’, ‘fixed payment’, and ‘reimbursement of external costs’ (the latter referring to tax relief, education grants for children, funeral costs, and increase in pension and benefits) are becoming increasingly popular [36,60–63].

But these are not just ideas. Israel and Saudi Arabia, which recently outlawed trade in organs, have also legalized a monetary reward to living donors (it is worth noting that a paragraph asserting the commitment of the Israeli government to allocate resources to the local deceased donor programme was excluded from the new transplant law at the last moment) [23,59]. Such actions are apparently contagious; a debate about a similar bill is currently taking place in the USA as well [64].

Ironically, these phenomena have very little to do with a regulated market and everything to do with a government-sponsored unfettered market. They should thus raise the suspicion that the promarket campaign does not really care about ‘regulation’ or ‘the welfare of patients and vendors’. It is apparently more sympathetic to the interests of other stakeholders, notably the neoliberal economy, which is renowned for its exceptionally poor tolerance of dialysis, and regulation.

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Towards a radical anticommercialist strategy

In view of this analysis, the recent achievements in the struggle against international organ trafficking do not seem to herald the abolition of transplant commercialism but rather presage its reconfiguration in deglobalized forms. This trend is not unstoppable, though. The antimarket campaign could still change things. To be able to do so, however, it needs to embrace a strategy combining new discoursive and practical elements.

Firstly, it should expose and denounce all quasi nonmarket fictions, regardless of any effect this might have on the organ pool [65]. Second, it should refuse to participate in any debate about the feasibility or efficacy of regulation. Actually, it should describe such issues as totally irrelevant. Third, it should accept the claim that the regulated market is ethical, ‘and reject it precisely on that ground’. Indeed, the regulated organ market is a perfect ethical smokescreen for a society that creates kidney disease on the one hand and poverty on the other. This immoral society ought not to be allowed to hide these wrongs behind any ethical veil. The campaign against transplant commercialism could be coherent and possibly successful only if it explained that the suffering-preventing capacity of a kidney disease-free and poverty-free world is considerably greater than that of any regulated market in organs.

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Conclusion

The flaws of the antimarket campaign reflect and reaffirm the increasing legitimacy of the general principle of trading in body parts. If it really wants to prevent the pervasive commodification of the human body from entering the gates of transplant medicine, it would have to combine its criticism of the organ market with criticism of the social circumstances that make it so attractive.

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Acknowledgement

There are no conflicts of interest.

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References and recommended reading

Papers of particular interest, published within the annual period of review, have been highlighted as:

• of special interest

•• of outstanding interest

Additional references related to this topic can also be found in the Current World Literature section in this issue (pp. 212–213).

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Keywords:

commodification; organ trafficking; regulated market in organs; transplant commercialism; transplant tourism

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