Sam Reed

Professor Preston-Roedder

PHIL 199

4 December 2023

Kidneys for Sale: The Case for a Legal Market in Human Organs

Despite a 1994 nationwide ban, illicit sales of human organs have become an exploding industry in India. The subcontinent is a hub for so-called “medical tourism,” where foreigners travel for treatments at better prices; sought after for its “low cost and qualified doctors,” similar incentives have propelled India as a major supplier of illegal kidneys (Vaughn 645). Police operations targeting illicit networks of organ traffickers and doctors have led to a number of high-profile arrests in recent years. While those in India’s illicit organ market have shown a disregard for patients and practice, soliciting donations from vulnerable workers and often paying less than originally promised, whether a successful organ market could exist — or would even be desirable — remains an open question. While most countries rely on altruistic donations, backlogs and high costs represent a barrier for many; here, I argue that a well-regulated organ market could be an ethical alternative. Underscoring the benefits of a legal market for organs, a possible objection based on harm to exploited donors will be refuted, based on the grounds that restricting the trade of organs represents a form of unnecessary paternalism.

This is not to dismiss the problems that currently exist in the illicit market for organs, nor to downplay the suffering of those duped by organ traders into donating a viable kidney. For many, particularly among the global poor, the choice to sell an organ comes from a place of economic desperation, often without the proper education to make an informed decision about the potential costs and benefits of donating. Still, a regulated market could help rectify some of these concerns, ensuring informed decision-making and guaranteeing compensation for what is actually owed. Those that donate a kidney should understand the long-term consequences and possible disruptions to employment that accompany donation and should be fairly compensated for what they give up — but these can only be guaranteed with a regulated organ market, not the current system of illicit trading that dominates in countries like India. While those that donate will almost certainly experience some negative health consequences in the long run, the point of payment is to compensate them for these effects; if this payment is too low, regulations can help keep prices competitive, but the point is that some negative consequences can and should be expected. This, however, shouldn’t preclude the overwhelming benefits of a legal organ market: importantly, the creation of regulated trade stands to benefit those actually in need of kidneys. Reliance on altruistic donations has created real problems for patients, and a regulated organ market would likely be able to meet this demand more effectively. Lost in most discussions of regulated markets are the actual benefits to those in need of a transplant — and while some negative outcomes might be expected for those donating their organs, fair compensation and tighter regulation would represent an important step up from the current system of illicit donations and illegal trade.

One major objection to the market for legal organs is the fact that, while donors might be informed of the potential negative side-effects of organ donation, it doesn’t necessarily mean that exploitation is not taking place. Those employed in a sweatshop might partially or fully understand the dangers of employment — but without alternatives, many in developing countries see sweatshop labor as their only viable source of income. In a similar way, while organ donors in countries like India might be informed of the negative consequences of donating a kidney, they may still donate because of a lack of economic or other social opportunities. In short, education alone does not eliminate the potential for exploitation.

While it is true that donors might be exploited in a legal market for organs, the reality is that exploitation itself does not necessarily mean that a relationship is worth outlawing altogether. While many are informed of the negative effects of gambling, for example, the exploitation of gamblers by casinos is not a relationship deemed worthy of total ban: some people might find enjoyment in gambling, and allowing people the autonomy to make personal decisions with their money outweighs the benefits of a society totally without it. While some forms of paternalism and state intervention might be warranted due to the sheer scale of exploitation (as in the case of Chinese sweatshops), exploitation alone is not grounds enough to ban a certain behavior or relationship — especially, as with the sale of human organs, if the relationship offers benefits that are deemed more important to the society as a whole.
            In the end, a legal market for organs would likely result in better protections and education for donors, greater availability to recipients, and higher levels of compensation and safety than the current system of altruistic donations and illicit organ markets. While exploitation remains a valid concern, it does not mean that organ trading should be banned outright: hard paternalistic interventions conflict with donors’ autonomy to make decisions about their own bodies, and risk perpetuating a system where essential organ donations remain out-of-reach for many.

Works Cited

Vaughn, Lewis. Bioethics Principles, Issues, and Cases. Oxford University Press, 2023.