Should It Be Legal To Sell Your Organs?

By Jessica "Lulu" Lipman
Jessica “Lulu” Lipman is a sophomore at the University of Pennsylvania studying English.

​Every day, eighteen people die waiting for an organ transplant. Today, there are more than 113,000 people waiting for a life-saving transplant [1]. Organ transplants are a feat of modern medicine, in which a failing organ from one person is replaced by a healthy organ from a donor. Nearly any organ can be transplanted, including kidneys, corneas, lungs, skin, and pancreases [2].

When a patient’s organ is failing, the individual is placed on a waitlist for a new organ. As organs become available, a matching system distributes the organs based on criteria such as genetic compatibility, location, and condition of the new organ.

The most commonly needed organ is kidneys and the median wait time for a new kidney is 3.6 years [3]. For many people, however, this is far too long. While they wait for a new kidney, the individual is dependent on dialysis.

Many factors make it extremely difficult to receive a transplanted organ in the United States. First, for a living person to donate an organ, it can cost between $5,000 and $20,000, and the donor will have to miss approximately six weeks of work. Moreover, many chronic conditions, like high blood pressure and obesity, prevent a vast majority of Americans from being able to donate [4].

Current legislation also makes it more challenging to receive an organ. The National Organ Transplant Act (NOTA), which was passed in 1984, prohibits organ donors from receiving any compensation. Although the law was enacted to ensure that at-risk and poor individuals do not sell their organs for a quick payday, it also has created barriers for people to get the organs they so desperately need [5].

Thus, people urgently in need of organs are forced to look elsewhere to receive a life-saving donation. A black market has emerged as an alternative way to acquire an organ, and one kidney can sell for upwards of $200,000. The World Health Organization estimates that at least 10% of kidney transplants are as a result of a black-market transactions [6]

Most of the organ black market exists outside of the United States, in countries such as India, China, and the Philippines. The practice of American patients travelling abroad to purchase an organ is known as “transplant tourism.” Although it is illegal to buy or sell an organ in any country except Iran, developing countries have less strict regulations and oversight, therefore making it easier to buy a viable organ. Not only does transplant tourism have blatant ethical concerns, but those who received an organ from abroad suffer much higher rates of complications and infection [7].

The organ black market takes advantage of impoverished and vulnerable people who feel like they have no choice but to sell an organ. These individuals are approached by “brokers” who facilitate deals between the potential donor and recipient, taking a hefty commission. Brokers make big promises to donors, but, after the operations, they realized they have been deceived on their payment and are unaware of the side effects of the procedure [8]. The organ black market exploits both people who are desperately in need of life-saving transplants, as well as poverty-stricken individuals who will do anything to support themselves financially.

Because of the issues that both current legal methods of organ donation and the black-market pose, there has been discussion around how to combat the growing problem and seemingly endless shortage of organs. One suggestion is to legalize the consensual buying and selling of organs in the United States.

To understand how a legal organ market could work, people look to Iran, where receiving compensation from kidney donation has been legal since 1988. Any Iranian in need of a kidney is first put on a waiting list for six months, in hopes of receiving a kidney from a deceased organ donor. If a kidney does not become available, a team of doctors will screen potential donors and try to find the right candidate for the procedure. The donor will receive about $1,200 from the government for the kidney, and usually more money from the recipient or a non-profit organization [9]

On paper, the Iranian system seems like a good solution to the organ shortage, especially considering there has not been a waiting list for a kidney since 1999. However, the system has many shortcomings. 70% of people who donate kidneys are impoverished, meaning that the system exploits poor individuals, the same population targeted on the black market. Additionally, due to inflation, donors have been receiving less and less compensation for their organs. Lastly, because of lax regulations, it is unclear if the ability to sell organs legally has diminished the black market. Some doctors have argued that the system just makes it easier for a black market to function [10].

Should the United States legalize a system where a donor can be compensated? The answer seems more complicated than yes or no. Currently, in the United States, it is legal to receive money for the donation of plasma, sperm, egg, and bone marrow. Thus, the question of where should the line be drawn on what a person can be legally compensated becomes fuzzy [11].

It can be argued that an American system of legalizing the sale of organs would be better regulated than Iran’s system. Although this could be true, there is no way to know for sure. At the very least, legalizing organ purchasing would shorten the ever-growing transplant list and provide monetary incentives to an already established industry.

A legal organ trade in the United States is unlikely to appear  any time soon, which begs the question of what to do in the meantime, as the organ shortage continues to worsen. One simple way to incentive organ donors is to create an opt-out system. In Austria, for example, every person is automatically registered as a donor unless they specifically opt-out or are not eligible. Therefore, 90% of Austrians donate their organs after they die, as opposed to just 15% in America [12]

It is unclear if it will ever be legal to receive compensation for organ donation in the United States. What is apparent, however, is that the lives of those waiting for an organ can be saved if the United States can find a solution to the problems surrounding organ shortages.

​​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] “Transplant Trends” (ND) United Network of Organ Sharing. https://unos.org/data/transplant-trends/
[2] “Organ Donation and Transplantation” (2 Feb 2017). Cleveland Clinic. https://my.clevelandclinic.org/health/articles/11750-organ-donation-and-transplantation
[3] “Organ Donation and Transplantation Statistics” (ND) National Kidney Foundation. https://www.kidney.org/news/newsroom/factsheets/Organ-Donation-and-Transplantation-Stats
[4] Collins, Sam. “Why More Than 120,000 Americans Can’t Get The Organ Transplant They Need.” (20 Nov 2014). Think Progress. https://thinkprogress.org/why-more-than-120-000-americans-cant-get-the-organ-transplant-they-need-a7db72f8bfac/
[5] Fry-Revere et al. “America's Organ Transplant Law Is Criminally Unfair to Donors” (23 Oct 2014) The New Republic. https://newrepublic.com/article/119963/us-organ-transplant-law-needs-reform-let-donors-get-reimbursed
[6] Wagner, Lindsey. “Organ Trafficking: More Than Just a Myth” (11 Nov 2014). The University of Utah. https://law.utah.edu/organ-trafficking-more-than-just-a-myth/
[7] “Organ Trafficking: The Unseen Form of Human Trafficking” (26 June 2018). ACAMS Today. https://www.acamstoday.org/organ-trafficking-the-unseen-form-of-human-trafficking/
[8] Prochertchoo, Pichayada. “Kidney for Sale: Inside Philippines’’ Illegal Organ Trade” (19 Oct 2019) Channel News Asia. https://www.channelnewsasia.com/news/asia/kidney-for-sale-philippines-illegal-organ-trade-12007722
[9] Hammond, Samuel. “How Iran Solved its Kidney Shortage, and We Can Too” (12 Sep 2018). Niskanen Center. https://www.niskanencenter.org/how-iran-solved-its-kidney-shortage-and-we-can-too/
[10] Krishnan, Madhumitha. “Legalizing Trafficking: Iran’s Unjust Organ Market and Why Legal Selling of Organs Should Not be The Resolve” (3 May 2018) Berkeley Political Review. https://bpr.berkeley.edu/2018/05/03/legalizing-trafficking-irans-unjust-organ-market-and-why-legal-selling-of-organs-should-not-be-the-resolve/
[11] Berger, Alexander. “Why Selling Kidneys Should Be Legal.” (5 Dec 2011). The New York Times. https://www.nytimes.com/2011/12/06/opinion/why-selling-kidneys-should-be-legal.html
[12] Krishnan, Madhumitha. “Legalizing Trafficking: Iran’s Unjust Organ Market and Why Legal Selling of Organs Should Not be The Resolve” (3 May 2018) Berkeley Political Review. https://bpr.berkeley.edu/2018/05/03/legalizing-trafficking-irans-unjust-organ-market-and-why-legal-selling-of-organs-should-not-be-the-resolve/

Photo by Olga Kononenko: https://unsplash.com/photos/Xi4XD2APR-o