Teaching Law

Sunday, 7 April 2013

Compensating Organ Donors: Commodification or Freedom?

The Commonwealth government has today announced a ‘grant’ scheme for live organ donors. The scheme will pay live organ donors the minimum wage for six weeks following donation, with the aim of supporting them financially.


One of the perceived risks in providing payment for organ or tissue donation is that the human body is commodified, or that it somehow becomes property. This fundamentally conflicts with widely regarded notions of dignity in the human.
In fact for this reason, the common law tends to operate from a presumption that there is no property in the human body. Having said this, the courts have often steered around this, finding a ‘quasi-property’ or a ‘right to possession’ in a human body (including a corpse) or its parts.
Altruism seems preferred as a basis for giving tissue or organs. For example, blood donations in Australia are an important part of our health care system, but donors are not paid - in contrast to other jurisdictions. 
The foundation of the commodification argument can be explained with reference to philosopher Immanuel Kant. He argues that it is immoral to treat humans as means to an end. Rather humans must be treated as ends in themselves. On this argument, payment for donation of body tissue or organs may be interpreted by some as using a human as a means to an end - thereby breaking a fundamental moral code.
That the ‘grant’ is nominal is likely to be an important aspect of the government's decision. Allowing compensation is seen as an acceptable boundary to the morality of payment, avoiding the issue of financial profit from the arrangement. This is the basis on which altruistic surrogacy arrangements permit reimbursement of the birth mother's costs, but prohibit 'payment, reward or other material benefit or advantage'.
There is an associated perceived risk with payment, in the capacity for exploitation of donors. This argument posits that if financial gain is permitted, the 'rich' will be able to buy their way to a new organ, taking advantage of the 'poor'. Exploitation seems less likely to occur if payment is limited to mere compensation.

Bodily Autonomy, Freedom and Markets

On the other hand, others argue that people should be able to deal with their bodies as they see fit as an expression of their bodily autonomy and freedom - including freedom to contract.
In contrast to the Kantian notion that the donor is merely a means to an end (the end being the health of the recipient), the bodily autonomy argument suggests that the donation is an expression of dignity through the exercise of free choice over the use of the donor's own body.
This is a liberal approach to the issue, and tends to be argued also in the context of an economic argument. Economics would suggest that the market mechanism is the most efficient means of allocation of scarce resources (including human tissue and organs). Monetary incentives (profit, rather than compensation) would drive the market. Similarly, it is suggested that within a market, those most able to bear the cost of donation (both physically and financially) will be those who participate.  

Health Economics

While the government's announcement occurs within the context of this debate, there is likely to be a pragmatic system-wide reason behind the decision - namely that the health costs of supporting those waiting for an organ donation will be reduced if more organ transplants occur. In this way, the grants may be cheaper than the alternative and benefit on a large scale. This contrasts with the more individual analysis of commodification and individual freedom.

Leading the Way

On balance, this decision could well represent a step that helps to break a stand-off between these two arguments. If well implemented with full regard for the dignity and autonomy of the donors and their recipients, this decision could lead the way for policy advances in many presently-contested areas of health and bio-ethics. 

1 comment:

  1. My worry is that a profit model will see the most vulnerable people on the socio-economic scale putting their hands up to volunteer tissue and organs. I'm no clinician, but I don't have a great feeling about young, healthy but rather disadvantaged folks giving up a kidney for a monetary gain ('Hey, I've got two! I can part with one!') when kidney related illnesses are very high in this country, especially in the Indigenous Australian population.

    Wouldn't consent also become an issue, if you essentially contract out of your right to withdraw it? Look at marrow transplantation: When you donate marrow, the person to whom it is being transplanted to has all of theirs destroyed to make way for yours. They are immuno-suppressed to stop their body fighting off your marrow, but that means that they then cannot fight off *anything*. I think that you can still withdraw your consent to donate marrow because of the invasive nature of the procedure. You won't win any friends, of course, but you'll keep yourself off of a gurney if you decide you really cannot go through with it. What happens if you've contracted to donate for money?

    Four Corners recently did a brilliant (but very confronting) documentary on the lives of people affected by organ donation. I suspect that most people do not realize how precise the conditions for organ donations are. In cases where the potential donor is on their deathbed, devastated families often reject the person's wish to be a donor, because in the end, they are the ones tasked with the difficult decision to 'pull the plug'. They find that they cannot do so, even if the person can't live without a respirator/has lost significant brain function.

    I think that if more people had that discussion with their families, organ waitlists might improve.

    NB: if there are any folks with a clinical background on Kate's blog, feel free to correct me. I'm only working on secondhand knowledge.