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Subject Area: Political Theory

The Production and Exchange of Used Body Parts, Simon Rottenberg - Friedrich August von Hayek, Toward Liberty: Essays in Honor of Ludwig von Mises, vol. 2 [1971]

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Toward Liberty: Essays in Honor of Ludwig von Mises on the Occasion of his 90th Birthday, September 29, 1971, vol. 2, ed. F.A. Hayek, Henry Hazlitt, Leonrad R. Read, Gustavo Velasco, and F.A. Harper (Menlo Park: Institute for Humane Studies, 1971).

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The Production and Exchange of Used Body Parts
Simon Rottenberg

“The market economy is the social system of the division of labor under private ownership of the means of production.... Everybody in acting serves his fellow citizens.... Each man is free.... The market directs him and reveals to him in what way he can best promote his own welfare as well as that of other people.”

L. von Mises, Human Action, A Treatise on Economics.

When failure occurs in human organs and tissues it is sometimes possible to prolong life and cure illnesses by transplanting parts from one body to another.

This paper will discuss the market, as an alternative to a system of voluntary donation, as an instrument for bringing forth a supply of organs and securing their storage and their appropriate distribution in space and time.

Transplants, or grafts, as they are sometimes called, are either cellular or structural. If cellular, they are of living organs (for example, kidney, liver, spleen or skin); if structural, they are of extracellular tissues (for example, artery, bone or cornea).

G.E.W. Wolstenholme reports that the first transfer of blood (from one dog to another) was done at Oxford by R. Lower in 1666. J. F. Nuboer says that the first recorded article on organ transplantation was published in the Wiener Klinische Wochenschrift in 1902 when Ullmann described the transplantation of a dog's kidney to its neck.

Skin was transplanted experimentally in the 1920s and 1930s by E. Holman and H. L. Smith reports that the first successful kidney transplants in humans was done in 1954 by J. E. Murray in Boston.

According to P.V. Rycroft, the first human graft of the cornea was done in Reisinger in 1817.

Organ and tissue transplantation is not a new medical procedure. The very large resources devoted to bio-medical research in recent years has, however, greatly enlarged the stock of knowledge about transplantation. It has been reported that there are some thirty different body parts that have been transplanted with more or less success. These include, in addition to the parts already mentioned, bone marrow, bones, pancreas, lungs, livers and hearts, blood vessels, cartilage, ovaries, testes, various glands and the intestinal tract.

Not all of these transplants have been executed in humans; some have been done only in animals. Some are still experimental in the sense that the probability sets associated with possible outcomes are unknown. Some are standard (non-experimental) procedures; the probability sets are known.

Transplants are, in some cases, unique therapeutic instruments; the patients will expire if they are not done. In other cases, transplantation is a therapeutic substitute for other procedures as when treatment consists of either renal transplantation or periodic dialysis.

Transplants may be autografts (from one to another part of the same body), or homografts (from one to another body of the same species), or heterografts (from one to another body of different species).

Parts may be taken from living suppliers or from cadavers. If taken from living suppliers, it may be virtually risk-free to them, as when blood, skin, or bone marrow is taken. The risk may be positive, but small, as in the case of paired organs like kidneys when, if one is taken, the suppliers remaining kidney takes up the whole burden previously shared by both kidneys and the risk consists of a certain (small) probability of failure of the remaining kidney and, of course, the risk associated with surgery in the taking of the supplied kidney, itself; in the same subset are ovaries, testes, nerves and small blood vessels. Or the risk may be positive and large, as in the case of unpaired organs essential to life like hearts, livers and pancreas; the taking of such an organ will cause the life of the supplier to come to an end.

There are three phenomena that affect the supply schedules of organs and tissues.

Some organs deteriorate rapidly if preservation techniques are not quickly administered. A kidney must be excised from a cadaver within about an hour after death and quickly perfused and cooled thereafter, if it is to be useful for transplantation. A liver will suffer damage, if it is without a blood supply for more than twenty minutes at 37° C.

Some parts can be stored for longer periods and others for only short periods. Bone, preserved for storage by freezing, has been successfully used for transplantation over a year after excision, but whole blood must be discarded after three weeks or a month have passed.

Nuboer reports that Humphries was able to preserve kidneys for five days by means of perfusion, cooling and hyperbarbic oxygen. R. C. Lillehei reports that unpaired organs can retain their vitality for seventy-two hours, if stored in vitro, but that optimal organ function is impaired after about twenty-four hours. The viability of all tissues is said by F.D. Moore to be a function of the time they have been without a blood supply and the temperature during that time.

Long period inventories can be constructed for some body parts and not for others.

The body tends to reject grafts of “foreign” cellular parts made upon it. K. Landsteiner already pronounced in his Stockholm Nobel Lecture in 1930 that “the success of transplantation stood in a reciprocal relation to the degree of consanguinity”. The survival of the recipient of a renal transplant will be most highly probable if the supplier is an identical twin (these are called iso-transplants); somewhat less probable if the supplier is a parent or sibling of the recipient; less probable still if it is a more distant blood relative; still less probable, if it is another, unrelated human; and, finally, least probable if the supplier is of a different species.

The antigenicity of organs (the property of rousing an antagonistic response in the host) varies among organs. Ovaries and parathyroids are least antigenic; kidneys, livers, lungs and adrenal and thyroid glands fall mid-way with respect to antigenicity; and skin is most antigenic.

Structural grafts (bone, artery, cornea) do not involve the question of antigenicity.

Until a condition of non-reactivity can be more effectively induced in the host (as by chemo-therapy), procedure requires the discovery of suppliers who are histo-compatible with recipients.

Thus, there are better and worse substitutes for a diseased kidney, implying a family of supply schedules some lying closer to the ordinate and some more distant than others.

Organs and tissues to be used for transplantation are almost never bought and sold.

Blood is bought and sold in a number of countries. R.M. Titmuss estimates that, for recent years, only nine percent of the blood collected in the United States has had the properties of altruistic gifts which produce psychic utility directly. The rest has been sold for payments in cash, payments in other blood (either already received or to be received in the future in a probability or insurance sense), payments in the form of probabilistic early release from prison, or payments in kind such as holidays, meals, medical care, or admission to sports spectacles.

Almost all blood supplied in Britain, on the other hand, is, according to Titmuss, given freely “to unnamed strangers, there (being) no formal contract, no legal bond, no situation of power, domination, constraint or compulsion, no sense of shame or guilt, no gratitude imperative, no need for penitence, no money and no explicit guarantee of or wish for a reward or a return gift. They are acts of free will; of the exercise of choice; of conscience without shame.”

Of the two systems for securing supplies of blood, Titmuss prefers the British to the American. His grounds are divided into two parts which he calls ethical and economic. We shall discuss the ethics of the question first, leaving the economics to later.

Titmuss' ethical case against the purchase and sale of blood is: it represses the expression of altruism; it erodes the sense of community; it sanctions the making of profits in hospitals and clinical laboratories; it legalizes hostility between doctor and patient; it subjects critical areas of medicine to the laws of the marketplace; it places social costs upon those least able to bear them—the poor, the sick and the inept; it increases the danger of unethical behavior in various sectors of medical science and practice; and it results in situations in which proportionately more and more blood is supplied by the poor, the unskilled, the unemployed, Negroes and other low income groups and categories of exploited human populations of high blood yielders so that blood is redistributed from the poor to the rich.

The ethical case against the commercial transaction of body parts appears in the literature repeatedly. The Ciba Foundation assembled a group of medical practitioners and researchers, teachers of medicine and the law, lawyers and judges, and theologians in 1966 to discuss ethics in medical progress with special reference to transplantation. The reported discussions at that symposium contain frequent references to the “unsavory” character of money exchange for organs. The basic rule, J. Hamburger said, “must be to avoid any kind of pressure (including financial) on the prospective donor.” R.Y. Calne said it is “most deplorable to condone” the sale of organs for money and “a doctor should not be involved in such a financial contract”.

Since society is willing to pay people to put their lives and health at risk in hazardous occupations, it is difficult to see why it should be thought objectionable to risk impairment by the sale of tissue.

The proscription by medical practitioners, on ethical grounds, of commerce in organs and tissue puts power into the hands of the doctors and involves surgeons specialized to transplantation in arduous discussion and the construction of tortured distinctions in defining acceptable behavior.

Justice Cardozo said that each had property rights in his own body, but a conspiracy of physicians has greatly reduced the value of those rights or, possibly, the physicians have taken possession, by collusive fiat, of property rights in the bodies of all.

It is as though a coalition of plumbers had agreed that none of them would install bathroom fixtures that a householder had secured in exchange for money but only those altruistically given away by appliance manufacturers. To this the doctors might respond, “Ours is a different case; we exercise a profession that cares for the health of the citizenry”. But, of course, so do plumbers as anyone knows whose drinking water has been polluted by seepage from sewer drains.

When the doctors decide the rules that will govern whether they will take tissue from a supplier and install it in a host, they either take no account of the utility functions of supplier and host or they must estimate those functions. Since preference ordering and weights are best known by each for himself estimational outcomes are almost bound to be wrong. Decision-making by doctors, therefore, means that aggregate utility is less than maximized.

An exchange system that maximized the community's utility would be required to have properties that took into reckoning, too, the preferences of the doctor; he is optimally the proprietor of his own services and should be able to refuse to sell them. He would not want to execute a graft that would extinguish, with a high probability, the lives of both supplier and recipient because, if he did this often enough, he would find himself to be reputed to be a bad risk as a surgeon and custom would be driven from his door. Alternatively, he might be willing to engage in such an enterprise occasionally, tissue donor and recipient freely desiring its execution, if he were paid a fee that was somewhat higher than the discounted value of diminished and foregone lifetime income produced by failure.

A utility maximizing arrangement would be one in which the preferences of all participants—donor, doctor and recipient—affected the outcome. Such an arrangement permits all freely to decide whether to participate, each calculating personal costs and gains. Such a system is not achieved, if doctors are constrained in choice by rules elaborated by the profession and enforced by such possible sanctions as divestiture of license, ostracism by colleagues, or denial of the right to use hospital, laboratory, or research facilities.

We have such constraining rules in practice although their explicit forms are still unsettled. Under the guise of constructing standards of acceptable professional behavior that have nothing to do with medical outcomes, doctors decide which suppliers' offers of organs and tissues will be accepted and which will be rejected, which organs they will take from living suppliers and which they will take only from cadavers, which aspirant recipients of tissue they will service and which they will not. By this decision-rule system, the medical community imposes its own ethical values upon the lay community; this is clearly to be dispreferred to market arrangements that require consensus of all central participants as an antecedent to action. Then the ethics of all come to influence outcomes.

In any case, the controlling rule of the doctors is a nonsense rule. They will not graft, they say, unless the donor freely and voluntarily gives an organ without “pressure”, including without the “pressure” of money payments. They will want psychiatric evidence that a twin gives out of love for his sibling. But they will not inquire whether it is because a man dearly loves his child that he offers to sell a healthy kidney to procure income with which to pay for the child's schooling. They do not see that money can be an instrument for the expression of love. Nor do they see that participation in an act of exchange involving reciprocal payments—an organ for money—can also be a free and voluntary act.

It has already been mentioned that R.M. Titmuss had made a case, “on economics grounds”, against the purchase and sale of blood. The case mainly consists of the following.

Paying for blood gives suppliers an incentive to falsify its quality by suppressing information of past histories of serum hepatitis, malaria, syphilis and brucellosis, all of which can be transmitted by blood transfusion.

This is thought to be particularly important in the case of serum hepatitis because laboratory tests for screening out blood from hepatic suppliers do not exist; they are known only ex post when recipients come down with the disease after an incubation of about six months. Titmuss' review of the literature shows that the hepatitis transfusion rate is higher in the United States than in Britain. The risk of infection by hepatitis is enlarged if plasma is prepared in large pools (say of more than ten donors). Large pools tend to be formed in the United States and small pools tend to be formed in Britain. Plasma production unit costs exhibit the property of increasing returns to scale and it is for this reason that large pools are formed in the United States.

Titmuss argues, too, that the commercial blood market in the United States generates waste in the form of unused stocks of blood that are discarded because the blood—a perishable commodity—is kept longer than its shelf-life and because doctors do not use blood that they order in excess of their requirements.

He also argues that shortages develop in blood market economies in periods of peak demand such as weekends, the summer months, and at Christmastime when increased motoring produces accidental injuries that are especially blood-consuming in their repair.

The appropriate measure of the comparative efficiency of the two systems for collecting blood does not appear in Titmuss' calculus. That measure is the comparative quanta of real resources employed in the collection of a stock of some magnitude, in its storage, and in its re-distribution in space.

Titmuss' “economic” critique of the blood market does not hold up under examination. It is true that laboratories cannot screen out blood from hepatic suppliers. But the market can do so. It is known that the incidence of histories of hepatitis varies with the social class of the suppliers. Since there are gains to be made from keeping separate blood coming from different social classes, it would not be surprising to discover firms who certify that they have blood taken from sub-sets of the population in which the incidence of hepatitis is low. It does not matter very much whether individual suppliers give false information or not about their medical histories. The probabilities of infection through transfusion will vary among lots and the probability numbers will be known more or less. Firms may, of course, falsely certify but, if they co, they would be presumably subject to suit for recovery of damages done by their falseness and this will tend to compel truthfulness in them. And, in any case, systematic false certification will, in time, come to be known and competition will deprive a firm engaged in such activities of custom. We would expect, of course, that the market will establish a higher price for high-quality blood and a lower price for low-quality blood. Buyers would be free to choose among the distinguishable classes of blood, taking account of the magnitudes of qualitative difference and the differences in prices.

Similarly, one would expect the market to distinguish plasma formed in large- and small-pools, giving buyers the option of one or the other. Rational choosers might well prefer to run a very small additional risk of contracting hepatitis in order to achieve a very large saving in cost.

Discarding outdated blood may not be wasteful at all. Stocks of blood are kept by hospitals, blood banks, and other institutions and they are kept by surgeons incidentally in the execution of given, particular surgical operations.

The demand for blood is characterized by peaks and troughs. There is a stochastic component in the set of variables that determines the time-distribution of demand. Institutions may “insure” against running out of stock by keeping somewhat larger inventories. If it turns out ex post that the inventories were too large, some blood becomes outdated. But if they had underestimated, it might have been at the cost of impairment of life. It might be socially cheaper to discard some blood than to run the risk of exhausted stocks when they are needed.

Similarly with respect to the individual surgeon. Until he cuts he does not know with perfect certainty how many units he will need to transfuse to his patient. If it turns out that he has overstocked, his ex ante decision was not necessarily wrong. He had diminished risk. That has value and that value may exceed the value of the discarded blood.

And, finally, if shortages occur in peak accidental injury periods, the market need only offer higher prices to suppliers in those periods to bring forth larger flows.

The first successful kidney transplant was done in 1954. Approximately ten years later, the Registry of Human Kidney Transplants had a record of 627 kidney transplants. N.P. Couch has calculated that, in 1963 alone, 7,644 deaths occured in the United States of persons who qualified for transplants and whose lives might have been prolonged, if transplantation had been done. Couch also estimated that, of those who died of liver ailments in 1963, there were about 4,000 potentia liver transplants recipients.

The best cadaveric candidates for supplying kidneys and livers are those who die of subarachnoid hemorrhage. They could have supplied in 1963 about 10,600 kidneys and about 6,000 livers, according to Couch.

M.F.A. Woodruff estimates that about 2,000 persons die in Britain each year who could be kept alive with an expectation of life of 45 years at the mean by either kidney transplants or twice-weekly dialysis. This implies, as an alternative to these 2,000 per annum deaths, either 2,000 kidney transplants per year or nine million dialyses per year.

Some progress has recently been made in the discovery of more efficient chemo-therapeutic agents for diminishing the antigenic rejection of grafts by the host and the possibility of preventing death by transplantation is enormously higher now than it was a few decades ago.

The fruitful application of new knowledge in this field, however, requires that supplies of organs and tissue make themselves available in circumstances of extraordinarily complex logistical problems that derive from the perishability of organs in cadavers and the necessity to find suppliers who are histo-compatible with recipients.

One way to secure these supplies is to permit the sale of organs and tissue. They could be sold by living suppliers to be taken during life or after death from themselves. They could be sold by kinfolk upon the death of a member of the family. Buyers might be permitted to re-sell, although how much of this could be done would depend upon the length of time for which preservation techniques prevent excessive deterioration.

It surely does not help patients dying of nephritis or hepatoma, if kidneys and livers are made available, if and only if a money price is paid for them, but doctors stand in the way because they find commerce ethically offensive.