Montreal, February 10, 2008 • No 252




Bradley Doucet is a writer living in Montreal. He has studied philosophy and economics, and is currently completing a novel on the pursuit of happiness.




by Bradley Doucet

          Last weekend, Canadians learned that the hunt was on for Dr. Amit Kumar, alleged kingpin of a kidney trafficking ring in India. The Toronto Star reported on February 3 that Interpol had issued a worldwide warrant for the arrest of Dr. Kumar, who has been residing in Brampton, Ontario with his wife and two young children since buying a house there in April of last year. Kumar apparently claimed to be a cardiovascular surgeon and told Brampton neighbours he was going back to India “to wind down his business.” Indian authorities say he is not a surgeon. The kidney trafficking ring he is alleged to have run supposedly searched out potential donors among India’s poor, either drugging them, forcing them at gunpoint, or offering them from $1000 to $2500 for one of their two kidneys. The ring then charged wealthy clients from around the world $50,000 for a kidney transplant. On Thursday of this week, Amit Kumar was arrested in Nepal.


          At first glance, this kind of story seems to reinforce some people’s worst nightmares about the unfettered market – from the exploitation of the poor to the exorbitant profits of greedy businessmen to the unfair advantages accruing to the rich – but in actuality, it shows the exact opposite. The fact of the matter is that it is quite illegal to buy and sell kidneys in India, as it is in Canada and in most of the world, and the lamentable outcomes observed are precisely the result of the lack of an open, legal market.

Thwarting the power of the market

          As is to be expected in the absence of a freely functioning market, the demand for kidneys far outstrips the supply available for transplant around the world. Laura Meckler, in an article for The Wall Street Journal this past November, reported that about 4,400 people died last year waiting for a kidney in the U.S. alone. There were 75,000 people on the U.S. kidney waiting list for a kidney at year end, with fewer than 20,000 transplants performed. Wait times can stretch out as long as six years – for those who make it.

          In India, the numbers are even worse. Sanjoy Majumder, in a report for BBC News on February 5, 2008 (see “India’s booming kidney racket”) writes, “An estimated 150,000 Indians need a kidney transplant every year, but only 3,500 are available.” Apparently, India’s laws are even more restrictive than average, dictating that one can only receive a donated kidney from a blood relative. Majumder writes, “It’s one of the major reasons for the thriving black market.”

          Yet these shortages could easily be remedied. Unlike most organs, kidneys can be got from living donors, as each of us has a spare and most people can live quite comfortably with just one. It is illegal for you to sell one of your kidneys, however; you are only permitted to give it away, and there are quite simply not enough people willing to do that.

          David R. Henderson, research fellow with the Hoover Institution and associate professor of economics at the Naval Postgraduate School in Monterey, California, nicely sums up the main economic argument for legalizing organ trading in “Organs For Sale?,” an article published in the San Francisco Chronicle back in 2001: “Many doctors have recognized that the answer is to give potential organ providers the same incentive we give to doctors, nurses and virtually everyone else in the medical system: Allow them to charge. No one would be surprised at the lack of doctors if we insisted that doctors perform their services for free.”

Addressing the concerns

          Of course, some people find this idea unpalatable. They think donors should be motivated by concern for their fellow man or woman, not for their bank balances. They consider it cynical to give people monetary compensation for their good deeds. As Henderson writes, though, “insisting on being paid before giving up body parts is no more cynical than insisting on being paid for that other major item your body produces, namely, your labor.”

          Dr. Arthur J. Matas, a prominent transplant surgeon, has for several years now been a vocal supporter of establishing a legal, if regulated, market for kidneys. In a 2006 article entitled “Why We Should Develop a Regulated System of Kidney Sales: A Call for Action!” he enumerates – and answers – just about every conceivable objection to ending the current prohibition. “Those who are opposed to a regulated system of sales imply that they are taking the moral high ground by protecting the potential paid donor (from exploitation? from the harm of surgery?) or by protecting society (from loss of human dignity?). The end result, however, is that they are sentencing many of our transplant candidates to death.”

"As is to be expected in the absence of a freely functioning market, the demand for kidneys far outstrips the supply available for transplant around the world."

          Of all of the many objections Matas addresses, perhaps the concern that the poor will be taken advantage of is the largest stumbling block for most people. Of course, the poor would be more likely to sell their kidneys, but is it really exploitation if the individual is fully informed? Matas writes,

          We do not prevent the poor from taking jobs with risk that the rich do not take (e.g., as miners, firefighters, police, military), and in all other areas of our society, we allow the poor to make autonomous decisions. With kidney sales, "in a surprising contravention of our usual ideas about individual liberty, we prevent adults from entering freely into contracts from which both sides expect to benefit, and with no obvious harm to anyone else." By prohibiting the poor from selling a kidney, we leave them poor and remove an opportunity for them to better their lives.

          Matas points out that it is in unregulated black markets that the poor are really exploited, and that this is no argument against a legal, regulated market with adequate safeguards. Indeed, a legal market would displace the dangerous black market. R.R. Kishore, founder of the Indian Society for Health Laws and Ethics, makes a similar point in “Human organs, scarcities, and sale: morality revisited,” published in the Journal of Medical Ethics in 2005. He writes, “The prohibition on the sale of organs has worsened the lot of the poor. Buyers quite often refuse to pay the agreed price. The vendor cannot assert his claim because of the fear of being prosecuted. Thus the strategy that was evolved for protecting the poor has been causing just the opposite effect.” As in many other areas, prohibition creates suffering.

Whose body is it, anyway?

          You may have thought that your body belonged to you, but clearly, as far as the law is concerned, you would have been mistaken. You may not do what you will with your body while you are alive, nor are you quite free to make provisions for its use after your death. Oddly, you may give away a kidney, even though you may not sell it. But if it is yours to give away, why is it not yours to sell?

          It is interesting that when Amit Kumar was arrested on Thursday, he denied any wrongdoing. It will be up to Indian courts – he has already been extradited – to decide the facts in the case, to determine what can be proved beyond a reasonable doubt. The principles involved, however, are clear: If Kumar did force people to give up kidneys, he should be punished. If he failed to inform them of the risks of kidney donation or failed to keep up his end of the bargain in terms of monetary compensation or post-surgical care, again, he should be punished. But if someone fully informs the donor, freely negotiates a price, and fulfills his commitments to the expected mutual benefit of all parties, by what kind of mixed-up moral code is he guilty of anything?

          If it’s wrong to force someone to give up a kidney, it is also, and for the same reason, wrong to prevent someone from selling a kidney. The issue is the initiation of force, which is never justified. It is also not practical, for by outlawing trade in kidneys, only outlaws will buy and sell kidneys, and the criminals attracted to fill in the gap will tend to be far less scrupulous than legitimate businesspeople.

          While countries like India highlight the worst of the illegal kidney trade, and countries across the rich, developed world continue to struggle with ever-lengthening waiting lists, there is one place where the story is unexpectedly different: Iran. It is ironic that the only country in the world that allows monetary compensation for kidney donors is also home to one of the world’s most repressive regimes in most every other particular. As reported in 2006 in the Clinical Journal of the American Society of Nephrology, “In 1988, a compensated and regulated living-unrelated donor renal transplant program was adopted in Iran. As a result, the number of renal transplants performed substantially increased such that in 1999, the renal transplant waiting list was completely eliminated.”

          And it is not just that paying donors has proved completely successful in providing kidneys to all who need them in Iran, though that is achievement enough, to be sure. Turning the ethical dilemma on its head, the authors of the CJASN article point out that relatives who donate kidneys are not always acting entirely of their own volition. They conclude that “it may be more ethical to perform a paid renal transplantation from a volunteer living-unrelated donor than from a living-related donor or spouse who is under some degree of family pressure or with emotional coercion.”

          Our gut feelings about the sanctity of the human body and our well-intentioned concern for the exploitation of the poor must not be allowed to trump reason and evidence. These two trustworthy guides both point to the efficiency and justice of leaving people the freedom to make their own choices. And Dr. Matas does not exaggerate when he refers to the current system of prohibition as a death sentence. With thousands dying needlessly every year, and tens of thousands languishing in the living death of dialysis for years on end, it is clear that legalizing the sale of kidneys is in fact the only ethical option.