The House of Representatives on Tuesday voted 275-147 (with 87
Democrats joining the majority) to strike down a Clinton administration
initiative that would have changed the way livers, hearts and other
organs are made available for transplant surgery. The House version of
the rules is somewhat less objectionable on certain grounds than the new
rules the administration imposed by administrative fiat three weeks or
so ago. But it doesn’t bring the country much closer to a sensible
policy that has a chance of eliminating the chronic shortage of
transplantable organs that has made organ transplants something of a
lottery since the federal government decided to get deeply involved in
And the House version may never become law, which would leave the
rules imposed by Health and Human Services Secretary Donna Shalala as
the default mode. The Senate might not even take up the House bill,
which President Clinton would probably veto if it got to him anyway.
The administration rules bring the country closer to a national
“sickest first” policy, under which those with the most serious need for
an organ to be transplanted (under various fairly arcane medical
criteria) would move higher on the list, no matter where they live. The
previous policy gave preference to keeping organs within the states in
which they were donated, crossing state lines mainly if there were no
viable recipient within a given state.
The old policy, from a fairly abstract but not irrelevant
understanding of the principles of federalism, gave citizens of states
with a strong record of encouraging organ donations a slight edge in the
race for life. And opposition to the new rules, which make state borders
marginally less relevant in yet another area of American life, was led
by legislators of both parties from Wisconsin, a state that by all
reports has done a better-than-average job of encouraging organ
The administration is “telling states they don’t have to do well in
promoting organ donations,” said Republican Rep. Paul Ryan from
Wisconsin. Democratic Wisconsin Rep. Tom Barrett predicted that if the
administration rules stand the number of organs donated would drop.
Presumably the reason is that most people, in the absence of any but
“feel-good” incentives to donate organs, will have some preference for
their organs helping those in the same state rather than somebody
thousands of miles away.
It’s hard to predict if that will really happen, but it wouldn’t be
surprising. Adam Smith wasn’t the first to note that human sympathies
tend to become diluted over long distances — as well as across
cultural, national and ethnic boundaries. Maybe that doesn’t speak well
of us as human beings, but it’s hard to deny that the phenomenon is
All sides agree that there are about 67,000 Americans on waiting
lists for organ transplants and that about a dozen people die every day
whose lives might have been saved by transplant surgery.
The best bet for those people is not some rejiggering of rules that
moves a few people up and some others down on the waiting list,
satisfying either localist sentiments or the idea that illness knows no
boundaries. It is to establish a market in organs available for donation
– one in which those who make the organs available (or their heirs) can
receive financial compensation at something close to fair market value
for the organs they make available to others.
Selling organs is viewed as somehow dirty by many observers and was
banned by federal law under a bill sponsored by Al Gore when he
represented Tennessee in the Senate. But that view is little more than
an anti-market superstition that is not only not held consistently, it
is not supported by reason or analysis.
Does anybody expect the surgeon who performs the operation to do so
for free? Does anybody expect the hospital or hospitals in most cases in
which the surgeries are performed to donate the use of their facilities?
Are the attending nurses, surgical assistants, anesthesiologists and
various other attendants supposed to donate their services? Are the
helicopter owner and pilot, or air-freight service that gets the organ
from the body in which it is no longer needed to the body for which it
means a chance at life supposed to do it without compensation?
In a perfect world in which there were no scarcities of anything and
the vast majority of people really abided by eleemosynary moral
principles, it might be nice to hope that some or all of these worthies
would perform their services because they help those in need of help,
not because they expect to get paid. But we live in this world, and all
those people have living expenses (not to mention years of specialized
training in most cases), some of them quite hefty. Nobody with a shred
of realism expects them to work for nothing.
But somehow we deem it dirty or distasteful if the only person who
makes the process even thinkable — by having an organ that for whatever
usually tragic reason is no longer of use to him or her — receives
monetary compensation for that organ.
It might be objected that the person making a transplantable organ
available to another is usually doing so because he or she is dying,
whether because of accident or illness, and won’t be in a position to
receive the benefit personally. But that person is almost certain to
have an heir or heirs. What would be wrong with being able to use tragic
circumstances to ease somewhat (if never completely) the void that will
be created by one’s death with a somewhat larger inheritance?
A father who faces death after a car accident, for example, and will
never be able to see his son or daughter finish college might take some
consolation in the fact that selling an organ will pay for that child’s
Elementary economic analysis makes the current chronic shortage of
transplantable organs utterly predictable. Shucks, I predicted it years
ago when Al Gore got his prissy little law passed. I don’t know what the
market-clearing price of a heart would be in an open marketplace, but I
know it would be higher than zero. By setting the price of an organ at
zero, well below the market-clearing price, the government has created a
chronic shortage, as happens whenever price controls keep commodities
below their true market value.
Would there be not just a balance between supply and demand but
perhaps a surplus that would require storage systems, if there were a
market in body parts? It would take more knowledge than I have of the
ins and outs of transplantation, developments in medical procedures and
numerous other factors to make a prediction, and even that prediction
would be a guess. Perhaps a wider availability of organs would create a
larger demand, a tendency to transplant in cases where repair would be
the preferred option today. One of the reasons there is so much
resistance to freedom is that a free society is by nature unpredictable
and sometimes volatile, sometimes subject to fads and fancies.
But you can be sure that the shortage would be less serious than it
is now. And the entire procedure would be more honest and open in its
workings — as well as more efficient in getting what is needed to those
most in need.
Would the wealthy have an advantage? Probably, but they have an
advantage in almost every aspect of life. In modern medicine, with its
welter of subsidies, cross-subsidies, third-party-payers and benefits
programs, however, the advantage conferred on the wealthy as such would
be less pronounced than in a straight fee-for-service system. Those with
government or private insurance would have about the same chance as
anyone else with similar arrangements.
Might certain ethical problems arise under such a system, such as
families silently rooting for life-support systems to be turned off so
they can cash in on the organs, doctors tempted to declare a patient
dead a bit early to “harvest” the organs and the like? Of course they
would. But most of them are already present under the current system.
Having money paid to the donor or his family would make the ethical
questions only slightly more complex. And it wouldn’t be that hard to
argue that it would make the entire procedure more ethical, because
everybody involved would be reimbursed for what he or she brought to the
procedure, with less pressure or guilt involved in trying to urge that
the donation be made.
The present system is needlessly cruel to potential recipients of
life-saving organ transplants and arguably unfair to organ donors. It
has created the chronic shortage of which everybody complains but which
nobody involved really wants to fix. And the current effort at a fix
will make the central government that much more powerful and state and
local governments just a bit more irrelevant and subordinate to the