The tragic death of a prospective kidney donor this week in Israel has drawn public attention to many ethical issues surrounding organ donations. One result is simply reminding people that such donations are possible and that there are noble people who are willing to make such a significant sacrifice to help others.
The death, tragic as it was, served at the same time as a reminder that such mishaps are actually extremely rare. A representative of the Health Ministry said Thursday that according to the records he is aware of, this was the first such recorded fatality anywhere.
Much of the attention, however, surrounded the allegations that the donor had actually sold his kidney. Selling human organs is currently illegal in almost every country. The basis for this prohibition is ethical, and so we have a classic business ethics dilemma: a business that is regulated because of ethics. I will try to summarize my extensive research in this complex field in a single newspaper column.
Much of the ethics surrounding organ sales has its origin in the writings of Immanuel Kant, an influential 18th century philosopher. Kant had a very high opinion of his analytical abilities, and believed that he could distill all of ethics into a single, concise "practical imperative" that stated: Treat all humanity, whether yourself or others, only as an end in itself and never as a means to an end. Practices violating this imperative, according to Kant, include slavery (where an entire person is reduced to a commodity), prostitution (where an essential dimension of a person's humanity, namely his or her sexuality, is reduced to a commodity), and selling of live organs (where a physical part of the body is reduced to a commodity). For the curious, I will add that the kind of organ sales known to Kant was teeth.
My response to this argument is as follows: I certainly agree that treating others as ends and not instrumentally as means to an end is an important ethical principle. However, it also has limits. We forbid slavery, but we permit wage labor, which also turns the worker into a commodity for a period of time. (The Talmud tells us that "hiring is just a temporary sale.")
We forbid prostitution (actually in Israel only pandering is illegal, but this includes most manifestations of this trade), but we acknowledge that marriage inherently involves and mingles intimate and monetary obligations. (Kant discusses this distinction at enlightening length. His distinction, to which I am partial, is that the obligations of marriage are mutual and therefore not exploitative.)
We currently forbid selling kidneys, but we permit selling hair (better if it doesn't come from Indian temples) and, to the best of my knowledge, teeth.
The question is, to what extent is the exploited characteristic an essential aspect of our person-hood? In Medieval times, vital organs were considered seats for our emotions: the spleen for anger, the kidneys for judgment, and so on. According to the best scientific knowledge of that time, our organs were definitely an essential part of our selves. Certainly today nobody is suggesting we allow people to sell their frontal lobes, but I think we can acknowledge that the modern consciousness clearly differentiates between our replaceable organs and our human essence.
Another ethical argument against allowing organ sales is that they result in economic exploitation of the poor. The idea is that the wealthy steal the organs of poor people. Now I acknowledge that this kind of exploitation could take place if, for example, wealthy people purposely schemed to keep people in poverty so that they would be compelled to sell organs. But there are many studies on this topic and my take on them is that this argument has it completely backwards: forbidding organ sales results in the exploitation of the poor.
Many people in backward countries who have to struggle to earn a few dollars a month could catapult themselves to Western living standards by selling a kidney, an organ that is not essential for health for most people. They would immensely improve their living standard and even their health, since they could give up back-breaking labor and afford modern medical treatments.
The exchange would prove life-saving for both sides. But under the current system, huge amounts of the money paid for black-market kidneys is siphoned off by an army of middleman, lawyers, travel agents, physicians who need to be hired privately, and so on. This is truly a tragic exploitation of the poor.
An ethical argument prevalent in Jewish sources is that our bodies, and by inclusion our organs, belong to the Creator and not to ourselves. Thus we don't have the right to sell them for our own benefit.
I think this is a very important point, and would be highly germane if the kidneys were being sold to provide ingredients for some expensive cosmetic cream or computer component. But when we are talking about selling organs to save lives, I think it loses much of its force. We seem to acknowledge that the Owner allows us to donate the organs; why shouldn't we be allowed to sell them as well?
If the public still feels that kidneys are an essential part of our humanity and that allowing outright sales really does carry a concrete danger of economic exploitation so great that it outweighs the huge benefit in saving lives then there are ways to allow compensation that is not truly commerce.
One proposal now being discussed in the Knesset would allow significantly greater payments to a donor to compensate him for the significant losses donation involves: lost days of work, the deterrent of the possibility of impaired health, pain, inconvenience, and of course the risk of the operation itself. It could be that these payments will be enough to induce generous individuals to make enough essentially voluntary donations that taking the next step and allowing sales would be unnecessary and thus undesirable.
I think that there should be a renewed public debate to consider the appropriate boundaries of the necessary, but currently overly restrictive, regulations regarding compensation for organ donations needed for life-saving transplants.
The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute located in the Jerusalem College of Technology. He is also a rabbi.