Kidney patient care made criminal

Washington Times, August 28, 2001

Bruce Fein

The venerated Hippocrates taught, "As to diseases make a habit of two things to help, or at least do no harm." But the federal criminal prohibition in 42 U.S. Code 274e of the purchase, sale or transfer of human kidneys – even if necessary to save human life or to relieve misery -- insults that moral gospel. The law should be repealed in favor of free and informed kidney-transplant transactions.

In the New York Times Magazine ("Complications," May 27, 2001), Michael Finkel meticulously explores the flourishing but illegal commercial kidney-transplant industry. It is fueled by a virtual international ban on the sale of any human organ, whether from the living or the dead. Mr. Finkel's riveting kidney-transplant vignettes, however, discredit the morality of the blanket prohibition.

Long and agonizing waiting lists for kidney transplants have emerged from the commercialization proscription. At present in the United States, 48,963 patients are in line. Last year, according to the United Network for Organ Sharing, 2,583 Americans died still waiting. The corresponding worldwide casualty figure approximates 50,000. Between 1990 and 1999, despite aggressive marketing efforts to increase donations, organ waiting lists grew five times faster. By 2010, the average waiting time for a kidney is projected at more than 10 years.

The plight of 43-year-old Moshe Tati, low-listed in Israel, is emblematic of the moral unsoundness of the kidney commercialization ban. Mr. Tati turned desperate after four years on dialysis without moving up in the transplant queue. His health was faltering. For some like Mr. Tati, dialysis is tantamount to death on the installment plan. And he had recently suffered a minor heart attack, which threw him back on the waiting list. No family member was a suitable match for a donation. Thus, Mr. Tati enlisted a broker to arrange the purchase and transplant of a kidney from a living seller for $145,000.

Living sellers are preferable to cadaver kidneys. The latter promise a decade of kidney function, whereas the median survival length of a kidney from the living exceeds 20 years.

Mr. Tati's transplant operation, performed underground in Istanbul, ultimately failed. He is back on dialysis four times a week, 31/2 hours a session. He is lethargic, unable to work and in debt. But three other kidney-transplant patients who had traveled with him are healthy and off dialysis. And he told Mr. Finkel, "One day, when I'm prepared, I think I'll want to try again."

Kidney-transplant operations are no medical Russian roulettes. The development of the anti-rejection drug cyclosporin have made them highly successful, like blood transfusions. And Dr. Michael Friedlaender, a proponent of legalizing kidney sales and a nephrologist at Hadassah University in Jerusalem, maintains that insuring the purchase of clean, well-matched kidneys in an open market would be unproblematic.

The moral spotlessness of kidney purchases and transplant operations involving the likes of Moshe Tati is unstained by the corresponding monetary inducement to living sellers. A half-dozen studies of donors show no increased mortality. Donors do not confront higher health insurance premiums. According to Dr. Friedlaendar, as reported by Mr. Finkel, "there is no evidence to show that donating a kidney endangers a person's health in any significant way."

Kidney sellers in a legal market, as in the prevailing black market, would be disproportionately represented by the poor. But that is untroublesome. Each marginal dollar of wealth for the impoverished is typically treasured more than for Bill Gates-like tycoons. Additionally, the motivation for kidney sales may be morally uplifting, especially in the many countries where heavy-handed government regulation thwarts monetary savings through individual skill, foresight and industry.

Mr. Finkel recounts the case of 44-year-old Mehmet Piskin, a Turk commanding a low salary and sparse health insurance coverage. His youngest child suffered from a degenerative bone disease, making the infant's knees and elbows calcify. Corrective surgeries could alleviate the affliction, but at a cost of $20,000. Mr. Piskin thus contracted to sell one of his kidneys for $30,000 moved by the horrible suffering of his 4-year-old son.

Although the illegal contract was dishonored in substantial part and the father's removal operation was botched, Mr. Piskin's example disproves the idea that kidney sellers inherently act for debased or squalid objectives that impair human dignity. The sales are starkly different than selling oneself into slavery.

Francis Delmonico, a Harvard Medical School professor of surgery and chairman of the ethics committee of the American Society of Transplant Surgeons, sermonized to Mr. Finkel that organ purchases are "morally and ethnically irresponsible." But what is morally dubious about buying a kidney to prevent death or to alleviate disease? The transactions fit the Hippocratic injunction "to help" patients like a glove.

The pope has anathematized the commercialization of organs as transgressing on human dignity, but fails to explain how that commercial niche is morally more debauched than health care commerce generally. In both cases, the result is superior treatment and longer lives for the upper class. I doubt, moreover, whether the pontiff has consulted the families of the 2,583 Americans who died on the kidney waiting list last year.

Kidney sales and transplants should be regulated. Choices must be voluntary and informed. Quality-control standards should be required. But the transactions should be legalized. The current federal criminal prohibition inflicts harm on kidney patients and would-be kidney sellers. Isn't that what Hippocrates deplored?

Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.

Reprinted by permission.