Transplant Tourism: The Ethics and Regulation of International Markets for Organs

See, e.g., Cohen I. G. , “Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument,” Iowa Law Review 95, no. 5 (2010): 1467–1567; Cohen I. G. , “Medical Tourism, Access to Health Care, and Global Justice,” Virginia Journal of International Law 52, no. 1 (2011): 1–51; Cohen I.G. , “Circumvention Tourism”, Cornell Law Review 97, no. 6 (2012): 1309–1398. While I use the term “medical tourism” because it is the conventional term used by the industry, and in many instances it is partially supported by the tourism industry in the destination country, I do not mean to suggest anything pejorative or that those using these services are engaged in something frivolous. “Medical travel” or “cross-border care” could be used just as easily for my purposes.

As I discuss below, even in Iran it is subject to significant regulation of who can sell and buy organs.

See the chapter on Transplant Tourism in my forthcoming book. Cohen I. G. , Patients with Passport: Medical Tourism, Law, and Ethics (under contract, Oxford Univ. Press).

See Yea S. , “Trafficking in Parts: The Commercial Kidney Market in a Manila Slum, Philippines,” Global Social Policy 10, no. 10 (2010): 358–376, at 362; Scheper-Hughes N. , “Bodies for Sale: Whole or Parts,” in Scheper-Hughes N. and Wacquant L.J.D. , eds., Commodifying Bodies (London: Sage Publications Ltd, 2002): 1–9.

E.g., Yea , supra note 4, at 362.

E.g., id.

Because of the short length of this article I focus on quantitative data, but there is also a rich set of narrative data collected by anthropologists on the subject. See, e.g., Scheper-Hughes , supra note 4; Scheper-Hughes N. , “Rotten Trade: Millenial Capitalism, Human Values, and Global Justice in Organ Trafficking,” Journal of Human Rights 2, no. 2 (2003): 197–226; Cohen L. , “The Other Kidney: Biopolitics Beyond Recognition,” Body & Science 7, no. 2 (2001): 9–29; Cohen L. , “Where It Hurts: Indian Material for an Ethics of Organ Transplantation,” Zygon Journal of Religion and Science 38, no. 3 (2003): 135–165.

See Yea , supra note 4; Budiani-Saberi D. and Delmonico F. , “Organ Trafficking and Transplant Tourism: A Commentary on the Global Realities,” American Journal of Transplantation 8, no. 5 (2008): 925–929; Zargooshi J. , “Quality of Life or Iranian Kidney Donors,” Journal of Urology 166, no. 5 (2001): 1790–1799; Zargooshi J. , “Iranian Kidney Donors: Motivations and Relations with Recipients,” Journal of Urology 165, no. 2 (2000): 386–392.

Segev D. L. Muzaale A. D. , and Caffo B. S. . “Perioperative Mortality and Long-Term Survival Following Live Kidney Donation” JAMA 303, no. 10 (2010): 959–966.

The descriptive material from this section is drawn from Naqvi Anwar S.A. , “A Socioeconomic Survey of Kidney Vendors in Pakistan,” Transplant International 20, no. 11 (2007): 934–939.

The descriptive material from this section is drawn from Moniruzzaman M. , “‘Living Cadavers’ in Bangladesh: Bioviolence in the Human Organ Bazaar,” Medical Anthropology Quarterly 26, no. 1 (2012): 69–91.

The descriptive material from this section is drawn from Goyal M. , “Economic and Health Consequences of Selling a Kidney in India,” JAMA 288, no. 13 (2002): 1589–1593.

The authors noted that it was unlikely that these declines represented a secular trend since per capita income has increased by 10% (or 37% adjusted for inflation) in the region in the 10 years preceding the study, and between 1988 and 2001 there was a 50% decrease in the proportion of the population living below the poverty line. See Goyal , supra note 12, at 1592.

The description is culled from Gill J. , “Transplant Tourism in the United States: A Single-Center Experience,” Clinical Journal of the American Society of Nephrology 3, no. 6 (2008): 1820–1828.

Canales M. T. , “Transplant Tourism: Outcomes of United States Residents Who Undergo Kidney Transplantation Overseas,” Transplantation 82, no. 12 (2006): 1658–1660 (citing Kennedy S. , “Outcome of Overseas Commercial Kidney Transplantation: An Australian Perspective,” Medical Journal of Australia 182, no. 5 (2005): 224–227; Sever M.S. , “Outcome of Living Unrelated (Commercial) Renal Transplantation,” Kidney International 60, no. 4 (2001): 1477–1483).

This finding mirrors those found in other studies of transplant tourism, though many are from much earlier periods. Id. at 1660 (citing Invanoski N. , “Renal Transplantation from Paid Unrelated Donors – It Is Not Only Unethical, It Is Medically Unsafe,” Nephrology Dialysis Transplantation 12, no. 9 (1997): 2028–2029; Morad Z. and Lim T. O. , “Outcome of Overseas Kidney Transplantation in Malaysia,” Transplant Proceedings 32, no. 1485 (2000): 224–227; Salahudeen A. , “High Mortality Among Recipients of Bought Living-Unrelated Donor Kidneys,” Lancet 336, no. 8717 (1990): 725–728).

Unfortunately the authors do not provide equivalent numbers for the two control groups on these measures, which would better enable us to put this into perspective.

See Scheper-Hughes , supra note 7, at 214.

Id.

Id., at 215.

Id., at 217.

Scheper-Hughes N. , “The Body of the Terrorist: Blood Libels, Bio-Piracy, and the Spoils of War at the Israeli Forensic Institute,” Social Research 78, no. 3 (2011): 849–886, at 849; “Guilty Plea to Kidney-Selling Charges,” New York Times, October 27, 2011, available at <http://www.nytimes.com/2011/10/28/nyregion/guilty-plea-to-kidney-selling-charges.html> (last visited January 9, 2013); Lysiak M. and Melago C. , “Sweeping Federal Probe Nabs Crooked Politicians & Alleged Black-Market Kidney Peddler,” New York Daily News, July 24, 2009, available at <http://www.nydailynews.com/new-york/sweeping-federal-probe-nabs-crooked-politicians-alleged-black-market-kidney-peddler-article-1.398289#ixzz1ph5ANDSe> (last visited January 9, 2013). The fact that even poor Israelis, undoubtedly part of the developed and not developing world, are sometimes the sellers of kidneys is a good reminder that the colonial narrative of developed world buyers and poor developing world sellers, though often true, is not always accurate. Michele Goodwin has made a similar argument as to the portrayal of African-Americans in discourse on organ markets in the U.S., that it portrays them as vulnerable victims in a way she perceives to be infantilizing and fails to recognize that they may be a major beneficiary as organ recipients as well. Goodwin M. , “Private Ordering and Intimate Spaces: Why the Ability to Negotiate is Non-Negotiable,” Michigan Law Review 105, no. 6 (2007): 1367–1385.

See Scheper-Hughes , supra note 7, at 215.

See Scheper-Hughes N. , “Traffic in Human Organs,” Current Anthropology 41, no. 2 (2011): 191–224.

Council on Ethical and Judicial Affairs of the American Medical Association, “Financial Incentives for Organ Procurement: Ethical Aspects of Future Contracts for Cadaveric Donors,” Archives of Internal Medicine 155, no. 6 (1995): 581–589, at 581.

See, e.g., Cohen I. G. , Note, “The Price of Everything, the Value of Nothing: Reframing the Commodification Debate,” Harvard Law Review 117, no. 2 (2003): 689–710, at 691–692; Radin M. J. , “What, If Anything, Is Wrong with Baby Selling? Address at McGeorge School of Law,” Pacific Law Journal 26, no. 2 (1995): 135–145, at 143–145 (discussing similar arguments as reproduction); Anderson E. , Value In Ethics And Economics (Cambridge: Harvard University Press, 1995): At 144, 172.

See, e.g., Institute of Medicine of the National Academies, Organ Donation: Opportunities for Action (2006): at 243; Danovitch G. M. and Leichtman A. B. , “Kidney Vending: The ‘Trojan Horse’ of Organ Transplantation,” Clinical Journal of the American Society of Nephrology 1, no. 6 (2006): 1133–1134.

E.g., Frey B. S. , Not Just For the Money: An Economic Theory of Personal Motivation (Cheltenham: Edward Elgar, 1997); See Titmuss R. , The Gift Relationship: From Human Blood to Social Policy (New York: Pantheon Books, 1970). There is also a variant of the argument focused on loss of opportunities for altruism.

For those making variants of this argument. See, e.g., Goodwin M. , Black Markets: The Supply and Demand of Body Parts (New York: Cambridge University Press, 2006): at 12; Delmonico F. L. , “The Development of the Declaration of Istanbul on Organ Trafficking and Transplant,” Nephrology Dialysis Transplantation 23, no. 11 (2008): 3381–3382; Danovitch and Leicthman , supra note 27; Scheper-Hughes N. , “Keeping an Eye on the Global Traffic in Human Organs”, Lancet 361, no. 9369 (2003): 1645–1647; Naqvi , supra note 10, at 937; Goyal , supra note 12, at 1592. This formulation follows Wertheimer A. , Coercion (Princeton: Princeton University Press, 1987): At 192–208, 267, 272–74. See also Wertheimer A. , “Exploitation in Clinical Research,” in Hawkins J. S. and Emanuel E. J. , Exploitation in Developing Countries: The Ethics of Clinical Research (Princeton: Princeton University Press, 2008): At 63, 71; Fried C. , Contract As Promise: A Theory of Contractual Obligation (Cambridge: Harvard University Press, 1981): At 104.

See Cohen , supra note 3.

See Cohen , supra note 26, at 696–700 (citing Kant I. , Grounding for the Metaphysics of Morals ( Ellington J. W. , trans., Hackett Publishing Company, 1785, 1981): at 434.

See Cohen , supra note 26, at 700–710.

Mahoney J.D. , “The Market for Human Tissue,” Virginia Law Review 68, no. 2 (2000): 163–223, at 179–180, 195. Indeed, a study from the year 2000 found that in the U.S. 70% of the organ procurement agencies regulated by the federal government sold body parts directly to for-profit firms, generating huge profits. Goodwin M. , “Altruism's Limits: Law, Capacity, And Organ Commodification,” Rutgers Law Review 56, no. 2 (2004): 305–407, at 383. One such firm, “Regeneration Technologies Inc., RTI, generated $73 million in revenues in 1999 by processing a third of the human tissue donated in the United States, turning body parts into products for surgery and other medical procedures.” Winickoff D. E. , “Governing Population Genomics: Law, Bioethics, and Biopolitics in Three Case Studies,” Jurimetrics Journal 43, no. 2 (2000): 187–228, at 189 n.9 (2003).

See Cohen , supra note 26, at 692 n.13; Altman S. , “(Com)modifying Experience,” Southern California Law Review 65, no. 1 (1991): 293–340, at 294–297.

See Cohen , Circumvention Tourism, supra note 1.

Id.

See Wertheimer , supra note 29, at 68.

E.g., Fabre C. , Whose Body is it Anyways? Justice and the Integrity of the Person (Oxford: Oxford University Press, 2006): at 142. Fabre breaks the second condition into two, id., but I find it more useful to treat it as one.

Fabre disagrees and takes a more ex poste position on this, see id., at 142–143.

See Wertheimer , supra note 29, at 71.

See Naqvi , supra note 10, at 937.

See Wertheimer , supra note 29, at 71.

Restatement (Second) of Contracts §208 (1981).

See Wertheimer , supra note 29, at 71.

See id., at 73.

See id., at 73.

See Wertheimer , supra note 29, at 230–36; Fabre , supra note 38, at 144.

Id., at 144.

Id.

Id.

Id., at 81; Cf. Fabre , supra note 38, at 148–152. As I have observed elsewhere, notice how this particular intervention of increasing the price paid may make worse the corruption problem on some accounts, because it now seems more true that the money being paid is in “value equilibrium” with what has been given up by the seller. See Cohen , supra note 26, at 703–710.

Radin M. J. , “Market-Inalienability,” Harvard Law Review 100, no. 8 (1997): 1849–1937, at 1910–1911. For a more ambivalent version of this argument in the organ sale context, see Rivera-Lopez E. , “Organ Sales and Moral Distress,” Journal of Applied Philosophy 23, no. 1 (2006): 41–52, at 44–48.

See Wertheimer , supra note 29, at 82. The same may be true for doubts about consent, which I discuss in the next section.

See Wertheimer , supra note 29, at 76–77.

See, e.g., Korobkin R. , “Bounded Rationality, Standard Form Contracts, and Unconscionability,” University of Chicago Law Review 70, no. 4 (2003): 1203–1295, at 1229–1236 (reviewing evidence for one of “the most robust findings of social science research on judgment and decisionmaking is that individuals are quite bad at taking into account probability estimates when making decisions.”); Cohen , “Protecting Patients with Passports,” supra note 1, at 1467–1567, at 1467, 1493, 1509–1511, 1550–54 (discussing bounded rationality problems in patient interpretation of health care data); Schneider C. E. and Hall M. A. , “The Patient Life: Can Consumers Direct Health Care?” American Journal of Law & Medicine 35, no. 1 (2009): 7–66; see also Wertheimer , supra note 29, at 77 (philosophical discussion of competency).

See, e.g., Korobkin , supra note 55, at 1229–1236; Jolls C. Sunstein C. R. , and Thaler R. , “A Behavior Approach to Law and Economics,” Stanford Law Review 50, no. 5 (2008): 1471–1550; Cohen , “Protecting Patients with Passports,” supra note 1, at 1467, 1493, 1509–1511, 1550–1554; Schneider and Hall , supra note 55.

See, e.g., Menzel P. , “The Role of Adaptation to Disability and Disease in Health State Valuation: A Preliminary Normative Analysis,” Social Science & Medicine 55, no. 12 (2002): 2149–2158.

Sunstein C. R. and Thaler R. H. , “Libertarian Paternalism Is Not an Oxymoron,” University of Chicago Law Review 70, no. 4 (2003):1159–1202, at 1159, 1160; Jolls C. and Sunstein C. R. , “Debiasing through Law,” Journal of Legal Studies 35, no. 1 (2006): 199–241, at 199, 200. See Cohen , “Protecting Patients with Passports,” supra note 1, at 1506.

Working Group on Incentives for Living Organ Donation, “Incentives for Organ Donation: Proposed Standards for an Internationally Acceptable System,” American Journal of Transplantation 12, no. 2 (2012): 306–312, at 306.

Id., at 308.

Id.

Ghods A. J. and Savaj S. , “Iranian Model of Paid and Regulated Living-Unrelated Kidney Donation,” Clinical Journal of the American Society of Nephrology 1, no. 6 (2008): 1136–1145, at 1136, 1138.

See Zargooshi , supra note 8, at 1790–1799.

See, e.g., Boaz D. , Libertarianism: A Primer (New York: Free Press, 1997): at 16–19; see Sunstein and Thaler , supra note 58, at 1160.

Kronman A. T. , “Paternalism and the Law of Contracts,” Yale Law Journal 92, no. 5 (1983): 763–798, at 763, 765.

A prohibition on transplant tourism might also be thought to be justified on the ground that it seems unfair for us to prohibit our citizens from buying organs from our citizens but allow our citizens to buy from poor Indians, or Pakistanis, increasing their exploitation. I have discussed a similar argument as to surrogacy elsewhere, and pressed on whether a home country's obligation to prevent the exploitation by its citizens of its own citizens is the same as the exploitation by its citizens of foreign individuals. See Cohen , “Circumvention Tourism,” supra note 1.

See Smith M. , “Organ Gangs Force Poor to Sell Kidneys for Desperate Israelis,” Bloomberg Markets Magazine, November 1, 2011, available at <http://www.bloomberg.com/news/2011-11-01/organ-gangs-force-poor-to-sell-kidneys-for-desperate-israelis.html> (last visited January 9, 2013); Allain J. , “Trafficking of Persons for the Removal of Organs and the Admission of Guilt of a South African Hospital,” Medical Law Review 19 (Winter 2011): 117–122; Khoza S. , “The Human Organ Trade: The South African Tragedy,” South African Journal of Bioethics 2, no. 2 (2009): 46–47, at 47; “Turkish Authorities Arrest Two Suspected Organ Traffickers,” Hurriyet Daily News, January 21, 2011, available at <http://www.hurriyetdailynews.com/default.aspx?pageid=438&n=two-people-related-with-organ-mafia-were-arrested-2011-01-21> (last visited January 9, 2013); Qina N. , “Organ Recipient Testifies at Trial in Kosovo,” Boston Globe, March 23, 2012, available at <http://articles.boston.com/2012-03-23/news/31230790_1_organ-transplants-pristina-kosovo> (January 9, 2013); see Scheper-Hughes , supra note 22, at 850; see Lysiak and Melago , supra note 22.

See Ambagtsheer F. and Weimar W. , “A Criminological Perspective: Why Prohibition of Organ Trade Is Not Effective and How the Declaration of Istanbul Can Move Forward,” American Journal of Transplantation 12, no. 3 (2012): 571–575, at 571–573.

Francis L. P. and Francis J. G. , “Stateless Crimes, Legitimacy, and International Criminal Law: The Case of Organ Trafficking,” Criminal Law & Philosophy 4, no. 3 (2010): 283–295, at 283, 287; The Declaration of Istanbul on Organ Trafficking and Transplant Tourism, Nephrology Dialysis Transplantation 23, no. 11 (2008): 3375–3380 (hereinafter “Declaration of Istanbul”).

Id., at 3375–76.

Id., at 3376.

Id., at 3376.

Id., at 3377.

Id.

Reed A. I. , “The Declaration of Istanbul: Review and Commentary by the American Society of Transplant Surgeons Ethics Committee and Executive Committee,” American Journal of Transplantation 9, no. 11 (2009): 2466–2469, at 2466, 2467.

See Francis and Francis , supra note 69, at 286–287 (citing World Health Organization, “Guiding Principles on Human Organ Transplantation,” Lancet 337, no. 8755 (1991): 1470–1471; World Health Assembly, WHA 57.18 (2004), available at <http://apps.who.int/gb/ebwha/pdf_files/WHA57/A57_R18-en.pdf> [last visited January 9, 2013]).

Id., at 287; United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (2000), available at <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_> (last visited January 9, 2013).

See Francis and Francis , supra note 69, at 287; United Nations Office on Drugs and Crime, Protocol status as of 26/09/2008, available at <http://www.unodc.org/unodc/en/treaties/CTOC/countrylist-traffickingprotocol.html> (last visited January 9, 2013).

See Francis and Francis , supra note 69, at 287.

See id., at 291.

Delmonico F. L. , “The Implications of Istanbul Declaration on Organ Trafficking and Transplant Tourism,” Current Opinion Organ Transplant 14, no. 2 (2009): 116–119.

See Francis and Francis , supra note 69, at 289; Ambagtsheer and Weimar , supra note 68, at 571, 573; Noël L. and Martin D. , “Progress Towards Self-Sufficiency in Organ Transplants,” Bulletin World Health Organization 87, no. 9 (2009): 647.

Francis and Francis have argued that the International Criminal Court or a specialized international tribunal should be given jurisdiction to pursue organ trafficking specifically. See Francis and Francis , supra note 69, at 291. They reach this suggestion because they conclude that “domestic legal regimes have proved ineffective and there is little reason to believe enforcement is likely to improve,” and because “the presence of a credible international enforcement regime could prove both a spur and a complement to the strengthening of domestic enforcement regimes.” Id., at 292. However, as they admit, this would require a significant expansion of the existing scope of international criminal liability and cannot fit within the definitions of genocide and crimes against humanity set forth in the Statute of Rome. Id., at 292–293. I think that international criminal liability is worth considering, but I am both more skeptical that it is politically feasible in the middle term future than the Francises, and less skeptical of the possibility for effective home country enforcement mechanisms of the kind I set out below.

42 C.F.R. §482.102(b)(9) (2009).

Gill J.S. and Tonelli M. , “Penny Wise, Pound Foolish? Coverage Limits on Immunosuppression after Kidney Transplantation,” New England Journal Medicine 366, no. 7 (2012): 586–589, at 588.

See, e.g., Hoffman A. K. , “Three Models of Health Insurance: The Conceptual Pluralism of the Patient Protection and Affordable Care Act,” University of Pennsylvania Law Review 159, no. 6 (2012): 1577–1622.

For a discussion of how states can use this power of health insurance to regulate medical tourism, see Cohen I.G. , “Patients with Passports,” supra note 1, at 1467, 1544–1547. This would be somewhat unusual in that most state coverage is aimed at expanding not restricting the number of covered procedures, but not unheard of. The federal government would also likely have to alter the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. §§1395dd(a)-(d), which requires hospitals to either stabilize (give “treatment as may be required to stabilize the medical condition”) or transfer patients that show up in emergency rooms, to prevent patients repeatedly showing up to the ER to get immunosuppressive drugs they are not entitled to receive.

See Gill and Tonelli , supra note 85, at 588.

E.g., U.S. Sentencing Guidelines Manual §§ 5E1.1, 1.4 (orders of restitution and forfeiture for individuals).

Delmonico F.L. , “The Hazards of Transplant Tourism,” Clinical Journal of the American Society of Nephrology 4, no. 2 (2009): 249–250, at 249.

See Gill and Tonelli , supra note 85, at 588; Rosen L. , “Addressing the Shortage of Kidneys for Transplantation: Purchase and Allocation through Chain Auctions,” Journal of Health Policy & Law 36, no. 4 (2011): 717–755, at 717, 718.

42 U.S.C. § 274e (2007); see Cohen I. G. , “Can the Government Ban Organ Sale? Recent Court Challenges and Future of U.S. Law on Selling Human Organs and Other Tissue,” American Journal of Transplantation 12, no. 8 (2012): 1983–1987.

See Francis and Francis , supra note 69, at 288.

See Cohen , “Circumvention Tourism,” supra note 1.

See Furrow B. , Health Law (St. Paul, MN: West, 2d ed. 2000): at 155 (collecting statutes).

E.g., Ind. Code Ann. § 35-47-7-1 (West 1998) (requiring reporting of injuries caused by firearms).

This is a theme that has been recognized in the Declaration of Istanbul as those in the medical and policy communities. See Declaration of Istanbul, supra note 69, at 3376–77; Noël and Martin , supra note 82, at 647; Danovitch and Leichtman , supra note 27, at 1134; see Lavee J. , “A New Law for Allocation of Donor Organs in Israel,” Lancet 375, no. 9720 (2009): 1131–1133.

For a good recent review of these kinds of measures, see Roels L. and Rahmel A. , “The European Experience,” European Society for Organ Transplantation 24, no. 4 (2011): 350–367.