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It is the inside that counts – Decriminalisation of Organ Commercialisation

Updated: Feb 9

Alexander Clevewood Ng*


Abstract:

 

The stakes of focusing on our inner beauty could not be higher. Although the UK has switched to an ‘opt-out’ system to encourage organ donation figures, due to the COVID-19 pandemic, demand still outstrips supply.

 

 Allowing for organ commercialisation is a feasible solution. Not only does it enhance economic efficiency, as organ transplantation generally leads to superior clinical outcomes relative to palliative modalities, it also promotes individual autonomy. Vendors’ decision to capitalise on their body parts would be approved by the law.

 

However, regulation remains vital to prevent the exploitation of persons from lower socioeconomic status. This requires the establishment of a national procurement agency, insulating potential vendors from market forces and the individualistic nature of English contract law.


I.               Introduction;


Organ transplantation is broadly seen as a life-saving measure for patients. However, in recent years, the increase in organ demand in the United Kingdom is not matched by a corresponding increase in supply.

 

The sale of human organs for transplantation should therefore no longer be strictly prohibited under English law. This would entail changes to s.32 of the Human Tissue Act 2004. However, the lifting of the ban should be done gradually, given wider public policy concerns, and coherence with current law. Organ commercialisation would run concurrently with the donation regime.

 

Part II attempts to explain the contemporary supply-demand deficit of organs in the United Kingdom. Part III aims to discuss how organ commercialisation could be decriminalised, and why. Part IV concludes this proposal.

 

II.             Background:


Although the number of organ transplants increased significantly from 2,947 in 2020/2021 to 3,415 in 2021/2022, it experienced a slight dip in the first three quarters of 2022/2023.[1] The proportion of the population on the Organ Donor Register (ODR) increased steadily from 38% in 2018/2019 to 42% in the first three quarters of 2022/2023. This may be linked to the enactment of the Organ Donation (Deemed Consent) Act 2019, where individuals are deemed to have consented to organ donation unless specified otherwise (i.e. ‘opt-out’).


However, the total number of patients on the transplant waiting list increased from 6,060 to 6,730 in the same time-period. The waiting list is noted to have exhibited a steadily decreasing trend from 2018 to 2021. Such data indicate that the effects of COVID-19 are still remarkable in the post-pandemic era. The increase in organ demand can potentially be observed in the long term owing to the increased need for re-transplantation;[2] and the chronic adverse consequences of COVID-19, which lead to sub-ideal organ health.[3]


However, organ supply consistently fails to meet such increasing demand. Since the sale of human organs for transplantation is generally prohibited under English law (s.32, Human Tissue Act 2004),[4] the only legal means of organ procurement is donation.

This is insufficient. Legislative changes should be made to legalise organ sale for transplantation. The availability of financial incentives reasonably attracts prospective vendors. This complements the existing donation regime.

 

      III.            Proposed Legislative Changes: Decriminalisation and Regulation 

Measure 1: Repeal of s.32(1)(a)-(c), Human Tissue Act 2004, to allow for organ commercialisation;


Firstly, this improves economic efficiency. Financial incentives encourage the public to sell their organs, therefore reasonably increasing organ supply. This is supported by evidence. For instance, if all patients on the waiting list for kidney transplantation are given transplants instead of remaining on dialysis, the NHS is estimated to save £152 million per year.[5] Such savings are reasonably greater if we include other forms of transplantation, e.g. liver. According to Barnieh and others,[6] an increase of 5% in transplantation rate already yields a gain of 0.11 quality-adjusted life-years (QALYs), presuming that donors are given $10,000 as compensation. The amounts of QALYs gained increase to 0.21 and 0.39 respectively for a 10% and 20% increase in the total number of kidneys available for transplantation.



Inter alia, this would also significantly increase living donor organ transplantation, i.e. organs harvested from living individuals for a transplantation. This is because more individuals prospectively engage with the market to enjoy financial rewards when they are still alive. This differs from the donation regime, which is still focused on deceased donor organ transplantation.[7] This development also improves economic efficiency. Compared to deceased donor organ transplantation, since there is a shorter time gap between harvest and transplantation, there is smaller discrepancy in organ quality. This improves surgical planning and resource allocation. There is a greater chance that transplanted organs function properly in recipients.[8] This is supported by evidence. According to Nemati and others,[9] living donor kidney transplant recipients are significantly more likely to survive for a longer time, and experience better long-term kidney health. This signifies a significantly smaller risk of re-transplantation and maximisation of the kidney’s economic potential. In the UK specifically, living donor kidney transplantation saves the government £25,800 per year, per patient in the second and subsequent years of transplantation.[10] 

 

Some critics contend that organ commercialisation could diminish the number of organs procured from donation.[11] Chapman argues that the introduction of financial incentives reduces the desire for family members to donate organs as they could be more easily procured on the market. However, this presumes that donors donate organs solely because of necessity. Evidence demonstrates that organ donation is mostly driven by humanitarian factors. According to Saxena and others,[12] most relatives of donors believed organ donation could satisfy their moral obligations. One respondent also highlighted the benefit of becoming a role model for inspiring others to do the same. Such benefits could only be procured through donation owing to the magnanimous nature of donation. Although both organ donation and commercialisation allow for the donor’s/vendor’s ‘self’ to live on (another factor behind donation[13]), its impact is reasonably attenuated in commercialisation since the organ is treated as chattel. It no longer espouses the morality that distinguishes the donor. However, since the motives behind donation and commercialisation are vastly different, concurrent commercialisation would not necessarily attenuate the donation regime. It instead galvanises an alternate segment of society to contribute to the greater good. To illustrate, an individual could sell part of their liver whilst donating their heart, since they assign varying shades of moral significance to different bodily organs.

 

Organ commercialisation also promotes individual autonomy. Autonomy signifies the freedom to determine for oneself how one wishes to live their life, i.e. making choices which best reflect their desires and priorities.[14] Applying this to organ commercialisation, prospective vendors are offered an additional avenue to improve their living standards. Although this comes with risks (predominantly health-related), respect for autonomy does not only mean observing the sanctity of one’s substantive decision, but also the risks one consciously undertakes. Savulescu suggested if individuals were prevented from making decisions that they personally opine to be beneficial, this would be ‘paternalism at its worst form’.[15] Adjudging one’s autonomous decision by objective standards also contradicts the law’s general deference to individual autonomy. For instance, under s.1(4) of the Mental Capacity Act 2005, a person is not to be treated as lacking capacity simply by making an unwise decision. Furthermore, it is doubtful whether such objective standards could be agreed upon at all, given that different individuals potentially have vastly disparate views of what is classifiable as a ‘wise decision’.


Critics have argued that the autonomy of vendors from lower socioeconomic classes might be impugned, since they are more likely subjected to exploitation. According to Greasley,[16] in India, vendors are more likely to sell organs to pay off pre-existing debts. Due to the existence of a thriving organ market, creditors are more likely to use organs as collaterals. Organ commercialisation therefore leads to further exploitation of the poor, resulting in minimal benefit to their financial circumstances. Alternatively, Malmqvist proposed the group soft paternalism theory. Although the autonomy of impoverished individuals is impacted, retaining the prohibition in fact strengthens it since such individuals are protected from making decisions that they are less capable of making. Poverty gives rise to ‘desperation’, where they reasonably focus more on short-term gains than long-term risks.[17] Although not everyone would be inclined to make a non-autonomous decision, the fact that the majority already justifies governmental intervention. 

 

There are several responses to this.


First, it is minimally helpful to draw premature comparisons between the UK and India, since both countries have significantly different economic profiles and social welfare systems. Moreover, allowing for organ commercialisation does not necessarily require the wholesale importation of English property law. Organs could be exempted, by law, from assignment and charge. This ultimately lies in the scope and method of regulation.

 

Secondly, Malmqvist’s theory should only be accepted in light of the adversarial model of English contract law. Parties could mind their own interests only in contractual negotiations and performance.[18] Subject to competition law regulations, buyers could exert their market influence and bargain for contractual prices below market value(s). Since sellers are more likely to be impoverished, lack legal representation, and are in more urgent need of cash to maintain their livelihoods, they are more susceptible to pressure which attenuates, or even vitiates, one’s autonomy. Moreover, given the high threshold to prove actual undue influence,[19] said vendors may be left without a corresponding remedy in contract law. However, it does not naturally follow that this development should be abandoned, since private law deficits could be mended by public law regulation, as elaborated in the section ‘Measures 2&3: Regulation’ below.

 

 This also invokes issues of equality, as vendors from less well-off backgrounds, who in virtue of organ contribution(s) may suffer from inferior health, are more likely to require organ transplantation later in life. However, they might fall back into debt by procuring a private organ, given the long waiting lists at the NHS.[20] This underlines the importance of regulation.

 

Lastly, critics object to organ commercialisation due to the dignity argument. Bray suggested that it would ‘commodify’ organs, undermining the ‘recognition of the human body as the physical embodiment of the personality’.[21] This must be rejected. Firstly, the sanctity of the human body is still recognised by the law. For instance, unconsented touching remains a prosecutable offence.[22] More fundamentally, one’s personality goes beyond the confines of one’s physical parts. It consists in the autonomous decisions one makes. Goold and Herring describe organs as espousing ‘qualities of moral agents’.[23] Since regulated organ commercialisation promotes individual autonomy, the ‘morality’ of one’s agency and personality are preserved. This recognises the dignity of human beings. Organs, as mere physical parts, should not be assigned excessive normative weight.


Measures 2&3: Regulation: 


•       A national procurement agency should be established through secondary legislation, with powers granted under s.32(12). All organ procurement decisions must be made in alignment with the vendor’s best interests and current law.

•       Retention of s.32(1)(d)-(e), and s.32(2).


We first examine what is required in a private market for the autonomy of vendors from lower socioeconomic classes to be observed. The buyer must heed vendors’ personal circumstances and determine whether the vendor’s offer were made in under-appreciation of long-term consequences and over-emphasis on short-term financial rewards. This would entail, for instance, purchasing the organ(s) at/above market value, and providing the seller with sufficient information during contracting to render their consent as ‘informed’ as possible. However, this risks setting an unattainable threshold for buyers. This renders transactions so commercially unviable that very few buyers would engage with organ sales. This would frustrate the motives of commercialisation in the first place. Furthermore, an independent enforcement agency would be necessary to monitor whether buyers complied with such requirements, entailing extra costs.


We should establish a statutory monopsony over organ procurement. Powers should be granted under a new subsection, i.e. s.32(12), to establish an independent, publicly-funded agency. It is directly responsible to the government, independent from the NHS. Since there is no market competition, vendors could be adequately compensated for their organs. This also ensures the uniformity of treatment of vendors across the market. Furthermore, all organs procured would be distributed in line with current medical guidance, i.e. needs-based. This promotes societal equality. This suggestion is supported by Erin and Harris.[24] In addition, the agency must make procurement decisions in line with the vendor’s ‘best interests’. This term should be loosely interpreted to encompass the views and wishes of vendors, as well as their socioeconomic circumstances, determining whether organ contribution best promotes their autonomy.


Some may argue that decisions based on ‘best interests’ risk falling back into ‘paternalism’, since vendors’ personal circumstances are adjudged via the standards of the state. However, this is avoided through dialogue. The agency offers their analysis to the vendor and asks whether they were still committed to the procurement, the vendor’s decision is more representative of their autonomy. Their economic circumstances are less over-emphasised, as they are co-interpreted with health parameters, e.g. overall post-contribution life expectancy. Alternative solutions could also be proffered. Instead of straightforwardly rejecting contributions, the agency might recommend contribution of parts of ‘regenerative organs’, i.e. organs, e.g. liver, which could grow back to roughly their original sizes after part-donation.[25] In addition to improving post-contribution health outcomes and financial health, the vendor’s autonomy is promoted. This consultation-based model is analogous to the law on consent to medical procedures.[26]


Adair argued that paid donation could never be ethical since it ‘penalises the weakest’, with the society’s poorest being overrepresented in contribution circles. Moreover, financial incentivisation would dent healthcare decision-making, due to conflicts of interest.[27] This should be rejected. Firstly, although individuals from certain socioeconomic backgrounds might be overrepresented, this does not automatically entail exploitation. It is still a form of empowerment, as long as organ contributions represent a genuine exercise of autonomy. This is attained by the safeguards above. Furthermore, where the agency is independent of the NHS, all decisions are reasonably isolated from NHS transplantation targets. Healthcare professionals are reasonably not expected to handle such matters in depth, as vendors would liaise directly with the agency.

 

To uphold vendor autonomy, the prohibitions contained within s.32(1)(d)-(e) and

s.32(2) should be maintained. The combined effect is that the participation in or advertisement of organ commercialisation remains illegal. Firstly, this precludes the lawful promotion of unlawful markets, i.e. outside the statutory regime. Secondly, it ensures that vendors’ individual autonomy is protected from undue influence.

 

Although the agency is designed to analyse the vendor’s circumstances holistically, it can only examine the information it is given. However, in cases of undue influence, details are often obscured, blunting the effectiveness of dialogue and promotion of autonomy. For instance, creditors might pressurise vendors to sell their organs to clear their debts. Vendors are less likely to volunteer that information, fearing that exposure might attract rejection by the agency. s.32(1)(d)-(e) are worded in sufficiently broad terms to encompass such conduct. The words ‘negotiates’ and ‘involving’ reasonably concern any third party whose involvement exceeds an advisory capacity. Regarding the multiplicity of potential situations, the precise ambit of such provisions should be sculpted by the common law given its inherent flexibility. The strong labelling effect of the offences deters third parties from interfering with vendor’s decision-making.[28] The agency would also have the legal mandate to refer such cases to enforcement authorities.

 

Finally, organ procurement decisions must be made ‘in line with current law’. This prevents contradiction with the law on euthanasia. Much of contemporary discourse is focused on the commercialisation of ‘duplicate’ or ‘regenerative’ vital organs, but Greasley notes the risk of suicide by donating one’s heart.[29] Although suicide is legal under s.1 of the Suicide Act 1961, the untrammelled scope of commercialisation indirectly promotes the risk of suicide, which is incompatible with society’s focus on the sanctity of life.[30] Moreover, assisted dying is prohibited under English law.[31] If organ contribution could be done to the effect that the individual would inevitably die from related procedures (either because of the high risk of complications or the inability of remaining organs to support basic bodily functions), not only might the agency be committing an unlawful act, incapacitated individuals who wish to commit suicide could do so by contributing their vital organs, e.g. the brain. This would create a ‘back door’ which bypasses the law on assisted dying. This proposal would require the agency to reject any requests amounting to assisted dying, and offer alternatives instead.

 

This approach is preferable to altering primary legislation, e.g. modifying the definition of ‘controlled material’ in s.32(8)-(10) so that ‘singular’ vital organs only shall be subject to the prohibition. Advancement in the medical sciences is rapid. It is possible that in the future, human beings could survive on half a heart. This would therefore not engage the law on suicide/assisted dying at all. Labelling certain organs as definitively ‘out of bounds’ limits the economic potential of organ commercialisation, and the available pool for certain organs. Primary legislation also lacks the flexibility that professional decision-making affords. It therefore risks being ‘out of step’ with novel medical developments.

 

      IV.        Conclusion.


Organ supply is consistently lower than its demand. To improve the rate of transplantation, legislative changes are suggested to allow for a regulated form of organ commercialisation. A statutory monopsony should be established, whereby procurement decisions are made in empowerment of vendors and compliance with the current law of suicide/assisted dying. Advertisement and involvement of third parties in organ transactions should remain banned to bolster vendor autonomy.


*Alexander Clevewood Ng is the Deputy Editor-in-Chief of the City Law Review. He had been an Editor of the UCL Journal of Law and Jurisprudence. He graduated from UCL Laws and is a current Bar Course student at City, University of London.


[1] “Organ Donation and Transplantation Activity Data: United Kingdom” (NHS Blood and Transplant) URL: https://nhsbtdbe.blob.core.windows.net/umbraco-assets-corp/28506/nhsbt-united-kingdomsummary-report-dec-22.pdf> accessed April 18, 2023

[2] A Ng, ‘Graft injury and re-transplantation in liver transplant patients with COVID-19’ (2021) 1 Journal of Liver Transplantation 100008.

[3] A Dennis, ‘Multi-organ impairment and long COVID: a 1-year prospective, longitudinal cohort study’ (2023) 116 JRSM 3.

[4] s.32(9) exceptions concern assisted reproduction and application of skill.

[5] “Factsheet 7- Cost-effectiveness of transplantation” (NHS Blood and Transplant, October 2009)

assets/pdfs/Organ_Donation_Registry_Fact_Sheet_7_21337.pdf> accessed April 2023.

[6] L Barnieh et al, ‘The cost-effectiveness of using payment to increase living donor kidneys for transplantation’ (2013) 8 Clinical Journal of American Society of Nephrology 12, 2165-73.

[7] Living Organ Donation, POST PN641, April 2021, p.1.

[8] “Benefits and Risks of Kidney Donation: UPMC” (University of Pittsburgh Medical Center) URL; https://www.upmc.com/services/transplant/kidney-pancreas/living-donor/benefits-

risks#:~:text=Compared%20to%20deceased%2Ddonor%20transplants,organ%20will%20function%2 0right%20away.> accessed April 19, 2023

[9] E Nemati et al, ‘Does Kidney Transplantation With Deceased or Living Donor Affect Graft Survival?’ (2014) 6 Nephro-Urology Monthly 4.

[10] n.6, p.2.

[11] J Chapman, ‘Should we pay donors to increase the supply of organs for transplantation? No.’ (2008) 336 BMJ 7657, 1343.

[12] D Saxena, ‘Challenges and Motivators to Organ Donation: A Qualitative Exploratory Study in Gujarat, India’ (2023) International Journal of General Medicine 16, 151-159.

[13] A Ralph, ‘Family Perspectives on Deceased Organ Donation: Thematic Synthesis of Qualitative Studies’ (2014) 14 American Journal of Transplantation 4, 923-935.

[14] Goold and Herring, ‘Great Debates in Medical Law and Ethics’ (Palgrave 2018), 3.

[15] J Savulescu, ‘Is the sale of body parts wrong?’ (2003) JME 29, 139.

[16] K Greasley, ‘A legal market in organs: the problem of exploitation’ (2014) JME 40, 53-54.

[17] E Malmqvist, ‘Are bans on kidney sales unjustifiably paternalistic?’ (2014) 28 Bioethics 3, 116.

[18] e.g. R (European Roma Rights Centre) v Immigration Officer [2005] 2 AC 1, [59].

[19] RBS v Etridge [2002] 2 AC 773, [8].

[20] A Adair et al, ‘Paid organ donation: the case against.’ (2011) 93 Annals of Royal College of Surgery England 3, 191-192.

[21] M Bray, ‘Personalizing personality: toward a property right in human bodies’ (1990) 69 Texas Law Review 209, 241.

[22] R v Ireland [1997] 3 WLR 534.

[23] n.13, 207.

[24] Erin and Harris, ‘An ethical market in human organs’ (2003) JME 29, 137.

[25] J Haga et al, ‘Liver regeneration in donors and adult recipients after living donor liver transplantation’ (2008) 14 Liver Transplantation 12, 1718-1724.

[26] Montgomery v Lanarkshire [2015] UKSC 11.

[27] n.20, 192.

[28] Chalmers and Leverick, ‘Fair Labelling in Criminal Law’ (2008) 71 MLR 2, 219.

[29] n.15, 51.

[30] R (Nicklinson) v Ministry of Justice [2014] UKSC 38.

[31] s.2(1), Suicide Act 1961.

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