Fundraising and the Delayed Kidney Transplantation: A Loophole in the Ban against Commercialization?

By Cansu Canca

In April, a kidney donation from an unrelated living donor was put on hold in South Portland, Maine. The reason was unusual: the generosity of the community.  In response to an online fundraising for the donor, 768 people contributed over $49,000—well beyond what can reasonably be called “compensation.” The hospital thus had to ask the question: Is the donation procedure in conflict with the law now that the donor stands to profit from it? After initial media coverage, there was no further news about this case. On Monday, however, it was announced on the fundraising page that the transplant is back on track and due to happen in two weeks. Does that mean that we now have a loophole in the ban against commercialization of organs?

The case is unprecedented. There are and have been other online fundraisers to compensate donors. But this is the first time that the unpredictable powers of the internet kicked in (remember the guy who raised $55,000 to make a potato salad?). The law prohibits any monetary payments to organ donors. The situation poses two questions: What should be done in this particular case, and how should fundraising for organ donors be regulated going forward?

It appears that the first question was somehow resolved even though we don’t know how: Did the hospital decide it was not a problem after all, or did the donor agree with the hospital’s reported initial suggestion of donating the “excess” money to some other organization? In either case, what follows remains problematic.

Making a Profit without Acting for Profit

Despite the hospital’s concerns, this case actually does not seem to conflict with the ban on organ sale. The ban—and the moral objection—covers organ transplantation for “valuable consideration.” In other words, the prohibition is not directed at coincidental profit but rather selling for profit. In the case at hand, the hospital acknowledges that the donor’s altruistic motive is quite clear. The unexpected benefits from the fundraising came long after he agreed to donate and went through the pre-transplant procedures.

The usual arguments against commercialization refer to the immeasurable value of human organs, undue inducement by high price offers, and concerns about human trafficking. This case does not run into any of these problems.

First of all, the money collected through fundraising is non-refundable and available to the donor immediately. Thus, the availability of the money does not even bind the donor to actually give away his kidney. This structure differs significantly from a “money for kidney” transaction defeating the main concern of commercialization: the donor does not receive money for his kidney. He receives it for his selflessness—in this case, his decision to donate.

So, valuing something immeasurable in money might not be the problem here. But how about voluntariness? The hospital was also concerned that the donor is no longer able to back out after such hype about his decision to donate even if he later changes his mind. In other words, while the donor is not legally bound to donate, he could feel a moral obligation towards not only the patient but also the 768 contributors.

This could be true. Yet, it is not exceptional. Imagine how the only match in the family feels. More to the point, what would be the effect of, say, a pre-transplant “thank you” party? Would one feel pressure not to back out? Probably yes. In fact, being shamed by all your extended family as you watch your sibling/parent get sicker might be a much stronger pressure than what 800 strangers think of you. However, this does not make a good enough argument for any legal intervention against “hyped” donations.

In summary, the hospital’s initial concerns seemed to be unfounded for the case at hand. In fact, any interference by the hospital—such as requiring the donor to give away the “excess” money—would itself have been morally problematic. Redirecting the money from the donor means that the hospital or the ethics committee overrides the contributors’ autonomous decision to reward the donor as they see fit. The money collected is clearly directed to the donor to use as he finds appropriate, not for an ethics committee to distribute (or more precisely, force the donor to distribute) for other “good causes.” It would be even more morally problematic if the donor were to already agree to this arrangement without announcing it on the fundraising page while funds keep flowing in. The recent contributors would be clearly deceived into helping an unknown cause rather than the donor himself. I don’t even want to consider the possibility of the money being eventually “freely” donated to hospital.

Controlling the Internet

Regardless of how the hospital and the donor settled this particular case, the picture changes drastically as we go forward. Once this case proceeds, all organ donations may become suspect. Any “donor” could be suspected not to have a purely altruistic motivation to donate. The aim of any “donation” might merely be to raise the interest of the community enough to receive similar “rewards.”

Whether this suspicion leads to an objection, however, depends on the exact argument against monetary rewards in organ donation, and on what we assume people will do with this option. On the one hand, a vague potential financial gain is unlikely to lure the “vulnerable”—i.e., the poor and the desperate—into giving their organs. On the other hand, we need to worry about setups other than genuine fundraising where the community decides whether and how much to reward the donor. We do not have control over the internet, and what the parties arrange behind the scenes. We can easily imagine a case where the patient (or the middleman) arranges an agreed upon sum to be transferred as if it is contributed to the fundraising by other people (like Breaking Bad in reverse). This would be a clear case of commercialization disguised as coincidental, disinterested fundraising. That means, if we want to uphold the ban against commercialization of human organs, then we cannot allow “gifts” in any form including online fundraising without introducing a huge loophole into the system.

Altruism vs. Altruism

This anti-evasion argument against gift-giving has been well-known since long before the internet added further complications. The prohibition of gifts applies to the donor-patient relationship just like it holds for the relationship between doctor and pharmaceutical company or between the political candidate and the corporation. Gratefulness is not an excuse when it could be a cover for a bribe.

On the other hand, the idea of “gift” plays a more significant role in organ transplantation than in these other settings. Taking a zero-tolerance stance against gifts for fear of potential corruption makes more sense in well-incentivized systems. Presumably, a doctor is motivated by a mixture of altruism, reputation, and financial gain. We would never argue for taking all financial gain out of the package of rewards for doctors in the hope of perfecting the system against corruption. It would be insane to hope for a sufficient number of competent physicians when all we can give them would be a warm hug. This, however, is exactly what we hope to achieve in organ donation.

Organ transplantation, as it is today, relies on altruism and fails miserably. For 101,617 kidney patients on the waiting list, last year we only had 186 anonymous and 1,320 unrelated directed living kidney donors.[1] The rhetoric against commercialization has been to promote altruism in a society rather than markets. Yet, the altruism or “gift-giving” is allowed to be directed only to the patient and never to the donor. When the society truly appreciates the donor’s act and wants to participate in this spirit of altruism by giving gifts to the donor, we end up with a big problem as this one. If nothing else, this should make us pause and reconsider this rhetoric of altruism. And perhaps, instead of trying to fit the case into the existing legal framework, we should finally consider where we go wrong with our anti-commercialization policy that lets thousands of patients die unnecessarily each year.

[1] Data from U.S. Department of Health & Human Services, Organ Procurement and Transplantation Network

Cansu Canca

Cansu Canca, Ph.D. is a philosopher and the founder and director of the AI Ethics Lab. She leads teams of computer scientists, philosophers, and legal scholars to provide ethics analysis and guidance to researchers and practitioners. She holds a Ph.D. in philosophy specializing in applied ethics. Her area of work is in the ethics of technology and population-level bioethics. Prior to the AI Ethics Lab, she was a lecturer at the University of Hong Kong, and a researcher at the Harvard Law School, Harvard School of Public Health, Harvard Medical School, Osaka University, and the World Health Organization. She tweets @ccansu

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