Broken Hearts, Donated Kidneys

I blogged back in November about the legal status of kidney sales. In most places, it’s illegal to sell kidneys (and other organs). But it’s permissible — indeed, encouraged — to give them away, i.e., to donate them.

But the line between gift giving and commerce is not entirely clear. There have always been concerns that some people might “donate” organs and then expect (or simply receive) lavish “gifts” (perhaps even in the form of cash) from grateful recipients. Here’s a different kind of case that appears to put pressure on that distinction. What, exactly, should the returns policy be for a gift?

The newswires & the blogosphere are a-buzzin’ with this story:
Husband who donated kidney to wife wants it back now that they’re divorcing

When his wife needed a kidney transplant, Richard Batista — a doctor — gave her one of his, attorney Dominic Barbara said.

Now that Dawnell Batista has filed for a divorce, Richard Batista wants his kidney back as part of his settlement demand.

Or, Barbara said Wednesday, his client wants the value of that kidney: An estimated $1.5 million.

The case is being handled in Supreme Court in Mineola, N.Y.

As the ethicists (Caplan and Veatch) quoted in the story rightly point out, the request is ridiculous. A gift is a gift, and there’s neither legal nor moral grounds for Dr. Batista to ask for the kidney back. Now, Batista has said that, in lieu of the kidney, he’d be happy to have the cash value, instead, which he’s pegged at $1.5 million. But that makes no sense, either: a kidney has no cash value, at least not in North America (and the value in places where kidneys can legally be bought is much lower than that). And a calculation of the value of this particular kidney would have to take into account that it’s already been transplanted once, and I’m guessing re-transplanting it back into its original owner would not have a terrific likelihood of long-term success. So its value would be lower. Anyway, the whole story is pretty ridiculous. I guess some people just love publicity.

But we can extrapolate from the silly story to raise some interesting questions about what an actual, regulated market in kidneys would or should look like. (cf. James Stacey Taylor’s 2005 book, Stakes And Kidneys: Why Markets In Human Body Parts Are Morally Imperative) What would the returns policy be, in such a market? Would different vendors have different policies, and compete on that basis? What happens when the cheque bounces? Would the buyer be able to get a refund (a partial refund?) if she found out later that the kidney had not been well cared-for prior to transplantation, and was hence less healthy than originally thought? I suppose in some ways, a market in organs would be like a market in implantable medical devices (like pacemakers and steel pins to hold shattered bones together). Then again, a kidney, or a heart, isn’t a manufactured, mechanical device in the usual sense. Human body parts are hard to disentangle from human emotions, and that might well affect the terms on which we allow them to be traded.

For students and observers of business ethics, it’s a good exercise to imagine a market that does not yet exist, and imagine what ground-rules would, or should, govern that market.

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