Body Parts: Should They Be Kept
Out of the Marketplace?
By Mary Anderlik
Health Law & Policy Institute
The debate over the sale of body parts
remains a lively one. A number of recent developments here and abroad have
focused attention on this area:
-
In August of this year, the governor of Hawaii
proposed that the state pay the families of organ donors. At the time the
governor made the proposal, Hawaii was reporting only one donation for
the year under the existing voluntary system. Nearly 200 Hawaiians are
on a waiting list for organs. Beliefs held by many Hawaiians concerning
the importance of bodily integrity following death discourage donation,
and distance from the mainland precludes importation of organs.
-
In the September 24 issue of the New England
Journal of Medicine, George Annas, a leader in the fields of health
law and bioethics, called for increased federal regulation of the burgeoning
business of assisted reproduction. Among other things, Annas proposed that
an advisory committee consider the addition of embryos and eggs, and possibly
sperm, to the list of human tissues that cannot be purchased or sold in
the United States (a few states already prohibit the purchase or sale of
embryos).
-
On October 1, the Chinese government banned
payments for blood. An article in the New York Times noted that
most countries prohibit the buying and selling of blood because those willing
to sell are typically at high risk for AIDS, hepatitis and other infections,
and commercial blood centers with inadequate sanitation may further contribute
to the spread of disease.
At present, many countries have laws in place
that flatly prohibit the purchase or sale of body parts. U.S. law has tended
to divide body parts into categories. Payment for nonregenerative or nonrenewable
tissues used in transplantation, such as hearts and kidneys, has been prohibited.
On the other hand, payment for renewable tissues such as blood, hair and
semen, has been permitted. The National Organ Transplant Act, which applies
to any transaction that affects interstate commerce, prohibits payment
for solid organs, including those derived from a fetus, as well as skin,
bone and bone marrow. See 42 U.S.C. § 274e. The federal law,
like many state laws, includes imprisonment as a possible sanction. The
exception to the no payment rule, mirrored in many state laws, permits
reasonable payments associated with the transplant process itself (e.g.,
organ retrieval and implantation) and payments to cover expenses of the
donor such as travel and lost wages. Annas and his allies suggest a toughening
up of the present structure of laws and regulations that prohibit the purchase
and sale of human tissue, while the governor of Hawaii and others favor
narrowing or doing away with them.
The arguments in the debate over the buying
and selling ("commercialization") of body parts have changed little over
the years. Proponents of prohibition point to the safety risks associated
with commercialization and offer expanded educational efforts as an alternative
measure to increase supply. Public health concerns clearly motivated the
recent shift in Chinese policy. Another concern is a fear that vulnerable
populations will be exploited (i.e., that the poor and others whose social
circumstances give them few choices and little medical sophistication will
become "tissue factories" for the well-to-do). These concerns are usually
most acute in cases involving organ harvests from the living that may carry
substantial health risks. Finally, proponents of prohibition often dwell
on the social risks associated with the "commodification" of the body.
They argue that there is value in (a) setting limits to what can be bought
or sold in the market as a commodity, e.g., treating flesh differently
than flour; and (b) supporting systems that rest on and promote voluntary
giving, especially where the gift is life itself.
Those arguing against prohibition have
a number of counter-arguments. In the face of the shortage of organs and
other tissues, with people daily dying on waiting lists, they argue that
the safety risks associated with payment are outweighed by the benefits
of an increased supply. Improved screening and testing would in any event
ameliorate if not solve the safety problem. And it is immaterial that desperate
financial circumstances drive people to do what they would not do otherwise—if
people are not physically compelled or threatened with harm as a consequence
of not selling tissue, then their choice to sell is voluntary and the government
should not interfere. (After all, we permit people to take life-endangering
risks for money in other contexts, as, for example, in choosing employment.)
Finally, they argue that markets are good, promoting the freedom of individuals—and
any limits are arbitrary.
Given repeated advances in our ability
to partition and manipulate the human body, the debate over the status
and treatment of the body’s components is likely to continue for many years
to come.
10/08/98