Market Making Inroads in Organ Transplantation, Assisted Reproduction

By Mary R. Anderlik
Health Law & Policy Institute

An article posted in October, 1998 focused on the buying and selling of body parts, reviewing the primary legal and ethical considerations. See "Body Parts: Should They Be Kept Out of the Marketplace?" New developments in two areas, organ transplantation and assisted reproduction, have served to sharpen debate on this issue.

Organ Transplantation: Earlier this month, state health officials in Pennsylvania announced they will soon offer a stipend to family members of dying patients who agree to organ donation. The stipends of around $300 would offset funeral costs and would actually be paid to funeral homes. The details of the pilot program, authorized under a 1994 state law, are still being worked out.

The responses to the announcement have been varied. Many have adopted a wait-and-see approach. Others have raised questions about the wisdom of the program, as well as its legality under the National Organ Transplant Act. Critics worry about exploitation of the poor, who may be lured into donating organs to a system that only provides organs to those who can pay, and exploitation by the poor. On the later point, many of the scenarios seem rather far-fetched: families lying about medical histories or, as suggested in an opinion piece in the New York Times, hurrying a sick loved one to the grave (or Pennsylvania), all for a modest savings on funeral expenses.

A more rational concern is that the plan will backfire, discouraging donation. The disparity between polling data showing a high degree of support for organ donation and low rates of actual donation merits consideration. The attitudes of doctors and nurses, the absence or breakdown of systems for ensuring that requests are made consistently and sensitively, religious beliefs, and distrust of the medical establishment are all offered as reasons for low donation rates. An offer of payment to or on behalf of family members fails to address these factors, and may insult or arouse suspicion. Money might better be spent on system change combined with targeted public and provider education. A study published in the February 1999 issue of the American Journal of Public Health found that families of African American patients were less likely to be approached for donation than families of White patients; when approached, families of African American patients were less likely to agree to donate an organ. There are no $300 quick fixes for these kinds of problems.

Assisted Reproduction: "Egg Donor Needed: Large Financial Incentive." In February, advertisements soliciting eggs from a 5-foot-10, athletic woman with a score of at least 1400 on her SATs—and a clean family medical history—started appearing in newspapers at elite universities. The incentive was $50,000. According to an article in the New York Times, the ad generated over 200 responses (an earlier ad that failed to name a price brought in only six).

Since athletic, intelligent, genetically-pure women are unlikely to be considered a vulnerable group ripe for exploitation, most commentators have focused their concern on the child or children who might eventuate from these Grade A oocytes. What happens to the notion of unconditional parental love and acceptance? In an interview, the agent for the couple placing the ad stated that the prospective parents are highly educated and so want a child who can be highly educated, tall and so want a child who is tall. Putting aside the technical issues surrounding genetic transmission of the valued traits, these parents-to-be with their clear vision of the product they mean to purchase seem ill-equipped to cherish the child who chooses carpentry over college or suffers an injury that precludes success on the basketball court.

Both these developments, limited in their immediate effects, are occasions for all of us to reflect on the growing visibility of cash in areas of social life heretofore shielded from commerce.