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:

  1. 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.

  3. 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).

  5. 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.