Trading with the waiting-list: The justice of living donor list exchange

Bioethics

Volumn 24, Issue 4, 2010, Pages 190-198

  Den Hartogh, Govert ^a  

^a UNIVERSITY OF AMSTERDAM   (Netherlands)

Author keywords

Difference principle; Formal justice; Kidney exchange; Living donation; Living Donor List Exchange; Organ donation; Waiting list

Indexed keywords

ARTICLE; BLOOD GROUP ABO SYSTEM; BLOOD GROUP INCOMPATIBILITY; ETHICS; HEALTH CARE ORGANIZATION; HOSPITAL ADMISSION; HUMAN; KIDNEY TRANSPLANTATION; LIVING DONOR; ORGANIZATION AND MANAGEMENT; SOCIAL JUSTICE; TRANSPLANTATION;

ABO BLOOD-GROUP SYSTEM; BLOOD GROUP INCOMPATIBILITY; HEALTH CARE RATIONING; HUMANS; KIDNEY TRANSPLANTATION; LIVING DONORS; SOCIAL JUSTICE; TISSUE AND ORGAN PROCUREMENT; WAITING LISTS;

EID: 77954693451     PISSN: 02699702     EISSN: 14678519     Source Type: Journal    
DOI: 10.1111/j.1467-8519.2008.00684.x     Document Type: Article

References (41)

1. My description of LDLE and its effects has largely been taken from a recent report of the Dutch Health Council (Gezondheidsraad. 2007. Ruilen met de Wachtlijst: een aanvulling op het programma voor nierdonatie-bij-leven? Den Haag: Gezondheidsraad. Accessible, with a summary in English, on http://www.gr.nl/pdf.php?ID=1518&p=1) which, on behalf of a small committee, has been researched and written by Dr. Wybo Dondorp. See W. Dondorp. 2008. Does Justice Allow Living Donor List Exchange? A recent report from the Health Council of the Netherlands. In: W. Weimar, M.A. Bos & J.J. Buschbach eds. Organ Transplantation: Ethical, Legal and Psychosocial Aspects. Lenerich: Pabst Science Publishers. I have also benefited greatly from the discussions within this committee. The Dutch minister of healthcare has now decided to follow the advice of the committee not to allow the introduction of an LDLE program or a pilot.
2. In the USA, cross-over donation programs have until now been as rare as LDLE programs; therefore LDLE provides more an alternative than a supplement. To my knowledge the introduction of LDLE has until now only been discussed in the USA and the Netherlands.
3. It is therefore incorrect to suggest (F.L. Delmonico et al. Donor Kidney Exchanges. Am J Transplant 2004; 4: 1628-1634) that the negative effect for O-patients is only transient, cf. L.F. Ross & S. Zenios. Practical and ethical challenges to paired exchange programs. Am J Transplant 2004; 4: 1553-1554.
4. According to information from the Dutch Transplantation Society NTS in 2004-2005 only 8 candidate pairs could not be helped in the direct donation or cross-over program, and only three of them because of A/O incompatibility. One of these pairs involved an O-recipient. The NTS calculated that if these pairs had been allowed an exchange with the waiting list, that would have resulted in no more than 3 days additional waiting time for O-recipients on this list. In the first 17 list-paired exchanges in the USA, however, only one donor was of bloodtype O (Delmonico et al., op. cit. note 3).
5. Jerry Menikoff. Organ swapping. Hastings Cent Rep 1999; 29: 28-33; Gezondheidsraad. 2003. Nieuwe Wegen naar Orgaandonatie. Den Haag; Gezondheidsraad.
6. There is a slight difference between the two forms of exchange: in LDLE one does not buy a specific kidney, but the right to a kidney from a pool of kidneys. If one orders forms of exchange according to the degree of abstraction involved, this form of exchange is therefore somewhat closer to monetary exchange. But this small difference does not seem to warrant permitting paired exchange and forbidding LDLE.
7. The fact that the donation is (perhaps) ultimately motivated by altruism or by a sense of duty does not differentiate it at all from market transactions.
8. Robert M. Veatch. 2000. Transplantion Ethics, Washington D.C.: Georgetown University Press; L.F. Ross & S. Zenios, op. cit. note 3; L.F. Ross & S. Zenios. Restricting Living-Donor-Cadaver-Donor Exchanges to Ensure that Standard Blood Type O Wait-List Candidates Benefit. Transplantation 2004; 78: 641-646;
9. Lainie Friedman Ross. The Ethical Limits in Expanding Living Donor Transplantation. Kennedy Inst Ethics J 2006; 16: 151-172.
10. Arthur M. Okun. 1975. Equality and Efficiency: The Big Tradeoff. Washington: Brookings Institution Press.
11. John Rawls. 1971. A Theory of Justice. Cambridge Mass.: Harvard University Press: 6.
12. Ibid: 154-155; John Rawls. 2003. Justice as Fairness, Cambridge Mass: Harvard University Press.
13. As for example the principle of Laplace/Bernoulli (attribute equal probability to all possible outcomes, and maximize utility under these assumptions) or Hurwicz' index of optimism/pessimism. See: R.D. Luce & H. Raiffa. 1957. Games and Decisions: Introduction and Critical Survey. New York: John Wiley and Sons: ch. 13.
14. This has for the first time been clearly observed by Craig K. Ihara. Maximin and other decision principles, Philosophical Topics 1981; 9: 59-72, cf. David H. Kaye. Playing Games With Justice: Rawls and the Maximin-Rule, Social Theory and Practice 1980; 6: 33-51, but it has not been generally recognized in the Rawls literature, in which the standard objection is still commonly made. It is worth noting that under these special conditions, all principles of rational choice, including those of Laplace and Hurwicz, will give the same absolute priority to maximizing the minimum (at least to the level of the 'bend').
15. Independently of Rawls, John Harsanyi, appealing to Laplace's principle of the equal probability of all possible outcomes, had already argued in 1953 that people under a veil of ignorance would opt for maximizing average utility (John C. Harsanyi. 1976. Essays on Ethics, Social Behavior, and Scientific Explanation. Dordrecht: Reidel), a distribution which, however, due to the flattening of the utitlity curve, would tend to be egalitarian as well.
16. Derek Parfit. 1998. Equality and Priority. In Ideals of Equality, A. Mason, ed. Oxford: Blackwell: 1-20.
17. A concern for the absolute position of the needy would, I believe, lead us to give priority to the position of the worst off only up to a certain threshold, and hence result in a sufficiency rather than a priority principle, cf. R. Crisp. Equality, Priority and Compassion. Ethics 2003; 113: 745-763. But it seems that in most, perhaps all countries, not only the O-patients but all patients on the waiting-list should be considered to be in need.
18. It is the basic weakness of comparative principles like egalitarianism to frown upon such windfalls and to require levelling down.
19. M. Hilhorst. 2005. Nierdonatie bij leven: ethische vragen bij een dynamische praktijk. In: Ethiek en recht in de gezondheidzorg, aanvulling 33. Deventer: Kluwer: 143-158.
20. H. Kelsen, 1973. What is Justice? In: Essays in Legal and Moral Philosophy. O. Weinberger, ed. Dordrecht: Reidel (1st edn. 1953); David Lyons. 1993. On Formal Justice. In: Moral Aspects of Legal Theory; Essays on Law, Justice, and Political Responsibility. Cambridge: Cambridge University Press; L.P. Pojman & R. Westmoreland. 1997. Introduction: the Nature and Value of Equality. In: Equality: Selected Readings. New York: Oxford University Press: 2-3.
21. C.L. Carr, The Concept of Formal Justice. Phil Studies 1981; 39: 211-226.
22. Actually the system weighs lottery outcomes and examination results. It is discussed by Jon Elster. 1992. Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens. New York: Russell Sage Foundation.
23. L. Fuller. 1964. The Morality of Law. New Haven and London: Yale University Press.
24. M.T. Hilhorst, L.W. Kranenburg et al. Altruistic Living Kidney Donation Challenges Psychosocial Research and Policy: A Response to Previous Articles. Transplantation 2005; 79: 1470-1474.
25. It may basically be the existence of this relation which justifies the medical team to turn a healthy person into a patient. Govert den Hartogh, The Justification of Living Donation. (Unpubl.)
26. Therefore this type of donation cannot be justified by a general defense of legitimate partiality, as proposed by Medard Hilhorst, Directed Altruistic Living Organ Donation: Partial but not Unfair. Ethical Theory and Moral Practice 2005; 8: 197-215.
27. R.A.Ankeny, The Moral Status of Preferences for Directed Donation: Who Should Decide Who Gets Transplantable Organs? Camb Q Healthc Ethics 2001; 10: 387-398; Gezondheidsraad, op. cit. (2003): 138;
28. S. Zink, S. Wertlieb et al., Examining the Potential Exploitation of UNOS Policies, Am J Bioeth 2005; 5(4): 6-10;
29. D.W. Hanto, Ethical Challenges Posed by the Solicitation of Deceased and Living Organ Donors. N Engl J Med 2007; 356: 1062-1066. The case of donation directed to certain groups is more complicated.
30. See e.g. R. Hare. 1963. Freedom and Reason. Oxford: Oxford University Press: see especially p. 30.
31. E.g. G. Gubernatis & H. Kliemt, Solidarity Model: A Way to Cope with Rationing Problems in Organ Transplantation. Transplant Int 2000; 13 (suppl.1): 607-608; G. den Hartogh. 2003. Gift of Bijdrage? (Gift or Contribution?). Den Haag: Rathenau Instituut. Available (with English summary) at http://www.rathenau.nl/showpage.asp?item=709 [Accessed 19 Aug 2008]; D. Steinberg. An 'Opting In' Paradigm for Kidney Transplantation. Am J Bioeth 2004; 4: 4-14.
32. A reviewer for Bioethics rightly pointed out that this provides an additional reason for doubting whether Rawls' argument for the difference principle applies to the allocation of organs for transplantation: that argument assumes conditions of moderate scarcity.
33. Ross & Zenios 2004, op. cit. note 8.
34. Suggested by R.M. Veatch. Organ Exchanges: Fairness to the O-Blood Group. Am J Transplant 2006; 6: 1-2.
35. Ackerman et al. found 50% of respondents of bloodtype-O supporting LDLE, as well as 70% of respondents who did not know their own bloodtype, and 57% of others. P.D. Ackerman, J.R. Thistlethwaite & L.F. Ross. Attitudes of Minority Patients with End Stage Renal Disease Regarding ABO-Incompatible List-Paired Exchanges. Am J Transplant 2006; 6: 83-88.
36. I concentrate in the following on this problem. Problems arising from histo-incompatibility could be solved in analogous ways.
37. Ross 2006, op. cit. note 8.
38. A comparative study of 48 pairs involved in an exchange program and 48 pairs involved in direct donation showed no difference in the need for psychosocial support three months after the transplantation. L. Kranenburg et al. The Implementation of a Kidney Exchange Program does not Induce a Need for Additional Psychological Support. Transplantation Int 2007; 20: 432-439.
39. It has been argued (recently by A. Spital. Donor Benefit is the Key to Justified Living Organ Donation. Camb Q Healthc Ethics 2004; 13: 105-109) that accepting an offer of donation in the end can only be justified by the interests of the donor. Even if this position could be defended (cf. note 24), it is clear that in broaching the subject the doctor does not only have the interests of the potential donor in mind.
40. Kranenburg et al. interviewing the same pairs (see note 35), found 31 persons (without any difference between the two groups or between donors and recipients) willing to participate in an exchange, even when direct donation was an option. 18 were undecided. L. Kranenburg et al. One Donor, Two Transplants: Willingness to Participate in Altruistically Unbalanced Exchange Donation. Transplantation Int 2006; 19: 995-999. But it is of course an open question whether these people would have shown the same attitude if an actual request for participation had been made.
41. As Veatch, op. cit. note 31, argues, almost all non-O recipients could find a better organ than the one offered by their paired O-donor if a sophisticated matching algorithm were developed over a large enough group of people. In that case doctors would certainly have to inform these donors about this option.