Transplant Tourism: The Ethics and Regulation of International Markets for Organs

Journal of Law, Medicine and Ethics

Volumn 41, Issue 1, 2013, Pages 269-285

  Cohen, I Glenn ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; COMMERCIAL PHENOMENA; ECONOMICS; ETHICS; HUMAN; INTERNATIONAL COOPERATION; LEGAL ASPECT; MEDICAL TOURISM; TRANSPLANTATION;

COMMERCE; HUMANS; INTERNATIONAL COOPERATION; MEDICAL TOURISM; TISSUE AND ORGAN PROCUREMENT;

EID: 84876968669     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/jlme.12018     Document Type: Article

References (66)

1. See, e.g., I. G. Cohen, "Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument," Iowa Law Review 95, no. 5 (2010): 1467-1567.
2. I. G. Cohen, "Medical Tourism, Access to Health Care, and Global Justice," Virginia Journal of International Law 52, no. 1 (2011): 1-51.
3. I.G. Cohen, "Circumvention Tourism", Cornell Law Review 97, no. 6 (2012): 1309-1398.
4. While I use the term "medical tourism" because it is the conventional term used by the industry, and in many instances it is partially supported by the tourism industry in the destination country, I do not mean to suggest anything pejorative or that those using these services are engaged in something frivolous. "Medical travel" or "cross-border care" could be used just as easily for my purposes.
5. As I discuss below, even in Iran it is subject to significant regulation of who can sell and buy organs.
6. See the chapter on Transplant Tourism in my forthcoming book. I. G. Cohen, Patients with Passport: Medical Tourism, Law, and Ethics (under contract, Oxford Univ. Press).
7. See S. Yea, "Trafficking in Parts: The Commercial Kidney Market in a Manila Slum, Philippines," Global Social Policy 10, no. 10 (2010): 358-376.
8. N. Scheper-Hughes, "Bodies for Sale: Whole or Parts," N. Scheper-Hughes and L.J.D. Wacquant, eds., Commodifying Bodies (London: Sage Publications Ltd, 2002): 1-9.
9. N. Scheper-Hughes, "Rotten Trade: Millenial Capitalism, Human Values, and Global Justice in Organ Trafficking," Journal of Human Rights 2, no. 2 (2003): 197-226.
10. L. Cohen, "The Other Kidney: Biopolitics Beyond Recognition," Body & Science 7, no. 2 (2001): 9-29.
11. L. Cohen, "Where It Hurts: Indian Material for an Ethics of Organ Transplantation," Zygon Journal of Religion and Science 38, no. 3 (2003): 135-165.
12. D. Budiani-Saberi and F. Delmonico, "Organ Trafficking and Transplant Tourism: A Commentary on the Global Realities," American Journal of Transplantation 8, no. 5 (2008): 925-929.
13. J. Zargooshi, "Quality of Life or Iranian Kidney Donors," Journal of Urology 166, no. 5 (2001): 1790-1799.
14. J. Zargooshi, "Iranian Kidney Donors: Motivations and Relations with Recipients," Journal of Urology 165, no. 2 (2000): 386-392.
15. D. L. Segev, A. D. Muzaale, and B. S. Caffo et al. "Perioperative Mortality and Long-Term Survival Following Live Kidney Donation" JAMA 303, no. 10 (2010): 959-966.
16. The descriptive material from this section is drawn from S.A. Anwar Naqvi et al., "A Socioeconomic Survey of Kidney Vendors in Pakistan," Transplant International 20, no. 11 (2007): 934-939.
17. M. Moniruzzaman, "'Living Cadavers' in Bangladesh: Bioviolence in the Human Organ Bazaar," Medical Anthropology Quarterly 26, no. 1 (2012): 69-91.
18. M. Goyal et al., "Economic and Health Consequences of Selling a Kidney in India," JAMA 288, no. 13 (2002): 1589-1593.
19. J. Gill et al., "Transplant Tourism in the United States: A Single-Center Experience," Clinical Journal of the American Society of Nephrology 3, no. 6 (2008): 1820-1828.
20. M. T. Canales et al., "Transplant Tourism: Outcomes of United States Residents Who Undergo Kidney Transplantation Overseas," Transplantation 82, no. 12 (2006): 1658-1660.
21. S. Kennedy et al., "Outcome of Overseas Commercial Kidney Transplantation: An Australian Perspective," Medical Journal of Australia 182, no. 5 (2005): 224-227.
22. M.S. Sever et al., "Outcome of Living Unrelated (Commercial) Renal Transplantation," Kidney International 60, no. 4 (2001): 1477-1483.
23. Z. Morad and T. O. Lim, "Outcome of Overseas Kidney Transplantation in Malaysia," Transplant Proceedings 32, no. 1485 (2000): 224-227.
24. A. Salahudeen et al., "High Mortality Among Recipients of Bought Living-Unrelated Donor Kidneys," Lancet 336, no. 8717 (1990): 725-728.
25. Unfortunately the authors do not provide equivalent numbers for the two control groups on these measures, which would better enable us to put this into perspective.
26. N. Scheper-Hughes, "The Body of the Terrorist: Blood Libels, Bio-Piracy, and the Spoils of War at the Israeli Forensic Institute," Social Research 78, no. 3 (2011): 849-886.
27. "Guilty Plea to Kidney-Selling Charges," New York Times, October 27, 2011, available at http://www.nytimes.com/2011/10/28/nyregion/guilty-plea-to-kidney-selling-charges.html.
28. M. Lysiak and C. Melago, "Sweeping Federal Probe Nabs Crooked Politicians & Alleged Black-Market Kidney Peddler," New York Daily Newshttp://www.nydailynews.com/new-york/sweeping-federalprobe-nabs-crooked-politicians-alleged-black-market-kidneypeddler-article-1.398289#ixzz1ph5ANDSe (last visited January 9, 2013). The fact that even poor Israelis, undoubtedly part of the developed and not developing world, are sometimes the sellers of kidneys is a good reminder that the colonial narrative of developed world buyers and poor developing world sellers, though often true, is not always accurate. Michele Goodwin has made a similar argument as to the portrayal of African-Americans in discourse on organ markets in the U.S., that it portrays them as vulnerable victims in a way she perceives to be infantilizing and fails to recognize that they may be a major beneficiary as organ recipients as well. M. Goodwin, "Private Ordering and Intimate Spaces: Why the Ability to Negotiate is Non-Negotiable," Michigan Law Review 105, no. 6 (2007): 1367-1385.
29. See N. Scheper-Hughes, "Traffic in Human Organs," Current Anthropology 41, no. 2 (2011): 191-224.
30. Council on Ethical and Judicial Affairs of the American Medical Association, "Financial Incentives for Organ Procurement: Ethical Aspects of Future Contracts for Cadaveric Donors," Archives of Internal Medicine 155, no. 6 (1995): 581-589.
31. See, e.g., I. G. Cohen, Note, "The Price of Everything, the Value of Nothing: Reframing the Commodification Debate," Harvard Law Review 117, no. 2 (2003): 689-710.
32. M. J. Radin, "What, If Anything, Is Wrong with Baby Selling? Address at McGeorge School of Law," Pacific Law Journal 26, no. 2 (1995): 135-145.
33. E. Anderson, Value In Ethics And Economics (Cambridge: Harvard University Press, 1995): at 144-172.
34. Institute of Medicine of the National Academies, Organ Donation: Opportunities for Action (2006): at 243.
35. G. M. Danovitch and A. B. Leichtman, "Kidney Vending: The 'Trojan Horse' of Organ Transplantation," Clinical Journal of the American Society of Nephrology 1, no. 6 (2006): 1133-1134.
36. B. S. Frey, Not Just For the Money: An Economic Theory of Personal Motivation (Cheltenham: Edward Elgar, 1997.
37. R. Titmuss, The Gift Relationship: From Human Blood to Social Policy (New York: Pantheon Books, 1970.
38. A. Wertheimer, "Exploitation in Clinical Research," in J. S. Hawkins and E. J. Emanuel, Exploitation in Developing Countries: The Ethics of Clinical Research (Princeton: Princeton University Press, 2008): at 63-71.
39. C. Fried, Contract As Promise: A Theory of Contractual Obligation (Cambridge: Harvard University Press, 1981): at 104.
40. J.D. Mahoney, "The Market for Human Tissue," Virginia Law Review 68, no. 2 (2000): 163-223.
41. Indeed, a study from the year 2000 found that in the U.S. 70% of the organ procurement agencies regulated by the federal government sold body parts directly to for-profit firms, generating huge profits. M. Goodwin, "Altruism's Limits: Law, Capacity, And Organ Commodification," Rutgers Law Review 56, no. 2 (2004): 305-407.
42. One such firm, "Regeneration Technologies Inc., RTI, generated $73 million in revenues in 1999 by processing a third of the human tissue donated in the United States, turning body parts into products for surgery and other medical procedures." D. E. Winickoff, "Governing Population Genomics: Law, Bioethics, and Biopolitics in Three Case Studies," Jurimetrics Journal 43, no. 2 (2000): 187-228, at 189 n.9.2003.
43. E.g., C. Fabre, Whose Body is it Anyways? Justice and the Integrity of the Person.
44. Restatement (Second) of Contracts 208 (1981).
45. M. J. Radin, "Market-Inalienability," Harvard Law Review 100, no. 8 (1997): 1849-1937.
46. E. Rivera-Lopez, "Organ Sales and Moral Distress," Journal of Applied Philosophy 23, no. 1 (2006): 41-52.
47. P. Menzel et al., "The Role of Adaptation to Disability and Disease in Health State Valuation: A Preliminary Normative Analysis," Social Science & Medicine 55, no. 12 (2002): 2149-2158.
48. Working Group on Incentives for Living Organ Donation, "Incentives for Organ Donation: Proposed Standards for an Internationally Acceptable System," American Journal of Transplantation 12, no. 2 (2012): 306-312.
49. A. J. Ghods and S. Savaj, "Iranian Model of Paid and Regulated Living-Unrelated Kidney Donation," Clinical Journal of the American Society of Nephrology 1, no. 6 (2008): 1136-1145.
50. A. T. Kronman, "Paternalism and the Law of Contracts," Yale Law Journal 92, no. 5 (1983): 763-798.
51. See M. Smith et al., "Organ Gangs Force Poor to Sell Kidneys for Desperate Israelis," Bloomberg Markets Magazine, http://www.bloomberg.com/news/2011-11-01/organ-gangs-force-poor-to-sell-kidneysfor-desperate-israelis.html.
52. J. Allain, "Trafficking of Persons for the Removal of Organs and the Admission of Guilt of a South African Hospital," Medical Law Review 19.
53. S. Khoza, "The Human Organ Trade: The South African Tragedy," South African Journal of Bioethics 2, no. 2 (2009): 46-47.
54. L. P. Francis and J. G. Francis, "Stateless Crimes, Legitimacy, and International Criminal Law: The Case of Organ Trafficking," Criminal Law & Philosophy 4, no. 3 (2010): 283-295.
55. The Declaration of Istanbul on Organ Trafficking and Transplant Tourism, Nephrology Dialysis Transplantation (hereinafter "Declaration of Istanbul").23, no. 11 (2008): 3375-3380.
56. A. I. Reed et al., "The Declaration of Istanbul: Review and Commentary by the American Society of Transplant Surgeons Ethics Committee and Executive Committee," American Journal of Transplantation 9, no. 11 (2009): 2466-2469.
57. United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (2000http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATYmtdsg.
58. F. L. Delmonico, "The Implications of Istanbul Declaration on Organ Trafficking and Transplant Tourism," Current Opinion Organ Transplant 14, no. 2 (2009): 116-119.
59. J.S. Gill and M. Tonelli, "Penny Wise, Pound Foolish? Coverage Limits on Immunosuppression after Kidney Transplantation," New England Journal Medicine 366, no. 7 (2012): 586-589.
60. See, e.g., A. K. Hoffman, "Three Models of Health Insurance: The Conceptual Pluralism of the Patient Protection and Affordable Care Act," University of Pennsylvania Law Review 159, no. 6 (2012): 1577-1622.
61. E.g., U.S. Sentencing Guidelines Manual 5E1.1, 1.4 (orders of restitution and forfeiture for individuals).
62. F.L. Delmonico, "The Hazards of Transplant Tourism," Clinical Journal of the American Society of Nephrology 4, no. 2 (2009): 249-250.
63. I. G. Cohen, "Can the Government Ban Organ Sale? Recent Court Challenges and Future of U.S. Law on Selling Human Organs and Other Tissue," American Journal of Transplantation 12, no. 8 (2012): 1983-1987.
64. See B. Furrow et al., Health Law (St. Paul, MN: West, 2d ed. 2000): at 155 (collecting statutes).
65. E.g., Ind. Code Ann. 35-47-7-1 (West 1998) (requiring reporting of injuries caused by firearms).
66. L. Roels and A. Rahmel, "The European Experience," European Society for Organ Transplantation 24, no. 4 (2011): 350-367.