Not For Sale: The Politics of Condemned Economies

You heard the story about the guy who woke in a bathtub in India with his kidney missing? Let me remind you: the guy wasn't paid.

It is claimed that human organs and tissues are not property and cannot be bought, sold, or bartered. There is solid legal basis for the claim: First, the California Supreme Court declared in Moore v. Regents of the University of California that Mr. Moore could not own the cells that were taken from him to create a valuable cell line as a biomedical tool, and therefore could not win a suit for theft despite his physician requiring him to fly at his own expense to California repeatedly between 1976 and 1983 while the physician perfected the cell line for commercial use.

Since stealing tissue can't be theft because human tissue can't be property, the California court reasoned, the thieving physician could not be liable for theft. It was a pretty clear example that, at least in California, human tissue was not property. The California decision cited the California enactment of the Uniform Anatomical Gift Act, which specifically denied donors the right to receive compensation for transferring organs or tissues (Cal. Health & Saf.Code §7155). The current version of the model law, at Section 16, suggests criminalizing contracting to buy or sell tissues to be collected after the donor's death. Federal law is more stringent still:

It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.
National Organ Transplant Act, 42 U.S. §274e(a) (the "interstate commerce" language at the end of the line is designed to invoke Congress' power under the commerce clause, since Congress was never granted a general police power by the Constitution; however, following Wickard v. Filburn, Congress confidently enacted with a general police power in the confidence that even intrastate possession that doesn't involve sales can be deemed to "affect" interstate commerce and thus come within the reach of Congress. The Wickard court's rationale was that home-grown wheat "supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce." Under this rationale, Congress would have the power to regulate persons with two healthy kidneys, because their management of their personal surplus would threaten the interstate supply and the major health care employment that depend on them. Madison rolls in his grave.)

Transplantable human organs and tissues are scarce, and therefore desirable. The going price for human egg 'donations' -- as advertised in Duke University's on-campus newspaper newspaper fifteen years ago -- was $10,000, so it couldn't have been a crime to buy or sell the tissues while the donor was still alive. Could it? Ten thousand dollars was valuable consideration to otherwise unemployed students. (L informed me that a university in northern Texas had a paper which ran an ad offering a mere $5,000 for student' eggs. Apparently all that education at Duke pays off. I wonder if recipients pay extra for Duke students' eggs, and if so, by how much.) The $1,400 per cornea charged by the largest eye bank in Texas (as of ten years ago, it's probably gone up) to surgeons seeking to sell corneal transplant services certainly exceeds the cost to sterilize the tools, or the few hundred dollars paid to the technicians who collect and prepare the specimens for delivery. The cost of tissues is surely reimbursed by patients or their insurers or employee benefit programs on an invoice containing a line that associates a cost with the tissue; it wasn't free to the hospital or physician, and its cost has to go somewhere. The fact that Congress has declared compensation illegal may have caused parties to structure their transactions differently than if compensation were not suspect, but it is undeniable to anyone observing the transactions that the allocation of scarce human tissues is conducted in a way that involves compensation.

Is this bad?

Imagine a law were passed that made it illegal to charge money for beer. Exactly how much beer do you imagine would be produced?

Actually, the answer might not be that hard to determine. In the United States, we did pass a law -- many, actually, culminating with the Eighteenth Amendment of the Constitution of the United States -- making it illegal to sell alcohol. The result was an explosion of unregulated alcoholic beverage operations, untaxed by government officials, which in order to avoid enforcement was required to bribe government officials and law enforcement agents and for protection against the predations of rivals was required to be strongly associated with longstanding criminal enterprises if they were to survive. In short, by driving underground something as highly sought after as alcohol, we managed not to strengthen national morals but to undermine the legitimacy of government at every level. The law was so widely violated, and its effects so unpopular, that the constitutional amendment requiring prohibition is the only amendment to the United States Constitution ever repealed.

Non-recreational use of presently-controlled drugs is a hot topic in some parts of the country. The so-called medical marijuana movement has faced a legal blockade that's interesting in light of what the Wall Street Journal wrote back in the late 1980s about commercial cocaine production as a topical anesthetic for use in dental clinics. Too bad I can't find the cite, but it was the front-page, center-column article where WSJ often places really funny business news. Apparently, shipments left the facility in high-profile regular intervals, with massive National Guard patrols ensuring security for the 18-wheelers full of metal drums of medically pure cocaine. I imagine the cocaine makers' compliance officer has an interesting time explaining to the Board how the business they've joined doesn't land them all in prison.

It seems there is some recent basis for concluding that demand will find sources to supply it, and that government has a better shot at controlling safety and quality through regulation -- even draconian regulation, as occurs in some industries -- than in outright bans. There may be products like "angel dust" and crack cocaine that will probably remain illegal forever (is there any non-dangerous way to use either?), but there's also a universe of products like ethyl alcohol that, though dangerous, are better lawful but regulated than officially barred. The products at issue need not be per se evil, either: transplant tissue is certainly not evil, and pretending there's not a market for it -- even an international market for it, given the range of customers who buy from Texas tissue banks -- is foolish.

People make a living providing things that are lawful to acquire (transplant tissue, drinking alcohol, firearms) and if there are evils to be prevented in those businesses then there is room for appropriate regulation -- and, no doubt, a debate what that regulation should be. (Medical care, any one?)

Knee-jerk bans threaten what might be reasonable regulation. In the case of alcohol, there is interesting evidence that public health efforts have substantially reduced alcohol-related mortality in ways that would have been difficult to achieve in the face of a blanket ban. Despite an increase in the number of drivers and the density of traffic, the number of fatalities -- not just the rate but the whole total -- has decreased; since 1980, the per-mile-driven fatality rate has dropped to less than half. If you can't reach people with safety messages because they are fleeing the enforcement activities, it is hard to reduce the harm caused by the risk.

Bans are easy to enact (as opposed to easy to achieve in practice), and can be an easy political sell (as opposed to selling constituents on investment in education or rehabilitation), but I have seen little evidence that bans are successfully enforced or provide superior outcomes to management programs designed to promote harm reduction. The example of Prohibition may be clichéd, but it seems to offer a truth: some bans just don't work. Enforcement and the byproducts of criminalizing undesirable conduct may have significant hidden costs. The things we want stopped (immorality, loss of productive income to nasty habits, poor hygiene) aren't necessarily the things named in the bans (alcohol, gambling, sleeping under bridges), and in enforcing the bans we may invest resources in ways that exacerbate the underlying problems (by increasing the cost of additions, or by driving people with lax morals into business relationships with career criminals, or the like).

The policy intended to be advanced by any ban should be carefully considered, and compared searchingly to the language of the ban. Prohibition was expensive.