The sad thing not noted in the following article is the hospital's refusal to do the transplant is a clear violation of Canadian law.
Canada's Justice Minister, Irwin Cotler, is said to agree and has privately expressed his 'solidarity' with Mr. Tegegne.
But Mr. Cotler has to date done nothing to enforce or clarify the law, apparently content that somehow friends of Mr. Tegegne (myself proudly included) will raise the necessary funds to privately pay for a transplant outside of Canada.
Two major US transplant centers see no ethical problems with this case and are willing to do the job – for a price, $200,000 to $300,000, depending on the difficulty of the operations. Add to that transportation, housing and food for Mr. Dhar and his family, and compensation for time he is unable to work.
The wait for a kidney donor in Canada is now 6 years. Many people on the waiting list die before an organ becomes available.
But it is not just organ donations. The wait for coronary bypass surgery is so long – six months in some cases – that Canadians die waiting. So too with cancer surgeries and prostate operations. And the lists go on and on.
Canadians who can afford to pay privately go elsewhere – often to the United States – for care. The rest suffer and sometimes – not rarely – die as they wait for Canada's socialized medical system to get around to them.
As Richard Epstein correctly notes, this case is not about organs for sale. It is about ensuring that all Canadians suffer equally despite the law – unless they are wealthy enough to pay cash for their care.
Irwin Cotler sleeps at night because he is – justifiably – confident that Baruch Tegegne's friends will somehow find the money to save him, just as, Mr. Cotler well knows, in years past, we did what was necessary to save lives no matter the cost.
But Mr. Cotler's sleep should not be sweet.
Just as surely as I write these words, a day will come when Mr. Cotler will have to answer for his inaction. Canadians will not take this very blatant example of denial of care lightly. More importantly, neither will Heaven.
Organs for sale
Richard A. Epstein
Tuesday, March 29, 2005
The Canadian press has given extensive coverage to the plight of Baruch Tegegne, a Montreal man who needs constant dialysis for his kidney disease. Tegegne is searching for a serviceable kidney that would offer him the chance to lead a normal life. His problem: In Canada, as in the United States, it is divine to donate organs, and criminal to sell them.
The ostensible ethical grounds for the prohibition on sale is to prevent the "commodification" of organs. The more practical concern that underlays this prohibition is that poor individuals will be so influenced by the offer of cash that they will voluntarily agree to dismember themselves.
The economic consequences of this stern moral position are as obvious in Canada as they are in the United States: long queues of individuals desperate for organs; and few donors, outside of immediate family members, who are willing to supply them.
Faced with the unyielding prohibition on the purchase of organs, Tegegne's friend Simcha Jacobovici paid $441 to place an ad on the Web site www.matchingdonors.com. The account of Tegegen's life won over an Indian named Shree Dhar, who announced that he was prepared to come to Canada to donate a kidney, free of charge, to Tegegne.
But it was not to be. Montreal's Royal Victoria Hospital has refused to perform the operation for a range of ethical reasons that start with the particulars of this case and end with the basics of Canadian donation policy. All of these objections should be rejected as misguided.
For its first line of defence, the Hospital says it harbors deep suspicion that the supposed donation was done for cash under the table. That, of course, is an objection that can be raised whenever a live donor offers an organ. It is troublesome that it comes to the fore most prominently when a donor of Indian ancestry is prepared to make the gift. As a factual matter, an affidavit from both parties should allay this fear. It is not likely that either Mr. Tegegne nor Mr. Dhar would be prepared to go to jail for the commission of two criminal offences -- illegal sales and perjury -- at the same time.
The second objection to the transfer stems from prudence, not suspicion. The Royal Victoria has never performed altruistic donations, so it posits that the proposed transplant raises risks to health and safety. But it offers no explanation why the want of any prior social bond between the two men creates any additional medical risk. It is not as though the pair will be linked together at the hip. There are standard medical procedures that can determine whether Mr. Dhar is a suitable organ donor for Mr. Tegegne. Once that matter is settled, then the only question is whether each man is prepared to assume the risk incident to surgery, which they are.
Nor is any additional cost for treating foreigners a problem: It is easy to find someone who would pick up the incremental expense. The modest tempest surrounding risk and cost looks like a ruse for the larger issues lurking in the background.
And so regrettably it is. In defending the decision of the Royal Victoria, Arthur Shafer of the University of Manitoba's Centre for Professional and Applied Ethics, appealed to the supposed bedrock values of the larger Canadian society, which are said to be "strongly opposed to the commodification of organs for transplant." It seems odd that this situation should be raised against an altruistic donation that was made because Mr. Dhar so strongly identified with Mr. Tegegne. But the real point here is that this directed donation is opposed because it allows Mr. Tegegne to jump the queue ahead of other Canadians who have equally dire needs for organs.
Yet to give this objection any credence is to let small details obscure major advances. The simple question to ask here is: Who is harmed by the decision to allow Mr. Dhar to pick Mr. Tegegne as his donee? Surely, it is not the first person on the queue because Mr. Dhar was moved to give his organ only to Mr. Tegegne. If this transaction does not go forward, then nobody gets the organ. In addition, all the individuals on the queue below Mr. Tegegne are hurt by the Hospital's decision because they lose the opportunity to move up a place. Would that there were 100 directed donations that could save that many additional lives! It is an odd, indeed cruel, ethical commitment that takes pride in denying relief to any one individual because similar relief cannot be given to all.
Yet take the question one step further, and ask why the commodification and sale of organs should be regarded as a vice. As noted above, the ability to run a transfer from a living (or dead) donor does not depend on whether cash has been paid or not. The organ and the recipient are the same in both cases. Nor does the appeal to the fuzzy notion of "commodification" resolve ethical questions: The blunt and sorry truth of Canadian and American organ policy is that the defenders of the status quo are quite willing to see hundreds if not thousands of individuals die each year in order to make others abide by their own dubious aesthetic preferences to keep money out of organ transplants.
Alas, there are not sufficient Mr. Dhars to make up the shortfall. Organ transplantation has obvious costs to the donor. These play out in multiple contexts. Family members, for example, may well be reluctant to give voluntarily if they cannot be assured that they will receive some insurance benefit in the event of illness or work loss. Simply covering the cost of the transplant does not guard against these risks. It seems peculiar to regard the donor as greedy by asking for protection of this particular sort. Yet such sensible arrangements are blocked by the current law, which does not look at the amount of the compensation paid or the reason it is supplied.
The upshot is that desperate family members are often reduced to using subtle forms of coercion against the one matching donor. How much more sensible it would be to combine the carrot with the stick.
Strangers present other issues. No natural bond of affection will tie donor to donee, so that the risk of real loss is only offset in part by the knowledge that good is done for others. Cash could ease that imbalance by making sure that all organ transfers are win-win transactions.
Think of what is at stake. Suppose that for each organ transferred there is a 1% risk of death or serious injury. Suppose also that the transplant has an 80% chance of success. Getting the organ increases by 79% the expected lives of both parties, which is a huge social gain. But currently, ordinary self-interest keeps that social gain from occurring because people won't give if that 1% chance of loss remains uncompensated. Cash to the organ transferor overcomes the reluctance self-interest breeds. The more of these transactions the better. And yet the "moral" position consigns thousands of individuals to death. But why?
It is said that there is a risk of exploitation of the weak and infirm. No way. People do not want organs from sick persons with complex diseases. The market, if allowed to operate, would move to healthy individuals. Keeping the transactions above board would allow for a matching of compatible organs and their recipients. It would make it lawful for third persons to assist with the transactions, thereby obviating the risks of fraud. Nor would it preclude charitable activities, for ordinary individuals can always make gifts of cash to help indigent individuals get any kidneys they need.
Nor in the end is the only alternative to the current system the open market that I favour. It is possible to adopt intermediate proposals that would allow for the state to purchase organs at some specified price, which could then be distributed through the same queuing mechanism that is in use today. But either way, the ostensible "ethical" objections to the sale of organs should be seen for what they are: a guaranteed way to make sure that life-saving transplants do not take place in the name of some abstract ideal that ignores the needless suffering and death of the hundreds of individuals each and every year. Against this palpable waste of human life, the payment of cash to donors who are not as selfless as Mr. Dhar seems a small price to pay.
© National Post 2005
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