Transplant Tourism Article

8/11/2019 Transplant Tourism Article

1/17Electronic copy available at: http://ssrn.com/abstract=2254341

global health and the law spring 2013 269

TransplantTourism: The

Ethics andRegulation ofInternationalMarkets forOrgansI. Glenn Cohen

Medical Tourism is the travel of residents ofone country to another country for treat-ment.1 In this article I focus on travel

abroad to purchase organs for transplant, what I willcall Transplant Tourism. With the exception of Iran,organ sale is illegal across the globe,2but many desti-

nation countries have thriving black markets, eitherdue to their willful failure to police the practice ormore good faith lack of resources to detect it. I focuson the sale of kidneys, the most common subject oftransplant tourism, though much of what I say couldbe applied to other organs as well. Part I briefly reviewssome data on sellers, recipients, and brokers. Part IIdiscusses the bioethical issues posed by the trade, andPart III focuses on potential regulation to deal withthese issues.

I. Understanding Transplant Tourism MarketsThere are three important players in the internationalmarket for organs: sellers, recipients, and brokers. Iwill summarize some data on each, but have discussedthe existing data in much greater depth elsewhere.3

I will call those who sell their kidneys sellers notdonors, because donor connotes a certain amountof altruism that, as we will see, is largely absent intheir motivations. The growth of transplant tourismhas many causes, including the scientific advancesenabling the widespread availability of the immune-suppressive drug cyclosoporine, which has broad-ened the community of potential kidney providers;4

the growth of ageing populations in the developedworld and the rise of diseases of affluence, whichhave increased demand for organs;5and finally, thedeveloping world has seen a growth of relatively high-quality medical personnel who face low employmentopportunities and/or salary, making them more vul-nerable to corruption and enabling the growth of theblack market.6Now let us discuss the available data.7

a. SellersI will focus on data from three countries in SouthAsia, but data from Egypt, Iran, and the Philippines is

largely of a piece.8

To put this data into perspective, it isworth emphasizing that a study of more than 80,000live kidney donors in the U.S. found no difference intheir long-term mortality rates (median follow-up was6.3 years) as compared to healthy matched controls,suggesting that legal kidney donation in the U.S. isvery safe.9

I. Glenn Cohen, J.D.,is an Assistant Professor at HarvardLaw School. He is Co-Director of the Petrie-Flom Center forHealth Law Policy, Biotechnology, and Bioethics at Harvard.


2/17Electronic copy available at: http://ssrn.com/abstract=2254341

270 journal of law, medicine & ethics

i. pakistan10

Pakistan is one of the largest host centres for trans-plant tourism in the world, with over 2,000 organssold per year, about two thirds of which go to for-eigners (primarily from the middle east, south Asia,Europe, and North America).

In February 2006, Syed Naqvi and his team inter-viewed 239 kidney sellers (186 male, 53 female) inDistrict Sargodha, a province of Punjab in EasternPakistan, an area that is overpopulated and socioeco-nomically underdeveloped, with 34% of the popula-tion living below the poverty line. They were able toverify nephrectomy scars proving that surgery hadtaken place in all but 2% of the sample.

The mean age of sellers was 33.6 years, with 52%being ages 31-40 and 29% being ages 21-30. 66%of those studied were bonded laborers working asdomestic servants or farm workers. Of the 53 women

in the sample, 20 were housewives and 33 were maidswho worked for landlords. Most had worked sincechildhood, with a mean duration of around 19 years ofemployment. 90% of the sellers were illiterate.

All sellers were quite poor. Of the 192 sellers whoagreed to answer questions on monthly incomes, 62%earned $10-$30 USD a month, with a mean incomeof $15.4 USD, while 32% earned less than $10 USDand 6% earned more than $20. The 219 respondentshad between two and eleven dependents, with a meanof 5.5. They were also saddled with debt, with 77%of the 176 responders to the question reporting theyowed between $1000 and $2500 USD with a mean

of $1311.40 USD. 19% were still paying offthe debt oftheir father, uncles, or grandfathers. Many of the non-responders indicated they did not know the actualamount they owed because they had no documenta-tion or answered too much.

Sellers were promised between $1146 and $2950USD (mean $1737 USD) for their kidney, but no sellerin the sample was actually paid that price. The meanamount received was instead $1377 USD with a rangeof $819 to $1803 USD, largely because deductionswere taken for the costs of the nephrectomy, hospital

stay, and travel to and from home. In term of the recip-ients, 29.7% of sellers indicated they had met or knewthe recipient, and 31% of this group indicated a localrecipient while 69% indicated a foreign one.

The authors tried to determine if the sellers viewedthemselves as better offbecause of the transplant and

sale and interviewed them a mean of 4.8 years afterthe surgery. All sellers indicated that their health wasgood before the transplant but only 1.2% said theirhealth was as good after it. 62% said they felt physi-cally weak and were unable to work the long hoursthey did before the transplant, and 36.8% said theirhealth was poor and they felt ill, suggesting thatthey had to stop working for periods of time. When

it came to finances, 85% said there was no improve-ment in their lives and they were either still in debt orhad not achieved their objectives. Only 4% indicatedthey had paid offtheir debt, although some had used

the money for marriage, housing, or business. Whenasked if they would encourage sale of kidney in thefamily, 35% (83 sellers) said they would encourage afamily member to do so, with 75 of those 83 sellersbeing bonded laborers.

ii. bangladesh

While it has been illegal to sell body parts in Bangla-desh since 1999 (with fines and jail time as the pen-alty), there is a growing organ trade in the countrywhere 78% of inhabitants live on less than $2 USDa day.11As part of his ethnography of kidney sellersin Bangladesh, Monir Moniruzzaman recently inter-

viewed 33 sellers (30 male, 3 female) in Dhaka, thecountrys capital.

Sellers were often initially recruited by advertis-ing in local newspapers. A poor Bangladeshi contact-ing the number provided ordinarily ends up in con-tact with either a recipient or a broker. That personemphasizes that they are seeking kidney donation,which is a noble act, and that operation is very safeand will be performed by a world-renowned special-ist. The recipient promises to cover all expenses andto compensate the seller. Typically, sellers are told a

Of the 192 sellers who agreed to answer questions on monthly incomes, 62%

earned $10-$30 USD a month, with a mean income of $15.4 USD, while 32%earned less than $10 USD and 6% earned more than $20. The 219 respondentshad between two and eleven dependents, with a mean of 5.5. They were alsosaddled with debt, with 77% of the 176 responders to the question reportingthey owed between $1000 and $2500 USD with a mean of $1311.40 USD.

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story about the sleeping kidney, where selling a kid-ney is presented as a win-win situation because whileremoving one of their kidneys the transplant surgeonawakens the other through medication, and theseller is portrayed as living perfectly well. Moniruzzi-mans interviewees also told him brokers had offered

the seller land, a job, or a visa and foreign citizenship,and that going abroad to India for transplant would befun and the seller can eat out, shop, and watch Indianmovies.

If the seller is persuaded to participate, the brokertissue-types him and tries to find a match. The selleris ultimately offered 100,000 Taka ($1,400 USD), onaverage, but told he will not receive the entire amountuntil just before entering the operating room for fearthe seller might renege.

The broker arranges a fake passport and forged legaldocuments that indicate that the person is donating

a kidney to a relative, and advises the seller to hidehis identity so the Indian health care personnel do notreject the case. In at least one instance, Moniruzzimanreports that a 38-year-old Hindu kidney seller under-went circumcision in order to pass as a relative of hisMuslim recipient. After crossing the Indian border,the broker seizes the sellers passport to ensure thathe cannot return to Bangladesh before the kidney isremoved. Those selling are housed in poor accommo-dations, rooming with as many as 10 others in a bach-elor apartment rented by the broker.

After the surgery, Moniruzziman reports that sellers

have a 20-inch scar along their bodies, which couldhave avoided by using a laparoscopic surgery result-ing in a small four inch incision (but costing an addi-tional $200 USD). Sellers are typically released fromthe hospital after five days into what Moniruzzimandescribes as the brokers unhygienic apartment, andreturn to Bangladesh a few days after despite the doc-tors orders to rest in India. Some sellers experiencebleeding from their wound on the train ride back toDhaka.

Upon return to Bangladesh, the sellers face severalproblems. 27 out of the 33 sellers did not receive thefull amount of money they had been promised. Though

they repeatedly called the buyer to receive what theyare owed, the buyer offered them little sums of moneyeach time and claimed the need to deduct numeroushidden expenses. In at least one case, a seller and hiswife were physically abused and threatened with jailwhen they disputed the charges. Sellers typically usedthe money they were paid to pay offdebts, start a busi-ness, pay bribes to get a job, or arrange a dowry. 78%of the sellers reported that their economic conditiondeteriorated after the surgery with many sellers losing

jobs or being able to work fewer hours due to physicaldeterioration.

Moniruzziman also reported that the sellers healthprofoundly deteriorate in the postvending phaseand that they experienced numerous physical prob-lems and went through severe psychological suffer-

ing, referring to themselves as handicapped. Thesymptoms included pain, weakness, weight loss, andfrequent illness after selling their kidneys. Moniru-zziman also notes that none of the sellers he inter-viewed could afford the biannual postoperative healthcheckup, which costs only 1,500 Taka ($22 USD).

Finally, sellers had to confront stigma due to their20-inch scar. Male sellers with a scar are referred to asa kidney man, and sellers try to hide them, make upstories about an accident, and sometimes decide notto get married as a result. 79% of his sellers reportedbecoming socially isolated. Many referred to the day

of their operation as their death day. In his sample of33 sellers, 85% spoke against the organ market, withmany (he does not give an exact number) saying if theyhad a second chance they would not sell their kidneys.

In contrast to most of the bioethics literature whereorgan buyers are themselves portrayed as desperatebecause they are unable to secure a tissue match froma family member, Moniruzziman claims that manyBangladeshi recipients who can afford to do so pur-chase organs from the poor, rather than seeking organdonation from their family members.

iii. india

In 2001 Madhav Goyal led a team of researchersexamining the lives of 305 kidney sellers in Chennai,India.12A 1994 Indian law bans the sale of kidneys andrequires that all transplant centers have an authori-zation committee reviewing all potential living unre-lated donors to determine that donations were madefor altruistic and not commercial reasons. Neverthe-less, a significant trade in selling kidneys persists inIndia. Although the study was not limited to trans-plant tourism, there is good reason to think that manyof these kidneys ultimately went to foreign recipients.

Of the 305 sellers Goyal and the team interviewed,

71% were female and 29% male, from 20 to 55 yearsof age with a mean of 35 years. 65% of the female sell-ers and 95% of the males worked as laborers or streetvendors. They were promised between $450 USD and$6280 USD for their kidney with a mean of $1410USD, but actually received between $450 USD and$2660 USD with a mean of $1070 USD. Both middle-men and clinics promised on average about one thirdmore than they actually paid.

In terms of their motivations for participating, 96%indicated it was to pay offdebts. There were some gen-


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der gaps: 30% of the women said it was because theirhusband was the breadwinner while 28% said it wasbecause their husband was ill. Two women reportedthat their husbands forced them to donate, but thestudy authors note that number may underestimatehow prevalent this was because interviews were con-

ducted with other family members present.The financial effects of donation were largely neg-

ative. On average, sellers experienced a one-thirddecrease in average annual family income from amean of $660 before the surgery to $440 after it.13Thepercentage of sellers below the poverty line increasedfrom 54% before to 71% after the surgery. Of the 292participants who were motivated to sell by paying offdebts, 74% still had debts at the time of the study.

Change in health status was measured using afive point Likert scale. 13% of participants reportedno decline in their health after the transplant, 38%

reported a 1 to 2 point decline, and 48% reported a 3to 4 point decline. Of all the participants, 50% com-plained of persistent pain at the site of the nephrec-tomy and 33% complained of long-term back pain.

All sellers were asked what they would advise some-one who was selling a kidney for the same reasonthey did. Of the 264 responding, 79% recommendedagainst selling a kidney.

b. Studies of RecipientsFar less work has been done on transplant tourists whoreceive kidneys, in part because they have engaged in

illegal activity. Still, I report the results of three rela-tively recent studies of North American recipients.The evidence is more mixed here than on the sellerside, but does suggest some problems.

Jagbir Gill and his colleagues studied 33 kidneytransplant recipients who were U.S. residents whohad traveled outside the U.S. for kidney transplantsbut returned to UCLA for follow-up care.14 Theauthors compared the tourists to a matched group(on age, race, transplant year, dialysis time, previoustransplantation, and donor type) of 66 patients whohad their transplant done at UCLA. While the studydid not code for whether the patient had purchased

an organ, it did determine whether the donor was aliving related (12%), living unrelated (61%), or deaddonor (12%), and there is good reason to suspect mostliving unrelated donations involved kidney sale. Interms of their destination for transplant, 42% wentto China, 18% Iran, 12% the Philippines, 9% India,and one recipient each went to Pakistan, Turkey, Peru,Mexico, Egypt, and Thailand. Most patients travelledto their region of ethnicity. The tourists had slightlyolder mean ages (47.3%) and were more likely to beAsian and had spent less time on dialysis than the

matched cohort, suggesting that the transplant wassought instead of dialysis.

In terms of results, tourist patients had a highercumulative incidence of acute rejection in the firstyear after transplant (30% vs. 12%, P = .02). One-yeargraft survival was lower for tourists than the matched

cohort (89% vs. 98%), but the result was not statisti-cally significant. There was no overall difference in theincidence of infections in the tourist versus matchedcohort, but the infections the tourist patients did havewere much more severe. Tourists were much morelikely to be hospitalized due to infections (27% v. 6%),with a range of 1 to 744 days in the hospital (and amean of 12.5 days).

In a second study, Muna Canales and co-authorsidentified ten patients who traveled abroad for kid-ney transplantation and returned to the Universityof Minnesota Medical Center or Hennepin County

Medical Center for post-transplant care betweenSeptember 16, 2002 and June 30, 2006. 60% of thegroup was male, and 40% female, the mean age was36.8 years, and all were born outside the U.S. (8 wereSomali, 1 was Chinese, 1 was Iranian). Only two of theten patients were not on the hospitals waiting list forkidney transplant before they left the country. Threeof the ten patients had disclosed their intent to travelabroad for transplant before they left. Nine of the tenhad received kidneys from living donors.

The authors collected significant data on the healthof these patients, but most important for our pur-

poses was their conclusion that [g]raft and patientsurvival were comparable to results obtained forpatients transplanted in the United States, whilenoting that prior studies had conflicting findings asto whether transplant tourists had worse results. 15

Nevertheless, they noted several problems: there wasinadequate communication between the transplantsite and their institution relating to vital informa-tion on induction therapy, immunosuppressive andpost-transplant courses of treatment. In three of thecases, the patients were sent back to the U.S. in themidst of a crisis relating to wound infection, seizure,and acute rejection, where such documentation would

have been very helpful.16

In a third study, Prasad and colleagues examined20 Canadian transplant tourists who sought follow-upcare after a kidney transplant at St. Michaels Hospi-tal in Toronto, Canada. All 20 patients were legal per-manent residents or citizens of Canada who receivedchronic kidney disease management in Canada andhad gone abroad to receive a live kidney donation froma non-biologically, non-emotionally related kidneyseller outside of Canada between January 1, 1998 andFebruary 28, 2005. They compared this group to those


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who received live kidney transplants from biologicallyrelated individuals (n=175) and from emotionally butnot biologically related individuals (n=75) in Canada.

Transplant tourists were more likely to be bornoutside Canada (P


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ing,30and thus will not dwell on these issues here. Iwill say a little more about the corruption argumenthere only because it might be thought of as more of anin principle objection to transplant tourism.

I do not find the corruption argument the mostpowerful one for condemning transplant tourism for

several reasons. First, the corruption argument oftenis premised on something like Immanuel Kants Cat-egorical Imperative by suggesting that the nature ofhumans as free and rational beings is such that totreat them simply as means (use goods) rather thanends in themselves (non-use goods) is to do violenceto the way human beings ought to be valued.31But itis not clear why we ought to strongly identify my per-sonhood with an organ of mine that can be removedwhile leaving that personhood intact, and this objec-tion to transplant tourism would seem to prove toomuch in condemning the selling of blood or human

hair, and potentially all labor as well. Second, as Ihave examined in depth elsewhere, this argumentseems to prove too much in that if some goods haveunique value such that selling them constitutes valuedenigration, it is unclear why giving them away is notalso value denigrating, in that the giver is exchangingthem for nothing or other incommensurable goodslike the joy of helping others.32Third, the argumenttypically presents a false dichotomy between com-modification of the organs or non-commodification.In fact, as Julia Mahoney shows, Organ ProcurementOrganizations, the institutions that procure organs

from donors and deliver them to transplant programspursuant to the system established and administeredby UNOS, receive payments from transplanting hos-pitals and also transplant programs and the surgeonswho staffthem often make money from the transplantprocess.33Thus, even with organ sale bans in place it isinevitable that these organs are commodified, and theonly question is whether the kidney source will receivethe fruits of that commodification or not. One couldinstead ask the surgical staffand other individuals tovolunteer their time, use their special talents to con-tribute to the gift of life, and demand that they foregothe payment they desire to avoid corrupting that gift.

Why do we not make that demand from them as well?Because we know that without that payment they arevery unlikely to participate in the numbers needed,but that is potentially true of organ providers as well.Moreover, there is a way in which the corruptionargument proves too much in that even altruisticallydonated organs are commodified in this way, such thatto be consistent those pressing this argument shouldalso condemn organ donation.

Finally, to the extent the version of the corruptionargument that prompts our concern is what I call

consequentialist corruption that we must pre-vent changes to our attitudes or sensibilities that willoccur if the practice is allowed, for example that wewill regard each other as objects with prices ratherthan as persons34 as I have argued in more depthelsewhere sales of kidneys from the developing world

may have less effects on home country mores than saledomestically, in which case the home countrys justifi-cation for regulation is lessened.35 Indeed, transplanttourism may act as a safety valve that prevents lawchange to permit organ purchase domestically.36

A pair of other arguments, exploitation and undueinducement, deserve a closer look, which I will givethem below, but ultimately I think the strongest argu-ment for prohibiting transplant tourism sounds inbounded rationality and justified paternalism.

a. Exploitation and Undue Inducement

Exploitation comes in several varieties, but twodimensions are particularly useful for our purposes:(1) harmful versus mutually advantageous exploita-tion, which will turn on whether both parties (thealleged exploiter and the alleged exploitee) reasonablyexpect to gain from the transaction as contrasted withthe pre-transaction status quo and (2) consensualversus non-consensual exploitation.37Let us assume,momentarily, that transplant tourism involves con-sensual exploitation a matter I discuss below andask what follows.

To determine that A has wrongfully exploited B,

philosophers usually stipulate that two requirementsmust be met: (i) A benefits from the transaction, (ii)the outcome of the transaction is harmful (harmfulexploitation) or at least unfair (mutually advantageousexploitation) to B, and A is able to induce B to agree tothe transaction by taking advantage of a feature of Bor his situation without which B would not ordinarilybe willing to agree.38

It seems uncontroversial that the first requirementis met. While the aforementioned studies on recipi-ents suggest that some transplant tourists die or endup with serious infections or complications after thetransplant, we do not have a baseline for their indi-

vidual health in the absence of the transplant suchthat we can say they have notbenefitted. Moreover,from an ex ante perspective, they have certainlygained from increased chances of improving theirhealth.39

Is the second requirement met? Is the seller harmedor treated unfairly, and is the buyer unfairly takingadvantage? As Wertheimer stresses in his account, thecorrect frame for answering this question is to con-sider whether ex antethe seller is all things consid-eredbetter off.40Why all things considered? Almost all


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transactions make us better offin some respects andworse in others. A father who decides to work in a low-paying job rather than spend time at home raising hisyoung daughter is in some ways better off(he makesmoney, enjoys professional achievement) and in someways worse off(he has lost time spent with his child).

The mere fact that he has lost something, or that hewould not work absent the benefits, is not enough tomake his relationship with his employer exploitativeor to say he has been harmed. Instead, the right frameis to consider whether, all things considered, his gainsoutweigh his losses. The same is true in the muchmore extreme case of the kidney seller, who may expe-rience health, social, and economic deficits for the salebut also benefits relating to reduction of indebtedness,paying a daughters dowry, etc. Naqvis study suggeststhat that many kidney sellers viewed their kidney salesin exactly this way, noting that: in our study popu-

lation where [the] majority were illiterate and manyin bonded labour, [the available] opportunities werefar lessTherefore, despite their bad experience, theystill preferred to [sell kidneys] in desperation to payoffdebts, and/or to save another son or daughter frombondage.41

Further, the right perspective to evaluate the harmor unfairness to the seller is ex antenot ex post. If Asells land to B on which B hopes to find oil, it shouldnot be the case that the transaction is exploitative ina possible world where B does not find oil but notexploitative in a possible world where B does find oil.42

What should matter is whether there was harm orunfairness from the ex anteperspective, which mirrorscontract doctrines on unconscionability.43The correctframe to determine if something morally wrong wasafoot was the price A charged B based on Bs expecta-tions at the time of transaction, not how things ulti-mately turned out. Now things might be different ifA deceived B about the chances that their would beoil there, but that is an information deficit that goesto the consensual versus non-consensual nature of thetransaction, which I turn to in the next section.

While the ethnographic and statistical studies dis-cussed above suggest that ex postmany of the kidney

sellers have been harmed, and in fact all things con-sidered a large percentage (but not all of them) wouldrather they had not donated, that is the wrong ques-tion to ask for the exploitation analysis. The right ques-tion is whether ex antethe transaction harmed themor benefitted them. That they agreed to do it is strongevidence that they ex antebelieved themselves to be allthings considered benefitted rather than harmed bythe transaction. If that is right, then transplant tour-ism appears to be a case of mutually advantageousexploitation.

Labeling a transaction as mutually advantageousexploitation does not render it per seunproblematic,but it requires us to determine if the seller is nonethe-less treated unfairly. The mere fact that a buyer takesadvantage of a sellers unfortunate or unjust back-ground situation is not enough to render the transac-

tion unfair. Otherwise, a surgeon who demands a highfee for amputation when faced with a patient withoutany other good alternatives would be exploiting thepatient, as would the tow truck driver who demandsa fee to the stranded motorist, but we ordinarily thinksuch transactions are unproblematic.44Nor can wejudge the fairness of the transaction by the welfareactually derived by both parties from the transac-tion as against the baseline where no transactiontook place and simply look to see whether the benefitis unequal.45Even if the surgeon charges a very highprice for amputation, the patient whose life is saved

(or at least hopes his life will be saved) by the doctorcertainly comes out ahead, all things considered. Yetthe inequality in their welfare gain does not make usthink the patient is exploiting the doctor!46

What we need instead is a kind of moralized base-line, a sense of how much the person ought to receive,to which we can compare what they actually are prom-ised in the transaction. This is not an easy problemto resolve. Wertheimer has suggested we can some-times use a hypothetical market approach to establishthe relevant baseline, wherein we imagine what pricewould obtain in an unpressurized market.47If the price

paid by the purchaser for a kidney to the seller is lowerthan the price the seller would get in a hypotheticalmarket where the seller is not pressured to transact,then the buyer has exploited the seller.48

This approach runs into problems as to transplanttourism, however, for reasons that Fabre notes in herdiscussion of domestic organ markets: unlike the mar-ket for shovels in the middle of a snow storm, wherewe have an unpressurized market to compare to (theprice of shovels on sunny days), there is no unpres-surized market for organs, in that those who want tosell their organs would not do so if they could raisemoney by other means; those who want to buy organs

are (usually) in desperate need of them.49 Perhapsthe best we could do, suggests Fabre, is to examinewhether individuals are willing to take similar risks forsimilar prices in similar unpressurized markets?50Asto transplant tourism, it is not clear exactly where thiswould lead us. Compared to what the typical organseller makes in the labor market, the sum being paidby the broker (even when only 2/3 is actually paid) ishuge, and it is unclear it is disproportionate in its risk/benefit ratio as compared to being a day laborer, forexample, on relatively unsafe job sites. On the other


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hand, those comparison markets are often themselvessomewhat pressurized, in that many individuals wouldnot accept day laboring if not required to support theirfamilies or pay offdebts related to bonded labor. Thenagain, that is true of employment in general, manywould not work but for the need for remuneration.

While I cannot prove that the terms being offered tokidney sellers are fair in the sense this analysis usesthe term, neither does it seem clearly unfair.

Thus, I think it not clear that transplant tourisminvolves a morally problematic form of exploitationof sellers. Even if we concluded it was, though, thatwould not justify a legal interventionbanning trans-plant tourism outright.

If the seller is harmed or treated unfairly, thenatural solution is to improve the size of her benefit doing so makes it less likely that she is all thingsconsidered harmed and/ treated unfairly by the buyer possibly by a price floor. This bears a resemblanceto what Wertheimer calls the strategic interventionargument, regulation such as minimum wage laws for

labor that makes some terms (e.g., some prices) in anoffer prohibited, but does not render any transactionfor sale of that good or service per se forbidden, mayinduce a party to offer more.51

Further, the risk is that an outright ban justifiedto protect exploited parties might problematicallymake them worse off. Peggy Radins work on surro-gacy and baby selling nicely captures the threat: [i]fpoverty can make some things nonsalable because wemust prophylactically presume such sales are coerced,we would add insult to injury if we then do not providethe would-be seller with the goods she needs or themoney she would have received[i]f we think respect

for persons warrants prohibiting a mother from sell-ing something personal to obtain food for her starvingchildren, we do not respect her personhood more byforcing her to let them starve insteadthis aspect ofliberal prophylactic pluralism is hypocritical withouta large-scale redistribution of wealth and power thatseems highly improbable.52Call this the hypocrisyargument.

The cross-border nature of transplant tourismexacerbates this worry: if the U.S. took further stepsto block its patients from buying kidneys from Paki-

stans poor, it has few tools for effectuating this kindof re-distribution of resources to Pakistans poor whoare now denied access to the revenue from the sale ascompared to kidney sales within theU.S.

Succinctly: It is hard to defend an outright banon transplant tourism for the sake of protecting the

would-be exploited victims, if the ban makes themworse rather than better off. In theory the right legalcorrective is price floors, or other improvement of

terms, rather than outright prohibition.I say in theory, because in a second-bestworld one might still prefer the completeban on either epistemic (we cannot besure whether most of the transactionsare harmful or mutually advantageous)53or regulatory (we cannot effectuate aprice floor and a ban is better than thebest inter vention we can otherwise

implement) grounds, or both.How well does the existing empirical evidence on

transplant tourism discussed above justify either formof this second-best argument? On the epistemic ver-sion of the argument, when we take the ex ante allthings considered perspective, it seems that mostof these transactions are mutually advantageous.Because most of the existing trade takes place againstlaws rendering kidney sale illegal, there is some reasonto believe that gentler legal interventions like pricefloors may also be circumvented. On the other hand, ifwe created a legal safe harbor for transplant tourism

given certain transactional terms, it might produce anew normal and push out the organized crime ringsand other unsavory elements that currently domi-nate the market. Finally, we ought to be sensitive tothe hypocrisy arguments concerns discussed aboveand the difficulties in ensuring redistribution in thetransplant tourism setting. While the matter is close, Ido not think an outright ban can be defended even onthis second-best version of the exploitation argument.

There is another argument lurking in the back-ground, one that comes to the fore in my discussionof price floors: undue inducement. Although oftenlabeled exploitation, in fact this argument is the

opposite. Exploitation is the claim the seller is gettingoffered too little, while undue inducement is the claimthat they are being paid too much, the offer too goodto refuse, which naturally suggests a price ceilingnotfloor. While there may be some social practices withother logics such as research ethics with its whiffsof fiduciary relationships and social benefit wherethe undue inducement argument has merit (and evenhere I have some doubts), in the context of selling onesbody I must confess that the logical basis of this argu-ment escapes me. In this context, price ceilings seem

Succinctly: It is hard to defend an outright banon transplant tourism for the sake of protectingthe would-be exploited victims, if the banmakes them worse rather than better off.


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infantilizing of the poor and seem to retard ratherthan promote these individuals self-interest, includ-ing by reducing the chance they will get out of debtand also impairing their ability to self-insure againstpossible negative health or psychological outcomes.Once again, the hypocrisy argument looms large and

we should be wary of interfering with these transac-tions unless we are committed to redistribution thatmakes these individuals just as well offwithout sellingtheir kidney.

b. Consent and PaternalismI have assumed thus far that any exploitation in trans-plant tourism is consensual. Is it? Consent is a bit ofa weasel-word, but can usefully be divided into threeconstituent parts, whether an individuals agree-ment to a transaction is voluntary, informed, andcompetent.54

Is consent to selling ones kidney voluntary? In thebasest sense of not done under threat of force, yes,though the empirical evidence discussed above sug-gested occasional cases where threats of force are usedto induce initial compliance, and more often coercivetechniques like threats of force or withholding of pass-ports are used to ensure that individuals do not backout. Apart from these instances, the lack of other goodoptions itself cannot be enough to make the transac-tion involuntary, for the reasons I suggested above.

Is the sellers consent informed? The existing stud-ies suggest frequent problems with the accuracy of the

information provided to sellers: sellers were misin-formed about safety, the quality of the doctor perform-ing their surgery, and falsely assured with the myth ofthe sleeping kidney, the promises of citizenship or ajob, the pleasantness of the conditions in India wherethe transplant will take place, and not informed aboutthe possible physical and stigmatic consequences ofthe surgery. Sellers were also misled into thinking theywould be paid substantially more than they were actu-ally paid.

Even when individuals are presented all relevantinformation, they may lack the competence or capacityto effectively process that information. Psychological

research finds that even highly educated individualsare bad at understanding risk and susceptible to sig-nificant framing effects, especially in health care set-tings.55As the studies above suggest, many sellers arepoorly educated and illiterate, although we ought to becareful not to equate those facts with incapacity. I thinkthe best approach to considering the issue is data-sen-sitive rather than blanket demographic conclusions.

Although we cannot very easily tease out whetherthe cause of the problem is misleading information,over-optimism bias or other forms of bounded ratio-

nality,56the evidence here suggests there is a problem.In the Pakistan and India studies only 35% and 21%of sellers, respectively, recommended that a familymember or friend sell their kidney; in the Bangladeshstudy 85% of sellers spoke against the organ market,with many (an exact number is not given) stating they

would not sell if given a second chance. The fact thata very high number of kidney sellers later regret theirchoices for reasons that likely involve informationaldeficits, bounded rationality, etc., is to me the stron-gest argument in favor or legal intervention. Yet theargument faces a few obstacles:

First, we lack good information on exactly whatis causing the sellers to have so much regret, whichseems important in determining whether an outrightban is necessary. As discussed above, many sellersdo not get paid what they are promised and insteadreceive closer to two thirds of the promised amount.

If a regulatory intervention was capable of eliminatingthatproblem, would the high amounts of ex postregretremain? Moreover, as I mentioned above, the litera-ture on altruistic kidney donation in the U.S. suggeststhat kidney donors have health outcomes as good asnon-donors, while the data on transplant tourism sug-gests significant (self-reported) health deficits. Indeed,given the literature on adaptation to disability andmitigation over time of the negative effects of healthsetbacks on happiness, this may suggest that even thishigh level of regret the sellers self-report may under-estimate the true negative effects on their health.57If

the mechanism causing the regret is negative healthoutcomes flowing from poor screening of seller healthcare, surgical, or post-surgical health care, in principlethere may be more targeted regulatory interventionsthat can improve the situation such as mandating stan-dard for health assessment, care, and the like.

Second, the usual remedy for problems of ex postregret is not an outright ban on a practice but improve-ment in information-provision and libertarian pater-nalist interventions such as altering default rules inways that influence behavior while also respecting free-dom of choice or debiasing strategies that helppeople either to reduce or to eliminate over-optimism,

framing effects, or other forms of bounded rationalityin their decision-making.58In the transplant tourismcontext, this would lead us to implement regulationsdesigned to ensure that sellers were provided accurateinformation on their likely health outcomes post-trans-plant, on the likelihood that the money received wouldbe successfully used for their goal (e.g., debt elimina-tion), information on the likelihood of post-transplantregret, and that all of this was presented in an informedconsent process that makes it comprehensible to some-one with little formal education, and uses framing and


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other debiasing strategies to try to quell bounded ratio-nality difficulties. It would also lead us to regulation tomake sure that sellers received what they were prom-ised in terms of remuneration.

The kind of regulation needed for this would beexpensive, extensive, difficult to implement, and dif-

ficult to audit. This would be true if it was just a mat-ter of putting in place regulation at the domestic level,but the problems are likely to be worse with transplanttourism, where three countries are typically involved(the buyers, the sellers, and the location of transplant)and there is a real fear of regulatory race to the bot-tom, where the countries least willing to take actionwill be the ones who become the go-to destination forrecruiting sellers or engaging in transplants. Moreover,because there are so many stigmas attached to kidneysale in these societies, it will be difficult for word of theex post regret of prior sellers to circulate widely. Thus,

while in a first-best world of perfect regulatory imple-mentation, the consent deficits identified would lead totargeted correctives, the question is whether in the realworld we are unlikely to avoid the problems identifiedwith anything short of an outright prohibition?

The Working Group on Incentives for LivingDonation, consisting of Arthur Matas at the Uni-versity of Minnesota and Sally Satel at the AmericanEnterprise Institute among many others, has recentlypublished its Proposed Standards for an Internation-ally Acceptable System, which are meant to establishthe groundwork for a regulated incentive system,

that is, legalized organ sale.59

They envision thatunder their system [e]ach country will need to enactguidelines for evaluation and selection of donors,institutional oversight, clearly defined policies forfollow-up, outcome determination and for detectionof irregularities with appropriate penalties.60More-over, they envision a system where the donor mustbe fully informed so that they adequately understandall risks and the nature and method of distribution ofthe benefit.61Because I have argued that the chief con-cern with transplant tourism is not the in-principleobjections (such as the corruption arguments) but thepaternalism/regret problem, evaluating their proposal

(or others like it) would require examining how wellit would actually combat these concerns and whetherit would receive sufficient buy-in and implementationby destination countries to blunt the illegal trade.

Because their proposals are thus far untested, thematter remains open, and I do not purport to fullyevaluate the issue here, but judging from Irans experi-ence with a regulated kidney market, there are reasonsfor not being too sanguine that regulation can forestallthese problems. Iran has robust regulation of kidneyselling all renal transplantation teams belong to

universities and the costs of the transplant are paid bythe government with no incentives allowed to trans-plant teams. Sellers are provided health insuranceand an award from the government, and most are alsoprovided a rewarding gift arranged before the agree-ment from the recipient or a charitable organization.

The Iranian Society for Organ Transplantation care-fully monitors all transplants for ethical violations.62Nevertheless, Zargooshis study of 300 kidney sellersin Iran finds that 85% of them would definitely notsell their kidney again, and 76% strongly discouragedpotential vendors from doing so.63 If the concernsabout ex postregret persist in the one heavily regu-lated legal kidney sale market, this should cause someskepticism as to the superiority of regulation to out-right prohibition.

Third, and more philosophically, paternalist argu-ments for outright bans are controversial at a politi-

cal theoretical level, in that libertarians reject them.64As Tony Kronman astutely observed almost threedecades ago, one pressing a paternalistic argumentto block a voluntary transaction has an obligation toexplain why such interference is permissible in someinstances but not in others for only in this way canthe legitimacy of paternalism be established and itslimits defined.65

In this case such a limiting principle might be:where many sellers of a good are being given falseinformation, are poor, desperate, and uneducated,and where their ex postregret is quite high (routinely

above 70%), and where the practice has significantnegative effects on their health and economic fortunes,and where information-providing and other gentlercorrectives will not be effective, we should prohibit apractice outright. To be sure, there are losers in sucha move, not only the recipients who desperately needorgans and the brokers who make a living mediatingthe trade, but the proportion of sellers (likely between15% and 35% based on the above-discussed studies)who sell their kidneys and are, by their ex postassess-ment, glad that they did. They can legitimately pressthe hypocrisy argument on us, and lament that wehave protected them out of their ability to get out of

bonded labor and otherwise improve their lot in life.We can respond that we remain committed to mak-ing their lives better, to ending bonded labor and lift-ing people out of poverty, but the cynics among us willnote that the headway we make on those lofty projectswill be slow in coming, if it ever does. Instead it is bet-ter to look them in the eye and say while we recog-nize that you feel you have benefitted from this trade, aclear majority of your neighbors find themselves worseoffafter selling their kidneys and deeply regret whatthey have done. Sometimes regulatory prohibitions to


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protect the many will burden the few, and that is theprice of living in a just society. Will theybe satisfied?Perhaps not. But weshould be.66

III. Regulatory PossibilitiesIf transplant tourism should be prohibited either

because we want to end international organ salesaltogether, or because we want to root out the badforms of the practice alongside introducing the kind ofpotential regulated market discussed above we thenface the regulatory design question of the best way todo so. Here I will argue for a multi-modal strategy,and briefly outline its four elements.

a. Destination Country EnforcementThe most obvious solution would be to allow individ-ual countries to ban kidney sale in their territory andprosecute medical tourists who purchase kidneys there

or the brokers who facilitate the transactions. Sinceevery country but Iran currently criminalizes kidneysale, our legislative work would be almost done! Therehave been a few prosecutions initiated in Brazil, SouthAfrica, Kosovo, Turkey, and the U.S of internationalorgan rings in the last few years in.67Overall, however,as the case studies above suggest, transplant tourismpersists in spite of official legal sanctions on the books.

Writing in the American Journal of Transplanta-tionin 2011, Frederike Ambagtsheer and and WillemWeimar observe that [o]nly in very few cases havecrime control efforts led to accusations by victims and

prosecutions of the accused, in part because organtrafficking may be one of the most difficult crimes todetect and because its enforcement is not a priorityof local, national and international law enforcementInstitutionsuniversal response to the crime is char-acterized by punitive condemnation through legisla-tion but awareness and expertise on how to detect andenforce the crime is practically nonexistent.68

Thus, while domestic destination country criminalprosecutions should be continued, they are unlikely ontheir own to be effective in ending transplant tourism.

b. Professional Self-Policing and International

DocumentsIn 2008, an international meeting was convened inTurkey by the Transplantation Society and the Inter-national Society of Nephrology that resulted in theDeclaration of Istanbul.69The Declaration definesits key term, organ trafficking, as the recruitment,transport, transfer, harbouring or receipt of livingor deceased persons or their organs by means of thethreat or use of force or other forms of coercion, ofabduction, of fraud, of deception, of the abuse of poweror of a position of vulnerability, or of the giving to, or

the receiving by, a third party of payments or benefitsto achieve the transfer of control over the potentialdonor, for the purpose of exploitation by the removalof organs for transplantation.70The Declaration alsodefines [t]ransplant commercialism as a policy orpractice in which an organ is treated as a commodity,

including by being bought or sold or used for mate-rial gain, and states that [t]ravel for transplanta-tion becomes transplant tourism if it involves organtrafficking and/or transplant commercialism or if theresources (organs, professionals and transplant cen-tres) devoted to providing transplants to patients fromoutside a country undermine the countrys ability toprovide transplant services for its own population.71

Principle 6 of the Declaration calls for a ban onsoliciting or brokering for the purpose of transplantcommercialism, organ trafficking or transplant tour-ism, as well penalties for acts such as medically

screening donors or organs, or transplanting organs that aid, encourage or use the products of organtrafficking or transplant tourism; and concludes thatpractices that induce vulnerable individuals or groups(such as illiterate and impoverished persons, undocu-mented immigrants, prisoners, and political or eco-nomic refugees) to become living donors are incom-patible with the aim of combating organ trafficking,transplant tourism and transplant commercialism.72

Among the Declarations proposals, two are worthhighlighting. First, its statement that [t]he determi-nation of the medical and psychosocial suitability of

the living donor should be guided by the recommen-dations of the Amsterdam and Vancouver Forums,including informed consent, assessment of psycho-logical impact, and psychosocial evaluation by mentalhealth professionals as part of screening.73Second,the Declaration makes clear that [c]omprehensivereimbursement of the actual, documented costs ofdonating an organ does not constitute a payment foran organ, but is rather part of the legitimate costs oftreating the recipient, if costs are calculated using atransparent methodology, consistent with nationalnorms. These costs may include lost income andout-of-pocket expenses, including medical expenses

incurred for post-discharge care of the donor, [and]lost income in relation to donation (consistent withnational norms), so long as reimbursement is done bythe agency handling the transplant rather than paiddirectly from the recipient to the donor.74

While it is clear that much of the rhetorical forceof the Declaration stems from its focus on the vulner-ability of subjects as the reason for its interdictions, itis much less clear what policy the Declaration wouldadvocate if, by hypothesis, sellers were not vulnerable.There are indications in both directions in the Decla-


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ration. In condemning [o]rgan trafficking and trans-plant tourism, the Declaration notes that they violatethe principles of equity, justice and respect for humandignity and should be prohibited, and the referenceto human dignity might be thought of as a concernakin to corruption that extends beyond merely the

vulnerable seller. In the very next sentence, however,the Declaration again returns to its focus on vulner-ability, stating that [b]ecause transplant commercial-ism targets impoverished and otherwise vulnerabledonors, it leads inexorably to inequity and injustice andshould be prohibited, and the reference to inexora-

bly might be thought to reject the hypothetical situ-ation altogether. Finally, in the section on what maybe compensated without violating the Declaration, thelimitations to carefully defined [l]egitimate expensesappears to apply across the board, whether or not theseller is impoverished. It is possible this ambiguity wasintentional, and in commenting on the Declarationthe American Society of Transplant Surgeons noted

that the Declaration does not specifically address thepossibility or propriety of a limited, controlled trial ofdonor incentives as a means to increase organ dona-tion, which the Society supported as an experiment inthe United States.75

The Declaration is meant to complement a fewearlier international documents that address trans-plant tourism. The first is the World Health Assem-bly (WHA) approval of the WHO guiding principleson organ transplantation in 1991, and as amended in2004. The 2004 version encouraged the use of livingkidney donors where possible, the harmonization ofglobal transplant practices, and most importantly for

our purposes it requested the Director-General ofWHO to provide support for member states to preventorgan trafficking and to draw up guidelines to pro-tect vulnerable groups from the practice and urgedmember states to act against transplant tourism andinternational organ trafficking.76The second is the2000 United Nations Protocol to prevent, suppressand punish trafficking in persons, especially womenand children, supplementing the United Nations con-vention against transnational organized crime, whichexplicitly includes in its definition of trafficking the

removal of organs and rejects consent as a relevantdefense.77As of February 2010 there were 117 signato-ries, including India, but not Bangladesh or Pakistan.78

Have these measures been successful in dampeningtransplant tourism? A precise answer is impossible,but at least one set of informed academic observers,

Leslie and James Francis, have claimed that thesemeasures have been met with limited implementa-tion success at both the domestic and internationallevels, which they ascribe to the lack of directenforcement mechanisms making these statementshortatory at best.79They suggest these interventions

lack[ing] the imprimatur of an international judi-cial body, have failed because while they may havestimulated the [s]tates with vulnerable populations[to take] action to protect their citizens from groupsthat prey on the poor to secure organs, the better offstates continue to face chronic and serious imbal-ances between seriously insufficient local supplies andexpanding demands from an aging population and

their failure to monitor, develop, or enforce traffi

ck-ing restrictions except the sale of organs betweentheir own residents threatens to undermine nascentefforts in donor nations to restrict trafficking.80

That said, supporters of the Declaration have arguedthat it has played an important role in shifting the mind-set of transplant surgeons. In particular Frank Delmo-nico, a leading transplant surgeon at Harvard MedicalSchool and a force behind the Declaration, has doneyeomans effort cataloging countries compliance withthe Declaration and other law reforms.81These docu-ments likely played a role in some important domesticattempts to curb organ tourism for example, a recent

ban on organ sale in Egypt and the Philippines, anda Japanese investigation into alleged transplant tour-ism of its citizens to China, and strengthening of lawsin Israel and Pakistan, even if their effectiveness hasbeen questioned.82Nevertheless, I think the lesson isthat these documents are unlikely to, on their own, suf-ficiently address the problem of transplant tourism.83

Transplant tourism involves a complex and expensive medical process.Home countries can discourage their citizens from engaging in transplant

tourism by making these patients ineligible for insurance coveragerelating to an illegal kidney transplant.


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c. Home Country Measures: Insurance andExtraterritorial CriminalizationWhile few academics or policymakers have focusedon this kind of regulation, home countries can makesignificant progress in deterring transplant tourismby adopting their own measures that govern their own

citizens who receive organs illegally purchased abroad.Transplant tourism involves a complex and expen-

sive medical process. Home countries can discouragetheir citizens from engaging in transplant tourism bymaking these patients ineligible for insurance cover-age relating to an illegal kidney transplant. In the U.S.system, the regulators may have inadvertently alreadygiven the Centers for Medicaid & Medicare Services(CMS), which promulgates rules relating to the pay-ment of those eligible for the Medicaid and Medi-care public assistance programs, the power to do so.As part of the informed-consent process for patients

seeking transplantation, patients must be informedthat if a transplant is not provided in a Medicare-approved transplant center it could affect the trans-plant recipients ability to have his or her immu-nosuppressive drugs paid for under Medicare PartB.84These drugs, which are required to avoid tissuerejection, are expensive and cost a kidney transplantpatient about $15,000 to $20,000 annually.85I havefound no data on how often this power has been usedto deny or threaten to deny coverage for those whohave engaged in transplant tourism, but CMS couldcertainly alter the regulation to implement a flat bar

on covering such drugs or other expenses for thosewho have used transplant tourism. Universal healthcare systems could also adopt similar measures.

However, only a portion of the American popula-tion (around 90 million people) are covered by theseassistance programs,86and many transplant touristsare unlikely to be among this group. In order to deterthose who are privately insured in the U.S., individualU.S. states could use their powers regulating healthinsurance to forbid insurers from reimbursing forcosts related to transplant tourism.87Blocking pub-lic and private health insurance reimbursement forextremely costly follow-up care would likely dramati-

cally reduce the amount of transplant tourism, leavingit as a viable option only for those who can self-financenot only the organ purchase itself but also all follow-up care.

Is such a response too draconian? I am told bythose in the tissue transplant community that themost likely result of tissue rejection from failing toreceive immunosuppressive drugs will be the need toremove the newly transplant organ, but there is somechance of additional health complications includingpossibly death. Transplant and other physicians will

no doubt find it difficult to watch patients undergoingtissue rejection they could prevent, especially in casesof serious complications where there is a threat thatin some percent of cases this intervention will trans-form transplant tourism into an offense with a de factodeath penalty.

While I do not intend to try to fully resolve the mat-ter here, I think there are a few responses to this kindof objection: first, if the rule is clearly publicized andapplied only prospectively, the home country is likelyto significantly deter transplant tourism especiallyfor those who are opting for it as an alternative to dial-ysis such that there will be few (if any) on whom thepenalty is actually imposed.

Second, unlike in capital or corporal punishment,one is not imposing suffering or death on an individual.Indeed, one is not even prohibiting access to immuno-suppressive drugs or other therapies when purchased

out of pocket. All the proposal does is set the terms ofan entitlement to a particular kind of insurance cover-age in the public or private sector. In the U.S. Medi-care/Medicaid context and in universal health caresystems where the question is one of rationing wecannot cover all individuals for everything that willimprove their health, and indeed in the U.S. immuno-suppressive drugs are currently covered for only threeyears post-transplant by Medicare88 it merely givesthose who have achieved their transplant by a crimi-nal violation less priority. The nexus is quite tight. Theproposal does not give those who committed a crime a

general diminution in priority for health care as a pun-ishment, but instead treats their criminal acquisitionof an organ as a specific forfeiture of their priority overother deserving claimants for state-funded health carerelated to that act. If transplant tourism is understoodas a crime that victimizes the recipient, then we canunderstand paying for immunosuppressive drugs asallowing individuals to profit from their crimes. Thelaw often provides tools to deprive those who commitcrimes of their ill-gotten gains,89and while deprivingsomeone who broke the law through transplant tour-ism of the kidney itselfmight be thought to go too farin its invasion of bodily integrity, barring their insurer

from covering their post-operative needs seems muchmore defensible. Israel has already adopted a form ofthis approach by limiting insurer reimbursement fortransplant tourism.90

In the private insurance market the correctapproach is less clear. Because the costs of dialysis areconsiderably larger over a patients expected life thanthe cost of kidney transplant and immunosuppressivedrugs,91 insurers on their own are likely to prefer tocover transplant tourism rather than the alternative,unless mandated to do otherwise. Still, I think such


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intervention is appropriate. In the U.S. at least, thegovernments power to regulate what is covered byprivate health insurance is relatively unquestioned,and symmetry on the private and public system isdesirable to avoid unfairness to those using the publicsystem.

As an alternative or in addition, home countriescould alter their existing prohibitions on organ saleand purchase such that they apply to extraterritorialactivities of their citizens. For example, in the U.S. theNational Organ Transplant Act of 1984, which prohib-its the sale of kidneys and other organs, does not applyextraterritorially.92Therefore, if a U.S. citizen travelsabroad to buy an organ his act is not prohibited byNOTA, and it is generally accepted that more generalU.S. laws prohibiting trafficking do not apply to thesesales.93However, consistent with international anddomestic law the U.S. could make NOTAs prohibition

on organ sale applicable to those who purchase kid-neys outside the U.S. as well, for reasons I have dis-cussed elsewhere.94

Detecting violations of domestic law that occurabroad is no easy feat, and it is important to designcontext-specific ways of implementing the prohibition.Since prescriptions are required for immunosuppres-sive drugs, it is possible that doctors could be inducedto monitor and report patients who have engaged intransplant tourism, as could hospitals in which follow-up care is sought. Involving doctors in such reportingsituations would impinge on the doctor-patient rela-

tionship. However, doing so seems in keeping withother reporting duties already imposed upon physi-cians including the abuse of children or the elderly.95While one might try to distinguish those provisions bysuggesting that they are aimed at preventing futureabuses of the patient, it is not clear why deterringsuch abuses before they happen is not an equally wor-thy goal. In any event, other reporting requirementssuch as gunshot or other violent wounds are primarilyabout crimes that have already occurred.96

There are benefits and drawbacks to each of thesemethods of home country regulation. Extraterrito-rial extension of domestic criminal law on organ sale

avoids the death penalty objection of the insuranceroute because it carries with it only fines or jail timeand reaches even those who are self-financed. On theother hand, the insurance approach may offload someof the professional responsibility concerns of doctorsonto insurers instead and may enable easier detec-tion of malfeasance due to the existing requirementsfor submitting claims to private and public insur-ers. Home countries should experiment with bothapproaches.

d. Improving the Supply and Allocation ofOrgans LocallyFinally, we should couple measures aimed at deterringtransplant tourism with measures aimed at increasingthe supply of organs locally in patients home coun-try thereby diminishing demand for transplant tour-

ism.97For present purposes, I will just list the kindsof interventions that have been tried and deserve fur-ther support: changing the law as to the definition ofdeath to make cadaveric donation easier by expand-ing the donor criteria to encompass donation aftercardiac death (DCD) donors; moving from opt-in toopt-out (presumed consent) regimes for cadavericdonation; improving organ yield and quality throughbetter organ preservation and clinical management;encouraging donation through public messaging andeducation (in particular, focused on secondary schoolstudents); improving willingness to donate by creat-

ing organ chains and preferential receipt programs forthose who have themselves been donors.98Developedand developing countries keen on reducing transplanttourism should adopt and encourage others to adoptthese kinds of measures alongside efforts aimed atdeterring transplant tourism.

IV. ConclusionTransplant tourism is a tragic and increasingly com-mon response to worldwide shortages of organs. Theoutlook one gets from the empirical data on these mar-kets and their effects on sellers is bleak indeed. While

the bioethical case for intervention is not without itsdifficulties, I have shown that there is a strong argu-ment to justify prohibiting these practices that relatesto deficits in information provided to sellers and theirbounded rationality.

Attempting to prohibit transplant tourism alsoraises a series of difficult regulatory design choices.While I think that destination country domestic crim-inal enforcement ought to be continued, it has proveninsignificant on its own. In this article I have pressedin particular for increasing home country attemptsto deter transplant tourism. It is my hope that thesemeasures, along with the work of international societ-

ies and institutions and increased attempts to increasethe supply of organs in tourists home countries, willsignificantly reduce transplant tourism.

AcknowledgementsI thank Cansu Cana, Marcelo Rodriguez Ferrere, Colleen Flood,Jim Greiner, Adrian Laani, Holly Lynch, Trudo Lemmens, MicheleGoodwin, Michelle Meyer, Ben Roin, Jed Shugerman, Jeff Sko-pek, and Mark Wu for comments on earlier drafts. I also thankparticipants at the 2012 National Health Conference in Toronto,Canada. Kaitlin Burroughs and Jonathan Schenker provided excel-lent research assistance.


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References1. See, e.g., I. G. Cohen, Protecting Patients with Passports:

Medical Tourism and the Patient-Protective Argument, IowaLaw Review95, no. 5(2010): 1467-1567; I. G. Cohen, Medi-cal Tourism, Access to Health Care, and Global Justice, Vir-ginia Journal of International Law52, no. 1 (2011): 1-51; I.G.Cohen, Circumvention Tourism, Cornell Law Review 97, no.6 (2012): 1309-1398. While I use the term medical tourism

because it is the conventional term used by the industry, and inmany instances it is partially supported by the tourism indus-try in the destination country, I do not mean to suggest any-thing pejorative or that those using these services are engagedin something frivolous. Medical travel or cross-border carecould be used just as easily for my purposes.

2. As I discuss below, even in Iran it is subject to significant regu-lation of who can sell and buy organs.

3. See the chapter on Transplant Tourism in my forthcomingbook. I. G. Cohen, Patients with Passport: Medical Tourism,Law, and Ethics (under contract, Oxford Univ. Press).

4. SeeS. Yea, Trafficking in Parts: The Commercial Kidney Mar-ket in a Manila Slum, Philippines, Global Social Policy10, no.10 (2010): 358-376, at 362; N. Scheper-Hughes, Bodies forSale: Whole or Parts, in N. Scheper-Hughes and L.J.D. Wac-quant, eds., Commodifying Bodies(London: Sage Publications

Ltd, 2002): 1-9.5. E.g., Yea, supranote 4, at 362.6. E.g., id.7. Because of the short length of this article I focus on quantita-

tive data, but there is also a rich set of narrative data collectedby anthropologists on the subject. See, e.g., Scheper-Hughes,supra note 4; N. Scheper-Hughes, Rotten Trade: MillenialCapitalism, Human Values, and Global Justice in Organ Traf-ficking,Journal of Human Rights2, no. 2 (2003): 197-226; L.Cohen, The Other Kidney: Biopolitics Beyond Recognition,Body & Science 7, no. 2 (2001): 9-29; L. Cohen, Where ItHurts: Indian Material for an Ethics of Organ Transplanta-tion,Zygon Journal of Religion and Science38, no. 3 (2003):135-165.

8. SeeYea, supra note 4; D. Budiani-Saberi and F. Delmonico,Organ Trafficking and Transplant Tourism: A Commentary onthe Global Realities, American Journal of Transplantation 8,no. 5(2008): 925-929; J. Zargooshi, Quality of Life or Ira-nian Kidney Donors, Journal of Urology 166, no. 5 (2001):1790-1799; J. Zargooshi, Iranian Kidney Donors: Motivationsand Relations with Recipients, Journal of Urology 165, no. 2(2000): 386-392.

9. D. L. Segev, A. D. Muzaale, and B. S. Caffo et al. Periopera-tive Mortality and Long-Term Survival Following Live KidneyDonationJAMA303, no. 10 (2010): 959-966.

10. The descriptive material from this section is drawn from S.A.Anwar Naqvi et al., A Socioeconomic Survey of Kidney Ven-dors in Pakistan, Transplant International 20, no. 11 (2007):934-939.

11. The descriptive material from this section is drawn from M.Moniruzzaman, Living Cadavers in Bangladesh: Bioviolencein the Human Organ Bazaar,Medical Anthropology Quarterly26, no. 1 (2012): 69-91.

12. The descriptive material from this section is drawn from M.Goyal et al., Economic and Health Consequences of Selling aKidney in India, JAMA288, no. 13(2002): 1589-1593.

13. The authors noted that it was unlikely that these declines rep-resented a secular trend since per capita income has increased

by 10% (or 37% adjusted for inflation) in the region in the 10years preceding the study, and between 1988 and 2001 therewas a 50% decrease in the proportion of the population livingbelow the poverty line. See Goyal, supranote 12, at 1592.

14. The description is culled from J. Gill et al., Transplant Tour-ism in the United States: A Single-Center Experience,ClinicalJournal of the American Society of Nephrology 3, no. 6 (2008):1820-1828.

15. M. T. Canales et al., Transplant Tourism: Outcomes of UnitedStates Residents Who Undergo Kidney Transplantation Over-seas, Transplantation 82, no. 12 (2006): 1658-1660 (citingS. Kennedy et al., Outcome of Overseas Commercial KidneyTransplantation: An Australian Perspective, Medical Journalof Australia 182, no. 5 (2005): 224-227; M.S. Sever et al.,Outcome of Living Unrelated (Commercial) Renal Transplan-tation, Kidney International60, no. 4 (2001):1477-1483).

16. This finding mirrors those found in other studies of transplanttourism, though many are from much earlier periods. Id. at1660 (citing N. Invanoski et al., Renal Transplantation fromPaid Unrelated Donors It Is Not Only Unethical, It Is Medi-cally Unsafe, Nephrology Dialysis Transplantation 12, no.9 (1997): 2028-2029; Z. Morad and T. O. Lim, Outcome ofOverseas Kidney Transplantation in Malaysia, TransplantProceedings32, no. 1485 (2000): 224-227; A. Salahudeen etal., High Mortality Among Recipients of Bought Living-Unre-lated Donor Kidneys, Lancet336, no. 8717(1990): 725-728).

17. Unfortunately the authors do not provide equivalent numbersfor the two control groups on these measures, which would

better enable us to put this into perspective.18. SeeScheper-Hughes, supranote 7, at 214.19. Id.20. Id., at 215.21. Id., at 217.22. N. Scheper-Hughes, The Body of the Terrorist: Blood Libels,

Bio-Piracy, and the Spoils of War at the Israeli Forensic Insti-tute,Social Research 78, no. 3 (2011): 849-886, at 849; GuiltyPlea to Kidney-Selling Charges, New York Times,October 27,2011, available at (last visitedJanuary 9, 2013); M. Lysiak and C. Melago, Sweeping FederalProbe Nabs Crooked Politicians & Alleged Black-Market Kid-ney Peddler, New York Daily News, July 24, 2009, availableat (last visited Janu-ary 9, 2013). The fact that even poor Israelis, undoubtedly partof the developed and not developing world, are sometimes thesellers of kidneys is a good reminder that the colonial narrativeof developed world buyers and poor developing world sellers,

though often true, is not always accurate. Michele Goodwinhas made a similar argument as to the portrayal of African-

Americans in discourse on organ markets in the U.S., that itportrays them as vulnerable victims in a way she perceives to

be infantilizing and fails to recognize that they may be a majorbeneficiary as organ recipients as well. M. Goodwin, PrivateOrdering and Intimate Spaces: Why the Ability to Negotiateis Non-Negotiable, Michigan Law Review 105, no. 6 (2007):1367-1385.

23. See Scheper-Hughes, supranote 7, at 215.24. See N. Scheper-Hughes, Traffic in Human Organs, Current

Anthropology 41, no. 2 (2011): 191-224.25. Council on Ethical and Judicial Affairs of the American Medi-

cal Association, Financial Incentives for Organ Procurement:Ethical Aspects of Future Contracts for Cadaveric Donors,Archives of Internal Medicine 155, no. 6 (1995): 581-589, at581.

26. See, e.g., I. G. Cohen, Note, The Price of Everything, the Valueof Nothing: Reframing the Commodification Debate, Har-vard Law Review 117, no. 2 (2003): 689-710, at 691-692; 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, at 143-145 (discussing similar argumentsas reproduction); E. Anderson, Value In Ethics And Economics(Cambridge: Harvard University Press, 1995): at 144, 172.

27. See, e.g., Institute of Medicine of the National Academies,Organ Donation: Opportunities for Action (2006): at 243;G. M. Danovitch and A. B. Leichtman, Kidney Vending: TheTrojan Horse of Organ Transplantation,Clinical Journal ofthe American Society of Nephrology1, no. 6 (2006): 1133-1134.


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SYMPOSIUM

28. E.g.,B. S. Frey, Not Just For the Money: An Economic Theoryof Personal Motivation (Cheltenham: Edward Elgar, 1997);See R. Titmuss, The Gift Relationship: From Human Blood toSocial Policy(New York: Pantheon Books, 1970). There is alsoa variant of the argument focused on loss of opportunities foraltruism.

29. For those making variants of this argument.See, e.g., M. Good-win, Black Markets: The Supply and Demand of Body Parts

(New York: Cambridge University Press, 2006): at 12; F. L.Delmonico, The Development of the Declaration of Istanbulon Organ Trafficking and Transplant, Nephrology DialysisTransplantation 23, no. 11 (2008): 3381-3382; Danovitchand Leicthman, supra note 27; N. Scheper-Hughes, Keep-ing an Eye on the Global Traffic in Human Organs, Lancet361, no. 9369 (2003): 1645-1647; Naqvi, supra note 10, at937; Goyal et al., supranote 12, at 1592. This formulation fol-lows A. Wertheimer, Coercion (Princeton: Princeton UniversityPress, 1987): at192-208, 267, 272-74.See also A. Wertheimer,Exploitation in Clinical Research, in J. S. Hawkins and E.J. Emanuel, Exploitation in Developing Countries: The Ethicsof Clinical Research (Princeton: Princeton University Press,2008): at 63, 71; C. Fried, Contract As Promise: A Theory ofContractual Obligation(Cambridge: Harvard University Press,1981): at 104.

30. See Cohen, supranote 3.31. See Cohen, supranote 26, at 696-700 (citing I. Kant, Ground-

ing for the Metaphysics of Morals (J. W. Ellington, trans.,Hackett Publishing Company, 1785, 1981): at 434.

32. SeeCohen, supra note 26, at 700-710.33. J.D. Mahoney, The Market for Human Tissue, Virginia Law

Review68, no. 2 (2000): 163-223, at 179-180, 195. Indeed, astudy from the year 2000 found that in the U.S. 70% of theorgan procurement agencies regulated by the federal govern-ment sold body parts directly to for-profit firms, generatinghuge profits. M. Goodwin, Altruisms Limits: Law, Capac-ity, And Organ Commodification, Rutgers Law Review 56,no. 2 (2004): 305-407, at 383. One such firm, RegenerationTechnologies Inc., RTI, generated $73 million in revenues in1999 by processing a third of the human tissue donated in theUnited States, turning body parts into products for surgeryand other medical procedures. D. E. Winickoff, Governing

Population Genomics: Law, Bioethics, and Biopolitics in ThreeCase Studies, Jurimetrics Journal43, no. 2 (2000): 187-228,at 189 n.9 (2003).

34. SeeCohen, supranote 26, at 692 n.13; S. Altman, (Com)mod-ifying Experience, Southern California Law Review65, no. 1(1991): 293-340, at 294-297.

35. SeeCohen, Circumvention Tourism,supranote 1.36. Id.37. See Wertheimer, supranote 29, at 68.38. E.g., C. Fabre, Whose Body is it Anyways? Justice and the Integ-

rity of the Person (Oxford: Oxford University Press, 2006): at142. Fabre breaks the second condition into two, id., but I findit more useful to treat it as one.

39. Fabre disagrees and takes a more ex posteposition on this, seeid.,at 142-143.

40. SeeWertheimer, supranote 29, at 71.41. SeeNaqvi et al., supranote 10, at 937.42. SeeWertheimer, supranote 29, at 71.43. Restatement (Second) of Contracts 208 (1981).44. SeeWertheimer, supranote 29, at 71.45. Seeid., at 73.46. Seeid.,at 73.47. SeeWertheimer, supranote 29, at 230-36; Fabre, supranote

38, at 144.48. Id.,at 144.49. Id.50. Id.51. Id., at 81; Cf. Fabre, supra note 38, at 148-152. As I have

observed elsewhere, notice how this particular interventionof increasing the price paid may make worse the corruptionproblem on some accounts, because it now seems more true

that the money being paid is in value equilibrium with whathas been given up by the seller. See Cohen, supranote 26, at703-710.

52. M. J. Radin, Market-Inalienability, Harvard Law Review100, no. 8 (1997): 1849-1937, at 1910-1911. For a more ambiva-lent version of this argument in the organ sale context, see E.Rivera-Lopez, Organ Sales and Moral Distress, Journal ofApplied Philosophy23, no. 1 (2006): 41-52, at 44-48.

53. See Wertheimer, supranote 29, at 82. The same may be truefor doubts about consent, which I discuss in the next section.54. SeeWertheimer, supranote 29, at 76-77.55. See, e.g., R. Korobkin, Bounded Rationality, Standard Form

Contracts, and Unconscionability, University of Chicago LawReview 70, no. 4 (2003): 1203-1295, at 1229-1236 (reviewingevidence for one of the most robust findings of social scienceresearch on judgment and decisionmaking is that individu-als are quite bad at taking into account probability estimates

when making decisions.); Cohen, Protecting Patients withPassports, supra note 1, at 1467-1567, at1467, 1493, 1509-1511,1550-54 (discussing bounded rationality problems in patientinterpretation of health care data); C. E. Schneider and M. A.Hall, The Patient Life: Can Consumers Direct Health Care?American Journal of Law & Medicine35, no. 1 (2009): 7-66;see also Wertheimer, supranote 29, at 77 (philosophical dis-cussion of competency).

56. See, e.g., Korobkin, supra note 55, at 1229-1236; C. Jolls, C.R. Sunstein, and R. Thaler, A Behavior Approach to Law andEconomics,Stanford Law Review50, no. 5 (2008): 1471-1550;Cohen, Protecting Patients with Passports, supra note 1, at1467, 1493, 1509-1511, 1550-1554; Schneider and Hall, supranote 55.

57. See, e.g., P. Menzel et al., The Role of Adaptation to Disabilityand Disease in Health State Valuation: A Preliminary Norma-tive Analysis, Social Science & Medicine 55, no. 12 (2002):2149-2158.

58. C. R. Sunstein and R. H. Thaler, Libertarian Paternalism IsNot an Oxymoron, University of Chicago Law Review70, no.4 (2003):1159-1202, at 1159, 1160; C. Jolls and C. R. Sunstein,Debiasing through Law, Journal of Legal Studies35, no. 1(2006): 199-241, at 199, 200. See Cohen, Protecting Patients

with Passports, supra note 1, at 1506.

59. Working Group on Incentives for Living Organ Donation,Incentives for Organ Donation: Proposed Standards for anInternationally Acceptable System, American Journal ofTransplantation12, no. 2 (2012): 306-312, at 306.

60. Id., at 308.61. Id.62. A. J. Ghods and S. Savaj, Iranian Model of Paid and Regu-

lated Living-Unrelated Kidney Donation, Clinical Journal ofthe American Society of Nephrology1, no. 6 (2008): 1136-1145,at 1136, 1138.

63. See Zargooshi, supranote 8, at 1790-1799.64. See, e.g.,D. Boaz, Libertarianism: A Primer (New York: Free

Press, 1997): at 16-19; see Sunstein and Thaler, supra note 58,at 1160.

65. A. T. Kronman, Paternalism and the Law of Contracts, YaleLaw Journal92, no. 5 (1983): 763-798, at 763, 765.

66. A prohibition on transplant tourism might also be thought tobe justified on the ground that it seems unfair for us to prohibitour citizens from buying organs from our citizens but allowour citizens to buy from poor Indians, or Pakistanis, increasingtheir exploitation. I have discussed a similar argument as tosurrogacy elsewhere, and pressed on whether a home countrysobligation to prevent the exploitation by its citizens of its owncitizens is the same as the exploitation by its citizens of foreignindividuals.See Cohen, Circumvention Tourism, supranote 1.

67. See M. Smith et al., Organ Gangs Force Poor to Sell Kid-neys for Desperate Israelis, Bloomberg Markets Magazine,November 1, 2011, available at (last visited January 9, 2013); J.

Allain, Trafficking of Persons for the Removal of Organs and


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I. Glenn Coh en

the Admission of Guilt of a South African Hospital, MedicalLaw Review19 (Winter 2011): 117-122; S. Khoza, The HumanOrgan Trade: The South African Tragedy,South African Jour-nal of Bioethics2, no. 2 (2009): 46-47, at 47; Turkish Author-ities Arrest Two Suspected Organ Traffickers, Hurriyet DailyNews, January 21, 2011, available at (last visited Jan-

uary 9, 2013); N. Qina, Organ Recipient Testifies at Trial inKosovo, Boston Globe, March 23, 2012, available at (January 9, 2013); see Scheper-Hughes, supranote 22, at 850;see Lysiak and Melago, supranote 22.

68. See F. Ambagtsheer and W. Weimar, A Criminological Per-spective: Why Prohibition of Organ Trade Is Not Effective andHow the Declaration of Istanbul Can Move Forward, Ameri-can Journal of Transplantation 12, no. 3 (2012): 571-575, at571-573.

69. L. P. Francis and J. G. Francis, Stateless Crimes, Legitimacy,and International Criminal Law: The Case of Organ Traffick-ing, Criminal Law & Philosophy4, no. 3 (2010): 283-295,at 283, 287; The Declaration of Istanbul on Organ Traffickingand Transplant Tourism, Nephrology Dialysis Transplanta-tion 23, no. 11 (2008): 3375-3380(hereinafter Declaration ofIstanbul).

70. Id., at 3375-76.71. Id., at 3376.72. Id., at 3376.73. Id., at 3377.74. Id.75. A. I. Reed et al., The Declaration of Istanbul: Review and

Commentary by the American Society of Transplant SurgeonsEthics Committee and Executive Committee, American Jour-nal of Transplantation9, no. 11 (2009): 2466-2469, at 2466,2467.

76. See Francis and Francis, supra note 69, at 286-287 (citingWorld Health Organization, Guiding Principles on HumanOrgan Transplantation,Lancet 337, no. 8755 (1991): 1470-1471; World Health Assembly, WHA 57.18 (2004), availableat [last visited January 9, 2013]).77. Id., at 287; United Nations, Protocol to Prevent, Suppress and

Punish Trafficking in Persons, Especially Women and Children,Supplementing the United Nations Convention against Trans-national Organized Crime (2000), available at(last visited January 9, 2013).

78. SeeFrancis and Francis, supranote 69, at 287; UnitedNationsOffice on Drugs and Crime, Protocolstatus as of 26/09/2008,available at (last visited January 9,2013). .

79. SeeFrancis and Francis, supranote 69, at 287.80. Seeid., at 291.81. F. L. Delmonico, The Implications of Istanbul Declaration on

Organ Trafficking and Transplant Tourism, Current OpinionOrgan Transplant14, no. 2 (2009): 116-119.

82. See Francis and Francis, supranote 69, at 289; Ambagtsheerand Weimar, supra note 68, at 571, 573; L. Nol and D. Mar-tin, Progress Towards Self-Sufficiency in Organ Transplants,Bulletin World Health Organization 87, no. 9 (2009): 647.

83. Francis and Francis have argued that the International Crimi-nal Court or a specialized international tribunal should begiven jurisdiction to pursue organ trafficking specifically. SeeFrancis and Francis, supra note 69, at 291. They reach thissuggestion because they conclude that domestic legal regimes

have proved ineffective and there is little reason to believeenforcement is likely to improve, and because the presenceof a credible international enforcement regime could prove

both a spur and a complement to the strengthening of domes-tic enforcement regimes. Id., at 292. However, as they admit,this would require a significant expansion of the existing scopeof international criminal liability and cannot fit within thedefinitions of genocide and crimes against humanity set forth

in the Statute of Rome. Id., at 292-293. I think that interna-tional criminal liability is worth considering, but I am bothmore skeptical that it is politically feasible in the middle termfuture than the Francises, and less skeptical of the possibil-ity for effective home country enforcement mechanisms of thekind I set out below.

84. 42 C.F.R. 482.102(b)(9) (2009).85. J.S. Gill and M. Tonelli, Penny Wise, Pound Foolish? Coverage

Limits on Immunosuppression after Kidney Transplantation,New England Journal Medicine366, no. 7 (2012): 586-589, at588.

86. See, e.g., A. K. Hoffman, Three Models of Health Insur-ance: The Conceptual Pluralism of the Patient Protection and

Affordable Care Act, University of Pennsylvania Law Review159, no. 6 (2012): 1577-1622.

87. For a discussion of how states can use this power of healthinsurance to regulate medical tourism, see I.G. Cohen, Patients

with Passports, supranote 1, at 1467, 1544-1547. This wouldbe somewhat unusual in that most state coverage is aimed atexpanding not restricting the number of covered procedures,

but not unheard of. The federal government would also likelyhave to alter the Emergency Medical Treatment and ActiveLabor Act (EMTALA), 42 U.S.C. 1395dd(a)-(d), whichrequires hospitals to either stabilize (give treatment as may

be required to stabilize the medical condition) or transferpatients that show up in emergency rooms, to prevent patientsrepeatedly showing up to the ER to get immunosuppressivedrugs they are not entitled to receive.

88. SeeGill and Tonelli, supranote 85, at 588.89. E.g., U.S. Sentencing Guidelines Manual 5E1.1, 1.4 (orders

of restitution and forfeiture for individuals).90. F.L. Delmonico, The Hazards of Transplant Tourism, Clinical

Journal of the American Society of Nephrology 4, no. 2 (2009):

249-250, at249.91. See Gill and Tonelli, supranote 85, at 588; L