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S unday is the thirtieth anniversary of the National Organ Transplant Act, but no one wants to celebrate. U.S. policy on organ transplants — especially as applied to kidneys — is a mess. More than 100,000 people languish on the waitlist for kidneys, thousands of them dying before they receive a transplant. In 2012, almost 35,000 people joined the waitlist, while only 17,000 received transplants.

More than 100,000 people languish on the waitlist for kidneys, thousands of them dying before they receive a transplant.

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Every year the waitlist lengthens. NOTA virtually guaranteed this shortage by shutting down an incipient market in kidneys. Some economists have argued that the best way to encourage people to donate kidneys is to allow people to sell them. Since almost everyone has one unneeded kidney, and most people could use some money, a market would form. The estimated price — perhaps in the range of $100,000 per kidney — would be less than the cost of dialysis (more than $70,000 per patient per year [Costs]), even taking into account transplant surgery, and so the donor fee would be paid by insurers, including Medicare and Medicaid.

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The law reflected a popular, inchoate repugnance at the idea of kidney-selling. Ethicists have tried to supply a philosophical argument. They argue that, if a market for kidneys existed, poor people would be taken advantage of; moreover, we should not treat body parts as “commodities.” Neither of these arguments is persuasive. A regulated market that required informed consent would eliminate the worst forms of exploitation and could ensure (as under current law) that kidneys were equally available to rich and poor. If poor people really can’t be trusted to make good decisions on their own behalf, then a simple solution is to ban poor people from selling their kidneys while allowing everyone else to do so. Nor is it clear why it’s more objectionable to sell a kidney than, say, one’s hair, blood plasma, egg cells, or sperm (sale of which is legal in most places within the United States).

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But political opposition to selling kidneys will not go away, and so the question is how to increase the supply of kidneys without creating a market. Most proposals, including a recent open letter by transplant experts and bioethicists to top government officials, try to thread the needle by giving donors implicit or in-kind compensation, such as travel expenses to the hospital, a tax credit, or priority on the waitlist if they ever need a kidney themselves. The proposals amount to attempts to evade moral objections by allowing limited, implicit compensation rather than a price in dollars.

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But it is possible to be more imaginative. It may help to sort out the source of moral objections to a market in kidneys. One possible view is that people should not exchange their body parts for other things of value. Another is that people shouldn’t profit on the sale of their body parts. These ideas are different. To see why, imagine that Martha wants to donate her kidney to her daughter (this is legal, of course), but the daughter’s body would reject her mother’s kidney because the mother’s and daughter’s antigens are not matched, or similar enough. Meanwhile, an unrelated person named Frank wants to donate his kidney to his son, but also cannot do so because of immunological incompatibility. But it happens that Martha matches with Frank’s son and Frank matches with Martha’s daughter. Could Martha donate her kidney to Frank’s son in exchange for Frank donating his kidney to Martha’s daughter? Under NOTA, the answer was (or was believed to be) no: An exchange of any kind was illegal. In a subsequent law, called the Charlie W. Norwood Living Organ Donation Act, Congress clarified that this type of exchange, called a “paired donation,” is lawful. But only a few hundred transplants per year are arranged through paired donations because it is hard to find and arrange matches between strangers.

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So while the Norwood Act did not solve the problem of undersupply of kidneys, it did reveal a key feature of public morality — that people don’t object to exchanges of kidneys. That means the feature of markets they must object to is not exchange but profit. A donor like Martha may give her kidney to a stranger like Frank, who wants it for his son, as long as what she gets in return is not money that she spends on herself, but something different — a benefit for another person, her daughter.

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But if that’s true, we can do better than paired donations, as I argue in a paper written with law professors Stephen Choi and Mitu Gulati. Suppose that Martha needs a kidney for her daughter but Frank’s son does not need a kidney. Martha proposes to Frank that if Frank donates his kidney to her daughter, Martha (or, actually, Martha’s insurer, which, remember, wants to avoid the high cost of dialysis) will make a $100,000 contribution to Frank’s favorite charity — say, Doctors Without Borders, which could use the money to combat Ebola in Liberia. Frank, of course, might say no; but there are likely other people who might be willing to take Martha up on the deal.

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If you’re skeptical, you should be aware that every year a few hundred people donate their kidneys to strangers in return for nothing at all. There must certainly be additional people who would stop short of donating a kidney to help merely a single stranger but would be willing to do so to help hundreds or thousands of desperate people — who need medical care, disaster relief, or basic infrastructure like irrigation systems. There are also probably thousands of people who can’t help a friend or loved one who needs a kidney because of the lack of a match but who would be willing to donate their own kidney to a pool of organs if it would secure the matched kidney of someone else. And friends and relatives who can’t donate a kidney would surely donate money if doing so enabled them to secure a kidney for a friend or loved one. Frank might donate his kidney to Martha’s daughter for another reason. Suppose Frank’s son does not yet have end-stage renal disease but he does suffer from a medical condition that will probably lead to kidney shutdown decades from now. Frank worries that by the time his son needs a kidney, Frank will be too old to participate in a paired donation. So Frank agrees to donate a kidney to Martha’s daughter today in return for the right to have his son receive a kidney from someone else when the son needs it.

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How would this work? Imagine that charities set up “altruism exchanges” that accept donations of various types — kidneys, money, whatever. The charities then do two things. First, they distribute kidneys and other resources to those who need them. Second, they give to donors “credits” that the donors can take back to the charity in the future. The credits can then be used to obtain kidneys for loved ones, cash distributions to causes that they care about, and other resources as long as they are allocated to people other than the donors themselves.

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The charities would vastly strengthen people’s incentives to donate a kidney. If you donate your kidney at age 20, you would be given a credit, which you could then use — immediately or later in life — to obtain a charitable benefit for someone you care about or a cause that matters to you. It could be a kidney for your own child, or it could be housing, food, and water for victims of natural disasters. It could be for malaria control in Africa or girls’ education in Pakistan. The charity would also make it much easier to arrange kidney matches. Martha would no longer need to find someone who matched with her daughter. Instead, Martha would donate her kidney to a stranger via the altruism exchange, and then could use her credit when the first match for her daughter came along, which could be immediately or years later.

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The system would increase the supply of kidneys by giving donors the power to help more than a single stranger. Everyone would get to be a major philanthropist, and the more people who participated, the larger the benefits. At the same time, the profit motive would be avoided. All exchanges must be altruistically motivated. The system would not necessarily help everyone. People who don’t have generous friends and relatives may still find themselves on the wait list for transplants. But those people would still be better off than under the current system because the larger supply of kidneys — donated by people who exchanged their kidneys for other types of charitable benefits financed by people who donated money — would shorten the waitlist considerably.

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This system might run afoul of NOTA, but if so, Congress could easily change the law to make it legal, as it has done before. Congress would simply need to provide that anyone may donate a kidney and receive in exchange the right to allocate future charitable benefits through a government-approved charity. The dollar value of those benefits could be based on the avoided costs of dialysis. Donors would be forbidden to receive cash or goods. So people couldn’t donate kidneys to raise money to buy a Tesla Model D. They could donate kidneys only to help others.

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Write a paragraph analyzing how Posner frames the problem in “A Moral Market”:

Cues indicating hypotheticals

Write a paragraph or two analyzing Posner’s argument for his proposed solution in “A Moral Market”:

Write a paragraph or two analyzing how Posner attempts to show that his solution is the best option in “A Moral Market”:

See Chapter 13 for more about transitions.

Write a paragraph analyzing Posner’s use of rhetorical questions and transitions in ”A Moral Market”: