By Hammad Mustafa
Is legalising the sale of human organs the only solution to the human rights dystopia created by the shortage of and black-market for human organs in Pakistan?
Pakistan has historically been at the heart of the international black-market for human organs, creating a human rights dystopia in several parts of the country. This essay will argue that a legal – albeit highly regulated – market for the sale of human organs provides an ethically sound and practically feasible solution to this problem. Respect for the principle of autonomy offers one reason to allow this market to exist, but the strongest arguments in its favour are that it would save human lives and curb the rampant and exploitative black-market, and these will be central to this essay. The position that consent to the sale of human organs can never be ‘free from duress’ will also be attacked, and lastly it will be suggested that steps falling short of legalisation will be insufficient or counterproductive.
THE LEGAL STATUS QUO IN PAKISTAN
Organ trafficking in Pakistan has been on the rise since the mid-1990s, and the World Health Organisation (WHO) now ranks Pakistan as one of the top five organ trafficking hotspots in the world. In 2007, 2500 kidney transplants were bought in Pakistan, with foreign recipients making up two-thirds of the purchases. The global outcry over ‘Transplant Tourism’ resulted in the Declaration of Istanbul being created at the Istanbul Summit on Organ Trafficking and Transplant Tourism in 2008. Pakistan expressed support for the declaration, and introduced its provisions into domestic legislation via the Human Organ and Tissue Transplantation Law 2010. Section 3 of the Act limits live organ donation to between genetic or legal relatives, while Section 7 expressly forbids transplants to citizens of a foreign country. The Act aims to dismantle the black-market for human organs using a strict legislative framework and criminal sanctions. This is evident from Section 11, which imposes a penalty of up to 10 years for commercial dealings in human organs. While the debate surrounding human organs in the rest of the world is mostly about the most effective way to overcome the shortage of organs, Pakistan is largely preoccupied with overcoming the plague that is the black-market. While this is understandable to a certain extent, this essay will argue that the goal of preventing the loss of human life caused by the shortage of organs is one that must not be lost sight of. Indeed, it should be remembered that the reason why transplantation was initially extended to include non-relatives was the dire need for organs.
ARGUMENTS IN FAVOUR OF LEGALISATION
One reason for legalising the sale of human organs is because it upholds the principle of autonomy. The central idea is that we are the masters of our own lives and our own destiny, and limits should only be imposed on our actions insofar as they infringe upon the autonomy of someone else. A well known version of this idea is John Stuart Mill’s the ‘Harm Principle’, which insists that the state is only allowed to legislate to prevent physical harm to a non-consenting party. Fundamental to the harm principle is the idea that a person’s consent provides a good justification for harming her – the job of the state is not to prevent self-harm in a paternalistic manner but to allow citizens to live their lives in the manner they see fit. Under the law, consent provides a justification for harm in a wide variety of contexts, ranging from surgery to boxing, with people who support the legalisation of organ sale often drawing an analogy with the latter. Boxing can cause much more serious long-term health risks to a person than donating an organ, but people are allowed to box for money. Why then, is it argued, that people should not be allowed to sell their organs for money, when the social benefit of having available organs far exceeds the social benefits of boxing? The analogy relies on not just the principle of autonomy, but on the social benefit of having organs available, and indeed it is here that the most powerful argument for legalising the sale of human organs can be found. A shortage of human organs is one of the more major causes of preventable deaths in the world; it is responsible for 17 deaths each day in the US and 3 deaths each day in the UK. The medical facilities available in these countries far exceed those in Pakistan, where most people are unable to afford dialysis for any sustained duration of time. As a result, the situation is more dire, and legalised organ sale presents a more attractive solution. At present, Iran is the only country in the world to have a legal – albeit highly regulated – market for the human organs, and this has allowed it to wholly eliminate waiting lists for most organs. Iran has had no waiting list for kidneys since 1999, whereas more than 60,000 patients in the US have died in the same period waiting for a kidney that never arrived.
Another argument in favour of legalisation is that it will destroy one of the most coercive black-markets in the world by bringing organ sale within the ambit of the law. The black-market for organs carries out systematic exploitation of some of the poorest people in the world. Middle-men find poor and often heavily indebted labourers and offer to buy their organs, keeping the bulk of the profit for themselves and giving the donors a mere fraction of it. The donors are not guaranteed any post-operative care, and this results in them often developing complications and infections post-transplantation. The fact that most of these donors work as manual labourers and cannot afford to take much time off only adds to their ailment. It may be argued that The Human Organ and Tissue Transplantation Law 2010 has already addressed the black-market by limiting donations to between relatives. However, experiences from Pakistan as well as other parts of the world suggest that banning the performance of a procedure that people are desperate to have results in the black-market taking over the performance. Perhaps the best analogy that can be drawn is with the ban on abortion in the United States. The website for Planned Parenthood estimates that in the two decades before abortion was legal in the United States, nearly one million women went ‘underground’ each year for illegal operations, many of them having to resort to desperate measures such as ‘coat hanger abortions’. The unsafe conditions did not prove to be a sufficient deterrent, and sadly, an estimated five thousand women died annually due to complications developed during or after abortion. The victims of the black-market for organs are in desperate conditions, and the most likely outcome of the 2010 Act is that these people will accept even worse conditions to sell their organs in. The only way to counter the black-market is to provide an alternative to it. The cost of a kidney in the black-market is around $150,000, but the donors only ever see a small percentage of it. Under a legal setup, they will be able to keep all that they get from selling their organs, while also being guaranteed pre and post operative care, and guaranteed time off from work to recover from their surgery. Under such a system, they will have no reason to turn to the black-market.
REFUTING ARGUMENTS AGAINST LEGALISATION
This essay will now move on to address the most powerful argument against legalising the sale of human organs. It has been argued that consent to organ sale cannot be effective, as it is almost always given under conditions of duress and desperation. One camp believes that such consent is a priori impossible to give, while another believes that it is a posteriori ineffective. It will be argued that both arguments are erroneous, as they both make certain false assumptions. The fundamental assumption both arguments rest on is the idea that selling an organ represents such a grave and permanent harm to oneself that no person in their right mind would do it without the presence of undue influences. The first response to this is a clarification. That a person is willing to sell her organ, does not imply that her sole motivation behind such a sale is monetary. Most surveys suggest that more people would like to donate their organs, and the fact that they don’t get around to singing up shows that a lot of these people might just need an ‘extra push’. Doctors are paid for their job, but no one doubts that a person may have altruistic motives for becoming a doctor. The argument also vastly exaggerates how dangerous organ transplant is for the donor. In fact, people can live perfectly normal lives following the donation of an organ. Our second Kidney represents a ‘safety net’, and 75% of one kidney can sustain life very well; liver grows back faster than hair, so donating a piece of your liver does not represent any long-term health risk; and you can live a normal day to day life with only half your lung capacity. In a world where people can cause themselves much greater harm for money, it is problematic that an organ transplant, which can save a person’s life, is illegal. In the status quo, people are allowed to risk their bodies in a number of ways, such as being paid to participate in clinical trials or joining the army during a war. Thousands of people die each year from working in coal-mines and other such dangerous jobs; an estimated 4% of coal-mine workers in the United States get pneumoconiosis (black lung) each year. In China, an estimated 20,000 coalminers die each year. In the large majority of cases, the people who are selling their organs have been allowed to inflict much greater harm on their bodies for a much lesser gain. They are often working in farms or brick kilns in inhumane and dangerous conditions with next to no health and safety regulations in place. It is hard to see why these people are allowed to harm their bodies for money in all of these cases, but a person who wishes to save another’s life through transplant is denied that option if he wishes to be monetarily compensated for his organ.
THE REGULATORY FRAMEWORK OF A POSSIBLE MARKET FOR HUMAN ORGANS
None of what has been said above is meant to suggest that there should be a laissez faire market for organs. There are a number of obvious limitations and regulations that should accompany an organ sale. These include the setting of a minimum price, pre- and post- operative care and psychological assessment for the donor along with strict criminal liability for anyone found guilty of a breach of these regulations. One solution would be to have a monopsony buyer of organs such as the state. John Harris argues that this can ensure a stable and acceptable price for organs is maintained. Even if the state cannot provide organs for everyone in need, charity organisations can step in to fill the gap, as they have done in Iran. Any argument that this is economically unfeasible is also unfounded, as the cost of care for the patients who are unable to obtain organs is often substantially higher than the cost of the organ itself. In the UK, it is estimated that buying a kidney will be cheaper for the NHS than two and a half years of dialysis. While a regulated but legal market for organs is able to uphold the autonomy of people by protecting them from duress, an illegal market is not.
It can be seen from the above discussion that a legal market for the sale of human organs is the most ethical and effective way of avoiding a grave and preventable loss of human lives. The decision to sell one’s organ can be both autonomous and rational, and allowing people to freely make this decision can curb the rampant and exploitative black-market in Pakistan.
 The author is currently pursuing his B.A. (Juris) at St. John’s College, University of Oxford.
Jafar, Tazeen H. “Organ Trafficking: Global Solutions for a Global Problem” (2009) American Journal of Kidney Diseases 54 (6): 1145–1157.
 Rizvi, A. “Pakistan` Legislative framework on transplantation” (2007) Second global consultation in human transplantation; Geneva: WHO; 28–30 Mar 2007.
 World Health Organization (WHO), “Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality”, sixth ed., Geneva: WHO, 2011.
http://isfit.github.io/blog/2013/whats-the-price-kidney/ [30/02/2014 9:46 pm].
 http://content.time.com/time/magazine/article/0,9171,1595235,00.html [30/02/2014 9:11 pm].
John Harris, “An Ethically Defensible Market In Organs: A Single Buyer Like The NHS Is An Answer”, British Medical Journal, Vol. 325, No. 7356 (Jul. 20, 2002), pp. 114-115.
http://www.independent.co.uk/life-style/health-and-families/health-news/sale-of-human-organs-should-be-legalised-say-surgeons-2176110.html [8/20/11 2:01:42 PM].
Legalizing The Sale Of Human Organs
A human is born completely as he must end his life completely. No one on earth can buy a life. But people are buying part of a human life causing people to live with a body that’s not completed. In general, many people in the modern world are unwilling to legalize the sale of human organs even if it was a part of a dead human body (Mill, 2009). Also, selling organs is mostly against the moral values to some religions like Islam. However, in the modern world the increase of organ transplants is affected by the shortage of supply of the organs.
First of all, selling organs shouldn’t be legal for two main reasons, which are saving lives and stop people from selling organs illegally in the black market. The world should understand that in many cases if someone didn’t get the organ they need they will suffer and have to die in some cases. This doesn’t means that the donors will have to give up their lives but, they can and will live healthy. For example if someone is dyeing and in need of a kidney and there is no chance for that person to live unless he gets one. Legalizing selling organs will saves this person’s life because he would easily buy an organ and complete the rest of his life without and problems. But in the case of that kidney that is in need, other people could sell theirs without having and problems that would affect them. Humans have two kidneys and one kidney that wills saves other person live is going to kill this person or even hurts.
Selling organs will saves lives in many different ways also. People are dying because they are illegally selling their organs in the black market or even selling there organs in insane prices to other people. As in Germany, it will coast around $3500 to donate a liver. But in other illegal areas as in turkey it could coast around $52000 for just a kidney donation transplant (Harvey, 1990). This will put people also at risk because some people could sell there organs while they are sick or infected or holding a disease like AIDs or cancer which could put the person that is in need of that organ in risk of his life or even cause him death. If selling organs get legalized more around the world and not just in Iran, the lives of many people could be saved safely. This is by putting the people into tests and making sure that it is safe for them to get this organ from the donor.
However, some opponents argue that selling organs should be forbidden as not everything you own can be for sale. People cannot be sold or even bought as if you have something it doesn’t mean you should sell to for a reason to make money or help...
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