Norma Brickey, an eighty-two-year-old mother, has been driving the streets of Columbus, Ohio, with a sign in her car window reading, “My son needs a kidney, O positive,” followed by her phone number. Both she and another of her sons have had kidney transplants. All three suffer from polycystic kidney disease, a condition in which cysts form on the kidneys.
Her son who is still waiting for a kidney transplant goes to dialysis for four hours, and then goes to his job as a nurse for 12 hours. He has been on dialysis for almost two years. “This is the year I’m going to find him a kidney,” says his mother. She doesn’t “make extra trips for people to see the sign.” She just does her errands, and almost every day gets a call.
Why doesn’t Norma Brickey just offer to pay someone to give one of his kidneys to her son? Why doesn’t she just offer to purchase a kidney from the family of someone who recently died? Why doesn’t she just offer to pay someone to have his kidneys harvested from his body when he dies?
The first successful kidney transplant was done in 1954. Since then, hundreds of thousands of people have undergone a kidney transplant. More than 670,000 people in the United States live with end-stage renal disease. More than 34,000 kidney transplants were performed last year. It’s not exactly rocket science to transplant a kidney.
The problem is that Norma Brickey can’t make those offers. And money has nothing to do with it. She isn’t allowed to make such offers. No one is allowed to sell her any of the organs in his body — not while he’s alive and not after he’s dead.
Because the federal government has so decreed it.
Selling the organs in your body while you are alive (kidney or intestine segment) or after you are dead (heart, lungs, liver, et cetera) is currently a criminal action.
Public Law 98-507 (S.2048, 98 Stat. 2339), the National Organ Transplant Act (NOTA), was enacted on October 19, 1984. It outlawed the sale of bodily organs and established the Organ Procurement and Transplantation Network (OPTN) to facilitate the procurement of such organs. The program is administered by the United Network for Organ Sharing (UNOS), a nonprofit organization.
According to the NOTA, “It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” The penalty is a fine of $50,000 or a maximum of five years in prison, or both. The Senate Report accompanying NOTA stated that “human body parts should not be viewed as commodities.”
According to the OPTN,
- 114,440 people need a lifesaving organ transplant, including 94,900 waiting for kidneys.
- Every ten minutes, someone is added to the national transplant waiting list.
- On average, 95 transplants take place each day in the United States.
- More than 7,000 candidates died in 2016 while on the wait list.
- Despite advances in medicine and technology, and increased awareness of organ donation and transplantation, there continues to be a gap between supply and demand.
- More progress is needed to ensure that all candidates have a chance to receive a transplant.
Because there are not “enough donated organs to transplant everyone in need,” the factors of “justice (fair consideration of candidates’ circumstances and medical needs), and medical utility (trying to increase the number of transplants performed and the length of time patients and organs survive)” must be balanced.
Before an organ is allocated for transplant, all “candidates on the waiting list that are incompatible with the donor because of blood type, height, weight and other medical factors are automatically screened from any potential matches.” A computer application “determines the order that the other candidates will receive offers, according to national policies.”
There are many factors that account for how long someone might wait for a transplant: blood type, tissue type, height and weight of transplant candidate, size of donated organ, medical urgency, time on the waiting list, the distance between the donor’s hospital and the potential donor organ, how many donors there are in the local area over a period of time, the transplant center’s criteria for accepting organ offers.
The ability to pay for an organ that is needed for a transplant and the willingness to sell one have nothing to do with the procuring of an organ.
If there is one thing that the poorest people in the world have in common with the richest it is that both groups own their own body. The poor man may not have anything else, but he has himself. His body belongs to him. And if it belongs to him, then it doesn’t belong to the government. And if you own your own body, then you certainly also own the organs in your body. Since anyone should be able to do what he wants with his own body — as long as his activities are peaceful, his interactions are consensual, his associations are voluntary, and he doesn’t violate the personal or property rights of anyone else — anyone should have the freedom to sell his bodily organs to the highest bidder.
And that’s not all. If a person’s body belongs to him, then he should have the right to do whatever he wishes to or with his own body: medicate it as he sees fit; rent it out for sexual favors; engage in recreational activities as he pleases; modify it; or inject, snort, inhale, or otherwise ingest substances into it — as long as he is paying the bill for those things and not violating anyone else’s rights while he is doing any of them.
What a person does with his body might be dangerous, unhealthy, destructive, or immoral, but it is an illegitimate function of government to concern itself with what he does with his own body. Actions that are peaceful, private, voluntary, and consensual should never be criminalized.
Those with objections to what someone does to or with his body have the right to persuade people to do otherwise. They do not have the right to use the force of government to stop people from engaging in activities that do not violate anyone else’s rights.
Who owns your body? If the government can control what you put in it, what you do with it, and what you allow others to do to it, then the government is the de facto owner of your body and every organ in it.