A Conversation with Peter A. Lawler (Part I)

July 31, 2008

Peter Lawler at the podium

An Interview by D. Joy Riley, M.D., M.A.

Dr. Peter A. Lawler, Ph.D., is Dana Professor and Chair of the Department of Government and International Studies at Berry College, in Georgia, and a member of the President’s Council on Bioethics

D. Joy Riley: Today’s subject is organ transplantation. There are tens of thousands of people on the list in the United States, needing organ transplantation. This is an area of interest for you, I understand.

Peter A. Lawler: This is a tough issue. There are two ways of dealing with this: dialysis or transplantation. Dialysis is a horrible way to live, but is covered by Medicare. Congress thought when they passed this entitlement that many people would get back to work, but that is not what happened. People on dialysis expend most of their energy doing and recovering from dialysis. On the other hand, transplantation has improved greatly over the last thirty years, yet there is this deficit of kidneys.

The waiting list for transplantable kidneys has about 97,000; in a good year, we might get 13,000 kidneys—cadaver kidneys. There is also a number of live kidney donations per year, and these work much better. A kidney from a cadaver lasts about 10-13 years. A live-donor kidney with a close match lasts much longer.

Riley: Dr. Lawler is on the President’s Council on Bioethics. Has the council dealt much with this issue of transplantation? Is that on your docket?

Lawler: We have dealt extensively with it. I have gone from absolute ignorance on this subject to being somewhat of an expert, and I have written an article in The New Atlantis on the cases for and against kidney markets that was vetted by leading kidney experts. I have spent hours and hours with kidney doctors trying to figure out what is going on here. So we have a report coming out. It is very objective, going over all the alternatives and recommending against the market, but we are still working on the details.

Riley: If live-donor kidneys last so much longer than cadaver kidneys, it would seem reasonable that those are the ones we would want. The need for kidneys is staggering: how should we think about this?

Lawler: From the view of a market: the government is paying six figures to keep these people alive on dialysis. Lots of lives could be saved if more live kidneys were available. Government could actually pay a good price for these kidneys. An absolutely free market would be a monstrosity, but the market could be regulated with the government as the purchaser. The government could reasonably pay $50,000 – $75,000 per kidney. That is a brutal way to look at it, but even paying for the anti-rejection drugs, which they should in this case, would mean that they would be paying less than they would for the total bill of dialysis. It’s hard to know why we shouldn’t do this.

Riley: What are some of the concerns?

Lawler: There’s all kind of practical health and safety objections, like, how do we prevent exploitation; how to prevent a redistribution from the young and the poor to the rich and the old. But, in principle, those problems could be dealt with, perhaps. So, we need a better reason than health and safety and exploitation for not doing this. The question is, can our country come up with a better reason for not turning kidneys into commodities to be bought and sold, given how libertarian our country has become.

Let me give you one example. One, I think, powerful argument against kidney markets is this: you are turning healthy people into patients, for reasons that don’t benefit them at all. The healthy person is being used as an instrument to help someone else out. The Hippocratic Oath says to never do harm. But you are doing harm here. So that would be a good argument against it. But in our libertarian time, we are doing that all the time, in using cosmetic surgery to turn healthy people into patients in order to make them more marketable commodities, to make them look younger and prettier. Hollywood stars and salesmen think they need to do this just to remain competitive. We already allow cosmetic surgery just to help healthy people enhance their marketability – that’s already clearly against the Hippocratic Oath. We’ve already broken that barrier. If I can get surgery that doesn’t benefit me medically, but just makes me look better to get more money, then why can’t I sell my kidney to get more money?

We now have this principle that you can do whatever you want with your body. We say the right to have an abortion is more or less unrestricted because she can do whatever she wants with her body. If an abortion is perfectly legal, why wouldn’t kidney sales be perfectly legal?

People who argue against abortion think that the fetus is a human being. No one thinks kidneys are human beings. No one dies except in the very rare instance when the surgery doesn’t work out. No one dies, and someone gets to live. In this case, it looks like the pro-choice position is also pro-life. I’m far from actually endorsing this, except to say that the argument here is weirdly compelling.

I think that in a certain way, the kidney market is still a bit taboo now. But I have a rough analogy. The country’s thinking of a kidney market is like the country’s thinking about gay marriage as a right ten years ago. Most people were thinking that it wouldn’t really happen. It’s now clear it’s going to happen, because the dominant view is becoming that marriage is nothing but a rights-based contract between two free individuals.

The kidney market is probably going to happen. So we have this problem of alienating people from their own bodies, commodifying their own bodies. It’s really an assault against one’s own personal dignity, but the assault has this powerful humanitarian motivation.

Riley: So I hear you saying that you would argue against payment for kidney donation. How about things like paired kidney donation? An example is two couples from the UK, where one spouse of each couple needed a kidney, and in each case, the other spouse was willing to donate a kidney. Unfortunately, the spouses didn’t match one another. It was found, however, that the well spouse of Couple A matched the ill spouse of Couple B, and vice versa. So the four of them entered a hospital, where the kidney swap was completed.

Lawler: I actually have no problem with that. We really have an obligation to do everything short of paying for kidneys to increase the number of kidneys available. If we don’t do that, we leave the situation open for the market. Kidney tourism is going to become much more of a problem.

I visited a fine woman in a retirement community, full of people with great accomplishments. There was an old man there who was fairly healthy except he had kidney failure, and it was unclear why. He was surfing the net across the world, looking for somewhere to go to get a kidney. This man was objectively wrong: some pathetic guy in some impoverished country was going to get a really raw deal here. He was suppressing the moral qualms he should have had. But it’s easy to see why he was all about saving his own life in an intelligent, “proactive” way.

People will say, “Why not do this whole thing in a safe and legal way in our country, protecting ‘the vendor’ from this kind of exploitation?” So, if we don’t do everything we can short of exchanging money, we leave the road open to exchanging money. But the real practical dilemma is doing everything we can short of the market won’t really reduce the waiting list of people waiting for kidneys much at all.

Riley: Is there any means of preventing further increases in kidney failure, so that this list of people awaiting transplant can start decreasing in number?

Lawler: A number of people think that if we had better preventive medicine, we wouldn’t have the waiting list at all. This is not true.

I am for preventive medicine. Individuals can save themselves through diet, exercise and so forth from the ravages of diabetes and the main cause of kidney failure is diabetes. Actually, millions of Americans have failing kidneys, but most of them never come to know it, because they have a heart attack, cancer, or something else gets them. Now, men and women are taking better care of themselves often: taking their blood pressure medicine, their statins for high cholesterol, etc. We’re staying alive longer, and will die from chronic debilitating illness. The two most common are Alzheimer’s Disease and kidney failure. So in a way preventive medicine is going to cause more kidney failure, because more people are going to be staying around long enough to have their kidneys fail.

Riley: Surely there are ramifications for those who would donate a kidney to someone. What are some of the considerations? Would that in some way be entering a market?

Lawler: I have been thinking about this . . . The Catholic Church endorses without reservation kidney donation. It is based on this principle: a donation is not an invasion of your bodily integrity if you surrender an organ that is redundant. Almost the only organ you have that is redundant is your “extra” kidney.

You are only slightly, slightly, slightly worse off if you have only one kidney. It could be that men are more susceptible to high blood pressure if they have only one kidney, but the jury is still out. Given that, the Catholics are okay with donation, but they stop short of the market. But if we were to enter into a market, we would have to be careful that no other organ, including the liver, would be included. The danger with liver donation is much greater. Part of your liver is not really redundant: you are better off with a whole liver. So a lot of prudent people are starting to think, is there any way we can have a carefully regulated kidney market without creating a devastating precedent? This is a dilemma specific to a certain stage in science.

Eventually, science will come up with something better than transplanting kidneys. Some of the scientists say that xenotransplantation (basically using pig kidneys) might end up working. Maybe they will develop an artificial kidney. Maybe they will come up with a cure for chronic kidney disease. But for now, there is nothing.

Riley: So must we seriously consider a market for kidneys?

Lawler: My own opinion for now is that the precedent that we would set would be so devastating that there would be no going back on it. We would want to put the kidney thing in a box, and not have it affect other areas. I think that wouldn’t work out. What makes this seem fairly benign is the Medicare entitlement, that people would get lots of money for their kidney. Libertarians who are for the kidney market also know that Medicare has no future. So what happens when demographic pressures cause Medicare to collapse? We all know that will happen.

Then we will have something much closer to a free market in kidneys. The price will plummet. The kidney market will globalize. Then you will start to have the ugly transfer from healthy young people to sick, rich, and old people. That wouldn’t happen now because of the Medicare entitlement, but that will happen eventually.

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