Abstract
Imagine that a member of your family faced sure death unless a body part could be found and quickly transplanted. Your doctor and the hospital have the know-how to perform the procedure but lack the human raw materials with which to do the job. To what lengths would you be able to go to obtain the body part? And, since the supply is usually smaller than the demand, who should decide who gets the human organ and on what basis? Should a free market be allowed? Or, should a government bureaucracy make the decision? Is this a matter requiring a national standard that justifies preemption by the federal government? Or, is it a matter of state’s rights that fits neatly under the Supreme Court’s recent Federalism cases? What about “equity” and ability to pay? Should body parts be provided regardless of wealth? This article examines those questions and concludes that the free market is the most just and beneficial system possible.
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Notes
- 1.
In Alden v. Maine, 67 U.S.L.W. 4601, the Supreme Court ruled that the states were protected from federal wage and hours legislation by its sovereign immunity. In two cases, Florida v. College Savings Bank, 67 U.S. L.W. 4830 and College Savings Bank v. Florida, 67 U.S.L.W. 4590, the Supreme Court determined that Congress exceeded its constitutional mandate when it authorized private suits against a sovereign state for patent infringement and Lanham Act violations. Why can’t a state control the transplantation of body parts under these theories?
- 2.
See, Sheryl C. Stolbery, “Fight Over Organs Shifts From States to Washington,” The New York Times, March 11, 1999, at C1, Col. 2.
- 3.
Id.
- 4.
Id.
- 5.
42 C.F.R. Section 121.12 (1998). The Secretary is clearly concerned that the final rule might run afoul of the Supreme Court’s recent “Federalism” cases discussed Infra, at footnotes 50 and 51. She attempts to foreclose such an inquiry by claiming that any state input in the program would result in less sharing of body parts and violate Medicare and Medicaid reimbursement rules. She says that the value of a federal program outweighs the state’s policy interests, see generally 63 Fed. Register 16321 (Apr. 2, 1999).
- 6.
Supra, footnote 1. Providing rough support for this figure, Lori Noyes, “Organ Donor and Transplant Facts,” Organ Transplant Ring, November, 1998, p. 3, estimates 62,000.
- 7.
63 Fed. Register 16296 (Apr. 2, 1998).
- 8.
Supra, footnote 1.
- 9.
Id.
- 10.
Pub. L. 101–666, Title II, Sec. 202, Codified at 42 U.S.C. 274 (6) (2) (D).
- 11.
Id.
- 12.
63 Fed. Register 16300.
- 13.
Id.
- 14.
63 Fed. Register 16298.
- 15.
Supra, footnote 1.
- 16.
Supra, footnote 1.
- 17.
42 C.F.R. 121 (1998).
- 18.
63 Fed. Register 16295 (1998).
- 19.
Id.
- 20.
63 Fed. Register 16297 (1998).
- 21.
Id.
- 22.
63 Fed. Register 16298 (1998).
- 23.
Id.
- 24.
Id.
- 25.
Id.
- 26.
63 Fed. Register 16304 (1998).
- 27.
Id.
- 28.
Id.
- 29.
Id.
- 30.
Id.
- 31.
Id.
- 32.
In battle conditions, army doctors use triage: painkillers, only, for soldiers not likely to survive, little attention for the ones likely to recover on their own, and heavy investment of medical resources for the middle group, where the rate of return on such effort is expected to be the highest. In effect if not by intention, present institutional arrangements put the entire society on a war footing. In sharp contrast, markets allocate scarce goods and services in accord with wealth (e.g., based directly or indirectly on past earnings; that is, contributions to the betterment of economic welfare.) Cadillacs, that is, go to those who can afford them, not those who “need” them most; Geos end up in the hands of the relatively poor, not drivers who can better utilize them.
- 33.
Id.
- 34.
Id.
- 35.
Id.
- 36.
63 Fed. Register 16305 (1998).
- 37.
Id.
- 38.
Id.
- 39.
Id.
- 40.
Id. But what is the logical effect of this thinking on the market? Can a poor person go to Auto Zone, select a part for his car and refuse to pay based on an equity or economic status? Certainly not! This is nonsense!
- 41.
63 Fed. Register 16324 (1998).
- 42.
Id.
- 43.
Id.
- 44.
Id.
- 45.
42 C.F.R. Section 121.8 (a) (3) (i) 1998.
- 46.
Id.
- 47.
Id.
- 48.
Id.
- 49.
Id.
- 50.
Supra, footnote 1.
- 51.
42 C.F.R. Section 121.12.
- 52.
Several recent cases decided by the Supreme Court may signal a resurgent federalism. The court has recently ruled, for example, that the Federal Government may not compel a state sheriff to perform federal gun background checks, Printz v. United States, 521 U.S. 898 (1997). In three cases decided on June 23, 1999, Alden v. Maine, 67 U.S.L.W. 4601, Florida v. College Savings Bank, 67 U.S.L.W. 4580, (involving a holding that Congress lacked the Article I power to override state sovereignty in a suit against the state under the Fair Labor Standards Act) and College Savings Bank v. Florida, 67 U.S.L.W. 4590, (concerning the a patent suit by the bank against the state under U.S. patent law), the high court ruled that Congress exceeded its authority under Article I when it authorized suits against the states. The cases demonstrate that the high court meant what it said in Seminole Indian Tribe v. Florida, 517 U.S. 44 (1996). In Seminole, the court said that Congress may not abrogate state powers under its Article I authority. Could it follow that Congress, and the president, may not abrogate the states’ authority to control the distribution of body parts within their jurisdiction?
- 53.
This Federalism issue may arise because of a feeling by the court that the lack of a compelling threat to the entire county like the Great Depression, World War II, and the Cold War, no longer exist. We no longer need federal supervision of all things, great and small, to exist very well. See, generally an article by the Dean of Stanford Law School, Kathleen M. Sullivan, “Federal Power, Undimmed,” The New York Times, June 27, 1999, at A 21, Col. 3.
- 54.
Scott Russell, The Body as Property, (New York: Viking Press, 1981), p. 112.
- 55.
Noyes, Organ Transplant Ring, p. 2.
- 56.
This is the core error in Marx. For a remedy to this fallacy, see Mises, Ludwig von, “Economic Calculation in the Socialist Commonwealth,” in Hayek, F.A., ed., Collectivist Economic Planning, Clifton, N.J.: Kelley, 1975 (1933); Mises, Ludwig von, Socialism, Indianapolis: Liberty Fund, 1981 (1969); Bohm-Bawerk, Eugen, Capital and Interest, South Holland, IL: Libertarian Press, George D. Hunke and Hans F. Sennholz, trans., 1959 (1884); see particularly Part I, Chapter XII, “Exploitation Theory of Socialism-Communism”; Rothbard, Murray N., Classical Economics: An Austrian Perspective on the History of Economic Thought, Hants, England: Edward Elgar, 1995; Hoppe, Hans-Hermann, 1990, “Marxist and Austrian Class Analysis,” The Journal of Libertarian Studies, Vol. 9, No. 2, Fall, pp. 79–94; Foss, Nicolai Juul, 1995 “Information and the Market Economy: A Note on a Common Marxist Fallacy,” Review of Austrian Economics, Vol. 8, No. 2, pp. 127–136; Rothbard, Murray N., “Karl Marx: Communist as Religious Eschatologist,” Review of Austrian Economics, Vol. 4, 1990, pp. 123–179.
- 57.
The economically illiterate writers of the T.V. show “Law and Order” (mis)lead their audience into believing that this sort of behavior results from free enterprise.
- 58.
Three scientists were marooned on an island with plenty of canned goods, but no can opener. The first, a chemist proposed to heat the cans to a certain temperature, whereupon they would burst, without destroying their contents. The second, a physical engineer, agreed with the goal, but proposed a different means: dropping the cans onto a rock from a precise height, to this same end. At this point they both turned to the third man, an economist, who opined, assume we have a can opener….
- 59.
It is a staple of basic economic analysis that price controls boomerang, and hurt the very people they were ostensibly designed to aid. Most economists hold strong beliefs about the deleterious effects of minimum wages, rent controls, and tariffs, for example. On this, see Frey, Walker. But these insights have not yet percolated into the consciousness of the general public. For an appreciation of markets in bodily organs, see Barnett, Andy H., Frank Adams and David L. Kaserman, “Markets for Organs: The Question of Supply,” Contemporary Economic Policy, forthcoming; Barnett, Andy H., Roger Blair and David L. Kaserman, “The Economics and Ethics of a Market for Organs,” Society, September/October, 1996, pp. 8–17; Barnett, Andy H., T. Randolph Beard and David L. Kaserman, “Scope, Learning, and Cross-Subsidy: Organ Transplants in a Multi-Division Hospital – An Extension,” Southern Economic Journal, January 1996, pp. 760–67; Barnett, Andy H., David L. Kaserman, “The ‘Rush to Transplant’ and Organ Shortages,” Economic Inquiry, July 1995, pp. 506–515. Reprinted in Price Theory and its Applications, edited by F.M. Scherer and Bernard Saffran, Edward Elgar Publishing, 1999; Barnett, Andy H., T. Randolph Beard and David Kaserman, “The Medical Community’s Opposition to Organ Markets: Ethics or Economics,” The Review of Industrial Organization, December 1993, pp. 669–678; Barnett, Andy H., T. Randolph Beard and David Kaserman, “Inefficient Pricing Can Kill: The Case of Regulation in the Dialysis Industry,” Southern Economic Journal, October 1993, pp. 393–404. Reprinted in Foundations of Industrial Organization, edited by Robert Ekelund, Edward Elgar Publishing, 1998; Barnett, Andy H., David Kaserman, “The Shortage of Organs for Transplantation: Exploring the Alternatives,” Issues in Law & Medicine, Fall 1993, pp. 117–137; Barnett, Andy H., David Kaserman and Roger Blair,” Improving Organ Donation: Compensation versus Markets,” Inquiry, Fall 1992, pp. 372–378; Barnett, Andy H., David Kaserman, “An Economic Analysis of Transplant Organs: A Comment and Extension,” Atlantic Economic Journal, June 1991, pp. 57–63.
- 60.
Organ Keeper is an organization who believes that there should be a market for human organs, and to protest the lack of one, they have become “organ keepers” and share information as well as their own beliefs through the internet. See on this http://organkeeper.com/backgrnd.html.
- 61.
These people would presumably be very happy in North Korea or Cuba, where such sentiments are in the ascendency.
- 62.
If they are not uncomfortable in this role, this is even more reason to preclude them from it.
- 63.
Sean Elliott of the National Basketball Champion San Antonio Spurs is a recent case in point.
- 64.
Caplan, Arthur, “Ethical and Policy Issues in the Procurement of Cadaveric Organs for Transplantation,” New England Journal of Medicine, 311, 1984, pp. 981–983; Childress, James F., “Ethical Criteria for Procuring and Distributing Organs for Transplantation,” Journal of Health, Politics, Policy and Law, 14:1, 1989, pp. 87–113.
- 65.
Johns, Albert, “Planning May Help Families Minimize the High Cost of Funerals,” Las Vegas Review Journal, May 24, 1998, Lifestyle Section, pp. 1–2.
- 66.
Nozick, Robert, Anarchy, State and Utopia, New York: Basic Books, 1974.
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Block, W.E., Whitehead, R. (2019). Human Organ Transplantation: Economic and Legal Issues. In: Philosophy of Law. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-28360-5_12
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