This document proposes a novel approach to cadaveric organ donation intended to reduce the “ongoing imbalance between demand and supply of organs” (Prabhu, 2019) and demonstrates that it is ethical. The name “Wergild” derives from the Germanic practice of paying a family compensation for having caused the death of one of its members (Merriam-Webster, n.d.) and is used because the proposed system requires payment by an organ recipient to the donor’s heir.
Wergild requires three parties to a cadaveric organ donation. The donor pays one dollar to register as such. The heir acts as intermediary, with a relationship to both the donor and recipient. The heir’s relationship to the donor is personal and the donor’s organs are received by bequeathal. The relationship to the recipient is transactional and the heir acts as a “vendor”— the word chosen by Richards (1996)—who sells an organ to a recipient in a market exchange. Because the donation and sale are contemporaneous transactions between actual people, Wergild makes donation more tangible and personal than simple opt-in allows, creating an increase in social cohesion.
For an organ to be sold, it must have a price and there is the danger of price gouging. It is crucial that the price be “fair”. Under medieval wergild, fairness required that the size of the payment be large when the rank of the deceased was high. Ours is not a medieval society and though Wergild uses a free-market approach, human organs are not normal market goods. Under Wergild, fairness is achieved when an indigent participant receives a large payment, or makes a small one, while a wealthy participant receives a small payment, or makes a large one. To achieve this, when joining the registry, a recipient bids a price that he or she is able and willing to pay, which must be at least one dollar, and can be adjusted monthly. The registry also shows donor status and start date but is otherwise anonymized.
An heir with financial need is expected to choose the (default) high bid while an heir with financial means is free to choose a small bid or the earliest registrant, then use the high bid as the basis of a charitable contribution for tax purposes. Any heir is free to discriminate against non-donors.
The standard by which we judge Wergild’s ethics is principlism (National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, 1979) which finds something ethical to the extent that it meets four criteria. One ethical criterion is non-maleficence, rooted in the maxim “primum non nocere”, whose modern interpretation is “first, do no harm”. Non-maleficence qualifies the criterion of beneficence, which is rooted in utilitarianism, with its goal of providing the greatest good for the greatest number (Mill, 1861). The criterion of justice demands that goods and harms, costs and benefits, be distributed equitably. It follows from the ideal “that all men are created equal” (Jefferson, 1776) that all should receive equitable treatment. The last criterion is respect for autonomy, sometimes described as enshrining American individualism (Beauchamp & Childress, 2019). Autonomy is built upon the other principles: self-determination is good, is just, and does no harm.
Wergild’s goal is to significantly increase the number of enrolled organ donors and its motivating principle is beneficence. Closing the wide gap that exists between the number of organ donors and the number needed will create a great human benefit by alleviating the significant suffering this gap creates (Moffatt, n.d.). This goal is achieved by creating three incentives for potential donors: an enrollment fee, compensation of heirs, and the risk of non-donor discrimination.
Wergild’s enrollment fee acts as an incentive for enrollment by making the donation tangibly valuable to the donor. Under the simple opt-in system, the donor does not pay. There is a modern expectation that “if you’re not paying for it, you become the product” (Goodson, 2012) so that not paying for donor enrollment makes it, in some sense, valueless to the donor. This deters enrollment. Small economic incentives can produce a counter-intuitive hormesis-like effect. A small stipend can act as disincentive, e.g. the study of 1970s blood-donors who reduced their donations in response to payment (Levitt & Dubner, 2006). Likewise, a small fee can act as incentive, e.g. in the Haifa day-care study in which fines levied for late pick-ups resulted in increased tardiness by parents (Levitt & Dubner, 2006). The act of paying for enrollment acts as incentive as it elevates the donor from product to stakeholder and gives the enrollment a tangible value to the donor, a value greater than a lottery ticket, at a lesser price.
Making a simple opt-in donation to a hypothetical future recipient can seem, from the donor’s perspective, like a sterile and bloodless transfer of a raw material of commerce to a healthcare provider. The nature and perception of organ donation is changed fundamentally and positively, when donation is within a family (Crouch & Elliott, 1999). As people are more inspired to become living organ donors by the prospect that a family member will benefit, so too will the familial gift of a donation legacy incentivize donation.
The recipient should be aware of the value of this gesture that one receives, of a gift that goes beyond the therapeutic benefit. What they receive is a testament of love, and it should give rise to a response equally generous, and in this way grows the culture of gift and gratitude. (Pope Benedict XVI, 2008)
An heir brought into a Wergild donation brings along a level of awareness and gratitude for the donor’s loving gesture which is greater than that possible by an anonymous recipient alone.
As the potential benefit to an heir is a positive incentive (carrot) for enrollment as an organ donor, the potential for discrimination as a non-donor, is the stick. An ample supply of organ donors reduces the maximum sensible bid, creating a reasonable market price. A large supply of organs at a low price benefits all who need them. Wergild is beneficent.
Wergild creates an injustice not present in the simple opt-in system of donation. Nothing prevents a wealthy recipient from buying the spot at the head of the line. Though the head of the line does not guarantee the next available organ, queue-jumping would come at the expense of all those with lesser means and greater need. But it also removes two injustices: one comparable and one greater.
Under simple opt-in, a wealthy recipient who receives an organ from an indigent donor, does so scot-free. In this case the recipient’s condition is greatly improved while the state of the donor’s family might remain dire, a significant potential for injustice in the existing system. While Scrooge (Dickens, 1843) can ethically give a Christmas goose to Tiny Tim, if Tiny Tim gives one to Scrooge, justice will demand that he pay for it. Wergild does too.
The more serious issue and one of the most troubling in transplantation ethics surrounds medical tourism and the market in cadaveric organs forcibly and fatally extracted from prisoners and sold by their captors (Rashid, 2006). In its report on the subject, the BBC does not describe this as a “black market”, as it is operated by the Chinese state. A desperate person will not always be constrained by ethics in the preservation of his or her own life. Thus, participants in this market are certain to include U.S. citizens and a sufficiently wealthy and desperate American is unlikely to be constrained by U.S. legal restrictions. Wergild removes the participation of Americans from this trade without the need for draconian sanctions. It is objectively preferable for a wealthy and desperate American to make an outsized bid and buck the line than to engage in an illicit transaction overseas.
The injustice created by Wergild is outweighed by the injustices it corrects. Thus, Wergild is just.
Wergild is based on a form of opt-in, a form that is stepped-up because of the nominal enrollment fee paid by the donor. As such, it respects donor autonomy no less than simple opt-in. But it also respects the autonomy of all concerned in ways that simple opt-in does not. A deceased donor’s autonomy is muddled by their inability to express other than prior intent, allowing family members and others to sometimes supplant their own wishes for those of the deceased. A family in crisis is primed for coercion and ill-suited for informed consent. Pope Benedict XVI (2008) complained that “with frequency, organ transplantation takes place as a completely gratuitous gesture on the part of the family member.” Wergild makes an heir’s role explicit, a donor’s intent clear, and no one but the heir has standing to speak for the deceased. Heirs have the autonomy to express their values and needs through recipient selection, especially when excluding non-donors or choosing low bidders. A high bidder’s autonomy is clear. But for low bidders, a one-dollar sale protects their pride from having received charity, even as the buyer gains the satisfaction of being charitable.
One might describe as maleficent, the fee that Wergild demands from the donor, but this is rejected as the fee is only nominal and provides for a disproportionate good whose beneficiaries include the donor. The potential for discrimination against non-donors might be called a harm to non-donors. But this harm is readily avoided by the non-donor recipient, is within the discretion of the heir, and is respectful of the autonomy of both. One might imagine it as maleficent that affluent donors are asked to pay for donor organs that they might otherwise receive for free. But this is not a failure of the system. It is a benefit the system provides in enhancing justice among those involved. Wergild is non-maleficent.
Human life is precious and priceless. It is natural to see a price attached to a lifesaving organ as “repugnant” (Richards, 1996). Pope Benedict XVI (2008) described the “buying and selling of organs” as “illicit”. The World Health Organization (2010) insists that organ donations be without payment and calls for banning payments to the next of kin.
But visceral response is a poor measure of morality and “not all strong feelings of a moral kind are reliable guides to action (Richards, 1996).” Where one stands on an issue, including this issue, tends to depend on where one sits (Miles, 1978). Consider that ethical qualms do not arise when surgeons and hospitals are paid for their contribution to organ transplantation. Only the donor is given an ethical mandate to contribute for free. Bakdash contends (Bakdash & Scheper-Hughes, 2006) that even for a living donor “selling one’s own kidney would be better than enduring the horrors of poverty”. The relevance of distributive justice to this question ought not be discounted.
This issue of payment has parallels to the issue of presumed consent and the key arguments made against it (Prabhu, 2019). In both cases, the underlying concern is for the purity of informed consent. A legitimate concern regarding donor remuneration is the concern that the money will taint the consent. Scheper-Hughes describes this (Bakdash & Scheper-Hughes, 2006) as “putting a market price on body parts exploits the desperation of the poor”. Exploitation is the real concern, not remuneration. Through the intermediary heir, Wergild provides a buffer against exploitation while providing for compensation. As well, Wergild cultivates justice by empowering the poor and inspiring charity among the rich, so the “meat market objection” is rejected.
Wergild creates a system for organ donation, novel in the role of the intermediary heir who sells a donated organ using a sealed-bid system. It is beneficent in that it reduces suffering by increasing the supply of donor organs through increased donations produced by the incentives that Wergild creates. It promotes justice by creating payments for needy donor heirs and removing the incentive to participate in illicit offshore markets. It promotes the autonomy of all participants, most significantly the donor. It is non-maleficent in that arguable harms are measured and just. Justified concerns about payments for donation are rooted in concerns for autonomy, which is protected via the intermediary.
Wergild is beneficent, just, respecting of autonomy, and non-maleficent. Thus, it is ethical.