ORGAN TRANSPLANTS, FOREIGN NATIONALS, AND THE FREE RIDER PROBLEM
DENA S. DAVIS
Cleveland-Marshall College of Law, 1801 Euclid Avenue, Cleveland, OH 44115, USA
ABSTRACT. There is strong sentiment for a policy which would exclude foreigners from access to organs from American cadaver donors. One common argument is that foreigners are 'free riders'; since they are not members of the community which gives organs, it would be unfair to allow them to receive such a scarce resource. This essay examines the philosophical basis for the free rider argument, and compares that with the empirical data about organ donation in the U.S. The free rider argument ought not to be used to exclude foreign nationals because it is based on fallacious assumptions about group membership, and how the 'giving community' is defined. Polls show that even among the seventy-five per cent of Americans who support organ donation, only seventeen per cent had taken the small step of filling out donor cards. Therefore, it goes against logic to define the giving community as coextensive with American residency, while excluding foreigners who might well have become donors had they lived in countries which provided that option.
Key words: free rider argument, foreign nationals, organ allocation
INTRODUCTION Should foreign nationals in need of organ transplants be eligible to receive organs from American cadaver donors? This is currently an issue of much controversy, with important arguments on all sides. T h e r e are three major arguments against allocating some American organs to foreign nationals. First, when organs, especially kidneys, are given to foreign nationals, the taxpayers' burden increases as U.S. residents spend longer periods on dialysis. Second, it is feared that the general public will perceive organ use by foreigners as unfair, which will cause a decline in giving. Third, it is argued that since foreigners are not members of the community which gives organs, it would be unfair to allow them to receive such a scarce resource. This essay examines the third argument, as a variation on the philosophical problem o f the involuntary free rider. I conclude that the idea of the 'giving community' falls apart under scrutiny, and cannot be used to argue for the exclusion of foreigners as organ transplant candidates. The facts of the issue are simply stated. Despite the increased success of Theoretical Medicine 13: 337-347, 1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.
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transplants using cadaveric organs, many Americans who are transplant candidates die because too few organs are available [t]. Meanwhile, people from countries where transplantation is not being done come to the U.S. to be treated, and if they are to receive transplants at all, it must be from American donors.1 At least in theory, every organ given to a foreign national is one organ fewer for Americans who are dying for lack of adequate supply. There is no reciprocity because Americans do not go elsewhere in the world to receive transplants. This lop-sided situation attracted some sporadic media attention, fueled by reports that some foreign patients were 'jumping the line' [3-5], and perhaps also by the fact that those foreign nationals who do seek transplants in the U.S. come from parts of the world which many Americans view unsympathetically. At the Cleveland Clinic, for example, foreign patients in need of organs are most likely to come from Saudi Arabia or Turkey. 2
THE CONTROVERSY Theoretically, there exist five possible policy responses to this issue. Three of these are almost universally rejected. All commentators condemn the idea of giving foreign recipients priority for available organs, although there is strong suggestion that this has sometimes happened in the past (due to compassion for their circumstances while waiting in a foreign country, or because they had enough money to 'buy their way' to the top of the list). No commentator supports a completely open system in which foreign and American candidates are given equal access to available organs, subject only to the rankings imposed by medical criteria. On the other side, there is no support for a policy in which foreign nationals could never be transplanted; in light of the fact that cadaver organs do sometimes go begging in this country, it would be wasteful not at least to allow foreign nationals to receive organs that have not found a suitable American recipient [7]. The two policies which are supported by significant numbers of commentators are the 'two list' policy and the 'quota' policy. If the two list policy were adopted, foreign nationals would be eligible to receive organs only if there were no suitable recipients among American residents. In effect, there would be a waiting list of Americans and a second waiting list of foreign nationals. Only if no one on the first list were suitable would the second list be considered. This policy is favored by a substantial minority of National Task Force Members, 3 by the Task Force itself for livers and hearts [8], the Department of Health and Human Services as stated in its 1986 report [9], and arguably by Congress (as expressed in a Conference Committee report) [10].
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The 'quota' policy would limit the number of foreign nationals on any center's waiting list to no more than ten per cent. This policy, which is currently the shared understanding among transplant centers, is supported by the United Network for Organ Sharing (UNOS) [11]. 4 The American Society of Transplant Surgeons has recommended a five per cent quota ([12], p. 10). (In fact, UNOS' policy is somewhat ambiguous. Section 6.4 states a ten per cent figure, but makes reference to the National Task Force document, in which the ten per cent recommendation is for renal transplants only with a policy of virtual exclusion for other solid organs. This seems to leave a significant area in which individual centers can interpret the policy for themselves as long as they do not go over the ten per cent limit for any organ ([12], p. 10).)
THE PROBLEM OF THE INVOLUNTARY FREE RIDER A free rider is someone who wants something for nothing, who wants to avail herself of a benefit which exists only because others have paid for it. Most systems have enough room at the margin that an occasional free rider does not bring the entire enterprise toppling down. For example, a person who sneaks onto a bus without paying is exploiting the fact that most of the passengers have paid, which is what funds the bus in the first place. Absent some mitigating circumstances, we say this person is acting unjustly. Not only is she not bearing the same burden as the other passengers, but over time such behavior drives the costs of the system up, so that other passengers pay even more. Assuming our passenger is able to pay, this seems like the classic example of unjustified free rider b e h a v i o r - pure stealing. The passenger's behavior is voluntary on both sides: she chooses the benefit of the bus ride, and she chooses not to pay for it. But other examples become more ethically complicated, exhibiting a mix of voluntary and involuntary factors. Consider families who choose not to vaccinate their children. They may refuse for religious reasons, or because their beliefs about health and the natural workings of the immune system convince them that children are healthier left unvaccinated. Whatever the motivation, this works out to be good strategic behavior; vaccination does have its risks and burdens, and because the vast majority of Americans are vaccinated, the likelihood that the unvaccinated child will be exposed to the disease is small. In the case of religious objectors, who would not vaccinate whether or not the world followed suit, we clearly have a different moral situation from that of the bus rider;, the Christian Scientist chooses not to pay the price, but is a passive recipient of the benefit accruing to her from the fact that most Americans do vaccinate. In families who follow 'natural' healing in some instances and avail themselves of standard medical care in others, the refusal to
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vaccinate (often for only some diseases) is more ethically suspect. One senses that they are, consciously or otherwise, relying on the fact that others do vaccinate, and that they would vaccinate their own children in the face of a true epidemic. We have moved back to a position closer to that of the bus rider: a choice not to vaccinate, and a choice which is possible only because other people do. Because the interests of the families in autonomy and freedom of religion are great, and because society can tolerate a small minority of unvaccinated people without great danger, the U.S. has allowed for an official population of free riders, by means of the religious exemption. When philosophers discuss involuntary free riders they tend to concentrate on the case of the person who chooses not to pay, but who is the involuntary recipient of an unlooked for benefit. 5 Imagine a group of homeowners who live in a square surrounding a weed-choked, vacant lot. 6 A few energetic yuppies in the group convince the others that it would be worthwhile to contribute some money and elbow grease to clean up the lot, repair the fence, and plant flowers. This would heighten the homeowners' aesthetic enjoyment of their homes, as well as increasing the resale value of their property. But one curmudgeon holds out. Although he has as much time and energy as his neighbors, he does not care about aesthetics and plans never to sell his house. In one scenario, our curmudgeon likes flowers as well as the next person, but simply chooses to put his time and energy into other goods which he values more. In that case, he truly does benefit from his neighbors' sacrifice, unless he covers his eyes and holds his nose each time he passes the garden. In the other scenario, he is like Oscar the Grouch and prefers the weed-ridden lot, or at least is indifferent. If his neighbors go ahead without him, he becomes an involuntary free rider: through no choice of his own, he is the recipient of benefits for which he did not pay his share. (Of course, his free rider status is imposed upon him only in a qualified sense; should he find it ethically abhorrent to be put in that position, he could choose to contribute his share even though he does not want the benefits - "so called benefits', from his point of view.) This is an important philosophical problem because it pits against each other two ethical norms: fairness and liberty. Fairness decrees that 'you get what you pay for', whereas liberty requires that, just because most of your neighbors like flowers is no reason for them to shanghai your time and money against your will. The principle of fairness would argue that those who did not join the cooperative venture cannot expect to attach the benefits; but in the case of our curmudgeon, there is no way to deny him the advantages of the flower garden. The situation of foreign nationals in need of organs is the exact reverse of the problem of the grouchy curmudgeon. The curmudgeon chooses not to contribute, but has the benefit thrust upon him. The foreign national wants the benefit, i.e. the donated organ, but through no choice of her own is unable to
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'pay her share'. That is to say, through no choice of hers, she resides in a country which does not have a transplant program. This lack may be due to scarce resources, slow technological development, or, as in Japan, a cultural understanding of the definition of death that does not enable the harvesting of cadaver organs [15]. The foreign national might well prefer not to be a free rider, she might prefer to have been born in a country which had its own transplant program, and she might have supported such a program enthusiastically, but the country of our birth is something we do not choose.
THE CONCEPT OF MEMBERSHIP The free rider argument should not be used to exclude foreign nationals from receiving organs, because, as I will show, it is based on some unexamined assumptions about group membership. The classic free rider argument focuses on an individual who makes a choice, for example whether to help with the flower garden. The free rider argument in the context of organ transplants, however, focuses on groups rather than individuals, without making a logical argument for how the group is defined. Arguments against sharing organs with foreign nationals are based on the claim that they are not part of the 'giving community'. The eight dissenters to the Task Force policy of allowing foreign residents to receive up to ten per cent of kidneys, expressed their objections as follows: It is a sad fact that as long as a shortage of organs continues, some individuals in need must be denied a transplant. Under these circumstances members of the giving community (both American citizens and aliens living in the United States) have a right to expect that their medical needs will be met and that patient selection decisions will not be made to their detriment.7 Because the argument depends so strongly on the notion of the 'giving community', we need to ask why it is defined as all American citizens and resident aliens, rather than in some other fashion. As Michael Walzer points out, "The primary good that we distribute to one another is membership in some human community. And what we do with regard to membership structures all our other distributive choices" ([17], p. 31; see also [18]). By choosing geography as the limiting criterion, Prottas et al. include some and exclude others without explaining why this is an appropriate choice of boundaries. The answer that leaps to mind is that citizens and residents pay taxes, according to a formula worked out through the democratic process; these taxes form a significant part of the fiscal support of the research and implementation of the transplant process. (It is worth noting that, except for kidney transplants, public funding is often not sufficient, and hopeful recipients have often had to raise tens of
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thousands of dollars through their towns, church groups, media appeals, and so on. It is not clear why funds raised in this way in the U.S. should have a different status from funds raised in a small town in Greece to send someone to the U.S. for treatment.) But the tax argument does not work, because it is agreed by everyone in this debate that foreign nationals must pay their own way. Money, therefore, is not the criterion of exclusion, because money is something the foreign national can bring with her. The real criterion is the organs themselves. Americans, it is argued, have been donating their organs in acts of generosity and self-sacrifice. "Only the willingness of family members to put aside their own grief can result in the organ retrieval. Every organ transplant starts in tragedy and kindness" ([16], p. 23). But does American residence automatically define an individual as part of the giving community? A 1985 Gallup poll discovered that seventy-five per cent of Americans declared themselves willing to donate their organs, but only seventeen per cent had actually completed donor cards [19]. 8 In other words, even among those Americans without religious or other objections, most people are too indifferent, or too reluctant to confront the thought of their deaths, to take a few minutes to sign their names. Given the easy opportunity (which they can revoke at will) to declare themselves willing, they decline. Why are they members of Prottas' 'giving community', while someone from Japan, with no opportunity to give, is excluded? Since Prottas' definition fails, what unit of society in America could function as the logical equivalent of the individual free rider? The individual transplant candidate herself might be a defensible choice, at least insofar as the person had embraced or rejected the opportunity actively to join the giving community, for example by being a blood or plasma donor, signing a donor card or working as a blood bank volunteer. One could formalize this concept by creating an official 'pool' of individuals who were willing to donate their organs if the occasion should arise, and who therefore were given priority for organs if they were in need. The concept has gut appeal but troubling questions remain: What is the moral status of the young child in need of an organ, whose parents are opposed to donation for religious reasons? How do we compare the moral claim of a young, healthy individual who wishes to donate, with the claim of an older person whose willingness to donate is moot? Would this be a pool for persons with some expectations that their organs would actually be used, or a pool for those who are theoretically willing to donate? It seems unfair to give lower priority to the older person simply because her organs are not useful. If we were to adopt the idea of a pool, either in reality or as a thought experiment, the young American who refused to participate would clearly have low priority, but where would the foreign recipient fit in? If a Turkish woman of 30 has arrived in
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the States seeking a heart transplant, her joining the pool now has only symbolic value, since she will be taking her healthy organs back to Turkey with her (perhaps she could agree to donate the rest of her organs should the transplanted heart fail her while she was still in the U.S.). In this way she is somewhat like the older American who says 'I would if I could but I can't', a claim we simply have to take on faith. If we balk at making the individual the appropriate unit, perhaps the family is the proper candidate. It used to be common in hospitals for patients to be charged for each unit of blood they used, but those charges were 'forgiven' for each unit donated by friends or family in their name. Paul Ramsey suggested something like this when he said that "families that shared in premortem giving of organs could share in freely receiving if one of them needs transplant therapy" ([21], p. 123). This idea is appealing, especially if it motivates people to donate. But I doubt that we would want to carry it to its logical conclusion. Imagine a young adult in need of an organ transplant, who was brought up in a religion which objects to donation and who has only recently changed her beliefs. Her friends and family, all adherents to the tradition, have refused to donate, perhaps even preached against it. She has no 'credits' built up in her 'giving' bank. Although there might be some cynical snickers about 'Christian Scientists with appendicitis', would anyone seriously argue that she ought to be disqualified as a transplant candidate? On the contrary, I think most commentators would be quick to point out that one cannot choose one's family, and that one ought not to be penalized for things over which one has no control. A more difficult version of this question is posed if we contemplate people whose religious beliefs allow them to receive but not to donate organs. (Ironically, Saudis, who represent such a large proportion of foreign recipients of American organs, are in this category ([22], p. 197).) Should an American citizen be refused an organ because neither he nor his coreligionists is willing to donate? At first glance, this might appear 'fair', but why should one person's religious objection to organ donation preclude her from receiving one, when another person's lazy indifference to signing a donor card is not taken into account? In fact, there is little or no logical relation between the idea of the 'giving community' and the reality of American residency or citizenship. Among the majority of Americans who approve of donation in principle, there is no reason to believe that actual recipients or their families were any more likely to have taken active steps toward supporting the transplant enterprise than the average American. People are assigned to places on the waiting list, there to await their fate, without regard to their status as 'givers'. The only argument in favor of identifying the giving unit with American residency is that it is non-intrusive (a
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matter of public record) and conceptually simple, a 'bright line rule'. But the argument of convenience is not powerful enough to be persuasive in a life-anddeath context.
CONCLUSION One question I have not raised here is the extent to which the United States should influence or at least respond to allocation choices made in other countries. Does it make a difference if another country lacks a transplant program because of its small size (New Zealand), religious beliefs (Japan), or general lack of health care entitlements? How should we respond to a candidate from a country with a more equal health care distribution than our own, which has chosen to support preventive care for the many over expensive procedures for the few (Great Britain) [23]? These are important issues which must be deferred to another essay. I shall discuss only very briefly the two remaining arguments for excluding foreign nationals. The first is economic. It is undoubtedly true that every time a kidney is given to a foreign national instead of a U.S. recipient, the taxpayers bear the cost. 9 This is a serious concern, especially in light of our rising health care costs. I do not think it can be dispositive, however, as long as we shoulder heavy expenditures for other recipients beyond our shores, in foreign aid, educational exchange programs, and so on. 1° As John Kilner has pointed out, we have not waited until poverty in the United States has been eliminated to give foreign economic aid ([25], p. 49). The second argument is the fear that Americans will perceive the allocation system as unfair, and the whole system of donation, which is based on generosity and good will, would founder. The evidence for this is ambiguous at best. Where public resentment does exist, it is often based on the belief that foreign nationals have been given preference, or have 'bought' their way to the top of the list, for example in the following report in The New York Times: After working for two hours to repair a damaged kidney from an automobile crash victim, doctors [in Pittsburgh] last month implanted the organ into the wife of a senior advisor to the King of Saudi Arabia. When the organ failed after 18 hours inside her body, doctors at Presbyterian University Hospital here replaced it with the 26-year-old donor's second kidney, again bypassing Americans who had been waiting longer for the life-enhancing operation [26]. Although it seems obvious that some foreigners have made large financial contributions to smooth the way for needed organs, it is also true that because foreign nationals are less likely to be highly sensitized they are often easier to match, and for that reason tend to spend less time on the waiting list; one figure
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given is a mean o f forty-one weeks for Medicare recipients, against a mean o f sixteen weeks for tbreign nationals ([8], p. 9). There are anecdotal reports o f the American public pulling away from donation because o f indignation over foreign patients. However, a poll commissioned by U N O S in 1987 discovered that more than half the respondents thought that recipients should be selected on the basis o f need; one third felt that U.S. citizens should be treated first ([2], p. 12-13). Only twenty-two per cent were willing to deny organs on the basis o f national origin, and that group was selective about w h i c h countries were disfavored. 11 With these two arguments unpersuasive on their own, the case for exclusion rests primarily on a notion o f group membership which categorizes the foreign national as a free rider. As I have shown, this is not a defensible position. Therefore the quota system is the most ethical response to a difficult issue. By providing some (admittedly arbitrary) number of transplants to foreign nationals, the quota system expresses compassion, promotes international good will and acknowledges the role o f international subjects and researchers in allowing us to reach our current level o f expertise. A t the same time, having some quota, rather than open access, addresses the concerns mentioned above. Although experience to date suggests that it is unlikely that American transplant centers would be inundated with foreign patients even in the absence o f a quota, an official quota is helpful in reassuring the American public that citizens are not being squeezed out. 12 Acknowledgements - The author is grateful to James C. Childress for his generous help
with resources for this essay, and to Ronald M. Green and various anonymous reviewers for helpful comments on earlier drafts.
NOTES 1 "A non-resident alien or foreign national is def'med as an individual granted permission by the United States Immigration and Naturalization Service (USINS) to enter the United States on a temporary basis as a non-immigrant alien whether that be for purposes of tourism, business, education, medical care, or temporary employment, or an individual who has entered the United States without the knowledge or permission of the USINS (usually referred to as an illegal alien) ... A domestic, American patient or resident alien is defined as an individual who is either an American citizen or is an immigrant alien granted permission ... to take up permanent residence" ([2], p. 7). For organ-sharing purposes, Canada and the United States have a reciprocal arrangement. 2 A 1987 poll reported that, while seventy-eight per cent of the population is unwilling to deny people a transplant because of their country of origin, among those who would make it a determining factor some nationalities reap more disfavor than others. Twentytwo per cent of respondents said they would deny transplants to people from Iran, sixteen per cent would deny them to people from Cuba and the Soviet Union, and nine per cent to people from Mexico and W. Germany [6]. Obviously, the dissolution of the Soviet Urfion and the recent war in the Persian Gulf would spark different results in 1992.
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3 See Baxter C, Mitchell G. Statement of exception. In: [8], pp. 137-138. 4 UNOS is a non-profit corporation organized to promote organ procurement and transplantation on a national scale, and functions as the Organ Procurement and Transplantation Network for the U.S. (OPTN). 5 For an interesting discussion on the distinction between 'accepting' and 'receiving' benefits, the former being more active than the latter, see ([13], p. 129). 6 This parable was suggested by a somewhat different example in [14]. 7 See [8], p. 2. 8 A poll commissioned by UNOS in 1987 came up with different statistics: fifty per cent were willing to donate their own organs, and sixty-three per cent were willing to donate relatives' organs, but only twenty-three per cent had signed a donor card ([2], p. 12). See also [20]. 9 DHHS estimated that 500 additional Medicare beneficiaries would have received kidney transplants in 1987, if foreign nationals had been excluded from consideration. Because transplants are cheaper than dialysis, the Medicare cost savings are estimated to be $37.5 million over five years ([24], p. 14). 10 An entirely different issue is that of stewardship. Organs transplanted to recipients from third-world countries such as Turkey are often lost to follow-up, and it is impossible to b e sanguine about their outcome. Post-transplant care requires very sophisticated support, e.g. organ biopsy to monitor for possible rejection. It is unethical to waste organs by giving them where they would not have a good chance for survival. u Cf. note 2. 12 In some context, a 10 % lid might represent a significant shift in the patient population. For example, in Washington D.C. in 1982 and 1983, 25 of the 125 cadaver kidneys transplanted went to foreigners ([26], p. 1). This is particularly disturbing because D.C. has the highest incidence of renal disease in the United States ([27], p. 36).
REFERENCES 1. Kolata G. Organ shortage clouds new transplant era. Science 1983;221:32-3. 2. The National Organ Procurement and Transplantation Network. UNOS Policies
Regarding Transplantation of Foreign Nationals and Exportation and Importation of Organs. Richmond, VA: United Network for Organ Sharing, 1988. 3. Anonymous. Favoritism shrouds presby transplants. The Pittsburgh Press 1985 May 12. 4. Anonymous. Kidney patients' families protest favoritism in transplant choices. The Pittsburgh Press 1985 May 14. 5. Anonymous. Organ-giving policy gets scrutiny. The Pittsburgh Press 1985 May 14. 6. Evans R, Manninen DL. U.S. public opinion concerning the procurement and distribution of donor organs. Transplant Proc 1982;20:781-5. 7. Williams GM, Ferree D, Bollinger RR, LeFor WM. Reasons why kidneys removed for transplantation are not transplanted in the United States. Transplantation 1984;38:691-4. 8. U.S. Department of Health and Human Services. Organ Transplantation: Issues and
Recommendations
(Report of the Task Force on Organ Transplantation).
Washington, DC: US Government Printing Office, 1986. 9. U.S. Department of Health and Human Services, Office of the Inspector General. The Access of Foreign Nationals to U.S. Cadaver Organs. Washington, DC: US Government Printing Office, 1986. 10. Prottas JM. Nonresident aliens and access to organ transplants. Transplant Proc 1989;21:3426-9. 11. The National Organ Procurement and Transplantation Network. Final Statement of
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19. 20. 21. 22. 23. 24. 25. 26. 27.
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Policy: UNOS Policy Regarding Utilization of the Point System for Cadaveric Kidney Allocation. Richmond, VA: United Network for Organ Sharing, 1989. Cleveland Clinic Foundation Ethics Committee. Draft Document on Transplantation of Non-Immigrant Aliens. Cleveland, OH: Cleveland Clinic Foundation Ethics Committee, 1989. Simmons JA. Moral Principles and Political Obligations. Princeton, NJ: Princeton University Press, 1979. Nozick R. Anarchy, State and Utopia, New York: Basic Books, Inc, 1974. Kajikawa K. Japan: a new field emerges. Hastings Cent Rep 1989;19(Special Suppl):29-30. Prottas JM. In organ transplants, Americans first? Hastings Cent Rep 1986; 16:23--4. Walzer M. Spheres of Justice. New York: Basic Books, Inc, 1983. Nickel J. Should undocumented aliens be entitled to health care? Hastings Cent Rep 1986; 16:19-23. Silver T. The case for a post-mortem organ draft and a proposed model organ draft act. Boston University Law Review 1988;68:681-728. Prottas JM, Batten HL. The willingness to give: the public and the supply of transplantable organs. J. Health Polit Policy Law 1991; 16(Spring): 121-34. Ramsey P. The Patient as Person. New Haven, CT: Yale University Press, 1970. May WF. The Patient's Ordeal. Bloomington, IN: Indiana University Press, 1991. Schwartz R. Grubb A. Why Britain can't afford informed consent. Hastings Cent Rep 1985;15:19-25. Evans R. Public perception and the realities of organ transplantation. Michigan Hospitals 1987;23:13-18. Kilner J. Who Lives? Who Dies? Ethical Criteria in Patient Selection. New Haven, CT: Yale University Press, 1990. Gruson L. Some doctors move to bar transplants to foreign patients. The New York Times t985; Aug 10:1 (col 4). Callender C. Organ donation in the black population: where do we go from here? Transportat Proc 1987; 19:36--40.
DENA S. DAVIS
Cleveland-Marshall College of Law, 1801 Euclid Avenue, Cleveland, OH 44115, USA
ABSTRACT. There is strong sentiment for a policy which would exclude foreigners from access to organs from American cadaver donors. One common argument is that foreigners are 'free riders'; since they are not members of the community which gives organs, it would be unfair to allow them to receive such a scarce resource. This essay examines the philosophical basis for the free rider argument, and compares that with the empirical data about organ donation in the U.S. The free rider argument ought not to be used to exclude foreign nationals because it is based on fallacious assumptions about group membership, and how the 'giving community' is defined. Polls show that even among the seventy-five per cent of Americans who support organ donation, only seventeen per cent had taken the small step of filling out donor cards. Therefore, it goes against logic to define the giving community as coextensive with American residency, while excluding foreigners who might well have become donors had they lived in countries which provided that option.
Key words: free rider argument, foreign nationals, organ allocation
INTRODUCTION Should foreign nationals in need of organ transplants be eligible to receive organs from American cadaver donors? This is currently an issue of much controversy, with important arguments on all sides. T h e r e are three major arguments against allocating some American organs to foreign nationals. First, when organs, especially kidneys, are given to foreign nationals, the taxpayers' burden increases as U.S. residents spend longer periods on dialysis. Second, it is feared that the general public will perceive organ use by foreigners as unfair, which will cause a decline in giving. Third, it is argued that since foreigners are not members of the community which gives organs, it would be unfair to allow them to receive such a scarce resource. This essay examines the third argument, as a variation on the philosophical problem o f the involuntary free rider. I conclude that the idea of the 'giving community' falls apart under scrutiny, and cannot be used to argue for the exclusion of foreigners as organ transplant candidates. The facts of the issue are simply stated. Despite the increased success of Theoretical Medicine 13: 337-347, 1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.
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transplants using cadaveric organs, many Americans who are transplant candidates die because too few organs are available [t]. Meanwhile, people from countries where transplantation is not being done come to the U.S. to be treated, and if they are to receive transplants at all, it must be from American donors.1 At least in theory, every organ given to a foreign national is one organ fewer for Americans who are dying for lack of adequate supply. There is no reciprocity because Americans do not go elsewhere in the world to receive transplants. This lop-sided situation attracted some sporadic media attention, fueled by reports that some foreign patients were 'jumping the line' [3-5], and perhaps also by the fact that those foreign nationals who do seek transplants in the U.S. come from parts of the world which many Americans view unsympathetically. At the Cleveland Clinic, for example, foreign patients in need of organs are most likely to come from Saudi Arabia or Turkey. 2
THE CONTROVERSY Theoretically, there exist five possible policy responses to this issue. Three of these are almost universally rejected. All commentators condemn the idea of giving foreign recipients priority for available organs, although there is strong suggestion that this has sometimes happened in the past (due to compassion for their circumstances while waiting in a foreign country, or because they had enough money to 'buy their way' to the top of the list). No commentator supports a completely open system in which foreign and American candidates are given equal access to available organs, subject only to the rankings imposed by medical criteria. On the other side, there is no support for a policy in which foreign nationals could never be transplanted; in light of the fact that cadaver organs do sometimes go begging in this country, it would be wasteful not at least to allow foreign nationals to receive organs that have not found a suitable American recipient [7]. The two policies which are supported by significant numbers of commentators are the 'two list' policy and the 'quota' policy. If the two list policy were adopted, foreign nationals would be eligible to receive organs only if there were no suitable recipients among American residents. In effect, there would be a waiting list of Americans and a second waiting list of foreign nationals. Only if no one on the first list were suitable would the second list be considered. This policy is favored by a substantial minority of National Task Force Members, 3 by the Task Force itself for livers and hearts [8], the Department of Health and Human Services as stated in its 1986 report [9], and arguably by Congress (as expressed in a Conference Committee report) [10].
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The 'quota' policy would limit the number of foreign nationals on any center's waiting list to no more than ten per cent. This policy, which is currently the shared understanding among transplant centers, is supported by the United Network for Organ Sharing (UNOS) [11]. 4 The American Society of Transplant Surgeons has recommended a five per cent quota ([12], p. 10). (In fact, UNOS' policy is somewhat ambiguous. Section 6.4 states a ten per cent figure, but makes reference to the National Task Force document, in which the ten per cent recommendation is for renal transplants only with a policy of virtual exclusion for other solid organs. This seems to leave a significant area in which individual centers can interpret the policy for themselves as long as they do not go over the ten per cent limit for any organ ([12], p. 10).)
THE PROBLEM OF THE INVOLUNTARY FREE RIDER A free rider is someone who wants something for nothing, who wants to avail herself of a benefit which exists only because others have paid for it. Most systems have enough room at the margin that an occasional free rider does not bring the entire enterprise toppling down. For example, a person who sneaks onto a bus without paying is exploiting the fact that most of the passengers have paid, which is what funds the bus in the first place. Absent some mitigating circumstances, we say this person is acting unjustly. Not only is she not bearing the same burden as the other passengers, but over time such behavior drives the costs of the system up, so that other passengers pay even more. Assuming our passenger is able to pay, this seems like the classic example of unjustified free rider b e h a v i o r - pure stealing. The passenger's behavior is voluntary on both sides: she chooses the benefit of the bus ride, and she chooses not to pay for it. But other examples become more ethically complicated, exhibiting a mix of voluntary and involuntary factors. Consider families who choose not to vaccinate their children. They may refuse for religious reasons, or because their beliefs about health and the natural workings of the immune system convince them that children are healthier left unvaccinated. Whatever the motivation, this works out to be good strategic behavior; vaccination does have its risks and burdens, and because the vast majority of Americans are vaccinated, the likelihood that the unvaccinated child will be exposed to the disease is small. In the case of religious objectors, who would not vaccinate whether or not the world followed suit, we clearly have a different moral situation from that of the bus rider;, the Christian Scientist chooses not to pay the price, but is a passive recipient of the benefit accruing to her from the fact that most Americans do vaccinate. In families who follow 'natural' healing in some instances and avail themselves of standard medical care in others, the refusal to
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vaccinate (often for only some diseases) is more ethically suspect. One senses that they are, consciously or otherwise, relying on the fact that others do vaccinate, and that they would vaccinate their own children in the face of a true epidemic. We have moved back to a position closer to that of the bus rider: a choice not to vaccinate, and a choice which is possible only because other people do. Because the interests of the families in autonomy and freedom of religion are great, and because society can tolerate a small minority of unvaccinated people without great danger, the U.S. has allowed for an official population of free riders, by means of the religious exemption. When philosophers discuss involuntary free riders they tend to concentrate on the case of the person who chooses not to pay, but who is the involuntary recipient of an unlooked for benefit. 5 Imagine a group of homeowners who live in a square surrounding a weed-choked, vacant lot. 6 A few energetic yuppies in the group convince the others that it would be worthwhile to contribute some money and elbow grease to clean up the lot, repair the fence, and plant flowers. This would heighten the homeowners' aesthetic enjoyment of their homes, as well as increasing the resale value of their property. But one curmudgeon holds out. Although he has as much time and energy as his neighbors, he does not care about aesthetics and plans never to sell his house. In one scenario, our curmudgeon likes flowers as well as the next person, but simply chooses to put his time and energy into other goods which he values more. In that case, he truly does benefit from his neighbors' sacrifice, unless he covers his eyes and holds his nose each time he passes the garden. In the other scenario, he is like Oscar the Grouch and prefers the weed-ridden lot, or at least is indifferent. If his neighbors go ahead without him, he becomes an involuntary free rider: through no choice of his own, he is the recipient of benefits for which he did not pay his share. (Of course, his free rider status is imposed upon him only in a qualified sense; should he find it ethically abhorrent to be put in that position, he could choose to contribute his share even though he does not want the benefits - "so called benefits', from his point of view.) This is an important philosophical problem because it pits against each other two ethical norms: fairness and liberty. Fairness decrees that 'you get what you pay for', whereas liberty requires that, just because most of your neighbors like flowers is no reason for them to shanghai your time and money against your will. The principle of fairness would argue that those who did not join the cooperative venture cannot expect to attach the benefits; but in the case of our curmudgeon, there is no way to deny him the advantages of the flower garden. The situation of foreign nationals in need of organs is the exact reverse of the problem of the grouchy curmudgeon. The curmudgeon chooses not to contribute, but has the benefit thrust upon him. The foreign national wants the benefit, i.e. the donated organ, but through no choice of her own is unable to
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'pay her share'. That is to say, through no choice of hers, she resides in a country which does not have a transplant program. This lack may be due to scarce resources, slow technological development, or, as in Japan, a cultural understanding of the definition of death that does not enable the harvesting of cadaver organs [15]. The foreign national might well prefer not to be a free rider, she might prefer to have been born in a country which had its own transplant program, and she might have supported such a program enthusiastically, but the country of our birth is something we do not choose.
THE CONCEPT OF MEMBERSHIP The free rider argument should not be used to exclude foreign nationals from receiving organs, because, as I will show, it is based on some unexamined assumptions about group membership. The classic free rider argument focuses on an individual who makes a choice, for example whether to help with the flower garden. The free rider argument in the context of organ transplants, however, focuses on groups rather than individuals, without making a logical argument for how the group is defined. Arguments against sharing organs with foreign nationals are based on the claim that they are not part of the 'giving community'. The eight dissenters to the Task Force policy of allowing foreign residents to receive up to ten per cent of kidneys, expressed their objections as follows: It is a sad fact that as long as a shortage of organs continues, some individuals in need must be denied a transplant. Under these circumstances members of the giving community (both American citizens and aliens living in the United States) have a right to expect that their medical needs will be met and that patient selection decisions will not be made to their detriment.7 Because the argument depends so strongly on the notion of the 'giving community', we need to ask why it is defined as all American citizens and resident aliens, rather than in some other fashion. As Michael Walzer points out, "The primary good that we distribute to one another is membership in some human community. And what we do with regard to membership structures all our other distributive choices" ([17], p. 31; see also [18]). By choosing geography as the limiting criterion, Prottas et al. include some and exclude others without explaining why this is an appropriate choice of boundaries. The answer that leaps to mind is that citizens and residents pay taxes, according to a formula worked out through the democratic process; these taxes form a significant part of the fiscal support of the research and implementation of the transplant process. (It is worth noting that, except for kidney transplants, public funding is often not sufficient, and hopeful recipients have often had to raise tens of
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thousands of dollars through their towns, church groups, media appeals, and so on. It is not clear why funds raised in this way in the U.S. should have a different status from funds raised in a small town in Greece to send someone to the U.S. for treatment.) But the tax argument does not work, because it is agreed by everyone in this debate that foreign nationals must pay their own way. Money, therefore, is not the criterion of exclusion, because money is something the foreign national can bring with her. The real criterion is the organs themselves. Americans, it is argued, have been donating their organs in acts of generosity and self-sacrifice. "Only the willingness of family members to put aside their own grief can result in the organ retrieval. Every organ transplant starts in tragedy and kindness" ([16], p. 23). But does American residence automatically define an individual as part of the giving community? A 1985 Gallup poll discovered that seventy-five per cent of Americans declared themselves willing to donate their organs, but only seventeen per cent had actually completed donor cards [19]. 8 In other words, even among those Americans without religious or other objections, most people are too indifferent, or too reluctant to confront the thought of their deaths, to take a few minutes to sign their names. Given the easy opportunity (which they can revoke at will) to declare themselves willing, they decline. Why are they members of Prottas' 'giving community', while someone from Japan, with no opportunity to give, is excluded? Since Prottas' definition fails, what unit of society in America could function as the logical equivalent of the individual free rider? The individual transplant candidate herself might be a defensible choice, at least insofar as the person had embraced or rejected the opportunity actively to join the giving community, for example by being a blood or plasma donor, signing a donor card or working as a blood bank volunteer. One could formalize this concept by creating an official 'pool' of individuals who were willing to donate their organs if the occasion should arise, and who therefore were given priority for organs if they were in need. The concept has gut appeal but troubling questions remain: What is the moral status of the young child in need of an organ, whose parents are opposed to donation for religious reasons? How do we compare the moral claim of a young, healthy individual who wishes to donate, with the claim of an older person whose willingness to donate is moot? Would this be a pool for persons with some expectations that their organs would actually be used, or a pool for those who are theoretically willing to donate? It seems unfair to give lower priority to the older person simply because her organs are not useful. If we were to adopt the idea of a pool, either in reality or as a thought experiment, the young American who refused to participate would clearly have low priority, but where would the foreign recipient fit in? If a Turkish woman of 30 has arrived in
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the States seeking a heart transplant, her joining the pool now has only symbolic value, since she will be taking her healthy organs back to Turkey with her (perhaps she could agree to donate the rest of her organs should the transplanted heart fail her while she was still in the U.S.). In this way she is somewhat like the older American who says 'I would if I could but I can't', a claim we simply have to take on faith. If we balk at making the individual the appropriate unit, perhaps the family is the proper candidate. It used to be common in hospitals for patients to be charged for each unit of blood they used, but those charges were 'forgiven' for each unit donated by friends or family in their name. Paul Ramsey suggested something like this when he said that "families that shared in premortem giving of organs could share in freely receiving if one of them needs transplant therapy" ([21], p. 123). This idea is appealing, especially if it motivates people to donate. But I doubt that we would want to carry it to its logical conclusion. Imagine a young adult in need of an organ transplant, who was brought up in a religion which objects to donation and who has only recently changed her beliefs. Her friends and family, all adherents to the tradition, have refused to donate, perhaps even preached against it. She has no 'credits' built up in her 'giving' bank. Although there might be some cynical snickers about 'Christian Scientists with appendicitis', would anyone seriously argue that she ought to be disqualified as a transplant candidate? On the contrary, I think most commentators would be quick to point out that one cannot choose one's family, and that one ought not to be penalized for things over which one has no control. A more difficult version of this question is posed if we contemplate people whose religious beliefs allow them to receive but not to donate organs. (Ironically, Saudis, who represent such a large proportion of foreign recipients of American organs, are in this category ([22], p. 197).) Should an American citizen be refused an organ because neither he nor his coreligionists is willing to donate? At first glance, this might appear 'fair', but why should one person's religious objection to organ donation preclude her from receiving one, when another person's lazy indifference to signing a donor card is not taken into account? In fact, there is little or no logical relation between the idea of the 'giving community' and the reality of American residency or citizenship. Among the majority of Americans who approve of donation in principle, there is no reason to believe that actual recipients or their families were any more likely to have taken active steps toward supporting the transplant enterprise than the average American. People are assigned to places on the waiting list, there to await their fate, without regard to their status as 'givers'. The only argument in favor of identifying the giving unit with American residency is that it is non-intrusive (a
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matter of public record) and conceptually simple, a 'bright line rule'. But the argument of convenience is not powerful enough to be persuasive in a life-anddeath context.
CONCLUSION One question I have not raised here is the extent to which the United States should influence or at least respond to allocation choices made in other countries. Does it make a difference if another country lacks a transplant program because of its small size (New Zealand), religious beliefs (Japan), or general lack of health care entitlements? How should we respond to a candidate from a country with a more equal health care distribution than our own, which has chosen to support preventive care for the many over expensive procedures for the few (Great Britain) [23]? These are important issues which must be deferred to another essay. I shall discuss only very briefly the two remaining arguments for excluding foreign nationals. The first is economic. It is undoubtedly true that every time a kidney is given to a foreign national instead of a U.S. recipient, the taxpayers bear the cost. 9 This is a serious concern, especially in light of our rising health care costs. I do not think it can be dispositive, however, as long as we shoulder heavy expenditures for other recipients beyond our shores, in foreign aid, educational exchange programs, and so on. 1° As John Kilner has pointed out, we have not waited until poverty in the United States has been eliminated to give foreign economic aid ([25], p. 49). The second argument is the fear that Americans will perceive the allocation system as unfair, and the whole system of donation, which is based on generosity and good will, would founder. The evidence for this is ambiguous at best. Where public resentment does exist, it is often based on the belief that foreign nationals have been given preference, or have 'bought' their way to the top of the list, for example in the following report in The New York Times: After working for two hours to repair a damaged kidney from an automobile crash victim, doctors [in Pittsburgh] last month implanted the organ into the wife of a senior advisor to the King of Saudi Arabia. When the organ failed after 18 hours inside her body, doctors at Presbyterian University Hospital here replaced it with the 26-year-old donor's second kidney, again bypassing Americans who had been waiting longer for the life-enhancing operation [26]. Although it seems obvious that some foreigners have made large financial contributions to smooth the way for needed organs, it is also true that because foreign nationals are less likely to be highly sensitized they are often easier to match, and for that reason tend to spend less time on the waiting list; one figure
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given is a mean o f forty-one weeks for Medicare recipients, against a mean o f sixteen weeks for tbreign nationals ([8], p. 9). There are anecdotal reports o f the American public pulling away from donation because o f indignation over foreign patients. However, a poll commissioned by U N O S in 1987 discovered that more than half the respondents thought that recipients should be selected on the basis o f need; one third felt that U.S. citizens should be treated first ([2], p. 12-13). Only twenty-two per cent were willing to deny organs on the basis o f national origin, and that group was selective about w h i c h countries were disfavored. 11 With these two arguments unpersuasive on their own, the case for exclusion rests primarily on a notion o f group membership which categorizes the foreign national as a free rider. As I have shown, this is not a defensible position. Therefore the quota system is the most ethical response to a difficult issue. By providing some (admittedly arbitrary) number of transplants to foreign nationals, the quota system expresses compassion, promotes international good will and acknowledges the role o f international subjects and researchers in allowing us to reach our current level o f expertise. A t the same time, having some quota, rather than open access, addresses the concerns mentioned above. Although experience to date suggests that it is unlikely that American transplant centers would be inundated with foreign patients even in the absence o f a quota, an official quota is helpful in reassuring the American public that citizens are not being squeezed out. 12 Acknowledgements - The author is grateful to James C. Childress for his generous help
with resources for this essay, and to Ronald M. Green and various anonymous reviewers for helpful comments on earlier drafts.
NOTES 1 "A non-resident alien or foreign national is def'med as an individual granted permission by the United States Immigration and Naturalization Service (USINS) to enter the United States on a temporary basis as a non-immigrant alien whether that be for purposes of tourism, business, education, medical care, or temporary employment, or an individual who has entered the United States without the knowledge or permission of the USINS (usually referred to as an illegal alien) ... A domestic, American patient or resident alien is defined as an individual who is either an American citizen or is an immigrant alien granted permission ... to take up permanent residence" ([2], p. 7). For organ-sharing purposes, Canada and the United States have a reciprocal arrangement. 2 A 1987 poll reported that, while seventy-eight per cent of the population is unwilling to deny people a transplant because of their country of origin, among those who would make it a determining factor some nationalities reap more disfavor than others. Twentytwo per cent of respondents said they would deny transplants to people from Iran, sixteen per cent would deny them to people from Cuba and the Soviet Union, and nine per cent to people from Mexico and W. Germany [6]. Obviously, the dissolution of the Soviet Urfion and the recent war in the Persian Gulf would spark different results in 1992.
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3 See Baxter C, Mitchell G. Statement of exception. In: [8], pp. 137-138. 4 UNOS is a non-profit corporation organized to promote organ procurement and transplantation on a national scale, and functions as the Organ Procurement and Transplantation Network for the U.S. (OPTN). 5 For an interesting discussion on the distinction between 'accepting' and 'receiving' benefits, the former being more active than the latter, see ([13], p. 129). 6 This parable was suggested by a somewhat different example in [14]. 7 See [8], p. 2. 8 A poll commissioned by UNOS in 1987 came up with different statistics: fifty per cent were willing to donate their own organs, and sixty-three per cent were willing to donate relatives' organs, but only twenty-three per cent had signed a donor card ([2], p. 12). See also [20]. 9 DHHS estimated that 500 additional Medicare beneficiaries would have received kidney transplants in 1987, if foreign nationals had been excluded from consideration. Because transplants are cheaper than dialysis, the Medicare cost savings are estimated to be $37.5 million over five years ([24], p. 14). 10 An entirely different issue is that of stewardship. Organs transplanted to recipients from third-world countries such as Turkey are often lost to follow-up, and it is impossible to b e sanguine about their outcome. Post-transplant care requires very sophisticated support, e.g. organ biopsy to monitor for possible rejection. It is unethical to waste organs by giving them where they would not have a good chance for survival. u Cf. note 2. 12 In some context, a 10 % lid might represent a significant shift in the patient population. For example, in Washington D.C. in 1982 and 1983, 25 of the 125 cadaver kidneys transplanted went to foreigners ([26], p. 1). This is particularly disturbing because D.C. has the highest incidence of renal disease in the United States ([27], p. 36).
REFERENCES 1. Kolata G. Organ shortage clouds new transplant era. Science 1983;221:32-3. 2. The National Organ Procurement and Transplantation Network. UNOS Policies
Regarding Transplantation of Foreign Nationals and Exportation and Importation of Organs. Richmond, VA: United Network for Organ Sharing, 1988. 3. Anonymous. Favoritism shrouds presby transplants. The Pittsburgh Press 1985 May 12. 4. Anonymous. Kidney patients' families protest favoritism in transplant choices. The Pittsburgh Press 1985 May 14. 5. Anonymous. Organ-giving policy gets scrutiny. The Pittsburgh Press 1985 May 14. 6. Evans R, Manninen DL. U.S. public opinion concerning the procurement and distribution of donor organs. Transplant Proc 1982;20:781-5. 7. Williams GM, Ferree D, Bollinger RR, LeFor WM. Reasons why kidneys removed for transplantation are not transplanted in the United States. Transplantation 1984;38:691-4. 8. U.S. Department of Health and Human Services. Organ Transplantation: Issues and
Recommendations
(Report of the Task Force on Organ Transplantation).
Washington, DC: US Government Printing Office, 1986. 9. U.S. Department of Health and Human Services, Office of the Inspector General. The Access of Foreign Nationals to U.S. Cadaver Organs. Washington, DC: US Government Printing Office, 1986. 10. Prottas JM. Nonresident aliens and access to organ transplants. Transplant Proc 1989;21:3426-9. 11. The National Organ Procurement and Transplantation Network. Final Statement of
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Policy: UNOS Policy Regarding Utilization of the Point System for Cadaveric Kidney Allocation. Richmond, VA: United Network for Organ Sharing, 1989. Cleveland Clinic Foundation Ethics Committee. Draft Document on Transplantation of Non-Immigrant Aliens. Cleveland, OH: Cleveland Clinic Foundation Ethics Committee, 1989. Simmons JA. Moral Principles and Political Obligations. Princeton, NJ: Princeton University Press, 1979. Nozick R. Anarchy, State and Utopia, New York: Basic Books, Inc, 1974. Kajikawa K. Japan: a new field emerges. Hastings Cent Rep 1989;19(Special Suppl):29-30. Prottas JM. In organ transplants, Americans first? Hastings Cent Rep 1986; 16:23--4. Walzer M. Spheres of Justice. New York: Basic Books, Inc, 1983. Nickel J. Should undocumented aliens be entitled to health care? Hastings Cent Rep 1986; 16:19-23. Silver T. The case for a post-mortem organ draft and a proposed model organ draft act. Boston University Law Review 1988;68:681-728. Prottas JM, Batten HL. The willingness to give: the public and the supply of transplantable organs. J. Health Polit Policy Law 1991; 16(Spring): 121-34. Ramsey P. The Patient as Person. New Haven, CT: Yale University Press, 1970. May WF. The Patient's Ordeal. Bloomington, IN: Indiana University Press, 1991. Schwartz R. Grubb A. Why Britain can't afford informed consent. Hastings Cent Rep 1985;15:19-25. Evans R. Public perception and the realities of organ transplantation. Michigan Hospitals 1987;23:13-18. Kilner J. Who Lives? Who Dies? Ethical Criteria in Patient Selection. New Haven, CT: Yale University Press, 1990. Gruson L. Some doctors move to bar transplants to foreign patients. The New York Times t985; Aug 10:1 (col 4). Callender C. Organ donation in the black population: where do we go from here? Transportat Proc 1987; 19:36--40.
