NEFROLOGIA. Vol. XIV. Suplemento 1, 1994 Rampant comercialism and "rewarded gifting": defining the acceptable* A. S. Daar Dept. of Surgery. College of Medicine Sultan Qaboos University Commerce in human kidneys obtained from living non-related donors for transplantation does exist. Although India has often been singled out, the practice is in fact more widespread and involves both developing and developed countries. Rampant commerce has been condemned almost universally, and is unacceptable to the medical profession; we have shown that the results in terms of morbidity and mortality have been poor when transplants are carried out under these circumstances and there are reports of an alarming incidence HIV Infections in such transplants (approximately 1 in 15) 2,26, 27 .There remains an area of legitimate discussion involving a number of ideas of how to increase donation through various forms of incentives. This is of specific relevance to those countries with no dialysis facilities and no cadaver donor programmes. We have probably only just reached the satge of asking the right questions about these issues. No one as yet has all the answers. What is important to remember, though, is that as transplant physicians and surgeons we have an absolute duty, first and foremost, to our patients. We must never allow ourselves to confuse our interests with theirs. This is a complex subject and space does not allow a long introduction and discussion. propose, therefore, to handle the important issues through answering the following questions: 1. Does commerce exist? 2. What are the ethical issues? 3. Is any form of payment ethically acceptable? 4. How can such a complex subject be approached? 5. What is the legal situation? 1. Commerce in kidneys from living non-related donots does exist. It is best documented in India 1,2 but apparently has taken place in Egypt, Iraq 2, some Far Eastern countries 2 the Philippines, probably in some Latin American countries, and has been well documented in a famous case in Britain 3 .By, com- merce, is meant the unsupervised buying and selling of kidneys, almost always involving middlement, brokers and agents; in this enterprise the practitioners primary purpose is to enrich themselves. The donors and recipients are the tools. A kidney from a live unrelated donor in Bombay can be bought for about US$ 3,000 (most of which usually goes to a broker) 1 2. The major ethical arguments against commerce, when enunciated by the medical profession, have on the whole been of the consequentialist type: eg. commerce will lead to exploitation of the poor by the rich, and since the patients interests are secondary, the results are going to be poor. As far back as 1971 t h e Committee on Morals and Ethics of the (International) Transplantation Society said that the sale of organs by donors, living or dead, is indefensible under any circumstances4. We have ourselves shown that these arguments can be true: The poor results, the exploitation, the lowering of standards do materialise1. The trouble with such utilitarian arguments, however, is that someone, some day, is bound to come up and show that their commercial transplant results are just as good as those of units doing cadaver-donor or living-related donor transplants. In addition, where are no readly available dialysis facilities or cadaver donation, then renal failure usually equals death and in this situation, the counter argument is that if a patient does not have a donor but can pay for a kidney to save his life then, this is justifiable, again from a utilitarian viewpoint 5,6 As often happens in these kinds of discussion, it is the premise with which the argument begins that determines the outcome: if the premises of the parties discussing the ethical issue are different, no conclusion is possible. Of course there are bases for ethical discourse other than the above teleological ones. These includes axiological and, perhaps even more so, the deontological arguments. These emphasise the inherent and intrinsic value of man, of man as an end to himself and not a means to an end, and in my opinion, it is these types of arguments which are more likely to prevail. Unfortunately however, the medical profes- 74 RAMPANT COMERCIALISM AND "REWARDED GIFTING" sion on the whole has been unprepared for such discourse. As a result, we have allowed "bioethics" to be taken over by professional ethicists and philosophers. In summary: the profession intuitively belives that commerce is wrong The guidelines of the (International) Transplantation Society forbid, on pain of explusion, any of its members from such activity7. This is the official policy of almost all transplantation organisations, and is now enshrined in guidelines of the World Health Organisation. 3. There are two layers of answers to the question "is any form of payment acceptable?" If a donor has to pay for investigations, hospital admission, professional services, and has to lose income as a result of donating, the compensation for these is allowed. This c a t e g o r y is specifically allowed in both the Transplantation Society 7 and the WHO documents 8 and is also covered in almost all other guidelines. This constitutes what I have previously termed "compensated donation" 9 lt does not constitute a real form of payment, and is in fact a removal of a disincentive to donation. The issues here essentially involve a definition of the extent of compensation, e.g. do you pay a company executive the same per day of lost earning as you would a labourer? How do you compensate an unemployed donor? etc. The second layer is what has been termed "donation with incentive" 9 The conditions are: (i) the enterprise is predicated on the best interests of the patients, (ii) the professionals are simply providing a service for which they charge an amount commensurate with the complexity of the operation, (iii) some form of incentive is given to the living donor. It should be noted here that while most of the discussion has been about nonrelated donors, the question of incentives, in fact, is relevant to the family situation toa10. It is said that in Brazil a living related donor is often given a small car: an incentive ora reward? It is in association with this second layer that the term "rewarded gifting" carne to be associated. The arguments for "gifting with reward" were first published by Patel in 1987 5 To some this was a contradiction in terms, since a gift is a gift and it need not be rewarded. To the more profound analyst, a probing of the meaning of gifts in society will lead to the realisation that gifts are exchanges, and if they are to be meaningful (e.g. to increase solidarity within a community), they entail the obligations to give, to receive (to appreciate) and to reciprocate. The great french social anthropologist Marcel Mauss, in his classical study published as «The Gift: the form and reason for exchange in archaic societies» 11 has, more than any other person, clarified this true meaning of the gifting process. Where does this leave us now? 4. A few years ago, contemplating these arguments, confused but not wanting to be paralysed, we proposed a non-judgmental, simple classification of the ethical and practica1 issues of living donor renal transplantation that meant to dissociate the issues so they could be individually discussed without confusion. This was presented at a meeting in Ottawa, organised by John Dossetor and Calvin Stiller, and caIled "Ethics, Justice and Commerce in Transplantation a global view 1 2 (published in T r a n s p l a n t a t i o n P r o c e e d i n g s , vol. 22 [no. 3], June 1990). Our classification 12 was based on the test of gifting, and is now 13 divided into 6 categories: I. Living related donation (with few exceptions this is now acceptable to the majority of the profession, who accept the minimal short term and long term risks of uninephrectomy) 14 II, Emotionally related donation (by which is meant donation to a genetically non-related recipient with whom the donor has demonstrable, enduring bonds eg. a spouse. See a detailed analysis of this issue in Daar & Sells ref. 15). III, Donation by altruistic strangers (rare, but well documented). IV. "The grey basket" category of donation. Originally this category was under the headling of "rewarded gifting"12 and was divided into (a) compensated donation and (b) donation with incentive9. However, the term "rewarded gifting" frequently gives rise to abstruse linguistic discussions and has acquired some emotional overtones and I no longer use it in this context. The "grey basket" implies (i) that this is a grey area that requires some further serious discussion and (ii) that it encompasses severa l ideas including compensated donation, donation with incentives, the interesting concept f r o m G e r m a n y o f "pain m o n e y " (Schmerzensgeid), ideas regarding "indirect altruism" and "mandatory philanthropy" 16 and the idea of A "donors' trust"17. Reddy and his colleagues from Madras in India 6,18 have eloquently discussed the reasoning behind their practice of paid organ donation and have claimed that their system has enough checks and balances as to be ethically acceptable in India. V. Rampant commercialism is distinguishable from category IV because here there is a complete contextual shift. No longer is the patient's best interest the main concern. The enterprise is undertaken purely for the benefit of the proffesionals and the middlemen, using the patient and the (often exploited) donor as the tools. This has been repeatedly condemned and at one time in the late 80's the main transplant professionals in Bombay stopped this practice. However, the main result was to push transplantation there underground, where it is practised in inadequate circumstances, as was documented and discussed by us previously1,19. 75 A. S. DAAR VI. Criminally coerced donation: by which is meant the practice of kidnapping, murder and surreptitious nephrectomy that has often appeared in newsp a p e r s but for which there is at present little conclusive evidence. The United Nations has appointed a Special Rapporteur, Prof. Vitit Muntarbhorn, to look at the issue of the sale of children around the world for various purposes (eg. prostitution, transplantation). His 1992 20 report is a powerful document that talks of these allegations, but again there is no conclusive evidence, although Prof. Muntarbhorn is very suspicious that it does occur and has advised doctors everywhere to be on the alert and to report suspicious occurrences. In summary: categories I, ll and III of the classification are acceptable to the medical profession. Categories V and VI are not acceptable. This really only leaves category IV (the "grey basket") as the area for serious ethical debate regarding kidney donation by living non-related individuals. It should be noted that all the above discussions pertain to kidney donation by living donors. The subject of commerce and incentives pertaining to cadaver kidney donation has recently been opened and extensively debated, particularly in the United States of America. Some have made strong arguments in favour of commerce in cadaver organs21 and others have even advocated a "futures market" in cadaver organs22. The subject is sensibly reviewed by Kittur et al 23 and continues to be debated. 5. The legal situation is that in many jurisdictions the buying and selling of kidneys has been made illegal. Many countries in the Americas, Europe, Eastern Mediterranean, Africa, Western Pacific and South East Asia have specific legislation on commerce in human organs, while some others have non-statutory measures and others have legislation that is pending or in preparation 24 The World Health Organisation has condemned commerce in human organs, and has recently published its Guiding Principles on Human Organ Transplantation, which were endorsed by the 44th World Health Assembly (WHA) by resolution (WHA 44.25). The role of the WHO in these developments is summarised in a recent publication8. Amongst the most recent developments in the area of banning commerce have been the discussion of the draft protocol on organ transplants by the Council of Europe (Strasboug, Sep. 2-4, 1992); adoption by the General Assembly of the Egyptian Society of Nephrology of a resolution that was effective from June 30, 1992 authorising living donor transplantation only between consanguineous relatives, issuance on March 27, 1992 in Hong Kong of a human organ transplant bill which bans commerce and establishes a transplant board to vet transplants between unrela76 ted persons (Hong Kong has reported patients who have gone to mainland China to obtain transplants from executed prisoners. This is slightly different issue -see refs. 25 & 26); the proposed insertion in 1991 of provisions in the Israeli Public Health Ordinance that would ban Commerce; and proposed amendments to the Quebec Civil Code banning the sale of human body parts. Bibliografía 1. 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