New Jersey-based John Bellochio recently filed a lawsuit against the constitutionality of the National Organ Transplant Act of 1984 (NOTA), the federal law that bans the sale of kidneys and other human organs for transplant:
A New Jersey man found it was illegal to sell his own organs after trying to do so when he ran out of money and he is now suing the federal government.
John Bellocchio filed a lawsuit in federal court in Manhattan Thursday against US Attorney General Merick Garland over the right to sell his organs, the New York Post reported for the first time.
Bellocchio attorney Matthew Haicken told the Post in a statement, “If John ever had the opportunity, he should be legally free to sell his kidney.”
“I think the current law is unconstitutional. People should have the right to do what they want with their bodies,” said Haicken.
As much as I wish, I fear the lawsuit has little or no chance of success. Under the current Supreme Court precedent, laws restricting economic transactions are subject to very little “rational basis” control. I believe that precedents should be reversed, or at least significantly revised. However, it is unlikely to happen anytime soon.
But even if the lawsuit fails, it can potentially draw attention to the tremendous harm caused by NOTA. The organ market ban literally kills thousands of Americans each year who die from not getting kidney transplants in time to save them. It also condemns many more people to years of unnecessary suffering on kidney dialysis.
I have summarized some of the questions covered in this comment that were quoted in a story published by Fox News in which I was interviewed on the subject of the lawsuit:
Many opposed to a legal market for organs argue that it would lead to the exploitation of poor people, but Ilya Somin, law professor at George Mason University and an associate scientist at the Cato Institute, said that concern was false.
“Donating a kidney is actually less risky than all sorts of other things we humans constantly allow, including poor people like lumberjacks. That is much riskier in terms of the risk of death and serious injury, but no one says,” Poor people shouldn’t be allowed to be loggers, “Somin told Fox News.
While there may be some risks, Somin argued that the benefits of a legal market for organs far outweigh the costs.
“Whatever you protest, whether it is a left or right objection or something else, you have to ask yourself: not only is there a problem, it’s a problem big enough for us to be should be ready to put thousands of deaths and many thousands more on kidney dialysis each year? “said Somin.
I also agree with Bellocchio’s attorney when he points out (in the same story) that “‘My body, my choice’ shouldn’t be just for abortion.” The legalization of organ markets is, in fact, an implication of the “my body, my choice” principle, at least as much as freedom of choice in abortion (which I am). In my view, the former is actually a simpler case than the latter, as there is nowhere near a plausible plausible argument that organ markets are somehow synonymous with murder.
I have dealt at length here and here with “exploitation of the poor” and other objections to organ markets.
Paranthhetically, it was interesting to me that the Fox reporter who interviewed me on the subject was so benevolent of the idea of organ markets, although much of Fox’s socially conservative audience is likely to object on the basis of religious or “sanctity of the body” objections. On the flip side, increasing the allowable compensation for organ donor expenses was one of the relatively few good policies of the Trump administration, as explained in this article on the liberal Vox website, which rarely raised the Trump administration on other matters praise.
The organ market problem actually extends beyond conventional party-political and ideological boundaries. Libertarians, economists from across the political spectrum and liberals are concerned about improving access to health care and turn against other leftists who fear that organ markets will lead to the exploitation of the poor. and socially conservatives concerned about protecting what they see as the sacredness of the body.
In time, I hope that more people will see the enormous life-saving and misery-reducing potential of organ markets. Even if they do not put their concerns aside entirely, they may find that such problems are not serious enough to justify the forcible transfer of many thousands of people to suffering and death.