Author Archives: krawiec@law.duke.edu

Bay Area Friends: Third Annual Kagan Lecture

Bay area readers may be interested in the upcoming Robert A. Kagan Lecture in Law and Regulation at Berkeley Law’s Center For The Study of Law And Society. The lecture is Thursday, March 16, from 3:30 – 5:15pm (see the flyer for more info) and features Lauren B. Edelman (Agnes Roddy Robb Professor Of Law And Professor Of Sociology, U.C. Berkeley), who will discuss her work on legal endogeneity. Robin Stryker (Professor, School Of Sociology, University Of Arizona) and I will provide commentary.

I’m looking forward to this. Edelman’s work has had a great influence on my own thinking and writing about the regulation of business entities, and I’m looking forward to this chance to reflect on her (and Kagan’s) impact.

Hope to see you there!

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GKE Debate in Current Issue of The American Journal of Transplantation

Figure showing the first GKE (to date)

Both Al Roth at his Market Design blog and Timothy Taylor on his blog, the Conversable Economist, have discussions today about our paper reporting the first Global Kidney Exchange (GKE) and the pushback it has received in the current issue of the American Journal of Transplantation. I’ve blogged about GKE (which Mike Rees and I previously referred to as Reverse Transplant Tourism or “RTT) before (see, e.g. here).

As Al says:

I’ve written earlier about the possibility of Global Kidney Exchange (GKE), in which foreign patient-donor pairs who cannot afford transplantation are invited to join American kidney exchange chains. The idea is that the cost of the foreign pair’s surgeries and postoperative care can be paid for by the savings that result whenever an American is transplanted (because transplantation is so much cheaper than dialysis).

The March issue of the American Journal of Transplantation  contains a report of the first foreign pair, and the chain of exchanges that included them.

Curiously, the issue also contains an editorial that is profoundly ambivalent about GKE, in a way that makes clear that the issues of repugnance that surround organ donation, and incentives, and equity, and patients and donors from developing countries, are not vanishing in the face of the benefits that GKE provides to patient-donor pairs from developing countries. (emphasis mine)

Taylor also has a nice summary of our paper:

Basically, the notion is to involve pairs of people from low-income countries–one needing a kidney, one offering to donate a kidney–in these interlocking chains of kidney donation. For those in high-income countries, the advantage is potentially a lot more compatible kidney donors. Because getting a kidney donation saves money on dialysis, it is possible to use that saved money and provide the kidney donation for free to recipients from the low-income country. The result is healthier people, and overall cost savings.

And of the accompanying editorial:

The same issue of the journal includes a short editorial called “Financial Incompatibility and Paired Kidney Exchange: Walking a Tightrope or Blazing a Trail?” by A. C. Wiseman and J. S. Gill (pp. 597-98). As they write, “there are numerous considerations that require equipoise …” They point out issues that could arise in how donors in other countries are identified, whether the benefits are equitably distributed, whether consent is freely given, how this might affect providers of transplant services in low-income countries, and more. All fair enough, and I suppose only a benighted economist could bristle against their request for “sensitivity to the ethical pitfalls.” I would only point out that while we are being sensitive to ethical pitfalls of global kidney exchange, 2-7 million people are dying every year without access to treatment for their kidney disease, and we should spare a little sensitivity for them, too. (emphasis mine)

I would go even further than Taylor or Roth. The editorial is very thoughtful and worth reading in its entirety, here. It also raises some important ethical issues that have to be considered as GKE goes forward and I am grateful to the authors for having so carefully engaged our paper. At the same time, though, the argument that GKE may be ethically problematic because the benefits are unequally distributed between the US and developing world patients is, for me, just a nonstarter (and, to be clear, I speak for myself here and not for any of my coauthors).

As Roth says:

Here’s one sentence that illustrates the power of repugnance (it suggests that maybe the Filipino pair who joined the kidney exchange were really being exploited…):

“At a societal level, American patients received a disproportionate share of the societal benefit enabled by the participation of the compatible Filipino pair in KPE, which may not be adequately remedied by the payment for transplantation and posttransplant care.”

Given the Filipino patient’s lack of access to transplantation (and possibly even dialysis – we discuss this in the paper) GKE almost certainly saved his life. To paraphrase Taylor, perhaps only a benighted lawyer could question how this life saving transaction is exploitative of a Filipino patient, just because some Americans also benefit from the trade. The Filipino patient doesn’t care whether one or one hundred Americans were transplanted because of the chain he enabled – only that he received a healthy, compatible kidney that he otherwise could not have.

Here’s our full abstract:

Kidney Exchange to Overcome Financial Barriers to Kidney Transplantation

by M. A. Rees, T. B. Dunn, C. S. Kuhr, C. L. Marsh, J. Rogers, S. E. Rees, A. Cicero, L. J. Reece, A. E. Roth, O. Ekwenna, D. E. Fumo, K. D. Krawiec, J. E. Kopke, S. Jain, M. Tan, S. R. Paloyo

American Journal of Transplantation, Volume 17, Issue 3 March 2017, Pages 782–790

Abstract: Organ shortage is the major limitation to kidney transplantation in the developed world. Conversely, millions of patients in the developing world with end-stage renal disease die because they cannot afford renal replacement therapy—even when willing living kidney donors exist. This juxtaposition between countries with funds but no available kidneys and those with available kidneys but no funds prompts us to propose an exchange program using each nation’s unique assets. Our proposal leverages the cost savings achieved through earlier transplantation over dialysis to fund the cost of kidney exchange between developed-world patient–donor pairs with immunological barriers and developing-world patient–donor pairs with financial barriers. By making developed-world health care available to impoverished patients in the developing world, we replace unethical transplant tourism with global kidney exchange—a modality equally benefitting rich and poor. We report the 1-year experience of an initial Filipino pair, whose recipient was transplanted in the United states with an American donor’s kidney at no cost to him. The Filipino donor donated to an American in the United States through a kidney exchange chain. Follow-up care and medications in the Philippines were supported by funds from the United States. We show that the logistical obstacles in this approach, although considerable, are surmountable.

And here’s the accompanying editorial:

Walking a Tightrope or Blazing a Trail?

by A. C. Wiseman, J. S. Gill

Abstract: Engaging compatible kidney donor–recipient pairs from other countries for participation in a paired kidney exchange program in the United States poses a number of ethical challenges that deserve close scrutiny. Rees et al’s article is on page 782.

Related posts:

Global Kidney Exchange (GKE) to Overcome Financial Barriers to Kidney Transplantation

Reverse Transplant Tourism

Reverse Transplant Tourism (cont.)

RTT Conclusion

Reverse Transplant Tourism Goes Live!!

More News Coverage Of Reverse Transplant Tourism

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Guinea Pigs, Colonoscopy Artists, and Prostitution: A Typical Taboo Trades Valentine’s Day

What could be more fitting for a Valentine’s Day Taboo Trades class than some readings on commodification of the body?  For today’s class I chose:

(1) Martha Nussbaum, Sex and Social Justice, Taking Money For Bodily Services, pp. 276-298

(2) Carl Elliott, Guinea-Pigging, The New Yorker

(3) Cari Romm, The Life of A Professional Guinea Pig, The Atlantic (2015)

The concept of guinea pigging is one that I’ve written about here before, in Medical Research Subjects: Guinea Pigs, Laborers, Or Altruists?  According to the Oxford English Dictionary (as discussed by Romm), the first use of the word “guinea pig” as “human subject of an experiment” was in 1913, when George Bernard Shaw decried “the … folly which sees in the child nothing more than the vivisector sees in a guinea pig: something to experiment on with a view to rearranging the world.”

As used here, guinea pigs are healthy, professional medical research subjects who make money primarily through Phase 1 clinical trials (the trials meant to assess the safety and possible side effects of medications, rather than their efficacy). As noted by Romm, “The members of this group call themselves guinea pigs, or lab rats. They also call themselves professionals.”  This notion, of course, flies in the face of the preferred ethicists’ understanding of human subjects research, which likes to conceive of subjects as motivated by altruism.  As noted by Elliott:

Of course, ethicists generally prefer that subjects take part in studies for altruistic reasons. Yet, if sponsors relied solely on altruism, studies on healthy subjects would probably come to a halt. The result is an uneasy compromise: guinea pigs are paid to test drugs, but everyone pretends that guinea-pigging is not really a job.

Kieran Healy and I make a similar point about egg donors in our forthcoming paper, Repugnance Management and Transactions in the Body (forthcoming, American Economic Review: Papers & Proceedings 2017, 107(5)). As we say there:

The fact that egg donor compensation occurs within a gift-based cultural account poses other problems as well. Payments of up to $10,000 are hard enough to square with a gift narrative, but participants managed it. Egg donation is physically risky, after all, and there was a general consensus that egg donors deserved something for their efforts. Besides, all market participants recognized that without some compensation there would be very few egg donors. But once incentives enter the picture they threaten to undermine gift framing entirely. Would fertility centers and patients compete for the most desirable egg donors? How do you square extremely large payments that vary with the donor’s beauty, intelligence, or race with the notion that payments to egg donors are mere thank-you gestures or a token in recognition of physical discomfort? (emphasis added)

So, how does Nussbaum’s chapter on prostitution fit into all this?  In some years, I opt to assign Nussbaum’s chapter together with readings on sex work, but in some ways I find it a better fit with the human guinea pigs readings because Nussbaum makes her points about prostitution by analogizing to the commodification of the body more generally. Many readers, for example, will be familiar with Nussbaum’s famous example of the “colonoscopy artist,” who “gets paid for having her colon examined with the latest instruments, in order to test out their range and capability.”

When considered in this light, the job of guinea pig and that of prostitute (like all cases of bodily commodification) share some similarities – and some differences as well. In the end, Nussbaum is skeptical of commodification critiques, concluding that:

We need to scrutinize all our social views about money making and alleged commodification with extra care, for they are likely to embed class prejudices that are unjust to working people.

 

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Gift Cards For Blood!

In a fun coincidence, this Red Cross drive, offering a $5 Amazon gift card in exchange for presenting as a blood donor came across my Facebook feed this morning.  I say it is a coincidence, because my Taboo Trades seminar was reading about precisely this issue today, in “Rewarding Altruism? A Natural Field Experiment” by Nicola Lacetera, Mario Macis, and Robert Slonim. The authors conduct a natural field experiment involving nearly 100,000 individuals on the effects of offering economic incentives for blood donations. Because cash compensation is not permitted, subjects received either a $5, $10, or $15 gift card. As is the case with the Red Cross drive featured here, anyone presenting to donate would receive the gift cards regardless of whether they donated. (Presumably, to undermine any incentive to lie about health histories in order to receive the compensation, as suggested long ago by Titmuss — who we read last week).

Lacetera, Macis, and Slomin find that providing material rewards led to a large and significant increase in the propensity to donate, and in a very standard way: the effect was increasing in the amount of the incentives. They also found that rewards led to some spatial (i.e. some subjects who would have donated at a particular center switched to a center offering a gift card) and short-term inter-temporal displacement (i.e. some subjects who would have donated later moved up the timing of their donations in order to take advantage of the reward offer). But the gift cards increased the likelihood of donation, even after accounting for these displacement effects.

Interestingly, the current drive is offering a $5 incentive, but the optimal incentive in the study, if I recall correctly, was $10 (although $15 generated more donations, it also cost more and resulted in more displacement effects).  That’s my recollection anyway.

So, give blood! And, for the moment anyway, earn money! (Oops, not money, a mere thank you gift, of course).

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Global Kidney Exchange (GKE) to Overcome Financial Barriers to Kidney Transplantation

Over at his Market Design blog, Al Roth has posted about our new article, forthcoming in the American Journal of Transplantation. From his post:

Kidney Exchange to Overcome Financial Barriers to Kidney Transplantation

by

Michael A. Rees, Ty B. Dunn, Christian S. Kuhr, Christopher L. Marsh, Jeffrey Rogers, Susan E. Rees, Alejandra Cicero, Laurie J. Reece, Alvin E. Roth, Obi Ekwenna, David E. Fumo, Kimberly D. Krawiec, Jonathan E. Kopke, Samay Jain, Miguel Tan, Siegfredo R. Paloyo

Accepted manuscript online: 7 November 2016

“This article has been accepted for publication and undergone full peer review but has not been through the copyediting, typesetting, pagination and proofreading process, which may lead to differences between this version and the Version of Record. Please cite this article as doi: 10.1111/ajt.14106”

Abstract:

Organ shortage is the major limitation to kidney transplantation in the developed world. Conversely, millions of end-stage renal disease patients in the developing world die because they cannot afford renal replacement therapy—even when willing living kidney donors exist. This juxtaposition between countries with funds but no available kidneys and those with available kidneys but no funds, prompts us to propose an exchange program utilizing each nation’s unique assets. Our proposal leverages the cost savings achieved through earlier transplantation over dialysis to fund the cost of kidney exchange between developed-world patient/donor pairs with immunological barriers and developing-world patient/donor pairs with financial barriers. By making developed-world healthcare available to impoverished patients in the developing world, we replace unethical transplant tourism with global kidney exchange—a modality equally benefitting rich and poor. We report the one-year experience of an initial Filipino pair, whose recipient was transplanted in the US with an American donor’s kidney at no cost to him. The Filipino donor donated to an American in the US through a kidney exchange chain. Follow-up care and medications in the Philippines were supported by funds from the US. We show that the logistical obstacles in this approach, although considerable, are surmountable.

*******************

And here’s that first GKE chain to date: it started with an American non-directed donor (blood type A) donating to the Filipino patient, and this chart shows the first 11 transplants that resulted.

1st GKE

 

I blogged about GKE before (back when we were calling it Reverse Transplant Tourism – admittedly a less palatable name than Global Kidney Exchange).  Mike Rees and I floated the idea as a hypothetical in Reverse Transplant Tourism, part of the Law & Contemporary Problems volume, Organs & Inducements. Back then, we proposed that a simple 2-way swap could help US incompatible pairs and developing world pairs (whether biologically incompatible or not), while also saving money, by leveraging the cost savings of transplantation over dialysis.  In practice, though, and as shown by the figure posted by Al, the first GKE helped a Filipino patient unable to afford transplantation on his own, while also facilitating a chain that has transplanted 11 US patients so far.

 

This video of the first GKE transplant is both informative and uplifting.

 

 

 

Related posts:

Reverse Transplant Tourism

Reverse Transplant Tourism (cont.)

RTT Conclusion

Reverse Transplant Tourism Goes Live!!

More News Coverage Of Reverse Transplant Tourism

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Gifts Versus Markets or Gifts Within Markets?

I’ll be giving a public lecture tonight at Washington & Lee University, as part of the Mudd Center for Ethics 2016-17 Speaker Series on Markets and Morals. The talk begins at 5:00 pm in Northen Auditorium, Leyburn Library and is free and open to the public. I’m honored to be included as a part of this great lineup of speakers, which includes Peter Singer, who discussed closely related issues. Singer’s talk, Permitting the Sale of Meat but not Kidneys or Sex? Some Questions about Markets and Morals, is available by video here.

Hope to see some of you there!

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Paying Bone Marrow Donors Is Not Unethical

bonemarrowSo says me and nearly two dozen others who work on questions of medical ethics, in a recent letter to The Department of Health and Human Services in response to an NPRM designed to reverse the decision in Flynn v. Holder.

Fellow Lounger Michelle Meyer and I have both written here a couple of times about current debates surrounding compensating bone marrow donors, as well as Flynn v. Holder (the 9th Cir. case holding that bone marrow donors could be legally compensated for peripheral blood stem cells obtained through apheresis, and the HHS proposed rule that would overturn that ruling.

Now, a group of researchers (including myself and Michelle) have signed onto a letter in opposition to the proposed HHS rule. From the letter:

This Rule would effectively reverse the decision in Flynn v. Holder before the U.S. District Court of Appeals for the Ninth Circuit.1 That decision holds that compensating donors of hematopoietic stem/progenitor cells (hereafter: “hematopoietic cells”) through a procedure called apheresis was not contrary to the National Organ Transplant Act.

We oppose the Rule. We maintain that the ethical arguments against a compensatory model for hematopoietic cell donation through apheresis (hereafter: “the compensatory model”) fail. We further maintain that significant ethical considerations speak in favor of the compensatory model, and therefore against the Rule.

Below, we respond to the ethical arguments offered in favor of the Rule: that the compensatory model would result in wrongful exploitation (§2); that the compensatory model would promote the view that human beings, their bodies, or subparts thereof, are mere commodities (§3); and that the compensatory model would incentivize donation for personal gain over donation from altruistic motives (§4). Given the ethical importance of avoiding preventable death and the strong likelihood that the compensatory model would help avoid preventable death, as well as the ethical importance of free choice, we conclude that the Rule is unethical (§1).

Read the whole thing here.

Related Posts:

On To Bone Marrow

Flynn v. Holder – The Fight Continues

Flynn V. Holder Rehearing Denied

Cohen on Flynn v. Holder

HHS Proposes Rule to Amend NOTA, Nullify Flynn v. Holder

 

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Duke Law And Markets Grand Finale

lead-lawmarketsI’ve blogged here a few times before about our tradition of a yearlong project dedicated to a particular (broad) topic. This year’s topic was Law & Markets, and we’ve hosted reading groups, a workshop series, and a student seminar on the topic. But May 6 is the grand finale: our Law & Markets symposium.

As was the case with the predecessor Custom & Law project, the symposium is designed to be a conversation (and subsequent volume) among our own faculty and a few colleagues from across campus or neighboring schools. The schedule is below. If you’re in the triangle area, make sure to stop by, especially for the sure to be standing room only discussion of “Contract Development In A Matching Market: The Case of Kidney Exchange” by Kim Krawiec, Wenhao Liu, & Marc Melcher, with commentary by Arti Rai.

Law and Markets Symposium Schedule

May, 6, 2016 – Room 3000, Duke Law School

8:00-8:30 a.m. Breakfast
8:30-9:25 a.m. Joseph Blocher & Mitu Gulati, “Expulsion in International Law”
 Commenter: Larry Helfer
9:25–10:20 a.m. Sam Buell & Rachel Brewster, “The Market for Anti-Corruption Enforcement”
Commenter: Maggie Lemos
10:20–10:40 a.m. Break
10:40–11:35 a.m. Kim Krawiec, Wenhao Liu, & Marc Melcher, “Contract Development In A Matching Market: The Case of Kidney Exchange”
Commenter: Arti Rai
11:35–12:30 p.m. Taisu Zhang, “Land Markets in Early Modern Economies”
Commenter: Barak Richman
12:30–1:30 p.m. Lunch
1:30–2:25 p.m. Larry Zelenak, “The Body in Question: The Income Tax and Human Body Materials”
Commenter: Gregg Polsky
2:25–3:20 p.m. Steven Schwarcz, “The Market Convergence of Debt and Equity and its Relevance for Governance”
Commenter: Lawrence Baxter
3:20–3:40 p.m. Break
3:40–4:35 p.m. Lisa Griffin, “Plea Bargaining, Indigent Defense, and the Potential for Market Effects”
Commenter: Sara Beale
4:35–5:30 p.m. Jonas Monast, Brian Murray, & Jonathan Wiener, “On Markets, Morals, and Climate Change”
Commenter: Matt Adler

 

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