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


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


The Moral Limits Of Free Markets In Boulder Monday, I’ll be at CU Boulder’s Center For Western Civilization, Thought, & Policy, along with Jason Brennan (Associate Professor of Strategy, Economics, Ethics & Public Policy, Georgetown University) and Margaret Jane Radin (Michigan Law, Toronto Law) to discuss and debate the moral limits of free markets.

The event is free and open to the public, and I’ve copied the event information below. Although I’ll be back after the event with updates on the substance, I expect that Jason will take the position, consistent with his book, Markets Without Limits, that “if you may do it for free, you may do it for money.” I imagine that Peggy, consistent with her book, Contested Commodities, will argue that there should be some limits on markets, when necessary to protect nonmarket ideals important to personhood.

I plan to leave the normative debate to those two and take a more descriptive approach: regardless of whether or not market transactions actually degrade relationships and values, most people continue to believe that they do, at least in certain contexts. As a result, market advocates need to account for, and even accommodate, those concerns if the market is to exist at all.

As I explain in a piece I just posted to SSRN:

Students of markets from all disciplines are increasingly turning their attention to the cultural and psychological factors that affect market structure. In traditionally taboo markets, of which reproduction surely is one, those factors include cultural understandings of the moral limits of markets and our collective level of comfort with fully commodifying and subjecting traditionally sacred items and activities to the marketplace.

While it is easy to dismiss these cultural understandings as romantic, silly, or delusional, this severely underestimates their importance, not just to society, but to the market itself. By reframing traditionally unacceptable behavior as a more palatable and familiar transaction, society is able to accept a market that is otherwise socially problematic or even repulsive. Market architects ignore these cultural understandings–and, in particular, societal conceptions of the ethical limits of markets–at their peril. In a world unwilling to embrace the sale of female reproductive capacity for merely a price, the “priceless gift” of egg donation allows a market to flourish that otherwise might stagnate under the weight of social disapproval.


The Moral Limits of Free Markets (4/4/16)

The “Western Civ Dialogue” series presents:

The Moral Limits of Free Markets

Monday, April 4, 2016

4 p.m. to 5:30 p.m.

British and Irish Studies Room

Norlin Library – 5th Floor

University of Colorado Boulder

Free and open to the public.

If you may do it for free, may you do it for cash? For instance, may you buy and sell votes? How about buying and selling kidneys? Or buying and selling children? What should be off-limits to the market economy? Or do genuinely free markets permit everything? Scholars representing a wide range of views discuss the issues.


Jason Brennan, Associate Professor of Strategy, Economics, Ethics & Public Policy, Georgetown University

Margaret Jane Radin, Professor of Law, Emerita, University of Michigan Law School & Distinguished Research Scholar, University of Toronto Faculty of Law

Kimberly Krawiec, Professor of Law, Duke University Law School


Sponsored by the:

Center for Western Civilization, Thought and Policy (CWCTP)


Co-sponsored by the:

Center for Values and Social Policy

Our Day Of Market Design

Al Roth with Taboo Trades seminar, March 23, 2016

Al Roth with Taboo Trades seminar, March 23, 2016

As I mentioned in my last post, 2012 Nobel Prize winner Al Roth visited Duke Law School this week as a guest of the Law & Markets project. We basically worked Al to death while he was here – he gave three talks in a single day: a casual morning discussion over coffee with my Taboo Trades students and select faculty; a lunchtime public lecture about his book, Who Get’s What And Why: The New Economics of Matchmaking and Market Design; and an afternoon faculty workshop on Global Kidney Exchange (sometimes called Reverse Transplant Tourism). And that’s not counting the breakfasts, lunch, and dinner he had with faculty who wanted to hear even more about market design. I was exhausted from just watching him in action.

Those who know Al won’t be surprised by that, I suspect. As I’ve discussed before in prior posts (here and here), Al is deservedly well-known for his generosity in sharing his time and expertise with students, colleagues, and even know-nothings like me.

UnknownWhether by design or happy accident (I’m not sure which, though he is a market designer, hmm . . . ) there was little overlap in the content of the three talks, though each one built on the other and someone who attended all three (as many of us did) could gain new insight into market design at each stage. The morning session focused primarily on labor markets, especially the judicial clerkship market and market for summer associates and how that compared to the market for new medical residents. As Al discusses in the book, the market for judicial clerks, unlike the market for medical residents, is one in which attempts to prevent market unraveling have been largely unsuccessful. We talked a bit about why that might be and it was interesting to have that discussion among someone who has studied that market (Al), current market participants (the students), prior participants (law professors) and those who have negotiated some of the earlier (failed) agreements – law school administrators.

The lunch talk focused on the concept of market design more generally, but with an emphasis on school choice, kidney exchange, and high frequency trading as examples. The afternoon session was devoted to Al’s current work on repugnant transactions and Global Kidney Exchange, an issue we have both worked on with Mike Rees.

It was a really special day all around, but I was especially happy to get a chance to share Al in person with my Taboo Trades students. They have already spent more time thinking about repugnant transactions than most people ever will, and it was great for them to have a chance to meet “The Pied Piper of Repugnance,” as I referred to Al some years ago, in person. We memorialized his visit with us in the photo above.

Prior posts about Al Roth:

Tomorrow Is Al Roth Day!

Congratulations to Al Roth!

Al Roth: The Pied Piper of Repugnance?

Al Roth, Market Designer, in August Forbes

Scalping The Dalai Lama

Prior posts about Global Kidney Exchange/Reverse Transplant Tourism: collected here

Prior posts about the Taboo Trades seminar: collected here

Duke Project On Law And Markets: Updates

In the fall, I posted about my school’s yearlong initiative on Law & Markets, led by Joseph Blocher and me. The initiative builds on the model developed a few years ago by my colleagues Curt Bradley and Mitu Gulati, when they ran a project on Law & Custom. Like the Custom and Law Project that precedes it, the Law and Markets Project includes a summer reading group (see here for a reading list), a full year of workshops dedicated to law and markets (see here for the schedule), a student seminar (course description here), two public lectures (I’ll post about those separately), and will culminate in a symposium and volume (this one will be published by Law & Contemporary Problems, a quarterly, interdisciplinary, faculty-edited publication of Duke Law School).

Now that we’re into the home stretch, I feel like we’ve achieved a number of the goals we set for ourselves with this project. We’ve hosted speakers from a variety of disciplines (including law, economics, philosophy, sociology, and history) who spoke on topics ranging from refugees, to tax, to credit default swaps, to egg, sperm, blood, and organ markets. We’ve learned a lot, forged stronger connections with some of our colleagues across campus, and had fun. I’m counting it a success.

I’ll be back with more to say about some specific lectures and workshops, but for now am posting the workshop posters here (I’ve been tweeting them as they arise, so if you want updates follow me @KimKrawiec).

Workshop Poster Spring 2016Workshop Poster[1][1]

Egg Donors Get Pay Limits Axed With Antitrust Settlement

From Law360:

Egg Donors Get Pay Limits Axed With Antitrust Settlement
By Kelly Knaub

Law360, New York (February 1, 2016, 7:01 PM ET) — A class of human-egg donors who allege the American Society for Reproductive Medicine violated antitrust laws by capping compensation to donors asked a California federal court Friday to approve a settlement requiring the organization to remove the compensation guideline, calling the agreement an “excellent resolution” of the case.

Under the proposed settlement, ASRM will remove language stipulating that “[t]otal payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate,” effectively benefiting all women who donate eggs in the future.

. . .

In addition, ASRM will pay a total of $1.5 million under the agreement to compensate the plaintiffs’ counsel for fees and costs incurred in in the litigation, as well as up to $150,000 to cover the costs of notice to the class.

They could have saved that $1.5 million dollars in legal fees if they had listened to me about this back in 2009.  🙂

Related posts:

The NY Times Weighs In On Egg Donor Price Fixing

If You Want A Market, Have A Market . . . Otherwise

Feeble Even By Normal Litigation Standards

Egg Donor Antitrust Suit In Today’s WSJ

Sunny Samaritans’ Suit Survives

ASRM Seeks Dismissal of Egg Donor Suit

Kamakahi v. ASRM et al. — Updates

Politics And Profits in The Egg Business (When Sunny Samaritans Sue, IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

The Value of Smart Eggs


The Washington Post Debates Organ Donor Compensation

imrs.phpIn my black market Rhino horn post yesterday, I mentioned that a recent proposal to legalize a market in sustainably harvested Rhino horn:

. . . highlights some pretty standard debates about taboo markets in a new context. For example, one common point of contention is whether, when banning the market has failed to stop trading, society is better served by a regulated, legal market. This debate has occurred recently with respect to markets in prostitution and human organs, for example.

As if on cue, the Washington post began running a debate today on compensating organ donors. They begin with a “Primer” (my Kidney Transplantation Primer with Phil Cook is better, though 🙂 ) that emphasizes some of the points I made in the Rhino post:

The proponents for change also say that a ban on selling organs helped to create the global black market for organs, mostly in the developing world. The literature on this topic is terrifying: stories of political dissidents killed to have their organs harvested or impoverished citizens tricked into dangerous operations. Some advocates say that a government-regulated system of compensation could help end organ theft.

The participants are:

Sally Satel, resident scholar at the American Enterprise Institute and practicing psychiatrist at the Yale University School of Medicine,

Francis Delmonico, Harvard Medical School professor of surgery at the Massachusetts General Hospital, and Alexander Capron, professor of law and medicine at the University of Southern California,

Scott Sumner, economist at Bentley University and blogger at The Money Illusion,

Benjamin Humphreys, program director at the Harvard Stem Cell Institute,

Nancy Scheper-Hughes, founder of Organ Watch and anthropology professor at University of California, Berkeley.

So far, the posts from Sally Satel (Generosity won’t fix our shortage of organs for transplants) and Frank Delmonico, with USC Law Prof Alex Capron (Our body parts shouldn’t be for sale) have been posted.

Related Posts:

How Can the Shortage of Kidneys for Transplantation Be Rectified?

Reverse Transplant Tourism

Happy Birthday NOTA! (Now Go Away)

Flesh List Is Me

Cash for Kidneys: Reality is Complicated

Kidneys, Part II: The Limits of Deceased Donation Proposals

Innovation and Incentives: Beyond “Cash for Kidneys”

More Organs & Inducements

Black Markets Versus Regulated Markets (Rhino Edition)

gallery_rotator_768e56e664c6150a2560ec988193a589Over at Market Design blog, Al Roth flags an interesting controversy developing in South Africa – whether to abandon the current ban on Rhino horn and horn products, in favor of a regulated market in sustainably harvested Rhino horn.   Both the WSJ and NY Times carry recent articles.

As a bit of background (from the WSJ):

“The global rhino population has dwindled from 500,000 at the beginning of the 20th century to about 29,000 today. The surging trade in illicit horn has cut the population of the three remaining Asian species to just a few thousand, including about 40 Javan and less than 100 Sumatran rhinos. Just about 20,000 Southern White Rhinos and 5,000 black rhinos, which include three subspecies in Africa, survive.

“Black-market rhino horn can fetch as much as $100,000 a kilogram in Vietnam and other Asian countries, where it is peddled as a cure for ailments ranging from headaches to cancer.”

_56742389_hi013341533_rhinohorns_gettyI find this latest controversy interesting, because it highlights some pretty standard debates about taboo markets in a new context. For example, one common point of contention is whether, when banning the market has failed to stop trading, society is better served by a regulated, legal market.

This debate has occurred recently with respect to markets in prostitution and human organs, for example. In the case of Rhino horn, advocates of a legalized market argue that sustainable herding would both reduce the demand for poached horn and apply price pressure, thus dampening incentives to poach. Again, from the WSJ:

Rhino horn is made of keratin, like human fingernails. It grows as much as 5 inches a year. Biologists say that as long as a stump of 2 to 3 inches remains, it can be trimmed, doing a rhino no more harm than a manicure. “There are no nerves in rhinos’ horns,” said Raoul du Toit, director of Zimbabwe’s Lowveld Rhino Trust. He said there is no evidence that the procedure affects rhinos’ breeding practices or leaves them more susceptible to predators. “Why would you hunt a rhino for seven, eight, nine, 10 kilos of horn when, in a lifetime, it can grow 70 kilos of horn?” Mr. Hume asked.

econ_london13__01inline__4051Many animal rights activists disagree, arguing that a legal market would make enforcement more difficult and raise demand by whetting appetites for Rhino horn, as apparently happened after a one-time sale of elephant ivory stockpiles in 2008. They insist that education and publicity campaigns designed to counter myths regarding Rhino horns’ healing powers are the answer.

Market advocates counter that time is of the essence – Rhino populations are now so low that we can’t afford to wait for societal views to change — and dispute the lessons learned from the 2008 ivory auction:

The sides argue about precedents. A one-off sale of elephant-ivory stockpiles from four southern African nations in 2008 only whetted appetites for tusks, and elephant poaching has since soared to all-time highs. But a sustained, legal tide of supply—not a brief flood—has worked for other species, like South America’s vicuña, a llama relative. Mr. Hume notes that vicuñas were once slaughtered for their softer-than-cashmere coats but are now farmed sustainably, back from the edge of extinction.”

And, as with other taboo trades, you can count on the opponents to differ when it comes to concerns about commodification and the crowding out of nonmarket ideals:

“Where we differ is with your attitude towards the exploitation of an endangered species with the intention of making large profits,” Margot Stewart, founder of the nonprofit group Wild and Free South Africa, wrote in an open letter to Mr. Hume. She argues that rhinos are wild animals and should not be kept in paddocks like sheep or cows—and that it is unethical to farm and sell rhino horn since it has zero medicinal value. “Only two parties want this to continue: the rhino farmers and organized crime syndicates,” she added.


Market Design: Rhino horns: flood the market with sustainable horn, instead of prohibiting the market?

WSJ: Would a Legalized Horn Trade Save Rhinos? With poaching on the rise, ranchers in South Africa want to flood the market—but conservationists warn of corruption and cruelty

NY Times: U.S. Pours Millions Into Fighting Poachers in South Africa

Gordon and Hedlund On Financial Aid And Rising College Tuition

Over at Marginal Revolution, Alex Tabarrok discusses a new NBER paper, Accounting for the Rise in College Tuition, by Grey Gordon and Aaron Hedlund:

Grey Gordon and Aaron Hedlund create a sophisticated model of the college market and find that a large fraction of the increase in tuition can be explained by increases in subsidies.

With all factors present, net tuition increases from $6,100 to $12,559. As column 4 demonstrates, the demand shocks— which consist mostly of changes in financial aid—account for the lion’s share of the higher tuition. Specifically, with demand shocks alone, equilibrium tuition rises by 102%, almost fully matching the 106% from the benchmark. By contrast, with all factors present except the demand shocks (column 7), net tuition only rises by 16%.

These results accord strongly with the Bennett hypothesis, which asserts that colleges respond to expansions of financial aid by increasing tuition. Remarkably, so much of the subsidy is translated into higher tuition that enrollment doesn’t increase! What does happen is that students take on more debt, which many of them can’t pay.

In fact, the tuition response completely crowds out any additional enrollment that the financial aid expansion would otherwise induce, resulting instead in an enrollment decline from 33% to 27% in the new equilibrium with only demand shocks. Furthermore, the students who do enroll take out $6,876 in loans compared to $4,663 in the initial steady state….Lastly, the model predicts that demand shocks in isolation generate a surge in the default rate from 17% to 32%. Essentially, demand shocks lead to higher college costs and more debt, and in the absence of higher labor market returns, more loan default inevitably occurs.

Read the whole post, along with some caveats on the results, here. And the full paper here.