A Case Study in Organ Markets: District Court Judge Finds No ‘Ill Result’; Organ Broker Gets 2½ Years

NJ.com reports:

Brooklyn man sentenced to 2 1/2 years for role in black-market kidney trafficking scheme

The man in question is New York Rabbi Levy Izhak Rosenbaum.

I advocated legalizing the sale of organs a couple months ago on facebook, and the objections I received have been fairly irrational and uninspiring. Perhaps if people considered a real-life case of organ trade, they’ll begin to think about organ markets more clearly. Let’s take a look at the NJ.com report, which first introduces the kidney donor/vendor: 

The 31-year-old man said he was lying on a hospital bed, getting anesthesia just before a four- to-five hour surgery to remove a kidney he had agreed to sell for $25,000 on the black market.

NJ.com hits us with the bad news first:

He was having second thoughts and was asking his “caretaker” if he could still turn back.”

He was holding my hand, and he said it was not too late, but before I finished the conversation, I was gone” into unconsciousness, Elahn Quick testified Wednesday in federal court in Trenton. The next thing Quick remembered was coming to in the Minnesota hospital with a nurse shaking him and calling out: “Wake up, wake up, it’s done.”

The caretaker had done nothing to stop the surgery…

If the donor/vendor were having second thoughts, the time to voice them would have been before anesthetization. If he wanted to stop the procedure while being anesthetized, then his final words before falling unconscious should have been, “Please stop. I’ve changed my mind. I don’t want to do this.” To ask whether it is too late to turn back is not to turn back. He was in it all the way to the end, as far as I can tell.

Thinking of this situation purely as a matter of contract (excluding, of course, the illegality and public policy aspects of it), the donor/vendor should either have gone through with the sale or have been held liable for breach. Had he breached a contract, the damages would have had to pay to a doctor look like they would have exceeded tens of thousands of dollars. Meanwhile, a guy at the other end of the transaction was in the process of dying. This is serious stuff. There really isn’t a whole lot of room to second-guess the intentions of half delirious patients who have already been prepped for surgery.

But let’s suppose this Rabbi were a swindler who stole an organ without permission. That’s still no reason to oppose free organ markets. Every industry has it’s swindlers. Swindlers should should be called to account for their crimes. Sealing organs is a crime. Organ thieves should be prosecuted and punished, legal organ market or no. Let’s get that out of the way. Of course, not every businessman is a swindler. I’d venture to say that most take pride in treating their customers fairly and developing a good public reputation. That’s generally how they earn business. That’s generally how markets improve. That’s generally how markets work.

Now for the good news:

Beckie Cohen, the daughter of Max Cohen, a kidney recipient who paid Rosenbaum $150,000 to find a donor, called him a “hero.”

“As far as I’m concerned, Isaac is a hero,” Beckie Cohen said, even though, she said, she had taken the stand for the prosecution in exchange for immunity from being prosecuted herself.”

My father was dying, and the system was failing us,” the Brooklyn resident testified, her eyes starting to tear, as she referred to her father’s five-year wait on a list that never produced the kidney she said he desperately needed.

Max Cohen, she said, is longer bed-ridden or in pain, and is “up and about” and doing well.

Max Cohen is “up and about,” like Grandpa Joe.

Let’s not ignore this result: Grandpa Max, formerly sick and dying in bed, is miraculously “up and about,” is he? Also, let’s not ignore the multitudes of people who would gladly sell their extra kidney for $25,000 without hesitation, each of whom would give new life to people like Max Cohen. Now give me one good reason why these exchanges should be prohibited.

District Judge Anne Thompson tried:

Noting no one “suffered an ill result” in Rosenbaum’s enterprise, Thompson said the business nonetheless is “a kind of trading in human misery.” If paying people to donate organs were legal, she said, then “of course, the most vulnerable people would be poor people,” who may sell their organs and face risky surgeries for a small amounts of money.

What does she mean by “most vulnerable”? I don’t consider myself to be poor, but if there were something I could do today that would put $25,000 in my bank account by month’s end, that would save a dying person’s life, and that would likely end in “no ill result,” then I would like for that something to remain a legal option, wouldn’t you? That would knock out a good chunk of my student debt. Does that make me “vulnerable”? Vulnerable to what? Being free of debt?

Now, what if I were actually poor, and I had trouble putting food on the table? How many cans of soup would $25,000 buy? I don’t know, but I’d better not sell a kidney, earn that money, and save someone else’s life in the process, warns Judge Thompson. That would be “trading in human misery”. Really? Misery? It’s kind of hard to see it.

So now we’ve seen some of the bad, and we’ve seen some of the good. A sober, rational consideration of this story ought to show that the downplayed and shamefully ignored benefits of organ markets will outweigh their exaggerated, apocryphal costs. Isn’t it time to reconsider?

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