Saturday, July 18, 2009

Eugene Volokh on kidney transplantation and the law

Volokh writes:
"Should a Parent Be Required To Donate a Kidney to a Child Who Needs a Life-Saving Transplant?"
"A commenter asked this as a rhetorical question, suggesting, I think, that the answer must obviously be "no." But I don't see why, assuming that we're talking about a minor child of the parent. Parents are rightly seen as having duties to their children. These include the duties to work to support the child for 18 years (more controversially, that's extended even beyond 18 years in many child support decisions, but for now I set that aside); to care for the child; to bear a post-viability fetus, at least absent some substantial threat to the mother's life or health; and more.
Why wouldn't this also extend to the obligation to provide a life-saving transplant, at least when the risk is as low (not zero, but very low) as it is for kidney transplants? You bring a child into the world, and you incur major obligations to it; why shouldn't this be one of them?"

Volokh has earlier written, in the Harvard Law Review, an article titled

He argues there that there may be a right to self defense (similar the right to use lethal force against an attacker) that would invalidate bans on experimental medical treatments, and bans on the sale of kidneys for transplant. That is, he argues that a person at risk of dying from kidney failure is being denied her right of self defense--medical self defense--when she is legally prevented from trying to buy a kidney.

Here's a relevant paragraph, which follows some other analogies:
"Olivia is dying of kidney failure. A kidney transplant would likely save her life, just as an abortion would save Alice’s, lethal self-defense might save Katherine’s, and an experimental treatment might save Ellen’s. But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia must wait years for a donated kidney; she faces a 20% chance of dying before she can get one. Barring compensation for goods or services makes them scarce. Alice and Ellen would be in extra danger if doctors were only allowed to perform abortions or experimental treatments for free. Katherine likely wouldn’t be able to defend herself with a gun or knife if weapons could only be donated. Likewise, Olivia’s ability to protect her life is undermined by the organ payment ban."

HT: Steve Leider

1 comment:

econgirl said...

This hypothetical requirement seems like something that the pro-life faction would get behind, at least if they are at all consistent. For example, Mike Huckabee on his latest Daily Show appearance stated that it should not be permissible for a woman to have an abortion on the grounds that carrying a child to term is an inconvenience. Therefore, if one prioritizes the child's survival over the parent's inconvenience, then the requirement is not at all absurd.

From a logistical perspective, the requirement would be a disaster for a multitude of reasons. The most interesting question to ponder in that regard, as long as we're dealing in hypotheticals here, is which parent should have the legal responsibility. :)