Why don't museums sell art (except to buy more art)?

Brian Frye over at the Faculty Lounge published three nice posts about the professional repugnance that art museums have about selling art.

Here's the first:
Are Deaccessioning Norms Ethical?

It's about the rules that associations of art museums have to prevent museums from selling art. It's a professionally repugnant transaction.
 He argues that it's a way to make sure that capital gains on the secondary market accrue only to private collectors...

And here's the second:
Watching the Deaccessioning Police
"One of the biggest stories in the art world this week is the Berkshire Museum's plan to "deaccession" (read "sell") 40 artworks from its "permanent collection" worth about $50 million, in order to pay for renovations and shore up its endowment. The museum plans to auction at Sotheby's works by Norman Rockwell, Frederic Church, Albert Bierstadt, Alexander Calder, and Charles Wilson Peale, among other artists."
...
"Predictably, the deaccessioning police went ballistic. The American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) issued a joint statement saying they are “deeply opposed to the Berkshire Museum’s plans to sell works from its collection to provide funds for its endowment, to make capital investments, and to pay for daily operations.” The AAM and AAMD also noted that their "ethical" codes prohibit museums from selling artworks in order to cover operating costs. And their art world allies piled on, with perennial deaccessioning critics like Lee Rosenbaum lamenting the museum's decision."


And the third:
Deaccessioning Police Redux
"Predictably on cue, the "deaccessioning police" have raised their usual hue and cry. One of loudest voices in the claque is Christopher Knight of the LA Times, who has now gone "full nihilist" on deaccessioning. As Donn Zaretsky of the Art Law Blog observed, Knight's most recent column takes the anti-deaccessioning position to its inevitable reductio ad absurdumendpoint:

Here’s an idea: Don’t sell the art. Do close the museum. Start behaving like the charitable institution you are supposed to be. Spend the next several years responsibly overseeing the dispersal of the collection.

To paraphrase: "We had to destroy the museum in order to save it." 

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See this earlier post of mine, concerning university museums:

Tuesday, August 9, 2016

Repugnance watch: Deaccessioning art (i.e. selling it)

Black Market Kidney Broker Is Released From Prison

Black Market Kidney Broker Is Released From Prison

"A man who prosecutors said styled himself as 'the Robin Hood of kidneys" is out of prison after being the first person convicted in federal court of profiting from the illegal sale of human organs.

"Levy Izhak Rosenbaum, an Israeli citizen, won't be deported because federal immigration officials found that his crime was not one of "moral turpitude" that would have subjected him to being kicked out of the U.S., lawyer Edward Schulman said.

"It illustrates the intersection between legality and morality," Shulman said.

"Rosenbaum, now 63, was arrested in 2009 in what became the biggest corruption case ever in New Jersey. He had been living legally in the U.S.

"He pleaded guilty to illegally selling human organs in 2011 and served more than two years in prison.

"He was released this week from the federal correctional facility at New Jersey's Fort Dix, and Shulman said he has returned to his home in New York City's Brooklyn borough.

"Shulman said immigration officials decided not to send the case to a court to sort out because it was clear Rosenbaum's offense was not a deportable crime.

"Rosenbaum pleaded guilty to brokering the sale of three kidneys ? buying them from people in Israel for as little as $10,000, then selling them to U.S. patients who did not qualify for transplants or did not want to wait. The cost of the sale was over $100,000, and the operations were performed at top U.S. hospitals.

"While he pleaded guilty to three counts, authorities said he brokered many more kidney transplants and made millions from the deals.

"If he was drugging the people or knocking them out" to get their kidneys, Shulman said, that would have been a deportable offense. But, he said, that was not the case. "Both participants were willing."

"Shulman said his client's deals saved lives.

"One could contend that letting somebody die," Shulman said, "is also immoral."

Kidney broker sentenced to prison in New Jersey

Kidney Broker Sentenced To Prison As Donor Recalls Doubts

"In the first criminal organ-trafficking case in the U.S., Quick took the witness stand at the sentencing of Levy Izhak Rosenbaum, a Brooklyn, New York, man who pleaded guilty to brokering black-market sales of human kidneys to three Americans. After hearing Quick’s account of how Rosenbaum paid him $25,000 for a kidney, U.S. District Judge Anne Thompson sentenced Rosenbaum to 2 1/2 years in prison.

“It’s a kind of trading in human misery,” Thompson said of the black-market kidney trade. Rosenbaum “charged a fee” for kidneys while using “a complicated web of transactions” to finance his trade, she said. “He corrupted himself.”

See earlier posts on this case here, and yesterday's story about a conviction in Japan here.

The blackest of kidney black markets

Can some black markets be blacker than others? Two longtime observers of black markets for kidney transplants nominate some.

Ethan Gutmann writes chillingly of The Xinjiang Procedure: Beijing’s ‘New Frontier’ is ground zero for the organ harvesting of political prisoners.

"Thirty-six scheduled executions would translate into 72 kidneys and corneas divided among the regional hospitals. Every van contained surgeons who could work fast: 15-30 minutes to extract. Drive back to the hospital. Transplant within six hours. Nothing fancy or experimental; execution would probably ruin the heart. 

"With the acceleration of Chinese medical expertise over the last decade, organs once considered scraps no longer went to waste. It wasn’t public knowledge exactly, but Chinese medical schools taught that many otherwise wicked criminals volunteered their organs as a final penance. 

"Right after the first shots the van door was thrust open and two men with white surgical coats thrown over their uniforms carried a body in, the head and feet still twitching slightly. The young doctor noted that the wound was on the right side of the chest as he had expected. When body #3 was laid down, he went to work. "

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And Nancy Scheper-Hughes writes of The Rosenbaum Kidney Trafficking Gang, and of kidney black markets more broadly (as well as of her difficulties in getting others to see these things as she sees them).

"Some of the victims of US organs trafficking are bonded servants from Syria and Jordan brought into the US to provide kidneys to their patron royal families from the Gulf States. The Cleveland Clinic has a transplant wing that for many years has catered to these so-called “transplant tourists.” UCLA had its heyday with wealthy Japanese Yakuza crime “family members” who were given priority for liver transplants from the UNOS waiting list, livers that technically belonged to US citizens.

"So, Rosenbaum’s network, though extensive, represents only one of many forms of transplant trafficking into and out of the United States. Transplant trafficking is a public secret within the transplant profession, something that everyone knows about but which within the corporatist culture of the transplant profession — as secretive as the Vatican — is never discussed.
...
"Caught in the dragnet Rosenbaum admitted that he charged a lot to set up these illegal transplants in some of the best hospitals on the east coast, including Mount Sinai in NYC , Albert Einstein in Philadelphia, and Johns Hopkins in Baltimore.
...
"Nobody cared about, or even believed in, human trafficking for organs. I went to the media, to CBS, to 60 Minutes and then to 48 Hours which did send an investigative reporter, Avi Cohan, to meet me in Israel where we spoke to patients who had had “undercover” transplants at hospitals in NYC Philadelphia, the Bay Area, and Los Angeles. CBS decided not to do the exposé. I was stumped. No one wanted to accuse surgeons, or prevent a suffering patient from getting a transplant, even with an illegally procured kidney from a displaced person from abroad. The Israeli origins of the trafficking network did not help either. It smacked of bias, blood libel, or worse. “Don’t Indians and Pakistanis broker more kidneys than Israelis”, I was asked? Why pick on Israel?
...
"What I imagine is that the complicit surgeons loved the Rosenbaum option because they didn’t have to go through UNOS, the United Network for Organ Sharing, which until 2007, had nothing to do with living donors, related or unrelated. Hospital administrators loved it because foreign patients paid cash so there was no waiting for Medicare or insurance premiums. And there was minimal responsibility for the aftercare of the recipients or their kidney providers. Both were speedily returned to their respective communities and countries. Should they ever get caught red-handed, surgeons can cite patient confidentiality (their privacy oath), the hospitals could pretend they had been duped, the transplant coordinators could say that they followed the transplant protocols for living donors, but they are not, after all, detectives. Everybody wins. Lives were ‘saved’, transplant surgeons got to do what they do best, poor people got a ‘bonus’ for being charitable with their ‘spare’ kidneys, and everybody was happy.
...
"Meanwhile, complicit transplant doctors collude and protect each other, while the best ones tried to fix the problem from inside the profession without the help of the DOJ or the courts getting involved. Bioethicists argue endlessly about the “ethics” of what is in fact a crime and a medical human rights abuse. Economists and moral philosophers launch arguments based on rational choice theory for regulation rather than prosecution, as if prosecutions were going on every day. In fact, as the Rosenbaum history shows so well, human trafficking for organs is a protected crime. It is protected by the charisma and awe-inspiring ‘ miracle’ of transplant. The Rosenbaum guilty plea is the first prosecution in the United States for organs trafficking. On February 2nd Rosenbaum could be sentenced to five to 12 years in prison and a fine for illegally brokering organs in New Jersey. But the larger and deeper story of his international kidney dealings, his hired traffickers, kidney hunters, ‘enforcers’, money laundering operations, false charity organizations, Medicare fraud is yet to be told. And in the meantime, “life saving” for some at the cost of diminishing the lives of others ,the invisible kidney sellers of Chernobyl, Kiev, Nazareth, or the Negev desert, will continue undeterred.

Brooklyn man pleads guilty to trafficking black market kidneys

Yesterday, in Trenton NJ, Brooklyn man pleads guilty to trafficking black market kidneys to N.J. residents

"The price was steep. As much as $160,000 to secure a donor willing to give up a human kidney for transplant.

"And Levy Itzhak Rosenbaum ... bragged on surveillance recordings that he had participated in many such black market deals.

"Today, the 60-year-old Israeli pleaded guilty in federal court to helping an FBI informant procure a kidney as part of an elaborate federal sting. At the same time, he admitted arranging transplants for three other New Jersey patients with failing kidneys — all of whom underwent surgery in out-of-state hospitals after paying Rosenbaum. None of the patients or hospitals was named, nor were they charged.

"It marked the first time in this country anyone has ever been convicted for brokering illegal kidney transplants for profit."
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See my earlier post on this case:

Monday, July 27, 2009

Corruption and kidneys in New Jersey and Brooklyn

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the Haaretz story is very good, so I'm quoting a lot of it below:
New York man pleads guilty to selling Israeli human organs

"His attorneys, Ronald Kleinberg and Richard Finkel, said in a statement that their client had performed a life-saving service for desperately ill people who had been languishing on official transplant waiting lists.

"The transplants were successful and the donors and recipients are now leading full and healthy lives," the statement said. "In fact, because of the transplants and for the first time in many years, the recipients are no longer burdened by the medical and substantial health dangers associated with dialysis and kidney failure."

"The lawyers added that Rosenbaum had never solicited clients, but that recipients had sought him out, and that the donors he arranged to give up kidneys were fully aware of what they were doing. The money involved, they argued, was for expenses associated with the procedures, which they claim were performed in prestigious American hospitals by experienced surgeons and transplant experts. The lawyers did not name the hospitals involved, nor are they named in court documents.

"Prosecutors argued that Rosenbaum was fully aware he was running an illicit and profitable operation - buying organs from vulnerable people in Israel for $10,000, and selling them to desperate, wealthy American patients.

"A black market in human organs is not only a grave threat to public health, it reserves lifesaving treatment for those who can best afford it at the expense of those who cannot," said New Jersey's U.S. Attorney, Paul Fishman. "We will not tolerate such an affront to human dignity."

"Each of the four counts carries a maximum five-year prison sentence plus a fine of up to $250,000. Rosenbaum also agreed to forfeit $420,000 in real or personal property that was derived from the illegal kidney sales.

...

"Although the hospitals where the operations Rosenbaum arranged have not been named, critics and experts on organ trafficking say many U.S. hospitals do not have vigorous enough procedures for looking into the source of the organs they transplant because such operations are lucrative.

...

"Under 1984 federal law, it is illegal for anyone to knowingly buy or sell organs for transplant. The practice is illegal just about everywhere else in the world, too.

"But demand for kidneys far outstrips the supply, with 4,540 people dying in the U.S. last year while waiting for a kidney, according to the United Network for Organ Sharing. As a result, there is a thriving black market for kidneys around the world.

"Art Caplan, the director of the Center for Bioethics at the University of Pennsylvania and a co-chairman of a United Nations task force on organ trafficking, said kidneys are the most common of all trafficked organs because they can be harvested from live donors, unlike other organs. He said Rosenbaum had pleaded guilty to one of the "most heinous crimes against another human being."

"Internationally, about one quarter of all kidneys appear to be trafficked," Caplan said. "But until this case, it had not been a crime recognized as reaching the United States."

Black market for kidneys: in the US?

The recent arrest in NJ of an alleged international kidney broker may eventually shed some light on the question of how much paid kidney donation may be going on in the U.S. itself. Here's an AP story that raises the question:

Lax hospitals may be fostering kidney-selling
"A look-the-other-way attitude at some U.S. hospitals may be fostering a black-market trade in kidneys, transplant experts say. Some hospitals do not inquire very deeply into the source of the organs they transplant because such operations can be highly lucrative, according to some insiders. A single operation can bring in tens of thousands of dollars for a hospital and its doctors."
...
"Mark McCarren, a New Jersey federal prosecutor involved in the case, said Rosenbaum indicated that the transplants he brokered took place at more than one U.S. hospital and that the hospitals were duped and were not in on the scheme.
According to prosecutors, Rosenbaum was shockingly familiar with the U.S. system and how to beat it. Sellers and recipients would concoct stories about being relatives or friends to fool hospitals into thinking no money was changing hands, McCarren said."

How large a kidney black market exists in the U.S. is an open question. A suggestion that it might not be very large at all was made at a recent transplant conference I attended, by the eminent transplant nephrologist Gabriel Danovitch, who showed some data suggesting that the socioeconomic status distribution of unrelated donors looked a lot like that of related donors. The idea is that, if there were a lot of under the table payments being made, you would expect unrelated donors to be poorer and less educated and perhaps more foreign than related donors...

Here's an earlier post on the subject.

And (not really related) here is an episode of the Daily Show with Jon Stewart that, around minute 7, has a skit lampooning organ sales, immediately following the opening discussion of health care reform.

Corruption and kidneys in New Jersey and Brooklyn

The NY Times reports on a corruption investigation resulting in 44 arrests in New Jersey and Brooklyn: In New Jersey Case, Nervous Jokes and a Cereal Box of Cash

Almost as an aside, the story reports that a broker for transplant kidneys was caught in the net:

"Another man in Brooklyn, Levy-Izhak Rosenbaum, was accused of enticing vulnerable people to give up a kidney for $10,000 and then selling the organ for $160,000. Mr. Dwek pretended to be soliciting a kidney on behalf of someone and Mr. Rosenbaum said that he had been in business of buying organs for years, according to the complaint."

Part of the repugnance to the transaction seems to be the buying and selling prices. (Would we/should we feel differently if the kidneys were bought for $100,000 and sold for $115,000?)

Steve Leider points me to an Indiana Jones connection: Anthropologist's 'Dick Tracy moment' plays role in arrest of suspected kidney trafficker. (The anthropologist in question, Nancy Scheper-Hughes, writes frequently about black markets for kidneys, and apparently indentified Mr Rosenbaum some years ago, although the story doesn't suggest to me an immediate connection to the recent arrest.)

Parag Pathak points me towards Benyamin Cohen's story in Slate, following up on the Jewish connection: The arrests of rabbis who trafficked body parts uncover more complicated issues, that suggests some of the nuances of Jewish religious jurisprudence about organ donation and sales.

Trying to figure out Jewish law directly from the Bible skips a couple of centuries of subsequent interpretation. Here's what I wrote about kidney sales in a footnote of my paper Repugnance as a constraint on markets:

3 While there is no central authority on the application of Jewish law to modern concerns such as transplantation, the most authoritative opinions are contained in various “responsa” or answers to particular questions by rabbis acting as legal “deciders” (poskim), whose authority arises from the respect of their peers. The consensus on the matter of live kidney donation, for example, seems to be that live donation is allowed (since it saves lives), but it is not required (since the donor becomes wounded and takes some risk to his own life), and hence it falls into the category of things for which compensation could be offered and accepted (unlike actions that are either forbidden or required). See, for example, Eisenberg (2006), Grazi and Wolowelsky (2004), Kunin (2005), and Israeli (1997) who cite eminent modern poskim such as Rabbi Shlomo Zalman Auerbach and Rabbi Moshe Feinstein."

"For example, Avraham (2004, p. 271–2) reports the opinion of the eminent Rabbi Shlomo Zalman Auerbach that someone who sells a kidney with the intention of saving a life does a good deed “even if he would not have donated his kidney only to save life.” But he goes on to note, “[I ]n spite of all that has been said above, it seems to me that it is the community that needs soul-searching for allowing a person to reach such a depth of despair that he must sell a kidney, either because of poverty, debts, or the inability to pay for a relative’s medical expenses.”

Although mainstream Jewish authorities support organ donation, some streams of ultra-orthodox Judaism do not: here's a disturbing article brought to my attention by Miran Epstein, from Yediot: Heart recipient's father: We'll never donate organs
It goes on to note
"The father's words angered Prof. Yaacov Lavee, director of the Heart Transplantation Unit at the Sheba Medical Center. "This is outrageous," he said. "I've heard such statements from many of my candidates (for a transplant), who weren't ashamed to admit they wouldn't donate organs.
"Such statements led me to initiate the bill that prioritizes transplants for people who have signed an organ donor card. This is clearly immoral behavior," he added.
The new transplant law, which will go into effect in May, states that any person in need of a transplant and who has had an organ donor card for at least three years will be given priority on the organ transplant waiting list. "

This makes some aspects of Israeli transplant law resemble parts of Singapore's transplant law, which also gives priority for organs to those who are registered as donors. (I wrote about this near the end of an earlier post.)

Update: Sally Satel's take is in the WSJ: About That New Jersey Organ Scandal It’s not surprising when 80,000 Americans are waiting for kidneys, and a background piece from Time magazine: How Does Kidney-Trafficking Work?