Richard Epstein takes on the transplant monopoly:
There is, moreover, a more systematic objection to Dr. Hanto’s ill-advised position that also needs elucidation. Why do we imbue the UNOS transplant list with any legitimacy at all? That list itself is not the result of any deep moral principle, but represents the only workable compromise that a statist organization like UNOS is able to put into effect. As a matter of first principle, one sensible test for the allocation of organs in a nonmarket setting is to place them where they are likely to do the most good. That question in turn resolves itself into two different issues. The first is how much benefit with the organ provide to its recipient, measured the number and quality of life-years obtained. Next there is a moral dimension: which individuals do we wish to help and why? This second question blows apart in the face of any collective decision making. Thus what committee wants to play God and decide whether to give the organ to a 40-year old mom like Lisa Cunningham, featured in Satel’s piece, who has suffered from diabetes all her life, or to a gifted but erratic scientist with no family to support. It is easy to see how people could split on that choice, so that a government agency that has to assign places to hundreds of individuals would back off any effort to make the judgments that will pit one good person against another. One unfortunate consequence of this collective system is that the first-in-time, higher-in-right principle leads to this odd inversion: organs go to the individuals who have waited the longest, and who are in the weakest condition. They will get fewer years of benefit than others further down on the queue. Seniority is not an attractive criterion for organ allocation. It just here that the genius of voluntary gifts to strangers proves its worth. On the first point, perhaps there is no committee who can decide between the scientist and the mom. But there are many individuals functioning as a committee of one who are in a position to act on their decided views on the subject. Now that collective deliberations are no longer required, some donors could prefer the moms to save a family, and others could prefer the scientist to save all humanity. The public wins both ways.