The Harm Reduction Argument for Legalizing Kidney Markets

Abstract

In the illegal kidney trade, sellers are often ripped off, coerced, not given proper medical care, and misled about the dangers and illegality of nephrectomy. Recipients often pay for poor quality surgery and unhealthy or mismatched kidneys. Some writers argue that the illegality is what causes these harms and wrongs, not the trade in itself. They say the legalization of kidney sales would reduce harm. This harm reduction claim is what I develop and assess in this article. The article sets out the ethical and empirical components of a utilitarian version of harm reduction. It explains how legalization would probably reduce the harms of black markets but why we do not know how legalization would affect the supply of organs or the number of harmful transactions in a white market. In short, we cannot be confident that legalization would reduce harm overall. However, I try to show how the case for legalization might be strengthened by adding to the utilitarian focus on aggregate welfare. A special concern for the worst off and a concern to avoid the wrongs of sale both turn out to be likely better met by legalization than criminalization. The harm reduction argument does not settle the debate about legalizing the organ trade but it has more force than critics of sale have realized.