An Ethical and Practical Argument for the End Kidney Deaths Act 

by Dr. Ron Shamaskin, MD

The End Kidney Deaths Act (EKDA) proposal is a ten-year trial program to provide a $10,000 refundable tax credit over five years ($50,000 total) to living kidney donors who give kidneys to recipients they do not know.  By the tenth year after the passage of the EKDA, up to 100,000 Americans who may have died on the waitlist, or have been delisted, could have healthy kidneys, saving taxpayers up to $37 billion in dialysis payments.  This is both a compassionate and pragmatic policy.   

Medical therapies are evaluated by evidenced-based studies, and this program should be under the same scrutiny.  I recognize that arguments exist against proposals of this type, and I welcome their introduction for dialogue.  But there are plenty of personal, societal, and financial considerations that cannot be ignored.  It is time that a regulated trial program be started and that we research the data that it generates.  My argument follows.    

The EKDA promotes an incentive for donating kidneys to strangers and establishes a regulated government-run reimbursement to donors for their labor and services.  The EKDA does not promote the selling of organs or organ vending; no marketplace would exist where an organ would go to any bidder.  It would still be illegal for recipients to buy organs.  The reorganized United Network of Organ Sharing under the guidance of the Organ Procurement and Transportation Network and CMS, is the single acquirer of organs and distributes them based on need. 

All potential donors, whether directed or non-directed, go through the same mental and physical health examinations by multiple caregivers over six to nine months.  No one would be making an impulsive decision and then receiving a financial windfall.  The motives for donation are deeply explored in psychological evaluations.  Lesss than 5% of potential donors end up providing a kidney due to medical, psychological, or social exclusions.  This fraction of donors emphasizes the need to incentivize donations. 

By producing many more non-directed donors (NDD), the EKDA would particularly benefit medically disadvantaged dialysis patients, the population most in need.  But citizens from this population are least likely to give a kidney because of the expense of donating. The EKDA addresses this disparity, and would make willing donors able donors.  As well, the incentive for Americans to participate in transplant tourism would markedly decrease. 

The kidney shortage is deadly, and the number of non-directed donors has not increased in 8 years, remaining at roughly one per day nationwide.   Meanwhile, the risks to dialysis patients compound, and so does the cost.  Living donor kidneys on average function nearly twice as long as deceased donor kidneys, thus generating the high interest in recruiting more NDDs.  Furthermore, chained kidney donations, where up to dozens of non-compatible donor-recipient pairs are rearranged to compatible pairs, tremendously amplifies the living kidney donations.  But only if one altruistic individual steps up to lead.   

In moral philosophy, utilitarianism has as an ultimate moral standard the principle of utility. This rule states that an action is morally required because it does more to improve overall well-being than any other action you could have done in the circumstances; it yields the greatest proportion of benefits over drawbacks.  The beneficiaries of the action are impartial.  Everyone agrees that moving patients from dialysis to kidney transplant improves their well-being, and, therefore, provides much more happiness to society than potential sorrow due to donor coercion.  Legislators, as civil servants, devote their time and energy to the welfare of their constituents. They make laws that yield the greatest proportion of benefits over drawbacks. Therefore, through their altruism, legislators should give proper weight to the morality of the benefits, subscribe to this moral principle, and support the morally required actions.  Virtue ethics also promotes this worthy standard, not only because the resulting action is honorable, but because of the reasoning behind the action.          

The philosopher Immanuel Kant discusses respect for individuals as their own independent agent.  Denying a potential donor their ability to choose consistent with their values, priorities, and their own moral constraints, shows great moral disrespect.  Autonomous, educated, thoughtful choices demand respect, and we should honor their judgment and will.  Presuming that someone or something knows what is better (or best) for us, is shortsighted and paternalistic.  Prohibiting compensation based on this argument is not justified.     

Despite all these reasons, an extremely rare deception and coercion risk exists.  So, the corollary question is: What is the risk of doing nothing, of not passing the EKDA?  The risk is evident from decades of data.  It is guaranteed that many thousands of unneeded deaths per year will occur by withholding the gold-standard proven treatment, an organ from a living donor.  There will be more pain, suffering, and complications from dialysis.  Medicare will spend more money, billions more, without this tax credit from the EKDA.  There will be fewer able-bodied taxpayers.  And there will be a lot more sadness, despair, and lack of trust in our healthcare system, moving further away from our pursuit of happiness.    

Guaranteeing saving thousands of lives is worth risking a rare threat of deception.  If you are looking for zero risk, it does not exist, not within the current system, nor with the EKDA.  The transplant centers' intensive qualification tests, including donor motivation, do their best to detect exclusions, but no system is perfect. Creating an incentive for donation carries with it a very low risk of abuse.  The rare danger of a possible manipulated donor is not worth sacrificing countless thousands of lives per year. The ethical balance here is not even close.