Should human organs be for sale?

Why does federal law prohibit the sale of human organs, as specified in the National Organ Transplant Act of 1984? The answer, according to Kara Swanson, an associate professor of law at Northeastern University, lies in a tangled web of legal rulings and widespread fear of the now defunct professional blood donor.

“The current focus of policymakers on whether or not to permit sales was not an inevitable result of the science and medicine of body products,” she said, “but arose out of a complex of social factors.”

Swanson—an expert in the history of science and medicine—delved into the history of human body product regulation on Tuesday afternoon at the Raytheon Amphitheater, delivering the 51st annual Robert D. Klein Lecture to more than 100 students, faculty, and staff.

The Klein University Lecturer Award was established in 1964, upon the recommendation of the Faculty Senate, and honors a member of the teaching faculty who has contributed with distinction to his or her field of study. The award was renamed in 1979 in tribute to the late Robert D. Klein, professor of mathematics and vice chairman of the Faculty Senate.

Swanson based her talk on her 2014 book Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America, which argued that we should think more creatively about the sale of body products rather than assume that cash payments induce exploitation.

She noted that her historical research uncovered a world in which body product exchange was premised on the paid supplier. In the 1910s, she said, doctors began offering cash for blood. These so-called “professional donors” were organized into registries by hospitals, which offered a doctor a willing seller who had been given a thorough physical.

“The supply was adequate and safe,” Swanson said. “Doctors,” she added, “promoted blood selling as a respectable way to earn money and monitored the health of paid suppliers by requiring periodic exams and limiting the frequency of bleeding.”

The one problem with this practice, she noted, was that each blood transfusion was a person-to-person sale, and those too poor to pay the $25 to $50 fee would not be permitted to receive the procedure.

But all that changed in 1937. That’s when Dr. Bernard Fantus established the first blood bank in the U.S., effectively transforming blood into property that doctors could own and allocate at their medical discretion. Those too poor to pay for a professional donor could now receive a blood “loan,” Swanson said, which they were permitted to pay back by giving blood.

The blood bank, she noted, did not eliminate the paid supplier—some patients chose to pay their debts with cash, which the hospital used to buy more blood—but its inception did begin to shift the primary source of suppliers from the professional donor to the so-called “replacement” donor, who paid back his “loan” by donating blood following recovery.

“In the world of blood banking,” Swanson explained, “it was the replacement donor who was being a responsible, thrifty citizen—acting, if not professionally, then like a man of business, keeping his accounts balanced—while the paid donor became regarded not just as a supplement but perhaps as a necessary evil.”

Fear of the professional donor as a source of harm developed during the 1950s and the 1960s, she said, and represented an “unintended consequence of the blood bank.” The backlash began in the courts in the 1950s, when patients harmed by blood transfusions started suing banks and hospitals. The courts—noticing that the banks had begun charging patients a hefty “replacement” fee that would be lifted upon repaying their blood loan in kind—began treating blood like a product and hospitals like the manufacturers. In response, banks and hospitals changed their replacement fees to processing fees, but that did nothing to allay their fears of the paid donor’s role in the product-like system. “Once banks and hospitals dropped the idea of direct monetary payment by recipients for blood, then the most product-like part of the blood system were payments by banks to suppliers, and blood bankers got a little nervous about those as well,” Swanson explained. “So, there were legal reasons to start moving away from paid suppliers.”

Public health reasons figured into the equation too. Many of the lawsuits, Swanson noted, were brought by patients who got hepatitis—the most feared blood borne disease of the time. And some studies—widely reported in newspapers—showed that blood taken from paid suppliers was more likely to give hepatitis to recipients than unpaid blood, “feeding public fear of getting blood from disreputable, skid-row bums.”

In 1970, the British sociologist Richard Titmuss published “The Gift Relationship,” a seminal book that further censured the paid donor. He argued, Swanson explained, that the reliance on paid suppliers led to the inefficient, unsafe management of the American blood supply, which included too much diseased blood. “His indictment of the paid supplier was highly influential,” Swanson said, “and put the final nail in the coffin of the formerly vaunted ‘professional donor.’”

The American Association of Blood Banks raced to voluntary eliminate paid suppliers by 1974, she said, while blood—the most common body product—acted as the model for other body products. “By the time organ transplants were becoming more successful and more common,” she said, “it was conventional wisdom that everything Titmuss had told us about the paid blood supplier as the source of harms in body product exchange was equally true for the paid organ supplier.”

In conclusion, Swanson raised three points that, she said, have gotten lost in the debate over whether body products should be considered gifts or marketable commodities: Supplier compensation is a means, not an end; payment can promote safety; and suppliers, as well as recipients, can benefit from a well-honed system of body product exchange.

“To be clear,” she added, “I’m not arguing that all body products should be collected and distributed in the same way. But I think that history suggests that we would be well-served by setting aside our instinctive fear of paid body products as an historic artifact.”