We contrast the compensation ban on organ donation with the legal treatment of football, boxing, and other violent sports where both acute and chronic injuries to participants are common. Our claim is that there is a stronger case for compensating kidney donors than for compensating participants in violent sports. If this proposition is accepted, one implication is that there are only three logically consistent positions: allow compensation for both kidney donation and for violent sports; allow compensation for kidney donation but not for violent sports; or allow compensation for neither. Our current law and practice is perverse in endorsing a fourth regime, allowing compensation for violent sports but not kidney donation.
We base our argument chiefly on the medical risk to participants, the consent process, social justice concerns, and social welfare considerations. The medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. On the other hand, the consent and screening process in professional sports is not as developed as in kidney donation. The social justice concerns stem from the fact that most players are black and some come from impoverished backgrounds. Finally, the net social benefit from compensating kidney donors – namely, saving thousands of lives each year and reducing the suffering of 100,000 more receiving dialysis – far exceeds the net social benefit of entertaining the public through professional sports. In sum, the arguments against compensating kidney donors apply with equal or greater force to compensating athletes in these sports
Philip J. Cook & Kimberly D. Krawiec, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?, 81 Law & Contemporary Problems (forthcoming 2018)
Library of Congress Subject Headings
Donation of organs tissues et., Kidneys--Transplantation, Risk, Payment, Sports injuries, Markets--Moral and ethical aspects