Why ban payment to kidney donors but not football players?

Super Bowl week rivets national attention on America’s most popular and lucrative sport, professional football. If stories of concussion and permanent injury to players make some fans uneasy, there is always the reassuring fact that the players volunteer for the job and are well compensated – so well compensated that there are untold thousands of young men who would gladly take their place.

Football is so ingrained in our culture that we generally accept this situation without much scrutiny. However, our research got us thinking about the stark contrast with another risky but valuable activity – kidney donation.

About 6,000 people per year donate one of their two kidneys. This selfless act has some risk to the donor, both from the surgery and years later when there is a chance the remaining kidney will fail. In return, kidney donors are rewarded with the knowledge they helped save the life of a loved one. They receive nothing tangible. Indeed, federal law bans compensation for kidney donors, as do the laws of all other countries except Iran (really).

So, why do we pay football players to entertain the public, but are unwilling to pay kidney donors to save lives?

The stakes in both cases are high, but much higher in kidney donation. The total value of NFL teams is about $60 billion. If, in some unlikely future, the risk of serious permanent injury to players led to a ban on professional play, that value would be destroyed.

Meanwhile, the ban on compensation for living kidney donation currently costs thousands of lives and billions of dollars in taxpayer money every year. The waiting list for a kidney now includes 100,000 patients, who for the most part are kept alive by renal dialysis at federal government expense. If they survive long enough, typically more than five years, in this debilitated state, they may hope to rise to the top of the list and receive a kidney from a deceased donor.

Deceased donors are a limited resource: few people die under conditions that permit donation and the United States already procures a large percentage of healthy kidneys from deceased donors. What is needed are many more living donors. Current estimates suggest an offer of $50,000 per living donation would be adequate to recruit sufficient numbers to meet the needs of all transplant-eligible renal patients. This would eliminate the waiting list and prevent thousands of unnecessary deaths and years of unnecessary disability. Given standard value-of-life estimates, the present value of the public benefit of converting to a system of compensated donation would exceed $1 trillion – many times the value of professional football.

It should be noted that the alternative to the current ban on compensation is not a laissez-faire free market. Rather, the current system for regulating the allocation of available kidneys could be readily expanded. A nonprofit or government organization could offer a fixed payment to living donors who were screened to be physically and mentally sound, and then fully informed of the risks. To avoid “impulse” donations, there could be a mandatory waiting period.

And it should be noted that the medical risks to kidney donors are far less than the risks of a football career; most donors lead normal lives, while most NFL veterans are, to some degree, disabled.

Inevitably the chance to sell a kidney for $50,000 would be most attractive to people who are struggling financially. Some ethicists opine that a compensated system would exploit the poor. Yet, more than a few NFL players also come from poor homes and 70 percent are black, causing many to view the concussion crisis as another example of racial inequality. In our view, the risk of exploitation is not a legitimate reason for forbidding compensation to kidney donors, thus denying the poor full use of one of their potential assets.

Millions of Americans, not just NFL players, work in occupations that have a substantial risk of serious injury. Loggers, fishermen and others accept these risks in exchange for compensation. Extending that list to include kidney donors is just common sense.

Philip Cook is Terry Sanford Professor Emeritus of Public Policy and professor of economics and sociology at Duke University’s Sanford School of Public Policy. Kimberly Krawiec is the Kathrine Robinson Everett Professor of Law at Duke Law School.