More than a hundred thousand Americans are waiting for an organ, and every year the list grows by more people than transplants can serve. Each of us has a spare kidney, donation is remarkably safe, and the law makes it a federal crime to be paid for one. Why? And is the answer still good enough?
In this TalksOnLaw interview, Joel Cohen sits down with Glenn Cohen of Harvard Law School, one of the world's leading scholars at the intersection of bioethics and law and faculty director of the Petrie-Flom Center, for an hour on the law, economics, and ethics of the organ shortage — from the National Organ Transplant Act to the black markets of South Asia, and from the philosophy of coercion to whether the dead have interests at all.
A Problem Made of Successes
Professor Cohen begins by explaining why demand so outstrips supply: fewer traffic deaths and homicides mean fewer cadaveric organs; longer lives and better immunosuppression mean more people who can use one; diabetes and hypertension add to the queue. Kidneys dominate the picture because most people live full lives with one, the alternative is years of costly and painful dialysis, and donor outcomes are, on the data, nearly indistinguishable from those of non-donors. He walks through the National Organ Transplant Act's prohibition on "valuable consideration," the amendment Congress needed to bless paired kidney exchanges and the domino chains that now run through a dozen or more recipients, the curious fact that the statute has no extraterritorial reach — buying a kidney in Pakistan violates no American law — and the rarity of prosecutions, the Brooklyn broker who pled guilty being the notable exception.
Corruption, Crowding Out, Coercion, Exploitation
The heart of the conversation is a careful taxonomy of the arguments for the ban. Corruption — that pricing an organ devalues it — sits uneasily with a statute that permits the sale of sperm, eggs, and blood. Crowding out, Richard Titmuss's claim that markets drive out altruistic donors or attract tainted supply, is contested. Cohen spends the most time on coercion, exploitation, and undue inducement, and on why they are not the same thing: coercion, following Alan Wertheimer, requires demanding something one has no right to demand; exploitation is a claim of unfair price, which implies a fairer one exists; undue inducement is the opposite complaint, that the offer is too good. A regulator worried about both of the last two, he observes, is in real trouble unless there is a Goldilocks price. His own view is that paying someone more rarely makes them worse off, and that the argument with real purchase is justified paternalism — the risk of decisions good in the short run and regretted in the long — which he would meet with waiting periods, repeated consent, and other soft interventions before an outright ban.
The Cohen Plan, Iran, and Bone Marrow
Cohen declines to endorse any particular scheme, including the "Cohen plan" the host offers to sign onto, and argues instead for demonstration projects that would generate data: priority-for-donors systems like Israel's, scholarships or transferable benefits, or a government-monopsony model on the lines of Iran's, where citizens may sell only to the state, which allocates by need. Each objection to a market, he suggests, has a regulatory answer — price floors and ceilings, pre-qualification, counseling, cooling-off periods — and the chilling effect of the statute is such that even paired exchange required an act of Congress. He recounts the Ninth Circuit's Flynn v. Holder decision holding that bone marrow collected by apheresis is not an "organ" under the Act, so that incentives are lawful for one method of collection and criminal for another, and discusses opt-out systems for deceased donation, Spain's success, and the familial veto that American doctors honor in practice though not in law.
Do the Dead Have Interests?
A philosophical detour asks whether we should have a right to refuse donation after death at all. Cohen sets out the "experience requirement" — that nothing can make one's life go better or worse without being experienced — through a thought experiment about a brother lost at sea, and then the reasons the law might still honor posthumous wishes: distress to the living, and the perverse steps people might take if they feared their bodies would be conscripted. The conversation ranges into body property — saliva on a soda can, a case involving retained semen and a child-support claim — and whether one may leave one's arm to an art project. He notes that even universal deceased donation would close only a quarter of the gap.
Transplant Tourism
The final section draws on Cohen's book Patients with Passports. He describes the markets of the Philippines, Bangladesh, Pakistan, India, and Egypt: sellers recruited from bonded labor and debt, paid the equivalent of two to four years' wages and typically only two-thirds of what was promised, told their second kidney is merely "asleep," marked for life by crude scars, and reporting regret in a majority of follow-up studies. He explains why the American statute does not reach these transactions and what might: an extraterritorial offense on the model of the PROTECT Act, conditioning insurance coverage of immunosuppressive drugs on proof of a lawful transplant, the World Health Organization's principle of national self-sufficiency, and — he suspects — a well-regulated domestic market that reduces the demand driving patients abroad. He closes with the observation that the United States, unusually, lists foreign patients for organs on equal terms with citizens, and a plea for empirical evidence in a debate long on normative argument.
What to Know Now
Much of what Professor Cohen asked for has begun to happen. The demonstration project he called for now has a vehicle in Congress: the End Kidney Deaths Act, reintroduced in 2025 with bipartisan sponsors, would create a ten-year pilot offering non-directed living kidney donors a refundable federal tax credit of $10,000 a year for five years — an incentive structured, as he anticipated, to pass political muster in a form other than cash. It has not been enacted, but the federal government has moved on the removal of disincentives, with a 2020 rule reimbursing living donors for lost wages and child and elder care, and New York and many other states have adopted living donor protection laws covering job-protected leave and insurance discrimination. The allocation system he described has been restructured: the Securing the U.S. OPTN Act of 2023 ended UNOS's four-decade monopoly and allowed multiple contractors, and a new independent OPTN board was seated in 2025. Transplants have set records for five consecutive years, reaching more than 49,000 in 2025, and the waiting list, above 120,000 when this conversation was recorded, has fallen but remains above 100,000 (about 110,000 as of mid-2026) — progress that reflects broader criteria for deceased donors and new perfusion technology more than any change in the law. The Flynn holding on bone marrow stands; a federal rule proposed to reverse it was withdrawn. And a source of supply no one discussed here has arrived: after a series of compassionate-use cases, the Food and Drug Administration in 2025 cleared the first clinical trials of gene-edited pig kidneys in human patients, opening a path that would change the economics of the shortage — and the ethics debate — entirely. The black markets, and the statute's silence on transactions abroad, remain as he described them.
