Kidney Donation and the Consent of the Poor

In Consentability, Nancy Kim tackles an important and current topic—in an age of increasing options about how to live, die, and procreate, what limits, if any, should the law place on those choices? Consentability is a valuable resource for scholars and policymakers alike, summarizing the arguments for and against government intrusion on the choices of consenting adults with encyclopedic thoroughness. After weighing the arguments, Kim proposes that “bodily integrity exchanges” be permitted, subject to limitations. Although we agree with the general conclusion that bodily integrity exchanges should be permitted, we disagree with the specific limitations that treat the decisions of the poor as suspect, proposing instead methods of structuring payments and the consent process that would enhance the decision-making quality and reduce the possibility of impulsive decisions for all donors— not just those meeting an arbitrary definition of poverty. In any event, when it comes to a life-saving transaction like kidney donation, it is ethically important to consider the welfare of the recipient as well as the donor.