Tom needs a kidney. He’s rich and rather than wait for a legitimate organ transplant that may never come he hires Dick to “acquire” one. Dick arranges for Harry to be drugged and his kidney stolen. After the kidney is transplanted into Tom law enforcment tracks them down. Does Harry have to right to demand his kidney back from Tom even though it means Tom will die? What if Tom acquires it for his 11 year old daughter Jane? Jane had to knowledge of what her father was doing. Assume that it’s possible for Harry’s kidney to be transplanted back into him (or is it in real-life)?
Been reading “The Merchant of Venice” have we?
IANAethicist. Nor do I play one on TV.
I’d say that’s tough luck for Tom and really, really sad for Jane, but it’s still Harry’s kidney. If Harry wants to give the kidney over voluntarily to either Tom or Jane, that’s nice, but if it’s stolen from him it’s still his–and he needs it back.
The system for legitimate organ transplantation may suck, but the solution is to change the system–not to commit theft.
IANAethecist (or a lawyer) either, and frankly, I don’t know how the law would judge this. The kidney is different from other stolen property in one significant detail, however.
Before Tom received the illegally obtained kidney, he was somehow limping along with his old kidney, which has now been discarded. If Harvey demands the kidney back, then Tom (or Jane) will die. I cannot see any judge signing an order for this to happen.
Add to that the fact that the kidney may or may not be able to survive a second removal/reinsertion procedure, and I think that Harvey will wind up having one kidney less than when he started.
However, there would doubtless be other civil and criminal penalties which could be brought to bear.
For the sake of argument lets assume that the kidney will surive retransplant.
As a point of information, this is incorrect. In a kidney transplant, the old kidneys are not removed. The new kidney is simply implanted under the fascia of the anterior abdomen, and attached to the iliac artery and vein. And Tom likely would not die if it were removed, but he would probably need to go on dialysis.
I don’t see any reason that the kidney would not work if implanted back into Harry. However, it would almost certainly be more dangerous for Harry to go through another operation for the kidney to be reimplanted than to go through life with one kidney.
I do not know that the law would treat this case any differently from any other case involving stolen property. I imagine Tom could be ordered to either return the kidney or pay some compensation to the victim. I imagine the latter would be more likely as we have already established that Tom is rich. After all, large amounts of cash can ease a lot of pain. But I’m uncertain if that would violate current laws against selling organs.
Mu (and sorry; I did read your last post.)
Nope, not really. There will be enough of Tom in the kidney that it would be rejected unless the original donor/seconday recipient took antirejection drugs for the rest of their life. Becuase of the drugs they would also have to avoid carcinogens that you and I wouldn’t have to worry about and it would be a good idea to keep the house and kitchen extra clean.
No one would want to have a redundant organ replaced, and they would be dead if a nonredundant organ was entirely removed. The pamphlets for kidney donation have titles like “You Can Live.” Why would someone want their life reduced to that just to have a non-necessary chunk of flesh back in their gut?
What if Tom didn’t know the organ was obtained against Harry’s will? Does that change anything?
Let’s work on an analogy here.
Tom is destitute. He hires Dick to steal a sizable sum of money from the very wealthy Harry. Harry’s standard of living will probably not be adversely effected but the loss of that sum and it would take Tom and his family off the streets and into a safe apartment somewhere.
If Tom is caught are you making the argument that he shouldn’t repay Harry?
I don’t see how this is much different.
“…so I woke in the bathtub packed in ice with a big cut on my back that was bleeding. And I went to the hospital and the X-rayerd me and the doctor told me that my kidneys were still there. But one of them had been taken out and put back in backwards, and attached to it was a note that said “If we want it, we’ll take it.””
In that case, if I were in Harry’s position, I would want my kidney back even if I was going to keep it in a jar on my desk. It’s my kidney. In all honesty, I would probably be satisfied with a judge saying I could have my kidney in a jar if I wanted, but would then feel magnanimous and let the kidney-user keep my kidney, especially if it was being used by a child or person who didn’t know their new kidney was illegal.
I would also be expecting some SERIOUS RESTITUTION. I also wonder if any legal provision could be made for me in the event that at some point in the future there’s some issue with my remaining kidney and I myself would require a new one.
What about the medical ethics involved? Even if a judge orders Tom to return the kidney to Harry, is there a doctor & medical team who would do it? One of a doctor’s principles is “do no harm”, yet removing the kidney from Tom would be directly harming him.
That is very true. Nonmalfeasance is one of the basic priciples of medical ethics, and it would certainly be doing Tom harm to remove the kidney from Tom and forcing him to go back on dialysis, where the average survival is less than 10 years.
Beneficence is also a principle to consider here–it really wouldn’t do Harry any good medically to put the second kidney back.
To extend the question a little more interestingly for those who think the recipient should keep it, what if Harry’s remaining kidney suddenly failed, resulting in the need for him to go on dialysis?
I’m with the ‘Harry deserves his kidney back’ camp myself, in all scenarios.
I believe that the kidney, and the body attached to it, should be returned to Harry for indentured servitude. That, or the child/children of Tom should be automatically available for organ donation should Harry ever have the need for a heart, liver, skin graft, what have you.
Tom is an idiot.
In order for Tom to have a transplanted kidney and not take immunosuppressant medications, he’s going to need a genetic twin who’s never had a blood transfusion, has no allergies, and is free of disease. As it is, he’s going to pay some thug to take a random, untyped kidney from a complete stranger — a stranger, moreover, who has not been tested for HIV, hepatitis, blood type, or any other communicable diseases — and hope to God he’s able to get a legitimate doctor a) perform the transplant without asking where the organ came from, and b) to write him a prescription for $1000/week immune suppressant medications. Not only that, but if he’s trying to keep his condition a secret, he can never go to the doctor safely again, because they ask you niggling things like, “Have you ever had kidney problems in the past?” and “you stopped going to dialysis, why aren’t you dead yet?” and “what’s this extra kidney doing on your X-ray?” and “it says on your form you had a kidney transplant done — who was the surgeon? I need to consult with him.” Five years post-transplant, and damn near everything I go to the doctor for, they’re consulting the nephrologist in charge of my case, and he’s consulting the medical center where it was done.
In addition, Tom is so stupid as to hire a thug which leaves the victim alive to file a lawsuit. What’d he do, hire Jeff Gilooly?
The risks for Tom to do so are pretty severe. The risks for Harry to demand the kidney to be re-grafted into himself are no less. For all Harry knows, Tom is also an intravenous drug user with a whole host of diseases. It may be Harry’s tissue but you can’t extract a vascular organ such as a kidney without taking a few drops of blood. And if Tom had ever had a blood transfusion in his life, he may have antibodies in his bloodstream that could make Harry’s life pretty miserable.
Other than asserting that Harry, if he’s smart, wouldn’t really want the kidney back inside him, I can’t really answer this question because Tom, if rich, has many more alternatives than to buy a random kidney from an unknown, untested assault victim. I figure Tom would be slapped with some kind of jail sentence for conspiracy to commit assault, and Harry would file the biggest-ass lawsuit for damages you can think of, and he’d get it.
A more interesting question is this: if Tom does do this anyway, and takes Harry’s kidney, and Harry had HIV, and the operation gives HIV to Tom, can Tom sue Harry, or Dick, or the transplant surgeon, for endangering his life?
Real-life kidney-liver transplant recipient speaking.
Speaking as the person who would want my kidney back in a jar, the first doctor I would consult with would be the one that removed Tom’s kidney without his consent in the first place. Let that person go crying “medical ethics” to the judge.
Fish, thank you for that wonderfully evocative and informative - and entertaining - response.
Lets say it won’t, and they know it probably won’t. What then?
I think that he still has the right to have it back… Gruesome as that may be. Though if I were Harry and I knew the thing wouldn’t survive I’d go through everything to get it back then let the guy keep the damn thing while he’s on the operating table (assuming I was successful in getting the court’s blessing on having it returned).
Since Tom is rich enough to pay someone to find him a kidney, couldn’t he just pay Harry for the donation of the kidney. Give Harry a million or two and see how fast he fogets about his kidney.
P.S. I know someone who is back on dialysis after refusing to take anti-rejection drugs when she finally got a kidney transplant.