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cockswain's avatar

Hypothetical question about organ theft?

Asked by cockswain (15271points) February 9th, 2011

I’m watching a messed up Korean movie, and I got to thinking: If someone stole my kidney and put it in someone who needed a transplant, do I have a legal right to have it back?

Consider two situations, one where the recipient knows the kidney is unlawfully stolen, and the other where the recipient knows nothing of where it came from. Also assume the recipient will die if the kidney is removed, and I can survive with only one.

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9 Answers

WestRiverrat's avatar

You probably wouldn’t want it back, even if you could take it back. After being in someone else, your body will likely reject the organ. You would need to take serious anti rejection drugs to counteract this. Most of those can lead to a compromised immune system.

cockswain's avatar

I’m more wondering about my legal rights in such a situation.

Dr_Lawrence's avatar

You would be entitled to some serious compensation, even if you were willing to forego demanding the return of the organ.

WestRiverrat's avatar

@Dr_Lawrence Wouldn’t that compensation be more likely to come from the surgeon and the facility that performed the procedure than from the recipient of the kidney?

cockswain's avatar

Assume this was a black market thing.

funkdaddy's avatar

~ You’re just going to have to think your completely hypothetical questions through a little more completely next time @cockswain :P ~

I believe if an organ would be considered “property” then regardless of whether they knew it was stolen or not it could be seized.

The really cool thing is that you’d probably have to apply to get it back as well once it’s seized.

Your kidney, sitting in a plastic bag somewhere, waiting for you to fill out form 479B and present two sworn affidavits saying it is indeed your kidney.

WestRiverrat's avatar

You would probably need the permission of the recipient to perform the surgery to remove the organ from their body. At least in the US you still have the right to refuse medical treatment.

iamthemob's avatar

There are is a lot of discussion in the bioethical/legal communities surrounding this issue – this is a good short summary, as well as this.

Property rights in the body generally, and organs specifically, are considered as a sort of “quasi property” right – it really depends on what the part is, if the person is living or dead, the use of the material, etc. Organ sale is forbidden under U.S. law – there was an interesting case where a guy put up organs for auction on e-bay. So, it’s fairly clear that regardless of the recipients knowledge of whether the organ was coming from that the entire transaction in the U.S. would be understood to be illegal.

Now, can you sue to get it back? You can – you’ll lose. It’s not going to matter whether the person will die or not without the kidney. A man in NY recently sued his wife to get his kidney back or the cash equivalent of its value. The concept itself was pretty offensive, which shows you where we are legally at this point as to suits for the original “owner” of organs that have been transplanted.

An interesting aspect of this, of course, is that an organ transplanted into the body of another is, in many ways, no longer yours. It is integrated into the system of the recipient, and is therefore going to contain, if examined or removed, tissue, fluids, etc. that are completely native to the recipient and alien to you. So part of the question is not only you’re right to the kidney, but also you’re right to the aspects of the kidney that reasonably belong to the recipient that they would have to give up and you never had.

On the money side, in this case, I bet the result at this point would be a big, big reward for you from all parties, jointly and severally. There would be a huge policy consideration in allowing a person to keep the kidney with impunity. The court would be encouraged to set precedent that would disincentivize the behavior – a big settlement might, “reasonably”, act to make people reconsider a transaction like this knowing that, if found, the consequences to them could be devastating.

Of course, I don’t think there’s anything that would have any effect that the court could do. A person in such grave need is acting on survival instincts – you can’t disincentivize survival.

cockswain's avatar

@iamthemob Wow, that’s a better answer than I was expecting to be possible. Thanks.

The second link requires a membership. Still reading the first.

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