Will there be blood?

We do not collect enough blood plasma to meet the needs of patients who rely on therapies made from the proteins in that plasma. These therapies include albumin, a variety of clotting factors, and immunoglobulin, among others. Immunoglobulin is used by people with mostly rare diseases like acquired or in-born immune deficiencies, a variety of neurological disorders like multifocal motor neuropathy, autoimmune disorders like chronic inflammatory demyelinating polyneuropathy, and others. Immunoglobulin is a World Health Organization (WHO)-certified “essential medicine.” For about 50 percent of the patients who use it, not having access to it means significant suffering or death.

We have shortages of immunoglobulin, with estimated demand outstripping available supply since about 2009.Footnote ³ We are not in this situation due to plasma donation being arduous or risky. Donating plasma is similar to whole-blood donations, although they are inconvenient and last more than an hour. Unlike whole-blood donation, people are able to donate plasma frequently (up to twice a week in some jurisdictions). Plasma donation comes with some risks, but these are rarer than injuries from fishing for crab, driving a truck, or rock climbing.

We have shortages in plasma therapies for two main and related reasons. The first reason is that the preferred models of plasma collection are inefficient and overly expensive, so that governments have been unwilling to spend the sums required to collect sufficient plasma. Every country that uses these models has plasma-collection deficits. The second reason is that the more efficient and less expensive models are so dispreferred that they are banned in most countries. Despite only operating in a handful of countries, these models nevertheless provide nearly 90 percent of the plasma used to manufacture plasma therapies—and specifically, immunoglobulin—for the world. The United States alone provides approximately 60–70 percent of that global total, including more than 80 percent of Canada’s, almost 100 percent of the U.K.’s, nearly 50 percent of Australia’s, over a tenth of New Zealand’s, and more than a third of the European Union’s.Footnote ⁴

The cost of plasma collections for the preferred models, all of which are noncompensated, has been estimated to be at least two to four times that of compensated collections.Footnote ⁵ This is mostly a function of volume, although there are higher marketing costs associated with having to remind, nudge, and cajole donors to give. In the U.S., the average compensated plasma donor gives 21.4 times per year,Footnote ⁶ while the average noncompensated donor in Quebec gives 5.8 times per year.Footnote ⁷ Noncompensated centers collect somewhere between 10,000–20,000 liters per year, while compensated centers collect two to six times that volume, with similar infrastructure and employee costs. These higher collection costs result in higher costs of therapies. As one example, commercial immunoglobulin therapies cost Australia’s health-care system AUD$45.90 per gram in 2019, while the therapies made from noncompensated collections came in at a cost of AUD$143.72 per gram—or 213 percent more expensive.Footnote ⁸ That year Australia used about 6.5 million grams of immunoglobulin, meaning that Australia’s health-care system paid a more than AUD$200 million premium to operate a noncompensated collection system.Footnote ⁹

The costs may help explain why governments are unwilling to dedicate hundreds of millions more to avoid plasma-collection deficits.Footnote ¹⁰ This is especially so, given that there are no differences in the safety or efficacy of the therapies whether they are made from the plasma of compensated or noncompensated donors.Footnote ¹¹ What requires explanation is why countries such as Australia, New Zealand, the U.K., Spain, France, Italy, several provinces in Canada, and so on would prohibit domestically what they all rely upon from abroad to make up for their collection shortfalls.Footnote ¹²

Commercial compensated plasma collections are equally safe, are significantly cheaper, and are effective at meeting patient needs. Noncommercial, noncompensated plasma collections are equally safe, but are significantly more expensive and fail to meet patient needs, thus requiring imports of commercial therapies. But most countries prefer to have only the noncommercial, noncompensated plasma collection models operate within their borders. Why?

Objecting to blood money

Many reasons have been offered for banning commercial compensated plasma collections. Some of these reasons rely on empirical facts. For example, some worry that compensated collections for therapies will negatively affect noncompensated collections for transfusions.Footnote ¹³ Some worry that compensation will encourage too-frequent donations, and so harm donor health. Others worry that such collections will not benefit domestic patients but will be sold abroad to the highest bidder.Footnote ¹⁴ These objections are vulnerable in different ways. One way is that the empirical evidence may turn out the other way. This may be true in the case of the first two worries because the evidence we have so far suggests that they are either overstated or wrong.Footnote ¹⁵ Another way all of these kinds of objections are vulnerable is that they do not deal adequately with the significant variation in existing commercial models. A third is that it is difficult to see why these objections point to prohibition rather than changing regulations through policy redesign as the right solution.Footnote ¹⁶

This redesign response can also present a challenge to some defenses of bans based on, for example, wrongful exploitation. These objections seem overwrought and implausible given that plasma donation is not a big deal,Footnote ¹⁷ but even if they were plausible, they do not show that we should prefer prohibition to redesign. If donors get too little, we can mandate a price floor rather than ban the practice outright.

Semiotic arguments

Arguments that rely, instead, on social meanings or public understandings of these practices or the policies and laws that permit these practices may initially appear to be more resilient against redesign responses. They may seem that way because, as Julian Jonker puts it, they “seem to ground objections that are intrinsic, necessary, and a priori.”Footnote ¹⁸ They seem immune to policy redesign responses and, perhaps for that reason, are especially popular. Some exploitation arguments are semiotic, as are some arguments about autonomy.Footnote ¹⁹ When people argue that noncompensated donations promote (or compensated donations undermine) altruism or community solidarity, these arguments sometimes rely on the practice being publicly understood as a “gift” exchange.Footnote ²⁰

Commodification objections to commercialism or compensation are often, and maybe always, semiotic. Semiotic versions worry that sales and trades of plasma will communicate a meaning associated with archetypal sales and trades that will lead us to regard donors or other persons as mere commodities.Footnote ²¹ This commodificatory attitude is a form of disrespectful regard and so wrong, but possessing this attitude can also lead to downstream harms, bads, or wrongs. For example, disrespectful regard may lead to disrespectful treatment; a phlebotomist may take less care in finding a vein or may be indifferent to signs of pain, discomfort, or a possible fainting episode when he is dealing with a donor he regards as being only instrumentally valuable. In taking less care, a donor may be harmed as a downstream effect of disrespectful regard. A very different example might be that sales and trades of plasma may “contaminate” the meaning of noncompensated donations by making us understand all donations, including noncompensated ones, in accordance with archetypal sales and trades.Footnote ²² This can lead to a loss in our ability to publicly express certain values or may undermine our thinking of noncompensated donations as a gift, given on the basis of altruistic fellow-feeling, and so decrease donations in general or only noncompensated donations.Footnote ²³

Semiotic arguments are vulnerable in multiple ways as well. For example, we might argue that the purported norms and meanings of commercial practices put forward by critics are closer to stereotypes than archetypes.Footnote ²⁴ A different way is to offer semiotic arguments against prohibition. It is not implausible to argue that legislated prohibitions on commercial practices express attitudes of domination, disrespectful paternalism, inegalitarianism or elitism, and a lack of trust in citizens that may have a corrosive effect on solidarity.Footnote ²⁵ When we have good reason to believe that permitting sales and trades would save more lives or have other beneficial downstream effects, an argument could be advanced that bans express callousness with regard to the value of human life or an inappropriate weighting of the relevant values at stake. If we ban for the sake of altruism or solidarity, this plausibly expresses an instrumentalist attitude toward patients whose medical plight and vulnerability is potentially regarded as a useful tool to promote these values.Footnote ²⁶

Setting aside these and other options, meaning-reliant or semiotic arguments are susceptible to the analogue of redesign in the form of what we might call “semiotic revision” or “revision” for short. As Jason Brennan and I argue,Footnote ²⁷ these meanings look like contingent social constructions that can be revised. If so, then revision and bans would both address whatever harms, bads, or wrongs led us to worry about the practice in the first place. And if that is so, then these arguments are as incomplete as empirical arguments and we need to know why we ought to prefer bans over redesign for empirical arguments or revision for semiotic ones. Here, it looks like the thing to do is to do a cost-benefit analysis comparing ban to revision or ban to redesign.Footnote ²⁸

In response, people have challenged both the possibility and the feasibility of revision.Footnote ²⁹ Some have argued that the meaning of some practices are nonrevisable because they are not contingent social constructs.Footnote ³⁰ Responding to this objection is not the focus of this essay, but it does seem implausible. This objection will probably fail whether you deny its being contingent based on some purportedly necessary association between a practice and its meaning or based on conceptual necessity. You can try to argue that for something to be a practice of this sort is for it to include some feature that embodies or leads to something morally ugly, but then there is “schractice,” which is just like practice without the feature that is or leads to moral ugliness. Claims about conceptual necessity will then also just collapse into cost-benefit analysis between whether we should have practice or “schractice.”Footnote ³¹

The more plausible rejoinder is that the meaning of some practice is so tightly interwoven into the fabric of our social meaning universe that it is practically closed to revision, even if it could be revised in principle. Most recently, Brookes BrownFootnote ³² and Kenneth SilverFootnote ³³ argue that feasibility constraints need to be taken much more seriously as objections to revision. The remainder of this essay attempts to show that revision is practically feasible in the case of commercial compensated plasma collections (and in similar, related cases).

Practical feasibility

In defending an expressive theory of law, Elizabeth Anderson and Richard Pildes acknowledge that the meanings that expressivism relies upon are social constructsFootnote ³⁴ and that they might differ over time.Footnote ³⁵ If so, then we can compare the constructs or conventions and ask which one is better. Unfortunately, Anderson and Pildes do not tell us when we should strive to revise meanings rather than operate within their constraints.Footnote ³⁶

Similarly, Anderson, writing separately, offers expressive (among other) objections to prostitution that are supposed to justify prohibition. With respect to expressive objections, she notes that there is a possible future world where “sex therapists” have sex with patients for money and that in this world payment for sex would not express degrading attitudes associated with the current practice of prostitution.Footnote ³⁷ Unfortunately, Anderson does not tell us why, given that sex therapy would be fine, we should nevertheless prefer the strategy of working toward a ban rather than the strategy of working toward a world with sex therapists.

In a different context, Anderson does give us one bit of guidance. Someone might propose that we change the meaning of concepts such as benevolence and love in such a way that “agent-neutral principles could adequately express them” in order to “minimize the costs of a meaningful life.”Footnote ³⁸ Here, Anderson offers an infeasibility rejoinder: “The proposed reformation of meaning is akin to asking us to speak FORTRAN instead of a natural language. The whole system of meanings in terms of which we understand our lives becomes unhinged.”Footnote ³⁹ Perhaps Anderson believes that a world that allows sex therapy is infeasible or less feasible than banning the practice.

The danger is that if we allow practices similar to sex for money and fail to change its meaning to a sex therapy one, we might have a very bad outcome. As Brown says:

As in prostitution, so too might we say the same when it comes to substances of human origin.

Before responding to this infeasibility objection, it is worth pointing out that the danger is not one-sided. Bans on commercial practices can also be dangerous. For example, banning alcohol sales turned out to be dangerous, while bans on prostitution are plausibly the source of similar danger and moral harm. Bans on commercial compensated collections of substances of human origin are partly if not fully responsible for shortages, and so responsible for unnecessary suffering and many unnecessary deaths. But in principle, it is clear that sometimes a commercial practice may be more dangerous than a ban in anticipation of such danger.

Is it true that commercial practices are practically closed to revision? Below, I argue that at least when it comes to commercial compensated collections of substances of human origin, they are not. To respond to this objection, we will first look at Margaret Jane Radin’s discussion of the legal practice of courts’ compensating people for certain injuries and treat that as a model. Radin defends something that looks very much like semiotic revision in a case that she argues involves multiple, contested understandings. She defends the strategy of attempting to coordinate on one of the inoffensive understandings of the practice, offering several practical ways to do that. She suggests that if that were to fail, then we can think about abolishing the practice. I will try to make the case that the practice of commercial compensated collections is also like this. If so, then the revision strategy will not be like trying to get everyone to speak FORTRAN, and so would not be practically infeasible.

Semiotic shift

Radin says that the legal practice of awarding a sum of money as remedy or compensation for pain and suffering (such as the loss of an arm or other body part) can be understood in at least four different ways. Two are commodified. On these understandings, when someone is awarded money in exchange for loss of an arm, what we are doing is paying people for their arm or trying to make people “whole” by making victims indifferent between the arm and the money. We can ask questions like “How much is your arm worth?” or “How much would you need to be paid to make you indifferent between having and not having an arm?”

However, there are two noncommodified ways of understanding this very same practice. One such understanding is a redress understanding, while the other is a kind of social insurance understanding. When it comes to the former, “compensation is understood not as a commensurable quid pro quo for harm, but rather as a form of redress: affirming public respect for the existence of rights and public recognition of the transgressor’s fault with regard to disrespecting rights.”Footnote ⁴¹ We symbolically communicate public respect for these rights through money, but “neither the harm to the victim nor the victim’s right not to be harmed are commensurate with money. They are not conceptually equated with fungible commodities.”Footnote ⁴² As for the latter, the payment is “supposed to give the victim some needed wherewithal to lead a satisfactory life, thereby making up for—compensating for—the capabilities or advantages the victim lacks.” And this is also noncommodified because “it does not suggest that the money payment is taken in trade for the harm, or equivalent to the harm in exchange value.”Footnote ⁴³

Because there are at least four different ways of understanding this practice, compensation is “contested.” It is true that some might insist that a commodified version is what is “really going on,” but similarly others will insist that the redress or social insurance conception is what is “really going on.” It would be good if we were to have a persuasive theory that could tell us what is “really going on,” a way of adjudicating between the understandings, but Radin does not offer such a theory; indeed, it is difficult to see what such a theory would look like. On its face it looks like it is up to us how we understand it. How we come to understand this practice—what ends up being the dominant conception—matters because the commodified conceptions come with the danger of “degradation of personhood” and an “inferior conception of human flourishing.” This is intrinsically bad, a form of disregard, but it is possible that this may also lead to downstream harms like mistreatment. What to do to avoid this danger? Radin recommends that we do cultural work to demote the commodified understanding by, for example, avoiding use of “market rhetoric” when discussing the practice. We should not say that courts “pay” people for their arms nor talk as though courts put a “price” on arms, and so on. We may also want to redesign some of the details of the practice so as to make it easier for the public to understand it in a noncommodified way. Should these efforts fail, then it would be plausible for someone to argue that we should abolish this practice.

It looks like Radin is recommending semiotic revision. It might seem to differ if you understand revision to only be about cases where we create a whole new meaning or change the meaning from what it is now to something entirely different. If so, then think of this strategy as “semiotic shift,” a subset of revision. Semiotic shift is, for cases like Radin’s, where a practice has semiotic-independent net benefits and where there are multiple different social meanings or public understandings of this practice, at least one of which is morally acceptable. In cases of contested understandings, we are not doing anything like trying to get everyone to speak FORTRAN when we adopt a shift strategy. We are trying to get the public to coordinate on one or another of the available noncommodified understandings of a practice. This is not infeasible, although it may be difficult.

Donor compensation is contested

Much like compensation for injuries at law, the social meaning or public understanding of the practices of commercialism with respect to substances of human origin and donor compensation are also contested. There are transactions that involve both money and these substances, but are understood by some as an exchange of money for services and money for time, effort, and inconvenience rather than for the substance itself. In either case, if the public understanding is that people are not paying for the substance of human origin itself but for something else, then this would not amount to the commodification of that substance. Provided this preserves the benefits of the practice and avoids the bads, harms, or wrongs associated with commodification of the substance, then this ought to be the preferred strategy over prohibition.

For example, when someone receives a blood transfusion, they receive blood but also get the skills, time, and effort of the phlebotomist and the use of hospital infrastructure. In those cases where someone is billed for this, we can ask whether the payment is for the blood; the skill, time, and effort of the phlebotomist; or use of hospital infrastructure. Put differently, we can ask whether the blood is a good, a product, or property that was sold or whether what was sold was a service that incidentally involved blood. Whatever may be the dominant public understanding of this practice, it is in fact contested because at least some understand it in a different way.

We can also apply this shift to donor compensation. A commercial organization may receive a substance of human origin, but they will also receive time and effort from the donor who was inconvenienced. It is possible for the organization to pay for the plasma itself, but it is also possible that they are compensating donors for these other things. Even if we now think that the object of exchange is the substance, with time, effort, inconvenience, opportunity costs, and so on being incidental, we could shift our understanding.Footnote ⁴⁴ This would be compatible with thinking that the substance is given as a gift, is “priceless” or “sacred,” and so could conceivably play whatever role “gifting” is said to play in encouraging community solidarity.

Below, I deal with the objection that this is mere euphemism, but let us first notice a few things. These understandings are neither foreign to our system of meanings nor do they require any sort of sophistication. It is perfectly ordinary and common to talk about the sale of time and effort, to distinguish sales of products from provision of services, and so on. Second, notice that while the sale of time and effort and being paid for services may in some cases raise commodificatory concerns, they do not plausibly arise in these cases.Footnote ⁴⁵ Third, for all these reasons, this strategy looks to be practically feasible and, at any rate, is a good deal more feasible than the strategy of promoting a ban on, specifically, commercial compensated plasma collection—or compensated phlebotomists, payment for transfusion, for-profit medical services, and so on—in the United States.

Another thing to notice is that every plasma collection company in the European Union says that they compensate for time and effort rather than the plasma itself. The same is true in Canada and the vast majority of plasma collection companies in the United States.

Of course, you might think that this is mere euphemism, that what is “really going on” is patients paying for the blood itself and companies paying people for their plasma. What theory allows us to adjudicate this? While there may be other theories, my best guess is that people adjudicate this on the basis of what is desired or wanted. Call this view the object of desire is the object of exchange view. On this view, what the plasma company wants is the plasma, and so that is what is being paid for and, if the patient wants the blood, then that is what they are paying for. Our desires determine the object in any exchange. But this view confronts two difficulties. The first difficulty is that the “euphemistic” view appears to be the one adopted by courts and other official bodies. These rulings can form the basis of a public appeal that is likely to be influential on the public conception or understanding of what the object of exchange is. The second difficulty is that the object of desire, the thing people want, will sometimes differ as between buyer and seller. Let us take each difficulty, in turn, in the next section.

Perlmutter, Garber, and Germany

In the early 1950s, Martha Perlmutter had received a tainted blood transfusion at Beth David Hospital in New York and was suffering from the ill effects of “serum hepatitis.” She took the hospital to court and argued that blood used in transfusions was a product like any other and that the hospital is therefore strictly liable under products liability law. Perlmutter had bought the blood for $60, it was itemized on her bill, and so the blood carried an implied warranty of being free of the kind of defects that, had she known about them, would have made her not want to buy it.

However, the court in Perlmutter v. Beth David Hospital (1954) did not think that the hospital sold Perlmutter a product. In a 4–3 decision, the court ruled that the blood she received and the money she gave for it was not a “sale” but a “service.”Footnote ⁴⁶ Even if the itemized bill said that the charge was for blood, what was “really going on” was the sale of a service; the substance of the exchange was service, even if it came in the form of a sale, and services do not carry an implied warranty. The court reasoned:

Despite the good news for blood bankers and hospitals, many were unnerved by how close the ruling was, so they pushed for states to pass statutes that would protect them from products liability law in general. Several states passed what would become known as “blood shield laws,” exempting blood as well as blood products, including plasma and plasma protein therapies, from products liability law.Footnote ⁴⁸ Simultaneously, the American Medical Association urged hospitals to stop the practice of charging for “blood.” They told them to charge the same amount, but to itemize it as being payment not for blood but for the services of the phlebotomists and other medical personnel as well as for use of hospital infrastructure.Footnote ⁴⁹ They urged a redescription of the practice that is more consonant with a service conception of transfusion rather than a sales or product conception as had been the custom.Footnote ⁵⁰ They also urged hospitals to have patients sign a waiver of warranty.

When it comes to transfusions at a hospital, being able to point to a court case is likely to carry some influence over the public understanding. The public understands the sales-service distinction and, if court decisions are influential on the public conception of the practice, as I think they are, then the public is likely to accept that hospitals are paid for the services of their staff rather than for the blood itself.

In response, you might say that hospitals hire professionals and you might think that a transfusion requiring some sort of skill will be relevantly different from amateur donors giving blood or plasma. But a year prior to the Perlmutter ruling, Revenue Ruling 162 (1953) rejected the view that donors give property when they donate blood. A taxpayer wondered whether she was eligible for a charitable tax deduction for the fair market value of the blood she donated. The U.S. Internal Revenue Service (IRS) said she was not, because what she donated was a service, not property, and the donation of services is not subject to a charitable tax deduction.

The same is true of the treatment of donor compensation for plasma donation in American courts and by U.S. taxing authorities. When donors are compensated for plasma, they are required to declare this on their taxes. In the 1970s, Dorothy Garber failed to do this. She had a very rare type of plasma and plasma companies competed to persuade her to donate it to them on a regular basis. She earned $70,000 to $90,000 per year donating plasma semi-weekly and received other benefits such as use of a car. In failing to declare this on her taxes, the IRS charged her with criminal tax evasion. One of the experts called by Garber had argued that her plasma was property that she sold, and so subject to capital gains tax rather than income tax. He argued that her “basis” in the plasma was equal to the sum of money she received, and so there was no capital gain and so no tax liability. She also tried to argue that the financial value of plasma, as a bodily product, was not only immeasurable but also incommensurate with money, and so there was no way to attach a price tag to her contribution or to tax her appropriately on this. The court found this unpersuasive and sentenced her to twelve months in prison. She appealed.Footnote ⁵¹

While the appellate court did eliminate Garber’s prison sentence, they did not accept any of Garber’s arguments. They said that it was not the sale of property but, instead, ordinary income that she earned. In ruling this way, the court effectively said that plasma donors do not transfer property to plasma companies and are not paid for the plasma itself but, rather, for time, effort, inconvenience, or other things associated with the donation of plasma that amounts to ordinary income.

Perlmutter, Revenue Ruling 162, and United States v. Garber (1979) each rejected commodified understandings or conceptions of blood and plasma in favor of the view that what people do is basically provide or sell a service that consists at least of time and effort. According to these cases, people do not sell blood or plasma itself; instead, they sell services.Footnote ⁵²

Apart from court cases, consider that the object of desire is the object of exchange view needs to decide whether the buyer’s or seller’s perspective is privileged in picking out the object. What the company desires may be the plasma, but what the donor cares about in the exchange—what she regards as the thing of value that she gives up—is very plausibly her time, effort, inconvenience, and opportunity costs. She does not think about the value of the plasma to her; she thinks about the value of her time and effort and possibly the discomfort associated with donations. If so, then plasma is the object of exchange only if we privilege the perspective of the organizations, but time and effort is the object of exchange if instead we privilege the donor’s perspective.