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Published online by Cambridge University Press: 04 July 2014
Transplantation of organs from live persons may take place without any payment to the donors, and this involves relatively few moral problems. Gift donation appears to be widely accepted as a laudable and welcome form of benevolence. Even though an organ gift may entail some risk to the donor, his or her consent — provided that it is freely given and properly informed — renders such risk non-objectionable.
Gift donation cannot, however, be expected to fill the large and growing demand for transplant organs. Thus, the issue of a market in organs has for some years now been the subject of ethical and legal scrutiny, and has been addressed by (generally prohibitive) legislation. What follows is intended as a critical survey, focusing initially on organ-buying, and then on organ-selling.
1 For the U.S. legal situation, see Hansmann, H., “The Economics and Ethics of Markets for Human Organs”, (1989) 14 J. of Health Politics, Policy and Law 67–86, at 58–9.CrossRefGoogle ScholarPubMed
2 In addition to essays cited and analyzed below, it is worth mentioning the book by Lamb, David, Organ Transplants and Ethics (Routledge, London, 1990)Google Scholar, which briefly touches on our issue.
3 See Ryan, Alan, Property (University of Minnesota Press, 1987) 53.Google ScholarPubMed
4 The “natural rights” approach would seem, however, to strongly imply the opposite, as some of its theorists “derive all rights from a conception of property as ‘self ownership’”: Ryan, ibid., at 61.
5 Some critics view such brokerage operations as especially evil or dangerous. See Gorovitz, S., “Testimony: House Subcommittee on Investigations and Oversight”, reproduced in Humber, J.M. & Almeder, R.F. (eds.), Biomedical Ethics Reviews (Clifton, Humana Press, 1985) 5–12Google Scholar; but see the response by J.M. Humber, “Coercion, Paternalism, and the Buying and Selling of Human Organs”, ibid., at 13–26.
6 For detailed proposals, treating procurement and distribution separately, see Hansmann, supra n. 1.
7 See Thomson, J.J., “A Defense of Abortion”, (1971) 1 Philosophy and Public Affairs 47–66.Google Scholar
8 In their well-known book, Tragic Choices, (New York, Norton, 1978) G. Calabresi and P. Bobbit explore various models for choice and for allocating resources in matters of life and death.
9 Gutmann, Amy, “For and Against Equal Access to Health Care”, (1981) 59 Miibánk Memorial Fund Q. 542–560, at 544.Google ScholarPubMed
10 The idea of separate spheres, each with its particular principles of just distribution, is the central theme of Walzer's, MichaelSpheres of Justice (New York, Basic Books, 1983).Google Scholar In Walzer's view, a crucial function of this plurality is an overall rough equalizing effect; those disadvantaged in one sphere may well be better off in another. Still, the actual partitions between the spheres are justified in substantive terms specific to their nature.
11 Daniels, Norman, “Rights to Health Care and Distributive Justice: Programmatic Worries”, (1979) 4 J. of Medicine and Philosophy 174–189CrossRefGoogle ScholarPubMed, has endeavored to answer this question in terms of assuring persons of equal opportunities, while Amy Gutmann has emphasized people's equal right to be free of pain.
12 Childress, J.F., “Who Shall Live When Not All Can Live”, (1970) 43 Soundings.Google Scholar
13 Hansmann, supra n. 1, at 81.
14 The same is true, I think, even of some medical benefits short of averting death; in the context of transplants, the question of cornea comes to mind. Is it plausible to assume differences in subjective valuation of avoiding blindness?
15 Sometimes, however, prolonging life may not be worth a fortune even to its owner; one thinks of an older person preferring to die sooner rather than leave the family in financial ruin (my thanks to Jonathan Malino for pointing this out). But situations like this are exceptional; they do not characterize the broad workings of a prospective market.
16 See Harris, J., “Does Justice Require That We Be Ageist?” (1994) 8 Bioethics 74–83.CrossRefGoogle ScholarPubMed
17 Hansmann's point is actually made “in the context of insurance”. Answering the question itself is exceedingly complex. The actuarial issue involves the premiums still to be collected in comparison to the payments for sustaining a transplant patient. It is at least possible that “market allocation” — as mediated through certain insurance schemes — would dictate giving the organ to the older patient, in order to rid the insuring company all the sooner of both patients, leaving it to collect premiums from the healthy (I thank Donald Light for teaching me to worry about such things).
18 Indeed, some have expressed concern about the opposite possibility, namely, that a market in organs would involve serious problems of quality control.
19 This holds even though the accumulation of indirect effects probably outweighs by far the effects of access to SLSR.
20 Hansmann, supra n. 1, at 80.
21 As points of departure in contemporary writing, see Nozick's, Robert essay “Coercion”, in Morgenbeser, S. et al. (eds.), Philosophy, Science and Method (New York, St, Martin's, 1969)Google Scholar and Frankfurt, Harry, “Coercion and Moral Responsibility”, reprinted in his The Importance of What We Care About (New York, 1973; Cambridge University Press, 1988) 26–46.Google Scholar For a comprehensive discussion, see Wertheimer, Alan, Coercion (Princeton University Press, 1987).Google Scholar
22 One version of paternalism, however, is couched in terms of freedom; this is what Isaiah Berlin defines (accompanying the definition with grave worries) “positive freedom”, i.e., the assertion that a person is truly free only if that freedom takes a particular form. See Berlin, I., “Two Concepts of Liberty”, in his Four Essays on Liberty (London, Oxford University Press, 1969) 118–172.Google Scholar
23 For an extended (feminist) defense of commercial surrogacy, with an emphasis on recognizing the surrogate's autonomy, see Shalev, Carmel, Birth Power (New Haven, Yale University Press, 1989).Google Scholar
24 A similar emphasis is a major theme of Wertheimer's work, supra n. 21. For a comparable argument, regarding the normative element in ascriptions of causality (following H.L.A. Hart, J.L. Mackie, & J. Feinberg), see my “Collective War and Individualistic Ethics: Against the Conscription of ‘Self-Defense’”, (1993) 21 Political Theory 606–622, at 612, and n. 13 at 620.
25 Of course, if someone is in fact doing the coercing, that is an evil in itself; and perhaps it is also worse for the victim to be forced by another person than by blind fate.
26 Walzer, supra n. 10, at 100–103.
27 Kant, I., Lectures on Ethics (Tr. Infield, L.), (New York, Harper and Row, 1963) 124.Google Scholar
28 There is a debate about this among interpreters of Kant; see Finnis, J.M., “Legal Enforcement of ‘Duties to Oneself’”, (1987) 87 Colum. L.R. 433–456CrossRefGoogle Scholar (and the references given there in n. 64, at 447); and the reply by D.A.J. Richards, ibid., at 457–471.
29 See Leites, E., “Locke's Liberal Theory of Fatherhood”, in O'Neill, O. & Ruddick, W. (eds.), Having Children (New York, 1979) 306–318.Google Scholar
30 More generally, theories of “positive freedom” assert that freedom is only valuable ifit meets certain conditions. A person whose wishes oppose those conditions will not, they hold, gain true freedom by having those wishes granted.
31 See Raz, J., The Morality of Freedom (Oxford University Press, 1986) 288–294, and 422.Google Scholar
32 If the failure to fasten the seatbelt reflects nothing but negligence, the case becomes even stronger: the person is simply forced to remember what he anyway wants to do.
33 Assuming otherwise — namely, that persons in desperate poverty are standardly irrational — would constitute arbitrary and insupportable prejudice. The same is true regarding claims by those opposing commercial surrogacy that women (or: poor women) are incapable of responsible choice; see the discussion by Shalev, C. in her Birth Power, supra n. 23, at 141ff.Google Scholar
34 The justification of amputation for preserving the whole is akin to the Roman Catholic “Principle of Totality”. For a presentation of differing applications of this principle (as well as some other perspectives) to organ donation, see Boma, S., “Morality and Marketing Human Organs”, (1987) 6 J. of Business Ethics 37–44.Google Scholar
35 Chadwick, R., “The Market for Body Parts: Kant and Duties to Oneself”, (1989) 6 J. of Applied Philosophy 129–139, at 133–4.CrossRefGoogle Scholar Chadwick also cites and discusses several other passages, and finally goes on to offer a (neo-Kantian?) justification for disallowing organ sales, which I find rather unclear.
36 It might be claimed that surrendering an organ is more radically harmful than contracting to do demeaning work, since the surgery is irrevocable. But if transplant organs were made widely available through a market in organs, the vendor could in principle buy back, say, a kidney, should the spare kidney fail.
37 Unless, that is, we were talking of extremely terrible working conditions, bordering on slavery.
38 The argument is based on the fact that limited resources dictate selective response, where one's special obligations toward fellow citizens in need take precedence over diffuse global responsibility. These special obligations draw their force from the fact that co-members of a society are joined in a “co-operative scheme”. See Rawls, J., A Theory of Justice (Cambridge, Mass., 1972) 457Google Scholar: it is unfair (exploitative) to reap the benefits of this society-wide co-operation without caring for others who contribute to it. Charles Beitz argues that nowadays international society has become a global cooperative scheme: see Beitz, C.R., “Justice and International Relations”, in Beitz, C.R., Cohen, M., Scanlon, T., & Simmons, A.J. (eds.), International Ethics (Princeton University Press, 1985) 282–311Google Scholar; I think this highly exaggerated, but cannot pursue that theme here.
39 Titmus, R., The Gift Relationship: From Human Blood to Social Policy (Allen and Unwin, London, 1970).Google Scholar It has been similarly argued that commercial surrogacy undermines noble, altruistic surrogacy.
40 This is not so much for lack of organs, as for lack of the considerable resources and facilities required for transplantations. In fact it has been argued that increasing the supply of transplant organs — whether from cadavers, donors or vendors — would be highly undesirable, as it would increase the severe inequalities already inherent in allocating resources to transplants. See Teo, B., “Is the Adoption of More Efficient Strategies of Organ Procurement the Answer to Persistent Organ Shortage in Transplantations?”, (1992) 6 Bioethics 113–129.CrossRefGoogle Scholar
41 Radin, M.J., “Justice and the Market Domain”, in Chapman, J.W. & Pennock, J.R. (eds.), Markets and Justice (=Nomos XXXI), (New York & London, New York University Press, 1989) 165–197, at 171.Google Scholar And cf. the comments by J. Narveson in the same volume, at 266 ff.
42 Radin, ibid., at 175 ff.; and see also Arneson, R. J., “Commodification and Commercial Surrogacy”, (1992) 21 Philosophy and Public Affairs 132–164.Google ScholarPubMed
