¹ See Hume, David, A Treatise of Human Nature, ed. Selby-Bigge, L. A., Oxford, 1888, p. 491Google Scholar.

² That (pace Hume), the notion of property, or at least that of ‘ownership’ is in fact legal is maintained by Gert, Bernard in Morality, Oxford, 1988, p. 136Google Scholar.

³ My terminology here is intended to refer to the first moment at which I exist embodied in the way I now am. If I then own my body, I could perhaps then quickly give property rights to it to someone else.

⁴ What is innate need not be natural, since we could implant organs into a foetus; the notion of natural body parts is not easily defined with any rigour; but nothing said here should turn on how I have characterized it.

⁵ This last contrast, like those concerning reversibility and calculation of probabilities, is contingent: if I am needy enough and there is a lucrative job for me in (risky) construction, I may not be able to consent very freely. There contrasts are, however, strong enough to be relevant to some of the policy issues that concern us.

⁶ There are of course degrees of freedom, and we do not want to undermine the distinction between an offer that is hard to resist and compulsion: both may lead people to say they ‘had’ to do something, but there is a moral difference. I have given an account of the relevant distinction in ‘Moral Responsibility, Freedom, and Compulsion’, American Philosophical Quarterly, xi (1974), 1–14Google Scholar reprinted in my Action, Intention, and Reason, Ithaca, 1993.

⁷ This is in part because we do not have direct control over the motive with which we act and partly because (owing to that among other things) ethics does not require that morally permissible actions meet such motivational constraints, though in evaluating persons it does take account of whether they have been met and under what conditions. Ethics concentrates on actions themselves as its primary targets.

⁸ See, e.g., Singer, Peter, Animal Rights and Human Obligation, Englewood Cliffs, 1976Google Scholar.

⁹ Stephen Kalish has suggested this kind of scenario and compared the requirements of waiver to those of achieving conscientious objector status relative to the military draft. For a detailed case in favour of ‘Consenting In’ as the default policy and ‘Objecting Out’ as needing justification, see Menzel, Paul T., Strong Medicine: The Ethics of Rationing Health Care, Oxford and New York, 1990, esp. 29–34Google Scholar, and his follow-up paper ‘The Moral Duty to Contribute and Its Implications for Procurement Policy’, in preparation.

¹⁰ It may be that irrationality as well as temporary insanity should count here, and for similar reasons, even if, as is usual, the relevant degree of irrationality undermines competence – or at least the competence of the decision, a different matter, as I have implicitly stressed in the text. For arguments to think irrationality is both a different condition from incompetence and can also warrant overriding a consent or refusal, see Culver, Charles M. and Gert, Bernard, ‘The Inadequacy of Incompetence’, Milbank Quarterly, lxviii (1990), 619–43CrossRefGoogle Scholar.

¹¹ Granted, if one would take, say, $50 but not less to take a chance of 1 in 10,000 on donating a kidney, it might seem that one values the kidney at $500,000. But that does not follow, and the very same person could rationally refuse to sell one for that. Other variables may enter into such a decision.

¹² This needs refinement; e.g. someone might consent appropriately and then get scared at the last minute, when the recipient can no longer be saved without the transplant, and if the fear seems irrational and the risks to the donor are not major one might be warranted in ignoring the present refusal as against the earlier, proper consent.

¹³ The literature on this topic is now large. In ‘Dimensions of Informed Consent’, in preparation, I have developed my own overall position of the nature of the sort of consent in question.

¹⁴ The case of Marissa Ayala, whose conception (at least initially) was mainly to supply bone marrow for a sibling, is an example raising some (but only some) of the relevant questions. For discussion, see Morrow's, Lance cover story in Time for 17 06, 1991Google Scholar.

¹⁵ An underlying issue here is whether indirect (or rule) utilitarianism must be extensionally equivalent to act utilitarianism. I do not want to take a position here on this, but assume that at least for social policy issues a utilitarian may take a rule position regardless of whether in the end it needs an element of non-utilitarian justification. For a valuable concise discussion of problems for indirect utilitarianism, with useful references to a wide body of relevant literature, see Hooker, Brad, ‘Rule-Consequentialism’, Mind, xcix (1990), 67–77CrossRefGoogle Scholar.

¹⁶ One might argue that considerations of rationality can conflict and are overriding; and some would argue that if certain religious considerations conflict with moral directives, the former should prevail, or will properly prevail for them. I have offered an assessment of this issue in ‘The Place of Religious Arguments in a Free and Democratic Society’, University of San Diego Law Review, XXX (1993)Google Scholar and have defended some principles for a proper separation of church and state in ‘The Separation of Church and State and the Obligations of Citizenship’, Philosophy & Public Affairs, xviii (1989), 259–96Google Scholar.

¹⁷ If incompetence occurs in the procedure, there is an additional reason for compensation; but that is a case I cannot consider here.

¹⁸ The selection problem, including this sort of issue, is explored in detail by Brock, Dan W. in ‘Ethical Issues in Recipient Selection for Organ Transplantation’, in Mathieu, Deborah, ed., Organ Substitution Technology: Ethical, Legal, and Public Policy Issues, Boulder and London, 1988, pp. 86–99Google Scholar.

¹⁹ An earlier version of this paper was given at a Conference on Dilemmas in Organ Transplantation in Omaha in 1991, with support from Dartmouth College, the University of Nebraska Medical Center, and the University of Nebraska Center for the Teaching and Study of Applied Ethics. I benefited from discussing the topic with Bernard Gert, Deni Elliott, Carl Greiner, Craig Lawson, and Robert Schopp; and for helpful comments on the manuscript I thank Roger Crisp and Stephen Kalish.