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Selling And Owning Body Parts Notes

Updated Selling And Owning Body Parts Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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Selling body parts

Arguments against allowing organ sales

a) Crowding out of altruistic donations if a market is created

There are two versions of this criticism:

Altruistic donors will abandon donation in response to the creation of an organ market due to popular revulsion (i.e. when people are given financial incentives to do something, it undermines the extent to which they feel morally obliged to do it), desire to avoid personal risk where other options are available, resulting in fewer organs available for transplantation.

An organ market would increase the net number of organs, but would reduce altruistic donations by replacing donors with paid organ vendors.

The short response to the first criticism is that organ markets can credibly adjust to donor attrition by the expansion of organ vending. Donor revulsion might reduce the number of donated organs but attrition might also occur for reasons other than revulsion.

The short response to the second criticism is that the claim is simply empirical. A reluctance to donate may be explained by the ‘tyranny of the gift’ concept. There is also the argument that where there is a market, those who nevertheless chose to be donors are far more likely to do so for altruistic reasons. Just as some donors might decline because of an alternative possibility of procuring an organ through a market, some donors will make their moral commitments clearer by freely donating organs, and explicitly rejecting compensation. In other words, those who were going to donate altruistically will continue to do so, and those who do not donate will not have been motivated purely by altruistic reasons in the first place.

A more detailed response would involve questioning whether the premise of the argument is correct i.e. whether altruism is always a good thing. Here, one might consider that as long as an act has the property of altruism, it is good. Alternatively, one might require that the altruistic act be good all things considered. Furthermore, one could identify that altruism based arguments suffer from an inherent structural difficulty - they tend to work better for those things which are already freely donated on a large scale, than for those things which are hardly freely donated at all. Finally, there is an additional issue as to whether strength of an altruism argument differs depending on how altruism is classified in the context - if it is morally obligatory, then to demand money for one’s organ would be wrong. However, if it can only be shown that it is supererogatory, then the argument is weaker, and there would be nothing to stop someone from saying that organ sales are not good, but not wrong either. Perhaps then, it is only wrong to sell organs in situations where it could be shown that donating the organ would be morally required?

b) Commodification

i) Risks of organs being commodities only available to the rich

This argument assumes that the potential number of organ vendors is fixed and limited, and that the only type of valuable consideration available for exchange is personal wealth. This also assumes a free market type model, which may not necessarily be the best (see below ethically defensible market in organs.

ii) Risks of low quality organs and worse outcomes for vendors and recipients

The argument here goes that the profit motive might make screening for organs more difficult by creating an incentive on part of the vendor to lie about conditions that are contraindications to donations. However, this argument goes only so far as to those aspects of screening which are not objectively testable, and to that extent, it is unclear how much worse quality of organs will result.

Another argument in the same vein is that the small amount of risk to altruistic donors is justified because their motives are morally salutary, whereas for sellers, the same level of risk is not justified. However, this argument goes too far, and covers a great deal of procedures currently deemed morally permissible e.g. liposuction or cosmetic surgery. If it is true that safe practices ought to be a conditions for participation of transplant professionals in an organ market, the outcomes by which the safety of organ vending is judged should be the same outcomes by which the safety of organ donations is judged.

iii) Commodification would encourage organ trafficking

This argument conflates the purchase of an organ with a successfully transplanted organ. Limiting the hypothetical market value of successful transplant to the cost of the organ discounts the competing market value of a safe transplantation. The fact the vendors and recipients have been harmed because of substandard care in organ trafficking means that a ‘better price’ does not imply ‘better value’.

From this, it is disingenuous to argue that an organ market is morally impermissible because organ trafficking has failed to improve. The limited number of available organs and the consequent development and flourishing of an underground market are the consequences of inadequate regulation. However, in this regard, a case study might be made of Iran to suggest that regulation won’t help as much as hoped for. Nevertheless, by doing nothing, there is no reason to suppose that organ trafficking will just get better on its own.

c) Moral corruption

i) Organ market will treat people as mere means

It is true that organ trafficking treats the vendor as a means rather than an end. But the same need not be true of organ markets, which treats the vendor as an end in himself by establishing an organ market in which his safety and contractual rights would be protected by the rule of law. There is also scope here to argue that on a proper understanding of the categorical imperative, the existence of an organ market and sale of organs is consistent with a Kantian understanding of autonomy (i.e. in the sense of assisting others who are vulnerable even where it exposes people to risks that they themselves have not elected),...

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