A more recent version of these Selling And Owning Body Parts notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Selling and Owning Body Parts 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:
1. 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.
2. 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
1 of 10
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), and not treating people are mere means. It is also not clear why one ought to identify their own personhood by reference to an organ would this not prove too much, especially re blood and hair markets?
ii) Value denigration Some critics argue that using the language of markets itself subverts the dignity of human beings by conceiving of them as mere commodities to be bought and sold. Extending this logic, some
2 of 10
argue that vendors in organ markets are widely motivated and exploited by economic circumstances beyond their control, and that if enough money is involved, humans are rendered incapable of acting against their financial interests (see undue influence below). Because of this, the correct choice of choosing not to vend in those circumstances of poverty must be made on behalf of those who are not in the position to make them. However, this line of reasoning (1) denies that value can be possessed by an object/service independently of its market valuation, (2) makes one question why it is not also value denigrating if we were to just donate the organ instead, and (3) reduces human motives (which are inadequately explained by economic determinism and less transparent than otherwise assumed). There is also the undeniable fact that organs are already commodified to the extent that organ procurement agencies who procure organs from donors and transplant them to individuals need to pay for transplant surgeons etc. Why do we not ask them to do it for free? Is an indirect commodification of organs somehow less morally reprehensible? There is also an element of social acceptance which may counterbalance against value denigration if the practice of organ markets is proliferated. Some critics argue that market in organs would demonstrate insensitivity to the legacy of human slavery. However, empirical evidence does not support this position. Nor are speculative assertions of symbolic relationships between organ markets and slavery interchangeable with arguments for or against organ markets. Others argue that organ markets would foster class distinctions and infringe on the inalienable values of life and liberty. However, the same argument could be raised as against other practices where human lives at placed at risk for economic gain e.g. working as a miner. d) Exploitation of organ sellers Exploitation comes in several varieties but two dimension are usefully defined by Cohen: 1
harmful vs. mutually advantageous exploitation, which will turn on whether both parties reasonably expect to gain from the transaction, as contrasted with some baseline; and
3. consensual (even if induced) vs. nonconsensual (lack of informed consent) exploitation. i) Harmful vs mutually advantageous exploitation To determine whether A has wrongfully exploited B, philosophers usually stipulate that two requirements must be met: (1) A benefits from the transaction; and (2) the outcome of the transaction is harmful or at least unfair to B, and A is able to induce B to agree to the transaction by taking advantage of a feature of B or his situation without which B would not ordinarily be willing to agree (albeit this latter feature would be absent in nonconsensual exploitation). Again here, there is a baseline with which reference must be made: what if the feature is 'ordinary'? e.g. what if the person is ordinarily poor? Ordinarily disabled? How can this question be answered?
So in the case of organ sellers, are they being harmed or unfairly taken advantage of? The correct frame for answering this is to consider whether ex ante the seller is all things considered better off. That the seller agreed to do it is ex ante evidence that it would benefit them. If this is right, then it would appear to be a case of mutually advantageous exploitation. This does not however render it unproblematic. We still need to know if the seller is treated unfairly. The mere fact a buyer takes advantage of a seller's unfortunate or unjust background situation is not enough to render the transaction unfair. What we need is a baseline sense of how
3 of 10
Buy the full version of these notes or essay plans and more in our Medical Law Notes.