George, Alexandra --- "Marketing Humanity Should We Allow The Sale Of Human Body Parts?" [2005] UTSLawRw 2; (2005) 7 University of Technology Sydney Law Review 11
MARKETING HUMANITY
SHOULD WE ALLOW THE SALE OF HUMAN BODY PARTS?
ALEXANDRA GEORGE[*]
“Fully functional Kidney for sale”. The advertisement appeared on an Internet auction site on 2 September 1999. Bidding opened at US$25,000 and reached over US$5.75 million in the several days before site managers removed the offer.[1] Later attempts to e-auction human body parts were similarly thwarted,[2] but it is still easy to find human kidneys for sale on the Internet. One online “message board” has numerous postings from people advertising their organs for sale,[3] and another Internet site claims to have many potential donors waiting to sell kidneys.[4] A domain name registration site offered the domain names Kidneysales.com, kidney4sale.com, kidneysaleoffer.com, buyakidney.com and bodyparts4sale.com,[5] presumably in anticipation of a surge in enthusiasm to sell human body parts over the Internet. The same organisation offered the name kidney-for-sale.co.uk for US$500, even though the sale of kidneys is illegal in the United Kingdom.
Just as the market for kidneys was generated by medical developments that made it possible to transplant human organs from one person to another, evolving scientific discoveries are creating new demands for human bodily products. Technological advances promise innovative solutions such as the growth of test tube kidneys from stem cells and xenotransplantation of organs from sheep or pigs that have been genetically adapted to grow humanised body parts.[6] Scientific dreams are becoming medical realities, but they remain too far off into the future to benefit the people in need of replacement tissue and organs today. Just as fast as one miracle treatment does away with the need for supplies of one sort of human body part, further scientific discoveries such as reproductive and gene therapies are creating a demand for new body parts to transplant or experiment upon.[7] These days it is not just human kidneys, corneas, livers and hearts that are wanted for transplantation; the growing list now includes stem cells, oocytes, embryos, and so on.[8] If the sale of human body parts is not already big business, or legitimate business, there are clearly some who believe that it should or will become so.
Among those who advocate the creation of a legitimate market in human body parts are libertarian theorists and some economists.[9] They believe that compensated trade would overcome the existing shortages of human tissue and organs available for transplant, and that regulated trade would be a more effective way of protecting the vulnerable than an outright prohibition of such sales. Advocates of a market in body parts are countered by opponents who represent the normative voice of liberal democracies. A recent history of shameless and tragic exploitation of the Third World poor in places where the “body bazaar” has not been effectively controlled by law has prompted these opponents to recommend a conservative policy of caution characterised by prohibitions on the sale of human body parts.
Set against this backdrop, this article examines the cases for and against the sale of human body parts from a philosophical perspective. It is a debate that has been around for some time: scientific developments in the mid- to late- twentieth century made the transplant of organs between unrelated donors and recipients a viable treatment option. While these advances and new treatments gave fresh hope to many patients, they spawned a Pandora’s box of ethical dilemmas. It was one thing to make transplantation scientifically possible, but how would sufficient donor organs be found to meet the demand generated by this innovative new treatment? As so often in medicine, the problem was one of scarce resources. However, this time it was a scarcity of human resources—a lack of human kidneys, livers, corneas, and so on available for transplantation—rather than a simple lack of funds. Throwing money at the problem would not solve it.
Or would it? If people could be paid to sell their body parts, would the operation of the market eventually resolve the scarcity problem? Would market conditions lead to organs and other bodily material ending up with those who value them the most? Or would it just create even greater conundrums?[10]
The current biotech revolution[11] means this dilemma remains at least as fraught now as it was in 1980 when the introduction of the immuno-suppressant drug Cyclosporin-A made it much more viable to transplant organs between unrelated people. After many years and dozens of medical, ethical and legal journal articles dealing with various aspects of this problem,[12] an acceptable solution still seems elusive. But while progress in this debate appears almost to have stood still,[13] science and medical research have surged forward. While various proposals for increasing the supply of donor organs have been being debated and tested and debated some more, the biotechnological revolution is well underway. It is a revolution that is making ever more medical and scientific techniques possible, and this is leading to an intensification of the ethical quandaries about how the raw materials—the tissue (such as blood, hair and placentas), the genes, the stem cells, the DNA, and the reproductive cells (sperm and ovum)—needed to develop and make use of these technologies will be obtained.[14] The technologies are innovative and new, but the dilemmas have a ring of familiarity. Often, it seems, it is not (or not only) a lack of money that is hindering progress; there is also a lack of a human raw materials that money cannot—or is not permitted to—buy. Just as the progress of science might be drawing us closer to the day when replacement organs will be grown in test tubes, thus negating the need for human donors to provide organs for transplantation, other biotechnological developments are leading us into an age when donated parts of humans are increasingly being sought for new purposes. The specifics and the contexts might be changing but the original practical and ethical problem of how to obtain more donor body parts has not only not gone away, it is now being multiplied by the challenges swept in by the biotechnological revolution.
The purpose of this article is therefore twofold. Its primary and central theme is to use classical liberal philosophical theory to explore the relative strengths and weaknesses of arguments for and against the sale of human body parts in the hope that this approach might help policy makers to resolve the problem. In doing so, it draws together a variety of pro and con arguments and presents them methodically as a single case for and a case against the sale of human body parts. This culminates in a conclusion that offers a philosophically consistent approach to resolving the dilemma that has persisted for so long.
The article’s subsidiary task is to acknowledge the ongoing relevance of many of those old arguments: they will continue to be significant even after alternatives to transplant kidneys have become a standard treatment for renal disease, even after artificial corneas can be implanted, and so on. The paper suggests that the familiar old arguments are likely to keep reappearing in new contexts as a result of ongoing biotech developments. It thus seems urgent and important that a resolution to the ethical and jurisprudential debate about the sale and appropriation of human body parts is found before the biotechnology, and the black markets that traditionally accompany legal prohibitions, leave law makers far behind in an unregulated wake.
To set the scene, Part II provides some background and context to the debate about a legal market in human body parts by offering a brief overview of the kinds of laws that have been developed in response to the sorts of scientific and medical advances just outlined. In keeping with the liberal philosophical perspective examined by this article, the jurisdictions surveyed are primarily those hosting liberal democratic political systems.
The case against a legal market in human body parts is then presented in Part III. Drawing on liberal philosophical precepts, the anti-market (“Opponents”) viewpoint consists of several overlapping arguments that comprise the normative response in contemporary liberal societies. These include the avoidance of exploitation, the avoidance of sales of human body parts by people lacking adequate knowledge or consent, the minimisation of wealth inequalities, the avoidance of slavery and/or the commodification of the body, and the avoidance of moral repugnance.
Part IV explains the liberal philosophy that underpins the argument just put for the Opponents. It analyses the liberal philosophical principles underlying the normative anti-market case and explores the merits and weaknesses of the Opponents’ main contentions. By drawing conclusions about how convincing (or otherwise) the Opponents’ various arguments are, this section demonstrates that not all of the Opponents’ arguments can be supported by fundamental liberal theory; it thereby builds a platform from which to examine the approach of those who advocate a market in human bodily materials.
In Part V, a pro-market (“Advocates”) case is presented using a framework based on many of the philosophical principles identified in the anti-market case. This challenges the dominant, anti-market, prohibitionist approach generally found in the legal systems of industrialised, technologically advanced, liberal societies. By showing how effectively the Advocates draw on the same foundational ideals as the Opponents, this section of the paper demonstrates the inherent strength of the Advocates’ case.
The conclusion in Part VI explains why the Advocates nevertheless fail to persuade society that human body parts should be able to be bought and sold in a free market. It shows that this is due to the prior failure of existing laws to improve and regulate social conditions to the degree that a market in human body parts could operate in accordance with the requirements of classical liberalism. Thus, the sale of human body parts remains prohibited throughout much of the world and persists as a topic of lively political debate. While utopian liberal conditions[15] remain elusive, the most basic criteria required to validate a free market in human body parts have not been met. In these circumstances, any market in human body parts would need to be strictly regulated and limited according to the liberal principles set out in the Opponents’ case below.
Prior to entering and assessing the debate, it is useful to understand the sorts of empirical legal provisions that law makers in liberal democracies have instituted to regulate the use and sale of human body parts. These illustrate the ways in which law makers have grappled with the issues thus far, and provide a helpful context from which to observe the unfolding policy debate.
II. LEGAL RESPONSES TO THE REMOVAL AND TRANSPLANTATION OF HUMAN BODILY MATERIAL
When kidney transplantation became a viable treatment for renal failure, law makers reacted with legislation to regulate the circumstances surrounding the procedure. The UK’s Human Tissue Act 1961 was thus introduced to “make provision with respect to the use of bodies of deceased persons for therapeutic purposes and purposes of medical education and research” in England, Scotland and Wales.[16] This law allowed the use of a dead body for therapeutic purposes or for medical education or research if the deceased person had given consent while alive.[17] Alternatively, so long as the deceased person had not voiced objections prior to death, and so long as the surviving spouse or relatives did not object, authorisation for such use of the body could be given by the person lawfully in possession of the dead body.[18] The Human Organ Transplants Act 1989 (UK) then made it a criminal offence to engage in commercial dealings in human organs for transplant, or to advertise the buying or selling of organs. It also made it illegal to transplant an organ between a living donor who was unrelated to the recipient unless the Unrelated Live Transplant Regulatory Authority (ULTRA) had approved the operation under the Human Organ Transplants (Unrelated Persons) Regulations 1989. These regulations required ULTRA to ensure that no payment or inducement had been offered or made to the donor, that no coercion or pressure had been placed on the donor to undergo the procedure, that the donor was aware of the nature of the operation and the risks involved, and that the donor understood that he or she could withdraw at any time prior to the operation.
This collection of UK laws was similar to those that have been established in many other jurisdictions around the world.
The United States, for example, enacted the National Organ Transplant Act in 1984.[19] Under this law, it is a federal crime to “knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” Similar prohibitions are contained in various pieces of state legislation based on the earlier Uniform Anatomical Gift Act 1968.[20] These had been adopted by the District of Columbia and all states by 1973.
The relevant Australian legislation is also state based.[21] These laws are largely derived from model legislation drafted by the Australian Law Reform Commission in conjunction with its 1977 Report, Human Tissue Transplants.[22] They regulate issues such as blood and tissue donation by live adults and children, post-mortem examinations and the removal of tissue and organs from the deceased. They also prohibit the trade in human tissue. Scientific developments in the areas of tissue and organ donation, genetics and human reproduction have led to discussions as to how these laws might best be updated to keep up with contemporary needs, and various amendments have ensued.[23] This is typical of trends worldwide.[24]
As a market in kidneys and other human body parts grew, jurisdictions throughout the world introduced laws to regulate transplantation, and those with established laws have tended to strengthen their provisions to outlaw the sale of human organs and cover newly developing areas of concern.
For example, the Indian Transplantation of Human Organs Act 1994 was passed in response to the country’s notorious market in human body parts. In Indian states adopting the Act, organs were only permitted to be donated by a parent or sibling, or by unrelated donors if the state transplantation authorisation committee found that the person was donating purely as a result of emotional attachment to the patient and not for monetary or material gain.[25] The law outlawed trade in or transactions involving human organs, with penalties such as fines and prison terms for agents involved in such deals. Doctors found to have violated the law faced the suspension or cancellation of their medical practice licences. The Act also redefined “death” to include the point at which doctors certified a patient as brain stem dead (instead of the moment the heartbeat ceased), thus paving the way for more transplants from deceased people rather than living donors.[26]
Following numerous reports of a brisk trade in human kidneys in China, particularly from the sale of executed prisoners,[27] Chinese legislatures also started to ban the sale of human body parts. For example, the sale of human organs has been illegal in Shenzhen city in China’s southern Guangdong province since 1 October 2003. The British Medical Journal quoted nephrologist and chair of the Hong Kong Medical Association Organ Donation Registry, Dr Ho Chung-ping, as saying: “The central government has always said that it is forbidden to trade in human organs, but this law is putting that on paper.”[28]
The Council of Europe has similarly approved a Protocol promoting organ and tissue donation, prohibiting financial gain from the donation of organs or tissue, and outlawing organ and tissue trafficking.[29]
The hegemonic view on this point is thus very clear: the sale of human body parts is unacceptable and illegal. Meanwhile, scientific and medical developments in other areas—such as the field of xenotransplantation, cloning and reproductive technologies—have inspired new policies and laws.
In the UK, for example, the Nuffield Council on Bioethics approved the use of pig organs (but excluded the use of primates organs) for transplantation into humans.[30]
In a separate development, the UK’s Human Tissue Act 1961 and the Human Organ Transplants Act 1989 has been replaced by the Human Tissue Act 2004, with application in England, Wales, Northern Ireland and (in part) Scotland.[31] The new law arose from concerns about the removal, storage and use of organs and tissue from children at the Royal Bristol Infirmary and the Royal Liverpool Children’s Hospital. Inquiries showed that body parts had been taken without proper consent, that the practice had been widespread, and that the laws covering this area were not comprehensive, clear or consistent.[32] The new law thus established the Human Tissue Authority to regulate activities involving tissue from both dead and live human bodies. It prohibited commercial dealings for the purposes of transplanting human material consisting of or including human cells, with the exception of gametes, embryos and, in effect, patented material.[33] It also defined “consent”[34] and restricted transplants of material from the body of a live donor to those situations in which no reward has been or will be given for the “donation”. In doing so, the Act extended the ambit of statutory regulation of scientific research and medical procedures involving the use and transfer of material extracted from the human body. This should also be flexible enough to cover technological advances that are yet to be developed.
Other jurisdictions are similarly amending old laws or closing gaps where activities involving research or transplantation of human bodily products have previously been unregulated.
With much current research involving the use of human embryos and embryonic stem cells,[35] this has been an area of particular legislative attention. A multitude of laws now regulates cloning, embryonic and foetal research in the United States. While no federal legalisation bans cloning, federal funding is not granted for the purposes of research involving human cloning. Numerous state laws address the issues, but they do so in highly variable ways. For example, some states allow research on aborted foetuses or embryos with the consent of the donor; nearly half the states restrict the sale of foetuses or embryos; Louisiana prohibits research on in-vitro fertilised embryos; Illinois and Michigan prohibit research on live embryos; and Nebraska will not permit state funds to be used for embryonic stem cell research. Several states prohibit research on cloned embryos, while others prohibit reproductive cloning but allow cloning for research.[36] The variability of the laws governing this topic within the United States alone is indicative of the unsettled nature of the perspectives, policy and state of technology affecting issues such as cloning and embryonic research.
As in the United States, Australian states have introduced numerous acts, regulations and guidelines, dealing with fertility treatments and reproductive technologies, since the 1980s.[37] In December 2002, Australia’s Federal Parliament passed the Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002. These laws took effect in January 2003, establishing a strict framework to prevent human cloning and regulating research on surplus human embryos that had been created during the procedures involved in assisted reproduction. Notably, by 2005 the new legislation was already under review by the “Independent Committee to Review Human Cloning and Embryo Research Legislation”. The terms of reference for this Committee included investigating the scope and operation of the laws in light of scientific and medical developments, and reporting back to the Australian Parliament with recommendations about amendments that should be made to the existing laws.[38] Again, the unsettled character of the issues covered by this area of law making are obvious.
Similar dilemmas are being confronted worldwide. Noting that the “transplantation of human cells and tissues is a strongly expanding field of medicine offering great opportunities for the treatment of as yet incurable diseases,” a 2004 EC Directive set standards concerning the donation, procurement, use and distribution of human tissues and cells.[39] In addition, Italy’s controversial and much-publicised Law 40/2004 introduced regulations concerning medically assisted reproduction. This statute prohibits oocyte and sperm donation, as well as forbidding the cryopreservation of embryos. It also bans medical research on human embryos (such as genetic cloning, eugenic procedures and blending the genes of humans with those from other species) and reproductive cloning.[40] The Italian legislation arose in a particular political climate in which the views of the Roman Catholic Church added an important dimension to debate over how the use of human body parts for research, reproduction and medical therapies should be regulated. As will be seen below, religious and other moral viewpoints can play an influential—if not particularly “liberal”—role in swaying public opinion and policy towards scientific and medical uses of human bodily material.
The laws just surveyed represent just a tiny sample of those affecting the scientific and medical use of human body parts throughout the world. However, they are reasonably representative of those that can be found in most jurisdictions in which legislation about the scientific or medical use of human body parts has been pronounced. This is revealing as it shows that the laws that have been adopted tend to prohibit the compensated alienation of most human body parts, though non-essential or easily regenerable body parts such as blood, hair and sperm are exceptions in some jurisdictions (particularly in the United States). The laws also tend to regulate who can donate human organs and tissue, and in what circumstances (e.g. among living donors, it is common for only relatives or those with demonstrable emotional bonds to be permitted to donate). These principles have been instituted by those who reject the notion of a legal market in human body parts, but they are increasingly challenged by others who believe that a legal market would provide a way of overcoming the chronic shortfall of body parts needed for therapeutic transplantation and scientific research.
It is to this debate that we now turn.
II. THE CASE AGAINST LEGALISING THE MARKET IN HUMAN BODY PARTS
The normative legal approach to the sale of human body parts in liberal democratic societies is therefore one of prohibition. It is usual for living individuals to be allowed to donate non-essential or regenerable body parts and for body parts to be harvested from cadaveric donors. Sometimes cadaveric harvesting occurs through a state policy of assumed donor consent in which people are taken to have agreed to the post-mortem harvesting of their body parts unless they had taken the required steps to opt out of the system during their lifetimes.[41] It is uncommon for the sale of human body parts to be permitted,[42] although it is not unusual for jurisdictions to have enacted legal prohibitions only after reports of exploitation.[43] As with prohibition policies generally, the fact that a behaviour is proscribed by law does not mean that it will not occur, and a trade in human organs, tissue, sperm and ova persists nonetheless.[44]
International organisations have made pronouncements against the trade—and particularly the international trade—in human body parts. For example, in 1985 the World Medical Association condemned the purchase and sale of human organs for transplantation. It did so in “due consideration of the fact that in the recent past a trade of considerable financial gain has developed with live kidneys from underdeveloped countries for transplantation in Europe and the United States of America,” and it called on governments worldwide to take steps to prevent the commercial use of human organs.[45] At least in societies that consider themselves to be modern liberal democracies, the hegemonic viewpoint has been that the sale of human body parts should be prohibited. Like the unanimous view of United Nations members that there should be a total ban on the creation of cloned human babies,[46] this attitude is underpinned by arguments that it is necessary to forbid the sale of human body parts in order to avoid exploitation, the sale of body parts without true consent—accentuating wealth inequalities—commodification of humanity and slavery, and moral repugnance. Each of these justifications implicates core tenets of liberal philosophy and merits analysis.
A. Avoid Exploitation
The avoidance of exploitation is one of the most pervasive and influential of the arguments against allowing the sale of human body parts. Fear of exploitation has been reinforced by experiences in jurisdictions and contexts in which body parts have been permitted to be exchanged for money or the illicit trade in human body parts has not been successfully halted.[47] With the onset of the biotech revolution, the scope for exploitative harvesting of human body parts has been extended. An example is the collection of oocytes (human eggs) from attractive, intelligent female students attending Ivy League colleges in the United States in return for funds with which to pay for their educations.[48] At first glance, the profiles of such donors seem vastly different from those of illiterate rural workers in developing nations who feel compelled to sell their kidneys, but the vulnerability of both groups in their respective societies may be a common factor. Both groups of donors see the sale of a body part as a means—albeit a risky and intrusive one—of obtaining money with which to better their lives and opportunities.
The anxiety is that poverty, need and insecurity will be exploited by body part marketeers who will prey upon the poorest, most vulnerable members of (the global) society,[49] and upon those with the fewest alternative options.[50] Marketeers exploit and reinforce financial inequalities by offering to exchange money for the body parts of the people who most require assistance to raise their living standards. The dichotomous stereotypes of rich and poor, North and South, East and West, First World and Third World, could be reinforced by the invidious exploitation of need. These are scenarios that the Opponents of the sale of human body parts seek to prevent.[51]
An important premise supporting this argument is that any situation in which people alienate parts of their bodies and sell them to other people is presumptively exploitative. This rests on an assumption that rational people would not sell parts of themselves unless their financial needs were so great that they surpassed their needs for health. The sale of a body part in such circumstances might seem to be the most rational option for someone stricken by poverty,[52] but harvesting body parts from indigent people is considered to be exploitative as it physically internalises their poverty. That is, the environmental conditions of poverty that might drive a person to sell a kidney are physically internalised when that person adopts personal responsibility and tries to lessen the effects of poverty by selling an intrinsic—though presumably not imperative—part of his or her body. This fear is entwined with perceptions about the quality of consent that can be made under such conditions.[53]
Regardless of the issue of consent, the Opponents of a legal market consider the sale of body parts to be presumptively exploitative. Those who consider such choices are likely to have large debts and/or limited financial options,[54] and they are likely to be put at further financial risk if removal of a body part incapacitates them. Third World slum dwellers would not have the capacity to purchase kidneys or corneas if theirs failed. The First World poor who are not covered by adequate health insurance or a social security safety net might not be much better off. A needy body part vendor who remains healthy is fortunate; one who becomes ill is likely to end up in a far worse situation than before the body part was alienated and is unlikely to have the resources to purchase a life-saving body part in turn from another vendor. Hence, the Opponents conclude, the sale of human body parts is exploitative and should be prohibited.[55]
Fear of exploitation also underpins many of the other arguments against the sale of human body parts, such as exploitation as a result of lack of adequate knowledge or exploitation as a result of lack of consent. These could be described as secondary forms of exploitation and will be outlined below.
B. Avoid the Sale of Body Parts without True Consent
Just as those who argue against euthanasia may invoke fears that the elderly will be “killed off” by avaricious friends or relatives[56] who wish to inherit their possessions and/or be relieved of the burden of caring for them, those who argue against a market in human body parts fear that people with ulterior motives might induce the naive or vulnerable to sell body parts in conditions of less than perfect information.[57] It is strongly arguable that a person who sells a body part, without fully understanding the risks involved in the procedure and its consequences has not truly consented to the operation. Likewise, if a person is placed under persuasive moral pressure to sell (or even donate) a body part, the quality of his or her consent to the operation is dubious. Lack of consent implies coercion.
The risk of coercion is a fundamental objection by the Opponents to a market in human body parts. It can be seen to fall into two basic categories: strong and weak coercion, and each deserves thoughtful consideration.
1. Strong Coercion
If a person is physically forced to donate or sell a body part against his or her will, it is a case of strong coercion.[58] Such a scenario would arise if a person was kidnapped and sedated and, while unconscious, underwent an operation in which a kidney or other body part was removed without the victim’s express or implied consent. This sort of behavior would involve the crimes of unlawful detention or imprisonment, and assault and battery, and it would be punishable even if the sale of human body parts were to be legalised. Reports of kidnappings of this sort circulate regularly, and authorities repeatedly discount these stories as hoaxes.[59] However, behind the urban myth, cases of “organ theft” have been documented and do involve unacceptable, strong coercion. For example, a Brazilian woman who discovered her kidney had been removed when she was undergoing surgery for the removal of an ovarian cyst did not consent to the “donation” of her organ,[60] and it is her lack of consent that makes this an example of strong coercion.
Indeed, it could be argued that its denial of autonomous decision-making authority over the body—and the associated alienation and loss of identity that this implies—might be akin to slavery, with all the further legal and moral implications that this would entail.[61]
Similar arguments are arising in the context of whether or not “therapeutic babies” (children conceived for the purpose of providing body parts to help or save another human being, and genetically engineered to ensure their biological compatibility for these purposes) should be allowed to be created. The Opponents to a market in human body parts typically say “no”, because the therapeutic baby is unable to consent to the procedure. National authorities are currently divided over the ethics of such treatment[62] and, in effect, the concern is that allowing such procedures would require the toleration of the strong coercion of the therapeutic baby.
It would also amount to strong coercion if a child,[63] a mentally handicapped person, or a person deemed to be incompetent to make informed decisions were to have body parts removed and sold.[64] Clear problems of consent arise in the case of anencephalic infants—babies born without brains but with a brain stem—that have no hope of surviving and who are obviously unable to consent to removal of their organs. Such difficulties are likely to increase rather than disappear as the biotechnological revolution creates ever greater opportunities for using the body parts that could be harvested from such infants.
Another example of strong coercion would arise if someone was tricked or deceived into selling a body part having been provided with misleading information about the procedure. The Opponents fear that brokers eager to close deals would not provide potential vendors of body parts with full or accurate information. For example, the removal of a kidney or cornea involves intrusive surgery and anaesthesia, and carries medical risks. The process involved in donating oocytes can also lead to complications. If providing adequate information might have the consequence of deterring a potential body part vendor, it could be in a broker’s interest to err on the side of supplying less information. Decision making in such conditions could be assumed to be flawed and any uninformed “consent” would be invalid.[65] It is imperative for the protection of personal autonomy that people not agree to undergo such operations unless they are well informed about the likely and possible consequences of their decisions, and the Opponents’ objection to the sale of a body part in such circumstances coincides with the principles of classical liberalism.
Opponents of a legitimate market in human body parts fear that strong coercion might become more common if body parts were freely available and/or it was harder to trace them to their sources. That strong coercion is incompatible with the fundamental tenets of liberal democratic society is indisputable, and the Opponents argue that it would surely remain unacceptable and illegal in an environment that hosted a legitimate market in human body parts. Whether it would become a more prevalent problem in such a market would be a matter for further inquiry and evidence.
2. Weak Coercion
Coercion need not be strong to deny a decision the quality of consent. It could be described as weak coercion if moral pressure were to be placed on a person to donate or sell a body part to help another person and if, without that pressure, the donor or vendor would not have undergone the operation to remove the body part. Another example of weak coercion would be a situation in which a person induced by poverty to sell a body would not otherwise have done so. In each case, it is debatable how “true” the consent could be.[66]
(a) Weak Moral Coercion
Generosity towards a brother, sister or other family member might be encouraged and might even be regarded as a social duty.[67] Donations of body parts to sick relatives might be applauded. But altruistic voluntary generosity should be distinguished from coerced voluntary generosity. Regardless of whether coercion is weak or strong, the effect is similar because it detracts from the quality of the consent.[68] This is the case regardless of whether or not the decision is made to donate a body part to a relative, to sell a body part to a relative, or to sell a body part to raise money to help a relative. As the second and third of these scenarios are not legal options in most jurisdictions, opponents of the sale of human body parts fear that coercion would become more of a problem under market conditions because there would be more opportunities to engage in, and fewer penalties with which to punish, coercive behavior.[69]
(b) Weak Commercial Coercion
The third scenario just mentioned—moral pressure to sell a body part to raise money to support a relative—is entwined with the problem of weak commercial coercion in which the donor’s motivation is dominated by the lure of financial gain.
A preliminary (and frequently unstated) assumption in discussions about commercially motivated transfers of body parts is that only those in desperate financial need would enter into a contract to sell a body part. Such commercially motivated donors are characterised by G P Smith as forced donors. By definition, forced donors are financially vulnerable people who are “forced as such by their own circumstances and coerced by enticement of affluent buyers” to sell or “lease” out a body part.[70] Opponents of a legal market suggest that forced donors lack reliable decision-making capability due to their social and/or economic circumstances: “It is said that they are likely to be too uneducated to understand the risks, and that this precludes informed consent. It is also claimed that, since they are coerced by their economic circumstances, their consent cannot count as genuine.”[71]
While it does seem unlikely that wealthy people would offer to sell body parts as readily as those who have an urgent need for funds, the possibility that a wealthy person might wish to donate a body part in return for monetary compensation should not be ignored. Yet it is rarely (if ever) considered, and nor is the scenario of a person who is prepared to donate free of charge but who would prefer to be paid. In effect, therefore, the motivation for the donation is treated as an irrelevance when money enters the equation. When this approach is taken, all sales of human body parts are considered to be exchanges of desperation,[72] and the Opponents seek to block such exchanges on the basis that the lack of true consent involved in the transaction has deprived the donor of full liberal autonomy.
Arguing along similar lines, Joel Feinberg describes transactions involving forced donors as coercive. The donor prefers the anticipated outcome of a decision to alienate a body part in such conditions (that is, a financial benefit) over the anticipated outcome of the alternative, which is not to sell a body part.[73] Although the opportunity to enter into the contract enlarges the range of options available to the potential donor, it simultaneously places such people in a position in which the quality of their consent must be suspect. This can be more clearly illustrated by a hypothetical example. Before the offer to buy her kidney, Maria had one option: poverty. She now perceives that she has two options: (a) poverty, or (b) poverty moderated by income from sale of the body part.[74] Where the decision-making context is desperate, the long term risks associated with donation of a body part seem low and the immediate gain seems high, it can be queried how problematic a choice this is. Is it really an exchange of desperation?
Alan Wertheimer cautions that we should not assume that “hard circumstances constitute a defect in consent.”[75] Indeed, when a fully informed donor takes empirical long-term health risks into account, the strength of that donor’s resolve is perhaps emphasised even when the resolve is driven by a need or desire for money. This can be illustrated by another hypothetical example. Suppose Mark is poor and unemployed, and his son needs an operation that Mark cannot afford. Without the operation, his son is expected to die; with it, the child is likely to live a healthy life. The operation and related expenses will cost $50,000, and Mark has exhausted all other legal options for raising the money. Then Mark is offered $50,000 in return for the “donation” of one of his kidneys. If he were financially comfortable, he would not accept the offer. But his choice, as he perceives it, is between his son’s life and one of his two kidneys. Mark chooses to accept the offer and donate the body part. It is arguable that Mark has not been coerced into donating anything; it was an autonomous decision. But it was a decision that responded to a choice between two unappealing options, and one alternative was too costly to be considered seriously when there was an alternative. One option was unacceptable and the other was unfavourable, and Mark freely chose the unfavourable over the unacceptable.[76] It could be argued that his decision was informed, and rational in the circumstances. But it is nonetheless a choice that the Opponents of a market in human body parts would prefer Mark was forbidden from making. They would like to exclude the legally condoned possibility that a person is placed in a position to be able to make this choice.
This opposition might be deepened by the documented experiences of numerous organ donors in countries such as India and the Philippines, where financial necessity has given rise to the remunerated donation of kidneys, corneas and other body parts.[77] The Indian experience includes stories of people selling kidneys to raise money to pay dowries for their unmarried daughters and sisters,[78] and mothers being “persuaded” to sell kidneys to repay loans they had taken to support their families.[79] Residents of Philippine shanty towns have similarly sold kidneys to raise money for the medical treatment of their children or to support their families.[80] Perhaps they submit willingly to the operations, but how real is the consent in such situations?
The Opponents must therefore address the effect that the exploitativeness of a non-coercive offer has on the voluntariness of the responsive consent.[81] In other words, can exploitation be reconciled with liberalism’s fundamental principles of liberty and informed consent? Feinberg replies that the sort of offer accepted by Mark is a freedom-enhancing coercive offer because “one person can effectively force another person to do what he wants by manipulating his options in such a way as to render alternative choices ineligible.”[82] Although he is coerced, the consent is real and the donor’s choice is made autonomously. The donor’s sincere preference is to alienate a body part. Regardless of the environment and social context in which the decision occurs, an ideally liberal society is bound to honour this application of self determination. But if the decision was ultimately coerced, it would remain an unacceptable and problematic scenario for the Opponents of a market in human body parts.
C. Avoid Accentuating Wealth Inequalities
Although it is probably a sub-category of the desires to avoid exploitation and coercion, the rationale of avoiding the accentuation of existing wealth inequalities also stands alone as an argument against the sale of human body parts. Bernard Dickens describes this as a sort of neo-Darwinian “survival of the richest”[83] in which the wealthy live healthier and longer at the expense of the poor. This claim suggests that the poor will sell their body parts to the rich and this will reinforce existing disparities. Like the Opponent’s previous objections to the sale of human body parts, this assumes that impoverished people would be over-represented among organ and tissue vendors and that the state must intervene to protect the poor from selling their most personal of assets to the wealthy. Michael Walzer suggests that the reason for and/or effect of this type of state action is to “set limits on the dominance of wealth”.[84]
The Opponents also fear that allowing the sale of body parts will lead to conditions in which organs such as kidneys will no longer be donated.[85] This would drive up prices so that only the wealthy would be able to afford transplantation.[86] Not only would most organ vendors be poor, but most recipients would be wealthy, and this would further accentuate social wealth inequalities.[87]
D. Avoid Commodification of the Body and Slavery
The anti-commodification argument appears frequently in the Opponents’ objections to a market in human body parts.[88] Yet, as noted by H Hansmann, it “is difficult . . . to find a clear statement of precisely what is meant by commodification or why it is undesirable.”[89] Stephen Wilkinson has suggested two meanings of this term,[90] and the difference between them helps to explain the uncertainty. The non-moral meaning of “commodification” offered by Wilkinson is roughly equivalent to Margaret Jane Radin’s “narrow” construal of the term:[91] it refers to something that is legally permitted to be bought or sold. By contrast, the moral meaning of commodification involves objectification of the human body. It involves treating something that is not fungible (i.e., not a commodity that is interchangeable for another identical commodity, and that can therefore be replaced by an equivalent item to satisfy an obligation) as if it were fungible. This raises emotive concerns about treating humans and their body parts as acontextual objects that can be bought and sold without regard to the need for human dignity, and it invokes Immanuel Kant’s principle that people are not means-to-ends and should be treated as ends-in-themselves.[92]
It seems likely that the anti-commodification view is, at least in part, a self-perpetuating product of existing social norms, including the above-given normative definitions. These norms also tend to link commodification of the human body to ownership of the body, and to link ownership of the body to notions of slavery.
This argument against slavery is deeply rooted in the history of the United States, and it is influential throughout the English-speaking world. Slaves were legally defined as property by legislatures in various American jurisdictions during the 18th century, and they could be bought, sold, taxed and inherited,[93] all of which seem incompatible with notions of liberal autonomy and the self determination of individuals. Thus, as Tony Honoré suggests “it has been thought undesirable that a person should alienate his body, skill or reputation, as this would be to interfere with human freedom. When human beings were regarded as alienable and ownable they were, of course, also regarded as being legally things.”[94]
This fear of being regarded as a “thing” or “commodity”—the object rather than the subject of control over one’s own body—frequently appears as an objection to “commodification” of the body.[95] This in turn serves as an objection to the sale of human body parts,[96] and it is a recurrent theme adopted by those who oppose human cloning[97] and some of the other possibilities being generated by the revolutionary breakthroughs in biotechnology and medical science.
E. Avoid Moral Repugnance
The related argument that it is morally repugnant to allow people to sell their body parts is another central pillar of the Opponents’ case.
The Australian public was reported to express almost universal disapproval of the sale of human organs in 1977.[98] More recent surveys suggest that although more than half of the United States’ population would support the notion of compensated donation of human body parts, a large proportion still disapproves. By 1993, only 12 per cent of Americans polled said they would be more likely to “donate” body parts if there were financial incentives to do so.[99] Such figures perhaps suggest that although moral repugnance is far from universal, it remains an important justification for a prohibition on the sale of human body parts.[100]
Two different objects of repugnance can be identified in the debate about whether or not to legitimise the sale of human body parts: repugnance about the sale of pieces of humans and repugnance about the circumstances of such transactions.
Repugnance about the alienation of parts of human beings is recognised as a reason why people decide not to bequeath their organs for transplant after their deaths, and why they decide not to allow the organs of deceased relatives to be harvested for donation.[101] This viewpoint is promoted by some religions,[102] and it can also occur as an emotional or religious response to the prospect of one’s loved one being disfigured or mutilated prior to a funeral and burial.[103]
The other category of repugnance about the sale of human body parts refers to feelings of abhorrence about the circumstances in which such sales occur. These allude to the scenarios raised above in the arguments against exploitation, coercion, the accentuation of social inequalities, slavery, and the commodification of humanity. It adds a moral dimension to these arguments by suggesting that they are not only unacceptable because of the inequalities they produce or reproduce: they are also morally wrong.
Thus repugnance becomes an argument in itself. Regardless of whether it is the sale or the conditions of the sale that cause feelings of disgust, it is the strength of the moral judgment that counts against the sale of human body parts.[104]
Although it is generally inconsistent with the liberal principle of moral neutrality to base decisions on moral justifications, this does not undermine the practical influence of moral arguments. In 1989, one of “ the most tenacious defenders of the free market, (then) Prime Minister Margaret Thatcher, declared that the sale of any organs of the human body is repugnant.”[105] This statement was a reaction to reports that a Turkish peasant had sold a kidney to an Englishman for the equivalent of US$4,400. It was a moralistic response to a set of facts, and it raises further questions about the way in which the case against the sale of parts of the human body corresponds with the philosophical framework that underpins liberal democratic societies.
III. LIBERALISM AND THE PHILOSOPHY UNDERLYING THE DEBATE
It is apparent that objections to a commercial market in human body parts tend to be based on fears about the lack of self determination or liberty (coercion), the lack of fairness and equity (exploitation and wealth disparities), and the lack of morality that such a market might entail. These are the subject matter of classic liberal philosophy, but the Opponents cannot claim a monopoly over their invocation. Advocates of a commercial market in human body parts draw on many of those same principles to explain why all people could live happier, healthier lives in a society in which people are free to buy and sell bodily material as they wish. Both sides of the debate speak of autonomy, liberty, fairness, distributive justice and equity, drawing on the same classical liberal philosophical tenets in support of their respective positions. However, the conclusions of each strongly contradict the conclusions of the other. It is interesting and ironic that both the Advocates and the Opponents of a legal market in human bodily parts and products invoke many of the same central philosophical doctrines in support of contradictory arguments, and fundamental aspects of their opposing conclusions rely on differing interpretations of identical theoretical precepts.
Before proceeding to examine the reasoning of those who advocate a legal market in human body parts, this section expands on and elucidates those classical liberal ideas, assessing the Opponents’ arguments against them, and thus providing a deeper philosophical background to the debate that follows.
A. The Fundamental Principles of Liberalism
The arguments for “liberty” concern the nature and limits of the power that society can legitimately exercise over the individual, and these are the principles on which liberal democratic states are broadly based. As demonstrated by John Stuart Mill’s description of the Harm Principle in On Liberty,[106] concern for individual freedom is the central foundation of liberal discourse:
As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question of whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion. But there is no room for entertaining any such question when a person’s conduct affects the interests of no persons besides himself, or needs not affect them unless they like (all the persons concerned being of full age, and the ordinary amount of understanding). In all such cases, there should be perfect freedom, legal and social, to do the action and stand the consequences.[107]
Notions of personal autonomy and self ownership therefore reflect a sense that individuals should be free to do with their bodies as they please, and should have broad decision-making authority over their bodies. This autonomy should be limited only by the Harm Principle, which constrains an individual’s decision-making authority to that which will not harm other people. People should therefore be able to do what they desire with their bodies and body parts, so long as their actions do not cause harm to other people. They should have almost unlimited decision-making authority over their bodies, and any limits on this should be strictly defined. Restrictions are imposed only to protect others and, as far as is possible, they are to be morally neutral.
B. Autonomy
Liberal autonomy similarly requires freedom from exploitation and coercion. Exploitation should be avoided because it interferes with an individual’s personal autonomy; people who are exploited lose a degree of self control as their lives are partially directed by the impositions of others. Strong coercion must also be avoided. A person who is forced to alienate a body part does not display personal autonomy. Likewise, decisions about something as important as the alienation of part of one’s body should only be made in circumstances of full (accurate and complete) information. Decisions made with anything less than full information are to be mistrusted because faulty information can transform apparent consent into non-consent as it denies an individual the ability to make rational, autonomous decisions. The removal of body parts without the full consent of the person from whose body they are removed obviously implies exploitation and a lack of autonomy on the part of that individual. At a fundamental level, the Opponents therefore seem persuasive in their arguments against the sale of human body parts on the grounds that it is coercive and exploitative.
However, viewed on a subjective case-by-case basis, it is perhaps questionable whether all sales of human body parts would in fact be exploitative and coercive. If not, the Opponents’ case for an outright ban on the sale of body parts would be seriously undermined.
1. Presumptively Coercive and Exploitative
2. It is possible to envisage situations free of coercion and exploitation in which a body part could be exchanged for cash. Imagine, for example, a person who is motivated by love to give a kidney to a friend, and who is determined to do so. The only condition the donor places on the “gift” is that she be paid a large amount of money to cover expenses and to look after her children if she becomes ill and unable to work as a result of the operation. The transaction could be regarded as uncoerced and non-exploitative, yet the laws that typically exist in liberal democratic jurisdictions would regard it as an illegal payment for a body part. It would thus seem that—at least sometimes (though perhaps only rarely)—the sale of body parts would not exploit the vendor, and in these situations the reason for interfering with the liberty of a person to make self-regarding decisions about his or her body is paternalistic.
This raises another relevant question: Is the decision to sell part of one’s body self regarding? If so, it seems improbable that prohibiting such decisions does in fact uphold the liberal principle of self determination.
3. Self-Regarding Actions and Paternalism
John Stuart Mill explains the problem of paternalism for liberal societies in the following way:
His own good, either physical or moral is not a sufficient warrant. He cannot be rightfully compelled to do or forebear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise... These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting him with any evil in case he do otherwise.[108]
A complete ban on the sale of human body parts arguably amounts to hard paternalism. Hard paternalism describes state action that prevents self-regarding dangerous behavior, even when the behavior is voluntary. This would encompass the voluntary donation of a body part by someone who has investigated and understood the potential medical repercussions of the operation. In such a case, one obvious reason for preventing the person from donating the body part would be the possibility that the donor might later suffer medical difficulties as direct consequences of the donation, or difficulties whose effects were exacerbated by the donation. Even if the donor was aware of the potential health problems that could follow the operation, a state with a hard paternalistic mindset might intervene to prevent the individual from deciding to adopt this risk of suffering harm. From a liberal perspective, this is an unacceptable reason for state intervention with a person’s self-regarding behavior as it abridges individual autonomy[109] and dignity,[110] and it is not a relevant consideration to taken into account when implementing the fundamental Harm Principle that acts as a guiding test for liberal society.[111]
From the perspective of liberal philosophy, a more acceptable approach would be a soft paternalistic option that only temporarily prohibits a person from selling an organ or tissue. The justification for the delay would be the need to investigate and ensure that the vendor had adequate knowledge about the procedure to give his or her decision the quality of true consent, and to make sure that the sale was not occurring under circumstances of coercion. Once this has been established, liberal theory would require that the sale should be permitted.
Perhaps soft paternalism in fact provides an argument for market regulation rather than strict prohibition. It allows state interference with dangerous self-regarding behavior if the behavior is substantially non-voluntary or if intervention is temporarily needed in order to determine whether the behavior is voluntary or not.[112] This is justifiable state behavior from the perspective of liberal philosophy as it seeks to protect the donor from becoming the victim of unconsented harm; soft paternalism would become problematic only if it was hardened by illicit judgments about moral values, such as the ‘wrongness’ of alienating a part of the human body in the eyes of other members of society.
4. Harm to Others (Social Harm)
The soft paternalistic approach is not sufficiently restrictive for the Opponents of a market in human body parts. Joel Feinberg proposes an alternative argument that might justify prohibition: “It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating reducing) harm to persons other than the actor (the one prohibited from acting) and there is no other means that is equally effective at no greater cost to other values.”[113]
If it could be demonstrated that society generally—people other than those who choose to sell their body parts—would be harmed by allowing such decisions, prohibitions would not necessarily be inconsistent with the liberal harm principle.
Perhaps the fear of a growing medical welfare burden is sufficient to impose restraints on personal autonomy?[114] Particularly in places hosting a nationalised health system, society could be burdened (“harmed”) by the cost of providing medical support to those who suffer ill health as a result of alienating a body part, and this might be an acceptable reason to prevent such sales. On the other hand, society might benefit from the medical costs saved by not having to supply ongoing expensive treatment (such as dialysis) to those who have benefitted from the purchase of a transplanted body part. The relative cost efficiencies would be a matter for factual evidence and, in the case of transplantation of a body part, the likelihood of any derivative harm to others is tangential and uncertain. A parent might be less able to take care of his or her children if he or she falls ill as a result of losing a body part. A donor might be a costly burden on the medical resources of a welfare society if he becomes sick as a result of the donation (however, it should be noted that the existing tendency of vendors to come from societies without strong social welfare or nationalised health systems, and of the purchasers to come from wealthier societies, means that a donor who falls ill is unlikely to be a burden on the organ recipient’s health system in any event). Other people might feel distressed if they are disturbed to see a member of their society confronted with or making such a choice. However, these considerations would apply equally if a person decides to alienate and donate a body part altruistically—a decision that many liberal societies permit and applaud—which makes the argument appear somewhat artificial and inconsistent, and it seems questionable whether this level of possibility of harm to others would be significant enough to justify state interference with the individual’s self-determined actions.
Unless protection of society can be shown to be a persuasive reason to prevent the sale of human body parts by consenting adults on the grounds of protection of social autonomy, such prohibitions can be regarded as paternalistic and it is arguable that some other justification must be adopted if a genuinely liberal society is to vindicate intervention in decisions to engage in the transfer of human body parts.
C. Fairness and Equity
The Opponents of a market in human body parts implicitly invoke arguments about the liberal democratic principles of distributive justice, fairness and equality when they raise concerns about exploitation, consent and social inequity.
There are various conceptions of what sorts of policies liberalism actually demands in order to coincide with its general guiding principles of equality, freedom and moral neutrality.[115] Broadly speaking, proponents of liberalism would generally agree that wealth inequalities should be reduced through social welfare and progressive taxation systems leading to wealth redistribution. They believe that individuals should have basic freedoms and that regulations should not be based on judgements about the morality of particular forms of conduct.[116]
The Opponents might be correct. Many of the scenarios they fear as a consequence of a market in human body parts do not suggest social conditions that are consistent with these liberal democratic principles. Exploitation, coercion and social inequality are all antipathetic to liberal society. But is the case against the sale of human body parts itself consistent with liberal philosophy? Or, are the feared illiberal consequences in fact the result of deeper structural unfairness and social inequalities?
The Opponents propose prohibition, and this is arguably a paternalistic and illiberal response. As noted above, hard paternalistic policies against the sale of human body parts impose a non-consensual outcome on individuals who would like to engage in such transactions. They also reduce an individual’s freedom to make choices about whether or not to sell a body part to raise money that might contribute to improving his or her financial position and immediate living conditions. Thus, instead of fortifying the social fairness and equality they seek, they perhaps undermine it. If the Opponents’ position is to be grounded in liberal political philosophy, this should be noted as an inherent weakness of their case.
D. Morality
Regardless of which conception of liberalism a society adopts, a common (though not universal) principle is the moral neutrality of government.[117] Thus, a case that depends on moral arguments is perhaps not compatible with liberalism because “the traditional liberal principle [is] that government should not enforce private morality”.[118] This seems to provide a fundamental problem if the Opponents’ case against the sale of human body parts is to be justified on liberal grounds.
Recourse to claims about autonomy can be used to defend the liberal credentials of the Opponents’ case, but autonomy claims can also be used—and perhaps more effectively—to undermine this argument. Likewise, to the extent that arguments about exploitation, consent and social inequality amount to hard paternalism, they do not accord with the liberal principles they seek to uphold. They instead seem to enforce moral judgments cloaked in liberal rhetoric.
Accepting soft paternalistic arguments would tend to support the existence of a regulated market rather than the possibility of prohibition, so the Opponents seem to retreat to arguments of morality to support their claim about the illegitimacy of the market. In doing so, they step outside the traditional liberal framework. This is problematic for a morally neutral liberal democratic society and it renders their case illiberal in nature.
This failure on the part of the Opponents provides an opportunity for the Advocates of a legal market in human body parts to strengthen the weight and persuasiveness of their case by taking a reflexive approach that succeeds on the same liberal points on which the Opponents failed. By offering a solution to the problem that is more classically liberal than the Opponents’ arguments based on moral judgments, the Advocates of a legal market seek an opportunity for a victory based on reason and recourse to the fundamental normative principles of liberal democratic societies.
IV. THE CASE FOR A LEGAL(ISED) MARKET IN HUMAN BODY PARTS
Justifications for the legalisation of organ and tissue sales can be sorted into three main categories. Two of these coincide with, and simultaneously contradict, the Opponents’ arguments against a market in human body parts. The first category argues that people should be free to do as they wish with their bodies. This accords with the principle of self determination in liberal theory and could be dubbed “liberty arguments”. The second suggests that it is unfair to people who wish to profit by selling their body parts to prohibit them from doing so, especially when medical professionals sell their labour to make organ donations possible and commercial organisations also profit from the gifts of donors. These fall under the umbrella of “fairness” and “distributive justice” arguments.
The Advocates’ third argument does not match the Opponents’ final argument in its recourse to moral principles. Instead it relies on the liberal principle that markets offer the most efficient way of organising the social allocation of goods. From this the Advocates conclude that a market in body parts should be permitted, and this could be referred to as their “economic rationality” argument.
Using these main headings as a framework, the Advocates’ case in favour of allowing the sale of human body parts can be shown to undermine existing norms by appealing more to the Opponents’ normative philosophical foundations than the Opponents’ do themselves. A fourth heading—how to establish a marke—added to the schema to demonstrate how the Advocates’ flexibility, indecisiveness or even internal conflict about how to structure the proposed market also helps them to meet many of the Opponents’ arguments. By contrast, a rigid prohibitionist approach does not afford the Opponents the ability to adjust their arguments to meet the philosophical demands of classical liberalism.
A. Liberty Arguments
The Advocates of a legal market argue that, as a matter of autonomy and self determination, individuals who want to sell parts or products of their bodies should be able to do so.
1. Reduce
Poverty
The Advocates argue that preventing such sales further diminishes the range of choices available to needy people to improve their situations, so it does not protect the poor. In 1998, representatives of the International Forum for Transplant Ethics stated: “we cannot improve matters by removing the best option that poverty has left, and making the range smaller still.”[119] On this view, society should improve liberty by striving to lessen poverty and thus increase the options available to people, rather than forbidding the poor to utilise the immediate ways in which they can try to escape their plight. The less people need the money they can obtain by selling their body parts, the less attractive the option of sale will become. So global society should focus on improving the conditions of those in need rather than using laws to further limit their already limited options.
Furthermore, the Advocates argue, the medical risks involved in selling body parts are identical to the risks involved in donating body parts. So if people are permitted to give their body parts to others, it is inconsistent for a liberal society to forbid them from selling those same body parts that they would be allowed to give away. A prohibition on sale thus constitutes unacceptable interference with personal autonomy.
This invites further consideration about the reasons why donations of certain body parts are generally legal while sale of the same parts is not. Uncoerced donation of human body parts in return for compensation raises different concerns to those discussed earlier in the context of paternalism and coercion. In the case of uncoerced donations, free and informed consent is presumed, as is the absence of familial or financial pressures that might provide an overwhelming moral impetus to donate. Examples of uncoerced donations include blood donation in response to an announcement that a community’s reserve of blood supplies is low, or an agreement to donate one’s organs after one’s death (eg. ticking the “I’m prepared to donate” box on one’s drivers’ licence). It is therefore generally considered to be donation impelled by an unselfish regard for others: “altruistic donation”.
Uncompensated altruistic donation of body parts is generally lauded by society (including many of the Opponents) and supported by existing laws. It is the normative way by which human tissue and organs are made available for transplantation. Altruistic donors tend to be treated as rescuers and “illegal” elements of their actions—such as consenting to an operation that is medically not in their own best interests—are often overlooked by the legal system. Altruistic donation is regarded as commendable.[120]
By contrast, donation for compensation is frequently condemned.[121] As noted above, the donor performs exactly the same action in each case: he or she relinquishes a body part so that it may be used to aid another person. The Advocates would suggest that the “exchange of money cannot in itself turn an acceptable risk into an unacceptable one.”[122] The only material difference is that donation for compensation is accompanied by a tangible benefit to the donor rather than compensating only the recipient and others (such as doctors and administrators) who have been involved in the procedure.
From the perspective of the donor, the only other apparent difference between compensated and uncompensated altruistic donation lies in the donor’s motive. Both sorts of donors might wish to contribute to society by helping a fellow human in need and both might enjoy a warm feeling of virtue that accompanies such selfless action. But the compensated donor might also have been prompted to act by the promise of a pecuniary reward, and the donation is thus condemned. Yet it is questionable whether this promise of reward should be accorded such significance. The fact that a donor receives monetary compensation does not indicate that his or her motives were not altruistic in the general sense of the word.[123] Even if the motives were less than altruistic, is that sufficient reason for society to prevent an uncoerced person from engaging in autonomous, self-regarding action? The Harm Principle does not demand altruism; it requires only that one not cause harm to others.
In the case of uncoerced donations for compensation, it is clear that the lure of reward is not the only motivation driving the donor’s actions (otherwise the donation would be “coerced” and would be proscribed under a paternalistic liberally consistent state policy). Although donation for compensation may not seem as altruistic or virtuous as uncompensated donation, the basic characteristics of the two categories of bequest are alike. The Advocates therefore argue that it is problematic to suggest that the concepts of altruism and compensation are mutually exclusive.
3. Reduce the Black Market, Coercion and Exploitation
The Advocates propose a legitimate market in human body parts as a way of restraining the black market trade and providing conditions in which careful regulation could occur.
This argument suggests that the potential to exploit those providing body parts is reduced when the transaction occurs within a state-regulated framework rather than on a black market. Despite legal prohibitions, a black market in human body parts does exist:[124]
A black market springs up, but such a market is much more costly to operate than a free market would be (because of punishment costs, poor information, and lack of enforceable warranties), and [its prices are] higher than the free market price.[125]
Better information and safer conditions would improve the likelihood of successful transplants and reduce the risks of coercion and exploitation.[126] The Advocates therefore argue that it would be better to legitimise and regulate the market for human body parts than to drive it further underground. There is more risk of exploitation of the vulnerable when they are themselves hiding from the law due to their participation in illegal activities,[127] and more risk of profiteering by black marketeers when a market has a hidden, illegitimate nature.
In this sense, the Advocates undermine the Opponents’ case with the Opponents’ own logic. If the Opponents accept the evidence—on which they themselves rely—that exploitation occurs in black market environments, it becomes more difficult for them to reject the option of overt soft paternalistic regulation. It is harder to police paternalistic sanctions (such as criminal penalties for selling body parts or cloning humans) in a covert, illegal market. Secrecy and deception by the law breakers—vendors, brokers and purchasers alike—lead to collusion and sophisticated smuggling systems that are difficult for authorities to detect and control.[128] It would arguably be easier to monitor a legal trade with formal regulations in a controlled environment in which the state acted either as broker or as the appointer or licensor of brokers. If the supply of body parts grew in this context, demand for black market organs would be likely to fall,[129] and the effectively unregulated black market—along with its exploitative nature—would dissipate. If the implementation of the Advocates’ proposal led to a market without exploitation or loss of autonomy, it would arguably be better aligned with liberal principles than is the status quo defended by the Opponents.
B. Fairness and Distributive Justice Arguments
The Advocates argue that people should be allowed to sell their body parts as this would broaden their options and increase their liberty. It would also reverse the hypocrisy of a situation in which medical personnel receive remuneration for their services and donors are the only people involved who do not materially benefit from the transaction. The Advocates say it is unfair for medical personnel and administrators to be paid for their roles in the transplantation of body parts when the donor—without whom the operation could not occur and nobody would be paid—cannot legally receive payment. This seems even more iniquitous when commercial enterprises are permitted to profit from harvested cadaveric body parts even though those parts could not legally be sold and/or donors are not informed that donated cadavers might be used in this way.[130]
The proposal that the sale of body parts be permitted raises questions about exactly what a vendor would be paid for. Options include the willingness to donate, the physical body part itself, and/or expenses arising from the operation.
1. Payment for Expenses
In 1977, the Australian Law Reform Commission found that the only acceptable reason for allowing compensation for the transfer of body parts would be the reimbursement of expenses related to the donation operation itself.[131] The Law Reform Commission of Canada reached a similar conclusion in 1992.[132] This is an important concession as costs such as hospitalisation expenses arising from the donation might otherwise act as a disincentive to a potential donor. It also begs questions about the characterisation of these expenses. How proximate does the connection between the “associated costs” and the operation have to be? Is this perhaps a covert method of allowing donors to receive compensation while appearing to still condemn the sale of body parts?
Compensation or reimbursement for expenses or related costs is a matter of degree. G P Smith proposes the establishment of reimbursement policies that would cover the costs of pre-transplant evaluation, food, baby sitters, travel and housing for prospective patients, as well as economic assistance for those who are unable to work post-transplant.[133] V D Plueckhahn and S M Cordner suggest alternative choices including free medical care, life insurance and the waiving of medical bills for live donors, and the payment of funeral expenses in the case of cadaveric donations.[134] Other options might be to allow claims for wages lost while the donor takes time off work for the operation and recuperation, and a “damages” type award that would take into account the possibility of future pain and suffering or loss as a result of the operation. Damages payable for a “replenishable” body part (such as blood or bone marrow) would presumably be lower than those awarded for an irreplaceable organ (such as a kidney or cornea).
In 1999, the Organ and Tissue Donation Advisory Committee in Philadelphia (USA) proposed a scheme by which a payment of US$300 would be made to funeral homes when cadaveric organs were harvested for transplant.[135] The money was intended to contribute to funeral expenses, providing an indirect reward to beneficiaries under a will whose inheritance would probably otherwise be reduced by the cost of providing a funeral. It was intended to stimulate donation by more evenly and fairly distributing the “profits” arising from a bequest of body parts, and it was thus a first step towards allowing the sale of human body parts. However, the plan was abandoned due to Department of Health concerns that the funeral benefit risked violating the federal law that prohibits offering valuable consideration in exchange for organs.[136] The alternative Expense Benefit Plan for Organ Donors and their Families was instead introduced in January 2002, giving organ donors a US$300 benefit to pay for food and accommodation costs (including those of family members) incurred due to the donation.
2. Payment for the Body Part
Payment of expenses places donors in the financial position they would have been in but for the operation. It perhaps removes the financial disincentive to donate but does not provide any positive incentive. The donor still remains the only person involved in the procedure who does not receive any tangible benefit.
Some of the Advocates therefore suggest that the expenses reimbursed for the donation of body parts should be more encompassing. Drawing a comparison with alternatives to transplantation of human body parts, Jack Kevorkian notes that the production costs of in vitro body parts include capital expenditure for nutrients, equipment, personnel, and facilities.[137] Laws that allowed only the reimbursement of expenses would require in vitro body parts to be “sold” at cost price, but this would nevertheless permit elements such as the growth and nurturing of the organ to be compensated. This system enables potentially infinite supplies of in vitro body parts to be sold for large sums of money to cover the presumably high costs of development and production. Why should synthetic body parts be treated differently from natural ones?
The living donor’s capital expenditure covers the great expense of a lifetime of care and nurture in the “production” of body parts that are suitable for transplantation. The acts of feeding, washing, educating, exercising and just residing in a human body all contribute to the production of the body parts that can be made available for use by others. The Advocates argue that to deny remuneration to a person who has invested so much into creating a body part that can then be used by another person is unfair and inequitable, especially when medical personnel who have only limited contact with the body part are paid for their services and even private enterprise can profit from the donation.[138] Speaking of the compensation that could be given to vendors of human body parts, Kevorkian contends that: “What is glibly and mistakenly execrated as the [donor’s] ‘profit’ is really ‘at cost’ reimbursement for substantial ‘capital expenditure’ of a uniquely biological kind over a long period of time. And that mistake is partly responsible for an unjust and harmful moral conclusion.”[139]
On this view the uncompensated donor is unfairly exploited. The donor makes no physical gain from his or her altruistic donation, but the recipient potentially gains a renewed opportunity to enjoy life and the medical team is paid for the technical skills they employ in making the transplant possible. While Danielle Wagner arguably exaggerates when she calls this rewarding of the medical team “unjust enrichment”,[140] it does seem unjust and exploitative if only the donor, who has provided the raw materials that enabled the recipient and medical team to benefit, is left unrewarded.
Kevorkian argues that it is difficult to justify a system of uncompensated organ donation when the health care industry and professions freely pursue commercial goals,[141] and he suggests that donors should be reimbursed for both prior capital investment and current expenses: “the donor’s remuneration should be very large,” he says.[142] By contrast, the status quo preferred by the Opponents allows, at most, only out-of-pocket costs (current expenses) to be considered to be acceptable payments for human donors. This leads to a threshold problem: where does society draw the line between permissible compensation for expenses incurred directly from the act of donation, and impermissible broader “expenses” (such as the value of the donated body part itself)? This issue should be addressed by Opponents who wish to allow compensation for expenses on the grounds that such remuneration would fall outside the definition of “sale” of human body parts.
3. Reduce Social Inequalities by Treating the Rich and Poor Equally
As foreshadowed above, the Advocates argue that allowing the poor to sell body parts might help to alleviate social inequalities as needy people would have a new and lawful method by which to become richer. On this view, it is inequitable to reinforce social inequalities by preventing people from undertaking self-regarding activities that might improve their economic positions.
Furthermore, the Advocates point out that many body parts can be alienated with minimal risk to the donor. Bone marrow, blood and sperm are examples of body parts that many people could sell without assuming significant risks to their own health. The risk of alienating a kidney has been assessed as the same as “the risk of an average citizen of Ohio being involved in a road accident over a period of 4 years”, with the risk ending four years after the operation.[143] In a society in which people are permitted to engage in extreme and dangerous sports and work for leisure and/or employment, the Advocates suggest that it is unfair to re-enforce existing social inequalities by refusing to allow people to take steps that might give them additional income sources.[144]
C. The Economic Rationality Argument
The Advocates’ third argument in favour of a market in human body parts is consistent with the tenets of classical liberalism. It is different to—and indirectly contradicts—the Opponents’ case based on moral judgments. The argument of economic rationality is quintessentially liberal in nature and presents a perspective from within the liberal framework that encourages fairness derived from decision-making freedom and rational choice. This is the argument that the sale of body parts should be permitted in order to create economic efficiency, and that this would bring about justice (equality, fairness and moral neutrality).
At a generic level, the argument from economic efficiency is effectively a utilitarian claim that: “By a process of voluntary exchange, resources are shifted to those uses in which the value to consumers, as measured by their willingness to pay, is highest. When resources are being used where their value is highest, we may say that they are being employed efficiently.”[145]
The most efficient way in which to organise the distribution of goods within a society is arguably through a free market. Richard Epstein argues this case in the specific context of human body parts:
We have shortages of usable organs today, and people die as a consequence. The hope (and it is not a certainty) is that a price inducement can increase the supply of organs and counteract the shortage, as it does in other markets. Better that we have 200 people alive with one kidney each than 100 people alive with two kidneys. Better that cadaveric organs be used than be buried with the decedent. Markets could make either, or both, these things happen.[146]
In summary, this argument suggests that demand for human body parts currently exceeds supply and allowing the operation of a market for these goods would produce an optimal use of resources. A free market would allow prices of body parts to fall (vis-à-vis the black market) and it would make body parts more widely available. Indeed, the Advocates’ economists argue that “no person who could benefit physically from a kidney transplant would need to go without one.”[147] On this view, any existing injustices caused by the inability of some people—particularly those without adequate health insurance—to purchase the expensive medical care involved in organ transplants would thus be eliminated.[148] It is nonetheless difficult to see how this would be the case in societies without strong medical welfare systems.
As it is easier to regulate a legitimate market than an underground black market, it is likely that problems such as exploitation and coercion would be more easily avoided in a market setting than under conditions of prohibition. Soft paternalistic safeguards,[149] such as compulsory counselling and education classes combined with cooling-off periods, could help to ensure that potential organ vendors were well informed about the procedures they were planning to undertake. Counselling could also help to identify reluctant vendors whose consent was uninformed, or whose consent was real but perhaps driven by circumstances making consent seem the only available option (such as cases of moral pressure on the part of family members, or pressure from a debt collector).[150]
The other aspect of the Advocates’ case that coincides with the economic rationality approach is the (defeatist sounding, but perhaps realistic) suggestion that a market in body parts is operating anyway so it would be better to legitimise and regulate it than to pretend that it does not exist or that saying it is illegal will be sufficient to make it just go away by itself. By doing so, society could actively use the market to help solve the problems of exploitation and coercion that are evident in a black market environment. It could also use the market to help equalise social resources and minimise existing inequalities.
D. How to Establish a Market
The way in which a proposed market for body parts would be established is crucial to the discussion. A free market might open the door to coercion and exploitation, and it is thus condemned by the Opponents and disavowed by some Advocates.[151] A futures market might be considered to contain fewer risks. Other Advocates caution that it is a mistake to assume that a legitimate market would replicate a black market.[152] But without offering a positive statement about how an acceptable market might be organised, the Advocates’ case is incomplete.
The simplicity of the Opponents’ blanket prohibition contrasts with a diverse array of proposals for a market in human body parts from within the ranks of the Advocates. Within the pro-market camp, a distinction can be drawn between the free market advocates and the regulated-market advocates. Within each of these groupings, a further distinction can be drawn between advocates of a cadaveric market and advocates of a market for the body parts of live donors.
1. A Free Market
A free market in human body parts is the basic proposal of libertarian Advocates.[153] The notion of a “free market” implies a market characterised by free competition, in which regulation is employed primarily to maintain this condition. This scenario is probably what most scares the Opponents of a market in human body parts. Such a scheme would allow living people to sell both kidneys if they wished to (even though this would condemn them to death or a lifetime of renal dialysis),[154] or to donate their hearts (even though this would cause death). Such freedom seems ghoulish to many Opponents.
Yet the reality is that very few markets are free in liberal democratic societies.[155] Liberalism generally requires governmental market intervention to alleviate inequalities and optimise trading conditions (by requiring the provision of accurate information, for example), and to prevent strong coercion. It therefore seems unlikely that a free market could meet the requirements of liberalism in a non-utopian liberal society.
2. A Regulated Market
Economic theorists are generally more interested in the efficiency of the market than its total freedom. Therefore, regulations that can make the market operate more efficiently by reducing impediments to its effectiveness are to be welcomed. These are the same regulations that some of the Advocates believe would prevent exploitation or strong coercion, and would otherwise protect the vulnerable.
A regulated market could be structured in a multitude of ways. The spectrum of options includes the ability to sell any body part (even if this would lead to the vendor’s death) after receiving permission from a state regulatory or supervisory institution,[156] to the ability to sell only regenerable body parts such as blood or bone marrow, to the ability to sell only cadaveric body parts, or an “organ procurement market”.[157] Cadaveric body parts could be sold on a futures market or by allowing payments to relatives for permission to harvest the body parts of deceased relatives, or even to charities or other third parties.
The design of a regulated market in body parts could vary considerably from one jurisdiction to another, depending on factors such as the poverty levels and the tendency towards exploitation in the society. Normative social attitudes—including moral values and religious beliefs—could also play a role, even if that role was cloaked in liberal rhetoric.
The main issues concerning living vendor sales do not need to be revisited at this point; that would be the role of policy makers in particular jurisdictions. However, the option of selling cadaveric body parts is popular among the Advocates, and the issues it raises merit brief attention.
(a) Cadaveric Sales by Relatives
The sale of cadaveric body parts, as distinct from parts from live donors, adopts a particularly important role in jurisprudential debate about the general trade in body parts. This is arguably due to the nature of consent: consent is a right of the living. While sensitivity is displayed towards a person’s wishes after his or her death (and hence the option, in many jurisdictions, of asking potential donors to mark their drivers’ licenses if they wish to donate their organs after death, rather than having the state simply confiscate all suitable cadaveric organs),[158] it is clear that post-death rights are limited. This is a remnant of early common law, according to which, notes C L Levy, “the only right a live person had over his body, which would someday be a cadaver, was that he might direct the manner and place of his burial in his will. And, these wishes would be legally enforceable if they did not conflict with other prevailing standards (e.g., community religious standards).” 159
The state is less paternalistic—or even non-paternalistic—towards the dead than the living. Its care seems to end at the point at which a person is regarded as legally dead: that is the point at which the person can no longer be harmed,[159] and his or her freedom to make autonomous decisions can no longer be infringed. Therefore the distinction seems to be driven by the lack of harm that is likely to result from donation of one’s body parts after one’s death.[160]
An unspoken fear is perhaps that greedy or needy beneficiaries to a will would “pull the plug” on a seriously ill relative in the hope of inheriting more (due to the payment for the body parts) and sooner. This equates with the above-noted objection that is raised in arguments against euthanasia.[161]
(b) Cadaveric Sales on a Futures Market
A futures market in body parts would allow a person to enter into a contract to donate his or her cadaveric body parts in return for compensation that could be payable at the time of entry into the contract.[162] Alternatively, the compensation could be left as a bequest to a named beneficiary. The buyer could be a governmental body or a private organization that would contract for the right to remove the vendor’s organs and/or tissue upon the latter’s death. Legally, donors would enter into irrevocable trust agreements that their tissues or organs could be harvested upon their death.[163]
From a classically liberal perspective, the central benefit of a futures market is possibly the advancement of human autonomy that would flow from allowing people to decide irrevocably what should be done with their bodies after death. On the other hand, it is possible their autonomy could in fact be reduced if the organisations operating the futures markets were permitted to include contractual clauses restricting the lifestyles of the futures vendors (such as a clause prohibiting the vendor from drinking alcohol or smoking so as to safeguard the health of the liver, lungs and other organs). Problems of consent should also be considered and, as with all discussion about the alienation of human body parts, these remain the greatest dilemmas to be resolved.
V. CONCLUSIONS
The upshot of this debate is contradictory indeed. This article concludes, first, that the arguments in favour of a market in human body parts are probably stronger in classically liberal terms than the prohibitionist case against such a market. However the second conclusion contradicts the implications of this finding by arguing that the contemporary global society is not a liberal utopia and is accordingly unsuitable for a free market in human body parts. A regulated market in human body parts would have to be very limited and tightly controlled if there is to be a prospect of meeting the goals of classical liberal theory in practice. This paradox deserves brief explanation.
A. Why a Legalised Market Should be Permitted (In Theory)
The Advocates arguably win the debate at a theoretical level because, in the abstract, their arguments accord better with the fundamental principles of liberal society.
If liberalism’s role is to model a society in which fairness, equality and personal autonomy are the guiding principles and goals, the argument for a market in human body parts seems—in theory—to be an appropriate path towards this end.
The Advocates propose logical reasons as to why a legal market in human body parts would reduce poverty (by increasing the range of choices available to people), reduce hypocrisy (by removing the requirement of altruism that applies only to the donor), and reduce the coercion and exploitation that might thrive in a black market (by dragging the trade of body parts under the spotlights of regulators). They argue that fairness and equality would be increased as those who supply their body parts would no longer be the only people involved in the procedure who do not gain tangible rewards, and the rich and poor would be treated equally. All of these arguments seem to accord with the fundamental principles of liberalism.
They also seem to prevail over the Opponents’ arguments that assume the existence of exploitation and coercion when human body parts are sold, and that offer paternalistic solutions to alleviate problems that the Opponents assume will occur and that they find unacceptable in a liberal society.
Another strength of the Advocates’ argument is the flexibility that stems from collecting a variety of similar views together under the pro-market rubric. Not all who argue against a free market in human body parts from living vendors would object to a regulated or futures market in cadaveric parts. This creates doctrinal elasticity that can be used by those in favour of a market in human body parts to systematically meet each absolutist argument put forward by the Opponents. This is a particularly effective strategy when the Advocates counter the liberal-grounded elements of the Opponents’ case. By confronting the Opponents’ philosophically based anti-market arguments with pro-market arguments based on the same philosophical principles, the Advocates build a strong case. The Advocates persuasively defend a market in human body parts on the grounds of individual autonomy and liberty protected by soft paternalism.
The soft paternalistic protection offered by some of the Advocates advances the chances of a pro-market victory because it provides ways by which to limit the negative consequences of a body part market. Imposing soft paternalistic regulations on the operation of a market in human body parts in order to safeguard a degree of personal autonomy seems more in accordance with classical liberal fundamentals than does the Opponents’ demand to prohibit the market altogether. Regulation of a market is not necessarily inconsistent with liberal principles. This is decision-making authority within limits that are put in place to avoid harm, and it would be misleading to argue that humans are not autonomous if their decision-making authority is limited by laws. The fact that decision-making rights are abridged and there is not absolute control over one’s body is unlikely to mean that people have no decision-making authority over their bodies. Rather, the decision-making authority is bounded by legal limits based on socially-determined norms and, within those limits, personal decision-making authority is absolute. It follows that these limits should be set in accordance with the liberal Harm Principle.
However, it is arguably because of operation of the Harm Principal—that gives people autonomy if their actions will not cause harm to others—that the Advocates both win and lose their case. The problem lies in the source of the social norms that underpin autonomy-limiting laws.
B. Why a Legalised Market Should Not be Permitted (In Practice)
The source of those norms is the reality—rather than the theoretical ideal—of the social context in which the debate occurs. The inherent abstract merits of the Advocates’ various arguments thus lose a degree of relevance at this stage of the discussion.
The arguments of both sides are certainly aimed at helping to make society a better place, and the arguments for a market in human body parts proposed by the Advocates would appear to be driven by intentions that are every bit as good as those of the Opponents. The aim of creating a society that better protects liberal freedoms and that simultaneously increases the supply of human tissue and organs available to those in need is far from reprehensible. The Opponents are equally well meaning. They too want liberal freedoms to be protected, but they believe the way in which this must occur is through paternalistic policies grounded in part in moral concerns. The basic difference in perspectives arises because the Advocates argue from a theoretical position while the Opponents argue from an empirical standpoint and respond to existing social norms.
The Opponents tend to explain these norms in terms of “morality” (that is, norms arising from moral objections to commodification of the body, to slavery, and to practices that are viewed as implicitly repugnant) and present them as a trump that must intrude to prevent social harm. Liberalism might ideally be morally neutral, but it is not the problems that arise from utopian liberalism that the Opponents’ illiberal moral arguments are intended to combat. The Opponents instead fear the illiberal problems that, in practice, prevent nominally liberal societies from being ideally liberal. Thus the Opponents’ morally driven arguments protect autonomous individuals in liberal societies from falling victim to the malfunctioning of the practical application of the dominant political ideology in those societies. They even hope to enhance the liberal pedigree of such societies by strengthening internal liberal values, albeit through non-liberal means.
This is why the Advocates ultimately fail. Although the Advocates’ arguments might seem to be more rationally and philosophically persuasive than the Opponents’ case, a negative moral or emotional reaction to the empirical piecemeal sale of human body parts has been sufficient to keep the market black. This reaction is arguably a response to non-liberal elements that exist within liberal societies. If liberal democratic societies were always to function along utopian lines, and if the entire world enjoyed utopian living conditions, there would be no cause for concern about exploitation, lack of consent, wealth inequalities or slavery. In a society in which no person faced financial need, there would be little reason to worry about people being unfairly influenced to sell their body parts, or being induced or blinded by poverty and the lure of a better life to make decisions with irreversible, possibly detrimental consequences. It is ironic that, although the need for body parts for transplantation and research would persist in a utopian liberal democracy, the incentive to donate (without payment) would be very similar to that in a less-than-utopian society without compensation for the donation of a body part. The norms regarding the sale of human body parts would probably remain exactly as they are at present.
The Opponents’ moral arguments have an encompassing quality that loosely cloaks the objections they raise in liberal ideals; any illiberal elements are justified by the greater liberal goal of preventing coercion and unconsented harm. In the same way, the argument from the perspective of economic rationality serves to encapsulate in a liberal shell the Advocates’ other (illiberal) reasons for proposing a market in human body parts. But while the economic rationality argument is consistent with pure liberalism, the arguments from a moral standpoint add a new dimension to the debate. This arguably leaves the Advocates unable to effectively quash opposition that is based on moral contentions; the Opponents move the boundaries of the debate outside the framework of liberalism in order to justify their use of arguably illiberal means to protect liberalism, and it is in this external space that they seize their victory.
Is this legitimate? If legitimacy were to be measured from a subjective liberal perspective, the answer would probably be “no”, the Advocates would prevail, and some sort of market in human body parts could be established forthwith. But if legitimacy is measured from an objective external perspective, and if (liberty-promoting) paternalism is found to be just another social norm from which the legal system derives principles that it uses to order a notionally liberal society, then the resulting laws banning a market in human body parts are arguably legitimate. This requires that morality-driven paternalism is understood as a social norm that stands alongside liberalism to contribute to the social constitution, rather than requiring it to be subsumed by liberalism if it is to be legitimate.
If this conclusion is correct, it would be intellectually honest to acknowledge this at a policy level in order to avoid creating the impression that illiberal policy decisions are being unacceptably put into force by law in ostensibly liberal polities. For the Opponents to accept the Advocates’ proposals and depart from the status quo, the global society would presumably have to be much fairer and safer, and more equitable and liberal, than it is today. Unless this occurs, it would be beneficial for all those concerned about the issue—the Advocates and Opponents alike, as well as potential body part donors and vendors, potential body part recipients, those involved in their counselling and medical care, and researchers seeking answers for the future—if nominally liberal societies would confront, acknowledge and explain the ostensibly contradictory nature of their anti-market policies concerning the sale of human body parts. In the absence of such intellectual candour, the dilemmas seem likely to remain intractable and impervious to the scientific and medical advances taking place despite them.
C. Remedies
What, then, should be done? How can the needs, wishes and wellbeing of patients, researchers, would-be body part vendors, and the poor and vulnerable members of our global society, be reconciled? The utopia that the Opponents would require as a pre-requisite to permitting a market in human body parts seems a distant, and probably impossible, dream. Meanwhile, patients die waiting for transplant organs and tissue, researchers are demanding access to human body parts to experiment on in the hope of reaching breakthroughs that will benefit millions of people, body parts continue to be traded on the black market, and the wishes of others who want to sell their body parts are being frustrated by law. The dilemma seems intractable, and that is presumably why it remains unsolved after so much discussion and debate. But ignoring the problem does not make it go away. Far from disappearing, the old debates seem to be intensifying under the pressure of new discoveries that offer innovative medical treatments and are accompanied by new perspectives on familiar medico-ethical concerns. Perhaps the biotechnological revolution needs to be accompanied by a jurisprudential revolution in this area?
An immediate step towards effectively addressing this problem might be for law makers to recognise candidly the empirical context in which the debate has been occurring: body parts continue to be sold and indigent people continue to be exploited by rapacious black market intermediaries. Prohibition is not working. Indeed, as experiences with alcohol and drug legislation have demonstrated,[164] prohibition often fails to fulfil its goals. It might discourage an activity, but it will not stamp it out altogether, and some of those who engage in illegal behavior (such as taking illicit drugs or selling their body parts) will almost certainly be among the most vulnerable members of society. There is a difference between decriminalising, de-illegalising or legalising and regulating an activity, and tacitly or actively encouraging participation in that activity. There is a difference between allowing people self determination and approving of the ways in which they choose to exercise their autonomy. Perhaps an answer lies in strictly regulating the trade in human body parts, rather than outlawing it altogether?
Perhaps the creation of an international authority to regulate the existing—mainly illegal—market in human body parts would help? Perhaps an international regulatory authority with national branches located in organ trade hotspots around the world could act as a sanctioned, official intermediary between those who wish to donate (for compensation or otherwise) and those who wish to receive body parts? Perhaps such an authority could actively discourage the sale of human body parts but nonetheless examine, on a subjective case-by-case basis, the circumstances—and alternative options—for those who remain determined to sell their body parts? Perhaps such an authority could help by offering suggestions and advice, and by providing alternative options for some of those would-be body part vendors? Perhaps such an authority could retain the right to veto body parts sales—while always offering alternative methods of obtaining income—when convinced a potential donor/vendor is being coerced? Surely such measures would go some way to remedying the illiberal, less-than-utopian situation that exists at present?
When it comes to moving beyond the present situation and determining solutions for a better future, perhaps a sea change in jurisprudential thinking needs to occur. The initial question for law makers examining the sorts of issues raised in this paper should arguably be whether individuals should be given the sort of decision-making authority over their own bodies that would allow them to trade in their body parts.[165] If law makers conclude in the affirmative, they should then consider whether such a trade should be compensable. Focusing first on these discrete questions will hopefully help to push the debate forward towards finding workable solutions.
Once these initial questions have been answered, an appropriate legal framework through which to implement the conclusions can be chosen. It might, for example, be decided that the human body should be considered the property of its occupant,[166] and that use restrictions should attach to this property (just as legal use restrictions regulate how people use other pieces of their property, such as guns, cars, hammers, noisy stereos, polluting factories, and so on). Or maybe it would be decided that imposing a list of criminal sanctions is an appropriate way of regulating the ways in which people use their decision-making authority over their bodies (just as legal restrictions regulate whether people are permitted to ingest drugs, commit suicide, and so on). A number of alternatives could be considered.
Approaching the puzzle in the methodical manner just outlined should go some way to avoiding the contradictions implicit in allowing the uncompensated donation of body parts but forbidding the sale of those same parts. While remaining within the Opponents’ liberal requirements, and at the same time adopting the most compelling arguments of the case offered by the Advocates, it should help to protect those who might currently fall victim to exploitation and coercion because they operate in a twilight black market, having run out of (or believing that they have exhausted) legal options. It should overcome the paternalism—and particularly paternalism towards the poor—implicit in outright prohibitionary policies. It should address the issues of fairness and distributive justice that arise when everyone involved but the donor receives a tangible benefit from the donation of a body part. Finally, and most importantly, it should help society move towards a workable solution during a period of exponential growth in scientific and medical advances that really does amount to a biotechnological revolution. And that must surely be better than throwing our hands up in frustration or clinging to the status quo as a default position because it all seems too difficult to deal with.
[∗] Lecturer in Intellectual Property Law, Queen Mary, University of London. The author would like to thank Chris Birch, Tom Campbell and the anonymous reviewers for their very helpful comments on earlier drafts of this paper.
[1] J Sayfer, “Million-Dollar Kidney: eBay Shuts Down Bidding on Body Part After it Hits $5.7 Million” Associated Press.
[2] On 4 December 2003, eBay removed an advertisement to auction a kidney with a reserve price of £50,000 (US$85,000). The advertisement had been placed by Peter Randall, a British man who described himself as a “”49-year-old non-smoking male who drinks only socially and who is in good health.” Randall said he was trying to raise money to pay for treatment for his six-year-old daughter who suffers from cerebral palsy. See “EBay removes ad for sale of human kidney” (2003) <http://www.cnn.com/2003/TECH/internet/12/05/britain.kidney.ap/> at 19 June 2005.
On 25 February 2003, a US man from Rossville, Georgia, posted an advertisement to eBay that read, “I am a white male, 44 years old, in excellent health and wish to sell one of my kidneys for $250,000 plus all expenses. My blood type is O-negative. Serious inquiries only.” eBay removed the advertisement before any bids were placed. See “Kidney for Sale on eBay quickly removed” (2003) <http://www.thekcrachannel.com/news/2011004/detail.html> at 19 June 2005.
[3] <http://www.ait-cec.com/jebhe10mesg/5171.html> at 19 June 2005. The message board contains threads such as “I want to sell my kidney for cash” (posted 11 September 2004), “Kidney for sale” (posted 7 September 2004), “Re: Kidney for Sale 24 healthy, none smoker British A Rh+ type blood” (posted 9 January 2004), “20 year old selling kidney” (posted 4 December 2003), “Re: Indian guy wants to sell his kidney” (posted November 4, 2003), “Re: Kidney for Sale 23 healthy American O type Blood” (posted 31 October 2003), “I sell my kidney for $100,000” (posted 27 June 2003), and “Who wants My kidney” (posted 21 March 2003).
[4] <http://llogic.www3.50megs.com/> at 19 June 2005. The site calls itself “The Life keepers” and states:
We are looking for new donors! Our primary goals: Daily in the world many people are loosing their kidneys and then suffer from health problems, which could be solved with money! Our Solution To This Problem. We have a lot of donors who are ready to sell a kidney for money!! The reasons for this people to sell theyr kidneys are different. In the most of cases these are the big money which we give to them and exactly the better conditions of living with this money. In Bulgaria have a lot of familyes who can't aford to by themselves anything different from food!! We will find you kidney for no longer than 7 days. Just contact us and say what you want!!Then we'll send you a donor's medicine file and his/her picture. Then remain only the price and conditions for exporting the donor to YOU . [Emphasis in original]
[5] <http://www.greatdomains.com> at 22 April 2001.
[6] Sylvia Pagán Westphal, Humanised Organs Can be Grown in Animals (2003) New Scientist Online News <http://www.newscientist.com/article.ns?id=dn4492> at 19 June 2005, reporting that “human” embryonic stem cells have been harvested from cloned embryos created by fusing human cells with rabbit cells. See also, Natasha McDowell, Mini-pig Clone Raises Transplant Hope (2003) New Scientist Online News <http://www.newscientist.com/article.ns?id=dn3257> at 19 June 2005, describing how the cloning of a genetically modified miniature pig brings the prospect of transplanting pig organs into humans closer to fruition.
[7] For example, Chinese scientists have recently reported the growth of rabbit-human hybrid embryos using donor cells from the foreskins of a five-year-old boy and two men, and from a woman’s facial tissue: Philip Cohen, “Human-rabbit Embryos Intensify Stem Cell Debate”, 15 August 2003, New Scientist Online News <http://www.newscientist.com/article.ns?id=dn4060> at 19 June 2005. The donation of such tissue invokes many of the traditional arguments about the transplant and sale of human body parts, with the added complication that the “recipient” in this circumstance would be a clone of the donor.
[8] For an indication of how interwoven some of this research is, see Sylvia Pagán Westphal, “Cloned Human Embryos Are Stem Cell Breakthrough”, New Scientist Online News, 12 February 2004. This research used 242 eggs donated by 16 women, from which human embryos were grown.
[9] Examples include libertarians Richard A Epstein (University of Chicago) and Tim O’Brien (Chairman of the Libertarian Party of Michigan). See, eg, Richard A Epstein, Mortal Peril: Our Inalienable Right to Health Care? (1997). Clause XI(8) of the Libertarian Party of Michigan’s official platform, as updated on 20 May 2000, states: “Recognizing that the only way supply can be brought up to satisfy demand is through the free market system, we favor repeal of the existing prohibition on the commercial sale and purchase of body parts and organs for transplant.” It is interesting to note that the US Libertarian Party’s National Director Steve Dasbach made a statement condemning eBay’s decision to withdraw a kidney from sale <http://www.bmstahoe.com/Libertarian/onlineorgans.html> at 19 June 2005.
A clear expression of an economic analysis of the issue can be found in W Barnett II, M Saliba and D Walker, “A Free Market in Kidneys: Efficient and Equitable” (2001) 3 The Independent Review, 373–385. This article contains a useful list of references (at 384–385) of other economic analyses of the topic.
[10] The issue of how to compensate those who “donate” human tissue is considered in Charlotte H Harrison, “Neither Moore nor the Market: Alternative Models for Compensating Contributors of Human Tissue” (2002) 28 American Journal of Law and Medicine 77–105. In examining this topic, the article discusses the case of Moore v Regents of the University of California, 793 P.2d 479 (Cal. 1990) in which Mr Moore, a patient whose tissue had been used by researchers after being removed when he was undergoing a routine operation, was denied the ability to profit from the use made of his body part. See also, Donna M Gitter, “Ownership of Human Tissue: A Proposal for Federal Recognition of Human Research Participants’ Property Rights in their Biological Material” (2004) 61 Washington and Lee Law Review 257–345, arguing that as a market in human tissue already exists, the law should entitle plaintiffs to invoke a property right if they have negotiated in advance for rights in their tissue, and to invoke a liability rule if researchers have hindered their ability to bargain for such rights.
[11] For a précis of the advances associated with the biotechnological revolution of the late twentieth and early twenty-first centuries, see Nathan A Adams, IV, “Creating Clones, Kids and Chimera: Liberal Democratic Compromise at the Crossroads” (2003) 17 Notre Dame Journal of Law, Ethics and Public Policy 71. The article looks at the challenges that biotechnology presents to the “prevailing liberal democratic consensus pertaining to health and welfare”, 71. See also the interesting discussions in “Life Sciences, Technology, and the Law Symposium” (2003) 10 Michigan Telecommunications and Technology Law Review 175.
[12] For a good summary of many of the issues and references to the literature, see, eg, Russell Scott, “The Terrible Imbalance: Human Organs and Tissues for Therapy—A Review of Demand and Supply” (1993) 9 Journal of Contemporary Health Law and Policy 139. See also, Lynden Griggs, “The Ownership of Excised Body Parts: Does an Individual Have the Right to Sell?” (1994) 1 Journal of Law and Medicine 223; R Scott, The Body as Property (1981); E W Nelson, et al, Financial Incentives for Organ Donation: A Report of the United Network for Organ Sharing Ethics Committee (1993): <http://www.unos.org/Resources/bioethics.asp?index=3> at 19 June 2005.
[13] For a discussion of this, see Michael H Shapiro, “On the Possibility of ‘progress’ in Managing Biomedical Technologies: Markets, Lotteries, and Rational Moral Standards in Organ Transplantation” (2003) 31 Capital University Law Review 13.
[14] See discussion of developing uses of parts of the human body in Dorothy Nelkin and Lori B Andrews, “Symposium on Legal Disputes over Body Tissue: Introduction: The Body, Economic Power and Social Control” (1999) 75 Chicago-Kent Law Review 3.
[15] Utopia is used throughout this article in its general sense to mean a place of ideal perfection in laws, government and social conditions. It would be a place with a perfect market, no exploitation, perfect knowledge and sufficient basic resources that are evenly and fairly distributed to provide everyone with an adequate minimum standard of living. It does not imply that everyone would have perfect health, but everyone would have access to adequate health care resources.
[16] Human Tissue Act 1961 (UK), Chapter 54, Preamble. The equivalent legislation in Northern Ireland was the Human Tissue Act (Northern Ireland) 1962.
[17] Ibid, s1(1).
[18] Ibid, s1(2).
[19] National Organ Transplant Act, 42 USC § 274e (2002). This law is commonly referred to as “NOTA”.
[20] Uniform Anatomical Gift Act, 8A ULA 15 (1983). This law is known as “UAGA”. For further details, see Table 1 in Robin S Shapiro, “Legal Issues in Payment of Living Donors for Solid Organs” (2002) 7 Current Opinion in Organ Transplantation 375.
[21] See, eg, the Human Tissue Act 1983 (NSW), the Human Tissue Amendment Act 1987 (NSW), and the Human Tissue Regulation Act 2000 (NSW), the Transplantation and Anatomy Act 1979 (Qld), the Transplantation and Anatomy Act 1983 (SA), the Human Tissue Act 1985 (Tas) and the Human Tissue Amendment Act 1987 (Tas), the Human Tissue and Transplant Act 1982 (WA) and the Anatomy Act 1930 (WA). The Victorian Human Tissue Act 1982 was amended by the Infertility Treatment Act 1995 and the Human Tissue (Prescribed Institutions) Regulation 1997. In the territories, these issues are governed by the Human Tissue Transplant Act 1995 (NT) and the Transplantation and Anatomy Act 1978 (ACT).
[22] Australian Law Reform Commission, Human Tissue Transplants, Report No 7 (1977).
[23] See, eg, the Human Tissue Act 1983 (NSW), which was amended in response to Brett Walker, Report of the Inquiry into Matters Arising from the Post-Mortem and Anatomical Examination Practices of the Institute of Forensic Medicine (Sydney: NSW Department of Health, August 2001). Also referred to as the “Walker Report”.
[24] A summary of such responses is provided in D Gareth Jones and Kerry A Galvin, “Retention of Body Parts: Reflections from Anatomy” (2002) 115 Journal of the New Zealand Medical Association 1155.
[25] Doctors have complained that the Act is not strict enough as this provides a loophole, allowing for abuse of the system. See, eg. Ganapati Mudur, “Kidney Trade Arrest Exposes Loopholes in India’s Transplant Laws” (2004) 328 British Medical Journal 246:
Dr Sangay Nagral, a gastrointestinal surgeon at the Jaslok Hospital, Mumbai . . . said sections of the kidney transplantation community are, at best, turning a blind eye and, at worst, colluding with agents in organ trade. “It should be obvious to the committee about what’s going on. There is probably collusion between the committee and the transplant surgeons, but they rationalise it, believing they’re helping save lives,” he said.
See also, Ganapati Madur, “Indian Doctors Debate Incentives for Organ Donors” (2004) 329 British Medical Journal 938.
[26] See report by G Nandan, “India Outlaws Trade in Human Organs” (1994) 308 British Medical Journal 1657.
[27] See, eg, Alexandra George, “Australian Woman Travels to China for Executed Man’s Kidney”, Reuters, 5 September 1990:
Every year hundreds of Australians with kidney disease wait in vain for a transplant. Pauline Mak says she jumped the queue by flying to China to receive a kidney she was told had been taken from a Chinese criminal executed just hours earlier. Ignoring the advice of her doctor in Sydney and family concerns about ethics, the 54-year-old Hong Kong native took what she saw as her last chance for a decent life. “They executed the prisoner and that is a fact nothing can change. Why not utilise that to save other people?” said Pauline’s husband, advertising executive S.T. Mak . . . Despite official denials, there have been frequent reports in Beijing about such practices. According to one report, police were even willing to remove a kidney from a prisoner before execution. One Beijing health official declined to confirm the stories, saying only: “It is very hard to get organs.”
The operation cost Mrs Mak AUD$10,000.
[28] Jane Parry, “Chinese City Outlaws Sale of Human Organs” (2003) 327 British Medical Journal 520.
[29] Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin European Treaty Series No 186. See also Rory Watson, “European Parliament Tries to Stamp Out Trafficking in Human Organs” (2003) 327 British Medical Journal 1009, reporting a European Directive making it a criminal offence for European Community citizens to travel abroad for purchase and transplantation of a kidney and introducing a minimum ten year prison term for anyone trafficking a person into the EC for non-consensual removal of his or her organs.
[30] Luisa Dillner, “Pig Organs Approved for Human Transplants” (1996) 312 British Medical Journal 657. For a discussion of the scientific and medical issues involved in transplanting pig organs into humans, see Robin A Weiss, “Science, Medicine, and the Future: Xenotransplanation” (1998) 317 British Medical Journal 931.
[31] This law received royal assent on 15 November 2004. Following the introduction of the new UK law, Scottish procedure will additionally be governed by the Human Tissue (Scotland) Act. This similarly makes provision for the removal and use of body parts, transplantation from dead and living donors, and for the removal of body parts from a dead person for the purposes of research, education, training, audit or post-mortem.
[32] See HM Inspector of Anatomy, Isaacs Report: The Investigation of Events that Followed the Death of Cyril Mark Isaacs (UK Department of Health, 12 May 2003) and Explanatory Notes to the Human Tissue Act 2004, ¶5. <http://www.opsi.gov.uk/acts/en2004/2004en30.htm> at 3 July 2005.
[33] Human Tissue Act 2004, s32.
[34] On 28 June 2004, the UK Parliament’s House of Commons debated the proposed legislation in the form of the Human Tissue Bill 2004 (UK). The debate was primarily about the question of consent to donate organs, and included a lengthy discussion about “presumed consent” or “opt out” policies. It also covered the issue of how to treat “residual” or “remnant” tissue (that is, tissue removed lawfully from living patients in the course of diagnosis or surgical investigation) for the purposes of education, training and research. See 423 UK Hansard 109, 27–124. These are issues that had not been comprehensively covered by the 1961 legislation.
[35] For a summary of the state of research in this area, see Peter Braude, Stephen L Minger and Ruth M Warwick, “Stem Cell Therapy: Hope or Hype?” (2005) 330 British Medical Journal 1159.
[36] For an overview of the laws, see National Conference of State Legislatures, “State Embryonic and Fetal Research Laws” (2005). This summary provides a useful table summarising state law concerning embryonic and foetal research: <http://www.ncsl.org/programs/health/genetics/embfet.htm> at 1 July 2005. For related information about State legislation concerning the treatment of frozen embryos, see National Conference of State Legislatures, “State Laws and Legislation: use, Storage and Disposal of Frozen Embryos” (2004): <http://www.ncsl.org/programs/health/embryodisposition.htm> at 1 July 2005.
[37] See, eg, Infertility Treatment Act 1995 (Vic), Infertility Treatment Regulations 1997 (Vic) and Infertility Treatment (Amendment) Act 1997 (Vic); Reproductive Technology Act 1988 (SA), Reproductive Technology Code of Ethical Clinical Practices 1995 (SA) and Reproductive Technology Code of Ethical Research Practice 1995 (SA); Human Reproductive Technology Act 1991 (WA), Technology Council (Nominating Bodies) Regulations 1992 (WA) and Artificial Conception Act 1985 (WA); and Artificial Conception Act 1985 (ACT).
[38] Australian Government National Health and Medical Research Council, “Independent Committee to Review Human Cloning and Embryo Research Legislation” (Press Release, 17 June 2005).
[39] Directive 2004/23/EC of the European Parliament and Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells Official Journal of the European Union (OJ) L series, 102 Fascicle, 48, 7.4.2004. Quoting Preamble ¶1.
[40] For further details of the law, see Andrea Boggio, “Italy Enacts New Law on Medically Assisted Reproduction” (2005) 20 Human Reproduction 1153–1157.
[41] This is the situation in many countries such as Belgium, Spain, France and Italy. In 1999, the British Medical Association voted to adopt an opt out policy (policy of presumed consent) for the donation of human organs. See “BMA Backs “Opt Out” Organ Donation” (1999) Guardian Unlimited: <http://www.guardian.co.uk/racism/Story/0,2763,206328,00.html> at 19 June 2005. The system was introduced in Brazil in an attempt to end corruption on official waiting lists and problems of a black market trade in body parts. Many people opted-out due to fear that their deaths could be accelerated by others intent on harvesting their organs. See, eg, Nancy Scheper-Hughes, “The New Cannibalism”: “I am not a donor of organs or tissues . . . We were always afraid of crazy drivers, but now we have to worry about ambulance workers who may be paid to declare us ‘dead’ before our time is really up,” said Seu Jose, a house painter: <http://pascalfroissart.online.fr/3-cache/1998-scheperhughes.pdf> at 29 June 2005.
[42] Interestingly, by November 1997, the sale of human body parts was still permitted in several states in India where the national 1994 legislation (Organ Transplantation Act 1994) outlawing the sale of human body parts had not yet been adopted. See TED Case Study on the trade of human body parts in India by the Mandala Projects, (1997): <http://www.american.edu/projects/mandala/TED/KIDNEY.HTM> at 19 June 2005.
[43] For example, India’s Organ Transplantation Act responded to calls for legislation to stem the exploitation of poor Indians. Examples of reported cases included Indians travelling overseas to sell kidneys to foreigners, Indian leprosy patients selling kidneys through agents, and the removal of kidneys from unsuspecting patients in a Bangalore city hospital. See, eg, ibid at 2. The British Parliament amended the Human Tissue Act 1961 after the “kidney for cash” scandal in 1990. See report by the Mandala Project, Human Body Parts Trade TED Case Study (1996): <http://www.american.edu/projects/mandala/TED/BODY.HTM> at 19 June 2005.
[44] See, eg, Deborah Josefson, “Two Arrested in US for Selling Organs for Transplantation” (1998) 316 British Medical Journal 723; Helmut L Karcher, “German Doctors Protest Against ‘Organ Tourism’” (1996) 313 British Medical Journal 1282; and Judy Siegel-Itzkovich, “Israel Investigates Organ Sales” (1996) 313 British Medical Journal 1167.
[45] World Medical Association Statement on Live Organ Trade, Adopted by the 37th World Medical Assembly (Belgium; 1985). See also the UNHCR report: Office of the United Nations High Commissioner for Human Rights 1996–2000, Rights of the Child: Sale of Children, Child Prostitution and Child Pornography; Report submitted by V Muntarbhorn, Special Rapporteur, in accordance with Commission on Human Rights resolution 1993/82: <http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/3662c5c8967c4768802567320064762f?Opendocument> at 29 June 2005.
[46] Andy Coghlan, “Global Therapeutic Cloning Ban Averted”, New Scientist Online News, (2003): <http://www.newscientist.com/article.ns?id=dn4471> at 29 June 2005, noting the ongoing debate about the ethics of therapeutic and non-therapeutic cloning. The ban on the cloning of human babies is partly due to health and safety fears because cloned animals have tended to suffer from a higher-than-normal variety of medical problems. It is also a result of ethical concerns about allowing a new eugenics in which “designer babies” are the goal. See, Philip Cohen, “Plan to Make Cloning Safe Set Out”, New Scientist Online News (2003) <http://www.newscientist.com/article.ns?id=dn4334> at 29 June 2005, outlining the risks of cloning and the need to obtain funding to develop safe methods of cloning.
For a detailed discussion of the ethical issues surrounding human tissue cloning, see John A Robertson, “Procreative Liberty in the Era of Genomics” (2003) 29 American Journal of Law and Medicine 439–487.
[47] See, eg, Extreme Research, a website documenting research by Nancy Scheper-Hughes and Lawrence Cohen into the sale of human body parts: <http://www.berkeley.edu/news/magazine/summer_99/feature_darkness_scheper.html> at 7 September 2004.. Quoting Cohen, it states:
Crippling debt, he said, has villagers in India lined up to sell kidneys to underground brokers even though it’s against the law to provide a kidney to anyone but a relative. The villagers approach the brokers, usually after failing to repay a loan. When loan sharks demand repayment, villagers have no choice but to sell their own kidneys.
[48] For a discussion of the methods and risks involved in oocyte donation, see Curtin E Harris, “To Solve a Deadly Shortage: Economic Incentives for Human Organ Donation” (2001) 16 Issues in Law and Medicine 213–233, 230–231. Harris reports advertisements for oocyte donation appearing in Ivy League newspapers, and comments: “Opponents of an organ market point to the current trend of oocyte donation: most are from students at private colleges who are receiving little financial help from family. These women see donation as their only way to cope with the rising costs of a quality education.” (231)
[49] Nancy Scheper-Hughes, “Postmodern Cannibalism (Black Market Trade of Human Organs)” (Summer 2000) Whole Earth. The article is subtitled: “Organ transplants in the globalocal market” (emphasis added).
[50] It is not only the vendors/donors who face limited options, and patients waiting in hope of receiving a life-saving or health-giving transplant may also be exploited in such transactions. A bitter example of exploitation of one such patient was reported in 2001. A Canadian paid for a kidney transplant in India but, upon his return to Canada with poor kidney function, doctors conducted an ultrasound examination and found no evidence of a transplanted kidney (even though the patient had a large scar on his abdomen). See David Spurgeon, “Canadians Seek Kidney Transplants in Poor Countries” (2001) 322 British Medical Journal 1446.
[51] See, eg., HumanRightsWatch/Asia Report, 2: because the poor are “induced to sell their body parts to meet the transplant needs of high-paying customers, largely from the developed countries, (the trade in human organs) has been widely condemned because of its financially exploitative nature and its abuse of medical ethics.” Cited at the American University’s Mandala Project website, documenting a case study into the “India Kidney Trade” at <http://www.american.edu/projects/mandala/TED/KIDNEY.HTM> at 29 June 2005. See also Extreme Research, above n 47:
“The exchanges tend to be poor-to-rich,” said Scheper-Hughes. On the black market in India, added Cohen, an impoverished person’s kidney, destined for an affluent Indian, can fetch $1,000. “I call it neo-cannibalism,” said Scheper-Hughes, “the notion that we can eye each other greedily as a source of spare body parts.”
[52] J R Richards, “Nephrarious Goings On: Kidney Sales and Moral Arguments” (1996) 21 Journal of Medicine and Philosophy 4, 375, 386:
If the rich who take risks for pleasure or danger money are not misguided, it is difficult to see why the poor, who propose to take risks for higher return, should be regarded as so manifestly irrational as to need saving from themselves. You might think . . . that the poorer you were the more rational it would be to risk selling a kidney.
Cited in Barnett II, Saliba and Walker, above n 9, 381.
[53] See discussion in Part IIIB below.
[54] See, eg., the reasons given by a random selection of people advertising to sell a kidney: Bobba Venkat Reddy from Rentachintala mandal in the Guntur district of Andhra Pradesh, India, was one of 26 villagers who each sold a kidney to repay debts after receiving poor prices for their crops (Sridhar, V, “Distress and Kidney Sale”, Frontline (2004) 21, 19. <http://www.flonnet.com/fl2113/stories/20040702005901800.htm> at 29 June 2005; “Kantibhai”, also from India, is a disabled father of three children who advertised on the internet to sell one of his or his disabled wife’s kidneys to help relieve their debts (“Kidney for Sale: Handicapped. Deep in debt. Desperate. Couple offers kidney to highest bidder” Rediff Guide to the Net <http://www.rediff.com/search/2002/jan/08kidney.htm> at 29 June 2005; Pauline Williams, a 51 year old pensioner from New Zealand, tried to sell a kidney to pay off her credit card debts. See “Beneficiary wants to sell kidney to pay debt”, New Zealand Embassy, Digest Reports from Mainstream Media April–June 1999: <http://www.embassy.org.nz/news/digst99c.htm#KIDNEY> at 29 June 2005; and Mike Russel, a 30 year old army officer from Yugoslavia, says he wants to sell a kidney to raise money for his five year old child’s heart operation “Kidney for sale, please help me”: <http://www.4burialinsurance.com/wwwboard/messages/260.html> at 2001.
[55] See further discussion in Part IIIC and IIID below.
[56] Ronald Dworkin, Life’s Dominion: On Abortion and Euthanasia (1993) 197, discounts this argument: “Another familiar argument against legalizing euthanasia for conscious people—that old people are vulnerable and can sometimes be persuaded into asking to die—makes the same mistake: it fails to recognize that forcing people to live who genuinely want to die causes serious damage to them.”
[57] See, eg., Karlheinz Engelhardt, et al, “Correspondence: Organ Donation and Permanent Vegetative State” (1998) 351 Lancet 9097. Several correspondents alluded to euthanasia during Nazi and other totalitarian regimes in these letters to the editor in response to an article arguing that organs should be harvested from permanently vegetative people who it has been determined will be allowed to die.
[58] Barnett II, Saliba and Walker, above n 9, 382.
[59] See, Red Cross Australia’s information about the kidnap myth: “A famous urban myth involves a man who goes to a party and has too much to drink. He wakes up the next day in a bathtub full of ice, with a wound in his side and one of his kidneys missing. This myth has been in circulation since the 1980s and is, of course, not true” <http://www.organ.redcross.org.au/f_faq.html#5> at 29 June 2005. See also the statement by the City of New Orleans Department of Police on 30 January 1997:
Over the past six months the New Orleans Police Department has received numerous inquiries from corporations and organizations around the United States warning travelers about a well organized crime ring operating in New Orleans. This information alleges that this ring steals kidneys from travelers, after they have been provided alcohol to the point of unconsciousness. After an investigation into these allegations, the New Orleans Police Department has found them to be completely without merit and without foundation. The warnings that are being disseminated through the Internet are fictitious and may be in violation of criminal statutes concerning the issuance of erroneous and misleading information. [emphasis in original]<http://www.mardigrasday.com/police1.html> at 29 June 2005. A history of the myth can be found at the Urban Legends Reference Pages: <http://www.snopes2.com/horrors/robbery/kidney.htm> at 29 June 2005.
[60] Nancy Scheper-Hughes, “Commodity Fetishism in Organ Trafficking” in Nancy Scheper-Hughes and Loïc Wacquant, eds, Commodifying Bodies (2002) 31, 36–37.
[61] Bonnie Steinbock, “Sperm as Property: In the Absence of a Compelling Argument against Posthumous Reproduction, Individual Autonomy Should Prevail” (1995) 6 Stanford Law and Policy Review 57, 65.
[62] Shaoni Bhattacharya, “Five ‘Designer Babies’ Created for Stem Cells” (5 May 2004) New Scientist Online News, <http://www.newscientist.com/article.ns?id=dn4965> at 29 June 2005, referring to an article in the 291 Journal of the American Medical Association 2079. The article reports the birth of five babies conceived to provide stem cells for siblings with serious non-heritable conditions. The babies’ embryos were tested for a tissue type match to their siblings, using a technique called preimplantation genetic diagnosis. The children were born in the United States. In one case, a UK couple travelled to the US for treatment after the UK’s Human Fertilisation and Embryology Authority ruled they could not use tissue matching to create a compatible sibling for stem cell donation to their existing son.
[63] This possibility is alluded to in: O Calcetas-Santos (United Nations High Commissioner for Human Rights, 29 January 1999) The Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography: <http://www.unhchr.ch/pdf/chr60/9AV.pdf> at 29 June 2005. See also, “The Corruptive Influence of the Dollar: The Shameful Trade in Mexican Baby Organs” La Voz de Aztlan <http://aztlan.net/organs.htm> at 29 June 2005; and Maria M. Morelli, “Organ Trafficking: Legislative Proposals to Protect Minors” (1995) 10 American University Journal of International Law and Policy 917–54. A report about children being used as sources for organs can be found at the website of PREDA (Peoples Recovery, Empowerment and Development Assistance Foundation Inc, a charitable human rights organization): Father Shay Cullen SSC, “Killing Children For Their Organs”, 1 March 1995 <http://www.preda.org/archives/1993-94-95-96/r9503011.htm> at 29 June 2005, first published by the Philippine Daily Inquirer. A Columbia University Task Force found no reliable evidence that any such kidnappings had ever occurred: See, D J Rothman, et al, The Bellagio Task Force Report on Transplantation, Bodily Integrity, and the International Traffic in Organs, 1 January 1997, Part V <http://66.102.11.104/search?q=cache:sDnPKO-0kIcJ:www.icrc.org/Web/Eng/siteeng0.nsf/iwpList302/87DC95FCA3C3D63EC1256B66005B3F6C+Bellagio+Task+Force+Report+on+Transplantation,+Bodily+Integrity,+and+the+International+Traffic+in+Organs+ & hl=en> at 29 June 2005.
[64] Barnett II, Saliba and Walker, above n 9, 381 say this is occurring under the existing system of prohibition. The practical difficulties that can arise in such cases are illustrated by a report of the removal of a kidney from a deaf and mute Indian man who was incapable of communicating and who could not comprehend the procedure, and who was therefore not competent to give consent. His kidney was transplanted into his brother after a six week ethical debate, during which doctors evaluated the relationship between the potential donor and recipient, and took into account the family’s poverty and absolute financial dependence on the transplant recipient. See Ganapati Mudur, “Doctors Take Kidney from Patient Incapable of Giving Consent” (20 March 1999) 318 British Medical Journal 753.
[65] Ibid, 382.
[66] For a related discussion of the degrees of “voluntariness” among compensated and uncompensated blood donors, see Richard M Titmuss, The Gift Relationship: From Human Blood to Social Policy (1997) 8, 123ff.
[67] See, eg, the reasoning in McFall v Shrimp (1978) 10 Pa D&C (3d). See also Cara Cheyette, “Organ Harvests from the Legally Incompetent: An Argument Against Compelled Altruism” (2000) 41 Boston College Law Review 465, 480–484.
[68] J K Mason and R A McCall Smith, Law and Medical Ethics (1991) 304, especially Chapter 14: “The Donation of Organs and Transplantation”.
[69] This concern could also be justified in a system of “paired organ exchange”, in which the relatives of two recipients donate to unrelated recipients in return for their family member receiving a compatible organ. The fear is that family members could no longer hide behind the excuse of biological incompatibility. See, eg, Cheyette, above n 67, 484, and discussion of paired organ exchanges in Michael T Morley, “Increasing the Supply of Organs for Transplantation Through Paired Organ Exchanges” (2003) 21 Yale Law and Policy Review 221.
[70] G P Smith, “Market and Non-Market Mechanisms for Producing Human and Cadaveric Organs: When the Price is Right” (1993) 1 Medical Law International 17, 25.
[71] J Radcliffe-Richards, et al (For the International Forum of Transplant Ethics), “The Case for Allowing Kidney Sales” (27 June 1998) Lancet 351:9120, 352.
[72] For an explanation of “exchanges born of desperation” see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983) 100. See also A Okun, Equality and Efficiency: The Big Tradeoff (1975) 6ff, and referred to by Walzer.
[73] Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self (1986) 3, 23 189ff.
[74] Interestingly, a study into the effects of kidney sales by 305 impoverished Indian workers found that they tended to suffer financially and medically in the long-term. The interviewees were mainly labourers or vendors, 96% of whom said they had sold a kidney to pay off debts, and 3% of whom sold a kidney to provide dowries and marriage expenses for their daughters. The study found that the average payment was a third lower than the donor had been promised, and 74% (216 of 292) of those who sold a kidney to pay debts had remained in debt: Goyal Madhav, et al, “Economic and Health Consequences of Selling a Kidney in India” (2002) 288 Journal of the American Medical Association 1589. See also report in Deborah Josefson, “Selling a Kidney Fails to Rescue Indians from Poverty” (12 October 2002) 325 British Medical Journal 795.
[75] Alan Wertheimer, Exploitation (1996).Wertheimer warns: “In particular, we should not elide the distinction between problems in one’s objective circumstances or background conditions in which choices are made and problems in the quality of the choice that one is making given those background conditions.” 270.
[76] See, eg., Feinberg, The Moral Limits of the Criminal Law: Harm to Self, above n 73, 230–231. A comparison could be drawn with the situation of people who are desperate to earn a living and who therefore accept dangerous and/or demeaning jobs that they would not accept if they were in a better position to bargain or choose their work.
[77] See, eg., articles headed “Kidneys for sale” and “Losers all” on the website of the Indian Multi-Organ Harvesting Aid Network, a non-governmental organisation (NGO) seeking to encourage safe organ donation in India. It states:
The Indian Medical Association (IMA) . . . said that it was an open secret that commercial transactions had been regularly taking place between patients suffering from chronic renal failure who needed kidney transplantation and the poor who were willing to sell their kidneys. All such transactions are illegal and punishable under the Transplantation of Human Organs Act (THOA) 1994, but the buying and selling continues. In the process, the donor gets taken for a ride, gets paid a pittance and by the time he wakes up, it is too late.<http://www.vish.com./html/body_mohan.html> at 2001.
[78] See, eg., above n 74.
[79] See Extreme Research website, above n 47.
[80] J Einar Sandvand, “Kidneys for Sale”, AsiaObserver at <http://www.asiaobserver.com/Phillippines-story1.htm> at 29 June 2005, first published in Norwegian newspaper Aftenposten, 27 November 1999. The hypothetical example of “Mark” given above is roughly equivalent to the circumstances of real-life Philippino father Satur Maico, reported in this article. It is also similar to the situation of Herbert Gibboney, who offered to sell one of his eyes for $35,000 to pay for an operation for his wife: “Man Desperate for Funds: Eye for Sale at $35,000”, 1 February 1975 LA Times 1.
[81] See, eg., D Zimmerman, Coercive Wage Offers (1981) 10 Philosophy & Public Affairs 132 (Part II).
[82] Feinberg, The Moral Limits of the Criminal Law: Harm to Self, above n 73, 233.
[83] Bernard M Dickens, “Morals and Legal Markets in Transplantable Organs” (1994) 2 Health Law Journal 121, 129.
[84] Walzer, above n 72, 100.
[85] Edward W Nelson, et al, Financial Incentives for Organ Donation: A Report of the United Network for Organ Sharing Ethics Committee, 30 June 1993: <http://www.unos.org/Resources/bioethics.asp?index=3> at 29 June 2005.
[86] Barnett II, Saliba and Walker, above n 9, 374
[87] Ibid. But see a letter to the editor of the British Medical Journal proposing that the NHS (the UK’s National Health Service) become the sole purchaser of live donated kidneys: Jeremy P Wight, “Proposal is Problematic” (12 October 2002) 325 British Medical Journal 835. Organs obtained in this way could then be distributed according to the same criteria as donated organs are currently allocated.
[88] See, eg, comment by Rosalie Starzomski, ethics counsellor at Vancouver General Hospital and member of the Kidney foundation of Canada’s national organ donation committee, in response to a proposal to legalise kidney sales: “What this does is commodifies the body, and I think we should have some concern about that as a society . . . Once we do that—assign a price to an organ or a limb or whatever—where does that stop?” reported in C. Spencer, “Prominent Doctors Want to Legalize Kidney Sales: ‘It’s a . . . safe operation, it can save lives, so why not?’” Ottawa Citizen 4 July 1998.
[89] H Hansmann, “The Economics and Ethics of Markets for Human Organs” (1989) 14 Journal of Health Politics, Policy and Law 57, reproduced in J H Robinson, R M Berry and K McDonnell, A Health Law Reader: An Interdisciplinary Approach (1999) 316ff, 324. See also discussion in Margaret Jane Radin, Contested Commodities (2001).
[90] Stephen Wilkinson, Bodies for Sale: Ethics and Exploitation in the Human Body Trade (2003) 44ff.
[91] Margaret Jane Radin, “Market-Inalienability”, (1987) 100 Harvard Law Review 1859.
[92] Immanuel Kant, Foundations of the Metaphysics of Morals (L Beck, trans., 1959) 47.
[93] Ibid.
[94] A M Honoré, “Ownership” in A G Guest (ed) Oxford Essays in Jurisprudence (1961) 107, 130.
[95] See generally, Stephen R Munzer, An Uneasy Case Against Property Rights in Body Parts 259 in E Frankel Paul, F D Miller Jr and J Paul (eds) Property Rights (1994). This conflict is specifically addressed at 262.
[96] See, eg, the arguments put by the opposition to a patent application before the European Patents Office in Howard Florey/Relaxin (1995) EPOR 451.
[97] For a précis of the anti-commodification argument in relation to human cloning, see Wesley Chang, “Arrested Development: Patent Laws, Embryonic Stem Cell Research, and the Organ Black Market” (2004) 10 Southwestern Journal of Law and Trade in the Americas 407, 427–431.
[98] Australian Law Reform Commission, Human Tissue Transplants, above n 22, 85, ¶174. Though this report did not say if disapproval was moral, it can probably be assumed it was as the term disapproval would tend to imply moral wrongness, while the words support/not support would probably have been used in a carefully worded survey to suggest a more reasoned or less emotive judgment.
[99] The Gallup Organization, Inc, The American Public’s Attitudes toward Organ Donation and Transplantation, A Survey for The Partnership for Organ Donation (1993)
<http://www.transweb.org/reference/articles/gallup_survey/gallup_chap7.html> at 29 June 2005.
[100] Barnett II, Saliba and Walker, above n 9, 383.
[101] This is implicitly recognised by the Australian Red Cross Blood Service’s information about the donation of an organ:
Will donation disfigure my body? Can there be an open casket funeral? Organ/tissue donation does not disfigure the body. Organ donation surgery results in an incision line and stitches just like any other operation. This is covered with a dressing. There are no other visible signs of the operation. It does not interfere with funeral plans, including open casket services.
<http://www.organ.redcross.org.au/f_faq.html> at 29 June 2005.
[102] The Australian Red Cross Blood Service co-ordinates Australian donations of human body parts and notes the religious implications of alienating a body part in its list of Frequently Asked Questions (FAQ) <http://www.organ.redcross.org.au/where.html> at 29 June 2005. It refers inquiries to an American site operated by the US Department of Health and Human Services that summarises the views of major religions towards organ/tissue donation: <http://www.organdonor.gov/denomination.html> at 7 September 2004. See also A R Gatrad, “Muslim Customs Surrounding Death, Bereavement, Postmortem Examinations, and Organ Transplants” (1994) 309 British Medical Journal 521; Gary Goldsand, Zahava R S Rosenberg and Michael Gorden, “Bioethics for Clinicians: 22. Jewish Bioethics” (2001) 164 Canadian Medical Association Journal 218; and The Bioethics Advisory Committee, The Israel Academy of Sciences and Humanities, The Use of Embryonic Stem Cells for Therapeutic Research (2001): <http://www.academy.ac.il/bioethics/english/report1/Report1-e.html> at 17 July 2005.
The Gallup poll of The American Public’s Attitudes toward Organ Donation and Transplantation, above n 99, found that 5% of Americans said they would not want to have their organs donated after their death because it was against their religions (Question 3). Further questions reveal that religious barriers to organ donation do not appear to be widespread. Black and Hispanic respondents are much more likely to report that organ donation is against their religion (14% and 13% agree, respectively) than are white respondents (4% agree). There were no substantial differences among major religious groups in the per cent agreement with this statement-(Catholics 5%; Baptists 5%; “Christian” 4%; Other Protestant 4%). However, Catholics expressed significantly greater uncertainty (11% don't know) compared to the full sample (6%): <http://www.transweb.org/reference/articles/gallup_survey/gallup_chap6.html> at 29 June 2005.
[103] The Gallup poll of The American Public’s Attitudes toward Organ Donation and Transplantation, above n 99, found that 9 % of Americans said they would not want to have their organs donated after their death because they did not want their bodies to be “cut up” or because they wanted to be buried “as a whole person”. The pollsters noted that “Black and Hispanic respondents were also more likely than whites to indicate a desire to be buried “intact ”Questions 35, 36 and 37 examined this issue further and concluded that slightly under 20 percent of respondents were concerned about bodies being disfigured by the organ retrieval process, or being buried missing some of the their parts: <http://www.transweb.org/reference/articles/gallup_survey/gallup_chap6.html> at 29 June 2005.
[104] See, eg, T O’Brien, “One-Word solution to Organ Shortage: Cash”, Editorial, The Detroit News, 26 January 1998: “The only real impediment here is the moral indignation of those who will find our market system inherently offensive.”
[105] T McConnell, Inalienable Rights: The Limits of Consent in Medicine and the Law (2000) 118.
[106] John Stuart Mill, Utilitarianism, On Liberty, Considerations on Representative Government (H.B. Acton, (ed.) 1991) 143ff.
[107] Ibid, 144.
[108] Ibid, 13. See also, generally, Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self, Volume 3 (1986); Thaddeus Mason Pope, “Counting the Dragon’s Teeth and Claws: The Definition of Hard Paternalism” (2004) 20 Georgia State University Law Review 659.
[109] Barnett II, Saliba and Walker, above n 9, 380:
It is quite likely that some poor people would avail themselves of an opportunity to convert some nonessential part of their least scarce and most fragile form of capital—physical human capital—into a more durable or more valuable form of wealth. However, the prohibition against the purchase and sale of kidneys forecloses that option to them . . . It effectively prevents them from making choices that they believe would increase their well-being.
See also Dickens, above n 83, 125:
The paternalism implicit in deciding that there shall be no coercion or over-inducement of people to sell their body materials may be justified regarding young people and others in dependent circumstances. It may not be so easily justified, however, where adults are concerned who are capable of ordering their own priorities. The fear that they might act against their best interests in selling their organs is no different from the fear that they may equally reluctantly take dangerous employment, in mines, among toxic environments, or in hazardous fishery operations. It may be unjustified paternalism to impose laws against competent people’s own preferences in their circumstances, for the purpose of seeking to protect them against their tendencies to make decisions that to others seem misguided.
[110] David A Hyman, “Does Technology Spell Trouble with a Capital ‘T’”? Human Dignity and Public Policy” (2003) 27 Harvard Journal of Law and Public Policy 3, 10:
If we are prepared (and even enthusiastic, in some cases) to privilege third-party assessments of dignity despite the existence of crystal-clear evidence of first-party wishes, how much more likely is it that we will do so when the evidence of first-party wishes is less obvious—if it is available at all? . . . Relying primarily on third-party assessments will lead to the paradoxical effect of undermining dignity by privileging the opinions of elites instead of the autonomous choices of those most affected.
[111] Joel Feinberg, The Moral Limits of the Criminal Law: Harmless Wrongdoing, Volume 4 (1988) xix.
[112] Ibid, 15.
[113] Ibid.
[114] Cf. forcing people to wear bicycle or motorbike helmets, or seatbelts in cars. See ibid, 138–139, and Joel Feinberg, Social Philosophy (1973) 31–32. See also J Kleinig, Paternalism (1984) 82; Note, (1968) 67 Michigan Law Review 372; K M Royalty, “Motorcycle Helmets and the Constitution of Self-Protective Legislation” (1968) 30 Ohio State Law Journal 371–393. Guido Calabresi and Douglas Melamed describe this in terms of “moralisms” in “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harvard Law Review 1089, 1111–1112.
[115] Note, however, that not all who regard themselves to be “liberals” would agree that these are the general guiding principles. See, eg., the discussion in S Mulhall & A Swift, Liberals and Communitarians (1992).
[116] See discussion in Ronald Dworkin, A Matter of Principle (1985) Chapter 8 “Liberalism”, 181–204.
[117] This is a usual but not necessary feature of liberal thought. See, eg, work by Joseph Raz who argues that political neutrality is not possible: Joseph Raz, The Morality of Freedom (1986).
[118] Ibid, Chapter 9, “Why Liberals Should Care about Equality”, 205–213, 206. See also the definition offered by John Rawls, Political Liberalism (1996) 191.
[119] Radcliffe-Richards, et al, above n 71.
[120] See, eg., McFall v Shrimp (1978) above n 67. In that case, the Allegheny County Court declined to order that Shrimp donate bone marrow to his cousin McFall. McFall was dying of a rare disease and Shrimp was the only known compatible potential donor, but he refused to donate his bone marrow. The Court gave priority to the autonomy of the individual and the importance of the individual’s actual consent. It held that the decision rested with Shrimp but—in what appeared to be a blatant attempt to shame Shrimp into changing his mind—the court described his refusal to donate the bone marrow as “morally indefensible”.
[121] See, eg., Australian Law Reform Commission, above n 22, 85, ¶174.
[122] Spencer, above n 88.
[123] M Brams, “Transplantable Human Organs: Should their Sale be Authorized by State Statutes?” (1977) 3 American Journal of Law & Medicine 183, 192.
[124] The black market is widely reported and is referred to by both the opponents and proponents of a legal market in human body parts. For contemporary examples of its operation, see the organ selling websites at: “The Life Keepers” <http://llogic.www3.50megs.com/> at 29 June 2005. One of the pages of the Life Keepers” site features a photograph of a Florida woman who identifies herself as “Vegalive” and claims to want to sell her kidney. It states:
I am female, a member of the Caucasian race, born and raised in the United States. I am forty years old and my blood-type is A positive. I became a vegetarian at the age of sixteen, and have always embraced healthful living habits and a holistic way of life. No drugs, no alcohol, lots of fresh raw fruits and veggies and plenty of exercise. I have never had any medical problems whatsoever; that is why I do not have a medical file to share with you. Of course I realize that at some point you will want a doctor to check me out, and that is fine. I make my living as an administrative assistant within a large corporation. The reason why I need money: My fiancée is involved in a custody fight for his little girl, and we need to hire an expensive lawyer. (My fiancée is not in a position right now to “donate.”<http://llogic.www3.50megs.com/lib/vegalive.html> at 29 June 2005. The Gallup poll of The American Public’s Attitudes toward Organ Donation and Transplantation, above n 99. found that 34 % of Americans believed organs for transplant could be bought and sold on the black market in the United States, while another 25% said they did not know if this was possible (Question 40): <http://www.transweb.org/reference/articles/gallup_survey/gallup_chap6.html> at 29 June 2005.
[125] Richard A Posner, The Economic Analysis of Law (1986) 140.
[126] See, eg., Richard A Epstein, Organ Peddling <http://slate.msn.com/id/3680/entry/24108/> at 29 June 2005: “Once transactions are legal, markets cease to be thin. As the number of choices increases, information becomes more available, and the likelihood of real exploitation is effectively curtailed . . . It is always a mistake to assume that legal markets will be just a magnification of illegal ones.”
[127] See, eg., Sanjay Kumar, “Police Uncover Large Scale Organ Trafficking in Punjab” (25 January 2003) 326 British Medical Journal 180. This article quotes the Inspector General of Police in Jalandhar, Mr Satish Kumar Sharma: “The ‘donors’ were not even given proper postoperative care, and in some cases were threatened with imprisonment for the illegal act and thrown out of hospital a week after the transplant,” he said. Mr Sharma confirmed the deaths of six labourers as a result.
[128] The difficulty of controlling the illegal trade is alluded to by writers on both sides of the debate. See, eg, Radcliffe-Richards, et al, above n 71, who argue for a market in human body parts, and Scheper-Hughes, “Postmodern Cannibalism”, above n 49, who argues against legalising the trade. See also reports of transplant tourism where poor Indian vendors travelled to the Middle East for operations to transplant their organs to wealth recipients: Mandala Project case study “India Kidney Trade”, ¶2, above n 51.
[129] Epstein, above n 126.
[130] See, eg, L Kowalczyk and S Kelleher, “Donors Don’t Realize They are Fueling a Lucrative Business” The Orange County Register (2000) <http://www.ocregister.com/features/body/day1.shtml> at 29 June 2005. See also related website The Body Brokers <http://www.ocregister.com/features/body/index.shtml> at 29 June 2005.
[131] Australian Law Reform Commission, above n 22, 87. This principle was then incorporated into Australian leglisation. See also discussion of the ALRC report in L Haberfield, “The Transplantation of Human Fetal Tissue in Australia: Abortion, Consent and Other Legal Issues” (1996) 4 Journal of Law and Medicine 144, 162.
[132] Law Reform Commission of Canada, Procurement and Transfer of Human Tissues and Organs, Working Paper 66 (1992) 184, Recommendation 11.
[133] Smith, above n 70, 28.
[134] V D Plueckhahn and S M Cordner, Ethics, Legal Medicine and Forensic Pathology (1991) 130.
[135] S G Stolberg, “Pennsylvania Set to Break Taboo on Reward for Organ Donations”, New York Times, 6 May 1999.
[136] C Snowbeck, “Organ Donor Funeral Aid Scrapped: Health Department Fears Conflict with Federal Law’, Pittsburgh Post-Gazette, (2002): <http://www.pitt.edu/~htk/pennsylv.htm#funeral%20plan%20scrapped> at 29 June 2005.
[137] Jack Kevorkian, “Marketing of Human Organs and Tissues Is Justified and Necessary” (1989) 7 Medicine and Law 557.
[138] For a discussion of the tissue bank industry in the United States, see John J Zodrow, “The Commodification of Human Body Parts: Regulating the Tissue Bank Industry” (2003) 32 Southwestern University Law Review 407–449.
[139] Kevorkian, above n 137, 560.
[140] Danielle M Wagner, “Property Rights in the Human Body: The Commodification of Organ Transplantation and Biotechnology” (1995) 33 Duquesne Law Review 931, 955.
[141] Kevorkian, above n 137, 557.
[142] Kevorkian above n 137, Ibid, 563.
[143] This information was supplied by Swiss company Novartis Pharma AG on its transplantation website Transplant Square: <http://www.transplantsquare.com/public/lifestyle/livingdonors/lvpages/QA2.htm#4> in 2001. Interestingly the site did not include a percentage indication of what risk an Ohio citizen faces of being in a road accident within a four year period.
[144] Radcliffe-Richards, et al., above n 71.
[145] Posner, above n 125, 9.
[146] Epstein, above n 126.
[147] Barnett II, Saliba and Walker, above n 9, 375.
[148] Ibid, 378–379: “Because everyone, poor as well as rich, who needs a kidney would get one, a free market for kidneys would be more equitable than the current system.”
[149] Ibid, 382.
[150] Cf. cases in which forced coercion could be identified.
[151] See, eg, Radcliffe-Richards, et al, above n 71: “It must be stressed that we are not arguing for the positive conclusion that organ sales must always be acceptable, let alone that there should be an unfettered market.”
[152] Epstein, Organ Peddling, above n 126: “It is always a mistake to assume that legal markets will be just a magnification of illegal ones. Their entire internal structure changes as well, and for the better.”
[153] See, eg., the website Organ Selling written by neurobiological research scientist, Harold Kyriazi, who identifies himself as a libertarian. The site proposes a free market for cadaveric organs: <http://www.pitt.edu/~htk/> at 29 June 2005.
[154] Such scenarios have also arisen under the existing donor scheme. One case came to prominence in 1998 when a Californian man offered to donate his second kidney to his 16 year old daughter after the kidney he had first donated to her started to fail. The story was more dramatic because of the facts: the father was serving a prison sentence for burglary; he had abandoned his daughter at birth; he had met her once when she was eight; he had donated a kidney to her when she was 13; and he had offered to donate his remaining kidney to her after the first started to fail when she secretly stopped taking anti-rejection drugs. The University of California’s San Francisco Medical Center Ethics Committee decided to refuse the donation, and the girl later received a donation from an uncle. See: J Basu, “Removing a Person’s Last Remaining Kidney Violates Physicians’ Code of Ethics” UCSF Daybreak News (1999): <http://www.ucsf.edu/daybreak/1999/01/20_kidney.html> at 29 June 2005.
[155] This is noted by Curtis E Harris and Stephen P Alcorn, “To Solve a Deadly Shortage: Economic Incentives for Human Organ Donation” (2001) 16 Issues in Law and Medicine 213–33, 232.
[156] For a report detailing how such a policy failed to control the trade of kidneys or protect vendors in India, see: “Investigation: Kidneys Still for Sale”, Frontline, 13–26 December 1997, vol.14, No.25. <http://www.flonnet.com/fl1425/14250640.htm> at 29 June 2005.
[157] This is defined as a market in which the state buys organs and redistributes them according to standard transplantation criteria such as need, blood and tissue type, and potential for success. For a proposal of this type see J F Childress, “No: A Free Market Would Reduce Donations and Would Commodify the Human Body”, InsightMag.com: <http://www.insightmag.com/news/2001/05/07/Symposium/Q.Should.Congress.Allow.The.Buying.And.Selling.Of.Human.Organs-213240.shtml> at 29 June 2005.
[158] One method by which some states confiscate suitable organs is the “opt out” system. See Marie-Andree Jacob, “On Silencing and Slicing: Presumed Consent to Post-Mortem Organ ‘Donation’ in Diversified Societies” (2003) 11 Tulsa Journal of Comparative and International Law 239.
[159] One anomaly is criminal legislation that, in effect, proscribes the assault of a dead body. Even this arguably aims to protect the feelings of relatives and friends, and to prevent public offence, rather than to somehow protect the deceased person.
[160] Dorothy Nelkin and Lori Andrews, “Do the Dead Have Interests? Policy Interests for Research after Life” (1998) 24 American Journal of Law and Medicine 261.
[161] See Part IIIB, above.
[162] For a more detailed discussion of a futures market in human body parts, see Lloyd R Cohen, “Increasing the Supply of Transplant Organs: The Virtues of a Futures Market” (1989– 1990) 58 George Washington Law Review 1ff.
[163] See Christopher Cates, “Property in Human Tissues: History, Society and Possible Implications” (1998) 4 Appeal 32, 39–40.
[164] At best, outlawing behaviour has a deterrent effect, but it rarely has the outcome of stopping the behaviour altogether. See, eg., Jeffrey A Miron, “An Economic Analysis of Alcohol Prohibition” (1998) 28 Journal of Drug Issues; Charles H Whitebread, “Freeing Ourselves from the Prohibition Idea in the Twenty-First Century” (2000) 33 Suffolk University Law Review 235; Thomas James Friedrich, “Internet Casino Gambling: The Nightmare of Lawmaking, Jurisdiction, Enforcement and the Dangers of Prohibition” (2003) 11 CommLaw Conspectus 369, 382–385.
[165] See discussion in Alexandra George, “Is ‘Property’ Necessary? On Owning the Human Body and its Parts” (2004) 10 Res Publica 15.
[166] Ibid. For the question of whether or not human body parts are property, see Michell Bourianoff Bray, “Personalizing Personalty: Toward a Property Right in Human Bodies” (1990) 69 Texas Law Review 209–243.