Cash for your body

Last year a young girl was smuggled into the United Kingdom, from Somalia, in the hope of harvesting her organs to sell them to those who are desperate for a transplant.(1) This is not an isolated case: the World Health Organisation has declared that traffickers illegally obtain around 7,000 kidneys each year.(2) However, this is an ordeal that can be avoided, or at least mitigated, by changing the current altruistic method of organ donation and recognising that this is not satisfactory in meeting the current demands for organ transplantation.(3)

This paper aims to demonstrate that the current objections to allowing payment for organs are somewhat overstated. However, they should not be ignored and it is, therefore, important to confront the various philosophical arguments for and against the commodification of human organs. Discussion will concentrate around the main philosophical scholars that oppose commodification – combined with a discussion on the market – with the aim of demonstrating that the prohibition on the payment of organs cannot be fully justified and, when balancing the number of lives that could be saved with the various theoretical dispositions, an agreeable conclusion can be reached that something has to be altered in order to manage the current shortage of organs.

Kantian views: a backward position?

The most common Kantian view offered to negate the commodification of organs is based in the Second Formulation of Kant’s Imperative, which advocates that we should not treat humanity as purely a means.(4) This position is questionable: as noted by Naffine, our “humanity” is inter alia our ability to make rational decisions and, therefore, individuals should be able to decide how they use their body.(5) Notably, Gill and Sade highlight that governmental lawmaking is typically geared towards the development of autonomy, drawing on examples of informed consent where patients have the liberty to make their own decisions about what will happen to their body even if it is not in their best interest.(6)

The same applies to exchanges in the market. As noted by Hayek: “the importance of our being free to do a particular thing has nothing to do with the question of whether we or the majority are ever likely to make use of that possibility”.(7) It is about individual liberty, and informed consent laws were partly established to assist in counteracting the forceful moral views that the state may place on an individual(8). For instance, one does not need to accept blood even if it will result in saving their life. Of course, human dignity is especially important but – as observed by Rütsche – thinking rationally and making free choices are some of the key mechanisms of dignity,(9) meaning, in this context, that individuals should be able to sell their organs, since it is promoting rational thought and self-autonomy whilst also saving lives.

Additionally, it is submitted that purely because Kant considered commodification to be wrong does not mean his opinions should play a deeply meaningful role in governmental assessments about organ selling.(10) When Kant wrote his argument, for example, medical advancement was not at the stage it is today. To put this into context, Kant discusses the denunciation of one submitting “oneself to castration in order to gain an easier livelihood as a singer”,(11) which demonstrates the societal norms of his day. Hence, one should be careful when adopting Kantian views to justify the non-selling of organs, especially when people are dying as a result of organ shortages.

Duxbury and Radin: a brief overview

One of the strongest criticisms of the selling of organs is based on the moral assertion that human beings, as a whole, have a worth that cannot be measured, which therefore makes it morally wrong to commercialise organs.(12) Duxbury explains this concept of inconsumerability by discussing the proposition that since the market values commodities as a single metric, it naturally degrades the item that is being sold.(13) Indeed, this argument suitably leads to Radin, who is one of the foremost opponents of the allocation of proprietary rights in the body.

Radin maintains that proprietary rights in the body will damage an individual’s personhood.(14) She also recognises that the notion of property in one’s body presents “some interesting paradoxes”,(15) highlighting that blood can be withdrawn and used in a transfusion, hair can be cut off and given to a wigmaker and organs can be transplanted,(16) yet one cannot sell one's organ even if it is for the greater good. The reasoning for this is not entirely clear, but Radin illustrates that some things will simply be too “personal” ever to be property.(17) To justify this, she dichotomises property into two categories: fungible and personal. The former is a thing of an external nature whilst the latter is things that are of such a personal, and sentimental, nature that they form part of an individual’s identity.(18)

By separating property into fungible and personal, Radin creates the argument that personal property warrants more legal protection than fungible property.(19) Accordingly, if organs were to be placed on the market then, according to such reasoning, they would be degraded and their true value diminished. However, as illustrated by Wertheimer, one can acquire “priceless” art without claiming its value is reduced,(20) which demonstrates how the market can acclimatise according to societal needs and how “priceless” objects can in fact be bought. Nevertheless, many staunchly support that organs, if sold, will be valued in a way that cannot capture their true worth,(21) and the source for this position can be unearthed in Radin’s personal and fungible dichotomy.

A critique of Radin’s dichotomy

Although Radin does not adopt this argument to justify the non-selling of organs, for those who are arguing against commodification, it provides a foundation to advocate that organs are bound up in legal personhood and cannot be sold. It can be argued, however, that this justification is rather subjective. It is submitted that only if the removal of an organ affects another tangible aspect of the seller’s life, should it then be deemed “personal” property. Take the following example as a point of illustration:

If a kidney is removed from Alex and inserted into Peter, it ceases to be a part of Alex and becomes part of Peter. Is Alex or Peter’s personhood altered as a result of the implant? Perhaps not. Firstly, the organ is being treated as fungible because it is being transferred.(22) Secondly, as noted by Duxbury,(23) Radin’s assertion cannot be satisfactorily sustained by the notion of personhood alone. It is too idiosyncratic, using Duxbury’s reasoning, to try and suggest that Alex should not have sold his kidney because it was sentimentally tied into his personhood.(24) Alex may have cared very little about the kidney he sold. He may also have cared a great deal. Point being, it cannot be categorically determined.

Claiming that organs are personal property is working on the understanding that there is a collective consciousness that can be evaluated, but in reality each individual’s perception of what is personal and what is fungible property will differ.(25) Radin acknowledges this by conceding that there is no “algorithm or abstract formula”(26) to determine what is personal or fungible property and each case requires a separate moral judgment.(27) It is, therefore, submitted that each individual should have full control over their own body and should not have moral views – such as that it is morally wrong to sell their kidney – thrust upon them. Such reasoning supports the contention that an individual should be permitted to sell their organs even if it leads to their demise.(28) However, with the correct safeguards, the selling of organs does not need to be harmful to the seller.

It is critical that there are protections in place to avoid any risk of exploitation, but these must already be established, since individuals can already donate their kidney, which implies that the state recognises that the risks are minimal(29) and, in accordance with classic utilitarianism, the benefits outweigh the costs. Additionally, as proposed by Hausleben, such protections could be extended to allow people to sell their kidney but not allow them to purchase one.(30) This would prevent only the rich being able to purchase, and would prevent price inflation, whilst also extending the number of available organs, which would negate any arguments that the selling of organs would increase inequality. Further, a fixed price being offered by the state could help prevent any potential exploitation by the market, as all sellers are treated equally.(31)

That being said, it is acknowledged that there are those who campaign for complete economic freedom, uninhibited by government. For example, Friedman notes that economic freedom can in fact lead to political freedom.(32) As well as this, Lerner argues that society should decide what is good for him, rather than having government play a “paternal role”.(33) This is a more egalitarian approach to governance and, much like Smith and Hayek, Lerner is advocating for a minimal government instead of a “nanny state”. Although they are advocating that the market promotes freedom, the selling of organs is meaningfully different from the selling of other consumer goods and, therefore, heightened safeguards should still be put in place by government to avoid the potential mistreatment of sellers.

Human sovereignty: property and markets

It appears that an “organ becomes fungible property when removed from the body, but remains personal, thus seemingly not property, while it is still inside the body”.(34) This assertion could be applied to say that once the organ is removed, it is property and can therefore be sold after removal, which would ostensibly support commodification. Such reasoning reflects the approach taken in R v Kelly,(35) where body parts that have been detached can be property.(36) Indeed, building on the work of Whitty, the idea of “severance” can be viewed as an original mode of acquisition,(37) but there are observations against this that need to be tackled.

As discussed, arguments against commodification largely, but not only, follow the Kantian view that a human’s dignity is of an incomparable worth due to its unique value(38) and, therefore, to place proprietary rights on the body is to undermine the integrity of humanity.(39) Cohen and Fried support this assertion by arguing that to sell “human beings and those bits and pieces integral to them as embodied selves is to violate that which is essential to them”.(40) Of course, this is building on the dualist approach that the mind and body are not separate entities and, therefore, one cannot sell one’s organs.(41) It is misleading, however, to claim that a voluntary organ sale is wrong in the same way, since the seller still has the rest of their body left and they can continue to control it in whichever way they decide.(42)

The selling of a kidney, for example, may expand the person’s capacity to control their own destiny and increase their autonomy due to the financial reward.(43) Payment will also increase incentives, which should lead to more available organs. As eloquently put by Adam Smith, “it is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard for their own self-interest”.(44) However, as noted by Radin who cites Titmuss, only “donation” can foster altruism(45) and, under such thinking, financial incentives are taking away from the altruistic nature of humanity. This position is misguided, however, as most organ donations are to family members,(46) and introducing financial incentives is unlikely to change this. In Glasgow, for instance, in the year 2012-13, of the 38 kidney donations only two were not directed to family members or friends.(47) Additionally, as illustrated by Biernacki, payment does not solely represent a handing over of money; it is a cultural symbol of moral worth.(48) Further, the market constantly shifts and moral boundaries change. Zelizer, for example, uses life insurance to show how sacrilegiously profiting from death became a morally responsible form of investment.(49) This is moving away from a binary approach by acknowledging that markets change by evolving to reflect society.

The same logic applies to the commodification of organs, which allows for commodification on the basis that the market encourages individual liberty and evolves according to societal needs. Further, Christman, adopting Lockean views, advocates that one of the most functional methods of expressing individual liberty is to allow each individual to have proprietary rights over their own body, skill and labour.(50) However, as noted by Philips, who followed Nedelsky’s reasoning, this approach could be perceived as an individualistic view of the body, and hence may hinder collective efforts to solve societal issues.(51) Organ “selling” denounces this, however, since the thing that is being sold is being used potentially to save another’s life and the current societal efforts of altruistic donation are evidently not working.(52)

Despite the aforementioned arguments, one cannot sidestep the concern that the markets might manipulate the poor by forcing them into selling their organs, which is clearly not promoting rational thought or self-governance.(53) It has already been suggested that allowing state control over price setting will mitigate any potential exploitation.(54) Despite this, Greasley suggests that any sort of market that sells organs would result in “poor people on the supplying end and richer people on the receiving”.(55) This is building on the works of Sandel, who suggests that market exchanges are involuntary and promote severe inequality.(56) However, it appears that there is fragile evidence supporting this position.

Exploitation: any evidence?

Greasley looks to the double bind argument – if the state cannot help individuals escape poverty, it should not obstruct the person in mitigating it(57) – and negates it by pointing to studies conducted in India and Iran that show, most importantly, that a large number of sellers had sold their kidneys to pay off debts and, although they sold their kidney, it did not relieve their poverty.(58) However, Greasley goes on to raise some points that this author agrees with: first, India and Iran are not suitable comparators since the United Kingdom – and other more developed countries – will likely have a fully regulated, and limited, market with the correct safeguards in place to limit any exploitation, whereas India and Iran do not. Secondly, Greasley builds on work by Erin and Harris, by discussing the idea that one can sell an organ but not purchase one – meaning that any distribution of organs is provided to those who medically need it rather than the highest bidder, which promotes fairness of opportunity.(59)

It is accepted that the majority of those who will be selling their organs will be poor, but this is unavoidable since it is a result of their preceding situation and is not an outcome that the rich, or the (potential) commodification of organs, have created. For instance, the poor will clean toilets for a living whereas the rich will not and, as discussed by Polanyi, the market thrives on inequalities because there are certain jobs that will always be done by those who are the less well off in society.(60) The same reasoning applies to selling organs, but with one important distinction: protections can be put in place to ensure that the poor get adequately compensated and are advised of any risks. This will mitigate any possibilities that the markets will exploit the poor and, in accordance with the double bind reasoning, will alleviate their suffering even if only momentarily.

Conclusion and recommendations

It is challenging to envisage something that has not yet happened and, therefore, many of the arguments against commodification are based on a fear that the poor will be exploited and manipulated into selling their organs. This is understandable, but it has been shown that the commodification of organs can alleviate their suffering – even if momentarily – and individuals have the right to full human autonomy similar to that which is demonstrated in informed consent law. Although difficult to perceive at present, the expressive function of the law will allow commodification to be socially accepted and a legally sound framework can begin to emerge.(61)

It has been acknowledged that it is difficult to ascertain what price would be given for an organ, due to the nature of the item. Nevertheless, it is submitted that in many respects it does not matter. Ethical bodies already govern the medical profession. Research ethics committees(62) review applications for research and give opinions about whether or not the proposed research is ethical. It is, therefore, recommended that they determine the appropriate price, which will hopefully be a price that justifies the sacrifice the seller is undertaking whilst displaying the respectful gratitude that is warranted.

Finally, the moral effects of the market have been discussed throughout this paper with the overall conclusion being that organs, if sold to the state, would not be devalued as they are saving the life of another. Additionally, it has been revealed that the market can in fact promote autonomy and, with the correct safeguards, the poor will not be exploited. It is suggested that since the commodification of organs is conducted with the mindset that it is saving lives, the poor will be shielded and those who are dying will not need to go to the black market where exploitation is unavoidable.

References

(1) News story in Telegraph, available at www.telegraph.co.uk/news/uknews/crime/10390183/Girl-smuggled-into-Britain-to-have-her-organs-harvested.html, accessed 28 November 2014.

(2) Ibid.

(3) Parliamentary Office of Science & Technology, Postnote no 441, September 2013, p 1. Available at www.parliament.uk/business/publications/research/briefing-papers/POST-PN-441/organ-donation-and-transplants, accessed 28 November 2014.

(4) Kant (1785), 36.

(5) Naffine, N, “Who are Law’s Persons? From Cheshire Cats to Responsible Persons” (2003) Modern Law Review 66, 362.

(6) Gill M, Sade R M, “Payment for Kidneys: The Case for Repealing Prohibition” (2002) Kennedy Institute of Ethics Journal 12(1): 17-46.

(7) Hayek, F A, The Constitution of Liberty (1960, London: Routledge & Kegan Paul), 31.

(8) Gill and Sade, note 6.

(9) Rütsche, Bernhard, “The Role of Human Dignity in the Swiss Legal System: Arguing for a Dualistic Notion of Human Dignity” (2010) International Journal of Bioethics 21(4): 83-92 at 87.

(10) Gill and Sade, note 6.

(11) Kant (1797), cited in Gill and Sade at note 13.

(12) Neil Duxbury, “Do Markets Degrade?” (1996) Modern Law Review, 59(3): 339.

(13) Ibid.

(14) Margaret J Radin, “Market Inalienability” (1987) Harvard Law Review, 100(8): 1849-1937.

(15) Margaret J Radin, “Property for Personhood: an intuitive view”, (1982) 34 Stanford Law Review 957.

(16) Ibid.

(17) Ibid.

(18) Margaret J Radin, “Persons and Property” (1982) Stanford Law Review, 34: 959.

(19) Ibid.

(20) Alan Wertheimer, “Two Questions About Surrogacy and Exploitation” (1992) Philosophy & Public Affairs, 21(3): 211-239 at 218.

(21) Fourcade and Kieran Healy, “Moral Views of Market Society” (2007) Annual Review of Sociology 33: 14.1-14.27 at 14.8.

(22) Mark J Cherry, “Embracing the commodification of human organs: transplantation and the freedom to sell body parts”, Saint Louis University Journal of Health Law & Policy, 2: 359 at 362.

(23) Duxbury, note 12.

(24) Ibid.

(25) Ibid.

(26) Radin, note 14, at 1908.

(27) Ibid.

(28) Arneson, R, “Lockean Self-Ownership: Towards a Demolition” (1991) Political Studies 39(1): 36-37.

(29) Mark J Cherry, Kidney for sale: Human Organs, Transplantation and the Market (2005) Washington, DC: Georgetown University Press, 13: 10.

(30) Hausleben, Heather, Property Rights in Organs – An Argument for Commodification of the Body (2013) Student Scholarship, Paper 350, 3.

(31) Ibid, 4.

(32) Friedman, M, Capitalism and Freedom (1962) Chicago: Univ Chicago Press, 8.

(33) Lerner, A, “The economics and politics of consumer sovereignty” (1972) American Economic Review 62: 258-266, 258.

(34) Radin, note 15, at 4.

(35) [1998] 3 All ER at 749-750.

(36) Ibid, at 749-750.

(37) Whitty, N, “Rights of Personality, Property Rights and the Human Body in Scots Law” (2005) Edinburgh Law Review 9: 194, part D at 219-232.

(38) Kant, Immanuel, Groundwork of the Metaphysics of Morals (1785), trans H J Paton as The Moral Law (London: Hutchinson, 1987), 96.

(39) Ibid.

(40) Cohen, Cynthia B, “Selling Bits and Pieces of Humans to Make Babies” (1999) Journal of Medicine and Philosophy, 24(3): 288-306 at 294.

(41) For a detailed account of the mind, brain and consciousness see Susan Greenfield, “Mind, Brain and Consciousness”, British Journal of Psychiatry (2002), 181: 91-93.

(42) Cohen, note 40, at 295.

(43) Andrews, Lori B, My Body, My Property (1986) Hastings Center Report 28-38, at 37.

(44) Smith, A, An Inquiry into the Nature and Causes of the Wealth of Nations (1994) New York: Modern Library, 15.

(45) Radin, note 14, at 1913.

(46) NHS Organ Donation and Transplantation Activity Report 2012-13, 32. Available at www.organdonation.nhs.uk/statistics/transplant_activity_report/current_activity_reports/ukt/activity_report_2012_13.pdf, accessed 3 December 2014.

(47) Ibid, table 5.8, at 33.

(48) Fourcade and Healy, note 21, p14.16.

(49) Ibid.

(50) Christman, J, “Self-Ownership, Equality and the Structure of Property Rights” (1991) Political Theory 19, 28.

(51) Phillips, A, “It’s My Body and I’ll do what I like with it: Bodies as Objects and Property” (2011) Political Theory 39(6), 728.

(52) Supra, note 3.

(53) Greasley, K, “A legal market in organs: the problem of exploitation” (2014) J Med Ethics 40, 51-56.

(54) Hausleben, note 30.

(55) Greasley, note 53, at 53.

(56) Sandel, M, “What money can’t buy: the moral limits of markets” (2000), in The Tanner Lectures on Human Values (Salt Lake City: Univ Utah Press), 21: 89-122 at 94.

(57) Greasley, note 53, at 52.

(58) Ibid.

(59) Erin, C A, and Harris, J, “An ethical market in human organs” (2003) J Med Ethics 29: 137-138; see Greasley, note 53.

(60) Polanyi, K, The Great Transformation (2001) Boston: Beacon, as cited by Fourcade and Healy, note 21, at 14.9.

(61) Cass Sunstein, “On the Expressive Function of Law” (1996) University of Pennsylvania Law Review, 144(5): 2021-2053.

(62) NHS website on ethical bodies, available at www.hra.nhs.uk/research-community/before you-apply/determine-which-review-body-approvals-are-required/, accessed 28 November 2014.

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