Let Them Sell Kidneys!
The Case Against the Case Against a Market in Organs
Låt Dem Sälja Njurar!
Målet Mot Målet Mot En Organmarknad
Philip Södermark
Master thesis
Umeå University, Department of historical, philosophical and religious studies
Masteruppsats i filosofi, VT 2019
Abstract
It seems uncontroversial to state that meeting the vital medical needs of the vulnerable is a goal of great moral importance. Those in need of an organ transplant are among the most vulnerable and yet society has to a large extent failed them. Many would-be organ recipients have to wait for long periods of time before they get the organ that they need and some have to wait until it is too late. Something has to change. One of the most widely discussed solutions is to create a regulated market in organs. The financial incentives are believed to encourage more people to give someone else their organs, thus significantly increasing supply. Regardless of the potential effectiveness of such a solution, there are many who take a principled stand against organ markets. These objections generally stem from a concern for the insidious potential for coercion and the hazard of exploitation. I will argue that the
arguments against organ markets fail due to the flawed conceptualization of coercion, fairness and the expressive meaning of markets that these arguments are premised on. Furthermore, even though there is some truth to the exploitation objection, it does not have sufficient moral relevance to justify a prohibition on a regulated market in organs.
Sammanfattning
Det verkar inte kontroversiellt att påstå att uppfylla sårbara människors väsentliga medicinska behov är ett viktigt moraliskt mål. De som behöver en organtransplantation är bland de mest sårbara men samhället har till en stor utsträckning svikit dessa människor. Många blivande organmottagare måste vänta långa tidsperioder innan de får organet som de behöver och vissa måste vänta tills det är för sent. Någonting måste förändras. En reglerad organmarknad är en av de mest omdiskuterade lösningarna. Finansiella incitament ska uppmuntra fler att ge ifrån sig sina organ och därmed öka utbudet. Oavsett hur effektiv en sådan lösning kan vara så finns det många som principiellt är emot en sådan lösning. Dessa invändningar härstammar i allmänhet från oron för potentiellt tvång och faran av exploatering. Jag kommer att
argumentera att dessa argument mot organmarknader misslyckas på grund av det bristfälliga sättet som de föreställer sig tvång, rättvisa och marknaders expressiva innebörd. Vidare är den reella exploateringen som kan ske på en sådan marknad inte allvarlig nog för att rättfärdiga ett förbud mot en reglerad organmarknad.
Table of Content
1. Introduction………...3
2. Consent and Coercion.………...6
2.1 The Nature of Coercion………...7
2.2 Nozick Versus Cohen………..11
2.3 Duties of Beneficence………....…..13
2.4 Conclusion………...15
3. Exploitation………...16
3.1 Exploitation as Harmful Transactions….……….19
3.2 Exploitation as Unfair Transactions………..22
3.3 Exploitation as Wrongful Use……….23
3.3.1 Incommensurability and Objectification………....25
3.3.2 The Corruption Thesis………...………...30
3.4 Exploitation as Unfair Background Conditions………....36
3.5. The Moral Relevance of Exploitation………....37
3.5.1 Exploitation and Liberty………....38
3.5.2 Exploitation and Unfairness………...41
3.5.3 Exploitation and Collateral Damage………...42
3.5.4 The Analogy to Dangerous Employment………...43
3.5.5 The Analogy to Extreme Body Modification…………....…46
3.6 Conclusion………...…...50
4. The Value of Altruism………...……..50
5. Conclusion………...…….54
References………...…...55
1. Introduction
Globally, there is currently a serious shortage of transplantable organs. In the United States alone, 114.000 people are on the organ transplant waiting list and on average, twenty people die every day from lack of an organ transplant (American Transplant Society, 2018). Sweden doesn’t fare much better as supply doesn’t equal the demand. In its population of ten million, around thirty people died in 2018 as a result of not getting a transplant in time (Livsviktigt, 2019). Death is not the only negative consequence of long transplant queues. Pain and anxiety are par for the course for many of those in need of an organ transplant. There have been many solutions suggested to address the status quo but one of the most debated options is to create a market in organs where financial incentives are meant to increase the supply of organs. Non-vital organs could be procured from living vendors but vital organs could also be provided by vendors after their death, with the payment being given to the vendor’s family. The challenge for someone attempting to defend a market in organs is showing that such a scheme would not only lead to a more efficient use of resources but also avoid human exploitation and rights violations. In this paper, I plan to address the latter problem.
Specifically, my goal is to advance the thesis that a reasonably liberal society should reject the arguments surveyed in this paper as sufficient cause for prohibition. First, I assess the thesis that poverty coerces vendors into selling their organs. Second, I examine whether organ markets can rightfully be considered exploitative and to what degree this should sway us to enact a prohibition. Finally, I consider the problem of diminished altruism in a society that is increasingly influenced by market norms. I argue that all of these critiques are either incorrect or insufficient to motivate a ban and conclude that reasonably liberal societies should reject these arguments.
(Ghods, 2002, p. 224). India used to allow organ sales until 1994 and after prohibition was enacted, donations fell sharply. For example, kidney transplants decreased from 354 in 1994 to 149 the following year in the Karnataka region of India and stayed at a similar level the following years (Staff writer, 1997). In Sweden, every transplanted kidney saves the state between two to three million kronor in medical expenses. Giving some of that money to vendors would not only save lives but it would also be a fiscally responsible thing to do (Livsviktigt, 2019).
A family might sell the usable organs of a dead relative instead of just donating them. Some might consider entering into a futures contract where a donor opts to sell to a specific buyer and have the money paid to their loved ones upon their death. Alternatively, some might sell a non-vital organ while they are still alive and use the money to improve their lives. This could even be considered an especially virtuous way of making money since such donors would be helping others at their own risk. There could also be an element of a barter economy to the organ market where people swap organs with each other. Do you need a healthy kidney? I’ll give you mine in exchange for some of your liver! There are also ways of compensating organ donors by giving their family members priority on waiting lists or by giving tax credits. We could also consider giving tax deductions to donors equal to the market price of organs. These would be governmentally controlled methods to make sure that donors are fairly compensated. Another scenario could be people pledging rights to their organs to various charities, so that when they die, the money made from selling their organs can be used to further a host of humanitarian causes (Cherry, 2008, p. 299-235). Why, then, is this a controversial solution to the organ shortage?
The prohibition argument and the moral argument should not be conflated, there are things that the state ought not prohibit that are still morally dubious. For example, if you are in a monogamous relationship, most people would agree that it is morally undesirable to cheat on your significant other but you would be hard-pressed to find someone who thinks that it ought to be illegal in our liberal states. In this paper, my argument against the prohibitionists concerns the ethics of regulation and not the more general question of whether there are any moral problems with organ markets. It is therefore theoretically possible to maintain that organ sales are morally problematic while at the same time conceding my entire argument, even though there is significant overlap between the two.
It should also be noted that the sale of body parts can include a great many things but for the purposes of this discussion, I will confine myself to internal organs, primarily live kidney transplants as that is what most of the debate centers around. The sale of any body part usually raises similar concerns but there are specific ethical problems associated with some body parts and not others. Bodily commodities such as hair and blood will be excluded from the discussion since blood and hair donation aren’t as invasive as kidney transplants. The commodification of sperm and eggs are also a separate discussion as these would lead us into additional issues concerning procreation and parenting.
prices at a reasonable level. The kind of criticism that I will be concerning myself with is the kind that would generally also apply to a system like the Erin-Harris proposal since
vanishingly few argue for a completely free market.
2. Consent and Coercion
For many, the primary moral issue of a market in organs is connected to concerns relating to social justice, such as fair access to vital healthcare resources and exploitation of donors. Perhaps the most disturbing possibility is if vendors are in fact coerced by their circumstances into performing the sale. The concern is that monetary benefits to selling your organs will overwhelmingly attract less well-off people who will have to shoulder the negative health consequences of donating organs and be effectively coerced by their circumstances into making decisions that they wouldn’t otherwise make, were they better situated. Turning to the example of the organ market in Iran, we can see that most Iranian organ vendors lived below the poverty line at the time of their donation. Furthermore, 56% of vendors used the money made from their organ to pay off financial debts (Rizvi, Naqvi, Zafar, and Ahmed, 2009, p. 126). The general idea behind this critique is that coercion is tied to voluntariness and autonomy but someone who is so poor as to not have any practical alternative but to sell their kidney cannot be said to act autonomously or voluntarily. This plainly has some
plausibility as coercion seems to involve constraining someone else’s options. The robber reduces the number of options available to her victims by making them choose between handing over their money or being shot. Similarly, dire poverty can make people choose between selling their kidney or ending up on the streets. Therefore, if valid consent is our primary concern, then we could argue that the choice to sell one’s organs is not a sufficiently autonomous choice to be considered validly consensual. As Paul Hughes argues:
To uncover whether poverty is coercive, we first need to understand what it means for something to be coercive. Coercion is one of the major factors that can undermine consent, if someone is coerced, then their consent becomes invalid. This is clearly true in the case of the robber holding a gun to your head and demanding that you hand over all your money. In a sense, you have agreed to let the robber have your money but since you were coerced into doing so, we treat the interaction as non-consensual. Applying this to organ sales, even if the vendor agrees to sell her organ it can still be non-consensual. The paradigmatic way of describing what makes an interaction validly consensual is typically something like the following: person X consents to P when X understands what P is, agrees to P, and is not coerced (i.e. not under duress) to P. In order to determine whether organ sales are fully consensual, we need to understand what it means to be under duress.
2.1 The Nature of Coercion
threats, we need to find a way of separating reasonable threats from coercive ones. We need a clear baseline.
Nozick defines baselines as the “normal or natural or expected course of events” (Nozick, 1969, p. 447). You can interpret this in a moralized or non-moralized way. A non-moralized baseline can be described as what can be expected. Sex is expected in a romantic relationship so the earlier threat isn’t coercive. Nozick appeals to the case of a master beating his slave to illustrate that this isn’t a sufficient account. The master offers to stop beating the slave if he obeys him. Since beatings are part of the predictive dynamic of their relationship, this isn’t coercive. Since these kinds of threats should be coercive, this account is insufficient (Nozick 1969, 450–51). Furthermore, tying coercion to this kind of normality is problematic for other reasons. Sex might be expected in romantic relationships but consider a threat like “urinate on me, or I’ll break up with you”. Here, you are asking your partner to do something that isn’t typical or expected from a romantic relationship but I would argue that this threat isn’t coercive. People should be morally permitted to prefer weird things and break up with those who refuse to indulge in those weird preferences if they consider their partner not indulging in them to be a deal-breaker.
A moralized account of baselines is one where the “normal and expected” is interpreted as being how things ought to be. On this account, someone coerces you if their offer threatens to make you worse off than you have a right to be. You have a right to life, so when the robber threatens to shoot you in the head, he is threatening to violate one of your rights. Similarly, the slave has a right not to be beaten, so the master is making a coercive threat. On the other hand, “have sex with me, or I’ll break up with you” isn’t coercive on this account because no one has a right to be in a romantic relationship with anyone else.
value autonomy in the sense of having the ability to determine the course of your own life, there is moral force to this objection.
Whether it maps onto how coercion functions in moral theory is a different matter. We have to ask ourselves what the function of coercion is in general moral theory. The function from which it derives its primary moral force is through its ability to invalidate consent. This is essential in contractual relationships of all kinds, if a contract was coerced, it is no longer valid. If our definition of coercion includes cases where coercion is present yet consent still seems to be valid, there is something wrong with our definition of coercion. To clarify, contracts are typically only viewed as valid if there is morally valid consent and if that consent is not present, the contract is no longer binding. As Wertheimer has argued, it is in this ability to remove the “bindingness” of an agreement that coercion derives its unique moral force (Wertheimer, 1987, p. 253).
With this in mind, let us consider a case where someone has a lack of options. If I am shopping for mandatory course literature and the books are absurdly priced relative to my means, I am in some sense “forced” to sacrifice a hefty sum of money in order to take the course. How much moral weight does my predicament carry? None, at least in terms of coercive credibility. My transaction with the book vendors should certainly not be considered invalid. In some sense, I had a lack of attractive options so I was forced to pick the least unattractive one but on its own this situation carries little moral weight. We might consider it desirable and even morally advisable to improve and expand the available range of options to people but this doesn’t serve to invalidate contracts that are made while there is a lack of such options.
Instead, proponents of this kind of argument generally hold that a kind of coercion happens when the necessary background conditions that lead someone to engage in a transaction are fundamentally unjust. “In other words, an offer may be coercive not because it places people in unjustifiably disadvantaged circumstances but because it requires unjustifiably
Hughes doesn’t specify what constitutes unjust poverty. Is it confined to starvation and homelessness or does he consider it to be unjust if you have less money than is the norm in the country that you happen to live in? What is considered poor is much different in Sweden and than it is in India. If it is only Indian poverty that is unjust then there wouldn’t be much in the way of unjust background conditions if organ trade was confined to Sweden. These things need to be specified in order to determine which types of poverty are coercive. What is to be considered unjust also needs to be argued for as these things aren’t uncontroversial. If the poor in Sweden have the ability to rely on the welfare state instead of selling their organs, it would seem that they do have other options than selling their organs to survive. Thus, the ability to sell their kidney would not be too attractive to turn down.
Furthermore, if the poverty itself is the only factor that makes it coercive then there is nothing special about organ sales. Working a job as a poor person would be just as coercive as selling your kidney. For example, a lot of impoverished people in the United States see signing up for military service as their only way out of poverty. Despite these background conditions, their contract with the military is still seen as binding. Banning one practice while allowing the other would be extremely arbitrary. This view makes it hard for certain poor people to validly engage in any economic transactions which is not only implausible but also impractical. If the proponent of this kind of argument wants to consider poverty to be
coercive in some sense of the word, it isn’t good grounds for prohibition. If we recognize that we might not be able to solve all unjust circumstances at the moment then allowing practices such as organ sale would be entirely rational. Not only does society need people to work certain jobs in order to grow the economy and thereby generate enough abundance so that we can help these people down the line, but the people themselves are also made better off than they were before as people need jobs. It can therefore be seen as the lesser evil. This
especially applies to organ sales as saving the lives of would-be organ recipients is of vital societal importance.
and hence their range of options (Hughes, 2011, p. 613). Even if I were to grant that this is true and that it is immoral, this doesn’t necessarily have any bearing on the validity of the contracts entered into while in poverty. Imagine a scenario where all of your money is stolen from your bank account. This situation is certainly unfortunate and unjust but if you are forced to take up a menial job as a result of that, your employment contract will still be treated as valid despite the unjust background conditions. It satisfies the criteria formulated by Hughes since the transaction wouldn’t have taken place were it not for the unjust
circumstances but as we can see, his view of coercion doesn’t fulfill the role that coercion typically plays.
2.2 Nozick Versus Cohen
The problem of coercive poverty is not a new one and relates to critiques of capitalism that go back many years. The debate can be succinctly illustrated by an exchange between Robert Nozick and G. A. Cohen. Cohen argues that the moralized conception of coercion is
obviously false and that it obfuscates the way in which capitalism restricts liberty and forces workers to sell their labor. Cohen asks us to imagine B, he lives in a capitalist society that lacks a welfare system and as such only has two options; to work or starve (Cohen, 1977). Cohen characterizes Nozick as only considering such an ultimatum to be coercive if the actions that brought about that situation were morally illegitimate. On Nozick’s view, B’s choice can be said to be voluntary as long as everyone was within their rights create that situation. “Whether a person’s actions are voluntary depends on what it is that limits his alternatives. If facts of nature do so, his actions are voluntary. Other people’s actions place limits on one’s available opportunities. Whether this makes one’s resulting action
obvious that both W and V are forced to change their route but that Nozick denies this since G was in his rights whereas F wasn’t, thus only making F’s actions coercive (Cohen, 1977, p. 20).
In some sense Cohen is correct, it would be odd to deny that the villagers are forced to act as they do but I am not convinced that Nozick would deny this either. They are forced to seek another route in the same sense that animals who are unable to fly are forced to find a different path than the sky to reach their destination. The kind of “forcing” that is relevant to the moral debate in question is a different matter as it would be odd to claim that the land animals are coerced. Wertheimer asks us to consider a case where farmers F and G were to offer a key to a door in their fences in exchange for money. Here, V and W are clearly in different situations. If they both agree to the trade, V would be in his rights to seek
remunerations whereas W would not since V is alone in having a right to traverse the land (Wertheimer, 1987, p. 252). There is an important sense in which V’s situation is different from W in that one deal is clearly binding in a way that the other is not. How do we explain this? The simple answer is that one was forced to act in a way that the moral baseline for coercion permits whereas the other one wasn’t.
In my reading of Nozick, he seems to be looking for a conceptualization of coercion which is able to perform the role that it usually plays in moral theory. Cohen is right in arguing that both F and G restrict the villagers’ options in a similar way but there is clearly a way in which these two situations are significantly different. We could therefore say that not all “forcings” are coercive if we want coercion to play the role of invalidating otherwise binding contracts. Cohen claims that capitalist free enterprise undermines economic freedom because private property rights entail exclusive use of the resource which you have a property
entitlement to, thus restricting other people’s liberty to use the resource which you privately own. You could therefore say capitalism is coercive, or so the argument goes. In the
right to kill. Similarly, we are morally interested in some “forcings” more than others. A better option is to say that there needs to be a general moral framework and that we are interested in freedom within that framework. The last step is to say that private property rights is part of said framework and therefore, there is in an important sense in which private property and poverty isn’t coercive or restrictive of liberty, at least to some degree since these rights need not be absolute. I take property rights in some form or another to be part of the liberal framework. All of this is meant to show that we need a way of distinguishing between forcings and that a moral baseline is the best way of doing so, as Wertheimer suggests.
2.3 Duties of Beneficence
A case that involves someone who is closer to the situation of the organ vendor is the mother from Feinberg’s Lecherous Millionaire. Let’s say that X is the mother of a sick child who requires expensive medical treatment that she cannot afford. Y is a millionaire who offers to pay for the medical treatment on the condition that X becomes his mistress (Feinberg, 1983, p. 208). Can X make a voluntary choice here? Reconsider the case of the robber threatening to shoot you in the head - you don’t have to hand over your money. In a sense, you do have a choice. There are only two bad options but you can decide between the two. These are cases where there are only bad options and in such cases the ability to make free choices is severely undermined. The situation can certainly be considered non-voluntary to an uncomfortable degree since the mother has to substantially act against many of her preferences. On the other hand, sometimes you simply have to choose between evils. If you have cancer, you can either go through treatment or die, but doctors are not coercing you by offering you chemotherapy. A good way of looking at the case of X and Y is: would X prefer that the offer not have been made? Clearly not, since he is making her better off.
This line of argument might be thought to be a bit simple-minded because it misses the fact that some offers are almost impossible to refuse. In such cases, the offer cannot be refused and is therefore coercive even if they add more options to the coerced. In the Drowning Case, it might be argued that the drowning man can either accept the offer or drown, so it cannot be described as voluntary. However, this line of argument has the same problem as doctors offering their cancer patients chemotherapy. Instead, it is better to argue that A is making B worse off relative to what B has a right to demand from A. In the case of the millionaire and the mother, the question becomes: does the mother have a right to the millionaire's money? No, she doesn't. We should certainly consider the situation to be unpleasant and we should question the social and economic circumstances that gives rise to this situation but that isn’t sufficient for it to count as duress and the mother hasn’t been raped. Many would argue that the child has a right to free healthcare and in that case, Y is making the child worse off than it has a right to be. In response to this, I would argue that we have to be careful in how we specify what the right to healthcare entails. The child might have a right to healthcare, but it doesn’t have a right to have its healthcare be paid for by Y. It should be paid for by the state. Feinberg himself admits that, while he considers the Lecherous Millionaire case to be
(Feinberg, 1986, p. 244). This should make us ask ourselves what moral work coercion is actually doing that exploitation couldn’t perform on Feinberg’s account. It seems as if it would be sufficient to simply call the transaction exploitative and thereby preserve the moral and legal role that coercion tends to play, namely that of invalidating consent.
Returning to organ sales, we can say that people in dire poverty are being done an injustice while at the same time granting that organ recipients aren’t coercing the vendors since the vendors don’t have a right to the money of the people who are purchasing their organs. We could plausibly argue that rich people have a general duty to help the poor but it seems overly demanding to argue that they have a duty to help every single poor person they come across or particular organ vendors. The organ purchaser might have a duty to help a particular vendor if they have some sort of preexisting history that obligates him to help the vendor for one reason or another but such a preexisting relationship usually doesn’t exist since the relevant parties in organ transactions tend to be strangers.
We also have to keep in mind that problems concerning “coercive” poverty can be remedied with the help of regulation, such as in the Erin-Harris proposal. Naturally, restraining organ trade to relatively affluent Western nations like the proposal suggests wouldn’t be entirely unproblematic for those who find the coercion by poverty argument persuasive. There is unjust poverty in these places as well so it wouldn’t be perfect but no system truly is. Organ vendors who live in welfare states would arguably be in a less desperate situation than the destitute mother since they would have a safety net that the mother crucially lacks. We also have to remember that organ recipients under schemes like the Erin-Harris proposal wouldn’t generally be millionaires like the antagonist in the Lecherous Millionaire so their
responsibility to relieve poverty would arguably be less than a millionaire if your duties to relieve poverty scale relative to your means.
2.4 Conclusion
coercion by poverty argument would simply prove too much, rendering contracts void that should be binding. Even if the proponent of this argument were to deny the premise that coercion renders contracts void, this person would still need some method of differentiating between coercion that voids contracts and coercion that doesn’t void contracts. Whether we choose to call the latter coercion or not is largely a semantic issue but it lacks certain theoretical virtues that we would want from a good definition of coercion. As we saw with Feinberg, coercion would serve no function that the concept of exploitation couldn’t fulfill. Furthermore, if coercion by poverty were to fall within the category of the latter kind of coercion then it wouldn’t be obvious that we should ban organ sales since this isn’t the kind of coercion that voids contracts. Since poor people are generally allowed to enter into a broad number of contracts that are considered binding, the proponent of this objection would need to give additional reasons for why organ sales are special. As long as organ sales are not significantly more “coercive” than any other of the markets that we permit, it would be arbitrary to say that organ markets should be prohibited while allowing comparable markets to exist.
3. Exploitation
Establishing that everyone validly consents to organ sales is not enough to establish the moral validity of organ markets. An opponent of organ sales can fully grant that they are perfectly consensual but maintain that they are morally unacceptable for other reasons. Perhaps the most popular route to take for arguing against organ sales is to make the case that it is exploitative. This is a somewhat less damning criticism of organ markets but it certainly provides at least a pro tanto reason to ban organ sales. This is because non-coercive
exploitation is usually considered less severe than coercion since an exploited person can still function as an autonomous individual to some degree. If the criticism is legitimate then the transaction between vendor and receiver might be consensual but at least one of the
markets exploitative? (2) If organ markets entail some measure of exploitation, what moral weight does it carry?
There is no doctrinaire account of exploitation outside of Marxism. I won’t touch upon the Marxist theory of exploitation for two reasons. One, not many people who argue against organ markets do it using the Marxist theory of exploitation. Two, the Marxist theory is not very good at explaining why organ markets in particular are bad since selling your labor for less than its full value is a common factor to pretty much all labor in society. From my
reading of the literature, most philosophers who have written on the subject seem to subscribe to the following: X exploits Y when X takes wrongful advantage of Y. Before we analyse whether organ sales are exploitative, we need an account of what is meant by “wrongful advantage”. Such an account is given by Stephen Munzer who believes that “persons are exploited if (1) others secure a benefit by (2) using them as a tool or a resource so as (3) to cause them serious harm” (Munzer, 1990, p. 171). His is only one of several similar accounts but I believe that his account illustrates some common traits in most mainstream theories of exploitation. As revealed by (1), X is typically believed to have to benefit from the
transaction in order to exploit Y. This seems like a dubious premise to me. If I row my boat out to a drowning alcoholic and offer to save him in exchange for him giving up drinking, do I not exploit him? It would certainly seem that I am taking wrongful advantage of him but I am not benefitting from the exchange other than having my preference that he stop drinking fulfilled. To exclude paternalistic exploitation seems a bit premature. However, the first condition will not be very relevant to our discussion.
necessary condition for it to obtain. Instead, “to cause serious harm” should be replaced by “in a manner that is unfair, disrespectful or confers net harm to the exploited”.
Given these observations, one could argue that (1) organ sales are exploitative if the organ receiver is benefitting from the transaction while the vendor is harmed, all things considered. The wrongness of this variant of exploitation stems from violating the moral prohibition on benefitting at other people’s expense (Mayer, 2007, p. 144). Alternatively, it can be
exploitative if (2) the vendor benefits from the transaction but in a manner that is unfair, likely because the receiver benefits much more than the vendor. As Andrew Mayer explains about exploiters, “They do harm to their victims, even when their interactions are mutually advantageous, by failing to benefit the disadvantaged party as fairness requires” (Mayer, 2007, p. 137). Finally, it can also be the case that (3) organ sales are exploitative if the vendor benefits from the transaction in a way that is fundamentally immoral, likely because it
commodifies that which should not be commodified. By treating people as commodities, we degrade them in a way that is morally unacceptable. In addition to this, I would also like to add a fourth possibility. Namely that a kind of exploitation can occur if there are unfair background conditions to the choice being made, meaning that there doesn’t have to be anything wrong with the exchange itself but rather the circumstances that brought about the choice. This captures the gist of Hughes’ criticism of organ markets without arguing that it is coercive since the objection is grounded in a concern for the dire economic circumstances of organ vendors. Goodin argues that exploitation occurs when someone is “playing for
advantage in situations where it is inappropriate to do so”, thus disrespecting the ethical principle of “protecting the vulnerable” (Goodin, 1987, p. 187). We can therefore say that exploitation can occur when (4) the vendor is in a position of vulnerability that is
3.1 Exploitation As Harmful Transactions
Starting with exploitation that causes harm, we need to keep in mind that organ sales need to be harmful on balance for there to be sufficient grounds for us to ban the practice. As I have already pointed out, practically every employment contract entails some level of harm. They require the employee to exert herself, mentally or physically, and they often make strict demands on her time. In most cases, the employee would likely prefer not work, but since she isn’t independently wealthy she needs to work to subsist. Therefore, the downsides need to outweigh the benefits and be harmful, all things considered. This also needs to be the expected outcome, outliers exist in every profession. Individual construction workers who injure themselves to the extent that they are no longer able to work tells us nothing about whether construction workers can expect to lose out by taking up the profession.
Furthermore, it can plausibly be argued that subjective self-assessment by organ vendors is not a metric that we should completely measure this on since organ vendors can be wrong about the risks and benefits to organ sales. They can be unaware of the objective harm being caused. We can therefore not appeal to the notion that organ vendors wouldn’t have agreed to the sale if they didn’t believe that the transaction would be to their benefit, since their
assessment can be wrong. Organ vendors who regret their sale are also not entirely accurate sources of whether they benefited since this is also a subjective assessment.
hasn’t undergone a kidney transplantation (Wilkinson, 2015). With this in mind, the risks to the vendor seem tolerable considering the monetary compensation.
Since widespread legality of organ markets hasn’t existed in any country that doesn’t have grievous socio-economic problems, I deem it reasonable to remain agnostic about whether or not organ sales themselves are especially harmful. If we limit organ sales to affluent western nations, like the Erin-Harris proposal suggests, then there would likely be greater harm reduction since the socio-economic circumstances and patient care would be better. Furthermore, it’s hard to come to a conclusion about what “objective” harm is. Is it some utilitarian happiness calculus or should it merely be determined by what individual vendors consider to be their interests? If organ sales were harmful to the vendor on balance, it might be possible to correct this by making the financial benefits more considerable. If the health risks and discomfort are the reasons why organ sales are wrong then there would also be other regulatory routes that could make the experience more comfortable, such as giving the vendors the kind of post-operative care that few are receiving on the black market.
Interestingly, the psychological harm might have very little to do with health risks. In fact, it might be argued that the fact that they are being paid is something that contributes to the psychological harm. The feeling of doing something unsavory likely wouldn’t be there if it wasn’t for the monetary component. Altruistic donors seemingly don’t feel “dirty” about what they’re doing. To what extent organ sales are psychologically harmful is an empirical matter, rather than a philosophical one, and there seems to be little actual evidence of the tangible psychological harms brought about by selling one’s organ. Even if there is some psychological harm done, this might not be inherent to the practice of organ sales. Rather, it might stem from social attitudes about the practice, i.e. stigma attached to the practice of selling one’s organ. Psychological harms that stem from factors such as social stigma generally aren’t a good reason to prohibit something if the practice is otherwise harmless. If people are engaging in a harmless practice that is stigmatized then the change should come from the people who are stigmatizing the practice and not the people who are being
Returning to the question of objective harm, it might be argued that even if the vendor is ignorant of it, it is wrong to commercialize human bodies since it amounts to a kind of objectification. Objectification is typically seen as degrading but that doesn’t establish that the organ sale is harmful. In order to do so, you need to show that the organ vendor feels degraded which returns us to the empirical question of psychological harm. Without the psychological component, it is unclear how objectification is harmful to the vendor.
Furthermore, even if the vendor were harmed by the objectification, this wouldn’t necessarily prove that organ sales constitute a net harm to the vendor. Much like it is possible to
compensate for physical harm, it is also possible to offer monetary rewards that make psychological harm an acceptable downside.
We also have to remember that the donor is at risk regardless of whether organ sales are legal or not. This returns us to the aforementioned black markets that prohibitions give rise to. Organ sales will take place whether the state likes it or not, they will simply take place in clandestine markets instead of legal ones. In a legal market, we can take measures to make sure that the transplants take place in safe environments with adequate safety precautions. This is not unlike how abortions will happen regardless of their legality, the difference being that legal abortions tend to be a lot safer than illegal abortions. Abortions, like organ
transplantations, are quite invasive procedures that require extensive protections and safety precautions for the patient. These precautions cannot be guaranteed on the black market whereas they can on the legitimate market. Thus, if we want to decrease harmful exploitation, then prohibiting organ sales won’t necessarily achieve that goal. On the legal market we at least have the ability to regulate away the worst instances of exploitation.
might argue that the current risks are tolerable but since markets are likely to increase supply, the number of people risking their health would make the situation intolerable. Such an objection misses the fact that the number of people saved would scale with the number of donors risking their health. It is also argued by many of those who oppose organs sales that we need to encourage more people to donate altruistically but if the increased number of people risking their health is the reason why organ markets are bad, then it would be equally bad if the number of altruistic donations increased drastically. This doesn’t seem like an option that many people would support and this tells us something about most people’s underlying principles. Namely, that simple hedonistic harm to the vendors cannot be the reason why organ sales intolerable since negative health consequences is something we are willing to accept in the case of altruistic donations and decline to call exploitative.
3.2 Exploitation as Unfair Transactions
Another avenue is to appeal to the unfairness of the transaction. If the recipient is gaining much more from the transaction than the vendor, then one of our conditions for exploitation obtains, namely exploitation (2). On this view, the supposedly exploitative organ clientele would “fail to benefit their victims sufficiently” and the vendors “gain too little for the
transaction or pay too much for what they do gain.” (Mayer, 2007, p. 144) However, since we are dealing with incommensurable values, it is hard to say that the transaction is unfair. Unfairness would imply that someone is gaining less than the other person but since the value of organs and money are incommensurate, we cannot say that one received less than the other since what they gained cannot be adequately compared. On the other hand, perhaps we shouldn’t narrowly focus on money and organs. If we broaden the scope to what the parties indirectly gain through the transaction, then it can be more easily argued that one is receiving more than the other. While the vendor can make all sorts of improvements to his life using the money he received in payment, the organ recipient often gains much more since his survival is on the line. This imbalance is hard to remedy just by hiking up prices.
customers. Doctors frequently save the lives of their patients in exchange for a finite sum of money. Providing these services is in some sense unavoidably unfair so to label them
exploitative seems unfair in itself since there is nothing either party could do to eliminate the unfairness. The factory owner who pays his workers unnecessarily low wages when he could pay them more and still turn a profit is exploiting his workers since the unfairness was avoidable. In the case of doctors and their patients, the asymmetrical gain cannot be avoided in the same way. This is not to say that any moral wrong necessarily has to be avoidable but in the case of the doctor and his patient, there seems to be little concern that the doctor has wrongfully been taken advantage of. The asymmetrical gain is just something that the doctor signs up for and we recognize that to demand something equivalent in payment to what they have given would be unreasonable.
To even call these relationships unfair seems unjustified. Just because something is not fair does not make it unfair. A better way of looking at unfairness is to say that it arises when something ought to be fair but isn’t. It isn’t unfair for one guy to get all of the pretty girls because the other guys are not entitled to the pretty girls and therefore this situation does not call for fairness. However, it might be argued that it is unfair for parents to arbitrarily care for one of their children more than the other since children are equally entitled to their parent’s care. This way, we preserve the moral force of unfairness as a thick moral concept since this definition cannot be applied to situations that are not fair but morally neutral. With this in mind, I would argue that the relationship between the doctor and his patient isn’t unfair since it would be unreasonable to demand that the patient compensate his doctor with something that has equal value to his life. Similarly, it would be unreasonable to demand that the organ recipient give the vendor the equivalent to his life. As long as the vendor and the doctor are generously compensated for their efforts, the value they receive in return need not be equal to the other parties in the transaction.
3.3 Exploitation as Wrongful Use
“wrongful use” (Harris, 1992, p. 120). This kind of exploitation can still occur when issues concerning fair distribution and harm have been laid to rest. One possible way of arguing for this is by claiming that the vendor’s rights are being violated. An unconscious woman isn’t harmed in any hedonistic sense of the word if a man gropes her between her legs - there will be no pain as long as he isn’t being too rough and she won’t suffer any psychological harm either since she isn’t aware that it happened. Rape wouldn’t be off the table in this situation if all we are concerned about is the hedonistic calculus, provided the rapist is careful enough not to inflict damage upon penetration. We still consider this wrong because her assaulter is violating her rights by making unwanted sexual contact. Similarly, even if organ sales fail to constitute any sort of net hedonistic harm, it might still be wrong if the vendor’s rights are being trampled on. If the vendor has a right not to have her organs taken away, then such a rights violation has occurred. However, we have to realize that many rights are only violated in the absence of consent. If the woman consents to the sexual contact, then no one has trampled on her rights. Similarly, if the organ vendor consents to let someone else have her organs, then no rights have been violated.
3.3.1 Incommensurability and Objectification
A plausible approach is to bring up issues concerning objectionification and
instrumentalization and their relation to commodification. There is a clear Kantian strand to this line of criticism in that it is based on the premise that people are ends in themselves and it is therefore wrong to treat them as mere means. Opponents of organ sales generally maintain that organs are more than mere commodities and that hospitals shouldn’t be a market for money to change hands. Of course, plenty of money changes hands in hospitals. Doctors, nurses and administrators are not expected to provide their services for free.
Regardless, the human body is held to be more than mere property to be traded. As described by Radin, commodification is characterized by (1) Objectification (in the Kantian sense as a thing that is manipulable at the will of persons), (2) Fungibility (as something that is fully interchangeable with no effect on the value of the holder), (3) Commensurability (meaning that values of things can be arrayed as a function of one continuous variable), and finally, (4) Money exchangeability (the continuous value on which things can be ranked is monetary value) (Radin, 1996, p, 118). Another important thinker who argues along these lines is Elizabeth Anderson. According to her, commodifying a good is to say that it is reducible to a monetary equivalent (Anderson, 1993, p. 209). On her view, certain personal goods whose value is irreplaceable are not suitable to markets norms where their full value can be undermined by treating them as fungible (Anderson, 1993, p. 144).
This critique of organ markets is flawed for several reasons. First, the proponent of this kind of argument has to show that altruistic donations don’t have these problems. After all,
whether the organ is being sold or not, donating an organ involves removing body parts from one body and transplanting them into another, thus the donor is treated as a means by the recipient and the surgeons (Cherry, 2008, p. 241). It might be argued that altruistic donations involve making someone a vessel for spare parts. It is therefore not obvious that the
same degree of commodification but that isn’t the only way to objectify someone. The recipient and surgeons have to treat the donor as an object at least to some degree. Of course, we generally don’t maintain that donors are mere objects since they participate voluntarily. This goes to show that someone can be treated as an object on a more local level without being viewed as an object on a global level (i.e. only as an object).
Putting that aside, we need to examine whether organ sales truly fulfill the criteria created by Radin. One could see why the market could pose a threat to inconsumerablility. In order to have a market we need to be able to determine the value of the things for sale but could market forces truly determine the accurate value of human organs? One question we need to ask is why is it so bad to create a market in organs if the value of organs is incommensurate with the value of money. Why, exactly, should we consider this to be degrading to the vendor? It might be because we are falsely accepting that these two things are comparable when they aren’t. By creating a market and putting organs up for sale, we are falsely saying that the value of organs is reducible to the value of money. As Cohen puts it regarding the sale of babies: “In a baby-selling market, the very fact that the seller did choose to surrender her child for $5 million expresses a relation of value equilibrium—that the $5 million was a substitute for her child” (Cohen, 2003, p. 705-706). Here, the problem could be that the act of selling a kidney expresses that kidneys are reducible to a monetary equivalent when they aren’t, making it a false statement. The moral force of this possibility seems somewhat weak however. Even if markets falsely expressed that the things being traded were of equal value, would this be reason to ban organ sales? By permitting these exchanges, we could improve the lives of countless patients. Is our desire to avoid expressing false statements truly great enough to let these patients continue to suffer? If telling a lie was the price I had to pay to cure someone on the kidney waiting list, I would take that trade.
signaling issue. It seems to require further argument to establish the validity of this objection however. It’s wrong to assume that an act signals something without providing good reasons to think that it signals what you claim that it is signaling. Some argue that a woman signals that she is open to sexual advances if she wears a short skirt. This interpretation is generally held to be a misinterpretation of the woman’s actions yet the symbolic content of markets is often stated with just as little evidence. More needs to be said in order to ground the argument in any sort of fact.
These arguments seem to be based on a faulty assumption about markets. The fallacy is illustrated by the earlier Cohen quote about markets as an expression of equilibrium. The fact that the value of an organ is inconsumberable with monetary value doesn’t tell us anything about whether or not the sale is morally legitimate. An exchange doesn’t have to be for the exact value of the goods being exchanged in order to be permissible. A voluntary exchange for mutual satisfaction is usually considered to be sufficient. We readily permit supposedly priceless artworks and family heirlooms to be exchanged for money. After all, it is not
required to claim that the money on offer is commensurate with what is being purchased. The vendor of a priceless painting might recognize that the painting is objectively more valuable or of incomparable value compared to the finite sum of money on offer but selling the painting might still be the prudent thing to do if what she needs at the moment is the money and not the painting.
The motivation behind a transaction doesn’t need to be that the goods being traded are of equal value. If I am the owner of an original Picasso painting and I sell it for $500,000, it’s possible for me to recognize that it’s probably worth a lot more or that it is in some sense “beyond price”. Maybe I’m selling the painting because I need the money to pay for
particular watch and that’s why I need to have it, while at the same time recognizing that the watch is ridiculously overpriced. The point of these examples is that someone doesn’t have to believe that the goods being exchanged are of equal value in order to agree to the transaction or for the transaction to be worth it to them. There are many different dimensions of value that figure into our deliberation about whether we should buy something or not, all of which need not be commensurate with one another. What a valid transaction does express is a preference for what one is receiving in return for the sale. It’s even possible to at the same time recognize that the trade isn’t a fair one, since it’s certainly true that similar watches to the one I purchased usually fetch a much lower price. The very idea of equivalence in trade strikes me as somewhat misguided since there would be no need to make the trade if I thought that I was getting the equivalent value in return. People generally trade to make themselves better off.
In a sense, Radin is correct about (4) since trade assumes that goods are interchangeable with one another “in terms of exchange value” (Radin, 1996, p. 3). However, money
exchangeability is not sufficient to establish that it is immoral to trade in those goods. (2) Concerns the consumberability that is associated with (4) but the two are not inseparable. To say that an organ and a certain sum of money are completely interchangeable in terms of their exchange value doesn’t necessarily have to say anything about their value along any other value dimension, so it need not say anything about the “actual” value of the things being traded. Thus, there is a kind of local commensurability (meaning that something is
exchangeable in terms of a particular value dimension) in markets but they have no necessary connection to global commensurability (meaning that something is fully exchangeable along every value dimension). The degrading element of commercialization would presumably come from global commensurability since that is the type of commensurability that negates the good’s true value. I can see no reason to suppose that local commensurability constitutes some affront to the incalculable value of persons. If I sell my priceless Picasso painting for $500,000, then all this really tells us is that the exchange value of the painting is $500,000, which is not its actual value.
mean that anyone necessarily loses out if you exchange organs for money. The fact that certain values are incommensurable does not mean that we are not often forced to choose between them. Do I become a doctor or an artist? Both contribute to society in important ways but time and other factors will probably force me to pick one over the other. The ways in which they contribute to society and well-being are not directly comparable to one another but by no means am I engaging in an immoral act when I decide to pursue one over the other. It is merely a matter of preference. There is also a kind of local commensurability to these professions since you might ask which one will make you happier. Here is a value dimension where the two are commensurate even if their overall value isn’t. Money is valuable and so are organs, but you cannot always have both. The way that the philosopher Joseph Raz deals with the incommensurability of values is by letting people decide what value they value most and choose between them accordingly. His solution is pluralistic liberalism, essentially (Raz, 1986). Similarly, people should be allowed to sell their organs if they determine that they 1
value money more than, say, one of their kidneys.
Of course, this is assuming that what is meant by the incommensurability of values is something like the idea that the values cannot be considered better, worse or equal (Raz, 1986, p. 322). Alternatively, we might mean that their value cannot be graded along the same standard of measurement or that their true value cannot be compared. All of the above would be consistent with my Razian argument against legislating against organ markets on the grounds of incommensurability. A different strand of incommensurability could be taken to mean something like “infinite betterness”. On this view, a kidney is in a category that renders its worth higher than any sum of money. You are therefore always getting a bad deal if you sell your kidney in exchange for cash. I have a hard time understanding why a non-essential organ would be in such a category but I believe that you can justify trading in organs even if if this view is true. I have referred to prudential reasons for trading in something and these reasons can apply to this account of incommensurability as well. If I sell my kidney, the money itself might not be worth the trade but money is a means to an end. If I use that money to move into a nice neighborhood where my child is able to have a better upbringing and go
1 It should be noted that Raz himself seems to subscribe to something similar to what Anderson and
to a better school, thus enabling it to succeed in life in a way that it otherwise wouldn’t, I have indirectly gained something from my kidney sale that is also beyond price - a good life for myself and my child. Sometimes you have to give up something more valuable than the thing you are receiving in order to advance your interests and if the welfare of the most vulnerable party is our primary concern, it would be wise to permit this.
3.3.2 The Corruption Thesis
My current line of argument mostly goes to show that there is nothing inherent to
conflicts with how one ought to regard the purpose of our bodies, we “should not treat our bodies as instruments of profit, or as collections of spare parts.” (Sandel, 2012b) As we can see, concerns regarding degrading disregard for incommensurability and the corruption thesis are not totally separable and someone who holds one of these views is also likely to believe in the other. The thing to keep in mind is that the corruption thesis still carries some weight even if global consumberability isn’t necessitated by markets since it revolves around how markets do change our views on the goods being commodified.
The expression of meaning outside of language often becomes speculative. Recall the example of priceless artworks and family heirlooms. The value of the artwork can be very different depending on who is considering the artwork. Some might consider it priceless whereas those who don’t appreciate the artist might consider it to be nothing more than paint on a canvas. Others still might not like the artwork itself but buy it anyway because it gets them social prestige. As shown by my earlier example of selling artworks and heirlooms, people’s motivations for buying and selling certain commodities is heavily context
dependent. This applies to legislators as well, one might be in favor of legalising organ sales for the sake of an increased supply of organs whereas others might want to champion such a system because their campaign financiers want them to. The motivation and underlying morality behind these proposals are not a monolith, the same action can be motivated by very different beliefs and attitudes. Hence, the expressive intent can vary widely. However, some attitudes can be conveyed regardless of intent.
Wittgenstein asks us to consider the following: “Can I say ‘bububu’ and mean ‘If it doesn’t rain I shall go for a walk?’” (Wittgenstein, 1958, p. 18). The answer is presumably “no”. There is an element to language that is very much public and therefore the meaning of certain words cannot be altered by the speaker’s intent. Similarly, it might be argued that
commercializing something signals various objectifying things about the thing being
something that is divorced from intent, there has to be a public symbol system that attaches meaning to certain acts. This is how language works as well as other symbolic acts. Nelson uses the example of flying the confederate flag as something that might be thought to signal racism as part of a public symbol system. Flying a flag is commonly used to signal allegiance to a particular collective and the confederate flag expresses allegiance to the American confederacy, which historically is most well-known for its support of black slavery. Hence, flying the confederate flag expresses and promotes racist attitudes regardless of intent. One cannot fly the confederate flag without expressing offensive messages to African-Americans any more than someone can say “bububu” and express “If it doesn’t rain I shall go for a walk” (Nelson, 1998, p. 177).
Should commercialization be viewed as analogous to flying a flag? The confederate flag carries with it certain historical connotations and so do commercial markets. Even those who have a positive view of markets cannot deny that markets have played important roles in various dehumanizing practices, slavery being an especially apt example. However, insofar as there are those connotations, they are extremely muddled and too open to interpretation to be considered public in any substantial sense. Turning our attention back to Wittgenstein, on the very same page that he discusses the potential meaning of “bububu”, he also writes: “It is only in a language that I can mean something by something” (Wittgenstein, 1958, p. 18). Now, how broadly one defines language might give us some interpretive leeway here but Wittgenstein seems to be calling attention to the fact that language is a social practice with set meanings that at least to a substantial degree remove the potential vauguries of
communication by assigning largely undisputed semantic roles to certain sounds and
movements, thus making it easy for us to understand each other. It is by virtue of the lack of these settled semantic meanings that the claim that a practice as widespread and varied as commercial markets invariably signal something objectionable about how we ought to value goods falls apart.
flying the Swedish flag expresses whatever you want it to mean since you are flying that flag in a social context where that act cannot express allegiance to Denmark. However, that markets are taken to express the values suggested by Radin and Anderson toward the things for sale is by no means settled consensus. Hence, what people think that markets signal is to a large degree in the eye of the beholder. It is therefore difficult to say with any degree of certainty that they would promote degrading attitudes since the signals that would convey these degrading norms are too up to interpretation. The fact that commodified artworks can still be considered “priceless” goes to show that there is substantial interpretive leeway with markets. It also shows that people are capable of keeping two thoughts in their head at once and that markets haven’t muddled the “true” value of art. There might be certain contexts where markets could signal something problematic but we should be extremely careful about attributing meaning to commercial acts outside of what is conceptually necessary. The rhetoric surrounding commercialization certainly can signal bad attitudes but the mere act of creating a market in organs does not signal anything outside of the fact that the items that are up for sale are up for sale.
The moral nature of money exchanges is viewed very differently across cultures. Some exchanges that are widely condemned in western societies have highly positive connotations in others. Brennan and Jaworski point to the Merina people whose method of expressing respect for their wives is to offer them monetary compensation for sex. In other cultures, they hire people to mourn at funerals (Brennan and Jaworski, 2015, p. 1064). These are all viewed as perfectly dignified practices in their respective cultures. This goes to show that there is a lot of cultural baggage in our view of markets. It also goes to show that there is nothing inherent in the human psyche that compels us to view the expressive character of markets a certain way. If the wrongness doesn’t arise on a conceptual level, it is we who are the
Furthermore, people who engage in otherwise harmless practices should not be punished for the meaning that other people project onto that act. Reconsider the problem of short skirts, if men in general were to interpret short skirts as permission to objectify women, is it the practice of wearing short skirts that should change or men’s interpretation of the expressive meaning of short skirts? The moral burden to change should fall on those who are making the harmful interpretation, not the women who are wearing short skirts. The legal case is even more clearcut. It would very illiberal to ban a harmless practice like wearing short skirts based on the assumptions that people make about short skirts. If commercializing the good things in life is degrading due to how people perceive commercialized goods then a very similar line of argument can be applied to these practices as well.
This deals with points (2), (3) and (4). Objectification is another concern related to organ sales. Here the worry is that people will be reduced a series of spare parts, perhaps even pressured into donating organs lest they be considered hoarders. This is an understandable worry but it is a danger that is not unique to organ markets. Similar problems can arise under any system of organ donation. In regards to the Kantian maxim that one must not treat someone as a mere means, it is important to not leave out the word mere. If we have
established that organ sales are consensual, in what sense are vendors truly being objectified? Remember that the objectification involves being a thing that is manipulable to another’s will. The fact that the vendor has to consent seems to run against this notion. In fact, not only is the vendor consenting, but the transplant would not happen had they not consented. If this is the case then Kantian dignity essentially collapses into the species of exploitation that we have already dealt with through our discussion of coercion.
Another industry that is often accused of objectification is the porn industry. Analogous to an organ vendor, we could imagine a young woman signing up to star in a porn film. There is nothing in principle stopping the porn producers from respecting her as a person and valuing her instrumentally. Being an end in yourself and instrumentally valuable in other ways are not mutually exclusive. Whether these relationships in practice end up being respectful in the Kantian sense of the word is another question since certain industry practices can be
disrespectful to autonomy and consent. It would seem that many of these questions would revolve around the context of the relationship and which structures are in place. To argue that the porn actress in any context cannot possibly be respected as a person would be a very strong claim. If she enjoys the work, profits from it and gives morally valid consent to it, then the producers seem to have given her due respect. To give her what she wants, in a fully informed and autonomous state, surely cannot be a way of disregarding her status as an end in herself.
sexual value does pose a problem, but recognizing the former does not necessarily entail to the latter. Similarly, we can recognize that people’s bodies or body parts have commercial value while at the same time recognizing that they are more than mere commodities. When purchasing an organ, you do have to look at the vendor as a resource to some degree but this doesn’t require anyone to deny their personhood as long as everyone involved is concerned about procuring valid consent. Since valid consent is a necessary component of any capitalist market, it doesn’t seem valid to maintain that a market would necessarily objectify people by enabling them to sell their organs.
3.4 Exploitation as Unfair Background Conditions
Our fourth and final way that exploitation can occur is when unfair background conditions are taken advantage of by the exploiter, thus violating the moral prohibition on preying on the vulnerable. This is another kind of exploitation that can happen even when both parties benefit. An example of how exploitation (4) can occur is the case of the desert hiker. If a hiker who is lost in the desert is charged 1.000 dollars for a bottle of water, the person selling the water has taken wrongful advantage of the vulnerable (Wertheimer, 1996, p. 14). There is a clear way in which this critique holds true for organ markets. The ones who sell their organs are typically poverty stricken people in desperate need of money, thus putting them in a similar situation to the hiker.
Problems arise for this critique when we consider what should be considered vulnerable poverty. We saw this problem arise for Hughes’ account of coercive poverty as well and it essentially boils down to where we should draw the line. Is any difference in wealth
According to him, we are interacting with our fellow human beings in an immoral way if we are taking advantage of those whose basic needs are unfulfilled (Snyder, 2008, p. 396).
What method we should use to determine what these basic needs are varies depending on which philosopher you turn to. There are two dominant approaches. One is appeal to a kind of Kantian reasoning that basic needs are determined by our “true needs”. As Barbara Herman puts it, “a person’s true needs are those which must be met if he is to function (or continue to function) as a rational, end-seeking agent...” (Herman, 1984, p. 594). The second approach is to argue in the style of someone like Martha Nussbaum and appeal to the concept of overlapping consensus. According to this view, different people have different ideas about the good life but certain features are needed in all of them to some degree and these are our basic needs (Nussbaum, 2000, p. 223). No matter what approach you appeal to, the content 2
of the basic needs don’t differ substantially. These are needs that are defined by “the ability to satisfy certain elementary and crucially important functionings up to certain levels” (Sen, 1992, p. 45). The fulfillment of our basic needs involves enabling us to do some basic things that are necessary for survival as well as to avoid dire poverty and other serious deprivations. You could plausibly argue that these basic needs have gone unfulfilled in many parts of the world where organ trade is common. For example, India has had serious problems with hunger for a long time which would indicate that the country’s populace are not having their basic needs seen to (Global Hunger Index, 2018). However, depending on where you
implement the market, these problems might be avoided or at the very least greatly lessened. We would have to examine the regions on a case by case basis.
3.5 The Moral Relevance of Exploitation
If there really is something to this critique of exploitation, how should this alter our view of the permissibility of organ sales? If organ sales are exploitative then we have established that there is something morally wrong about the transaction but that doesn’t mean that we have sufficient basis for a prohibition. Remember that my task is to argue for the legal
permissibility of organ markets and not for the thesis that there is nothing morally
