Will liberty lead us to an internal market?

Stakes and Kidneys
April 7, 2006

In 1988, there was considerable outrage in the UK when someone in need of a transplant paid a Turkish man £2,000 for one of his kidneys. The following year, the Human Organ Transplant Act criminalised making or receiving payment for an organ. There are many people waiting for human organs, especially kidneys, for transplantation; their lives could be saved or vastly improved if more human organs were available. We are encouraged to carry cards stating that our organs may be used postmortem; if a relative offers one of his kidneys to save a family member, he is regarded as a hero. Yet most people recoil with horror at the notion that kidneys should be offered for sale at whatever is the market value. It is widely regarded as immoral.

James Stacey Taylor argues, on the contrary, that not only is it morally permissible for people to sell a kidney (or blood or other tissue) on the open market, but that society has a positive duty to set up and regulate such a market. His arguments in support of this counterintuitive position are brisk and dogmatic. He is inclined to speak of "demonstrating" that his opinions are correct and of "proving" the falsity of any opposing view. His starting point is the principle of autonomy.

This principle is often traced back to the moral theory of Kant, who argued that, as rational beings, we cannot rationally treat other rational beings as means to our own ends. This is one formulation of the categorical imperative against which there can be no moral argument. The wishes and feelings of individuals have no power against it. However, as Taylor notices, in medical ethics the principle has become very different; it has nothing to do with impersonal logic and everything to do with what a particular person wants and chooses to do. Freedom to choose has become the highest value and not to inhibit this is the categorical imperative. This vague and broad principle has infiltrated every corner of medical ethics, from questions of abortion and euthanasia to questions of patient choice of hospital.

The most powerful argument against the sale of kidneys is often itself derived from the principle of autonomy. It is generally supposed that no one would voluntarily choose to sell one of his kidneys, the risks to himself being too great. Nothing could bring him to do so except the coercion of poverty. Extreme poverty impairs a man's freedom to choose.

Another version of this argument is that the man who sells his kidney is being exploited, in the pejorative sense of that term. The exploitation of the weak by the strong, of the poor by the rich, is something that is generally agreed to be both a danger and an evil.

Taylor will have none of this. He holds that the sale of a kidney by someone who needs the money is not "involuntary". This is an unhappy use of the word. No one would suggest that selling your kidney is something you do like gasping or shuddering or letting out a cry. Obviously the sale is undertaken deliberately and after thought. Yet it may be taken most unwillingly. And this is not, as Taylor would probably suggest, mere pedantry, the sort of thing that used to give philosophy a bad name. For it is his almost total obliviousness to the meanings of words that allows him to argue (or "show") that a man in extreme poverty who decides he must sell his kidney actually wants to do so, and is not forced to by his economic circumstances. Thus, he argues, to prevent his doing so by making what he wants to do illegal is inhibiting his freedom of choice. And we have a moral obligation to avoid this. Therefore it is our duty to set up a legal and properly controlled market for body parts and tissue.

There have been other arguments against payment for the supply of kidneys for transplant or blood for transfusion, most notably that of Richard Titmuss in The Gift Relationship (1970). He held that there was intrinsic value in the altruistic donation of organs, a value to society as a whole that would be removed if the selling of organs became an option. I do not believe that this argument has much substance, but it is reflected in principles and guidelines enunciated by the British Medical Association, the Nuffield Foundation for Medical Ethics and other bodies. Taylor responds to them by suggesting that if people want to behave altruistically, they are still at liberty to do so; they can accept money for their kidney and give the money away to charity.

Taylor's book addresses some real and urgent ethical problems. But I am not sure that readers who are interested in the resolution of these problems will gain much insight or understanding unless they are prepared to be tolerant of the aggressive and apparently arrogant tone of the writing and, more important, unless they are themselves involved in the medical ethics industry.

In botany, "autocarp" is the name given to a fruit produced by self-fertilisation. The word could perhaps be applied metaphorically to the output of university departments of medical ethics, especially in the US.

Taylor devotes a whole chapter to the examination of two (admittedly influential) articles by Gerald Dworkin, between which he detects a contradiction. He is doubtless right, but this kind of stately scholastic minuet is not much help to those who believe that laws should be either changed or defended by ethical arguments based on facts and experience. You may say that the philosophical foundations of any change in policy need to be discussed alongside its social consequences. And I agree with that.

Nevertheless, the purpose of citing the history of all the disputes arising from the consideration of establishing a market in the sale of body parts must be to clarify the arguments of those who are for it and those who are against. Infighting for its own sake is a distraction.

Finally, how did any sane publisher allow such a title for a book that is meant, I presume, to be widely read? I have had to keep the cover permanently with its title concealed for fear of catching sight of it inadvertently and experiencing terminal nausea.

Baroness Warnock taught philosophy at Oxford University until 1985 and was mistress of Girton College, Cambridge, from 1985 to 1991.

Stakes and Kidneys: Why Markets in Human Body Parts are Morally Imperative

Author - James Stacey Taylor
Publisher - Ashgate
Pages - 226
Price - £55.00 and £16.99
ISBN - 0 7456 4109 0 and 4110 4

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