Commodification of Organs and Other Useful Body Parts

 Should the law allow for the ownership and the commodification of organs and other useful body parts?

        This essay will tackle the issues of ownership and commodification simultaneously, as these two concepts tend to be part and parcel of each other. Ownership is the premise on which commodification can exist, as commodification can only exist under the presumption that people have property rights in their organs and other useful body parts. This is because legal recognition of ownership creates liabilities and obligations (Honoré, ‘Ownership’), which would also allow for claims in courts. Therefore, the justifications for commodification must also justify ownership.

With that clarified, this essay will answer the question in two ways. Firstly, it will deal with the practical concerns of organ commodification, according to Kate Greasley’s ‘A legal market in organs: the problem of exploitation’, by answering that the alternative to the legal market leads to harsher degrees of exploitation. Secondly, this essay will engage with the arguments of human dignity from Kant’s Metaphysics of Morals and Arabian J’s concurrence in Moore, before supplementing two arguments of a philosophical basis of my own. 

Greasley’s practical concerns

Greasley raises three arguments against the prospects of body part commodification. The first is that it would result in the exploitation of the poor and disadvantaged. She refers to an issue of ‘defective consent’, as rational people would only sell their organs in circumstances of severe desperation. Furthermore, she furthers this by arguing that although those who will sell their organs in these circumstances are in a ‘double bind’, it cannot be used to justify the preservation of exploitation. Secondly, there would be problems with the creation of a proper mechanism for the sales and distribution of body parts, as even suggestions of a ‘single purchaser system’ would not fix the lack of material improvement to vendors. Thirdly, there would be problems of regulation within that mechanism. 

The reason why these arguments are not convincing is that Greasley seems to downplay the alternative to legal markets; that is exploitation will happen anyways. This same exploitation is already prevalent in the developed world (Modern Slavery in the UK: March 2020) and it is especially bad in the developing world (International Labour Organisation: Statistics on forced labour, modern slavery and human trafficking). The reason why this exploitation is worse when it is illegal is threefold. One, facilities through which sales happen tend to be underfunded and unsafe. Underground clinics do not have proper health regulations to follow and do not have the appropriate tools for organ extraction. Furthermore, organ donors would constantly risk the transmission of disease and the fatal mistakes of untrained and unequipped doctors. Two, they will rarely get help should they have been harmed during the extraction. That is because there is no model to ensure that vendors get follow-up health checks and find it hard to access healthcare. Three, there would be no accountability. The vendor can never hold a doctor accountable for negligent practices simply because these activities are shunned by the law. Moreover, there would be no assurance that vendors would be paid fairly due to the existing power dynamic between buyer and seller. 

Greasley’s only response to this concern is that this black market only exists because of inefficient local governments and hospitals. This is a lazy response as she refuses to engage with the reasons for which these markets exist. The first is the very economic desperation she characterises. Legalisation would improve this because the law can create an equal playing field. It can mandate regulations to ensure safer forms of transaction and provide the needed facilities for them to happen. It can also ensure that there will be post-transaction care by subsidising or ensuring purchasers provide that care. Most importantly, the law provides accountability by being the mechanism through which sellers can hold their purchasers accountable, resulting in sufficient monetary compensation and humane treatment. The second is the high demand for organs and important body parts, which she recognises herself by writing that “around 1000 patients on the organ transplant waiting list every year in the UK die before an organ should be a pushing force for the law to act”. The response to this serious demand should be that it is a pushing force for the law to act. This has happened with the legalisation of prostitution and cannabis in the Netherlands (Ybo Buruma, ‘Dutch Tolerance: On Drugs, Prostitution, and Euthanasia’), and it should happen with organs and other body parts. 

Moral considerations

The first argument against commodification comes from Kant, who argues that all people have intrinsic worth or dignity, and this human dignity is something we cannot forfeit. He furthers this by claiming that all people must therefore be treated as ends in themselves, and not as mere means to an end. His formulation does not mean that human beings cannot be used as a means at all, as the food we eat and the clothes we wear are all by-products of other people, but that we should not treat them as mere ends. 

The second argument comes from Arabian J’s concurring opinion in Moore, where he forwards that while he is unsure if it would “uplift or degrade the ‘unique human persona’ to treat human tissue as a fungible article of commerce”, the “ramifications of recognising and enforcing a property interest in body tissues” are greatly feared. 

Nevertheless, Mosk J’s dissent in Moore seems to deal with these two claims concurrently. Mosk argues that Moore had the “right to do with his own tissue what the defendants did with it”. Furthermore, he argues that Moore would not have any good alternative to winning his claim in property interest, as he could not win a damages claim because he cannot prove that he was properly informed, and that he could only sue his doctor and not the parties that might be exploiting him. The reason why this is more convincing that Arabian J’s opinion is that Mosk was the only judge to engage with the reality that was occurring before them. People were being exploited, and the only way to curb that exploitation was through recognising his property right in his cells. This also responds to Kant’s concerns in two ways. The first is that Mosk recognises how human dignity was not being respected in the status quo through the ability of corporations to exploit people for their body parts, and seeks a solution through recognising property rights. The second is his recognition that the law has the unique feature of changing the “bundle of rights” (Jeremy Waldron, ‘What is Private Property?’) that people have over their property; thus allowing for the law to ensure that human dignity is preserved to some extent. This same reasoning is likely to reduce concerns of the ramifications that Arabian J discussed.

Another reason why there is a moral foundation for the legal sale of organs and body parts can be found in observing the economy through a Marxist lens. Marx argued that the capitalist mode of production, driven by the pursuit of profit, have origins found in the extraction of surplus value from the exploited proletariat (Marx, Das Kapital). The adaptation I will make is that in the periods of time where people are forced to labour to maintain their livelihood, the body of an individual is not owned by them, but by their employers. Workers do not have the freedom to stop their labour anytime they want, and the option of leaving their job is never a realistic one as the risk of unemployment is a strong deterrent. This lack of control tends to be long-term if not irreversible as people work for most of their living years and will continue to do so as many countries are pushing to extend the mandatory retirement age (State Pension age timetables). The conclusion is that since people are being exploited anyways and have the ability to give away ownership of their body through labour, a proportionate remedy must be to grant them more property rights to increase their liberty and autonomy. 

Finally, it is imperative to consider Wilkinson’s defence of bodily autonomy (Wilkinson, ‘Bodily Integrity and the Sale of Human Organs’). A person can own themselves, and by extension their body parts. This happens as your body is an extension of your personhood (Radin, ‘Property and Personhood’). If we have property rights over our bodies, we must also have the autonomy to do with our property as we wish. Wilkinson furthers this argument by arguing that the very human dignity opponents to legalisation care about are still being sacrificed through the existing framework of donations. Therefore, as it respects the autonomy of individuals, legal recognition of ownership and sale is necessary. 

Conclusion

In conclusion, the law should recognise the ownership and sale of organs and other body parts for two broad reasons. The first is that the law needs to respond to the reality of the status quo, which is large scale exploitation that happens under the guise of the law. The second is that the recognition of the right of ownership and commodification is moral as it would be a recognition of autonomy, it would be consistent with current moral concessions on human dignity we make in the market, and that the law would be able to balance competing interests of human dignity and the autonomy granted by those rights. 

- Paren