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This paper offers a positive suggestion for the management of a market in organs for transplant; and in doing so provides a useful opportunity for clarifying the structure of the Great Organ Sales Debate.
The issue is in constant need of clarification, because it is usually aired as a political question of the For and Against variety: should organ selling be legal or not? This format usually encourages protagonists to collect into an unsorted heap whatever arguments look as though they might have any persuasive force on their side, and because people may be on the same political side for different moral reasons, or have the same moral principles but reach different political conclusions, the political arguments tend to obscure both the real issues and the logical structure of the controversy.
Although attitudes to organ selling seem to have relaxed somewhat since the subject first came to light about a dozen years ago, most professional and political opinion is still against it. But what is the moral basis of this opposition? If you think organ selling should remain illegal, what exactly is your reason? Is it that you regard selling body parts as wrong in itself, irrespective of consequences? Or is it because you think that although it is not wrong in itself, in practice the harms will usually or always outweigh the benefits? Either of these quite different views might support the same political conclusion.
In practice, it is not clear that many opponents of organ selling have ever recognised the distinction. Most of the individual arguments are of a kind that implies the second view, because they are about anticipated harms of allowing the practice: coercion, exploitation, shoddy standards, profiteering, misinformation, undermining altruism, deterring donation, and the like. But the overall structure of the debate makes it pretty clear that most opponents are totally against the buying and selling of organs on principle. One indication of this is the astonishing speed with which the practice was denounced and prohibited when it first came to light. There was no agonised weighing of pros and cons, as you would expect if what mattered was to balance good and bad effects; indeed the rather striking prima facie benefits of allowing the sales—saving lives, and allowing would be vendors to decide for themselves about their own best interests—were not even mentioned. Another indication that most opposition is rooted in the idea that organ selling is simply wrong in itself is the fact that whenever an argument on the Against side is demolished, others immediately appear to take its place. If the vanquished argument were the real basis of the objection, the objection should disappear. Since it does not, it is clear that most opponents have objections other than the ones they offer.
To the practically minded it may seem that moral division—or confusion—among the politically united does not matter much. But in fact the division between these two kinds of reason for objecting to organ sales is much more significant than the all-things-considered political conclusion. It is of crucial importance to the conduct of the debate. If you regard organ selling as wrong in itself you may well embrace all suggestions of dangers and difficulties with relief, because they seem to strengthen the political case for prohibition. But if you start with the idea that what matters is to weigh harms and benefits, and that there is a prima facie case for allowing transactions that can save the life of purchasers and give vendors something they value more than their kidney, you will look at the objections raised in quite a different way.
In the first place you will look at them critically, rather than rushing to accept them—and will soon find that a good many have no force at all, because they involve logical fallacies or invented facts.1 And then, when you find real dangers and difficulties, you will try to devise techniques for avoiding the harm while keeping the good. This is, after all, what we automatically do in other contexts. The existence of rogue builders and medical quacks does not lead us to try to stop building or medicine altogether: obviously, we aim for controls that will minimise the bad but keep the good. (When possible dangers of organ selling are treated as objections to the whole idea, rather than as problems to be overcome if possible, that is further evidence that they are not the real objection.)
It is in this context that the Erin and Harris proposal should be understood. The authors recognise that there is a prima facie case for allowing organ sales, but they also recognise that a totally free market could do a great deal of harm. What they propose, therefore, is a restricted market, designed to allow the benefits while preventing these harms.
So how good a proposal is it? Once you get beyond the idea that organ selling is wrong in itself, you are into the terrain of highly complex empirical questions, and there is no point in philosophers’s (or anyone’s) engaging in armchair speculation about them. Recognition of how this proposal fits into the debate as a whole does suggest, however, the kinds of question that should be raised about it.
If it is presumptively bad to prevent sales altogether, because lives will be lost and adults deprived of an option some would choose if they could, it is for the same reason presumptively bad to restrict the selling of organs. Once you recognise that the default presumption is in favour of any such transaction, you should be reluctant to prevent any more sales than necessary. The Erin and Harris proposal, if viewed as representing the only circumstances in which buying and selling should be allowed, is restrictive in many ways. Is there good enough reason for ruling out the many potential sales it would prevent? Here are one or two questions about it.
For instance, the idea of achieving equity of distribution by limiting purchases to public bodies, is obviously attractive. But in countries where there is no such service, or where it is generally accepted (as here) that people who find the public service inadequate to their needs should be allowed to go outside it, is there any justification for providing special restrictions on the freedom to make private arrangements to find a kidney? It would probably be best to have public bodies that supplied all needs—but until all needs are supplied in this way, is there any good reason to prevent (properly controlled) private arrangements?
And how good is the justification for keeping the market within a “self governing geopolitical area”? Of course there is something undesirable about a one way international traffic from poor to rich; but that is not enough to settle the all-things-considered question of whether it should be allowed. Much international trade is currently objectionable on the same grounds, but simply stopping it would be worse for the poor countries. It is much better, for them, to improve the conditions of trade than to prevent it altogether. Is the case different with organs?
These questions are not intended as rhetorical: they may have answers. Or even if they have not, perhaps the proposal is restricted to give it greater chance of political success. But the matter does need to be checked. It is clear that strong feelings against organ selling colour every aspect of the debate, giving apparent weight to arguments whose inadequacy nobody could miss in neutral circumstances. Could such feelings be influencing even this proposal, making it more restrictive than it should be? Whatever the answer, it is morally essential to ask the question.