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A legal market in organs: the problem of exploitation
  1. Kate Greasley
  1. Correspondence to Ms Kate Greasley, New College, Holywell Street, Oxford OX1 3BN, UK;kate.greasley{at}new.ox.ac.uk

Abstract

The article considers the objection to a commercial market in living donor organs for transplantation on the ground that such a market would be exploitative of the vendors. It examines a key challenge to that objection, to the effect that denying poor people the option to sell an organ is to withhold from them the best that a bad situation has to offer. The article casts serious doubt on this attempt at justifying an organ market, and its philosophical underpinning. Drawing, in part, from the catalogued consequences of a thriving kidney market in some parts of India, it is argued that the justification relies on conditions which are extremely unlikely to obtain, even in a regulated donor market: that organ selling meaningfully improves the material situation of the organ vendor. Far from being axiomatic, both logic and the extant empirical evidence point towards the unlikelihood of such an upshot. Finally, the article considers a few conventional counter-arguments in favour of a permissive stance on organ sales.

  • Social Aspects
  • Public Policy
  • Paternalism
  • Kidneys
  • Allocation of Organs/Tissues
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Introduction

The debate over whether a commercial market in human organs from living donors ought, to some extent, to be permitted, is as animated nowadays as it ever was. The outright buying and selling of human organs remains severely restricted by UK law. Pursuant to section 32 of the Human Tissue Act 2004, any commercial dealings in human organs or other bodily material for the purposes of transplantation constitutes a criminal offence, punishable by imprisonment for up to 3 years (if convicted on indictment), and (or) a fine. The blanket ban does not equally apply where the purpose of the commercial dealing is something other than transplantation, although such transfers are nonetheless subject to certain licensing conditions and the need to obtain ‘appropriate consent’ as defined by the Act.

To some it will seem strange that what is putatively the most meritorious purpose behind commercial dealings in organs—the preservation of human life—is the target of the most uncompromising prohibition. Indeed, identifying the strong reasons tending in favour of lifting the ban on the sale of organs for transplantation is probably the most straightforward part of any discussion on the matter. Every year in the UK, around 1000 patients on the organ transplant waiting list die before an organ can be secured for them. The sheer gap in supply and demand, which clearly cannot be filled by organ donations alone, (unless and until, perhaps, a system of ‘presumed consent’ to cadaveric donation is introduced), inevitably results in a great number of premature deaths, otherwise eminently preventable by a life-saving transplant operation.

Allowing for the outright sale of organs from living donors is one obvious and effective way of tackling this shortage. I should, though, make clear from the outset that organ-selling is only seriously considered in relation to organs which vendors can live without, or more typically, live with only one of. The main arena for academic debate has surrounded the marketability of kidneys, which I will be using as the central example in the argument to come. To my knowledge, no proponent of a permissive policy on organ sales goes so far as to suggest a system which would enable living donors to sell their hearts or livers, thereby committing suicide. Thus we can grant that the kind of policy envisaged really is in the interests of saving lives.i

Understanding why there might be cause to decriminalise the sale of organs for transplantation is then, as I say, the easy part. The more complex features of the debate are the suggested reasons why the legal prohibition ought to remain in force. Why is there continuing objection to a free market in human organs if lives could be saved this way? The protest position can be understood in terms of two broad avenues of objection: what I label the ‘philosophical’ objection, and the ‘policy’ objection. The philosophical objection comes in a number of forms, but roughly speaking, it is the idea that there are some things which simply ought not to be for sale, whatever the surrounding circumstances. It may be argued that such things have a special, intrinsic value, as people themselves do, and that making them saleable manifests disrespect for the intrinsic value of one or the other (the commodity or the person). Sometimes the objection is couched in terms of ‘human dignity’, the concern being that the sale of an organ compromises the vendor's dignity in much the same way that prostitution is often thought to compromise the dignity of the sex worker.

What I am calling the ‘policy’ objection is of a very different nature. Broadly speaking, it says that there are unpalatable consequences to permitting organ sales—consequences that are too unacceptable to be countenanced, even notwithstanding the benefits that a permissive policy might bring. Chiefly, the worry is that such a policy will lead to the out and out exploitation of the economically desperate who feel that they cannot afford not to sell their organs, and ultimately, an even wider gap between the very affluent and very destitute members of society. The policy objection is markedly different from the philosophical one, in that it does not hold that there is anything inherently wrong with selling one's organs, but only that allowing the practice to go on will facilitate the kind of political injustices which we ought not to accept.

In what follows here, I wish to take a closer look at the arguments constituting the policy objection, which, it is probably true to say, is typically found to be the more convincing. This said, my particular use of the terms ‘policy’ and ‘philosophy’ ought not to be taken too literally, or to mean that the two sources of objection are sealed off from one another. Inasmuch as the policy problem is, at root, a matter of political justice and fairness, it is also, in a clear sense, a philosophical issue.

Exploitation and the ‘double bind’

In a nutshell, the policy objection is that rich people ought not to be able to take advantage of their poorer neighbours to the point of buying them out of their organs. Invariably, it is claimed, any market in human organs will be structured with poor people on the supplying end and richer people on the receiving. Since rational people would only sell an organ in circumstances of severe economic desperation, it is suggested that the practice would amount to straightforward advantage taking of the organ vendors. The possibility or even likelihood of health problems associated with organ-vending only bolsters the notion that a market in organs would trade on the exploitation of the poor, to their serious detriment.

The problem of exploitation in this context is often referred to as an issue of ‘defective consent’ on the part of the vendor, whose poverty and desperation precludes him from making a ‘truly autonomous’ choice to exchange his organ for money. However, understanding the concern as one which hinges on consent can obscure exactly what is meant to be problematic in the picture laid out above. It is perfectly possible to imagine that a person who sells his kidney in order to alleviate his poverty consents to the sale in the fullest sense, in that he is well informed of all of the options available to him, the consequences of selling his kidney and of not selling, and in all of the circumstances decisively determines that selling is the best option available to him. Indeed, if the threshold of consent imagined in this context required the vendor's ideal or at least sound socio-economic standing, then it would be difficult to imagine even a hypothetical instance of such genuine consent, for anyone who sold his kidney in such circumstances would surely be acting extremely imprudently, if not altogether irrationally.

As I said though, the real concern does not turn on consent as such, but rather, on the claim that consensual or not, the kind of trading entailed by a living donor market in organs will almost always play on the natural disadvantages of the poor. The situation of the kidney-seller in the imaginary example continues to be deeply disconcerting, not because we are unsure of whether he consented, but because we are certain that he never would have consented but for his poverty.

Now, one should of course always respond cautiously to the argument that because a practice is difficult to regulate so as to avoid bad consequences it should, for this reason, remain illegal. I do not, however, think that this quite reflects the character of the policy objection. The concern is not merely that it would be difficult to regulate the market so as to avoid exploitation, but that the practice will inevitably be an unjust one which takes advantage of the economically desperate. Indeed, the market may even need to rely on such exploitation for its very existence.

As critics of the policy objection are quick to point out though, there is a significant complicating factor surrounding the alleged exploitative dimension of organ sales, which begins to surface in my remarks about consent. This is what the philosopher Margaret Radin, in a wider context, terms ‘the double bind’.1 Radin's account of the double bind is not directed at the commodification of organs in particular, but at other questionable commodities such as sex or the use of women's reproductive systems for surrogacy. However, the double bind problem also captures what is potentially problematic about an outright ban on organ sales on the ground that the market would be exploitative. Where a person's poverty is so severe that it compels him to sell an organ, it may merely add insult to injury to then prevent him from improving his situation by selling one. Whatever unfortunate situation he is in has certainly been deemed by him to be even worse than being without, say, one of his kidneys. Therefore, the argument goes, if the state will not or cannot intervene to better his situation, it should at the very least not obstruct him from helping himself however he is best able to do so.

The same argument is often used to tackle the exploitation objection with regards to prostitution. It very well would be a far better world where no one is so badly off that selling an organ, or their bodies for sex, is the most preferable course of action. However, unless and until such people are extricated wholesale from their undesirable circumstances, the law ought not to make things harder for them by forcing them to remain in what they regard to be an even worse situation than that of having to sell their bodies. As one interdisciplinary group concluded: [W]e cannot improve matters by removing the best option that poverty has left…If the rich are free to engage in dangerous sports for pleasure, or dangerous jobs for high pay, it is difficult to see why the poor who take the lesser risk of kidney selling for greater rewards – perhaps saving relatives’ lives, or extricating themselves from poverty and debt – should be thought so misguided as to need saving from themselves.2

For discussants who reason this way, all that is left to concern us about organ sales is ensuring that the vendors are offered a fair price and are reliably paid, both of which can be best achieved by legal regulation.

The limits of double bind reasoning

Does the problem of the double bind therefore conclusively settle the question in favour of legalisation? It is somewhat surprising that many of those who point to double bind complications believe that they firmly resolve the matter, rather than merely alerting us that there is yet more thinking to do. Crucially, it cannot be taken as granted that organ selling is realistically likely to improve the poverty-stricken conditions of the vendor in most (or any) cases—notwithstanding his perception that it will—let alone fully ‘extricate’ him from poverty and debt (and more will be said on this presently).

Interestingly, Radin herself does not take the ‘double bind’ problem to resolve the question in favour of complete commodification in any of her exemplar contexts, including prostitution. Rather, it only gives rise to the special question of how to govern a potentially harmful class of commodities in non-ideal circumstances where there is yet no welfare-based substitute to close the poverty gap that the sale of such items is intended to fill. Though justice may demand that we change the circumstances which create the double bind, in the interim, we must choose a regime which best accommodates people in the non-ideal circumstances. Significantly though, choosing the most suitable regime is a complex and multi-faceted reasoning process, and does not lead automatically to the necessity of maintaining or introducing a free market. What is the best policy to follow in such non-ideal circumstances will depend on a number of factors: the burden of exploitation on sellers, the burden that a market prohibition places on would-be sellers, and the overall effect of legalisation on the exploited community's condition of oppression.

These initial points to one side, there is separate reason to regard the structure of the double bind argument (as it is advanced by those in favour of a legal market in organs) with considerable caution. This is because it replicates, in no small part, the kind of arguments used to defend a variety of other, clear kinds of exploitative practices—for one, the practice by large and wealthy multi-national corporations of paying their employees a barely liveable wage, confident in the knowledge that no better offer stands waiting for them. Here too, one can reason that the exploited party is still marginally better off than he would have been otherwise. Without the opportunity to work, even for very little, the employee may find himself starving instead of just shy of starving, so that it is accurate to say that accepting the terrible terms of his employment entails the betterment of his situation. That the argument at hand can be used to condone this as well as many other forms of blatant exploitation should make us instantly suspicious of its deployment in the present context.

Someone may try to dispel the analogy here by replying that we do indeed have reason to ensure a fair price for living donor organs, just as we have reason to secure a fair price for a worker's labour. However, the premise of the double bind argument presented above is not that the organ seller can receive a decent price for his part (which is, arguably, perfectly compatible with his being exploited), but that so long as we can point to any improvement of his circumstances attaching to the sale, the exploitation protest is impotent. Clearly though, for this minimum condition to hold, there is no requirement of a minimum organ price (or minimum working wage); anything which improves upon the person's poverty will meet the condition—hence the justification extends out to other, more typical instances of advantage-taking.

A related difficulty with the double bind argument is that it seems either to define exploitation out of existence or to suggest that it is simply never a bad thing. Is the suggestion that exploitation can never take place so long as the ‘exploited’ party is left marginally better off by the transaction? If so, then we may be hard pushed to find any modern instances of exploitation, since those who allow themselves to be exploited tend to be acting rationally—that is, they accept their hard deal only because it renders them slightly better off, at least in the short term. Alternatively, are such proponents claiming that exploitation is simply never an illegitimate affair, and that it never ought to be combated, because the exploited party is always benefited to some degree?

There may be some who are willing to defend the position that there is really no such thing as exploitation, or that if there is, it ought not to be combated, or certainly not always. For many though, these will strike as untenable conclusions, and good indications that our reasoning has somehow taken a wrong turn. Discovering precisely where we have gone wrong is more or less tantamount to asking: why tackle exploitation in any of its instantiations?

Perhaps what has been missed are the ways in which permitting people to make a certain choice which leaves them marginally better off in the short term may in fact only perpetuate the deeply unsatisfactory conditions within which that choice is the best available option. For instance, enabling someone to compromise his health by selling an organ might only prolong his long-term poverty (say, by hindering him from working) in such a way as to render it desirable or necessary for him to sell another organ, or for a member of his family to do so. (This kind of scenario, far from being fanciful, is an entirely plausible consequence of the roaring trade in kidneys in some parts of the world). We can also imagine why, on the grander scale of social equality, the less advantaged segments of society might not improve their collective situation by possessing significantly less organs between them, a mass deprivation which long term, may only widen the privilege gap. Of course, understanding the policy implications of a living donor organ trade ought not to be left up to our imaginations alone. But when it comes, at least, to the health and economic consequences of kidney-selling where it is currently rife, very little imagination is required.

A 2001 study conducted by Dr Goyal et al3 and published in the Journal of the American Medical Association surveyed 305 paid kidney ‘donors’ in the Indian city Chennai (formerly Madras) where kidney-selling, though formally prohibited by law, remains prolific and unofficially condoned due to a loophole in the legislation. Of those surveyed, almost everyone (96%) had sold their organ to pay off debts. Nevertheless, it was found that after the nephrectomy the average family income declined by one third, and the number of participants living below the poverty line increased. Seventy-four per cent of the participants were still in debt 6 years after their operation, and 86% reported deterioration in their health status post their operation. The symptoms included persistent pain at the nephrectomy site (50%) and long term back pain (33%). 79% of the participants stated that they would not recommend to others in a similar situation that they sell their kidney. The overall conclusions of the study were that ‘selling a kidney does not lead to a long term economic benefit and can be associated with a decline in health’.

Commenting on the research, D. Rothman remarks that the findings are in-keeping with what good sense would suggest, and that the idea that kidney selling would promote upward mobility for the poor was always ‘fanciful’.4 In any given context, however, the reasoning behind the ‘double bind’ libertarian argument depends crucially upon this fanciful notion being a reality. The broad conclusions of Goyal et al were also consistent with an earlier study conducted by Lawrence Cohen, whose research in the so-called ‘kidney belt’ of India (rural Tamil Nadu and Chennai) drew the conclusions that for most vendors, selling their kidney was ‘less to do with raising cash towards some current or future goal, than with paying off high interest debt to local moneylenders’ and that those surveyed were frequently back in debt within a few years.5 Far, then, from being the win-win situation which some supporters of an open market describe, the picture of organ selling which such studies illustrate is, in Rothman's words: …a zero-sum game in which any advantage to one participant necessarily leads to disadvantage to one or more of the others. The organ recipient is the only one who stands a chance for gain.

Nor are such findings concerning the health and economic consequences of kidney selling restricted to the selling racket in India. Another 2001 study of kidney vendors in Iran, where the practice is fully legalised, followed the participants from 6 to 132 months after their operation. 60% of the participants reported negative effects on their physical abilities, most such participants being unskilled labourers.6 Vending caused negative effects on employment in 65%, in some part stemming from postoperative depression, anxiety over losing the kidney, and fear of doing damage to themselves through certain forms of employment. 38% lost their jobs entirely due to postop pain and consequent time off work. As the report concluded, ‘the majority of vendors stated that what they obtained from vending did not compensate them for what they had lost’, and they had not, thereby, worked their way out of poverty and debt.

Another way of understanding the harm of exploitation in relation to a market in organs is aptly explained by Simon Rippon, in his contribution to this issue, as being the harm of placing would-be vendors in a strategically worse bargaining position whereby choosing not to sell has more dire implications than if no thriving market existed to begin with. Rippon's argument requires no elaboration by me, but, by way of addressing any scepticism about its plausibility, it is useful to point to certain echoes of it emerging in some of the findings cited here. Cohen, for instance, hypothesised from his data that as certain geographic regions in India became more widely known as a hotbed for kidney brokering, creditors in that region simultaneously became more aggressive in calling in their debts. The evidence suggested that the ease with which borrowers could now sell their kidneys corresponded to their organs being treated as tantamount to collateral as against their unpaid loan, spurring pressure to sell them in order to pay it back. Likewise, in Zargooshi's study of Iranian kidney vendors, it was found that in some cases the participants had borrowed money from members of their own family (usually brothers), who had then pressured them to sell their kidneys in order to pay off the debt. Even without these anecdotal examples, there is a clear logical compellingness to Rippon's thesis that a thriving market in organs might well alter the bargaining terms for the very poor, with the result that it may be far more difficult for them to resist selling, in conditions where the ability to sell does not materially enhance their situation.

Some objections

By now I hope at least to have demonstrated that the considerations surrounding the policy objection to a living donor market in organs are more multifarious than some accounts might suggest. Nonetheless, the cautionary thrust of my preceding points is likely to generate some quick rejoinders, some of which I now want to address.

A regulated market

To start with, it will likely be retorted that the features of the kidney trade in developing countries such as India are unhelpful barometers for assessing the likely consequences of a fully regulated and limited market in living donor organs in a country like the UK. Surely we can be confident that the kind of trading system envisaged for this country would impose far stricter safeguards, including a fair pricing system, assurance of reliable payment, follow-up on the health of paid, living donors and healthcare support, and perhaps even a set of criteria to be met by the candidate vendors, so as to ensure that no one's destitution is being taken advantage of. In a well-known contribution to the debate, Charles Erin and John Harris proposed a ‘single purchaser system’ for trade in organs, whereby only one legally sanctioned purchaser (an agency like the National Health Service) would buy all organs on the market and distribute them according to medical priority.7 There would be no direct sales or purchases, no purchasing organs from low income countries (like India), and the agency would ensure that all vendors in the marketplace were decently compensated.

Regarding the single purchaser proposal in particular, it is questionable as to whether it truly heads off the exploitative potential of a market in living donor organs. On the one hand, the system would seem to entail that everyone, rich or poor, has an equal chance of receiving an organ, since the single purchaser agent would distribute on the basis of need alone. However, the organ vendors themselves would still be self-selecting, and quite naturally, will self select on the basis of poverty and desperation. Hence, it will remain the case, whoever benefits from the organs, that it will be largely (if not wholly) poor people selling them. Furthermore, it is no answer to this imbalance to say that the conventional pool of organ vendors will benefit every bit as much from the single purchaser system as their wealthier neighbours, simply because they may now stand a better and equal chance of receiving an organ, should they ever need one. For people on or beneath the poverty line, their chances of needing to sell an organ (or believing that they need to) will arguably be far higher than their chances of needing to receive one from the single purchaser, meaning that the distribution of benefits and burdens across the privileged and the poor is not even. Given that the pool of organs will still draw entirely from the latter, the flow of organ traffic will still run from the less to the more advantaged.

In addition to this, the single purchaser system would do nothing to combat another logical corollary of a free market in organs, this being an added incentive on behalf of the wealthier community to maintain the supply of organs by keeping the conventional source of sellers from improving on their socio-economic status. Indeed, it was a further finding of Cohen's study in Chennai that the relatives of a patient who needed a kidney would now ask themselves why they should assume the risks of donating when they could simply go out and buy one. As Rothman puts it, ‘a market in organs stimulates a market in organs’.

When it comes to the usefulness of research into the kidney trade in countries such as India it is, of course, important to keep in mind a realistic picture of what a regulated UK system would look like. Yet to this end, it should be stressed that the problems of advantage taking which I have underscored in the Indian context are not primarily matters of reliable payment or arbitrary pricing (though for many this is, naturally, a related problem). The main issue is that there is no material improvement to the vendors’ conditions even where full payment is reliably made. Unless, then, what is envisioned in a regulated system involves truly transformative sums of compensation (which clearly it does not), there is no reason to think that this persistent feature would not be replicated. And it is a reasonable assumption to make that anyone desperate enough to sell his kidney is not in a position to invest the proceeds in such a way as to make them, eventually, transformative. In other words, there is nothing in the notion of a well-regulated, fairly priced UK market which casts the common Indian story of the urgent sell to pay off debts which only continue to accrue in a parochial light.

Conversely, if the suggestion is that we ought to require vendors to meet a minimum threshold of wealth, so that their organs are traded not out of desperation, but, for example, in order to acquire luxury items (say, a new car, a games console or a holiday), then although such transactions may strike as less exploitative, the market supply would amount to virtually nil, so few people being irrational enough to make such exchanges. Needless to say, I do not think that any such limitation is seriously considered by the supporters of a living donor market. Even if it was plausible to believe that an open market in organs would generate supply from at least some living donors who are not ‘economically desperate’, and who are willing to part with their organ to fulfil more trivial desires, the issue of exploitation is not taken firmly off the table. It is a matter of serious doubt that a person who trades his kidney for a car or an engagement ring is not being exploited by a market which enables him to do so, given the extreme imprudence of his actions, an imprudence which is capitalised on for the health of the market. I am of course assuming that it is almost always a seriously imprudent transaction to trade one's organ for relatively trivial gains. Still, so long as it is believed that a market in organs will be overwhelmingly supplied by the least well off in society, the exploitation objection does not need to concern itself much with the possibility of organ selling by the moderately well off.

It might be conceded that the decline in health associated with nephrectomy in India is unlikely to be replicated to the same extent under a UK system, where the quality of healthcare is markedly better. Still, each altruistic donation in the UK carries the usual risks of an operation, postoperative pain and discomfort (enough to require strong painkillers), risk of infection (among other risks) and an average stay of 4–10 days in hospital.8 The psychological impact of losing the ‘insurance’ of one's second kidney, evidenced in Zargooshi's study, might also be ineliminable through follow-up care. To impose even such discomforts as these on vendors who will not be meaningfully benefited is difficult to justify indeed.

Black markets

What of the claim that even if we refuse to allow for a legally regulated market in some organs, black markets will continue to thrive nonetheless in circumstances far less favourable to the vendors, and that against this background, it is preferable to introduce a system with at least some safeguards, rather than force vendors to resort to illegitimate markets and their sub-optimal conditions? Of course, issues of counter-productivity of regulation and black markets arise in a number of comparable contexts (prostitution and drug abuse being other good examples), and as with all such contexts, just how convincing the argument is will depend on a host of factors. How effectively can the black market be stamped out? Is there wider all-round scope for exploitation and harm under the legal regime than there is under the legal prohibition in conjunction with the black market (if the black market is relatively difficult to find or tap into, this could plausibly be the case)? What is important to remember here is simply that the devil will be in the detail; it is not inevitably the case that more harm and exploitation will feed through a black market than through a legally regulated regime.

Nevertheless, some may be quick to point out that the hugely exploitative organ trade in certain areas of India is at least one strong example of an effective and damaging black market, operating contrary to a formal legal prohibition which has done little or nothing to stay the tide of illegal trade. However, far from being a case in point for those convinced by the black markets argument, the Indian example is a good illustration of where the legal prohibition is simply not seriously meant or enforced. As some investigations have brought out, it is only through the covert complicity of local governments and hospitals that the kidney markets in places such as Chennai and Bangalore are able to operate so effectively.9 Notwithstanding the legal prohibition, the policy line in such areas is for the relevant authorities to turn a blind eye to the practice, continuing to rubberstamp and partake in transplantations which are patently the result of commercial dealings. Dr M.K. Mani, Chief Nephrologist at the Apollo Hospitals in Chennai (where most transplantation in the region is carried out) describes the situation this way: The stalwarts of the unrelated live donor programme continue to do as many transplants as they did before the Legislative Assembly of Tamil Nadu adopted the Act [prohibiting purely commercial transplantations]. What is more, they do them with the seal of approval of the Authorisation Committee, and are therefore a very satisfied lot. The law, which was meant to prohibit commercial dealings in human organs, now provides protection for those very commercial dealings.10

As Dr Mani's remarks evidence, the trouble in Tamil Nadu is not straightforwardly the trouble of a thriving black market, unstoppable by government forces. Rather, that government behaviour significantly consolidates and props up the illegal trade only serves to show that India is not a good test case for assessing the impact of a properly enforced prohibition on a black market in kidneys.9–11

Risky jobs and dangerous sports

Finally, there is the ubiquitous claim that taking issue with organ selling on grounds of exploitation frankly ignores the fact that the same basic objection applies with equal force to many other, more widespread, practices, which we do not similarly regard as impermissible for that reason. Many people work extremely dangerous jobs out of necessity or for high pay, or submit to the use of their labour for very scant remuneration. Given the vast and multifarious ways in which we already allow poverty to be taken advantage of, the challenge placed is as to why organ selling is any different. Moreover, as the aforementioned interdisciplinary group reasoned, ‘if the rich are free to engage in dangerous sports for pleasure’, then why miserly restrict the poor from donating their organs for money? Surely this would be none other than an arbitrary wielding of the paternalist wand.

This line of argumentation can be met with more than one answer. First, the respondent might readily grant that organ sales are not fundamentally different from any of these other forms of exploitation, yet attest that it is not acceptable for any such practices to carry on, and that organ selling is merely no exception. I do not think that this would commit the respondent to too much, given that the injustice of comparably exploitative practices is plain for many people to see. Alternatively, it may be argued that although no exploitative practice is justified, organ selling is quite simply one of the more extreme cases, so that it falls more clearly within the bracket of exploitative behaviour which is serious enough to invoke the coercive power of the law (slavery and child labour being clear examples of other practices in that category). The permanency of losing one's organ, the invasiveness of surgery, the particular health repercussions and psychological impact on the vendor may lead one to the conclusion this form of exploitation is especially objectionable.

The analogy with rich people playing dangerous sports for pleasure is not a strong one, since the scenario there entails no hint of advantage taking whatsoever. Rich people are not motivated by difficult circumstances to take part in dangerous sports, which are purely an exercise in pleasure, not a perceived necessary evil. A stronger analogy, and more challenging for the prohibitive stance, is with risky forms of employment which put the worker in more than negligible danger. Of course, whether exploitation is truly taking place will always come down to the options, or perceived options, of the ‘exploited’ party. Many people accept risky forms of employment not out of true economic duress, but because they favour the employment above other possibilities, or are willing to accept greater risks for a bigger wage packet. Where these are the circumstances, they are not exploitative, or certainly not exploitative to the same degree that organ markets can be.

Clearly though, serious poverty is often an inducement for people to accept risks in employment which they otherwise would not. It might be argued that there is yet a morally significant difference, in that although there may be a risk involved, there is every chance that the risk will not materialise. In contrast, poor people who sell their organs do not just take a risk—they incur a certain loss, a loss which they only deem justified on the pretext that it will do something that in reality it does not: help alleviate their poverty. Other than this, we can simply agree that where a job is unacceptably dangerous and worked out of economic desperation, the employment is exploitative enough to warrant prohibition. When 18 foreign cockle pickers were drowned by tides on the east coast of England in 2004, moral condemnation of the employment practice was widespread.12

Conclusion

If there was any reason to believe that organ sales really could extricate people from poverty and debt, the legalisation argument would certainly have more clout. Still, it is not a necessary implication of its failure that every financial stimulus towards organ donation will be problematic on grounds of exploitation. For instance, the suggested ‘future markets’ in organs—whereby donors are compensated for agreeing to donate posthumously—or the use of compensation to secure familial consent to cadaveric donation are two quasi-commercial alternatives which, certainly on their face do not seem to carry the same potential for harmful advantage taking.

As far as the living donor market is concerned, the double bind argument is useful in reminding us of something: that what is the best policy to follow in ideal conditions might not be the best policy in non-ideal ones. However, even in non-ideal conditions, settling on the correct approach requires a serious consideration of the implications of organ sales on vendors, and of what may only worsen an already bleak state of affairs.

References

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Footnotes

  • i It may be important to acknowledge that living donors do often donate portions of their livers, lungs or intestines, partial liver donation being a riskier procedure than kidney donation and that the marketisation of organ donation would possibly extend to these forms of donation as well. This, naturally, is still a far cry from the donation of entire vital organs, and we can still proceed on the premise that those in favour of a market in organs do not generally envisage the selling of organs from living donors in circumstances that will invariably lead to their death.

  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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