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- Philosophical Ethics
- Applied and Professional Ethics
- Donation/Procurement of Organs/Tissues
This is an excellent article, probably the best there is in defence of prohibiting the sale of organs, and it deserves a much fuller discussion of detail than there is space for here.1 My concerns, however, are with generalities rather than detail. Although some such argument might justify prohibition of organ selling in particular places and at particular times, it is difficult to see how it could support the kind of general, universal policy currently accepted by most advocates of prohibition.
Whenever the subject of organ selling is discussed, it is useful to keep in mind the natural history of the debate. Prohibition was instituted by most governments and professional bodies just about as quickly as possible after it was discovered that payment for kidneys was going on, and was a direct response to feelings of moral outrage. It all happened without time for debate. It was only later, as challenges appeared, that justifications began to be produced; and when they did they followed a pattern long familiar to philosophers, and more recently recognised by moral psychologists, of determined efforts to find a justification for the initial intuition that organ selling must be wrong. New arguments kept appearing in the cause as earlier attempts were shown to fail, and many were so weak that they could not have seemed plausible unless their advocates had already been committed to their conclusion. This does not mean, of course, that a good justification could never be produced. It does, however, suggest a widespread feeling that organ selling must be intrinsically wrong, and therefore a need for special care in assessing arguments that seem to support prohibition.
How, then, do these arguments fare? I argued a long time ago, as Rippon says, that a plausible case for prohibition would probably take this form: an argument based on the idea that there were some options it was better to be without, even though they would be taken if they were available.1 Individuals often decide to put temptations out of reach; groups decide that their members would be better off if some options were deliberately closed to all of them. When individuals and groups make these decisions for themselves there is no problem by anyone's standards. If, however, someone else imposes such a limitation of choice on you, for your own good, irrespective of your wishes on the matter, that imposition is paternalistic, and this is the case with the prohibition of organ selling. Perhaps many individuals and groups would prefer such a restriction (and if so, absolutely fine); but the almost universal prohibition of payment has been imposed on everyone irrespective of any consultation—and, furthermore, it has as a matter of fact, if not of principle, been imposed by the people with least temptation to engage in the practice (the rich and the healthy) on those with the most. So, although in principle prohibition need not be paternalistic in intent, in practice it is. Anyone justifying the present almost total prohibition, therefore, needs to justify the claim that it is on balance best to deny the option to everyone (in spite of the fact that there are certainly innumerable people for whom allowing it could provide great benefits), and the kind of paternalism that imposes it on other people without consulting them—even though nearly all the people concerned are competent by any ordinary standards. Perhaps many of them would make that choice, but they have not been asked.
On this subject, by the way, it is worth commenting on the rhetoric of ‘imposing options on the poor’. ‘Imposing’ implies the badness of their having the option and there being an imposer who made a deliberate choice to give that option—as in the imagined case of making patients choose their make of ambulance. But in fact matters were the other way round. The possibility of organ selling simply arose as a by-product of the new transferability of organs. Anything that can be given can also be sold, and people did choose, and still choose, to do it in droves. People's options are always shifting as the world changes, and we do not usually work on a presumption that new options should be blocked until we have checked whether they are beneficial. It would be totally impractical, even if theoretically desirable. If we ever get round to consulting the population at large about whether they would rather not have the option, and they agree, then anyone who tries to prevent prohibition may perhaps be said to be imposing options on them. At present the imposition is of prohibition, not options. That, of course, is irrelevant to the question of whether prohibition is a good thing, but rhetoric is important in moral debate.
Anyone considering whether to accept the line of argument offered in this article, then, needs to consider whether it is on balance better if everyone is deprived of the possibility of exchanging kidneys and money, and whether it is appropriate for the people least likely to be affected to impose it on those who are most affected without consulting them.
This point is related to another question about the scope of the conclusion that organ selling should be prohibited. Two quite different kinds of argument are familiarly used in defence of prohibition: arguments claiming that organ selling is wrong in principle and arguments claiming that prohibition is best all things considered, even though not morally required in itself. Rippon's argument for prohibition explicitly comes into the second category. But any argument of this kind depends heavily on the facts, and facts change. This means that even if a justification for prohibition along these lines—whether paternalistic or not—can be found for particular times and places, it is difficult to see how any such argument could be produced to justify prohibition at all possible times and in all possible places. That is what most opponents of organ selling seem to want. Rippon does not specifically say this, but he seems to conclude that a democratic decision should apply to everyone (not just the poor), and gives no reason for not allowing variations between societies.
And this leads to another point: facts not only change, they can be changed. Anyone whose argument depends, as this one does, on a balancing of pros and cons must recognise that a general ban does cause a great deal of harm. Even if at present those harms are outweighed by the benefits, there are many people, on both sides, who could genuinely be advantaged by being able to make a mutually beneficial transaction. There are also many people who would presumably prefer to have the legal option available, as is clear from the huge numbers who still brave the considerable dangers of the unregulated black market. Even if prohibition represents the best balance of good and bad we can think of at present, we should be actively and perpetually looking for ways to make things better. Prohibition should, at best, be regarded as provisional, until we can find ways to achieve the good of mutually beneficial exchanges without the harm.
Given these two points, it is hard to see how any argument based on a balancing of pros and cons can justify the universal ban on organ selling that most of its advocates want, and for which Rippon's arguments seem to be offering a potential defence.1 An argument of this form needs to specify its conclusion with care before it can be assessed. A conclusion of general scope is certainly not easy to defend without a direct judgement of moral wrongness, and some such intuition still seems, in practice, to be the driving force of this debate.
Competing interests None.
Provenance and peer review Commissioned; internally peer reviewed.