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In my recent article in the Journal of Medical Ethics, I attacked the Laissez Choisir (LC) Argument in defence of letting individuals choose whether to sell kidneys or other organs as living donors, and I argued that such transactions should generally remain prohibited.1 The LC Argument arises as a response to a prohibitionist claim that I endorse: organ sales should be banned to protect potential poverty-stricken vendors, even if a free market could provide great benefits to potential organ recipients. The LC Argument says that this is misplaced paternalism, since banning the market only takes away from willing vendors what they must regard as their best option, thereby (allegedly) leaving them even worse off, at least as they see things. My refutation of the LC Argument pointed out, on the contrary, that giving some people the option to sell their organs may harm them in ways they would reasonably prefer not to be harmed—even though they would reasonably prefer to take the option once it is presented. The upshot is that many potentially willing organ vendors might themselves reasonably prefer prohibition. I argued that the harms of a live donor organ market to this group would in fact be significant and unavoidable, and that it would be morally impermissible to impose these harms. And I suggested that this argument for prohibition best explicates an inchoate but widely shared moral concern about the exploitative nature of live donor organ trading.
I thank Gerald Dworkin, Janet Radcliffe Richards and Adrian Walsh for their engaging and often insightful commentaries.2–4 I agree with a lot, but I will focus on some points of disagreement here. Walsh detects an ‘air of paradox’ in my thesis, then goes on to outline some difficulties that, he explains, ‘would not have arisen if Rippon had avoided claiming that those who are forced to sell their organs regard the existence of such a market option as making them “better off”. In fact, the difficulties Walsh outlines have not arisen, because I did not make the claim he attributed to me. My claim was that once the option exists for them, vendors under social pressure may rightly then regard taking the option as making them better off than refusing to take it would. But they might rightly think that the harm has already been done to them by that point, and they might inevitably end up worse off than they would have been without the option available. I wish I had been yet clearer about this, because the point is central. But as I wrote previously, ‘It could well be the case that people in poverty would be worst off if they have the option of selling their organs and do not take it, better off if they have the option of selling their organs and take it, and best off if they lack the option altogether’.
It is possible, then, that introducing a market for organs would harm people in poverty, indeed that it would harm them impermissibly, by imposing an unwelcome option. But is it likely? Dworkin and Radcliffe Richards each express doubts about the necessity of a connection between the introduction of a market and the imposition of significant harms on people in poverty. Dworkin even doubts the existence of the ‘speculative harms’ I adduce, which I locate in the intrinsic harmfulness of being put under pressure to submit to physical intrusions on our bodies and to accept significant and unfairly allocated risks. I am puzzled by Dworkin's statement that I present ‘no evidence about social or legal pressures’ in my earlier article, given my references to studies of the kidney market in Chennai. Is not the fact that 96% of sellers sold their kidneys ‘to pay off debts’ evidence of social or legal pressure to sell?5 When, according to an anthropologist's assessment, ‘the decision to sell may be set for debtors by their lenders’ who more aggressively chase debts in kidney selling zones, is this not evidence of social or legal pressure to sell?6 Perhaps Dworkin's intended objection is rather that I present no evidence that some hypothetical, western, well-regulated organ market would put anyone in poverty under social or legal pressure to sell. This accords with his contention that the purported harms would be preventable by regulation, and also relates to Radcliffe Richards' objection that my argument ‘depends heavily on the facts, and facts change … [and] can be changed,’ and her urging that, ‘[Blanket] prohibition should, at best, be regarded as provisional.’
I anticipated this type of objection when discussing whether regulations on a market could avert the harm, but the commentators have overlooked that part of my argument, so I will restate it here. My point was this: as a matter of empirical fact, people who are not financially desperate generally do not want to become living organ vendors. Few of us would consider selling a kidney to obtain frivolous luxuries. Therefore, social and legal pressure plays an essential role in motivating most vendors to participate in live donor markets. As a further matter of empirical fact, research has shown that commodifying things by setting a price for them tends to ‘crowd out’ altruistic motives for donating those things. So any successful introduction of a market must motivate a larger number of vendors than the altruistic donors it would crowd out. Market proponents are thus forced into a dilemma: they can choose between a weakly-regulated market that increases organ supply precisely by putting harmful pressure on people, or a well-regulated market that insulates everyone from pressure to sell, but ends up actually decreasing organ supply. (In this respect the question of legalising organ trading is importantly disanalogous to the question of legalising assisted suicide that Dworkin raises: strict regulations on assisted suicide to avert the possible harms need not drastically undermine the aim of legalising it.) Short of being able to change the facts about human psychology that make it the case that we generally only want to sell our organs if we are desperate, and that we are less inclined to altruistically donate what we think of as a commodity than what we perceive as a priceless gift, it is difficult to imagine how a live donor organ market could ever be effective without being impermissibly harmful.
Pace Radcliffe Richards, I advocate democratic participation, and accept that if the individuals at risk from a proposed policy reflect on the magnitude of the harm and decide that it is acceptable, the rest of us should listen. But Radcliffe Richards offers no evidence that those in poverty would willingly accept the harms I outlined. The fact that many drivers park illegally is not evidence that they want parking restrictions abolished. Similarly, her point that ‘huge numbers’ have participated in organ black markets is merely evidence that those people thought it best to take a black market option that was open to them, not that they wanted the legal option to be available to them (nor, for that matter, the black market one)!
Dworkin writes that ‘saving lives is more significant than harmful pressures’. If it were obvious that public policy should be run on a utilitarian basis then this point would, if true, be decisive. But many of us strongly believe that if we could achieve some benefit to A by imposing some harm on B, then the mere fact that the benefit to A would be (much) greater than the harm to B could not justify our imposing it. The fact that the harms and benefits of a policy would accrue to different individuals is morally relevant. On this view, we must ask not just how great the aggregate net benefits of an organ market would be, nor even whether some vendors would benefit, but rather: would anyone be impermissibly harmed? I think many people in poverty would be, and that better options for increasing the supply of organs are available.7
Competing interests None.
Provenance and peer review Commissioned; internally peer reviewed.
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