Article Text
Statistics from Altmetric.com
Simon Rippon believes that a certain argument is not sound.1 I agree. I do not agree with the role he assigns the argument in the debate about organ sales. Nor do I agree with the much stronger argument he puts forward that organ sales should be forbidden.
The argument he believes unsound, which I shall use his terminology to refer to as the Laissez-Choisir or LC argument, has three premises. The one be believes false says, “If we take away what some regard as their best option, we thereby make them worse off, at least from their own perspective”.
Applied to the case of a market for organs, this says that if we take away what the potential organ seller regards as his best option, that is, there being a market for his organs, we make him worse off as judged by him. The reason Rippon thinks this argument is false is that, as I have argued and have been cited by Rippon, adding an option can, in addition to merely adding a choice, have adverse effects on the agents, can harm the agent by his own lights. Thus, says Rippon, if the argument is unsound, then it does not follow that if we deny the agent the option to sell his organs, we must be acting paternalistically. The option we are taking away is one that the agent himself regards as harmful.
This is correct as far as it goes, but it might leave the reader thinking that the premise is never true. This would be to overlook the fact that even if the additional option imposes a harm, and with regard to that harm the agent prefers not to have the option, the agent might still prefer, all things considered, to have the option because he thinks the gains to him outweigh the additional harm created by having the option. If that were the case we would be acting paternalistically in denying the option.
Consider, for example, a society which did not allow parents to pass their money on to their children. A parent might recognise that if this were now allowed he would face issues of how to divide the money, this would created tensions between his children, and between his children and himself. He would prefer not to have such tensions, he regards them as harmful. Still, all things considered, he would prefer to have the option rather than, say, have to pass his money to the state. We might think he is wrong in his weighing of the various harms and benefits, but if we deny him his preferred option we are acting paternalistically.i
Still the premise is false—it is a conditional whose antecedent can be true, while its conclusion is false.
What role does the (unsound) argument play in the debate about organ markets? Rippon begins by claiming that it serves as a “prominent defence of a market in organs from living donors… if we truly care about people in poverty, we should allow them to sell their organs… [P]rohibiting them from selling makes them even worse off, at least from their own perspective, and… it would be unconscionably paternalistic to substitute our judgements for individuals' own judgments about what would be best for them”. But most of the defences of organ markets are consequentialist in nature. There are people dying because not enough organs are donated and allowing a market will increase the supply of available organs. Caring about poor people is not the aim of creating a market in organs. It would be like someone arguing that we ought to build more dangerous skyscrapers because we could help the poor by increasing their wages.
The LC argument defends organ markets, whatever their aim, on the grounds that opposing them is paternalistic. And Rippon's claim that the argument is not valid is a rebuttal to such a defence. It clears the way for an argument against organ markets but is not itself an argument against them.
Rippon addresses the ‘all things considered’ harm issue by asking whether “the harms at stake [are] significant enough to prohibit a market in live donor organs?”. His conclusion is that they are. To do so he must establish that there is a class of harms that (1) are likely to occur, (2) are significant enough to outweigh the enormous benefit of saving people's lives, and (3) cannot be mitigated sufficiently by intelligent regulation (consequentialist argument).ii
The harms he focuses on are those of moral and legal pressure to sell one's organs. Once there is a market for organs, then the organs will be thought of as part of the material resources available to one for economic advantage. There will be familiar social and legal pressures to sell when one has debts to satisfy.
What forms these pressures will take, how strong they will be and whether they can be mitigated are all complex empirical issues on which I have no expertise. But we already have formal markets in blood, tissues, sperm and eggs. And lest one think that the sums offered in these markets are trivial, it is not uncommon for infertile couples to make offers of US$50 000 for eggs that meet their specifications. Is there any evidence of the kinds of speculative harms adduced by Rippon—ineligibility for bankruptcy protection or for public assistance—in these markets?
We also have informal markets in organs—mostly in under-developed countries—and while Rippon notes there is evidence that those who sell their organs often do not get out of debt long-term, he presents no evidence about social or legal pressures.
Even if such pressures were likely to arise, and to be forceful in nature, there is still the question of whether regulations could mitigate them. Just as we require insurance companies not to use genetic information to refuse patients coverage, we can require that welfare agencies or bankruptcy courts not take possible organ sales into consideration. Family pressures are harder to regulate, although as Rippon notes the same pressures can arise under current law which allows donation. Here, however he is sanguine about the possibility of mitigating such pressures by having doctors write ambiguously formulated notes that some potential donor is ineligible. Perhaps we need to be more creative in finding ways of, basically, lying about those who do not want to sell their organs.
Ultimately our disagreement on this issue reflects different balancing of competing values. To use an analogy, many of the same arguments apply to legalising physician-assisted suicide. Those who are dying, and using up family resources, may be pressured into such suicide by family members. They may be looked upon as ‘selfish’ by society for using scarce resources. But, on the other side, if we keep assisted-suicide illegal, we prevent dying patients from ending their life sooner rather than later. I think the ability to determine the timing of your death is sufficiently important to expose those who do not wish to die sooner to pressures they will have to resist.
Similarly, I believe that greater access to organs necessary to continued life for many people justifies imposing risks of social pressures which, at the moment, we have little evidence will occur (or not) and have even less evidence are not preventable by regulation.
Thus I agree with Rippon that LC is not valid, that introducing markets can have costs. But those costs are uncertain compared to the known benefits, saving lives is more significant than avoiding harmful pressures, and many sellers will in fact be better off having the option even including its costs.
Reference
Footnotes
-
Competing interests None.
-
Provenance and peer review Commissioned; internally peer reviewed.
-
↵i It is, of course, a distinct claim that we act wrongly when we act paternalistically.
-
↵ii Interestingly, he does not consider an alternative route which is to show that establishing markets violates a right of the potential participants. Some have argued that blackmail—the offer to sell secrecy about one's past actions—is a violation of the right of the purchaser not to be offered such a transaction.
Linked Articles
- Feature article
- Commentary
- Commentary
- Commentary
- The concise argument
Other content recommended for you
- Imposing options on people in poverty: the harm of a live donor organ market
- A legal market in organs: the problem of exploitation
- Organ markets and harms: a reply to Dworkin, Radcliffe Richards and Walsh
- Choice, pressure and markets in kidneys
- Commentary on Simon Rippon, ‘Imposing options on people in poverty: the harm of a live donor organ market’
- An ethical market in human organs
- Commentary. An ethical market in human organs
- Methods and principles in biomedical ethics
- A “Queen of Hearts” trial of organ markets: why Scheper-Hughes’s objections to markets in human organs fail
- An ethically defensible market in organs