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US PROHIBITIONS ON 'ORGAN' S A L E ~ A PHILOSOPHICAL DIAGNOSIS
by
RAFFANA DONELSON
Julia A. Pedroni, Advisor
A thesis submitted in partial fulfillment
of the requirements for the
Degree of Bachelor of Arts with Honors
in Philosophy
WILLIAMS COLLEGE
Williamstown, Massachusetts
MAY 26, 2009
TABLE OF CONTENTS
ii
DEDICATION iii
EPICiRAPHS 1
CHAPTER 1 - The Preamble 2
CHAPTER 2 - The UAGA. 12
CHAPTER 3 - Opening Notes on NOTA 22
CHAPTER 4 - Exploitation 29
CHAPTER 5 - CommocMlcation 50
CHAPTER 6 - Conclusions 68
BIBLIOGRAPHy 78
ACKNOWLEDGEMENTS
Though my name is the one listed on the byline, so many people helped to realize this
project. First, I' dlikc to thank my family; Mom and Aunt Stephanie, Simon and
Sebastien too, you've been a great source of moral support.
I'd like to thank my extended family, that is, my good friends in Williamstown, in
McKeesport, in Mobile and beyond who have been compassionate when I needed some
TLC and have been understanding when I need hours to work undisturbed.
Thank you, Professor Joyce Foster, for that conversation which reduced my anxiety and
helped me to think clearly about what to do next.
Thank you to the tutors at the Writing Workshop; though many of you were practically
horrified by my "formal but conversational" tone (which I still defend on philosophical
grounds!), all of you who offered me comments were extremely helpful in enabling me to
write the best prose I could. The mistakes that remain in the text are wholly my own.
I like to thank the librarians at Sawyer Library for teaching me to research the things
which interest me most and for answering my myriad questions about thesis f01111atting.
I'd like to thank my professors in the Departments of Philosophy and of Political Science
at Williams College for their direct or indirect inf1uenee on this project. Three professors
merit special thanks for their help with this project.
Professor Melissa Barry, thank you for being a good second reader; I did not rely on you
as much as I should have, but I am, nonetheless, grateful for the feedback you provided.
Also, thank you for being a great instructor in your course innorInative ethical theory;
the lessons leamed have been invaluable to my intellectual development.
Professor .lana Sawicki, thank you, not only for acting as another second reader of my
work and giving me feedback, but also for introducing me to Michel Foucault whose
genealogical method I've found tremendously inspirationaL
Finally, I'd like to thank my thesis advisor, Professor Julia Pedroni. It was you who
introduced me to philosophy and particularly to applied ethics during my freshman fall at
Williams. It was in conversation with you two years ago that I stumbled upon the
paradox I explore in this thesis. I thank you for being a great mentor to me throughout
my undergraduate years, and I thank you, particularly, for the incredible amount of
energy you poured into helping me with this project. Most of all, thank you, Julie, for
offering your wisdom and friendship; I'll cherish these gifts forever.
II
DEDICATION
In Inemory of Carolyn Hollie. 1 would have given you a lung i f o n ~ y 1 could have.
111
"Let us speak out this new demand: we need a critique of moral values ... and for this
purpose a knowledge is necessary of the conditions and circumstances out of yvhich these
values grew, and under which they experienced their evolution and their distortion."
-Friedrich Nietzsche, The Genealogy a/Morals
"The materialist doctrine that men are products of circumstances and upbringing, and
that, therefore, changed men are products of changed circumstances and changed
upbringing, forgets that it is men who changed circumstances."
-Karl Marx, Theses on Feuerbach
"In direct contrast to Gernl<:U1 philosophy which descends from heaven to earth, here we
ascend from earth to heaven."
-Karl Marx, The German ldeologv
CIIAPTER 1: THE PREAMBLE
Reporter 1: Why are yOll running?
Rcpolicr 2: Arc you doing this for world peace?
Reporter 3: For the homeless?
Reporter 4: Are you running for women's rights?
Reporter 5: The environment?
Reporter 6: Why are you doing this?
Forrest: I just felt like nllming.
--from the film Forrest Gump 1
Premier Degre
In the film Forrest Gump, while the title character participates in many seminal
events of the latter half of the twentieth century, it appears that he does so unwittingly,
given his subpar mental capacities. Forrest seems to go about life on the prenlier degre,2
without taking critical distance from his experiences. For many, Fonest just lunges
ahead, just does, just runs, but he does not stop to ponder whether what he does holds (or
could hold) any greater significance beyond the act in question. One might even say that
his life is rather meaningless. Actually, this facile vision of Forrest is probably
mistaken,3 and further, I anticipate that, without this preamble, this same kind of
mistaken conjecture may haunt readers of the following text. We will return to this
conjecture later in the chapter.
But what, on thc premier degre, do I intcnd to do in this work? I am undcrtaking
an investigation of two paradoxes in American law conceming organ transplantation.
First, I want to know why the United States, as a liberal polity with stated and
demonstrated strong commitments to respecting the Iiberties of conscience and of
contract and to attempting to increase public welfare, has adopted a stance on organ
transplantation which, at least, seen/s to achieve neither set of ambitions. Without deeper
2
investigation, the current ban on selling organs seems paternalistic and appears to
exacerbate, if not cause, the current organ shortage. Secondly and almost secondarily, I
want to know why some transplantable parts of the human body are legally permitted for
sale while other transplantable human body parts are not. To clarify the questions that I
ask on this level, I want to know how particular people most directly involved with the
creation of public policy decided to make the cunent laws. r want to know which reasons
were openly marshaled in support of the present legislation and, also, when clearly
articulated reasons are missing, which reconstructed, plausible reasons could have been
given in support of the current legislation.
How does this investigation proceed? To answer this, 1will speak first in
metaphorical terms before shifting to more straightforward language because, 1think, the
combination of pm'lances will result in maximal reader comprehension. This inquiry is,
as the title mentions, a diagnosis, a deep probing that goes beyond a paltly litany of the
symptoms. Unlike most diagnoses, however, this thesis contains neither a prognosis nor
an appropriate prescription because these arc generally not the types of things one can
know, but instead, are things about which one can make guesses or have opinions. In
other words, I want to add to our current knowledge of how a set of moral commitments
congealed to form the laws that currently govern the practice of organ transplantation in
the United States. It is obvious---and obviously not the job of the philosopher to
determine-which laws were passed at which time to create the current legal regime
regarding this arena. To state these things would be merely to list the symptoms. Of
course, knowing the symptoms is essential for making the diagnosis, which why much of
3
this thesis will appear historical or sociological, but rest assured, the details are important
to the conceptual claims advanced.
I will contend that the law, as it currently stands, is riddled with inconsistencies
and instances of arbitrariness, but my diagnosis, as mentioned, does not include a
prognosis or a prescription. Unlike certain social theorists who confidently proclaim
what changes must occur because of the inconsistencies of cont1ieting interests or of
normative commitments, I do not knovv (and will not pretend to know) what will happen
next. I might have guesses, but guesswork is not philosophy; guessing belongs in the
province of bookies, stockbrokers, and certain other economists. There are factors that
determine what will next occur, but there are too many factors to take in account, and the
probability of each determining factor (of a perhaps infinite list) happening is unknown
and probably unknowable. Refusing to provide probabilistic projections of what will
occur is perhaps not too uncommon among a great number of social theorists, but many,
at least, tell us what should occur. This, too, I withhold. Int1ueneed by Bernard
Williams' critique of extemal reasons,4 Tdo not believe that one can, on philosophical
grounds, hold the law to any standards besides consistency. Further, I think that the law,
on the specific issues with which this thesis will deal, holds the potential for several
consistent positions about organ sale.
I plan to analyze a law, show that it contains inconsistencies, and then prescnt a
few ways to achieve a more consistent legal framework. To those for whom that project
is philosophically satisfying, skip the next section of this chapter, prepare to scrutinize
my analysis of the laws in question, and ignore my not-uncontroversialmoral relativism
(which Tdo not have space to defend here). For those who question the philosophical
4
significance of declaring a law or set of laws inconsistent without advocating for a better
system, the next section, which provides a preliminary elucidation of the philosophical
project I envision, might help to allay these worries.
Deuxieme (ou Troisieme) Degre
At thc outsct of this chaptcr I alludcd to Forrest GunljJ, claiming that while somc
may view the title character as a lucky "running fool" who lives without critical
engagement with his own aetions, I see things differently, and also above, I anticipated
that readers of the following text could likewise wonder whether there is greater
significance to my work. Some might say that my project of showing inconsistencies in a
law is philosophically boring. "Of course, the laws are inconsistent," potential cynics
sneer, "because they are made by politicians, not intellectuals!" Other commentators
might allcgc, "That lcgal framcworks arc oftcn inconsistent seems obvious and,
furthel1nore, scems not a proper concern of philosophers anyway." "Supposing that you
prove some laws about organ transplantation are inconsistent and arbitrary," other critics
continue, "you refuse even to argue for the right way to reshape the law; this is not even
applied ethics." What is it that this project hopes to accomplish in a larger sense'? In this
section, I hope to explain the interest I have in appraising systems of law and why this
should begin to dominate academic moral philosophy.
In terms of objectivity and truth, moral claims have a very similar status to that
which most of us accord to judgments about whether Miami or Milan is a better vacation
destination, but moral claims are more important to most people and for good reason.
The moral opinions of people shape the world that we inhabit, and when others transgress
5
our moral principles this can bring about heartache, desires for retaliation, or desires to
force others to submit to the moral tenets we espouse. When we transgress the moral
principles of others, there are often consequences; thus, it can be dangerous for
communities to have moral discord. Laws are institutionalized norms or standards born
from the moral opinions officially supported by a community and enforced by the
policing powers of that community. Unlike moral beliefs of individuals, which may be
unknown and may cany few consequences when transgressed, laws are supposed to be
known and are supposed to have consequences for lawbreakers. From this description, it
should be obvious why laws and the moral elainls that buttress them are not only more
important than debates about vacations but also why laws are (or should be) of paramount
importance to moral philosophers.
Personally, I am highly interested in examining how particular moral judgments
of communities (e.g. one may not sell one's own bone marrow to someone else for
transplantation purposes OR one may sell one's own blood plasma) arc f01111ed in light of
higher-level moral systems. r am also interested in compromise, especially as this takes
place in democratic lawmaking because members of communities often have extremely
different moral considerations, which must be welded together in order to create systems
of law. Finally, I find it extremely impoliant to study the laws to ensure that the
standards which govern and police us actually do what we suppose they do.
Speaking more globally, other moral philosophers, too, ought to care about the
norms that shape our world. With expertise in logical reasoning and in understanding the
varioLls influential schools of moral thinking, who is better qualified to bring aboLlt
understanding in the domain of morality and law than the moral philosopher? More
6
provocatively, not only is investigating the consistency of collections of moral claims a
goodjob for the acaden1ic moral philosopher (as opposed to the everyday moralist), but it
may also be her only avenue. Perhaps another destiny lies beyond the horizon, but first, J
will turn attention to what seems the most viable option for the moral philosopher.
As I indicated, academic moral philosophers should-in the sense that they would
be good at it-explicate and critique moral argumentation, particularly the kind found in
laws, using consistency as a primary criterion for appraisal. Consistency is a prerequisite
for a law or a system of laws to be intelligible and properly behavior-guiding. This may
seem like a minimal standard, but one must not discount the potential for consistency to
critique. We might plausibly believe consistency to be a weak standard when we imagine
building legal apparatuses from nothing; in that case, almost anything goes. In the real
world, however, full of polities with extensive and complex sets of laws, it is very hard to
introduce radically new legislation without demolishing other arenas of law, and thus,
achieving a consistent legal code acts as a firm check against various amalgamations of
principles.
In some ways, the consistency critique is primarily what moral philosophers
actually do when critiquing something on moral grounds. When the utilitarian presses
the deontologist on her commitment to non-maleficence by presenting the familiar
thought experiment in which the life of one person must be sacrificed in order to spare
the lives often thousand, the utilitarian is trying to make a charge of inconsistency. "Do
you rea1zv think the number of people that must die is inelevant? If you really cared
about the well-being of persons, you would relax these strictures about rights at times to
save more persons and to have more weII-being." Of course, if the deontologist bites the
7
bullet and retorts that respecting someone's rational agency is absolutely more important
than ensuring well-being; then, the conversation is over. In the cases when someone
claims to value x more than y and actually does value x more than y, philosophical
argument ends because logic alone cannot move the conversation fmiher. In the domain
of investigating the moral claims that buttress the law, philosophical argument is not
over; instead, there is much yet to do. Moral philosophers should detail exactly what is
inconsistent in the legal codes, trying to be as charitable as possible to ensure that a
verdict of inconsistency is meaningful as opposed to trivial or downright false.
Sometimes, only one consistent option remains after analysis of the laws, but often, there
are many different ways of reorganizing the law, and the moral philosophers should
explain this phenomenon.
As mentioned above, there is perhaps another option for the academic moral
philosopher, the destiny beyond the horizon, which, for me, means the introduction of
new moral theories and sponsorship of particular moral judgments. This, perhaps, is not
part of the job of the moral philosopher qua moral philosopher, but this is certainly the
job of everyone, as moralists of one stripe or another, as a function of their rationality. 5
Even if advocating for specific moral norms as the ones that should unconditionally guide
a community is likely to be extra-logical and, hence, probably not justified as an exercise
in academic philosophy, it seems that promoting particular moral norms can be pursued
under a different heading. This promotion may take various appearances (e.g. friendly
debate, an influential novel or film, a fascist regime); however, it may be that the more
congenial methods are but a glorified form of moral critique on the grounds of
inconsistency,
8
Spacc requires that I summarize and conclude the argument of this section at this
point. (, Thus far it has been 111aintained that, if one assumes moral relativism or a
thoroughgoing moral skepticism (which I have because I think the former is true), there is
still impOliant moral work to be done. Academic moral philosophers, as expelis on the
history of moral thought and in employing logic, should examine the moralized reasoning
that undergirds systems of law and perhaps other rules with the intent of explaining how
more coherent systems of norms might exist. AlJ of us, as moralists with varying degrees
of expertise, might try to influence n01111ative regimes to bring them into accord with our
moral opinions, but that task is either not philosophy or is a charge of inconsistency in the
guise of something else.
Layout
In thc spirit of any preamble, I hope to have cxplieatcd the underlying philosophy
and PUl1)OSC of thc procccding documcnt, now, I will describe thc structurc of thc thcsis.
Beyond this short chaptcr are three main parts: before, during, and after the National
Organ Transplant Act of 1984 (NOTA).
The first part, Chapter Two, concentrates on the time prior to the NOTA.
Through this chapter, I hope to show that, out of vast confusion and uncertainty about
how American ideals were to apply to this relatively new domain of transplantation,
emerged a set of laws designed to eliminate legal confusion and to appease a number of
moral concems in a pragmatic fashion that seems uniquely American. More specificalJy,
Chapter Two first sketches the profound confusion that characterized the beginnings of
the transplant age then focuses on the new set of uniform state laws, distinguishing these
9
from contemporaneous laws in the rest of the Westem world. Chapter Two also
demonstrates that these American laws, which embodied an overestimation of individual
choice and freedom and which indicated inattention to concerns about justice, led to a
major paradigm shift.
The next part of the thesis centers on the paradigm shift, NOTA. The bulk of the
argumentation comes here, where I contend that this law, which continues to govem
practice in the United States, is wildly inconsistent and arbitrary. In Chapter Three, I
provide historical background for the passage of the law, link the emergence of this law
to the constellation of conllicting concerns embodied in the previous regulatory scheme,
and begin a foray into the metaphysical categories created by NOTA. In the next two
chapters, Four and Five, I demonstrate that carrying to conclusion the apparent moral
considerations which undergird NOTA and taking seriously the metaphysics presupposed
by this law leave one in mess of incoherence.
In the final part of the text, Chapter Six, I discuss the expanse of time since the
enactment of the NOTA, indicate general ways to resolve the inconsistencies, and finally,
reiterate what I hope to have established by reviewing the story tbis thesis tries to tell.
10
NOTES FOR CHAPTER ONE
I. Forrest Gump. (1994) Dir. Robert Zemeckis. Paramount Pictures. For those less intimately familiar
with the film, the quoted passage comes fi'om the three-year period when Forrest decides to rLm across the
United States several tirnes. During his trek, various reporters and supporters follow him and talk to him.
2. This French phrase literally translates to mean "first degree" or "first level." Tn English, there is no
easily identifiable phrasing which retains the French meaning. The concept is perhaps best understood
through an example: satires, in principle, would be misread if taken on the premier degre because satires
Inust read with eye on what is really or meant over and above what is said or written.
3. About the exarnple above, there is good reason to suspect that, although he says that he "just felt like
numin,'" he does have a tflirly sophisticated rationale for his actions. He says, "Mama always said, 'Put
the past behind you before you can move on.' And I think that's what my running was all about."
4. Williams, Bernard. "Internal and External Reasons." Mora! Lucie New York: Cambridge University
Press, 1981.
5. Why is trying to instill new moralities a function of our rationality? Well, quite simply, people clo have
opinions about the way that things shOLtld be, and it is only rational to try to make of the world what one
wants it to be. Tn the same way that it is only rational to buy a coral hat rather than a fuchsia hat, if you
want a coral hat rather than a fuchsia hat.
6. Tfthere were more space, Twould explain the relation between my philosophical predilections here ancl
those espoused by Nietzsche, Marx, and Foucault. Like these theorists, T, too, believe we should
investigate the norms that govern the world in which we live; however, unlike all of them, I take moral
claims much more seriously. My work focuses very closely on the nonnative clainlS made or irnplied by
particular individuals and groups, who in hlrn, create the normative regimes under which people live. T
think that one cannot understand moral claims that govern societies-be they in the form of slave morality,
ideology, or normalizing forces in society-by falsely assuming that morality is purely epiphenomenal and
by Inerely interpreting (in the cases of Marx and Foucault) or inventing (for Nietzsche) the historical
circumstances that surround changes in normative regimes.
II
CHAPTER 2: TIlE UAGA
Call and Response
At least as early as 1954, certain legal practitioners were wondering how to
interpret the confusing hodgepodge of state statutes and case law surrounding the practice
of human-to-human tissue transplantation (this practice was once commonly called
homotransplantation). In 1954, just before the miraculous first successful kidney
transplant in December of that year and several years before the first successful heart
transplant, an article appeared in the ofDetroit Law Journal calling for
straightforward national legislation to address the "problem of of a doctor
for the taking of tissue from a body" for the purposes of transplantation. j For
considerations of space, the authors of this legal essay wrote narrowly about a desire for a
law to stipulate what would constitute a tort for doctors excising tissue for transplant
surgeries; however, the footnotes of the article reveal that there were many "[0]ther facts
of the problem [could] not be discussed therein,,2 such as criminal penalties for doctors in
extracting tissues,3 civil suits for implanting tissue into recipients,4 civil and criminal
lawsuits for non-doctors involved in the transplantation procedure,
5
and the question of
whether government doctors or doctors working for charities should receive some
amount of immunity from civil liability. 6 In short, for the authors of this 1954 article, the
legal terrain was muddled and in need of remediation.
After the first kidney and heart transplants, this need for clear laws for guiding
doctors and other medical practitioners bccame more acute because more people werc
implicated as transplants came to be performed more frequently. This demand also
12
intensified because almost immediately after kidneys, livers, lungs, and finally hearts
were commonly transplanted, there was a shortage of organs relative to the number of
possible recipients and no clearly legal way to attain donations.
The response to these issues was the Uniform Anatomical Gift Act of 1968
(UACiA). Due to the way lawmakers understood American federalism at the time, organ
transplantation was an issue for the individual states to decide; however, there was then
and still is a federal commission, the Commissioners on Unifol111 State Laws, which
"prepare[s] model laws on topics that are outside federal lawmaking power but within
state power, and recommend[s] them for adoption by the states, the purpose being to
obtain uniformity on important matters and eliminate the confusion and uncertainty that
f10w from having cont1icting state laws on the same subject."
7
The UAGA was one of
such model laws. "In 1965, the Commissioners on Uniform State Laws appointed a
subcommittee to study and report on the question of gifts of human body materials,"
writes attorney and researcher Russell Scott, and three years later, "the Commissioners
had produced some order out of chaos in the form of a model Uniform Anatomical Gift
Act." Just five years after the adoption of this model law, all fifty states and the District
of Columbia enacted versions ofthis act.
The narrative to this point has recounted how US law was characterized by
confusion until the creation of the UAGA. During the rest of this chapter, I hope to
explain what the UAGA did and what it meant in terms of its moral undertones. In the
course of discussing the moralized reasoning that undergirds the UAGA, I will suggest
that it was destined not to hit its conflicting moral targets and hence destined to be
replaced.
13
Functions
The primary task ofthe UAGA was to clarify how legal human organ and tissue
transplantation would take place in the United States. There were six main provisions of
the original act, which together helped to accomplish this goal: 1) The Act designates
who can make anatomical gifts, and this decision-maker must be the donor or her next-
of-kin in the event that she is deceased, 2) the Act permits the decision-maker to direct
the gift toward anyone she chooses to do with it what she intends, 3) the Act explains that
the gift may be considered made by the original source's own consent if the gift is
executed by some document in writing such as a will or an organ donor card, 4) in order
to expedite the procedure, the Act does 110t require the article of consent such as the will
or organ donor card to be present for the extraction to take place, 5) the Act stipulates that
there must be a means for the donor to change her mind during her lifetime, and 6) the
Act, in lieu of offering a pronouncement about when death occurs, defers to the patient's
physician to determine that, and the Act shiclds fi'om civil liability the physician who
performs the transplantation surgery with reason to believe a gift has, indeed, been
B
made. '
The provisions comprolnising the preceding list were beneficial in achieving the
stated goal of the UAGA, which was, as noted above, to create a uniform system oflaws
across America to clarify certain legal questions about organ and tissue transplantation,
but these primary doings of the law arc not those most interesting for our purposes. The
UAGA also had the effect of legalizing organ and tissue sale throughout the United
States. Officially speaking, the original UAGA "does not deal with the matter of
payment for gifts of body parts,,,9 but reading between the lines reveals a different story.
14
According to Henry Hansmann, "Tn the 1960s (prior to the adoption of the UAGA) some
states adopted statutes explicitly prohibiting the sale of human bodies and organs. Most
of these states repealed such statutes when they adopted the UAGA."IO In other words,
several states had finn laws against the sale of most body paris prior to the UAGA, but
when this narrowly-focused modellavl pertaining to cadaveric transplantation emerged,
statcs struck from thcir codcs of law any mcntion of thc illcgality of organ sale cithcr for
live donors or for cadaveric donors. Hansmann cautions us about the kind of conclusion I
draw here, saying, "It is unclear whether these repeals were simply the result of a
program of repealing all relevant statutes predating the UAGA or whether they rellected
a judgment that the prohibitions on sales were either overridden by the UAGA or,
conversely, made redundant by it." II
Of course, the etlect is less ambiguous. The UAGA only dealt explicitly with
cadaveric donations, but most of the state statutes, which were repealed after adoption of
thc ncw model, wcre only concerned with organs sales by living donors, 12 which means
that the UAGA had virtually no overlap with existing state prohibitions on organ sale.
The new law neither overrode the previous state laws, nor rendered them redundant
because the new law and the old restrictions were genuinely about different things.
Marvin Brams, economist and professor of public policy, writing in 1977 about the
UAGA, labels "erroneous" the impression that "such sale [of human body parts] is
unlawful in any state cvcn ifno other state law specifically makes sueh sale unlawful," 13
and I agree. Brams continues his analysis and suggests the more general point that
because a law fails to authorize an action does not mean that the action is illegal, absent
prior legal prohibitions. He gives the example of Jive kidney donation, which is not
15
mentioned in the UAGA but continues to be practiced in the US though no specific law
authorizes it. 14
lYJeonings
Having shown what the UAGA did, inadvertently or not, as a piece of legislation,
now I want to probe the law to discover its moral rationale, its moral significance. Here,
r will highlight the individualist stance taken by the United States and embodied by the
UAGA; in the course of detailing this individualist stance, 1 will contrast it with
contemporaneous legislation in Europe. Ultimately, in the final parts of the chapter, I
aim to show that the UAGA was destined to be replaced because its drafters and others
were unwilling to accept its logical consequences.
The emphasis on choice is perhaps the most important thing to mention in
explaining and substantiating my claim that the UAGA embodies an individualist stance.
The donor can give the gift to anyone and that recipient must use the gift for the purposes
stipulated. This latter point may seen1 odd in the case of transplantation, but through this
law one can also donate one's body for medical research and experiment, for anatomy
schools, for creating therapeutic remedies for certain diseases. 15 The UAGA also
requires that the means for the potential donor to indicate that she is willing to donate her
organs and tissue include a mechanism for her to change her mind during her lifetime.
What the individual donor chooses seems to be of paramount importance.
Furthermore, the UAGA creates a system based on the active consent of donors.
Active consent simply means that someone must positively elect for the transplantation
procedure to take place. When thousands of people are discomforted, disabled, or even
dying due to the tissue shortage and when this shortage could be easily ended by using
16
the organs and tissues of dead, a system of tissue transfer which requires someone's
active choice to donate either her own or relatives' tissues and organs is not the most
obvious policy, but this choice best promotes individualism. There are, however, at least
two other ways for society to acquire what it requires: presumed consent and non-
consent. If the system established by the UAGA is the gold standard for respecting
individual choicc and autonomy, prcsumcd conscnt is thc stcrling silvcr standard, and a
nonconsensual system fails to place.
If a system of presumed consent were instituted in the United States regarding
cadaveric transplantation, hospitals would asswne that patients wished to donate their
organs and tissues upon death, unless these patients (or their survivors) explicitly
communicated otherwise. While this system might seem unthinkable for a liberal state to
do, the Council of Europe (a model-lawmaking committee analogous to the
Commissioners on Uniform State Laws) as well as members of the Council, France and
Portugal, adoptcd this protocol in 1976. Russcll Scott notcs that thcse revolutionary
laws' emphasis on society's dominion over dead bodies, "takes a long stride away from
the philosophy of the American Uniform Act, with its bias (some say excessive bias)
toward the individual donor." 16
Not to criticize the Europeans, but while their system is broadly "consent-based,"
it is easy to see how this could produce states of affairs that do not ret1ect the wishes of
individuals. Without an cxtensivc public education campaign, upon dcath, someonc's
tissues and organs may be taken and transfened to someone else without the donor's (or
their survivors') prior knowledge, much less consent. For those suspicious of purely
formal guarantees of freedom, one might doubt choice is respected if one must opt out of
17
a system (a system one is pUl})osely pressured to endure) while in a tremendously
difficult situation such as one's impending death or the recent death of a loved one.
Of course, while presumed consent features the very real chance for individual
choice to be discounted, a purely nonconsensual system, as the name implies, ignores the
wishes of donors and their survivors completely. It may seem like science fiction even to
dream of the time when societies "cease to bury the dead as a routine matter, and instead
usc thcm to fill organ and tissuc banks with storcd human sparc parts for thc rcpair and
renewal of the living,,,17 but failing to respect the wishes of the deceased or those of their
kin is not unknown even in American law. In reference to legally required official
autopsies, Russell Scott notes that there are instances when "[t]he public's interest in
ascertaining the cause of death overrides private objections to the violation of the
body.,,18 From Scott's observation, one can abstract to the more general point that even
in American jurisprudence, where individual choice is prized, private wishes do not
always rcign suprcme.
Yet in the realm of cadaveric organ and tissue donation, however, private wishes
are supreme, and this is one reason why I describe the active consent system, established
by the UAGA, as highly individualist. That the UAGA effectively legalized the sale of
human tissues and organs is the other key reason why this law embodies an individualist
stance. Again, this individualism was not espoused by the Europeans, for "when the
Council of Europe produced its model transplant code in 1978, which specifically
included blood in its reach, it provided unhesitatingly that all forms of profit-making
from the disposal of human tissues should be illegal.,,19 The American legalization of the
sale of human tissues and organs espouses the deeply individual-centered liberties of
18
contract and of conscicnce against other social conccms, some of which we will
encounter in the upcoming chapters where I will attempt to understand why certain
human tissues and organs are currently prohibited for sale.
An individualism of the kind promoted by the UAGA has its costs. In crafting a
law so squarely and almost obsessively about respecting individual choice and autonomy,
the drafters of the UAGA ignored concerns about justice. Organ and tissue allocation
and the possibility for thc exploitation of either or both organ donors and recipients seem
prominent justice concerns that were ignored in the original act. In the future, these
concerns about justice would override the individualism of the original UAGA. The
framers and supporters of the UAGA were actually less-than-adamant about authorizing a
laissez-faire market in human paris, but this is eilectively what happened by advancing a
strong individualism that legalized sale and provided no guidelines.
To clarify and substantiate my point here, the UAGA was destined to be replaced
because at its base were conflicting moral commitments about the ethicality of human
organ and tissue sale. One the one hand, there was the strong individualism, the
promotion of free, relatively unhampered choice, but on the other hand were concerns
about injustice.F.B. Stasol1, chairperson of the conlmittee that created the UAGA, wrote
about this issue:
Should payment be precluded or permitted? Tfpayment is made should it
invalidate the gift? It is possible, of course, that abuses may occur if payment
should customarily be demanded; but every payment is not necessarily
unethical. Payments arc fi'equently made for gifts to blood banks ... Until the
matter of payment becomes a problem of some dimensions, the matter should be
left to the decency of intell igent human beings.
2o
19
To rephrase Stason: Organ and tissue sale, while not always unethical, can certainly
become unethical, but we should wait until it becomes a huge societal problem before
regulating the practice. Policymaking of this sort is like raising a pack of wolves next to
one's herd of sheep; this harmony can only last so long.
To conclude here, the UAGA was a response to the muddled legal terrain related
to organ and tissue transplantation. The law expressly established a highly individualistic
framcwork for donating cadavcric organs, but thc law also had thc conscqucncc of
legalizing both cadaveric and live organ and tissue sale. The individualism enshrined by
the law conllicted with certain justice concerns held by its drafters and supporters, most
notably, on the issue of sale. Because the law both provided for relatively unrestricted
sale and recognized its own potential for sanctioning an unethical system of sale, it was
destined to be replaced a law that would address concerns about injustice. In the
upcoming chapters, we will examine this replacement lavv to see if it accomplishes the
goals it established fell' itsclf.
20
NOTES FOR CHAPTER Two
I. Vestal, A. et a1. (1954). "Medico-Legal Aspects of Tissue Homotransplantation." University (i/Detroit
Law Journal 18(3): 182.
2. Tbid.
3. Tbid. at footnote 43.
4. Tbid. at footnote 45.
5.ihid. at footnote 44.
6. ihid. at footnote 46.
7. Scott, R. (1981). The Bod.\! as Propert.\!. New York, Viking Press: 70-71.
8. Stason, E. B. (1968). "The Uniform Anatomical Gift Act." Business Lawyer 23(4): 925-927. Abollt the
first part of the sixth provision ofthe Act, during this period, there was no nationally recognized definition
of death. As one might imagine, this can celiainly crcate controvcrsy, paIiicularly when some organ
recipients have interests in removing organs as swiftly as possible while the body is still 'warm.'
9. Tbid. at 927.
10. Hansmann, H. (1989). "The Economics and Ethics of Markets for Human Organs." Journal o/Health
Politics, Policy, and Law 14(1): 59.
Il.lbid.
12. It is extrcmely impOliant to note that there are exceptions to the trend I identity here. According to an
article in the Virginia Law Review, before UACiA, Massacl1llsetts had a law that dealt with cadaveric
donations, but it like many of the other states repealed its restrictions. Another exception: Delaware
repealed its live-donor-related prohibition on organ sale when adopting DAGA, only to supplement its
version ofUAGA with a new prohibition on organ sale. I took notice of both exceptions upon reading the
same legal article: S.H.D. (1985). "Regulating the Sale ofI-Iuman Organs." Virginia LOll' Review 71 (6).
13. Brams, M. (1977). "Transplantable Human Organs: Should Their Sale Be Authorized by State
Statutes." Arnerican Journal olLaw and Medicine 3(2): 189.
14. ibid.
15. Russell Scott mentions these four main uses for human body parts: Scott, R. The Bod)' as Property: 14-
15.
16. ibid at 76.
17. Ibid at 98.
18. Ibid. at91.
19. [bid at 26. This does not include reproductive cells.
20. Stason, E. B. "The Uniform Anatomical Gift Act.": 927-928.
21
CHAPTER 3: OPENING NOTES ON NOTA
"In September 1983, H. Barry Jacobs, a doctor whose license to practice was
revoked after a 1977 mail-fraud conviction, established a Virginia company to broker
human kidneys," the author of the legal article "Regulating the Sale of Human Organs"
explains, and further, the author continues, "Jacobs intended to solicit healthy individuals
to sell one of their kidneys at their chosen price. A person needing a transplant would
pay for the cost of the kidney plus $2000 to $5000 for Jacobs' services."] As if this part
of the plan were not enough to elicit suspicion and worry, "Jacobs also planned to bring
Third World indigents to the United States so that they could sell one of their kidneys for
a nominal price. Jacobs maintained that the indigents could give informed consent,
despite their inability to read, through tape recorded conversations.,,2 When Jacobs made
his proposal, nothing he proposed ran afoul of the law, but within months of the very
public announcement of his plan, his home state of Virginia banned the sale of organs as
did the neighboring state of Maryland.-' Tn addition to state-level legislative action, there
were proceedings on Capitol Hill by the winter of 1983, resulting in the National Organ
Transplant Act (NOTA) in 1984, which banned the sale of certain bodily entities for
transplantation purposes, both for live and cadaveric donors. Another commentator
Henry Hansmann agrees that the "notorious effort" of Jacobs precipitated NOTA and the
various state statutes enacted.
4
NOTA came when it did in order to bar plans like those of Jacobs, but a statute
like it was much needed for the other work that the 1984 Act did. "Its principal
provisions established federal financial support for local nonprofit organ procurement
22
organizations and for a national organ procurement and transplantation network to assist
in matching organ donors and recipients."s These interesting facets of the Act coupled
with the matter of primary importance for us here-the fact that it prohibited organs sales
and prohibited them for transplantation-shows that NOTA was an attempt to revisit the
social justice concerns ignored by the UAGA. Though lawmakers did wrestle with some
important issucs in addition to thosc directly raised by the Jacobs proposal, NOTA has
fairly limited scope, because the law did arise in conjunction with the Jacobs. Legal
scholar William Boulier notes that NOTA makes it illegal to sell organs for
transplantation purposes. () It is also important to consider, as Boulier also does, that
NOTA allege.s to proscribe only the sale of human organs for transplant, allegedly
leaving unanswered the question of the legality of sale of non-organ human entities (i.e.
tissues and things made of a combination of different tissues like faces or limbs) for
transplantation.
7
It is discussion of this latter consideration which will occupy much of
the remainder of this short chapter.
Supposedly, NOTA proscribes the sale of human organs for transplantation and
leaves the sale of all other human transplantatable parts legal; however, this
characterization is wrong. Under the traditional, Western taxonomy of the body, organs,
as members of bodily systems, perform (or used to perform, earlier in evolutionary
history) specific functions. Organs are constituted by tissues, which are constituted by
cells. For example, the liver is an organ; a dime-sized piece is liver tissue, and that liver
tissue is comprised of millions of cells. Another example is the eye, which is an organ,
and one particular piece is the comea tissue, and the comea is comprised of millions of
cells. NOTA does not respect this system at all, for in defining organ for proscriptive
23
pmvoses, it lists kidneys, livers, heart, lungs, pancreases, bone manow, comeas, eyes,
bones, pieces of skin or any subpart thereof. B Not only does NOTA clearly enumerate
certain tissues such as corneas and bone marrow, but the Act also includes, via its
sweeping language, "any SUbpclli thereat:" an assOliment of sub-organ human entities.
The first oversight, the inclusion of entities widely regarded to be tissues, could have
resulted hom
confusion; one commentator listed blood as an organ, a short time prior to NOTA. ') The
second oversight, any subpart thereqf; constitutes a total rejection of the logic of an
organ/tissue distinction, whereby organs are proscribed for sale for transplantation while
tissues and other sub-organ parts are not.
NOTA does reject the organ/tissue divide as the basis for prohibiting the sale of
certain human bodily entities, but that may not be so curious, despite the error in
tel111inology, because this distinction may not have much moral significance in the first
place. What would it be about tissues as opposed to the whole organs that they
constitute, which would render the tissues morally better to sell than the organs? Much
argumentation would be necessary to explain this, and thus, it seems that NOTA rests on
some other characteristic of the entities involved to substantiate its prohibition. But
what?
Mark Cherry identifies two schemes for classifying bodily parts which take into
consideration morally relevant characteristics of those parts, and I will offer yet another
classificatory scheme, but none of these ultimately make sense of the classification the
law espouses. Both of the schemes Cheny suggests rely on his thesis that "The more the
24
conceptual distance between persons and their body parts is increased, the more body
parts become like other objects in the world to be possessed, given away, or sold." 10
First, Cherry gives a scheme consisting of three types of bodily entities: I) entities
necessary for embodiment/existence 2) entities necessary for adequate functioning, and
3) entities that do not fall in either of the aforementioned categories. Ifwe view the three
categories as on a continuum, as we move across the continuum from thc first category to
the third, we see that the biological importance of the entities decreases, and one would
expect that commonsense morality would accord decreasing moral significance to the
parts. Of course, NOTA seems only to recognize two groups, those permitted for sale
and those not permitted for sale for transplantation, which we will call saleable Shiff's and
non-saleable stI4/5, respectively hereinafter. We might think, then, that the non-saleable
stuffs correspond to entities in the first two categories while the saleable stuffs
correspond to entities in the third category. Again, this scheme has some plausibility as
hearts and lungs, for instance, which arc clearly necessary for adequate functioning (if
not existence for the heart), are among the non-saleable stuffs, and hair and sperm are
among the saleable stuffs. Blood throws a wrench, figuratively speaking, into this picture
because it is necessary for adequate functioning, if not existence yet is among the
saleable stutTs. One might object to my analysis, saying that the small amount of blood
donated to blood banks is not necessary for adequate fhnctioning, and thus the
classification holds because blood as not necessary for adequate functioning should be
saleable. The problem with this counterclaim is that the same "small amount" argument
could be used to place bone manow into the not necessary for adequate functioning
category, yet the law forbids the sale of bone marrow.
2S
Next, Cherry suggests another scheme containing two types of entities: I) those
directly experienced and 2) those not directly experienced. II Entities in the first group
like hands and the scalp are experienced or capable of sensation; whereas, entities in the
second category are not felt such as nails or hair. The idea for Cherry is that those
entities that one/eels are more likely to be conceptualized as part of the person while the
other parts arc more like to be considered extraneous, expendable, or eommodifiable. In
some ways, this scheme fits with NOTA as hair, for instance, is pennitted for sale while
skin is not. Blood, which also seems not to be experienced, is permitted for sale, and
eyes, which are experienced, are not permitted for sale. This nifty little system, however,
is also not wholly consistent with the logic of NOTA because it does not seem that one
experiences one's bone marrow yet this is prohibited for sale, and it does seem that one
experiences one's teeth (not the enamel but the inner components) yet this is permitted
for sale.
Furthermore, it is not clear just how well this dichotomy between directly
experienced and not dircctly experienced works, as many internal organs are rarely, if
ever, e;..perienced by the holder of that organ. Sure, one may feel one's heart beat, lungs
breathe, or ston1ach churn, but when was the last time one felt one's gallbladder,
pancreas, or liver do anything? Those latter items can be felt, but it is not often that they
are felt, and when they are felt, one is unlikely to know which specific part is being
sensed. In short, it seems that the identification one is supposed to attach to bodily
entities that one could experience may not exist if one does not, in fact, experience those
entities. It is not clear that Cheny recognizes this difficulty, but I do not think he is very
committed to either of his schemes because he mentions them almost in passing. In
26
mentioning both classificatory schemes, Cherry only attempts to show that there are some
parts of the body which might seem dispensable, detachable, alienable, and ultimately
saleable. It is these body parts, Cherry suggests, that opponents of an organ market must
work hardest to demonstrate that one ought not to have the right to sel1.
FinaIIy, I offer a third classificatory scheme, one based on regeneration. It might
be thought that regenerative parts ought to be pel111ittcd for sale because one gets these
back without harm befaIIing anyone. Like the schemes of Cheny, this has some initial
plausibility, but this ultimately fails to cOlTespond to the logic of NOTA. While it is true
that non-saleable stuffs such as kidneys and hearts do not regenerate and saleable stuffs
like blood and sperm do regenerate, it is also true that some non-saleable stuffs such as
bone marrow and skin (given certain conditions) do regenerate and that some saleable
stuffs like ova and teeth which were thought not to regenerate.
It is important to note that these three classificatory schemes seem only to be
applicable to the situation of live donation, and in noting this, we recognize yet another
difficulty posed by using any of these heuristics to explain the saleable/non-saleable
dichotomy established by NOTA.
Over the next two chapters, we will explore this seemingly arbitrary distinction
between the saleable stutTs and the non-saleable stuffs and, more generally, why there is
any ban on any human stuffs for transplantation purposes.
27
NOTES FOR CHAPTER THREE
1. S.H.D. (1985). "Regulating the Sale of HU111an Organs." Virginia Law Review 71(6): 1015.
2. ibid at 1021.
3. Ibid at 1026-1027.
4. Hansmann, H. (1989). "Tbe Economics and Ethics of Markets for Human Organs." Journal ojHealth
Politics, Policy, and Law 14(1): 60.
5. Ibid at 59.
6. Boulier, W. (1995). "Sperm, Spleens, and Other Valuables: The Need to Recognize Property Rights in
Human Body Parts." H o j ~ t r a Law Revicw 23: 712. It is important to note tbis fact especially when we
begin conversation about wbat type of entities are prohibited and permitted f6r sale by NOTA because
some commentators mention that urine and sweat are permitted for sale by NOTA, but in truth, as these
entities are not transplanted, NOTA does not reference them at all.
7. Tbid.
8. Tbid. at endnote 141.
9. Bra111s, M. (1977). "Transplantable Human Organs: Should Their Sale Be Authorized by State Statutes."
American Journal ()/Lmv and ,Wedicine 3(2): 184 at t\'1otnote I.
10. Cberry, lVI. J. (2003). Kidneyjill' Sale by Ofvner. Washington, DC, Georgetown University Press: 26.
11. ibid.
28
CHAPTER 4: EXPLOITATION
Legal Practitioners Had a Problem
"The strongest argument against a market innonvital organs is society's
instinctive reaction against permitting individuals to directly sacrifice themselves and
thcir health for monctary rewards. Perhaps this rcvulsion originates in a primitivc
perception of organ transfers as ghoulish and somewhat cannibalistic; it is animated by a
more sophisticated refusal to accept a symbolic and highly visible form of exploitation of
the pOO1'.,,1 So says the esteemed bioethicist George Annas, who testified. at then-
Congressperson Al Gore's House Subcommittee on investigations and Oversight of the
Committee on Science and Technology. This Subcommittee is the one from which
NOTA emerged in 1984. Annas and lawmakers alike believed that a market in human
organs would result in something morally problematic concerning poor donors. In thc
subsequent sections of this chapter, I will attcmpt to clarify and understand what this
claim precisely entails, but here, I wish merely to demonstrate that those involved in
making the law had. qualms regarding the effects of a human organs market on poor
donors. I begin with citing Annas because, though he was not a member of the 98
th
Congress, which passed this piece of legislation, nor was the President, who signed the
bill into law, he gives insight into the mindset of those who crafted the law. We have
good reason to believe that his concerns were shared by many of those who enacted the
law that forbade organ sales, given that Annas was called to testify in the first place and
that his suggestion ("it would. seem appropriate for the Congress to forbid any
29
reimbursement for procurement or transplantation of an organ obtained by paying the
vendor,,2) was accepted.
Further proof that lawmakers worried about poor donors is found when we
reconsider the incident that prompted NOTA and the various state prohibitions on organ
sales in the early 1980s: the Jacobs proposal. This proposal, which would have set up a
for-profit brokerage fi1111 to buy and sell human organs and tissues, is patently
inappropriate to those conee111ed with the plight of poor donors, particularly given the
image of the conniving, treacherous middleman in the social imaginary. Upon
referencing Jacobs, Annas immediately mentions, with fJagrant disapproval, the
inevitability of "the poor selling their body parts to the rich,"] and he is not the only
commentator wary of such schemes. Lori Andrews, though a supporter of a market in
human organs, also expresses worry about middlemen,
4
as does 1. Harvey, who also
supports a market.
5
Sensationally, Harvey mentions a case during the late 1980s that
featured a West German person buying kidneys from "Turks living in poverty" for 3,500
US dollars each and selling them to rich foreigners for prices between 26,000 and 52,000
US dollars each.
By referencing the testimony of Annas and briefly expounding upon the
precipitating event for NOTA, I sought to add some substantiation to the idea that
lawmakers had a problem with an organ market because of their fears about what would
happen, morally speaking, to poor donors. In the next section, I hope to explain
preliminarily what this wony is.
30
The Clairn
In trying to understand what the precise worry is, we must accept that lawmakers
and comnlentators are often vague about what precisely is morally problematic about the
poor donor situation. When an argument is made against an organ market by claiming
that under such systems the poor would be selling their organs to the rich, we are
supposed to know why that is wrong and fecl repulsed. There are no detailed
explanations by lawmakers themselves to be found, and when we interrogate
commonsense to reap clarity on this issue, we are likely to find words misused in a
variety ways. When pressed to explain the worry about the poor donors, commonsense
(were it personified) alleges that poor people would have to sell their organs to the rich to
get money, that the poor would be coerced into this transaction, that the already
disadvantaged would be forced into an exploitative relation with the rich, that money is
too strong an int1uenee for the impoverished, for it renders them unable to ehoose
otherwise. It is unclear whether these are separable claims, variations of the same claim,
or a combination of restatements and new statements.
1n hopes of clarifying the problem of poor donors, according to the logic of
NOTA, we will proceed by examining coercion, undue inducement, and exploitation to
decide which seems to be the most apt. More than one of these terms applies to the
situation at hand, and the proceeding argument, which is largely a process of elimination,
will show exploitation to be extremely applicable but will also admit that certain
formulations of the concel11 about undue inducement may also capture the wOlTies of
legislators. It is important to note that my deductive method of procedure does not
understand these three moral concepts to constitute an exhaustive list of the moral claims
31
one might deem relevant to this discussion; however, they are the most prominent
answers.
Coercion
First, let us turn attention to coercion, which bioethicists Tom Beauchamp and
Ruth Faden claim obtains if and only if "one party intentionally and successfully
int1uenees another by presenting a credible threat of unwanted and avoidable harm so
severe that the person is unable to resist acting to avoid it."(, Space docs not allow for a
detailed defense of this definition, but one critical feature of the Beauchamp and Fader
view, that coercion involves a credible threat of unwanted and avoidable harm, is one that
seems relatively uncontroversial. If we accept this account, we see that, although an oller
of money might manipulate the choice of persons, rendering the choosers more likely to
alienate their organs, this offer is not coercion, for it does not involve a threat. As the
autonomy-reducing agent in this fOl111Ulation is the money paid for the organs, it would
seem that a certain type of undue inducement is the more apt label for the situation.
Undue Inducement
Generally speaking, an inducement is an incentive or the situation in which A
does something for B, which B wills, with the goal of bringing about a state of affairs that
A wills. To say that an inducement is undue is to say that it is wrongful or immoral.
There seem to be three key ways to conceive of an inducement as undue: 1) all
inducements arc undue or wrongful, 2) an inducement is undue when it causes
foreseeable bad consequences, or 3) an inducement is undue because it produces 110n-
32
autonomous choice. The first two understandings of undue inducement, while perhaps
perfectly valid ways of thinking of the concept, are better grouped into concerns about
commodification more generally. The final point, however, seems an important
conception not assimilable into concerns about commodification. We will Irst discover
why the first two conceptions are, in fact, concerns about commodification, and for the
rcst of thc scction, I will try to dcmonstratc why thc third conccption is cithcr impossible
or not something that legal practitioners would try to prevent in the manner of NOTA.
If the very inducement is what seems problematic or undue, one's concern is a
more global worry about all incentives, all sales, and all barters; in other words, one is
worried inherently about cOlnmodification. Even if one's worry is localized to the
discussion of human bodily stuffs, one's worry is still about the wrongfulness of
commodification in that domain. Here, I will pass no judgment about whether I think
lawmakers cared about this conception of undue induecment or whether I think it makes
much sense to apply this eoneCl11 to the case of the poor donors and the transfer of human
stuffs; instead, Twill only say that this concern will occupy a great deal of the discussion
in the next chapter on commodification.
Similarly, when one worries about the second conception of an undue
inducement-that the inducement is wrongful because it could lead to foreseeable bad
resultsthis, too, can be read as a concern about commodification. While the first
formulation voiced an inherent problem with commodification, this formulation objects
on instrumentalist grounds. While I find it ~ l i r l y self-evident why that is so, we will not
dwell here, for the connection! see is perhaps beside the point. Whether or not the
33
second conception of undue inducement is collapsible into commodification concerns, it,
like the first conception, will be discussed in great detail in the proceeding chapter.
Via the third formulation of an undue inducement, individuals are rendered non-
autonomous or less autonomous by an excessive otTer. Annas, without using the precise
terminology, refers to undue inducement in connection with organ sale, claiming that
"there is really only one major argument against permitting a competent adult to sell his
or her nonvital organs: sale is an act of such desperation that voluntmy consent is
impossible."
7
This conception of an undue inducement may have occupied the thoughts
of certain legal practitioners during deliberations about NOTA; however, this conception
is not the one I would ascribe to the majority, given the way I conceive a commitment to
charitable readings of the law(makers) announced at the outset of this thesis. During the
rest of this section, I will explain why a charitable look at the law makes dubious the idea
that this conception of undue inducement underlies NOTA.
First, it is unclear how an offer alone could render someone less autonomous.
One might make an offer to person that is cUlTently not (very) autonomous, but it seems
that one cannot steal a person's autonomy simply by making an offer to that person. In
other words, it is necessary for someone to be non-autonomous before something
resembling an undue inducement can take place. If we can grant this simple asseliion,
undue inducement as the theft of autonomy seems incorrect. For me, the principle of
charity would not have one attribute an obviously incorrect thesis to the lawmakers
unless there were more conclusive proof that legislators, in fact, espoused this position.
The more plausible position to take would have one posit that, instead of stealing
someone's autonomy, the undue inducement is made to someone who is currently nOI1-
34
autonomous, and this phenomenon, too, can be morally wOlTisome. While Tadmit this to
be a possibility concerning organ sale as donors may be inadequately informed of the
consequences of donation or due to other factors that can compromise autonomy,
believing that the law espouses this as a good reason to proscribe personallibeliy in the
manner of NOTA seems uncharitable. It seems most mindful of the principle of charity
to assume a grcat deal of internal consistency within the fabric of the law (even if thc
goal is to show that law is, ultimately, inconsistent as it cUlTently stands), and if law
forbade organ sales to avoid the possibility of non-autonomous organ transfer but
permitted uncompensated organ donations, there would be great questions about
inconsistency. If offers of money do not render people non-autonomous, why are only
the induced transfers likely to be made by non-autonomous donors? Even if legislators
did believe that induced transfers were likely to be made by non-autonomous people, why
would they also maintain that other induced transactions, such as typical sales, barters, or
employment contracts, arc pel111issible and (presumably) made by autonomous people
AND why docs the moral WOlTY that a non-autonomous person may engage in a
transaction justify the restriction of free choice of others in this case and not the cases of
other transactions including uncompensated organ donation? Frankly, this position
seems out of sync with the reasoning of the law.
In concluding this section, the problem of undue inducement may have held some
currency to those who created NOTA but only in the first and second formulations, which
are perhaps better understood as concel11S about commodification with which we will
deal in the next chapter. As for the final formulation of the concern about undue
inducement, while the testimony of Annas shows that undue inducement as theft might
35
have been a motivating factor for, at least, some of those involved with crafting the law,
the principle of charity should persuade us to reject this conception as the rationale
behind NOTA because lawmakers would likely choose a conception that seems less
obviously wrong and that seems to cohere better with other legal/moral judgments.
Exploitation
Though exploitation is not the only remaining choice for identifying the real
concems that underlie the WOlTY about poor donors, in this section, I hope to present a
concept of exploitation then attempt to show, by differentiating this definition from other
possible candidates, that it captures precisely what NOTA seeks to remedy.
Consider the following definition: exploitation is the use of an advantage over
another in a transaction in order to exact a gain that is wrongful either because the other
party deserves
8
more compensation or because the other party deserves not to participate
in such a transaction, no matter the amount of compensation.
My definition is perhaps closest to that of Robert Mayer, who sees exploitation as
the failure to benefit others as fairness requires, and he sees three classes of exploitation:
I) the failure to benefit at all, 2) the failure to benefit sufficiently, and 3) the t ~ l i l u r e to
benefit authentically.9 Essentially, my definition is the same, save for the t ~ l c t that I
collapse the first and second of Mayer's three classes. If A gives B $0 or $0.01 for her
work when fairness requires that A give her $25, the problem remains that the level of
compensation is too little. I understand that giving nothing can communicate something
very different than too little (e.g. you are not the type of entity that merits any
compensation); however, I still think tbe problem remains that of inadequate
36
compensation. Thc difference between Class 1 and Class 2 seems to be a difference in
quantity, not in kind, and returning to American law, there seems to be support for this
position: it is not any more illegal to pay an employee half her pron1ised salary than it is
to fail to pay her at all. One might retort, "Surely, slavery is 'more illegal' than
underpayment for services;" however, non-payment for services is not necessarily
slavcry, for slavery also involves coercion, which might entail, but is not self-idcntical to,
exploitation. Moving on, Mayer and I agree that in addition to the question of amount,
there seems to be a form of exploitation that finds fault with the entire transaction.
Mayer identifies the drug deal as a prime example of inauthentic benefitting: "The
objection to drug peddling is not usually that dealers charge too much for the good they
sell and thus benefit addicts insufficiently. Rather, the accusation is that dealers provide
a false benefit by selling something harmful. They gain at the expense of addicts by
failing to benefit them in a genuine way." 10
The view on cxploitation incrcdibly morc famous than that of Mayer or mc is the
one attributed to Marx. Classically, Marxian thought has viewed exploitation as the
exaction or appropriation of surplus value from one party and its transfer to another party.
To put it in technical terms, someone gets the short end of the stick at the end of a deal.
In still other terms, according to the Marxian conception of exploitation, someone gets
more than they are supposed to get, and someone gets less. Perhaps, I am merely
imposing my way of thinking on Marxian thought, but if the problem is that someone
gets more than they are supposed to receive and someone else gets less, it seems that this
conception easily maps onto that of my own. Either the exploited deserves a larger end
of the stick (insufficient compensation) or the exploited ought not to be involved in such
37
transactions (inauthcntic benefitting). The first part, insufficient compensation, seems
fairly self-evident, but the second part may need some unpacking. Ifwe recall Marx's
intellectual preoccupations, his charge of exploitation was rarely, if ever, a supplication
for capitalists to pay their workers more; instead, the entire system of wage labor was
exploitative. In short, Marxian thought contains the same two-class conception of
cxploitation that I offcr above. Even though my conccption of cxploitation is essentially
the same as the Marxian one, I do not employ the more familiar phraseology because 1)
its language of surplus value retains vagueness about how normativity functions in this
formulation 11 and 2) this conception is bound, inextricably perhaps, to particular opinions
about wage labor and macroeconomics that constitute unnecessary intellectual baggage
for my project.
At this point I think have articulated a conception of exploitation that coheres
with the law; however, beforc commcnting on thc law, I would like to present a very
different view of cxploitation to show what the law's commonsense-informed view
opposes. Allen Wood approaches exploitation somewhat differently, because
exploitation, for him, is not about the distribution of benefits and because he sees
innocuous and pernicious versions of exploitation. Wood defines exploitation as the pre-
planned use of advantage over another in order to gain a benefit, and the potential
wrongness emerges from the fact that, in making an exploitative transaction, we often
violate a n01111 of proper respect for others.
Wood disagrees with the conception of exploitation that references an improper or
unjust distribution of benefits as a necessary component of exploitation; he attributes this
conception to Marx, and it is the one that I hold and believe the law also espouses. Wood
38
writes that the improper distribution of benefits conception of exploitation is "in an
important sense exactly wrong. Moreover," he continues, "some of the writers on this
topic appear to be aware of this. [Michael] Gorr is struck by the fact that an exploitative
otler typically expands the otleree's freedom of choice and that accepting it will
normally net the offeree an increase in utility." 12 Wood is correct in noting that an
exploitative offer can often expand the offeree's choices and provide some benefits, but
in saying so, he has done little to show why exploitation does not necessarily involve an
unjust distribution of benefits. Let us regard the case of the sweat shop to discover
Wood's error. The workers in a sweat shop do receive some monetary benefits, and with
these benefits, more choices are available, but the problem remains that there is not
enough of these benefits, morally speaking, to compensate for the working conditions
these workers endure. It is not paradoxical or even striking to the subscriber to my
conception of exploitation that a net benefit is reaped; one would hope that the sweat
shop workers get something out of the deal, but smnething docs not translate into "what is
morally deserved." Furthe1l11l)J'e, one might say that while it would be best for the sweat
shop workers to be compensated more, it is still better to be exploited and to receive
some benefits than not to be exploited and not receive anything. To make my objection
to Wood pointed, 1) that the exploited reap a benefit does not negate the claim that
exploitation necessarily involves a case when someone is inadequately or inauthentically
benefItted and 2) that the exploited are often bettered by taking an exploitative offer
rather than no offer also does not negate the claim that exploitation necessarily involves a
case when someone is inadequately or inauthentieally benefitted. Again, returning to the
law, Members of Congress migbt readily admit that some organ vendors can be
39
economically bettered by selling the non-saleable stuffs, but this still does not mean, for
them, that this would not constitute an instance of exploitation.
Wood also thinks that exploitation is a morally neutral concept, and for him there
are pernicious cases, innocuous cases, and not-so-innocent-but-morally-acceptable-
nonetheless cases too. As we all can agree that the pernicious cases exist (to the extent
that any pernicious things exist), let us focus attention on the other categories Wood
identifies. In important ways, Wood's identification of acceptable cases of exploitation
emerges from his broad definition that encompasses any planned use of advantage to get
any benefit. Aecording to Wood, "Some instances of exploitation (exploiting the
weaknesses of one's opponent in a game) can be regarded as innocent. One would not
enter the game with good sportsmanship if one did not expect (or even want) one's
opponent to use one's weaknesses wherever possible." 13 While people do use the
language of "exploiting weaknesses" in the context of competition, no one claims that
playing well and fairly against an opponent is o,ploitation, There is perhaps a distinction
to be drawn between the moral concept of exploitation and the word exploit, which
simply means to use. Even when no one would use any word like exploit or exploitation,
Wood sees exploitation nonetheless; for him, doctors exploit their patients even when
there is no "sort of wrongness, unfairness, or unethical conduct on the Palt of the
[doetor]."J4 "Those who help people in a position of weakness typically exploit them as
well," Wood claims, "and they do so whether they make just profits, unjust profits, or
even no profits at all, as long as they also use the vulnerability of the recipients to further
some end of their own other than the helping itselC,15 And this end "other than the
helping itself' might include liking to help people or even "developing or exercising their
40
own moral virtues.,,16 This seems clearly like an inappropriate use of language, and
Wood is well aware ofthat when he concedes, "No doubt in such a case we are
disinclined to dwell on the exploitative aspect of the situation, not least because the
helpers' fmiher end may be in itself perfectly legitimate or even laudable, and because
they are, after all, providing help to those who need it." 17 Assertions like this highlight
the degree to which Wood's view is far from the commonsense one. Wood makes a final
attack against a position like mine, arguing that "moralized accounts of the concept of
cxploitation will have the effect of disguising substantive moral commitments,,,18 which
means that we can no longer have moral debate over what is an acceptable form of
exploitation, Of course, with a moralized account, we might instead have the same moral
debate over whether something (or anything) counts as exploitation; therefore, Wood's
worry dissipates.
The conception of exploitation advanced in this chapter is a commonsensical yet
defensible view, a view likely to have undergirded the rcasoning of NOTA. If it were not
defensible, respecting the principle of charity would militate against attributing this to the
logic of the law. Ifit were not adequately commonsensical, it would be a questionable
strategy to attribute this view to NOTA without further evidence, Beyond being a
defensible and commonsensical view, there is some evidence to suggest that drafters of
NOTA conceptualized something very close to what I suggest in addressing the situation
of the poor donors. First, it is fairly clear that lawmakers were concerned about
exploitation and not certain other concems, which often appear in organ procurement
literature. Drafters of NOTA recognized that one does not need to claim that the poor are
somehow non-autonomous, as with the claims of coercion and a certain genre of undue
41
influence, for instead, one can recognize that the poor donors may be autonomous
persons, yet the transaction remains wrongful in some other way. Annas specifically
calls the prohibition on a human organs market a "sophisticated refusal to accept a
symbolic and highly visible form of exploitation of the poor,,,19 and I think this is a
correct characterization. As for the type of exploitation that NOTA alleges to remedy, it
is thc form that is wrongful bccausc thc othcr party descrvcs not to participate in such a
transaction, no matter the amount of compensation. Quite analogous to how some feel
about pimps, prostitutes, and pomographers, the alleged wrong lies in the whole
transaction; things like that ought not to be sold, the critics will say. 20 If the problem is
that things like that ought not to be sold, two questions arise: 1) "what are things like
that'?" and 2) "why should these not be sold'?"
5'aleable and Non-saleable Human Stuffs'
As mcntioncd in thc prcvious chaptcr, NOTA divides human stuffs into two
categories, which 1have dubbed saleable stuffS' and non-saleable stuffs'. If the preceding
argumentation is correct, it is, according to the logic of NOTA, an instance of
exploitation when donors alienate the non-saleable stuffs for money, and seemingly, it is
not an instance of exploitation when donors alienate the saleable stufTs for money. This
perhaps seems obvious, but there remains the logical possibility that it is also an instance
of exploitation when donors alienate the saleable stuffs for money, yet this transaction is
penl1itted while the other is forbidden for some reason; however, when we discuss
remedies for exploitation in the next and final section of this chapter, I will rule out that
possibility. Thus for now let us assume, before it is more conclusively shown, that, in
42
response to the question, "what are the things that NOTA claims ought to be inalienable
for money in order to avoid exploitation?" we can answer, "non-saleable human stuffs."
But what is it about non-saleable human stuffs that render them the type of
entities that ought not to be alienated for money? As the non-saleable stutTs include
hearts, lungs, and kidneys, it seems that the reason could be that it is too dangerous to
have people alienating these parts for money. Recall Annas alluding to "society's
instinctive reaction against pem1itting individuals to directly sacrifice themselves and
their health for monetary rewards.,,21 Yet if the danger element were really the reason, it
would seem only to apply to live donors, and thus, NOTA would be overly broad in
banning the sale of cadaveric organs and tissues as well. Additionally, neither the
removal of corneas nor the removal of bone marrow poses much danger to live donors,
yet these too are forbidden for sale. It does not seem, then, that the threat of inflicting
physical han11 upon the donor is the problem with alienating the non-saleable stuff for
money.
Considering the constitution of the category of non-saleable stuffs, it might be
that the alleged exploitation of poor donors is a confused/disguised/misplaced claim
about the exploitation of recipients who need these important organs and tissues. The
non-saleable stutTs include hearts, lungs, kidneys, livers, corneas, and bone marrow-
these are all entities necessary for maintaining a high level of bodily functioning. Of
course, the "odd man out" is the cornea, but vision cannot be disregarded as minor in the
same way that members of the saleable stuffs category can be, such as hair, teeth, and
reproductive cells; the use/possession of reproductive cells might be viewed as minor or
frivolous because these cells are not requisite for a high level of bodily functioning. The
43
idea the NOTA was really a concem about exploiting organ recipients gains even more
plausibility when we consider the Jacobs proposal, which prompted NOTA. The
proposal stood, potentially, to exploit both organ donors and organ recipients alike, so in
some ways, it would be little surprise if lawmakers wanted to prevent the exploitation of
the recipients, yet this characterization is still probably incorrect. The constant
mcntioning of poor donors significs that, while lawmakers perhaps wotTied about poor,
unhealthy recipients, their concem was on the other side of the deal. Secondly, and this
was alluded to in the previous chapter when discussing one of Cheny's classificatory
schemes, the fact that blood and blood plasma are included in the saleable stuffs category
weakens the dichotomy between the frivolous, saleable stuffs on the one hand and the
important, non-saleable stuffs on the other as blood and blood plasma are both vitally
important bodily entities.
The real reason why NOTA claims that it is improper to alienate the non-saleable
human stuffs fen- money is that we ought not to commodity these non-saleable stuffs. In
the next chapter, we will probe this claim in great depth, but before that line of
argumentation begins, I would like to close this chapter by speaking brieDy about
remedies for exploitation.
The Remec(v
In the course of this chapter, I have thus far argued that embedded in NOTA is a
moral claim which asselis that a market in a certain subspecies of human organs and
tissues constitutes exploitation, an exploitation of organ donors, an exploitation of the
form that is wrongful because such market transactions ought not to take place
44
inespective of the amount of compensation provided to donors. Embedded in NOTA is
another moral claim: the state of affairs created by NOTA is morally preferable to the
exploitation it guards against. 22 In other words, NOTA claims that it is a proper remedy
to this instance of exploitation. In this section, I hope to explain what possible remedies
for exploitation exist, which type of remedy NOTA is, and finally, what the moral costs
for thc choscn rcmcdy arc. 23 In discussing thc moral cost of rcmcdying cxploitation as
NOTA does so, I will address the question, left unanswered above, about why selling the
saleable stuffs does not constitute exploitation according to the logic of NOTA.
According to Wood, there are two methods of remedying exploitation,
interference and redistribution. Interference means preventing people from using their
advantages to exploit those who are relatively disadvantaged; whereas, redistribution
means eliminating the advantages and disadvantages, so that no one is capable of
exploiting or being exploited. In the case of sweat shop exploitation, interference may
consist in mandating better working conditions or higher pay; while the redistributive
route might be socialism. Wood notes that "Radical remedies for exploitation are always
redistributive. They involve transfers of power (political, economic, institutional,
emotional) from the strong to the weak... [R]edistributive remedies to exploitation are
inevitably difficult, costly, and potentially explosive in their social effects, and they
always face prospects of success which are uncertain at best. ,,24 NOTA, quite clearly, is
an example of the interference sort of remedy for exploitation, for it merely prohibits the
use of one's advantage to exploit rather than removes the advantage altogether, but this
method, too, is costly.
45
As Wood notes, "there is always a dilemma when we must consider interference
alone as a remedy for exploitation. As we have noted, an exploitative arrangement may
benefit both parties... By interfering with exploitative arrangements, we may prevent one
person from taking advantage of another's weakness, but we thereby also risk consigning
the V111nerable person to an even worse fate than being exploited. ,,25 Relating this point
to the situation of organ sale, one moral cost of NOTA's interference method for
remedying exploitation is the potential that the poor donors are rendered worse off by this
patemalism. One might ardently argue that while exploitation is wrongful, it might be
better, aU-things-considered, for the potential donor to be allowed to participate in the
exploitative arrangement, and this argument might apply to the other moral costs of
NOTA: 1) paternalism that infringes upon personal liberty and 2) the lost and
unimproved lives resulting from the shortage of human organs and tissues that might be
alleviated were there a market for such entities. These costs arc extremely high, too high
for some, and it is in recognition of the high moral cost of having a law like NOTA that
we see how important it was to stamp out exploitation, come what may.
Retuming to the possibility that it is also an instance of exploitation when donors
alienate the saleable stuffs for money, we see that this seems patently incorrect, for if
selling the saleable stuffs were also an instance of exploitation, NOTA would have
attempted to remedy it. NOTA spares little expense. To say it ditlerently, there is
probably no reason to permit the sale of the saleable stuffs that is not also a reason to
pel111it the sale of the non-saleable stuffs, if both types of sales did entail exploitation.
The eost to remedy the exploitation in the ease of the non-saleable stuffs is extremely
high; whereas, the cost to remedy a supposed case of exploitation in connection with the
46
saleable stuffs is often much lower as the saleable stuffs do not include as many entities
necessary for sustenance of life or high-level bodily functioning. Given this, it is not
clear what would mitigate the moral harm of exploitation in the case of the saleable stuffs
but not in the case the non-saleable stutTs. My conclusion is, then, that there is no
exploitation in the case of the saleable stutTs, according to the logic of NOTA; instead,
there is only exploitation in the case of the non-saleable stuff,>, and NOTA attempts to
remedy this by interference, despite the high moral costs associated.
47
NOTES FOR CHAPTER FOlJR
l. Annas, G. (I 984). "Life, Liberty, and the Pursuit of Organ Sales." The Hastings Center Report 14( 1): 23.
2. Ibid.
3. lbid. at 22.
4. Andrews, L. (1986). "My Body, My Property." The Hastings Center Report 16(5): 33.
5. Harvey, J. (1990). "Paying Organ Donors." Joumal o/Medical F-thics 16(3): 117-8.
6. Faden, Ruth R. and Tom L. Beauchamp. A Histm}' and Them:JI olli?/brmed Consent. New York:
Oxford University Press, 1986: 339.
7. Annas, G. (1984) at 23.
8. Desert can bc a confusing concept, and one might wonder if A deserves something, in light of what
quality of A or of the situation does A deserves that thing. Simply put, desert is context-specific, so that
there is no general rule to detennine what persons deserve buried within the meaning of desert. People
deserve things relative to the moral standards applicable to the ease. One might deserve $15 for spending
two hours folding clothes at the department store where one earns a living, yet one might deserve no money
for spending two hours folding clothes at the neighborhood consignment store \vhere one volunteers.
9. Mayer, R. (2007). "What's Wrong with Exploitation." Journal cfAppLied Philosophy 24(2): 142.
10. [bid. Also, for clarity's sake, Mayer's speeiflc language of "fqiling to benefit them in a genuine way,"
alnlOst inlplies that the dealers were obligated to benefit the addicts in the first place but, they failed to do
so, and shockingly, they harmed the addicts; however, the rest of his article makes no further such
suggestion, leading rne to think that his wording could have been clearer. Tfeel certain that he would be
cornfortable with my phrasing: "the other party deserves not to participate in such a transaction."
1I. [n other words, Marx is unclear about the answer to an irnportant question: "Relative to what standard
is the value appropriated surplus?".
12. Wood, A. W. (1995). "Exploitation." Social Philosophy and Policy 12(2): 148.
13.1hid. at 152.
14.1hid. at 153.
15. [hid.
16. [hid.
17.ihid.
18. ihid. at 141.
19. Annas, G. "Life, Libeliy, and the Pursuit of Organ Sales.": 23.
20. A careful reader would notice a difference from the initial statement I made "people deserve not to
participate in a transaction where they sell x" and "x ought not to be sold." The statements are certainly
different principally because the first formulation sllggests A) that it would be wrongfiJl to buy x from
people and B) that, in the event of the sale ofx, the buyer is guilty of wrongdoing towards another while
perhaps the seller has violated a duty to herself; the second formulation is more ambiguous on these issues.
The ditference will not be relevant for our discmsion became it will be remembered the point at which the
wrongfulness supposedly enters the picture of selling organs.
21. Annas, G. "Life, Liberty, and the Pursuit of Organ Sales.": 23.
22. Actually all law is like this. Not only docs the law labcl x wrongful or inappropriate for the moral aims
of the eomrnunity, the law also claims that the policing power of law in the given domain, used in the
manner formulated by the law, creates a morally superior state of affairs than otherwise. That law must
48
inclmle this additional moral claim is precisely, I think, why suicide and adultery are no longer illegal in
this nation.
23. For those who did not skip over the relativistic ramblings in the first chapter, one might wonder how on
earth I can go about the task of explaining or assessing the moral costs of a law. If moral costs are not
objective like the cost of bread in a partiClllar store, on what grounds can one talk about them? Of comse, I
am basing my claims on what I take to be the general sentiment of the law and those who crafted it.
24. Wood, A. W. "Exploitation.": 157.
25. Ibid at 156.
49
CiJAPTER 5: COMMODIFICATION
At the close of the previous chapter, we concluded that legislators were worried
about poor donors and that this WOrTy can be explained very well as one about a type of
exploitation that is wrongful because the entire transaction should not occur. After
cycling through a number of intuitively plausible yet incorrect reasons why the sale of the
non-saleable bunlan stuffs ought not to occur and would constitute exploitation, I
ventured the guess that the reason was that this type of transaction would constitute a
wrongful form of commodification.
For clarity's sake, it is important to note that the claim about exploiting the donor
only makes sense if one appeals to the notion of wrongful commodification. In other
words, I am not sure one could worry about exploiting donors and could hope to remedy
this worry by prohibiting the entire transaction unless one worries about a wrongful form
of commodification. However, it could be that one worries about wrongful forms of
commodification without the tllliher claim that to have such transactions constitutes
exploitation, as in claims about undue inducement referenced in the previous chapter.
Having summarized the arguments of the previous chapter, let us attend now to
the problems that must be explained in this one. First, it must be explained what
constitutes wrongful commodification. Two other questions embed in that first question:
1) what commodification is and 2) why, in some cases, it is wrongful. The second main
task of this chapter is explicating why it might be thought wrongtlll to sell the non-
saleable human stutTs but not the saleable stutTs.
50
TYrongfi.f1 Commodification
Our first question, defining wrongful commodification, is comprised of two
questions, and we will answer both in turn. First, what is commodification?
Commodification is the application of market rhetoric and/or market relations (e.g. sale
or barter) to something. (Some commentators create more sophisticated, complicated, or
simply confusing algorithms for cxplaining commodification; howcvcr, I think this is
perhaps mistaken. 1) More sophisticated explanations may be helpful in elucidating why
some people think that some conceptions of commodification constitute a moral wrong,
but to say simply that some entity is a cornmodity is to say that something holds value
expressible in market terms. Things may have value (value broadly construed) in ways
that are not market related, and we do not call these commodities.
If commodification is, as I have suggested, the application of market rhetoric
and/or market relations to something, why, then, might it be wrongful in some cases?
Already, I have gestured toward why some find commodification wrongful. If a
commodity is something whose value is (or ought to be) expressible in market terms and
ifnot all things have (or ought to be considered to have) value in this way, then some
entities are not properly called commodities and ought not be bought, sold, or traded.
Those 'vvho find t ~ l U l t with commodification in this manner have a problem with it
inherently because commodification, for them, expresses an improper way of valuing
certain entities. But perhaps we are getting ahead of ourselves.
Why is commodification sometimes wrongful? To some commentators,
commodification is something wrongful all the time. It is always wrong, perhaps
inherently so, to value things according to a market or using market rhetoric. This may
51
be because markets themselves are unjust or somehow immoral. Certain impressions or
depictions of Marx are reminiscent of those who hold this view, which legal theorist
Margaret Jane Radin labels universal noncommodification. 2 Of course, the law in the
United States, in permitting and promoting capitalism, seems not to espouse universal
110ncommodification. To use Radin's jargon once more, it seems most correct to say that
the law in the United States is pluralist, meaning that certain things arc completely
pel111itted to occupy a market sphere, while others are not pennitted, and as such, legal
practitioners must give reasons why some things are to be seen as commodities and
others are not. 3 In many ways, this simple pluralism is what this entire thesis
presupposes in its attempts to investigate why the saleable human stuffs are properly
commodities, according to the logic of the law, while the non-saleable human stuffs are
110t to be commodities. Moving back to the more general question of why any
commodification is wrongful, quite frankly, there are a great number of possible reasons
why commodification may seem wrongfil1 in certain instances. The best general rule I
can produce is simply to claim that there are inherent reasons for disapproving of
commodification in certain cases, which commonly reference an improper way of
valuing, and that there are instrumental rationales for disagreeing with commodification,
and these instrumental reasons run the gamut. One may be worried about the possibility
of coercion when money is involved; recall the arguments bolstered by those who
believed in a certain implausible form of undue iJ?fluence. One may worry about
inequality that results from systems that involve money, buying, and trading. Particularly
in the domain of healthcare, one may WOlTY about fiduciary responsibility because money
and its pursuit are seen as, and can often be, corrupting forces.
52
The Clainl of Wrongfi.tl Commodification Here
Interestingly enough, whatever reason may ultin1ately underlie the claim that it is
vvrong to commodity certain human bodily entities for transplantation, the argumentation
is not truly about getting rid of commodification in human organs or any subpart thereof
Human tissue is already commodified by law. The salcablcs arc obviously commodified
given that the law allows donors to sell them, but the non-saleables, too, are
commodified, though incompletely.
On my second point that the non-saleables are incompletely commodified, it is
not the case that market relations (buying, selling, and trading) are removed from the
process of transplanting organs. Rather, it is only the case that there is no buying or
selling during the initial transfer of human tissue from the tissue source. In the words of
legal theorist Julia Mahoney, "the debate over the commercialization of the human is not
about commercialization at all, but rather about how the financial benefits available will
be apportioned.,,4 It is important to note that organs and tissues, after being removed by
either organ procurement organizations (OPOs) or harvesting hospitals, are later
transferred to A) transplanting hospitals and then to the recipients (when oros first
receive the organ) or B) directly to the recipients (as in the case of the harvesting
hospital).5 The organ is free, shall we say, when it passes from the source to the
middleman, but the organ, I would argue, is not free thereafter. The recipient or the
transplanting hospital pays to receive the organ either to the OPO or the harvesting
hospital. In the last step of the transaction, in particular, during the move from hospital to
recipient, the organ is certainly notFeely given. As Mahoney tells us, a potential organ
S3
recipient "is not given rights to a specific organ and told she is free to acquire the
transplant services on her own; to acquire an organ, she must pay a transplant program
money.,,6 Continuing, Mahoney explains tbat when transplanting hospitals transfer
organs, "the organ becomes, in eIect, a market-alienable good, and is sold to patients as
part of an indivisible package."? Frequently, critics of the view that I have expressed will
contcnd that the organs are free and that only the services, such organ storage and
transplantation fees, are those for which recipients pay. However, as Mahoney quips in
her article, "The argument that patients pay only for medical treatmcnt, and never for
human organs, is no more persuasive than contending that restaurants sell not food, but
only 'dining services. ",8 It is certainly the case, we believe, with the restaurant that we
pay both for the food and the dining services.
If this is not enough proof that there is indeed a market in human organs,
condoned by the law, let us turn a more economically-conscious eye to the process of
transplantation. At one time, it was often the case that organs passed from tissue source
to OPO to hospital to recipient. A problem with this method from an economic stance is
that there are multiple middlemen, which reduce one's ability to maximize profits. It is
economically most rational to be somewhat of a conglomerate, and this is precisely what
has transpired.
Not all organs that are donated for transplant purposes are (m'ned over to an
OPO for distribution: If a harvesting hospital operates its own transplant
program and has a suitable candidate on its waiting list, in many eases UNOS
regulations permit the hospital to transplant the organ directly into the local
candidate. Because the right to transplant an organ is valuable, it is not
surprising that the total number of transplant programs in the United States has
increased substantially, as harvesting hospitals recognize that they can obtain
shares of the available economic returns by entering the transplant business. 9
While hospitals claim not to make profits or even to lose money, the facts render that
54
possibility hardly plausible, ICJ for many are removing the middleman and keeping the
profits. I I One might pass along one's savings to one's clientele, but really there is little
economic incentive to do so, and often this just does not happen. The bargaining that
occurs between hospitals and individuals and insurance companies over the price of the
surgery gives further credence to the claim that commodification exists in the transfer of
the non-salcablcs. If it were really the case that hospitals merely covered the fees of
storage and the cost of their surgeons, transplants would be expected to cost a set amount.
It should cost x amount to transplant y from A to 13; of course, the facts disprove this
happening, for insurance companies and private individual often haggle with hospitals
over prices. While one might imagine that hospitals are only trying to get their due, they
are bargaining over prices, trying to strike a deal. One might conjecture that while there
is a set fee, health insurance companies and private individuals are often unable to meet
that given price; thus, the bargaining is a way to for the parties to rcach an agrecmcnt. If
it were often the case that hospitals were getting short-changed, getting less than their
required fees, one would expect that hospitals would be unable to continue undertaking
these types of costly endeavors, but again as more and more harvesting hospitals emerge,
it seems implausible. To clarify, my claim is not that hospitals would not do what seems
to be economically irrational; rather, I aver that such irrationality is insuPPOliable. We
find an analogy in the publishing industry. Publishing is very expensive, and often
publishing firms lose money, but when publishing finns lose money they close. People
get into this business bright-eyed but leave with sunken pride and substantially less
wealth. Organ transplantation, however, is not like this. Harvesting hospitals open and
do not close, suggesting that money is being made, not lost.
ss
If I am conect in saying that the non-saleable human stuffs are incompletely
commodified, as opposed to not commodified, the claim that we are actually addressing
shifts, somewhat. it is not merely that we do not want human tissue to be commodified
(because that is not so), and it is not merely that we do not want a celiain subset of human
tissue to be commodified (because that also is not exactly so). The claim is r e a ! ~ ) i that
while wc may dislikc that a certain subsct of human tissue is commodified, wc allow a
great deal of this commodification to occur. Furthe11110re, we have decided to curtail
commodification in a very specific way by forbidding donors to sell their tissues and
organs for transplant. In choosing to curtail commodification in this way, we allow
organizations to buy and sell parts that the very sources of these parts (and their next-of-
kin) are forbidden to sell.
If I am correct in making this conclusion, there are two large questions that
100m.
12
Ifwe arc coneerncd with curtailing commodification in the way detailcd, why, to
return to a question at the heart of this part of the thesis, do we want to curtail
commodification such that we allow complete commodification of the saleables human
stuffs but pennit only incomplete conlmodification in the case of the non-saleables? In
other words, why the limit ofthe non-saleables? The second question, the perhaps more
striking one, the one to which we will devote much of the rest of this chapter asks why
we limit our non-commodification efforts to the original donor and her survivors. Why is
it that tissue or organ donors and their survivors are forbidden to sell the non-saleables
for transplantation pll11Joses while others are, for all intents and pU11'loses, perfectly
allowed to sell these parts?
56
The Limit olthe Non-Saleables
First, we will deal with the limit of the non-saIeables. There is no justification for
completely allowing the commodification of the saleables but restricting
commodification with the non-saleables. Through the various tests through which we
havc takcn thc salcable/non-saleable distinction throughout this thcsis, nothing has
become clearer than the fact that no metaphysical line can be drawn through these two
groupings of stuffs. The distinction just does not hold. To put my point shaq)ly, there
are perhaps many classificatory schemes for bodily parts, which would create categories
of human parts, that might seem apt for building upon that metaphysical distinction a
cohercnt, moral case for banning the sale of one of those categories of human bodily
parts, but the scheme created by NOTA is not one of them.
The Limit olthe Donor
Let us now tum attention to the question about why donors are forbidden to sell
their tissues and organs while others are not. As I mentioned earlier, there are
instrumental and inherent reasons to attempt to restrict commodification; the most
obvious of the instrumental reasons is that it is just practical to limit commodification in
this way. One might say, quite plausibly 1would add, that while we can bar pcople from
selling their organs and tissues, we cannot one day opt not to pay doctors to perform
surgery, we cannot opt one day to compel establishments to store biological materials
without payment, for if we did, so the argument would go, there would be little to no
organ or tissue transplantation in this country-none of the legal variety anyway. I admit
57
that this is an extremely plausible reason and perhaps the best reason one could give, but
the concern about practicality in just this way does not mesh weI I with the rest of the
reasoning of NOTA. It is fully admitted by many who oppose a market that there would
likely be more organ and tissue transplantation in this country and more lives to be saved
and improved were there an organ market, but this utilitarian (to use the word loosely)
scheme strikes many opponents of a market as either beside the point or a claim mitigated
by other moral wonies such as exploitation and commodification. If the concem about
practicality were the reason for limiting the commodification debate to forbidding sale by
the donor, this concern would be an arbitrary one, one used at the leisure of the person
arguing. We care about practicality to ensure that we have enough doctors to perform
organ transplantation, but we do not care about practicality to ensure that there are more
tissues for doctors to perform the surgeries in the first place. IfpraclicalilJ' is used in
such a willy-nilly fashion, this would signal that something besides practicality underlies
the reasoning.
There are other instrumental arguments against commodification that might
support the NOTA scheme by which tissue and organ sourees are uncompensated. These
other arguments might allude to the possibility for poorer quality tissues in
transplantation surgeries and the possibility that prices of organs or tissues would
increase so high as to exclude some from getting these life-saving or life-improving
procedures. As mentioned before, some wony about doctor-patient relations when
money is involved, and some hold that it may be a good idea to restrict market-
alienability in this way because the public simply does not like the sound of people
selling themselves. On this last point, it might be a legislator's duty to respect and to
S8
enact the wishes and sentiments of the populace.
Beginning with the first of those instrumental reasons given, "there is no evidence
that donated human biological materials are inherently safer than their paid-for
counterparts." 13 Further, even were it the case that sold organs were of worse quality, it
would seem that this is an argument not for prohibiting the sale of organ but for the
implemcntation of rcgulations to asscss thc hcalth of organs and tissucs, rcgulations that
14 15
should already be there.
The second of these instrumental reasons concerns rising costs. One could claim
that, in the event that organ and tissue donors were compensated, the costs of
transplantation would rise so high as to be inaccessible to some, and, the argument
continues, this type of inequality, particularly in an area as important as healthcare,
should not be permitted, let alone fostered. 16 Should this phenomenon of rising costs
occur (which some thinkers dcny17), this objection sccms not nccessarily likc an
argument for the prohibition of sale but, again, onc for further regulation of the market.
No one says, for instance, that houses ought not to be sold because they could become so
expensive that some would be unable to afford them. This claim is rarely made. Why?
It is because there is regulation of the sale of homes: there are price ceilings and
programs of public assistance. Simply put, if one is worried about rising costs, there are
ways of attending to that problem without resOliing to refusing to compensate organ and
tissue donors; thus, it would seem that there must be some other reason that one would
have for prefening this method of reducing costs. To clarify the argumentative structure
I am employing herc, let me use an example. Suppose there are two people sitting
outside; there are indoor toilet facilities and an outhouse nearby. A says to B, "1 have to
S9
use the restroom; I'm going inside." On the face of things, the reason why A is going
inside is to use the restroom, but there must be another reason why A is going inside.
There is an outhouse, too. One part of the reason why A is going inside is that this
person has to use the restroom, but the other part may be that the outhouse is occupied,
dirty, out of service, or farther away from A than the indoor lavatory is. In other words,
in explaining why A ehose to go inside over using the outhouse, the answer cannot be
because A needed to use the restroom. Retuming to our discussion of rising costs, the
reason for forbidding organ donors to sell their parts (and for allowing others to buy and
sell these parts) cannot merely be because we want to reduce the high cost of
transplantation. We could create a plethora of ways to do that, and further, there are
many times when we want to keep prices low, yet we decide not to do anything about
that. There must be some additional argumentation to explain the full rationale.
On to the third instrumental reason, some allege that if patients were selling their
tissues and organs, this could lead to bad relations between doctors and patients.
Once the rights [to someone's tissues and organs for transplant] have been sold
[if one contracted in advance for a cadaveric transfer], there will be somebody
with a financial interest in the individual's demise. People might suspect that
this incentive could perhaps be brought to bear in some way on the doctors and
hospitals responsible for treatment in life-threatening circumstances, rendering
them less than zealous in sustaining life when the individual's organs appear

I have two responses to this. 1) If somehow these bad relations emerged with the advent
of patients selling their parts, this seems like an argument for more regulation, not for
prohibiting organ and tissue donors to sell their parts. If one is afraid that doctors will not
provide care apposite to the situation at-hand beeause the doctor has financial interests
perhaps at odds with the continued good health of their patients, one should ensure that
doctors do provide care at the standards to which the community-at-Iarge has agreed. Of
60
course, as Hansmann notes, "[t]hough such fears would presumably be unrealistic under
any properly regulated regime, they might not be easy to allay.,,19 2) Having this concern
does not in ~ l c t explain, in the least bit, why the patient, who may later die, should be
forbidden to sell their paris. In fact, it would seem to me that doctors, under the current
system, already often have financial incentives not to behave as they should with their
paticnts bccausc grcatcr profits cxist undcr the current system than under a system with
more middlemen to share the profits to be earned. If the donor is uncompensated, it
would seem that the value is transfened to the next parties in the trade chain. To
recapitulate my points, if the charge is that further commodification will cause bad
relations between doctors and patients, the answer is not forbidding organ sources from
selling their tissue but is enacting more regulation of doctors' duties; furthermore, in the
act ofjustifying this fon11 of incomplete commodification by referencing improper
financial incentivcs possibly rcaped by doctors, wc ignore thc rcalities in which wc Iivc,
which already fcature great financial incentives for wrongdoing.
Finally, onto the final point, that the populace has an aversion to compensating
tissue and organ donors-this merely begs the question that we are trying to answer.
Why does the populace find fault with this practice? If these seemingly good reasons on
the instrumental side all ~ l i l to explain this manner of curtailing commodification of
transplantable parts, we might then turn our attention to the inherent reasons.
In the absence of reasons provided by lawmakers themselves, I have, again, tried
to generate reasons for objecting to commodification, this time on inherent grounds. The
main inhcrent reasons, found by perusing the literature, are 1) it is simply better to donate
rather than to sell one's tissues or organs 2) it is somehow corrupting or tainting to the
61
human tissue to be sold.
The first of these inherent reasons is that it is simply better to donate rather than to
sell one's tissues and organs. One can come up with a number of reasons why this is the
case. One might rely on the norm of human t10urishing as Radin does or on virtue ethics
as Ruth Chadwick does.
20
Whatever the philosophical system underlying the claim, the
claim cashes out to the same total that it is always better to donate rather than to sell
one's organs, and as such, we should foster an altruistic system over a commodifying one
to the best extent possible. Even if one were to grant that this is so, even if it were better
to donate than to sell one's organs, this still does not explain why it is wrong to sell one's
organs. It may be better for one to give out food for free as well, but even if it is better to
give away food for free, no one is claiming that it is wrong for someone to sell food. If
lawmakers did take this stance, additional argumentation must be provided to explain
why it is not only better to donate but also wrong/it! to sell one's organs? Moreover,
this explanation also docs not explain why the moral claim is restricted to the donors.
Why is it not also better that doctors give away their services for free? Why is it not also
better that OPOs give away their services for free? Is it not also better for them to donate
their time and resources rather than to sell them? In other words, the claim that it is
better to donate than to sell organs does not explain why donors are singled out in this
attempt to curtail commodification.
The second claim is that market rhetoric corrupts or taints the good in question.
Lawmakers could have relied upon this, and there might have been precedent for this sort
of reasoning given that secular rationales for banning prostitution, for example, exist in
the US. The idea that und.erlies claims of this sort postulates that there are certain
62
appropriate ways to treat and to speak of things and certain ways that are inappropriate.
One is less likely to devalue the person, who is/was the transferred part, if one takes away
the comlnodifying language and relations around the organ (at least, at first). The
underlying idea is that the market communicates a system of valuation that necessarily
excludes non-pecuniary value. The article from the Harvard Lmv Revievv insists that
while gifts convcy non-pecuniary value, barter and sale do not;22 however, some voices
like Brams
D
and Mahoney24 disagree. While the f0l111er idea is given voice in the works
of Thomas Murray in his argumentations on the power of gifts, 25 the vision of the market
advocated by Brams, Mahoney, and others is one US law actually espouses. We must
recognize that the law rarely communicates hard and fast rules or metaphysical
judgments about anything, for the law is pluralistic or heteronomous. Take for instance
non-profit organizations, a particular class of businesses that receive special treatment
bccause it is clear that though they engage in market activities, they attempt to advance
certain non-pecuniary values. The law recognizes that usc of the market docs not signal
that money and markets are the only things that matter to an individual or group using
that market. Non-profits are but one example when the law sees that things often have
comn10dity value and other value; Mahoney, calling attention to the way the law permits
commodifIcation in other 'priceless' areas oflife, writes, "Market participants frequently
have motives that extend beyond simply making money. For example, nurses, teachers,
and transplant surgeons accept compensation for work that has significant non-pecuniary
meaning to them.,,26 Some rules surrounding housing, utilities, and education show that
people realize that these things cost money and are commodities yet also have value
inexpressible in monetary terms. The metaphysical claim that markets say something
63
about bodies that we do not like and that we need to sOl11ehow restrict the presence of
market values from persons by way of curtailing sale of organs and tissues in the manner
selected seems of out of sync with the law. Market relations can say a number of things;
thus, that it is not necessarily the case that a tainting, corrupting, disrespectful message is
sent because markets can say a number of things. 27
Conclusions
In closing this chapter and the analysis of NOTA, let us focus on both specific
arguments and the overalJ narrative relayed. NOTA was created in 1984 in response to
the Jacobs proposal. The law allegedly sought to remedy possible exploitation of donors
and commodification of human biological materials. In attempting to achieve its goal,
the law bifurcated human transplantable parts into two distinct but arbitrary categories:
onc for which sale by thc donor is pCl111itted and the other for which sale by the donor is
prohibited. The categorization is not based upon the organ/tissue divide, the
phenomenological categories offered by ChelTY, regeneration, the risk of physical ham1
to the donor, or any coherent moral claim that one category should be commodified while
the other ought not to be commodified.
In examining the commodification claim specifically, I have shown that the
supposedly anti-commodification arguments about rendering the non-saleable human
stuffs totally market-inalienable are best read as a push to allocate the great financial
benefits to persons other than the donor or her survivors. Very few reasons for curtailing
commodification in this way seem, by the end of the analysis, to make much sense.
Perhaps lawmakers wished to appease a public that wanted, inexplicably, a policy which
64
would allow payment to everyone in the organ trade but the donor. While this is a
sensible motive on the part oflegislators, such a belief on the part of the electorate would
need to be explained and could not be. Perhaps, lawmakers disliked a negative message
market rhetoric and relations supposedly have, but the various ways in which the law
treats commercial establishments and behavior demonstrates that a reductionistic theory
that the law views markets as necessarily excluding non-pecuniary value is unfounded.
Of course, lawmakers could have espoused this opinion, without thinking more carefully
about the law, and maybe that is the best explanation of the configuring the law in this
way.
In the final part of this work, we win examine what has transpired in the domain
of national and state legislation (and legislative attempts) since the early 1980s before
offering ways to overcome the arbitrary chaos of the law and concluding my account.
65
NOTES FOR CUAPTERFIVE
1. See (2003). "The Price of Everything, the Value of Nothing: Rehlllling the Commodification Debate."
Harvard Law Revielv 117(2).
2. Radin, M. .T. (1987). "Markct-Inalienability." Harvard Law Review 100(8): 1870. She writes, "A
traditional critical response to universal commodification, at least since Marx, has been a global of
commodification. Universal decommodification or noncommodification maintains that the market ought
not to exist and that social interaction involving production and consumption should be reconceived in a
nonmarket way."
3. ibid. at 1858.
4. Mahoney, J. (2000). "The Market for Human Tissue." Virginia Law RevieH' 86(2): 165.
5. ibid. at 180.
6. Ibid. at 182.
7. Ibid.
8. Ibid.
9. ibid. at 180-181.
10. ibid. 181.
11. See Waldholz, Michael. (8 Aug. 1984). "Red Cross's Plan to Procure Organs Could Hurt Smaller
Organizations." 'Wall Sireel Journal.: 33. This article, written around the time ofthe passage of NOTA,
explains how profitable the organ business was. "The American Red Cross, concemed about the future of
its ILlcrative blood-banking program, is quietly preparing to enter a new business: procuring human organs
and tissues for transplant operations. At stake are hundreds of millions of dollars in organ-procurement
fees." Also see McCartney, Scott. (1 Apr. 1993). "Agonizing Choices: People Most Needing
Transplantable Livers Now Often Miss Out." Wall Street Journal.: AI. This atiiele also uncovers aspects
about the organ business, referencing the "dozens of new transplant programs scurrying to get in on what
had become a $500 million market, a market that was growing so f ~ 1 S t that hospitals were offering mi1lion-
dollar signing bonuses to lure coveted transplant surgeons."
12. Actually, another question also looms, and this question asks why the specification.f()}' transplantation
pUlJ!oses only. This was mentioned in passing in Chapter 3, but I will say now, as I did then, that space just
does not permit for discussion of this question.
13. Mahoney, .T. "The Market for Human Tissue.": 212.
14. Of course, this should is meant conditionally, like all the other slumld's in this thesis.
IS. As Marvin Brams puts it, "Objections to organ sale based on the argument that donors in need of
money might lie about their health and that, as a result, there would be an increase in the percentage of
inferior or diseased organs, cannot be discounted. But it should be noted that careful physical examination
of the donor prior to organ removal, and of the organ itself after removal but prior to transplant, could
greatly minimize risks to the donee." Brams, M. (1977). "Transplantable Human Organs: Should Their Sale
Be Authorized by State Statutes." Al71erican.Journal olLaw and Medicine 3(2): 192.
16. (20tH). "The Price of Everything, the Value of Nothing.": 690, this article from Harvard Law Review
calls this 'the access formulation ofthe anticommodification objection tl'om coercion.' As I mentioned
above, this ,11iicle is helpful in helping us see why commodification might be wrongful on celiain
occasions, but these 'definitions' or 'conceptions' of commodification presuppose a simpler, value-neutral
version of commodification like the one I provided.
17. Mahoney, J. "The Market for Human Tissuc.": 214.
18. Hansmann, H. (1989). "The Economics and Ethics of Markets for Human Organs." Journal olHealth
Politics, Policy, and LCllV 14(1): 69.
66
19. [bid.
20. It is important to note that these theorists are giving their own reason for disagreeing with organ sale;
they are not attempting to support a law made in the fashion of NOTA specifically. I selected them
because they made the types of arguments that lawmakers could have adopted.
21. The difference turns on that point made about law during the previous chapter. When prohibiting a
practice, laws not only claim that the world is morally superior without a given practice; in addition, laws
claim that the world is morally superior with the state trying to eliminate that practiee in the manner
stipulated by law.
22. The article asks, "if the gifting ofX(blood, child) is pennissible, how can we object to its sale'? The
solution" the author suggests, "is to identify something about sale and barter, but not gift, that is
denigrating... This puzzle leads to the expressive nature of the transaction. A sale or barter is about trade,
substitution, or to put it formally, a relation in which equivalent or nearly equivalent goods have been
exchanged... With gifts, however, there is no assumption of value equilibrium." "The Price of EvelYthing,
the Value ofNothing.":705.
23. Brams, M. (1977) at 192. Brams contends that a sale may convey feelings oflove, in the case of selling
an organ.
24. Mahoney, J. "The Market for Human Tissue.": 205.
25. Murray, T. H. (1987). "Gifts of the Body and the Needs of Strangers." The Hastings Center Report
17(2): 31.
26. Mahoney, .T. "The Market for Human Tissue.": 205.
27. See Matthews, P. (1983). "Whose Body? People as Property." Current Legal Problems 36: 194-195.
Matthews shows how the common law tradition views propeliy rights in many diverse ways.
67
C1JAPTER 6: CONCLUSIONS
The Ajtennath
The summer of 1984 is not where the story ends. Actually, the passage of NOTA
marks the beginning of another story, the story of a nation coping vvith an incoherent law.
In 1986, California passed a law "directed against brokering organs rather than
the direct selling from a donor to a recipient. There is an exception to the ban on selling
and buying for' the person from whom, the organ is removed, [orJ ... the person who
receives the transplant, or those persons' next-of-kin who assisted in obtaining the organ
for purposes of transplantation. ",] Though direct donor-to-recipient organ and tissue sale
has been nominally legal under California law since the passage of this statute, the
practice remains illegal, given that current jurispnldence understands NOTA to override
state pronouncements on the topic.
Also in 1986, the federal Task Force on Organ Procurement and Transplantation,
commissioned by NOTA "to inquire further into the policy issues raised by transplants,,,2
released its report. The report made a few small recommendations about modifying
NOTA, but, by and large, it reiterated the tenets of the law. The view about organ and
tissue sale was not one of those seriously revisited, much less revised.
Throughout the years since the passage of NOTA, there have been frequent
attempts to increase the number of organ and tissue donations, and in the course of those,
the issue of incentives has been repeatedly raised. In 1988, Connecticut considered a law
"calling for a refund of$10 of the fcc for the renewal ofa driver's license for individuals
who agree to donate their organs."} In 1999, Pennsylvania considered an incentive
68
scheme, whereby "families that agree to donate cadaveric organs will receive a $300
stipend to be used to offset burial expenses.,,4 In Congress, there have been a number of
hearings to address the organ shortage and assessing the appropriateness of incentives; as
recently as 2003, there was yet another hearing and yet another refusal to permit
incentives.
5
Thcse events suggest a number of things about the underlying moral judgments
about the effects of NOTA. Most generally, that there were so many efforts to revisit
issues of sale and remuneration indicates that the infrastructure erected by the law fails to
realize the moral vision of lawmakers and others given the realities of the world. More
specifically, consideration of the post-NOTA happenings allows one to infer three main
moral judgments held by the relevant legal practitioners.
First, I want to turn attention to the task force created by NOTA to explore the
practical and moral issues raised by organ transplantation. As Hansmann indicates, this
task force, with its 1986 report merely, "rcaffirn1ed NOTA's ban on the
commercialization of organ transplantation without further analysis, simply offering the
conc1usory observation that 'society's moral values militate against regarding the body as
a comn10dity. ",6 Hansmann is probably right that this task force merely reiterated the
view the law espouses; however, one might wonder whether a more radical reading is
possible. Since 'society's moral values militate against regarding the body as a
commodity,' do society's values entail a more thoroughgoing critique of the
commodification inherent in organ transplantation as currently practiced?
Secondly, I want to highlight the Califomia anti-brokerage law. This state statute
made it illegal to establish a commercial enterprise for buying organs for the purpose of
69
trading them to recipients. Of course, Timmediately wonder why more harvesting
hospitals are not prosecuted under this law, but in a less tlippant mode, I think this law
may actually capture some of the moral commitments held by lawmakers at the time of
NOTA and perhaps even still today. Recall that NOTA was passed, in large pcui, because
someone, namely, I-I. Barry Jacobs, tried to establish an organ and tissue brokerage firm
involving illitcratc potcntiallivc donors f1'om dcveloping countrics and moncycd,
probably desperate, possible recipients in the United States. As I mentioned earlier, if
exploitation is one's WOlTY, this situation may certainly raise a red flag. This law
illustrates how one might worry about exploitation but refrain from some of the bold and
ultimately quite curious and cont1icting claims of NOTA. The California law embodies a
concern for ensuring that donors (and possibly recipients, too) receive their moral due in
a transaction in human tissue without going as far as setting prices for human parts which
may be inappropriate on a number of grounds.
Finally and pcrhaps obviously, the issuc of increasing thc supply of available
organs and tissues continues to be a key eoncem to lawmakers. Time and again,
legislators and others have asked how to augment the number of donations, live or
cadaveric, without introducing financial incentives; time and again, strategies have been
devised and implemented, and nothing yet has substantially alleviated the shortage. The
failures of efforts to increase donation rates without incentives is a much belabored point
in the literature on organ procurement, and thus, it is unlikely that I can add more much
of importance to the discussion. There, however, is one question must be posed: in the
domain of human transplantation, will the utilitarian concem about the sheer number of
lives lost forever play third-fiddle to concerns about individual choice (as in the UAGA)
70
and certain justice claims (as in NOTA)7 Whi Ie US law certainIy does not espouse
something akin to a rescue principle, one does have to wonder whether there would be
some point at which the shortage is deemed so severe that saving lives in this way
overrides other moral commitments. I would suggest that the two decades of failing to
increase rates of organ and tissue donation without incentives is a performative posing of
thc qucstion I askcd abovc: when do the many lost lives bceome too many to justify.
Forging Ahead
The answers to the preceding questions, I do not know. What I can offer are
suggestions about how to proceed in crafting a system of organ and tissue transplantation
that is more logically consistent. My suggestions will not take the mold of fully
formulated, new systems of law because that project is just that, another project. I can,
however, name the three main hurdles drafters of any system of organ and tissuc
transplantation will inevitably face in constructing a coherent framework.
First, the moral considerations which would undergird a revised system of organ
and tissue transplantation must be sensible for cadaveric donations as well live donations.
Too often, a standard is thought to be a good heuristic for evaluating whether the specific
pari ought to be sold or even donated, but the standard only works in one domain, living
or cadaveric donations. Taking regeneration as an example; some might argue that blood
should be sold because it regenerates but not kidneys because they do not regenerate.
This notion, while sound, only makes sense, it seems, in the domain of living donors. It
makes little sense to use this standard when talking about cadaveric donation because the
possibility for physical harm, which likely undergirds the claim about regeneration, is
71
inconsequential when the donor is already deceased. My suggestion is not that the same
standard must govern both living and cadaveric donation; instead, standards must be
sensitive to the class of donors involved. If there are multiple standards to be en1ployed,
there must be some overarehing moral story to tell about how to employ the various
standards.
Talk of how to employ different standards leads into the second main issue with
which drafters of a consistent system must deal: making the classifications of organs and
tissues actually conform to moral wOlTies or concerns. This is closely related to the
previous point in that this potential hurdle also carries with it the possibility that one's
heuristic actually fails to include everything it intends, no more and no less. To use
regeneration as an example again, iflegislators decide one is allowed to sell one's own
tissue or organ if the relevant part is regenerative, then every tissue and organ that is
regenerative should be included in that list. One should not, as the law cUlTently docs,
allow the sale of certain renewables like sperm and blood plasma but forbid the sale of
other renewables like bone marrow and liver tissue, ifregeneration truly is one's
standard. Again, as mentioned above, I do not suggest that one must employ only one
standard, for one might think that the criterion ofregeneration is impOliant sometimes
and the criterion of safety is impoliant at other times. For example, one might think that
one should permit the sale of regenerative tissues and organs so as to allow the sale of
blood and sperm by living donors; however, one might think that one should forbid the
sale of liver tissue by living donors because of the relatively higher risk of inj ury
associated with extracting livers than with collecting blood or sperm. This type of
72
framework, to be consistent, must have some overarching moral rubric to explain why
one standard is to apply in x cases and another standard in y cases.
The final hurdle or hindrance to making a consistent legal framework in the
domain of organ and tissue transplantation concerns the various commodification
arguments. In actuality, this is not one hurdle but a cluster of problems. First, if the
wrongfulness in commodifying organs and tissues turns on who the seller is, as the law
seems to allege at present, then there must be a rationale for that. Second, if one aims to
rid the procedure of transplantation from commodification more completely, one must A)
follow through with that intention and B) explain why it is necessary to rid
transplantation of commodification but not the rest of healthcare. Third, one's argument
to prohibit the sale of certain organs and tissues must not entail prohibiting the donation
of these parts if one's purpose is to retain a donation system.
The Narrative
I began this work talking about Forrest Gump, a film that chronicles great social,
moral, and political change during the latter half of the 20
th
century, and I hope to have
done the same, by examining a small issue in the sprawling melange of concerns that
animated the same period of time.
Thc story I told began by referencing the confusion that characterized the
beginnings of the modern transplant age. This confusion seems not to have been
primarily about whether it was illegal to transplant organs; rather, legal practitioners
wonied about civil liability for doctors and figuring out a standard method for people to
73
transfer their bodies or parts of their bodies, upon death, to others for transplantation
purposes among others. Out of the confusion came the UAGA in 1968.
The UAGA, while adding clarity to the legal terrain, was a law that led to its own
demise by promulgating moral tenets its drafters hesitated to endorse or endorsed
tentatively. The strong individualism of the law-evidenced by the fact that it effectually
legalized unregulated sale of human tissues and organs and explicitly allowed organ
donors to give their parts to whomever they selected-clashed with concems about
justice that its drafters certainly held. The maxim one can deduce from that story is one
must say what one means and mean what one pens into law. Not to jumble my small-
scale narrative with the larger narrative of social change in the United States, but it seems
only fitting that an over-concern with individual freedom should have happened in the
late 1960s.
In response to the inadequacics of the UAGA, NOTA was passed sixtecn years
later. This new law was prompted by the public announcement that H. Barry Jacobs, who
was quite literally a con artist, was planning to do precisely what the drafters of the
UAGA feared could happen by consequence oftbeir blank-check of a law. NOTA was a
strict response to the problem of injustice, an injustice that centered around the possibility
of exploitation and wrongful commodification. Again, not to mix narratives, but it also
seems only fitting that these strictures should come about under the conservative Reagan
administration. Of course, the story is complicated by the fact that the bill was
introduced in Congress by the moderate/left-leaning Al Gore.
NOTA, though considered by legislators and others over a period of months,
established a poorly-constructed framework, riddled with inconsistency and arbitrariness.
74
In the course of trying to make a law to address concems about exploitation and wrongful
commodification, words and concepts were frequently misused, and even the expert
witnesses called to testify seenled ignorant of the moral complexity ofthe situation.
Specifically, through this law, human transplantable paris were bifurcated into two
groups, the saleable stuffs and the non-saleable stutTs, but upon probing the classificatory
schcmc, onc noticcs that thcsc groupings lack cxplanation.
In trying to understand the moral concems that underlay the legal structure, there
was a way in which I practically imposed definitions and logic on the discussions about
exploitation and the like. It may have at times appeared that my choices were
intellectually self-serving or too charitable, but my renderings, 1 think, provide the best
understanding the concerns held by lawmakers.
In analyzing the claims about wrongful commodification, I confronted much
confusion and arbitrarincss. As I argucd, commodification tout court sccms not to havc
bccn thc problem as thc law csscntially grants hospitals and others thc right to buy and
sell organs. I tried to make sense of why donors were prohibited from selling their own
organs while others were allowed, and it seemed difficult not to regard this choice, like
the saleable/non-saleable distinction, as arbitrary.
In the years after NOTA, there were repeated attempts to ameliorate US policy on
transplanting organs and tissues, and none of these efforts culminated in a more coherent
system that would realize the moral principles of NOTA.
Throughout my account I have refused to offer a prescription, to declare what I
think should or should not happen. While I still will not offer 111Y opinion, I close this
thesis with the submission of what I regard to be a fact: given the situation at this juncture
75
in America, either our desire not to have incentives for donors in human transplantation
or our desire to save more lives of those in desperate need of transplantable organs and
tissues has to go.
76
NOTES FOR CHAPTER SIX
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3. Tbid at 63.
4. Mahoney, J. (2000). "The Market for T-hunan Tissue." Virginia Law Review 86(2): 178-179.
5. See (2003). Assessing initiatives to increase Olgan Donations: Hearing be/ilre the Subcommittee on
Oversight andinvestigations, (llthe House Committee on Energy and Commerce. 108th Cong., 1st Sess.
6. Hansmann, H. "The Economics and Ethics of Markets for Human Organs.": 59.
77
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