Organ sales - is buying a kidney more severe than murder?
By ASHER MEIRorgan transplant 88(photo credit: )
While new ethical problems are popping up all the time, new ethical approaches are actually pretty rare. So, I was intrigued by a recent article by law professor Eugene Volokh on a topic I have often written on: selling organs. Professor Volokh of UCLA has a novel legal approach to justify these sales, that is, for people with dangerous diseases, enabling them to buy organs is part of their right of self-defense. He calls the suggested right "medical self-defense." His article is set to appear in a forthcoming Harvard Law Review and, in the meantime, is circulating in cyberspace.
The organ-selling controversy has been roiling for centuries. The pioneering 18th century ethicist Immanuel Kant concluded that selling organs was unethical because it reduced human beings to a means to an end, whereas Kant believed that the very foundation of ethics was to treat other human beings as ends in themselves, never as merely a means to an end. (Kant called this the "practical imperative.")
Kant's unstated premise was that a human organ was an inherent part of the human essence. (Kant was referring to teeth, which were probably the only organ susceptible of transplant in the 18th century.) I believe that the current consensus against allowing free sales of organs can be traced to this Kantian approach, which today is often referred to as "commodification" of the human being - reducing a person to a commodity.
This argument is very weak indeed as I think that even today's opponents of organ markets would balk at forbidding sales of teeth - at any rate they don't seem to be opposed to selling hair. Selling a tooth or a kidney is not the same as selling a baby. A person with a missing tooth, kidney or liver lobe is still the same person s/he was before.
Another argument is that rich people would exploit poor people by buying their organs. That is true in the same sense that rich people exploit poor people by hiring them or buying goods from them, but we generally don't outlaw these activities, at least not in the name of protecting the poor. Many impoverished people need tens of thousands of dollars more than they need a spare kidney. At any rate, poor people also get kidney disease and would benefit more than anyone from an inexpensive source of organs.
Professor Volokh's claim is that the right to self-defense is universally recognized to trump many other legal restrictions, including the most severe. Even murder is justified in self-defense. He points out that courts have also agreed that self-defense can justify breaking laws against late abortions (Jewish law also adopts this position) and against administering unapproved drugs. Conclusion: even if restrictions against organ sales serve a legitimate public interest, they would have to be very powerfully rooted in order to stand in the way of self-defense in the case of a recipient in mortal danger. Is buying a kidney a more severe crime than murder?
It should be pointed out that this would not validate a general right to organ sales, only in those cases where the recipient is in great danger. However, the right to self-defense has varying levels and a level of self-defense that would not be a defense against charges of homicide would constitute a defense against charges of assault, and so on. So we would expect that existing legal principles would suffice to justify some organ sales even in illnesses that are serious but not life-threatening, again assuming that the prohibition against organ sales is not viewed as being on the highest possible plane of legal protection. (It is important to point out that bans on organ sales are not meant to protect the donors against unsafe practices. It is perfectly legal to donate an organ if you don't get any money, and selling organs is illegal even if they come from cadavers, whose safety is not compromised by the donation.)
I think that the ban on organ sales is one of humanity's most remarkable and bizarre institutions for self-harm. Hundreds of thousands of people die waiting for organ donations so that hundreds of thousands of others can be deprived of payment, which in many cases would be equally life-saving - the law causes severe harm to millions and benefits none.
Since I am not a jurist I cannot comment on the legal merit of Professor Volokh's doctrine, but self-defense as well as the broader concept of saving life is obviously a fundamental ethical principle, as well. I congratulate Volokh on articulating an interesting and valuable ethical approach, and I hope that it will help lead to more lenient policies for providing payment to deserving organ donors.
The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology. ethics-at-work@besr.org
