Human Rights Promotion (18): To What Extent Can We Count on the Free Market?

Why not use the free market to promote human rights? The free market – or the market for short – is the name of the institution, protected by government rules, which allows individual or collective agents such as firms to freely exchange goods and services. Agents exchange things in the market for self-interested reasons and they tend to use money as the medium of exchange, but that doesn’t mean we’ll only see greed and accumulation of wealth resulting from the operation of the market. I’ll show that we can, to some extent, count on the market to further the cause of human rights.

But let’s start by complicating things a bit:

• The market can either benefit or harm human rights.
• And human rights can either benefit or harm the operations of the market.

Hence, the relationship between market and rights is difficult, to say the least. Here are a few examples:

Some human rights are a direct benefit to the market. Take for example the right to private property. This is a human right and it’s one that is generally conceived to be essential for the efficient operation of a market (some even argue that this right justifies free markets, but I want to sidestep issues of justification here and focus on consequences). You can construct a similar argument in the case of other rights such as the right to free movement, to assembly etc. At other times, however, human rights can hinder the market: privacy is a human right but privacy can cause asymmetrical information which in turn causes market dysfunctions.

Markets can have a similar two-sided effect on human rights. Conventional wisdom says that the market is the institution that delivers the highest possible level of prosperity, compared to other ways of organizing the economy. Higher prosperity may benefit certain specific human rights such as the right not to suffer poverty, the right to work etc. This benefit may occur because additional wealth “trickles down” or because additional wealth means additional redistribution. In general, it’s the case that rights cost money, so increased prosperity should, all else being equal, lead to increased rights protection across the board.

A more indirect way in which the market benefits rights is through it’s focus on individualism: the market – as opposed to a centrally planned economy – allows individuals to choose when and what to trade. Individual freedom is also at the heart of human rights. Some have also argued that the rational self-interest that is typical of people engaging in market transactions counters some dangerous and often violent passions such as xenophobia, nationalism and racism. If people trade with one another, they may become more tolerant of one another, if only because trade requires contact, respect, trust and peace. Tolerance and peace are of course also beneficial to human rights. And, finally, both the market and human rights requires the rule of law. If markets foster the rule of law, then that will benefit rights as well.

However, other aspects of markets can harm human rights. A strict interpretation of property rights – something we often hear from defenders of the market – may make redistribution difficult if not impossible, and some rights depend sometimes on redistribution. Think again of the right not to suffer poverty. More generally, markets can have two types of effects that may harm human rights indirectly:

• Markets tend to “colonize” areas of life where an exchange of things for money is perhaps not the best way to proceed. Some goods can only be valued when they are shared rather than exchanged (e.g. art). In other cases, exchanging goods can destroy their value (e.g. political votes), just as pricing goods can destroy their value (e.g. gifts). I can also mention some types of commodification of the body such as prostitution or organ trade. While commodification of the body is not necessarily a rights violation in itself, it does devalue the dignity of human life. People are treated as means rather than ends, and a devaluation of human beings makes human rights violations more likely.
• In some sense, this instrumentalization of the other is inherent in all market transactions, not just those in which bodies or body parts are traded. Market transactions are by definition self-interested and impersonal. We only buy or sell when that makes us better off and we don’t need to get to know our buyers or sellers. We use them simply to satisfy our needs. While self-interest and lack of personal relationships in one area of life do not necessarily harm relationships, communities, caring and common deliberation on the public interest in other areas, they can do so when markets “colonize” those other areas.

And, finally, there’s the risk of exploitation in market transactions, which I have discussed here.

I’m more interested in the effects of the market on human rights than in the effects of human rights on the market. Human rights are the ultimate good, and markets are generally a means (at best, markets are one form of exercise of certain human rights). Since the effects of the market on rights can go either way, the question becomes one of limits. If the market harms human rights, or if it expands into areas where market-transactions can indirectly harm human rights, then we have good reasons to limit the operations of the market. However, when doing so we must take care not to go too far and undo the positive effects of markets.

These limitations don’t always have to be of a legal nature. A good public education system can create a culture that helps to keep markets in their place. Governments can acquire art collections and thus remove them from the market. Or they can promote organ donation in various ways (e.g. reciprocity and presumed consent) so that organ shortages don’t force people into markets (legal or illegal markets). Welfare can help poor people avoid exploitative market transactions. And so on. However, legislation is often unavoidable if we want to protect rights against the market.

More posts in this series are here.

The Ethics of Human Rights (77): The Case Against the Sale of Human Organs, Ctd.

Take a look at the following conflicting facts:

1.

There are currently 113,198 [U.S.] patients on the United Network for Organ Sharing wait list for organ transplants. With only 28,535 transplant surgeries performed in the United States last year, it is clear that actions need to be taken to increase the supply of available organs. Around 7,000 Americans die each year while waiting for a suitable transplant (source).

2.

In a study of India’s kidney market, 86 percent of donors had major health issues after their surgery. … The same study of kidney sales in India revealed that 79 percent of sellers regretted their decision to donate an organ and a shocking 71 percent of sellers were married women. Because poor women in India have little power, they can be easily forced by their husbands to sell their organs. (source).

Good health and survival are human rights. Those of us who have objections to unregulated markets in human organs have to show that markets fail, on balance, to further human rights protection and that alternative systems of organ provision perform at least as well as organ markets in terms of human health and survival. It’s important to note here that the comparison of the cases for and against organ sales will have to take the human rights of all – buyers as well as sellers – into consideration, and will also have to factor in all human rights and not just the rights to health and survival if the case against organ markets can show that other human rights may suffer if markets are implemented.

The typical argument against organ sales – and, by extension, against other types of commodification and other instances of the “imperialism” of the market – consists of three parts:

• some “things” are degraded or corrupted if turned into commodities
• if some “things” are traded for money then the profit motive may crowd out other types of motivation, and those other types of motivation are often morally valuable
• organ markets are typically coercive given the fact that poor people will be coerced by economic necessity to sell their organs.

The first point has been stated most clearly by Michael Sandel:

[M]arkets don’t only allocate goods; they express and promote certain attitudes toward the goods being exchanged. Paying kids to read books might get them to read more, but might also teach them to regard reading as a chore rather than a source of intrinsic satisfaction. Hiring foreign mercenaries to fight our wars might spare the lives of our citizens, but might also corrupt the meaning of citizenship. Economists often assume that markets are inert, that they do not affect the goods being exchanged. But this is untrue. Markets leave their mark. … We don’t allow children to be bought and sold, no matter how difficult the process of adoption can be or how willing impatient prospective parents might be. Even if the prospective buyers would treat the child responsibly, we worry that a market in children would express and promote the wrong way of valuing them. Children are properly regarded not as consumer goods but as beings worthy of love and care. Or consider the rights and obligations of citizenship. If you are called to jury duty, you can’t hire a substitute to take your place. Nor do we allow citizens to sell their votes, even though others might be eager to buy them. Why not? Because we believe that civic duties are not private property but public responsibilities. To outsource them is to demean them, to value them in the wrong way. (source)

Market values can indeed change how we look at things. If a human body is viewed as an organ mine, then ultimately this can destroy the dignity of the body, of the human person and of life itself. There is an inescapable incompatibility between the view that something has a financial exchange value and that the same thing has dignity. The horror of slavery wasn’t merely defined by the pain, the oppression and the lack of freedom suffered by slaves, but also by the fact that slaves were viewed as commodities rather than human beings. And although it’s unfair to compare organ trade to slavery, the same commodification and financial market logic underlies both. Commodification of the human person, whether as a whole or in part, is a failure to treat human beings with dignity and respect. Human beings shouldn’t be used as tools, instruments or resources.

Not even if it means saving people’s lives? Yes, not even if it means saving people’s lives, on the condition that there are other feasible ways of saving people’s lives. And there are. The fact that current rates of donation are not always and everywhere sufficient to meet the growing demand does not imply that all possible donation schemes are insufficient. Rather than giving up completely on donation just because current schemes don’t always work well we should focus on improving it, especially given the serious drawbacks of the market system that is hastily and sometimes lazily proposed by some.

I do understand the tendency of some to look for market solutions, especially given the success of markets in other areas of life. But there’s no good reason to assume that all social relationships should be financial ones.

The second objection to organ sales is that market values crowd out non-market values worth caring about such as altruism and solidarity. Not only is this intuitively persuasive – if people get money for things it’s likely that they’ll stop giving it away for free, and that giving in general will become rare when market values invade every part of life – but there’s also some evidence. This paper argues that donation rates would decline in a market, with detrimental consequences for social relationships. And this paper also finds evidence of crowding out.

I’ve dealt with the third objection – the coercion objection – in an older post.

What Are Human Rights? (48): Something That Can Be Bought?

Take a look at this list, helpfully compiled by Michael Sandel:

• In Santa Ana, California, and some other cities, nonviolent offenders can pay for a prison-cell upgrade costing $90 a night. This gives them access to a clean, quiet jail cell, without any non-paying prisoners to “disturb” them – read: rape them.
• Couples believing that their infertility impedes their right to a family life can buy an Indian surrogate mother for $8,000, less than one-third the going rate in the United States. Similar transactions take place between patients in need of organs and willing donors, the latter of course very often poor and desperate.
• In the U.S., patients who want easy access to a good doctor can buy their doctor’s cellphone number for $1,500 and up per year. A growing number of “concierge” doctors offer cellphone access and same-day appointments for patients willing to pay annual fees.
• People wanting to emigrate to the U.S. can do so when they invest $500,000 and create at least 10 full-time jobs in an area of high unemployment. This makes them eligible for a green card that entitles them to permanent residency.
• A single mother in Utah who needed money for her son’s education was paid $10,000 by an online casino to install a permanent tattoo of the casino’s Web address on her forehead.

In all of these cases – and probably in many others I’m not aware of – people pay money or sell themselves – or parts of themselves – in order to have their rights protected, or they get paid in order to help others secure their rights.

I’m sure I’m not the only one who’s distraught by this. It’s true that rights protection costs money – a lot of money – and a large proportion of what we pay in taxes is used by governments to protect our rights (taxes pay for a police protection, judicial protection, welfare, healthcare, education and other rights). So why shouldn’t individuals be able to bypass the state and use their money to secure their rights when the state or others fail to do so? (By “others” I refer to NGO’s, international institutions, private charities etc.). After all, everyone should be happy with better rights protection, no?

Well, yes, unless we start something that will lead to systematically unequal rights protection. We don’t want the wealthy to have better rights protection than others, or to be able to continuously improve their marginal protection (e.g. a gated community as a defense against unlikely attackers) while the poor are left with almost no protection at all. Slightly modifying the meaning of a standard expression: might shouldn’t be right. The advantage of outsourcing rights protection to the state is that we pool resources and use them where they are most needed. The market isn’t always the best place to allocate rights protection.

Even the rich will consent to this. After all, they may be able to buy some of their rights, but not all of them and not all of the time. Participating in government protection mechanisms will secure their rights when their money can’t.

Another problem caused by individuals buying their rights is that we may see crowding out of moral motivation. If other individuals, companies or governments can get money for securing rights, they’ll stop securing rights for moral reasons. And finally, the concept of rights will be corrupted. Rights are not something which should have to be bought. They are something people have a moral duty to give. Allowing rights to be bought and sold corrupts the value and meaning of rights.

More posts in this series are here.

The Ethics of Human Rights (68): The Case Against the Sale of Human Organs

Or, better, a case against it. I believe that trade in human organs is morally wrong, at least if this trade is free and unregulated (but perhaps also when it’s regulated in some way). I don’t think the same case can be made against the sale of body products such as blood, hair etc., although some of the arguments against the sale of organs may also apply to the sale in body products. I will bracket this problem for now and concentrate on organs.

I make the argument against organ sales knowing full well that there’s a huge problem of organ shortages and that some people will benefit from free organ trade, and may even lose their lives if free trade is not allowed. Hence, if I claim that free organ trade is morally wrong, then I’m not necessarily making the claim that it should be forbidden in all circumstances. If there are other wrongs, such as people avoidably losing their lives, that overwhelm the wrongs resulting from organ trade, then the former wrongs may be preferable all things considered. However, I believe that the latter wrongs are commonly underestimated by those defending the legality of organ sales. I also believe that there’s a blind spot common among those who claim that the wrongs resulting from a ban on sales typically outweigh the wrongs resulting from a free organ market: it’s not as if the only choice is the one between the status quo – which is in most cases a ban on sales resulting in organ shortages – and a free organ market. There are other and perhaps better solutions to the shortage problem, even in the short term.

Here are some of the reasons why I believe a free organ markets causes serious wrongs:

1. Coercion by poverty

Not a single wealthy person will ever need or want to sell his or her organs. In a system of free organ trade, it’s the poor who will sell their organs to the rich. Maybe a legalized market will reduce the wealth disparity between buyers and sellers to some extent, given the fact that the number of potential sellers will be higher in a free market and that the number of potential buyers will not. This increase in supply compared to demand, following legalization, will reduce prices somewhat, making it feasible for more people to buy organs. Still, it will almost always be the relatively rich buying from the relatively poor, especially if the market is a global one (and I find it hard to understand arguments in favor of a free market limited to national borders).

Many of these poor will be desperately poor, particularly if the market is globally free. A decision to sell an organ isn’t made lightly, and requires some level of financial desperation. The extraction of an organ still carries a substantial risk (e.g. 1 in 3000 die from a kidney extraction even in the best medical circumstances), and few will be willing to take this risk from a baseline situation of wellbeing or happiness that is moderately high and that can not or need not be substantially improved by financial means.

Hence, if organ trade is allowed, many sellers will be desperately poor people, and there will be more of those in a legalized market than in a black market. Now it’s clear that desperation can be coercive: it forces people to do things that they would not otherwise do, that entail risks that they would avoid at higher levels of wellbeing, that may be harmful for them, and that go against their better judgment. If coercion is wrong, then free organ trade is wrong because free organ trade multiplies the number of desperately poor people that feel coerced to sell their organs.

2. Trade instead of justice

It’s reasonable to assume that rich people are responsible for the poverty that exists in the world, if not directly through their actions (trade policy, colonization etc.) then through their failure to prevent or remedy poverty. It will almost invariably be the same rich people who will want to buy organs from poor people. Now, if you first create poverty (or fail to do something about it, which in my mind is equivalent) and then tell poor people that you’ll give them money but only if they give you their organs in return, then you add insult to injury: you have a moral duty to give them your money unconditionally. Insisting on the possibility of trade while neglecting the necessity of justice is wrong.

3. Objectification and instrumentalization

There are some other good reasons why it’s wrong to buy an organ from someone, even if this person willingly agrees to the sale on the basis of informed consent, and even if he or she isn’t coerced into the sale by his or her poverty and isn’t someone who has a moral and unconditional right to the money he or she would get from a sale. For instance, buying an organ from someone means treating this person as an object and a means. It’s a failure to respect the person’s dignity as a being that should be treated as an end in itself rather than as a shop or an organ factory. It’s not outrageous to view organ trade as a new form of cannibalism.

4. Unjust distribution

The previous 3 arguments against organ trade focused on the wrongs it imposes on the sellers. But even the buyers are treated unjustly in a system of free organ sales. If the distribution of organs is regulated solely by way of free trade, then the patients who are most in need of an organ are not the ones who will get the organs. It will instead be those patients able to pay most who will get them.

5. Crowding out altruism

There’s even an argument that points to possible harm to society as a whole. If more and more human relationships are brought within the cash nexus, then giving and altruism will be crowded out. It’s obviously the case that when people can get money for something, they will stop giving it for free. Human nature is what it is. But given what it is, we shouldn’t encourage its darker sides. It’s reasonable to assume that free donation of organs will all but disappear when people can get cash for them. And it’s also reasonable to assume that this reduction in altruism can have a ripple effect throughout society and in many other fields of life, especially when we take account of the fact that more and more activities have already been brought within the cash nexus: sex, reproduction, politics …

No one assumes that everything should be tradable. Even the most outspoken proponents of organ trade draw the line somewhere: they won’t allow people to sell parts of their brains, I guess, or their children and wives, or the parts of aborted fetuses (perhaps fetuses specially conceived and harvested for their parts). So we have to stop somewhere and disallow the trade of some things. Why should it be evident that organs are not one step too far?

Alternatives

If organ sales do have harmful consequences, then what are the alternatives? If we don’t want to allow those willing to sell to go about and legally sell their organs to those capable of buying them, then how do we solve the shortage problem and save the lives of those in need of organs? We can do several things:

• We can try to increase the number of free cadaveric donations, by improving the way we approach bereaved relatives, by introducing a system of presumed consent, by promoting explicit consent (for example through the introduction of regulations that allay fears that doctors will stop life support when they need organs, or through some sort of priority system in which those who have pledged cadaveric donation can jump the queue when they themselves need organs) etc.
• We can try to increase living donation, by way of awareness campaigns.
• We can hope for scientific breakthroughs that make cadaveric recovery of organs easier or live donations less risky, or that make it possible to grow organ in vitro.

Organ sale is certainly not the only solution to the shortage problem.

A final remark: given the fact that proponents of organ trade often rely on the right to self-ownership – the right to do with your body as you please – we may have to tone down the importance of that right. Which is something we’ll have to do anyway: for instance, there’s no welfare state if the right to self-ownership is absolute.

What is Freedom? (2): A Right to Self-Ownership?

Libertarians stress the importance of the right to self-ownership. I would argue that it’s an interesting and useful right in the context of human rights more generally, but also one that is a bit of a problem. When we say that people have a right to self-ownership we mean that they own themselves in just the same way that they can own objects. It follows that people have the same rights over themselves and their bodies as they have over objects:

• they are free to use their bodies as they please
• they can claim that others, including the government, refrain from using it
• they can use the government to protect themselves against others trying to use it
• and they can transfer property rights to others.

Self-ownership rights understood in this sense are the core of libertarian philosophy and are believed to justify standard libertarian policy recommendations such as the elimination or reduction of taxation, the freedom to sell organs, use drugs, engage in all forms of consensual sex etc. And indeed, self-ownership can be an attractive right to non-libertarians as well: it can be used to justify the prohibition of slavery and rape, to protect people’s rights to euthanasia and assisted suicide, to solve the forced transplant dilemma, to support the rejection of capital punishment on the basis of a theory of non-instrumentalization etc.

However, useful as the right to self-ownership can be, it’s not without drawbacks. The right can, and in the minds of most libertarians does imply a denial of the obligation to help others in need (apart from an obligation based on prior wrongdoing and assistance based on voluntary agreement). Such an obligation would be a form of slavery. It would mean the forced use of our bodies and labor power for the benefit of others. Libertarians often reject taxation for the same reason. All this seems needlessly selfish and contrary to moral intuition.

It also seems incoherent. Most if not all libertarians accept taxation for the funding of some collective goods such as highways and the police force. It’s not clear how they can accept a limitation of the right to self-ownership for the sake of some types of taxation but not others. Taxation is always the non-consensual use of persons for the benefit of others, whatever its purpose.

If you view the right to self-ownership as an absolute right – or axiomatic – you may wind up accepting some absurd conclusions: you’ll have to claim that it’s impermissible to gently push the arm of a driver holding his steering wheel and heading towards of group of school children, because that would mean using the body of the driver without his consent to aid others in need. Self-ownership therefore can’t be an absolute right, at least not in a non-solipsistic world. Minimally, it should be limited for the sake of the self-ownership rights of others: imprisoning murderers or slave holders means limiting their self-ownership rights for the sake of the same rights of their potential victims. And, on top of that, it’s probably also necessary to limit self-ownership rights for the sake of certain other values. The problem is that it’s difficult to think about a limited right to self-ownership: every limit to that right seems to destroy it completely. Either you own yourself or you don’t.

There are, I think, three ways to react to these problems with the right to self-ownership.

• You can bite the bullet and maintain that the right to self-ownership is the fundamental right and should be absolute whatever the consequences.
• Or you can hold on to the right but only as one value amidst others, and to be balanced against others.
• Or you can abandon it, claiming that it only has a rhetorical value, and that it’s better to focus on the “derivative” rights – such a the right not to suffer slavery – and try to justify those derivative rights independently (e.g. an anti-slavery movement doesn’t need the concept of self-ownership in order to be effective).

As a good value pluralist, I prefer the second option. The rhetorical and unifying force of the right to self-ownership should not be underestimated. If we manage to prune its extreme libertarian outgrowths (such as selfishness and extreme marketization in the form of organ sales or the “right” to sell yourself into slavery), we’re left with a powerful concept that can be of great value in the struggle for individual liberty (which isn’t a libertarian monopoly by the way). But it can’t guarantee liberty by itself. It depends on and is only meaningful together with a theory of ownership of the rest of the world. Imagine that one other person owns the entirety of the world, minus yourself (i.e. you only have self-ownership). That means that when you want to eat you’re a thief, and when you want to move about you’re trespassing. That’s hardly freedom. Self-ownership without a theory about how the rest of the world is owned can be utterly meaningless.

So the question then turns to the way in which nonhuman things and beings should be owned and distributed. Who can own what? Libertarians would claim that self-ownership provides a basis for ownership in general, and they use Locke’s theory of property to argue for that claim (I own myself, therefore also my labor, therefore also the fruits of my labor – since hardly anything in the world today hasn’t been touched by human labor, almost everything can be said to be owned by someone).

However, I argued elsewhere that this is a difficult if not impossible move. Hence, ownership should be justified independently from self-ownership, and should probably include the notion of a “fair share”, whatever that means. Perhaps this notion can be based on another element in Locke’s theory, namely the “Lockean proviso” that we should leave enough and as good for others, or on some form of sufficientarianism (meaning that all should have enough resources for basic subsistence, for a decent life, for a life worth living etc.). Or it could be based on the persuasive claim that the earth is the common ownership of all, regardless of the labor some have put into it. But I’ve already discussed those issues here and here respectively.

The Ethics of Human Rights (30): Organ Donation and Presumed Consent

Health and survival are human rights. Many people’s health and survival depend on organ transplants. However, there are more people requiring organs than people donating them. Hence, the question of how to increase organ availability, which I have discussed many times before on this blog (see here for instance). My favorite policy is presumed consent : if people during their lifetime don’t explicitly opt-out and deny the use of their organs after death, it is assumed that they consent to this use. There’s evidence that presumed consent raises donation rates by perhaps 20-30%.

However, presumed consent may perhaps not be enough to eliminate the shortage. And although it may solve part of the problem, it may also create some problems. Some people might feel uneasy when the state can automatically decide what happens to their bodies or to the bodies of their loved ones after death. The public might also start to wonder whether surgeons would become too eager to harvest organs, stop life support somewhat early and move the border between life and death (the definition of the moment one dies isn’t an unchanging variable throughout human history). But that’s also a problem with opt-in systems.

Another problem with presumed consent, but also other types of cadaveric donation such as opt-in, is the constraint imposed by the number of people who die in a way that makes their organs available for transplant.

Does all this mean we have to abandon cadaveric donations in general and presumed consent in particular? And rush towards a free market in organs for the living? That could perhaps eliminate the shortage completely, at least for those able to buy the organs and on the condition that there are enough desperate souls “willing” to sell. The latter is of course a condition that’s easily met when we allow international free trade – many places in the world are vast resources of desperateness.

(If you doubt the risk of free trade pushing desperate people to sell their organs, look at Iran. Most donors in Iran are extremely poor. Maybe you think it’s good that poor people have options to do something about their poverty. I agree, but I prefer that they have other options and aren’t forced to commodify themselves, especially when this commodification entails health risks).

I don’t think free organ trade of live donations is a good idea, given the problems with that option outlined here. (Although I might be persuaded by the argument that prohibition of a widespread activity is always futile and a regulated market a lesser evil; e.g., one could offer tax credits for live donations). There’s still a lot of elasticity in presumed consent and the few problems it raises can be solved, in my opinion. The horror story of doctors switching off life support and plundering bodies is precisely that, a story. Countries that are reluctant to implement presumed consent because of such reasons can be convinced, I think, especially given the success of other countries that have it.

Even in countries that have presumed consent and that have therefore increased organ availability, things can be improved. The rights of relatives to veto could be restricted. (Personally, if I would have made the conscious choice of opting in or of not opting out, I wouldn’t be comfortable with the possibility that my relatives have the right to disrespect my will after death). In addition, the transplant system (logistics, transport, availability, procurement etc.) could be made more effective, including in countries that decide to stick with opt in.

Beyond presumed consent of cadaveric donation, live donation of certain organs could be encouraged (though preferably not through market systems). Countries that don’t want to go to presumed consent could make it more likely for people to opt in in a system of cadaveric donation: Israel for example allows opt-in donors and their families to jump the waiting line for transplants when they should need an organ themselves. That’s an interesting idea, but it could throw up some other problems. Also, technology could come to our aid; perhaps in some time we can make organs from stem cells.

Gender Discrimination (21): The Politics of the Body

The politics of the body, or “body politics”, is a concept, originally used by early feminists I believe, to describe government policies or laws and cultural or social practices used by society to regulate and control the human body. Feminists focus on the female body but the case can be made that society controls both the female and the male body, obviously not always in the same way. The concept is also used to describe the opposite: the struggle against the social and political powers that try to control the body and the act of reclaiming bodily self-control, or corporal self-determination. Body politics has therefore a positive and a negative meaning: it’s both subordination and emancipation.

Corporal self-determination is obviously an important value. People should, in general, be able to do with their body what they want, free from interference by the state, by individuals or by groups in society.

Here are some examples of body politics:

Abortion

Whether or not you believe that abortion should be allowed, you have to accept that legal prohibition and moral dissuasion of abortion are examples of body politics. In both cases, women who want an abortion lose their power to decide autonomously what to do with their bodies; society imposes rules on what individuals are allowed to do with their bodies; and power – legal or moral – is used to enforce these rules. You may believe that these rules are necessary in order to protect an overriding value that trumps the value of self-determination, in this case probably the value of the life of the unborn infant, or perhaps even the right to self-determination of the unborn infant. But you can’t dispute that you engage in body politics.

Organ trade

Similarly, legislation or social taboos prohibiting the free trade of organs (see also here) impose restrictions on the things people can do with their bodies. However, the analogy with abortion isn’t perfect, because proponents of restrictions can arguably claim that the sale of organs isn’t an expression of self-determination but of the lack of it: it’s typically poor people who are driven to the extreme of organ sale as a means to stay alive, while the richer you are the easier it is to get an abortion. Organ sale is then not an expression of the freedom to do with your body what you like, without paternalistic interference, but an expression of necessity and lack of freedom. Whatever the merits of this argument, restrictions on organ trade are clearly an example of body politics.

Capital punishment, corporal punishment, imprisonment

The state uses power in order to enforce or enact criminal punishment, and this is often power directed against the body of the convicted criminal and eliminating the criminal’s corporal self-determination. There’s also the quasi-institutional practice of prison rape.

Sex trafficking and slavery, sexual violence, arranged marriages

Cultural norms regarding the acceptability of sexual violence (e.g. rape as a form of punishment and female genital mutilation), of arranged marriages (which can be labeled a form of sexual violence), of the sale of children or wives for the purpose of prostitution are also examples of body politics. The women and children in question obviously lose their corporal self-determination.

Gender discrimination

Gender discrimination, the inferior treatment of women, and the imposition of gender roles, whether legally sanctioned or not, are other examples, although with a twist. Gender discrimination can remove the power of corporal self-determination of the women who fall victim to it – e.g. in the case of gender discrimination as expressed in sexual violence or in rules restricting the freedom of movement of women. But it doesn’t have to. For example, gender discrimination in wages (the wage gap) doesn’t affect corporal self-determination.

The body politics inherent in gender discrimination is more evident in the origins of discrimination than in the results. Gender roles, which often result in gender discrimination, are based on certain convictions regarding the physical inferiority of women (e.g. their lack of physical strength), or on the belief that the female body is made for specific tasks, and is perhaps even better than the male body for these tasks.

Likewise, rules that discriminate against women and restrict the things they can do, are generally based on dubious theories regarding the nature of the female body. Women are said to promote carnal lust, and their equal participation in life would have disrupting and destructive consequences.

Homophobia

Similarly, legislation or social taboos against homosexual relationships remove corporal self-determination and are based on certain beliefs about the nature of the human body.

Clearly, this isn’t a complete list of all possible cases of body politics, but it can serve the purpose of illustration (other examples could include rules prohibiting interracial marriage, bestiality taboos, legislation against assisted suicide etc.). What is also clear is that every case isn’t equally detrimental for self-determination. Some cases can even be justifiable from a liberal perspective. Self-determination, after all, isn’t the only value, and neither is it a value that necessarily trumps other values.

The Ethics of Human Rights (25): Free Organ Trade and the Commodification of the Body

The case for allowing free organ trade seems like a no-brainer. Many countries, including the U.S., now forbid the sale and purchase of most organs, and, as a consequence, sick people die because of organ shortages, and poor people stay poor because they can’t “monetize” their organs. Poor people suffer a “double injustice”:

[We say] to a poor person: “You can’t have what most other people have and we are not going to let you do what you want to have those things”. (source, source)

However, when organs are freely tradable, many extremely poor people, especially those struggling to survive, will be tempted and even forced to sells parts of their bodies. Moreover, the rich will be able to benefit disproportionately from the market because prices will be high, given that demand will outstrip supply in an ageing society. The most obvious means to balance supply and demand, and to force down prices and allow the less than wealthy patients to participate in and benefit from the market, is to create a global market without trade restrictions, an organ-GATT if you want. This will bring in the masses of poor people from Africa and Asia, pushing up supply of organs and hence bringing down prices. This will supposedly benefit both the less than wealthy patients and the very poor donors. The latter will benefit even with prices for organs falling because of increased supply, because they start at extremely low levels of income. Even the sale of a cheap kidney can mean years of income for them.

The problem with this global market is that organ extraction will take place in sub-optimal medical conditions, creating risks for donors (if you can still call them that), also in the case of renewable tissue donation. Paradoxically, the poor are driven to risk their lives in the process of saving their lives. Even in the best healthcare systems in the world, organ extraction is often very risky. In the U.S., the extraction of a section of the liver, for example, carries a risk to the donor’s life of almost 1 percent (source). That’s not negligible. I doubt anyone would cross a street if that were the odds of getting hit by a car.

I’m convinced that an opt-out regulation for cadaveric donors (meaning that everyone’s a donor after death unless an explicit opt-out), combined with non-financial encouragement of voluntary pre-death donation, is the best way to solve the organ shortage problem. A free organ market will obviously also solve the organ shortage problem, but will create new problems instead.

The distinction between renewable tissue such as bone marrow, and non-renewable organs such as kidneys, eyes, etc. is a relevant one. If the donation of renewable tissue can take place in medically safe conditions, I can’t see a problem with being allowed to trade, on the condition that poor patients have the same opportunity and power to buy as rich ones (and that’s a pretty big “if”). The needs of the sick or disabled who risk dying or suffering because of a lack of available organ, clearly outweigh any remaining concerns.

One of those remaining concerns is the problem of the commodification of the body. Organ trade is obviously commodification, and commodification is dehumanization. I don’t want to imply that organ trade liberalization necessarily results in “organ farms”, dystopian places where people are “cultivated” solely for the harvesting of their organs – although the Chinese criminal justice and capital punishment system for instance comes awfully close. (I sometimes wonder if deterrent and punishment is the real goal of executions in China). But people can commodify and dehumanize themselves. And although we should normally respect people’s self-regarding choices, what looks like a choice may not always be a true choices.

The logic of economics tends to overtake all other domains of life, even those where it doesn’t belong and can do serious harm. Why is it so evident to so many that body parts are something that it supposed to be tradable? Even the most outspoken proponents of organ trade draw the line somewhere: they won’t allow people to sell parts of their brains, I guess, or their children and wives, or the parts of aborted fetuses (perhaps fetuses specially conceived and “harvested” for their parts), not even if this would fill a great social need. And yet they accept as natural that non-vital body parts should be tradable and seem to forget that irreplaceable body parts form our body and that we can hardly exist without our body. If we allow total freedom of organ trade, we will have to accept the case in which a poor father decides to sell off every single one of his organs for the survival of his family. After all, he is the master of his own body, he has a right to self-determination, and the government has no right to limit what masters of their own bodies should be allowed to do with it. If you don’t accept the legitimacy of this extreme case, you accept limitations on the freedom to trade organs. Since most opponents of organ trade also accept certain types of trade – e.g. renewable organs such as bone marrow and skin – the disagreement isn’t a principled one but one about degree.

Underlying the argument in favor of organ trade is the fiction of a market populated by free, equal and self-determining individuals who make free and rational economic decisions and agreements on what to sell and buy, free from government interference. The reality is of course that organ trade isn’t an expression of self-determination or autonomy but rather of the absence of it. And that organ trade, just like a lot of other trade, is radically asymmetrical: some are forced to sell in order to survive, especially if the price and hence the reward is very high, as it will be relatively speaking for the poor. And others will sell without rationally examining the benefits for or risks to their interests (absence of informed consent). It’s beyond my powers of comprehension that all this can be denied:

It’s true that I don’t find any of the arguments about the coercive effects of money on peoples’ decisions particularly compelling.  Megan McArdle (source)

Any potential paid organ donor is always free to decline the transaction, and is left no worse off than before. What next, will you tell me that I “coerced” Apple into sending me a Macbook? (source)

This seems to me to be more correct, or at least less outrageous:

Talk of individual rights and autonomy is hollow if those with no options must “choose” to sell their organs to purchase life’s basic necessities. … Choice requires information, options and some degree of freedom. (source)

Of course, some would say: if someone is forced by poverty to sell her organs, would you stop her and make her worse off by imposing legal restrictions on her autonomy and “reducing her resources”? That’s again the myth that markets always make things better. What if she does get some money, has a better life in the short run, but gets sick because of the operation (or do we also assume the myth of perfect healthcare for the world’s poor?) or because of the lack of an organ? Who would make her worse off? The one allowing her to sell, or the one stopping her? And anyway, there are better ways to protect the poor than to allow them to harvest their organs.

So, if we’re afraid that free organ trade might be exploitative for the poor, why not allow free trade but exclude the poor from selling? Because the poor will be, in general, the only ones tempted to sell. A wealthy person has no incentive to sell organs. Hence a free trade system restricted in this way will not solve the shortage problem, the main concern of proponents of free trade.

I’ve stated before that government interference can promote rather than restrict freedom. In the case of organ trade and donation, two specific types of interference can help:

• Restricting the freedom to trade non-renewable organs, as well as renewable organs in circumstances in which extraction poses a health risk to donors, will protect the freedom of the poor. Not their freedom to sell organs obviously – which isn’t freedom for them anyway but compulsion – but the freedom to live a healthy live.
• Imposing default cadaveric donation with an opt-out clause will protect the freedom to live a healthy live of patients in need of replacement organs. Of course, if it’s the case that for some organs cadaveric donation isn’t possible medically, I’m willing to accept an exception.

How about allowing people to sell their organs after death? This would evidently remove the health risks for donors. It could be considered a kind of life insurance for the deceased’s family. That would indeed remove all the concerns from the donor side. (The counter-argument that such a system would encourage families to kill their members for the “insurance money” seems a bit weak, and just as weak as the similar counter-argument against generalized organ trade liberalization, namely that people would murder in order to sell organs; I guess they already do).

But assume that we would allow free post-mortem trade: what would happen with the organs? They would be sold of course, but to whom? The most wealthy first, and hence we still have our problem on the beneficiary side: wealth yields better health. Of course, that’s already the case in healthcare in general: rich people also have better dental care etc. But do we want to add to the existing injustice by allowing wealth to determine who gets an organ?

If we allow limited organ trade of deceased’s organs, we’ll have to do something on the beneficiary side in order to neutralize the effects of wealth. A lottery system could be an option. Or subsidies for the poor, or price caps etc.

The Ethics of Human Rights (11): Organ Trade

The shortage of organs for transplantation is a universal problem. The supply of organs is way below the demand. And demand is increasing due to progress in medical science and increasing average age. The demand comes mainly from developed countries. The reason is that life expectancy is higher in these countries, and therefore also the demand for organs. Also, the health care system is more developed and hence more likely to engage in transplants.

There are two ways to harvest organs: deceased organ donation, and live organ donation.

Deceased organ donation

In some countries, deceased organ donation is hampered by social, cultural, religious, legal and other factors. In some cases, donors have to state their intent while living. They have to opt in. In other cases, they have to opt out and hence they are donors by default, which tends to produce higher rates of donation.
In other cases still, family members of the deceased have to consent, which brings down rates.

Live organ donation

The use of live donors for non-vital organs such as kidneys and parts of liver, for example, is also practiced, but the purchase and sale of transplant organs from live donors are prohibited in many countries.

Transplant tourism and international organ trade

The shortage of a local supply of organs – due to some of the reasons given above, or a combination – has led to the development of transplant tourism and international organ trade. Poor people in developing countries are often forced to donate a non-vital organ; forced by poverty or forced by outright violence. People are kidnapped and operated under duress, and often don’t even get paid. Sometimes they simply get killed because this bypasses the requirement of consent. Corpses are also harvested, not rarely without the consent of the deceased or his or her relatives. The legality of live organ donations in some countries encourages poor people to sell some of their non-vital organs such as kidneys. However, the circumstances in which they are operated can turn a non-vital organ donation into a fatal one.

Rich people travel to countries where these different kinds of harvesting are possible, legally or illegally, and where hospitals are willing to cooperate in such a scheme and are relatively capable so as not to scare away patients. China is a well-known destination because there’s the enormous supply of thousands of people executed every year.

Although those who can afford to buy organs are obviously exploiting those who are desperate enough to sell their organs, the recipients may also suffer from the trade. They may receive substandard or even sick organs.

Some contend that the poor should be allowed to sell their organs, because we merely contribute to their poverty. Exploitation may be morally preferable to death, but given the risk of forced donation and of complications during surgery, this is a slippery slope.

Someone has aptly called the whole business New Cannibalism.

Other issues

One can also see a trend to declare a person dead at an earlier stage than in the past, for example some seconds after cessation of brain activity or heart activity, rather than minutes. Some organs become useless after a certain waiting period. This means shifting the definition of life and death, and perhaps less reanimation enthusiasm. Another, and opposite form of abuse is keeping brain-dead people artificially “alive” as an “organ warehouse” for future donations.

Also, the use of cloning and designer babies for the purpose of organ production is controversial, as is the use of animal organs.