What’s Wrong with Selling Organs (and a Taxonomy of Taboo Trade/Commodification Objections)

By I. Glenn Cohen

Many people – non-philosophers especially, but some philosophers as well – loosely use the term “commodification” as an objection to a “taboo trade”. By “taboo trade” I mean the sale of a good or service such as an organ, sperm, egg, surrogacy, prostitution, etc.

This is unhelpful since it means that people often talk past each other and substitute rhetoric for reason.

In my own work I have tried to disentangle various separate objections falling within this family. This is also important in determining what, if any, form of regulation might help combat or minimize the ethical concern. It is also important because it helps us see that some forms of regulation might improve matters as to one of the ethical objections while at the same time worsen matters as to another one of the ethical objections.

For this blog post I wanted to share my taxonomy of ethical objections drawn from a recent paper I did on objections to buying and selling organs and the potential ways various regulatory tools can and cannot be used to deal with them: Regulating the Organ Market: Normative Foundations for Market Regulation, 77 Law and Contemporary Problems (forthcoming Nov 2014)  In the paper itself it is set out more formally with supporting citations, here I present just excerpts more informally.

While I illustrate the taxonomy of arguments using the buying and selling of organs, in fact the same categories can be used for any taboo trade (prostitution, selling eggs, commercial surrogacy, etc):

1. Corruption

The basic idea behind what I have elsewhere called the “corruption” argument is that allowing a practice to go forward will do violence to or denigrate our views of how goods are properly valued. This argument is sometimes labeled the “commodification” argument, but because that term is also used in a way that encompasses some of the other arguments I discuss below, I prefer the more specific label of “corruption.” The American Medical Association, among others, has voiced this kind of objection in the domestic organ-sale context, suggesting paying kidney donors would “dehumanize society by viewing human beings and their parts as mere commodities.”

We can distinguish two subcategories of this objection, which I have elsewhere called “consequentialist” and “intrinsic” corruption. “Consequentialist corruption” justifies intervention to prevent changes to our attitudes or sensibilities that will occur if the practice is allowed —for example, that we will “regard each other as objects with prices rather than as persons.” This concern is contingent and to be successful must rely on empirical evidence, in that it depends on whether attitudes actually change. By contrast, “intrinsic corruption” is an objection that focuses on the “inherent incompatibility between an object and a mode of valuation.” The wrongfulness of the action is completed at the moment of purchase irrespective of what follows; the intrinsic version of the objection obtains even if the act remains secret or has zero effect on anyone’s attitudes.

2. Crowding Out 

This claim has its roots in behavioral economic work on motivational crowding out, suggesting that, contrary to the classical economic model, allowing payment for goods may change its social meaning in a way that discourages altruistic giving. The crowding-out objection posits that permitting the sale of organs will decrease the supply of organs in some way. There are actually four somewhat distinct variants of the argument.

One focuses on “crowding out of donated organs” and claims that the number of organs donated altruistically will decrease if compensation for organs is permitted.

A stronger claim is that sale will lead to “crowding out of overall organs,” such that the total number of organs, whether procured through altruistic donation or compensated donation, will go down—that is, the decrease in altruistic donations due to permitting a market will not be outweighed by an increase in purchased organs.

Third, and perhaps closer to the central thrust of Richard Titmuss’s oft-cited work on blood supply is the “crowding out of quality organs,” when even if supply remains constant or increases, the new organs that become available will be of inferior quality, that is, diseased or unusable, as compared to those that are available in a market where compensation is prohibited. This objection might also hinge on the claim that methods of detecting poorer quality organs are unavailable, or if available are infeasible for financial or other reasons. Such an argument might also point to the crowding out of one source of organs for another less good source, for example, crowding out living organ donation in favor of deceased organ donations.

A final variant of the argument is less concerned about the effects on supply as such, but more about a kind of coarsening of sensibilities or “crowding out of opportunities for altruism or altruistic feelings” more generally. Of course, this depends on a prior view that we care about motivation independent of its effects on supply, and also that that “altruistic” motivation is one we want to valorize. A skeptic might think that “altruistic” organ donation is itself problematic, either because unpaid organ providers, unlike their paid counterparts, are unable to self-insure against future health problems, or because unpaid providers face more pressure from friends and family to donate, making their choice less autonomous. In any event, I think this version of the crowding-out concern is better thought of as a subset of the consequentialist-corruption argument mentioned above, so, in what follows, I will not treat it as a separate normative concern.

3. Coercion, Exploitation, Undue Inducement, and Justified Paternalism

This is a family of arguments concerned with the harming or the wronging of the organ seller. Although there is some loose family resemblance between these four types of concerns, as I have argued elsewhere, they are often improperly run together and are quite distinct.

“Coercion” is the claim that poor sellers are improperly forced into selling their organs by brokers or recipients who have no right to propose this, because the sellers have no reasonable economic alternative. The easiest example of coercion in a potential organ market would be when someone is literally forced, by threat of violence to themselves or a loved one, to donate.

But many who are concerned with coercion have in mind something much more subtle. In what is probably the leading bioethical account of the idea, Alan Wertheimer suggests that (to use a stylized framing) we imagine A proposing to B,

  1. If you do X, I will bring about or allow to happen S.
  2. If you do not do X, I will bring about or allow to happen another state of affairs, T

Has A then coerced B? Wertheimer provides a two-pronged test for whether a proposal constitutes a coercive threat. The first part, which Wertheimer names the “choice prong,” determines whether “A’s proposal creates a choice situation for B such that B has no reasonable alternative but to do X.” Importantly, this prong does not ask whether B has some alternative to doing X, but rather whether the alternatives available to B are acceptable ones. Indeed, even in the mugger’s demand “your money or your life” the victim has some choice, he can choose to surrender the money. Instead, the problem is that surrendering one’s life is not an acceptable alternative to turning over one’s money; it is too costly an alternative to complying with A’s demand. Rather than calling for an empirical determination that B has “no choice” but to do what A proposes, the choice prong requires a judgment as to whether the costs to B of not doing what A proposes are too high. What qualifies as an acceptable choice is an inherently normative determination.

In the case of organ markets, it might be argued that the very poor have no acceptable choice but to sell their organs in order to support their family, better their life, or, in the case of organ markets in Bangladesh or Pakistan, get out of bonded labor. Whether the same lack of acceptable choice would persist in a regulated organ market in the United States would, of course, depend on how the sellers are screened and who comes forward to sell.

Finding that the person receiving the proposal has no acceptable choice is a necessary but not sufficient condition for finding coercion. Wertheimer gives the example of a surgeon who refuses to amputate a patient’s leg for a fair price, but although the patient had no acceptable choice, we do not think the act morally problematic nor would we allow him to renege on the contractual obligation. This points us to the need for a second prong to find coercion, what Wertheimer calls the “proposal prong,” which asks whether the proposal is one that A has or does not have a right to make. To illustrate, Wertheimer offers the following paired cases:

The Private Physician Case. B asks A, a private physician, to treat his illness. A says that he will treat B’s illness if and only if B gives him $100 (a fair price).

The Public Physician Case. B asks A, a physician, to treat his illness. A is employed by the National Health Plan, and is legally required to treat all patients without cost. A says that he will treat B’s illness if and only if B gives him $100.

Although in both cases B has no acceptable alternative but to pursue treatment from the surgeon, the first case, unlike the second, seems unproblematic at least insofar as the coercion concern; only in the second case does A make a proposal he does not have the right to make. Therefore, only the second case is coercive on Wertheimer’s framework.

Of course, what kind of proposals one does or does not have the right to make is itself an inherently normative inquiry. Wertheimer would incorporate a “moral” test to distinguish the two types of proposals, whereas legal scholars have suggested the existing law could also define what we do and do not have the right to propose.

As Wertheimer emphasizes in discussing the private physician case, in determining whether the proposal prong is met one must “distinguish between B’s rights against other individuals and B’s rights against the society or the state.” If one subscribes to a political theory in which everyone has a right to health, “B’s moral baseline with respect to the society includes his right to medical care, but his moral baseline with respect to a private physician does not,” such that a physician who says he will treat the patient only if paid is not engaging in coercion. Similarly, we need to distinguish rights claims an organ seller might have (on some political theories) against his or her nation state to end bonded labor, to provide food, employment, health care, and so on, from rights claims as against the organ recipient or broker. Moreover, Wertheimer notes his approach leaves open the possibility of distinguishing “between B’s background conditions for which A is not responsible and rights-violating threats to B’s welfare which are specifically attributable to A.” This tracks, for example, the difference between demanding a “rescue fee” from a drowning person you stumble upon versus one you yourself pushed in the water.

In sum, as applied to organ markets, the coercion argument requires showing that the organ seller has no acceptable choice but to comply with the buyer or broker’s offer to purchase the organ, and that the offer of organ sale is an offer the buyer or broker does not have a right to make to the seller. Alan’s work (including his book length treatment) are much more sophisticated than what I can give justice to in this blog post. So consider this as an ” introductory primer” on coercion not a complete account.

Someone can be exploited if not coerced and coerced if not exploited. The concept of “exploitation” comes in several varieties, but the most prominent philosophical account (that again I associate with Wertheimer) distinguishes harmful from mutually advantageous exploitation—a distinction that turns on whether “both parties (the alleged exploiter and the alleged exploitee) reasonably expect to gain from the transaction as contrasted with the pre-transaction status quo”—and consensual versus nonconsensual exploitation.

To determine that A has wrongfully exploited B, philosophers usually stipulate that two requirements must be met: (1) A benefits from the transaction, (2) the outcome of the transaction is harmful (harmful exploitation) or at least unfair (mutually advantageous exploitation) to B, and A is able to induce B to agree to the transaction by taking advantage of a feature of B or his situation without which B would not ordinarily be willing to agree.

Those opposing organ markets will often suggest that even if consensual, organ sales can wrongfully exploit the organ seller either because (1) the seller is ultimately harmed (harmful exploitation) by the transaction as compared to the pre-transaction baseline, or more commonly (2) because the buyer induced the seller to sell at a given price by taking unfair advantage of the seller’s poverty or other need, without which the seller would not have sold the organ.

Although often labeled as exploitation, “undue inducement” is in fact a separate, and in some respects, opposite concern about organ sale. In the case of exploitation, the claim is that the seller is getting offered too little, a “raw deal,” whereas undue inducement is the claim that they are being paid too much, the “offer too good to refuse,” such that their autonomy is in some sense overwhelmed by the price offered and the decision is (again in some sense) less than voluntary.

All three of these concerns are to be contrasted with opposition to organ sale as a form of “justified paternalism.” Such arguments seek to protect organ sellers from making the “wrong” decision. Typically, these arguments look to see whether purported consent to sell the organ is really consensual in a more robust sense of the term. That is, they think whatever formal consent the seller gives, be it contractual or otherwise, falls short because it is involuntary, uninformed, or otherwise invalid because the seller lacks competence or capacity to sell the kidney. These arguments would forbid what appears to be a voluntary transaction by pointing to at least one of these defects in the consent process and by the presence of anticipated harm to the seller.

4. Unfair Distribution

A final set of arguments concerns “unfair  distribution” to those who would have received an organ in the counterfactual state of the world where sales are not permitted. There is some relationship between this and the crowding-out arguments discussed above, but the two are independent in that the supply of organs could increase due to permitting sale and yet the distribution of organs could change in a way that makes the distribution less just.

This is, in a sense, the difference between Kaldor–Hicks and Pareto conceptions of efficiency. The distribution of organs that results from permitting a market (as compared to the distribution where markets are forbidden) would be superior from a Kaldor–Hicks perspective—there are winners, those who get organs because they can purchase them, and losers, those who would have received them in the no-compensation mode, and the gains to the winners are larger than the losses to the losers such that in theory the winners could compensate the losers and still remain ahead. By contrast, the new distribution is not Pareto superior, which would require that no one be made worse off and at least one person made better off. Those who would have received the organ if the system did not permit compensated sale have been made worse off, even if many more now receive organs because of the system change that permits compensation.

Although perhaps not quite exhaustive this is a fairly good list of the arguments offered against organ sale. In other taboo trade domains (such as reproductive goods/services) it may need to be supplemented; eugenic concerns is one example of a potentially distinct concern, though on some versions of the objection it could fit into the corruption objection or the unfair distribution one.

Given this kind of mapping two issues remain open/interesting: (1) Which (some, none, all?) of these ethical concerns should move us? I have spilled some ink in other work on these issues and of course there is a lot of literature on this subject. (2) If a concern is valid, what types of regulation might eliminate it or at least blunt its impact? Much less has been written on this subject, hence the reason why I wrote the paper referenced above:  Regulating the Organ Market: Normative Foundations for Market Regulation, 77 Law and Contemporary Problems (forthcoming Nov 2014).

I. Glenn Cohen

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

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