Posted by Eugene Volokh:
Medical Self-Defense, Compensation for Organ Transplants, and the
Commodification Objection:
http://volokh.com/archives/archive_2006_11_12-2006_11_18.shtml#1163526939
Here's my attempt to deal with the "commodification" objection to
[1]compensation for organ transplants. I'd love to beef it up, in
future versions of the article (if there are some) even if I lack the
space in this version. Any suggestions?
What then about the argument that compensation is just inherently
wrong? �The human body and its parts cannot be the subject of
commercial transactions,� the argument goes. Like �a desired legal
verdict, a Pulitzer Prize, or a child,� organs are goods that �have
a meaning and value that places them outside the market.� In the
words of leading conservative bioethicist Leon Kass (for three
years the chair of the President�s Council on Bioethics), �the
human body especially belongs in that category of things that defy
or resist commensuration -- like love or friendship or life
itself�:
[C]ommodification by conventional commensuration [through market
exchange] always risks the homogenization of worth, and even the
homogenization of things .... In many transactions, we do not mind
or suffer or even notice. Yet the human soul finally rebels against
the principle, whenever it strikes closest to home....
We surpass all defensible limits of such conventional
commodification when we contemplate making the convention-maker --
the human being -- just another one of the commensurables. Selling
our bodies, we come perilously close to selling out our souls.
There is even a danger in contemplating such a prospect -- for if
we come to think about ourselves like pork bellies, pork bellies we
will become.
Yet, once we look past the figures of speech to see what is really
being asserted, this analysis is unpersuasive. Love, friendship,
and prizes can�t properly be gotten for money because paid-for
love, friendship, and prizes aren�t �love,� �friendship,� and
�prizes� as we define the terms. A paid-for kidney is a kidney,
just as a paid-for transplant operation is a transplant operation.
It has the same meaning and human worth regardless of whether it�s
paid for -- it can save a human life.
Nor is compensation for providing kidneys morally similar to
selling �the human being.� There�s no despotic control over another
human, as with slavery. There�s no risk of a harm to a human who�s
too young to consent, as with sales of children. When an organ is
taken from a cadaver, there�s no soul to be sold out. And when an
organ is provided by a living person, the organ is being provided,
not the soul; there�s no selling out of the soul in compensation
for the organs, just as there�s no giving away the soul in donating
organs. We are no more pork bellies when organs are transplanted
(whether for money or otherwise) than the paid transplant surgeon
is a butcher.
Of course, such responses themselves have limited persuasiveness to
those firmly on the other side. The anticommodification claim may
be at bottom a philosophical and spiritual axiom -- a premise for
an argument rather than a conclusion. Leon Kass�s soul rebels
against payment for transplants. My soul rebels against price
controls that limit the supply of transplantable organs and thus
lead people to die needlessly. When the test is soul rebellion,
argument only goes so far.
Yet the presence of a constitutional and moral right ought to
resolve this impasse. Something more demonstrably compelling than
Professor Kass�s conclusory assertions must be required to
substantially burden such a right. Before limiting people�s
abortion-as-self-defense rights or lethal self-defense rights, we
would demand more than just philosophical claims supporting a
culture of life so unwavering that it never lets people use deadly
force against viable fetuses or born humans. Likewise, before
limiting medical self-defense rights, we should need more than
Professor Kass�s view of the soul.
References
1. http://volokh.com/archives/archive_2006_10_29-2006_11_04.shtml#1162429015
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