Argument against legalising the sale of kidneys

Should people that are poor be allowed to sell their kidneys?


The legal sale of kidneys for profit tacitly demands acceptance of several troubling moral implications, despite the tangible benefit that could be provided by an increased supply of transferable organs. To some degree it is superfluous to quantify the selling of kidneys here by the members of society already in economic or financial difficulty, as they are most likely to be vulnerable to the pressures and consequences of selling organs. “The global traffic in organs follows the modern routes of capital and labour flows, and conforms to the usual lines of social and economic cleavage […] South to North, from poor to rich, from black and brown to white and from female to male bodies.” (Scheper-Hughes, N. 2002) Were the market completely open some voluntary sale would likely occur, however it seems unlikely that this would be a significant increase from current donation trends, as such an act is more reliant on altruistic acts (currently accepted) than monetary benefits. Here we will divide this essay into two fields of focus: Firstly the moral implications that must be accepted as a direct result of legalising such a market in regards to the commodification of the human body and the desperate. Secondly; whether a free or open market presents tangible benefit towards the procurement and valuation of the commodity.

 

The commodification of the human body has been a long process, initially driven by demand for slaves, blood sport or anatomical medical dissection; we now struggle to come to terms with developing markets in sexual favours, reproductive tissue and surrogacy, and body parts. But why are these markets so disturbing to us? Feminist theory might suggest that it is simply a matter of acclimatisation – that the development of marriage from sexual contracts, or the growth of blood sports to televised spectacles of boxing simply represent an accepted imposition of one society’s will upon another (Scheper-Hughes, 2002). Alternatively a libertarian view may suggest we are exercising increasing free will on our own private property – that governmental regulation has no role to play within our bodies (Kolnsberg, 2003). Whilst there is much discussion over how we can quantify “ownership” of our bodies as distinct or conjoined to consciousness, it will suffice to say here that a decrease in spiritual and cultural justifications for non- or shared ownership or the body has created a sufficient expectation of ownership for us to treat as standard (Koplin, 2016).

 

If each person has a right to their property, and by extension their body, then perhaps there is a moral right transact with those bodies as desired. Certainly restricting the expression of those rights when there is no intrinsic negative outcome to themselves or a third party would have no moral basis. The issue with this line of thinking arises from how we can apply this thinking to other more undesirable outcomes. While the transference of kidneys is acceptable due to the lessened risk to the donor and tolerable quality of life, that distinction becomes more clouded when discussing the transference of limbs or more crucial organs. Would the sale of an arm or an eyeball represent too large of a loss of quality of life, or is it more repugnant due to its overtness? Radin suggests that “to preserve organ donation as an opportunity for altruism is also one way of keeping from our view the desperation of poor people.” (Kyriazi, 2015) Certainly here it would be difficult to ignore the plight of the poor in good conscience were they required to blatantly disassemble themselves to survive. A few steps further we have to tackle issues of heart or brain sales, voluntary slavery, surrogacy, or recreational suicide. If we are to ostensibly allow individuals control over their body for a higher quality of life, can we say that someone’s life is improved by the facility to exchange it for currency? At some point the ideal of greater individual freedom collapses back upon itself under any external pressure. Kyriazi suggests that this “economic injustice” itself is the issue, but suggests no way of reconciling libertarianism outside of a perfect society (Kyriazi, 2015).

 

This is not with the intent to equate kidney transplantation to slavery; Jefferson suggests that a Slippery Slope Argument is not capable of making such a claim due to the inherent vagueness of the topic examined. Instead, she says, “at most, the inference that can be drawn is that there are some cases along the continuum for which the decision regarding their moral status will be somewhat arbitrary”. (Jefferson, 2014) Instead she posits that it is best utilised to highlight the need for a line “between acceptable and inacceptable action types”. This is seemingly absent within libertarianism under an increasing wealth divide, capable medical field and transhumanist values. Van der Burg agrees but cautions against dismissing our original claim; “we know B is black and A white, but we cannot tell where A stops and B begins. This is a serious problem, but it need not trouble us as an argument against A.” (Van der Burg, W. 1991)

 

In this case we need a new method of morally appraising kidney sales, perhaps simply the existence of demand and an under-utilized supply can be justification enough, given of course that there is not significant harm done to any party involved. It has been justified that the poor can benefit in the short and long term from the sale of kidneys by allowing them to provide for themselves and families in times of strife, be more likely to have access to replacement organs when needed and even social and emotional benefits (Koplin, J. 2016). Unfortunately these benefits are rather undercut by the high levels of seller regret found in those who have participated in black market sales.

 

“Three major themes were identified: desperation (the participants’ decision to sell their kidney was forced by poverty, debt, or to fulfil a family obligation); despair (destroyed bodily integrity, shame and secrecy, dehumanized and dispirited, loss of livelihood, heightened sense of vulnerability, disappointment, and regret); and debasement (deception by brokers and recipients, victimized by the hospital, stigmatized by community, and rejected by family).” (Tong et al. 2012, p. 1138)

                                                                                                   

Even beyond the emotional distress caused, many donors were unable to work in the physically demanding fields they relied upon to provide for their family – this lead to their sale pushing the family further into debt instead of the inverse. A study in Nepal found the majority of sellers experienced ostracization from their communities, even being passed down to their children (Koplin, J. 2016). There also remains a troubling separation of needs between the donors and operators of the transplant, wherein the transplant clinic has little motivation to provide post-op care and instead should lure transplant recipients. Similarly, providing misinformation could lead to more donors while further emphasising the power imbalances in this transaction. “Some given party will earn a profit if the selling of human organs becomes legal, but it does not necessarily mean it will be the donor.” (Kolnsberg, R. 2003) If supply grows due to saleability, donors will possess less bargaining tools to ensure their own benefit – in desperate circumstances they may not understand all the ramifications of their actions, and will not get a second attempt. Even if they achieve a level of economic freedom from this transaction, many of the forces that created this inequality are still present and there is no guarantee of long-term financial liberty.

 

It is interesting here that the morality of this action seems to some degree dependent on the economic outcomes of those affected. Here financial gain is a measurable stand-in for quality-of-life improvements; however this measurement mirrors a more insidious implication. Already organ buyers are prepared to pay for a preferred organ origin. In her piece “Commodity Fetishism in Organs Trafficking” Nancy Hughes-Scheper articulates the significantly higher price point transplant recipients are prepared to pay for a “fresh” organ as opposed to that harvested from a cadaver. Given that those in poverty are less likely to possess a clean bill of health it stands to reason that transplant recipients may prefer to receive organs from higher socio-economic groups, or even express a racial or gendered preference. Within a market this preference will be expressed through financial terms allowing us to literally quantify the total worth of another human beings body, likely with discriminatory implications. Presently most legal systems treat life as a priceless commodity, were this to change it would facilitate exploitation in other aspects of the legal system.

 

To focus now on the market aspect we need to clarify how the legal sale of kidneys would affect the supply of kidneys worldwide. Presently it is legal to donate kidneys in most countries, as with blood and gametes while you are alive. Post-death most bodily tissues can be donated on an opt-in basis. Some suggestion has been given to changing this to opt-out or redefining legal death, however this could lead to cadaver pillaging, or the disrespect of near-dead or brain-dead patients for profit and will not be discussed here (Hughes-Scheper, N. 2001). While no doubt kidney sales would dramatically increase the availability of transplant kidneys in the short term, in the long term it seems likely that kidney donations would decline, likely raising the entry level costs into the market.

 

While it is difficult to predict the shape of the market as a whole we have already discussed ways in which a market in kidneys would violate both of Satz’s principles of weak agency and vulnerability of participants, rendering it a noxious market. Koplin has concluded (via Rippon) that simply having the option to vend organs in combination with external pressures is not a traditional option. Lastly, it has been discussed as not the only method to create an increased supply of transplantable organs, where options such as cadavers or compensated donation may be more practical.

 

As such I cannot recommend that poor people should be allowed to sell their kidneys within a legal market due to the lack of moral constraints for it, the far-reaching social implications of commodifying the human body, and the lack of certainty surrounding positive outcomes for the most exposed participants. Perhaps the best argument for legalising selling rests on the difficulty of prohibiting it, and creating an environment in which a black market cannot thrive – but this is not a positive reason. Even if non-commodification is the more difficult choice it must be the path taken.





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Tong, A., Chapman, J. R., Wong, G., Cross, N. B., Batabyal, P., & Craig, J. C. (2012). The experiences of commercial kidney donors: thematic synthesis of qualitative research: Experiences of commercial kidney donors. Transplant International, 25(11), 1138–1149. https://doi.org/10.1111/j.1432-2277.2012.01534.x

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