Kidney for Sale by Owner: Human Organs, Transplantation, and the Market

CHAPTER TWO. Metaphysics, Morality, and Political Theory: The Presuppositions of Proscription Reexamined

INTRODUCTION Before forming blanket moral judgments whether to condemn or praise, before even considering likely costs and benefits, one must assess what would have to be granted regarding the relationship of persons with their bodies, the ownership of body parts, and the limits of societal and governmental authority for the sale of human organs for transplantation to be morally permissible. Critical assessment of such commercialization must begin with an exploration of the foundational metaphysical, moral, and political theoretical conditions that would need to be granted, if any, for such a market to be established. Utilization of living vendors, for example, is likely to raise rather different moral and political theoretical concerns than a market in cadaver organs. Similarly, because of ways in which the physical brain is experienced as the seat of individual consciousness and personal identity, selling this organ for transplant is likely to pose foundational metaphysical issues that would be unlikely to arise regarding the sale of other body parts, such as blood, sperm, or ova. Perhaps no particular foundational conditions are strictly necessary. Instead, various constellations of understandings of the relationship between persons and their bodies, the ownership of human organs, and the limits of political moral authority may prove sufficient to render a market in organs morally acceptable. Or it may be that certain foundational conditions establish not merely necessary but also sufficient conditions, such that a market could not be rightfully forbidden. As the analysis proceeds, this chapter will not advance arguments to show that any particular foundational conditions can be established. The justification of a specific moral viewpoint, account of property ownership, ontology of the 18 CHAPTER TWO Metaphysics, Morality, and Political Theory The Presuppositions of Proscription Reexamined body, or theory of legitimate political authority is not at issue. Instead, the chapter offers an analytical or geographical portrayal of the presuppositions in which the debate is cast and of the conditions that shift the standard of moral evidence as well as the burden of proof. The general significance of ownership, forbearance , and privacy rights, as well as the closeness of the analogy between dominion /possession/ownership of one’s body parts and dominion/possession/ownership of other types of things, for example, will directly impact the relative standard of proof that must be met rightfully to interfere with persons’ uses of their own body parts. Other factors, such as the specified body part (e.g., heart, kidney, blood, sperm, or ova) and type of donor (e.g., living or deceased), as well as the grounds and limits of moral political authority, will shift who shoulders the burden of proof: those who would participate in a market for transplantable organs or those who would forbid such consensual human interaction. Such considerations also impact the reasons that are relevant for meeting the appropriate standard of proof. The result is a multidimensional geography of factors, which in different constellations may be sufficient to render a market in human organs for transplantation permissible, including those constellations of factors that together would establish that such a market could not be rightfully forbidden. This geography will permit systematic and careful assessment of the relative strength of the moral claims individuals put forth to participate in a market in human organs for transplantation and, therefore, of the relative strength of the contraindicating conditions that would be required to defeat the market’s moral permissibility. INITIAL CONSIDERATIONS: ASSESSING STANDARDS OF EVIDENCE AND PLACING THE BURDEN OF PROOF An initial set of considerations regards standards of moral evidence and the burden of proof. Conceptions of moral permissibility can be located on a continuum beginning with the position that an organ market is intuitively, all things considered , acceptable, ranging to the position that it may not be rightfully forbidden . Intermediary positions describe organ markets as more or less prima facie morally allowable—that is, permissible absent sufficiently significant contraindicating considerations. Among the factors that specify the relative strength of the moral claim to participate freely in such a market are (1) the general significance of ownership rights, (2) whether ownership includes entitlements to exclusive use and alienation, (3) the closeness of the analogy between dominion/possession /ownership of one’s body parts and dominion/possession/ownership of other types of things, as well as the force of (4) privacy and (5) forbearance rights (i.e., rights to be left alone and protected from battery). Given different understandings of such foundational concerns, the market will be more or less morally Initial Considerations 19 [3.138...