Authors: William Isdale & Julian Savulescu
Last week the Federal Government announced that there would be a review of Australia’s tissue and organ transplantation systems. The impetus for the review appears to be continually disappointing donation rates, despite the adoption of a national reform agenda in 2008.
Since 2008 there has been an increase from 12.1 dpmp (donations per million population) to a peak of 16.9 in 2013 – but the dip last year (to 16.1) indicates that new policies need to be considered if rates are to be substantially increased.
Australia’s donation levels remain considerably below world’s best practice, even after adjusting for rates and types of mortality. At least twenty countries achieve better donation rates than Australia, including comparable countries like Belgium (29.9), USA (25.9), France (25.5) and the UK (20.8).
The review will focus in particular on the role of the national Organ and Tissue Authority, which helps coordinate donation services. However, many of the key policy settings are in the hands of state and territory governments.
It is time to go beyond improving the mechanisms for implementing existing laws, and to consider more fundamental changes to organ procurement in Australia.
The Nuffield Council on Bioethics has recently published a consultation paper entitled Give and Take? Human Bodies in Medicine and Research: https://consultation.nuffieldbioethics.org/fileLibrary/pdf/Human_bodies_in_medicine_and_research_consultation_paper.pdf
The paper seeks responses from individuals or groups on a wide range of issues relating to the use of human bodies or body parts in medical treatment and research. Section 6 is on ‘Ownership and Control’, and one of the questions asked is: Should the laws in the UK permit a person to sell their bodily material for all or any purposes?
Why should the law forbid any sale of bodily material by any competent adult, whether for medical treatment or research or for any other purpose? One immediate response comes from the gut: it’s just plain immoral. But immorality isn’t sufficient to justify legal prohibition. It is quite consistent to think that, say, gambling is morally reprehensible, but that it should nevertheless be permitted by law, or that there are certain areas of human life (such as personal relationships) in which, though people might treat one another pretty badly, the law has no place. For immorality to justify legal prohibition it has to be of a particular kind and of a particular order.
One common objection to the sale of body parts is that it will bring about or constitute the ‘commodification’ of the body. There certainly do seem to be good arguments for seeking to prevent market principles from dominating certain areas of human life – personal relationships are again a particularly clear example. We all need friends. Imagine a world in which any time with your acquaintances had to be bought at the market rate. Spontaneity, generosity, and love must be protected. But often there seems no real case against commodification. Consider people’s talents. Most of us think that anyone with a particular talent – for window-cleaning, accounting, or playing football – should be allowed to market the exercise of that talent as they wish (within the rules and regulations of their chosen occupation, of course, such as those concerning ‘transfer windows’ in the English football league). On the face of it, body parts seem much more like talents than friendship.
At this point, an appeal is often made to ‘human dignity’, as something to be respected and something that would be severely compromised by a legal market in body parts. For this appeal to have any weight, the value of dignity must be elucidated. Otherwise it amounts to no more than the ‘it’s just immoral’ gut reaction. Well, let’s assume that rational human beings do have some special value, demanding respect by others. Why should that dignity itself not consist partly in a right to control one’s own body? If anything, forbidding grown adults from doing what they wish with their own bodies is to treat them and their autonomous wishes in an undignified way.
In his classic work of liberalism On Liberty, John Stuart Mill claimed that the state’s only justification for interfering with an individual’s freedom is to prevent harm to others. So even if the individual herself, perhaps through sacrificing her dignity or in other ways, is harming herself, the state can do no more than inform her of the facts about, and in particular the risks of, the activity in question. (Slavery is perhaps a special case, and Mill certainly thought it was. But selling an organ or other body part is not to sell yourself, into slavery or in any other way.)
It cannot be denied, however, that there would be the most appalling risks were an unregulated market in body parts permitted to develop. The opportunities for both buyers and sellers to mislead or to misrepresent, for example, would be widespread and tempting. As in other areas of civil life, then, the market in human organs should be regulated, with an immediate view to the avoidance of harm to those involved in the market itself or otherwise affected by it.
One further question is whether the state – in the UK, through the NHS – should itself enter the market. I see no strong reason why it shouldn’t. A weightier question is whether state regulation should involve price-setting or restrictions on sales designed to make the most effective use of available body parts. I’m inclined myself to think that it should, since the state should always be seeking to produce the best and justest outcomes for its citizens as a whole. Mill himself says clearly in On Liberty that his liberal principle is justified through its promotion of the good of all, and that is equally true of market principles governing the sale of body parts or indeed anything else.