Frequently in life there is some good available if you and I can agree on some split of that good between us. If we cannot agree the good never comes into existence. This fact can be modelled by what is called the ultimatum game. In the ultimatum game somebody offers us £100 to split between us just in case we agree on the split. The rule is that I propose and you dispose. If you accept we get the money split as agreed and if you reject it we both get nothing. Since you are better off whatever positive offer I make, it looks as if it is rational to accept even as little as £1.
When the game has been run as an experiment it has been found that people prefer to get nothing rather than accept low offers. Furthermore, offers that are much less than £30 are widely thought to be unfair and making very low offers is thought to be morally wrong. So a principle that seems to be being applied is that I am morally required to make an offer that divides the available good roughly equally—perhaps somewhat to my benefit, perhaps as much £70 to me and £30 to you—and morally forbidden from offering you a very low proportion. Good. If that principle is right then kidney recipients are morally forbidden from offering kidney donors a very low proportion of the good available from a kidney transplant, and consequently the law against the market in kidneys is morally wrong and must be repealed.
OK, how do I get there. Very simply. Suppose I need a kidney and will die without it. Your spare kidney is more valuable in my body than in yours, and the difference is the good to divide between us. You have the veto, that is to say, I can propose a split of that good between us and if you are unhappy with it you can reject it. Here is my proposal: you undergo the pain and suffering of the operation to remove your kidney and I get the kidney.
How does that look in the ultimatum game model? The extra value of the kidney in my body as opposed to yours is the extra life I get, say £10,100, less the cost in pain and suffering to you, say £100, = £10,000. My proposal amounts to splitting the £10,000 like this: you give me £100 and I take all £10,000 as well. Wait, come back! Only kidding. I’ll pay you £200. Surely that’s fair? Not if people are right about the ultimatum game. Paying you £200 is splitting the good £99 to me for each £1 for you. The principle that I must make an offer that divides the good roughly equally allows me only to favour myself to the extent of offering you £3,100.
I am not saying that these prices are realistic. The real prices would have to be discovered in a market and in a free market the surplus good gets divided in a manner agreeable to both sides of a trade. My point is this: The law against selling kidneys forces kidney recipients to take all of the good rather than share some of it with the donor. No surprise, then, that we have a shortage of kidneys. In so doing, the law turns kidney transplants into ultimatum games and forces kidney recipients to make offers that are so unfair that they are morally forbidden. Obviously, the law must be repealed.
Two responses seem warranted here.
One, the argument seems to imply that charitable donations are inherently unfair and morally forbidden. After all, in such donations the recipient gains and the donee loses – no one would accept such a distribution in an ultimatum game! And yet, no one considers requests for charitable donations to be inherently unfair, or charitable donations to be an unfair transaction due to unequal benefit. The request for a kidney at no compensation is just such a charitable request. This, of course, implies that the ultimatum game is the wrong model for this kind of activity. Part of the reason is, the ultimatum game assumes a general background equality of resources, and people see an injustice in an unequal allocation. In the kidney-case, however, the person seeking the kidney is seen as in much greater need than the donee – hence, the charitable motivation in the first place. While a raw ultimatum game offer makes things less equal, the act of giving a kidney can help restore equality (of health). Indeed, such would be so even without such inequality; there aren’t serious moral problems with me donating money to a political cause, or funding the arts, even if a politician or museum is far wealthier than I. Indeed, the political case is particularly apt because we do have justifiable policies against donating to a politician in exchange for political favors later on (and when such favors occur anyway, it’s viewed as a failure of the policy, not a great triumph for justice for the donors who finally get something for their money). The ultimatum-game injustices simply don’t arise in such contexts, and so it’s not at all clear why they should arise in the context of organ markets.
Two, the reasoning to allow organ sales seems to overlook the actual objections to a market for organs. Commonly, it is thought that there are reasons other than distributional fairness at work – issues of bodily integrity, commodification, exploitation and so forth. Thus, even if you could show that a model of one person donating an organ to another person is inherently unfair due to unequal distribution of utility, it still may be that other moral concerns outweigh those issues of fairness. Moreover, part of the entire motivation for opposing organ sales is that many don’t think organs should be treated as equivalent to fungible resources. But if that’s the case, then we have another reason to think that the ultimatum model shouldn’t be used in this case – for applying such a model begs the question against the objections that such models are inappropriate in the first place, because they commodify organs by treating organs as equivalent to monetary goods which can be exchanged on a market or redistributed by authorities. That’s not to say that such arguments are necessarily sound, just that the above reasoning cannot be successful unless it defeats all such arguments without appeal to the justice argument (which appears to presuppose their falsehood). But if it could defeat all such arguments, the justice issue would be irrelevant – without any grounds for banning organ sales, a good liberal’s default will be to allow them.
People do regularly (and happily) donate kidneys. People do not accept offers of zero in the Ultimatum Game. Ergo, the Ultimatum Game model is misapplied here.
I’m all for legalizing the sale of Kidneys…. But I think the flaw in the argument here, rests in the game itself. It is rational, as you point out, to accept £1, but we don’t. We perceive it to be unfair. That perception may simply be wrong. Apply this to the kidney case. If I could loan you the use of my kidney for an week, then take it back, as the kidney recipient should accept. Would they reject this, and say I insist that you give it to me permanently? (Lets say for the sake of argument that kidney borrowing requires little to no surgery and they will contract no diseases.) Its better than nothing, and it would improve their health markedly for a while. If this were a plausible scenario, I think no person needing a kidney would simply outright refuse.
Why the difference then? In the ultimatum game, there is ONLY gain. If I walk away from the game without any money, then I haven’t lost anything. In Kidney donation, I stand to lose something.
I agree with you that the donor really gets the worse of the bargain, but the sad thing is it really does happen this way. If legalizing the trade would mean that the donor will be protected to get a better deal and won’t be overly taken advantage of, then I guess I would have to agree with its legalization. However if we start legalizing this, what will come next? Wouldn’t human beings be turned to raw materials for trading soon?
Gabbie, that’s an example of the “slippery slope” argument: if we do A, what’s to stop B, C, D,…all the way (nightmare scenario) Z happening? If we always followed this way of thinking we’d never go out of the front door (as Bilbo Baggins said: you never know where it might lead).
PS By the way what to hot tubs (direct or otherwise) have to do with any of this?
PPS I like your “everyday is a miracle” comment on the Chilean miners post.
My thanks to everyone who has commented. Sorry for such a slow response. I don’t think there are any issues of bodily integrity, commodification, exploitation etc. I think Janet Radcliffe-Richards has conclusively shown what is wrong with making those objections (see her podcast on this http://www.practicalethics.ox.ac.uk/audio/kidneysales260208.mp3 so I’m not addressing them here.
Both Owen and Simon say that applying the ultimatum game has an absurd consequence, that altruistic kidney donation is morally forbidden, and hence something must be wrong. I can’t agree. The altruistic kidney donation is simply the kidney donor rather than the recipient being the proposer, with the proposer proposing the split of minus £100 to himself and £10,100 to the disposer. So perhaps I should have formulated the moral principle as that the proposer is required to make an offer that doesn’t excessively favour himself and is forbidden from offering a very low proportion. Offering the disposer the entire good (and more) is not ruled out by this.
On Wayne’s point: why indeed should you reject an offer than benefits you a little and insist that you keep the kidney for ever? This would take us into a discussion of the application of distributional principles to trade, which I can’t get much further into here. Possibly the misleading part of the ultimatum game is that people think about it as if you were distributing manna from heaven, i.e. pre-existing and un-owned, whereas the reality is of goods which do not exist and will not exist unless a trade is undergone, in which items involved in the trade are already owned. My point is simply that under the principle that seems to be being appealed to in people’s intuitions about the ultimatum game, the law forbidding the market in kidneys is wrong. But of course, if we had attended properly to the fact that it is my kidney and none of your business what I do with it, we wouldn’t have brought in the contemptible law in the first place.
NIcholas, I just tried to follow the link to Janet’s podcast and it didn’t work. Could you provide an alternative link or bullet-point the main arguments?
The link is correct. Typepad has added a bracket into the link that I can’t remove.
link fixed now
Thanks to both for this – I’ve now listened to Janet’s podcast and am rather persuaded by her systematic demolition job of the different arguments against allowing a market in organs.
What I found particularly interesting, though, was her comments on *why*, despite the fairly obvious flaws in those arguments, so many of us nevertheless have the intuition that selling organs is wrong. Somehow it seems to be related to the issue of *maladaptive responses* that has been discussed recently in the context of long-term contraception for drug addicts. Janet makes the point that donating/selling organs has only recently become a safe procedure; our revulsion at the whole idea could therefore be seen as a maladaptive response based on our instinctive assumption that such procedures are dangerous. (They involve blood, after all…)
One question I have, though, is whether this makes the law “contemptible”, as suggested by Nicholas. My own intuition here is that this is too strong. Basically the problem with the law is that it is an interference in the free market, which doesn’t appear to have a good justification. To paraphrase Greg, a “good liberal’s default” must therefore be to remove this interference. But do we all have to be good liberals in order to be ethical? There is an increasing body of thought, mainly associated with systems theory, which suggests that putting in a few trade barriers might actually increase the resilience of our global economic system. If a sense of revulsion has therefore led to such a barrier being erected, should we really go so far as to regard this as “contemptible”? In the context of the future of humanity it seems to me that there are probably more important things to worry about…
Hi Nick, I think you may have misunderstood my objection. I did not need to mention obligation or forbiddenness. My ojection was purely emirical.
Still, you suggest a reformulated your scenario in your reply to Owen. We are to understand the kidney donor as the proposer, you now suggest. OK, so the proposer gives everything away (under the law). And it is *not* morally forbidden for the proposer to give everything away. You avoid Owen’s objection. But now what’s your argument against the law supposed to be? It can’t be that it requires impermissible action! That it produces a shortage of kidneys? But that is not a new objection, nor have you provided any evidence to support it!
Moreover, my objection still holds for your reformulated scenario. People don’t in fact give everything away in the Ultimatum Game, but kidney donors regularly donate. So the Ultimatum Game model is still misapplied here.
I think Simon is right in pointing out (I’m paraphrasing here of course) that Nicholas undermines his own logic by regarding the kidney donor as the proposer in a real-life Ultimatum Game, since his use of this model to argue against the ban explicitly relied on the claim that it obliges somebody (i.e. the recipients) to make a morally impermissible offer. By regarding the doner as the proposer this argumentation no longer applies, and this particular argument against the ban falls.
An alternative way of looking at it, which also invalidates Nicholas’s argument, is that the ban actually *removes* the recipients’ moral obligation to offer money in return for the kidney, precisely because it removes the possibility for them to do so. Even if we think that making stingy offers in the Ultimatum Game is morally wrong, this does not mean that accepting a kidney when this is the only alternative to dying is wrong.
Perhaps a more interesting question is *why* people think that making stingy offers in the Ultimatum Game is morally wrong, and whether there is strong basis for thinking this. Personally I would say not. The fact is that the way that the game is set up intrinsically favours the proposer by giving him the opportunity to set the terms. Why should he or she then be obliged to set equitable terms? What would the justification be, and in particular how would such a justification differ from Marxism?
This reminds me of a business lesson from kolb learning . It involved a scenario where two (guilty criminals were arrested and each questioned separately. If they both refused to turn the other in they would be let go with minimal penalties. However, if one turned the other in, they would be released with no penalties. It was an interesting exercise that examined the way people think in situations like the ultimatum game.
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