This discussion paper was discussed at the February 2007 meeting. It is one of a series of papers prepared to aid the Council in its decisions about policy options in organ procurement, transplantation, and allocation. Each paper in the series is designed to facilitate and inform Council discussions and does not represent the official views of the Council or of the U.S. government.
On the Body and Transplantation: Philosophical and Legal Context
Staff Discussion Paper
By Alan Rubenstein
I. Impetus for this Work: "The Terms of the Debate"
At the November 2006 Council meeting, several members expressed concern that the topic of a regulated market in human organs had not been fully investigated and discussed by the Council to date. In addition, some members expressed an interest in delving more deeply into the fundamental issues that underlie the "market question" and other ethical and policy considerations as well. These fundamental questions, which have been touched on in previous Council discussions but not fully explored, have to do, for instance, with changing conceptions of death that transplant practices require, expansion of the types of transplantation possible (e.g. womb transplants), and the significance of transplantation in the context of care for an individual's health. This working paper is offered as a means of advancing and focusing the Council's conversation about these foundational issues.
A catalyzing question for discussion might be: In what terms should the Council report take up the subject of markets in organs and other ethical issues implicit in this form of therapy? Dr. Ben Hippen, in his June 2006 presentation to the Council, suggested one "set of terms," alluded to in his comment here:
Market proponents need only insist on the moral permissibility of a market in organs in the lack of a moral justification for a legal ban, not a broad moral endorsement of such a market. In a free society whose hallmark is irreducible moral pluralism, this more modest view partially shifts the burden of proof to those who insist on maintaining the current legal proscription on a regulated market in organs. (PCBE transcript, June 2006, emphasis added)
To Dr. Hippen, the appropriate question is: What reasons are there for preventing free individuals from offering their organs for compensation if the exchange is made in an environment where certain moral safeguards (what he calls "side constraints") are in place? The apparent presupposition of this question is that the right to sell an object should be taken to extend to any object that can be sold until the harm that comes from recognizing such a right is proven. General concerns about the fitness of an object for "commodification" have no place since the market is taken as a morally neutral mechanism for setting the value of goods.1
Some Council members have questioned this presumption. Dr. Schaub posed the following question to Dr. Hippen:
Are those the only items, safety and contractual rights, that must be protected in order for the demands of human dignity to be met? Are there any regulated markets that you would find morally impermissible, say legalized state supervised prostitution? In other words, how far does the right to vend go? Is there anything about the human body that makes gift rather than sale the proper course to follow ? (PCBE, June 2006, emphasis added)
This idea of "gift rather than sale" as the proper course, in light of the type of "goods" in question is one that Dr. Meilaender explored at length in his paper. His work and many comments from other members suggest that the somewhat tenuous moral standing of the practice of transplantation would lose a vital support if the restrictions that kept human organs "off the market" were removed. Thus, these arguments stand against Dr. Hippen's "unlimited reach presumption" for the market and subvert his preferred terms for the debate. The question is not "What justifies putting a limit on the reach of the market?" The question is "What justifies extending the market into an area from which it has been excluded?"
Dr. Hippen also questions the rationale for the ban on valuable consideration in the 1984 National Organ Transplantation Act (NOTA), suggesting that it had its source in a specious argument about the inevitable exploitation of persons who would become organ vendors:
One [issue] is the way in which this debate got framed 20 years ago in testimony before the Senate of the National Organ Transplant Act was that there was a physician named H. Barry Jacobs who told a Senate subcommittee that he intended to start a business whereby he would import people from developing countries, harvest their organs and ship them back after paying them a pittance and that subsequently relegated all arguments about organ markets to a reductio ad absurdum like that and the struggle has been to crawl out of that morass. (PCBE, June 2006)
Dr. Hippen's reading of the background for Congress' decision on this matter is disputable. Dr. Jacob's plan to offer compensation but not follow-up care to foreign vendors of organs was arguably quite damning for the organ sales cause, but it was by no means the only element of the rationale for the ban on valuable consideration. In fact, there was a lively debate about such issues as the potential for exploitation of the poor, the risk of undermining the ethical precepts of medicine, and the moral impropriety of treating parts of the body as commodities.
If "the terms of the debate" are altered in the way we have suggested here, it will be necessary to address questions that Dr. Hippen and other market proponents have been hesitant to engage. Dr. Hippen alluded to such questions in the following response to a question from Dr. Kass:
So the level on which introduction [of] a regulated market in living vendors would damage something deep and metaphysical [- that] may be the case, but I really don't know how to adjudicate that claim because I just don't know what the terms of the debate are. That's neither here nor there. We can perhaps [have] that discussion at greater length. (PCBE, June 2006 )
To leave such concerns "tabled" permanently, however, might be to foreclose on questions (arguably "deep and metaphysical") that lead us to the heart of the matter with regard to many, if not all , of the various ethical pitfalls in transplantation - not just the question of organ sales. Dr. James Childress had these concerns in mind in describing what he takes to be the potential contribution of the Council to the debates on organ transplantation:
But, yes, you can get an increase in the number of living vendors as they would then be called. But the question is whether we should go that direction and given our reservations about living donation, you can see that had we addressed this, there probably would have been reservations. We did not address that. So I think the President's Council on Bioethics, there is a lot of ways that it can contribute to it. I've mentioned two. The kind of philosophical, ethical work that is being done does move this to a deeper level than what we even considered because we again took it at a different level in trying to address the policy questions. That would be an important contribution.
The other kinds of concerns get raised and I think this is one of the important things about the kind of analysis that the President's Council may be able to undertake and that is to dig more deeply into some of those fundamental, philosophical, and here I'm going to use a term, mythological not in a pejorative sense because they in part have to do with some of the fundamental myths that we have that structurally we think they could well be at work and I think we might well look more closely at that. (PCBE, June 2006)
In the two sections below, we explore the philosophical and legal background for the new ways of regarding the body that organ transplantation suggests. The first section is an exploration of the "meaning of the body" focusing on the images and concepts that are often invoked in describing the body in the context of organ transplantation. Unpacking these images and concepts - these metaphors - will illuminate the deep source of some of the familiar ethical questions in organ transplantation. In particular, we will examine the image of the body as a machine, an image at play in the practice of "swapping parts." This image captures important aspects of transplantation but, we will argue, also fails in instructive ways that should be at the forefront of our attention when thinking about ethical matters in this area. In the second section, we move from the philosophical and linguistic to the legal context, taking a cursory look at the debate about "property rights" in alienated parts of the human body. We will conclude with some final remarks about how the "terms of the debate" might be cast in light of the preceding analysis.
II. Salvaging and Harvesting: The Body as Machine and the Body as Living
Two metaphors often used to describe the taking of organs from their source are salvaging and harvesting . It is instructive to pause and reflect on the strengths and weaknesses of the images invoked by the words. The term "salvage," from the Latin salvire , " to save," is often used to describe what is done with parts of a broken down machine. This captures an important aspect of organ procurement in that the part-whole relation between the organ and the whole human being shares certain features with the part-whole relation in a machine. A complex machine, like a human body, has parts fitted by their forms to carry out particular functions that support the work of the whole. The fuel injector in a car can meter fuel into the engine in the appropriate way because it is given the right form by the one who fashions it - the form that best serves this proximate end of the whole automobile's work. The term "organ" has its roots in the Greek noun ergon meaning "the work of a thing" as in "the work of this knife is to cut bread." 2 We can take as a provisional definition of "organ," as it is used in the context of transplantation: "a part fitted by its form to carry out a particular work in service of the work of the whole ." The kidney, the lungs, the liver: each has a work , understandable by reference to the self-maintaining work of the whole animal body.3 Insofar as the metaphor of the body-machine conveys that it has parts that do work for particular ends, it is a useful conceptualization.
The other aspect of the term salvage that seems to fit the transplantation context is the normative connotation that the part is being taken in order to be put to use (saved) rather than wasted. This, of course, does not fit the case of living donation of organs as well as procurement from the deceased.4 Still, the idea that some of the organs of a living donor (e.g., the second kidney) are extraneous reinforces the image that a working part is being put to a more efficient use , as salvaging should do.
One problem with the salvaging metaphor - and with the machine metaphor for the body in general - is this: what can be salvaged can usually be manufactured. Human organs, of course, can not be "ordered from the factory" like fuel injectors can. Rather, they share the characteristic of things that are harvested in that they must be gathered or collected from the "soil" in which they naturally grow - in this case, the body of the donor. The harvesting metaphor also breaks down, however, in that there is no sowing to correspond to the reaping of the organs when they are needed. These facts together, one might conclude, are the root cause of the chronic "shortage" of organs, as opposed to such surface causes as the lack of adequate incentives for organ providers. Organs have to be taken in, adventitiously, from the soil in which they grow; they can be neither manufactured nor cultivated on demand. Many nurture the hope that xenotransplantation or regenerative medicine will eventually enable us to circumvent this limitation.
We turn now to a number of instructive ways that the machine metaphor obscures rather than illuminates the part-whole relationship between organ and organism. First, with respect to comparisons between a human organ and a machine part, the difference between the two is not merely one of complexity. As with any "piece" of tissue or any single cell taken from a living body, an organ is, in an important sense, alive . As such, it must do its work constantly - most basically, taking in and processing nutrition through metabolic activity - or it will undergo a transition that has no real parallel in the domain of inorganic machine parts: it will "die."5 A part of a living being has a different relationship to its own work than any machine part has. It is incapable of being idle , that is, of possessing its ability to do work as mere potential. For a more vivid illustration of this point consider this: a machine part can be taken out of the whole of which it is a part and placed on a shelf until one chooses to place it in a different machine for which it is well fitted. An animal organ, on the other hand, can be said to "exist by being at-work": When it is ex vivo and unable to carry out its activity it ceases to be . It might decay or be modified in order to persist as a museum specimen, but it will not remain in existence as the thing that it was - an item fitted to perform a distinctive work . A partial exception to this might be the cold storage of tissue or organs. But here we see a case of the exceptional circumstances proving the rule - the need for continuous biological activity is suspended by the extreme cold. For a machine part to be idle, there is no analogous requirement to suspend the need to be "in activity."
Philosopher Hans Jonas characterizes the difference between machines and living things along these lines in his comments here:
A feedback mechanism may be going, or it may be at rest: in either state the machine exists. The organism has to keep going, because to be going is its very existence - which is revocable - and, threatened with extinction, it is concerned in existing. There is no analogue in the machine to the instinct of self-preservation - only to the latter's antithesis, the final entropy of death. (Jonas 1966, p. 126)
Although "self-preservation" applies more readily to organism than organ, the living parts of the organism share the feature of being "threatened with extinction." Denied the environment in which it can do its work, the part will transition from being an organic, working whole to being a collection of mere matter, on the road to decay. From this simple fact flow many ethical difficulties endemic to organ transplantation. For example, due to the inability of organs to be idle, we need to make relatively quick use of the newly dead and thus confront families while they are in the difficult throws of their grief. The same biological facts are at the root of challenges and costs in allocating organs fairly since time in transit comes at the high price of the organ's utility.6
In one sense of the term "whole," then, we might say that a machine part is more of a whole than an animal organ - an animal organ is characterized by neediness while an inorganic part is "self-sufficient" or "complete." We might also question the accuracy of calling an organ a "whole" if we consider the extent of an organ's integration into the whole that is the body. Consider the lung and the respiratory system of which the lung is a part. The respiratory system requires more than the well functioning of the lung to carry out its work of oxygenating the blood and expelling carbon dioxide from the body. Other anatomical structures involved are the nose and mouth, the trachea, the vessels that carry blood from and to the heart, the brainstem center involved in maintaining respiratory rhythm, and the nerves that signal the diaphragm to contract. But a static picture of the interrelated structures alone does not do justice to the level of integration of the lung into the whole body. An animal breathes more or less deeply depending on its metabolic needs of the moment. These needs can change during stress or exercise or any number of other activities of the whole animal. This implies that every metabolizing cell, communicating its need for oxygen, is, in a sense, a functional part of the respiratory system. To pursue this account a bit further, consider the careful modulation of air intake and outflow involved in the act of speaking. Are the cognitive processes involved in speech - choosing how "long winded" to be with a response to a question, for example - part of the respiratory system?
It might be fair to say, then, that an organ system cannot be localized in any single structure short of the whole organism and an organ is an element of that system whose work is only comprehensible as an aspect of the activity of the whole. One can not make the analogous claim regarding the integration of a machine part into a machine whole; while it is true that the fuel injector is useless without the rest of the automobile, it is only true in a weaker sense that the whole machine is involved in the work of the fuel injector. To see this, consider that, if the fuel injector is removed, the automobile as a whole does not change the balance of roles carried out by other parts and systems in the way that the body responds to the removal of a kidney or a section of lung or liver. The point might be made this way: human body parts are not detachable wholes in the way that machine parts can be. Attention to this fact helps one to fully appreciate the sense that many donors have about their organs or those of their loved ones, i.e., that something integral to their person is being taken or given.
But while "neediness" and "embeddedness" lead us to regard an organ as less well described by the term "whole" than the kind of artificial, purpose oriented, device that we create by our art, other considerations lead us to regard it very much as a whole. In order to function, an animal organ must exhibit a self-generated (in embryogenesis) and self-sustaining (in metabolism and orderly cell division and death) organization of its own living parts.7 Many different types of cells make up a kidney (or other transplantable organ) and they develop in the place that they do and with the particular pattern of differentiation that they have in order to play a specific role in the work of the organ as a whole. Moreover, while a machine part is manufactured from raw material (like steel or plastic) that is, itself, completely devoid of the organizational influence of the en-formed object that it will become, a part of the body is organized all the way down : the organized matter of the cells is organized to serve the purpose of tissue, which is organized to serve the purpose of the organ. Organs appear to be candidates for the status of true natural wholes , if this designation is taken to signify an organizing principle (the end or telos ) for the activity of the component matter that constitutes the parts.
Does the unique wholeness of an organ described here provide us with some foundation for regarding this kind of object as having an intrinsic worth or dignity that is lacking in the value-neutral material "stuff" subject to valuation by the forces of the market? At times, of course, an inorganic object can have, by virtue of its history, a kind of worth that transcends its mere utility. Thus, I may view a book given to me as a gift from a close friend in ways different from a book I purchased at my local store. The difference, however, is not in the nature of the books but rather in the means by which I come to possess them. By contrast, a human organ has certain characteristics by nature - characteristics that might have normative implications for its "handling." Even if there is dispute about the strength of these "normative implications," the debate about how organs or other human body parts should be treated will benefit from avoiding mechanistic conceptions that obscure the uniqueness of the objects in question.
Thus far, we have sought to address the question, "What is an organ?" and, in so doing, have uncovered some weaknesses in the machine part-whole model. It is illuminating as well to see how this model fails when we concentrate our attention on the other side of the analogy - the comparison between the whole body and the whole machine. Here we can take note of the immune response, which has been, and can still be, a formidable barrier to the success of organ transplantation. The graft-rejection phenomenon is testament to the whole body's vital work of distinguishing self from non-self and of repelling invasion by the latter. Maintaining the integrity of the individual organismic whole is not fundamental to the operation of any machine. Some of the clinical and ethical challenges in organ transplantation stem from the complexities of matching donor and recipient so as to minimize the chances of graft rejection and failure. When procurement is likened to the salvaging of parts, some of the interpretive significance of these challenges is overlooked. The persistent fact of the immune response, triggered by genetically determined characteristics of cells, serves as a reminder that these parts retain a connection to their source in more than a merely symbolic way. Body parts do not "come standard" for installation into machines of the same make and model.
Do these considerations shed light on some of the human responses to the transplantation enterprise? Can they help to shore up certain intuitions, and lend strength to what might otherwise seem like mere superstition? One anthropological observation that we might consider is the matter of anonymity between donors and recipients. In a recent book, Anthropologist Lesley Sharp comments on the changing standards in this area. She points that the prevailing wisdom has long been that "anonymity is central to organ transfer's success" and that:
Transplanted organs should be viewed simply as replacement parts; also, the donor is dead and thus no longer there. As such, the transplanted organ can harbor no trace or memory of its origins. (Sharp 2007, p.58)
This approach has not been realistic, Sharp reports, given the attitudes of many participants in transplantation. She comments that "many OPOs now employ part- and full- time employees whose duties include overseeing correspondence between donor kin and their respective recipients." (2007, p. 59) Recipients and donor families have a complex set of reasons for resisting the approach that "de-mythologizes" the organ and de-emphasizes the connection it retains to its source. We would only point out here that the reality of the connection between the source of an organ and the organ itself - a reality testified to by the central role of immune response management - cannot be easily dismissed and is, as it were, asserting itself in the evolution of OPO and social practices.
Another instructive failure of the machine metaphor for the body is related to an abiding interest that many Council members have expressed in placing the questions of organ transplantation inside the larger context of medical treatments and self-care practices that can prevent end-stage organ failure. The part-whole relationship manifest in a machine is such that any break-down in the functionality of the whole can be traced to a malfunction in one or more of the machine's parts. Those parts can then be replaced to repair the machine. The part-whole relationship manifest in the human body is altogether different and approaches to the organ shortage that do not take account of this difference can be corrosive, especially to the aims of medicine. Along these lines, philosopher-physician Drew Leder argues:
The ever-growing popularity of transplantation, and its metaphorical power within the public consciousness, can serve to perpetuate many of the diseases that transplantation treats. We have seen that transplantation exemplifies the modern sense of the body-as-machine, and of disease as residing within a specific organ. This tends to discourage "holism" not only in medical treatment, but in understanding and addressing the etiology of disease. Thus, transplantation does little to encourage preventative approaches, wherein individuals take responsibility for a healthy life-style and for proper self care. On the contrary, if the body is a possession whose diseased parts can be replaced, why worry? Nor need the social causes of disease be tackled, such as air, food and water pollutants, occupational toxins, poverty, malnutrition, and stress-filled environments. Disease is conceptualized not as something "out there," a product of the social field, so much as confined within a replaceable organ. (Leder 1999, p. 240-241)
The question raised by this perspective is, "Are we being short-sighted in seeing the 'shortage' of organs as a contingent fact that can be solved by innovative incentives for donors, including the removal of proscriptions that seem to serve a moral purpose?" If the body were a machine, this would be a sensible approach: Do what is necessary to get the parts that will provide the "fix." But the more compelling lesson of the shortage might be that better care of the body needs to be taken to avoid the tragic necessity for transplantation. Such a lesson may be of little consolation to those on organ waiting lists, but it is worthy of the attention of policy makers contemplating such radical changes as an alteration of NOTA's proscription against organ sales. 8
III. "Commodification": The New Question of Valuing the Body
The impetus for addressing "metaphysical" questions about the nature of the body comes from the novel therapeutic potential of moving working body parts from one body to another. It would be a mistake, however, to see organ transplantation as unique among the fruits of recent biotechnological advances in forcing us to take a fresh look at the age old question of how we, as persons, stand in relation to the material of our bodies. In truth, this question has been forced upon us by a salient contemporary trend, i.e., the increasing - and largely unprecedented - technological and commercial utility of the body and its parts. To put this trend in historical perspective, consider a comment made by philosopher David Hume in his Treatise on Human Nature , published in 1740:
There are three different species of goods, which we are possess'd of; the internal satisfaction of our mind, the external advantages of our body, and the enjoyment of such possessions as we have acquir'd by our industry and good fortune. We are perfectly secure in the enjoyment of the first. The second may be ravish'd from us, but can be of no advantage to him who deprives us of them. The last only are both expos'd to the violence of others, and may be transferr'd without suffering any loss or alteration; while at the same time, there is not a sufficient quantity of them to supply every one's desires and necessities. (Hume 1978, p. 487, emphasis added)
Hume makes this point at the beginning of his discussion of the origins of justice and property. In our current context, what is noteworthy is the extent to which biotechnology has changed this common sense order of things. When Hume wrote, it was accurate to claim that body parts ("the external advantages of our body") could be alienated from their source but not in a way that allowed them to retain any of their original utility or to be of significant value to the new possessor. You might take my hand from me as a form of punishment, but not in order to obtain for yourself a useful hand.
By contrast, our contemporary powers allow us to make use of alienated body parts in a variety of ways: cells can be extracted and used to develop cell lines, valuable for research and therapy; gametes can be extracted for study or for use in fertility treatments; tissues and organs can be moved from place to place to provide dramatic rescue from debilitating and potentially fatal disease. In dramatic ways, the question of who, if anyone, owns a part of the body that is brought out of the darkness of the body's interior and into the light of the laboratory or clinic has become a meaningful one.9 The laws that have been developed to define the practice of organ transplantation - particularly the Uniform Anatomical Gift Act and the provision in NOTA against receiving valuable consideration - represent an important legislative step in responding to this novel problem in law and ethics. Any substantial change in the letter or interpretation of these laws - such as removing or weakening the prohibition on valuable consideration - should probably be made with an eye to the larger context of which they form an integral part.
In 1987, the U.S. Office of Technology Assessment (OTA) issued a report called "Ownership of Human Tissues and Cells." In that report the OTA offers a characterization of "human biological materials" that is useful for the modern technological context:
What are human biological materials? Human bodies contain a number of parts that can be useful in biomedical research. Healthy individuals continually produce a number of replenishable substances, including blood, skin, bone marrow, hair, urine, perspiration, saliva, milk, semen, and tears. Human bodies also contain nonreplenishable parts, such as oocytes or organs, which may either be vital (e.g. heart) or to some extent expendable (e.g. lymph nodes or a second kidney). Finally, diseased examples of these body parts also exist. (OTA, p. 24)
The OTA description and our experience with the transplantation context suggest a number of ways to create a taxonomy of alienable body parts:
- Source of the body material:
Living vs. Dead
(And among living): Healthy vs. Diseased
- Type of body material:
Replenishable vs. Nonreplenishable
(And among nonreplenishable): Vital vs. "Expendable"
- Use of body material:
Research vs. Therapy
The complexity of answering the question "Is the body property?" becomes apparent in light of these distinctions. The OTA report also provides a useful clarification of the legal notion of property that should be kept in mind:
Property is generally viewed not as a single indivisible concept but as a bundle of legally protected interests, including the right to possess and use, to transfer by sale or gift, and to exclude others from possession. Although the property concept can be invoked to protect various legal interests, one's right to use property is commonly limited to uses that do not offend public safety or sensibilities. (OTA, p. 70)
This clarification helps to put the NOTA proscription against organ selling into perspective. The question of whether a person owns his body is not addressed in any direct way by the law. Rather, with regard to certain body parts (mainly, but not exclusively nonreplenishable ones), 10 one specific right (or interest) is withheld from the "bundle of rights" that would normally go along with the designation of something as property - the right to sell. 11 With regard to other types of human biological material (e.g. blood, hair, semen, oocytes), the right to sell is not addressed and, in fact, a legal market for such items currently exists in the United States.
An ethical question posed by this situation is this: "Given the new potential to treat body parts as fungible commodities, what limits to commodification should be established and maintained and how?" Three recent and notable U.S. court cases have raised questions about a person's proprietary interest in excised body tissue. These cases involve human cells whose genetic composition rendered them valuable raw material for biotechnological research. In two of the cases, the cells were used for the manufacture of useful commercial products. In each of these cases, human tissue came into the possession of researchers whose right to determine what would be done with the material itself, or with products derived from this material, was later challenged by the persons from whom it was taken or by their families. What is notable for our purposes here is how the courts took it upon themselves to confront the basic question of how we stand in relation to our bodies.
In the case of Moore v. Regents of the University of California , the plaintiff John Moore claimed unlawful conversion of his property when cells taken from his body in the course of receiving medical treatment were used to develop a lucrative cell line. The court rejected his claim, stating that Moore had no proprietary interest in the cells taken from his body. In the case of Greenberg v. Miami Children's Hospital Research Institute , the plaintiffs also claimed unlawful conversion when tissue taken from family members with Canavan disease was used to develop a genetic test for the condition. The families were motivated by a desire to control how the test was made available. Again, the conversion claim was denied on the basis of the court's judgment that a person does not have a proprietary interest in his excised tissue. Most recently, a similar judgment was delivered in the case of The Washington University vs. William J. Catalona, et al. , where Dr. Catalona, a prostate cancer researcher sought to have tissue samples gathered from patients during his years at Washington University transferred to his new laboratory at Northwestern. Dr. Catalona presented letters from his patients who had donated the tissue saying that they wished to exercise their right to control where the samples were stored so that Dr. Catalona could continue his work with them in his new position. The court awarded "ownership" of the materials to Washington University, denying the claim that Catalona's patients could exercise such control.
In these cases, the different courts provide different rationales for their respective rulings, but one common theme is the desire to protect medical research and the developing biotechnology industry from the detrimental effects of giving rights of control to the private parties that supply the tissue. This concern is largely foreign to the analogous questions about the relationship between a person and the organs taken from him or her for therapy. Another current of reasoning, however, runs through the judgments in these cases: recognizing a property interest in human tissue would be a wrongheaded and possibly pernicious characterization of a human being's relationship to his or her own body. In his concurring opinion in Moore, Justice Arabian gives vehement voice to this argument:
Plaintiff has asked us to recognize and enforce a right to sell one's own body tissue for profit. He entreats us to regard the human vessel - the single most venerated and protected subject in any civilized society - as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane. He asks much. (Moore 1990)
As previously noted, there are many different instantiations of "the human vessel" as an alienated and useful thing , as well as many different legal contexts in which it might be regarded "as equal with the basest commercial commodity." Thus, there would not seem to be a single legal instrument that could uniformly realize Justice Arabian's intuition about the dignity of the body. The ban in the United States and elsewhere in the world on organ selling stands out as a notable expression of this intuition in the law. Although there are many arguments for maintaining such a ban that do not depend on sharing the Justice's strong intuitions about the body and commerce, it is worth keeping in mind that organ transplantation laws represent a relatively unique example of legislative action that recognizes the status of the human body as the proper object of a carefully tailored set of "rights of control." Thus, most saliently for the current debate, gifting is allowed but not sales - and the gift is made, generally, to a public agency entrusted to handle the object in a certain way.
The President's Council heard an interpretation of the place of organ transplantation laws along these lines from Dr. Arti Rai in a 2002 session on the patentability of human organisms. The question at issue there was the role that patent law could play in establishing how living human beings - and possibly the parts of living human beings - could or should be treated as commodities. On this point, she commented:
As a general matter, patents advance commodification much less than do other types of property rights, and in particular rights in tangible property. So, for example, when Congress chose to limit the commodification of organs in the context of organ transplantation, it wisely chose, if you believe in the limitation of commodification, to limit tangible property rights in those organs. (PCBE Transcript, June 2002)
Against this backdrop, a move away from NOTA's proscription should be viewed as a revision of prior efforts to, in a restricted way, exempt the parts of the human body from the general domain of market commodities.
IV. Final Remarks
The discussion so far suggests that, in engaging in the debate over organ transplantation in a foundational way, the Council is doing work in keeping with the first item in its mandate:
To undertake fundamental inquiry into the human and moral significance of developments in biomedical and behavioral science and technology. (Executive Order 13237)
Biotechnology has opened up novel ways of looking at the human body. Whatever other descriptions are possible, it is now essential that we recognize the body as a storehouse or better, a soil , for objects of general use that cannot be manufactured or obtained from any other source. The technological fruits that come from being able to handle the material of the body in a scientifically adept manner have the potential to serve the goods of humankind in astonishing ways. But the description of the human body as a resource has disturbing moral overtones for those concerned with the respect owed to the human individual. How will the ways that a human being is valued be affected by society's response to the new (market) value of the body's parts? We have attempted to suggest a starting place for this inquiry in the context of organ transplantation by looking closely at this particular kind of part and its particular relation to the body as a whole. Loose speech about organ transplantation, it has been argued, has the potential to mislead us into accepting a model for the human body that forecloses on non-utilitarian modes of valuing the body. "Forecloses," that is, insofar as internalizing the "body-machine" model coarsens us to the human realities of dealing with the kind of connection that really exists between body and person.
Will our efforts to think more clearly about the nature of the body help us to act wisely? Organ transplantation, it must be remembered, is not an instance of using the raw material of the body to search for distant and uncertain cures, but rather a means of saving or improving human lives here and now. This fact casts a shadow of urgency over the discussion and may discourage us from dwelling too long with these ontological and anthropological considerations. Nonetheless, the history of transplantation has been a history of challenges to a wide range of ethical norms, including the standards for declaring death, the respect for the wishes of the bereaved and the physician's obligation to safeguard the health of his patient. In all of these cases, the urgency of need for the resource enmeshed in the body of the human being has been tempered by a respect for what tradition teaches us to cherish in our embodied lives. Will the current urgency allow space for a full discussion of what it might mean to banish the proscription on selling organs?
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1. "Proponents [of organ markets] recognize that the value of permitting market exchanges is instrumental . There is nothing morally salutary about market relations in themselves. Rather, markets are instrumentally valuable in permitting persons with diverse, conflicting moral commitments to meet and interact on the basis of mutual assent and peaceable negotiation, just as abstaining from certain market relationships can be equally demonstrative of one's moral commitments." (Hippen 2005, p. 608)
2. ergon (e????), derived from an earlier form pronounced wergon , is also the root of the English "work."
3. It is an oversimplification to say an organ has a unitary work or job within the system of the body. The pancreas, for instance, performs at least these two semi-independent functions: secreting hormones that regulate blood glucose levels and producing enzymes that break down food. Still it is true to say that an organ has a particular (possibly complex) work that makes sense of its form and activity, defining it as the body part that it is.
4. Some, however, would dispute the assertion that the organs of the deceased are "wasted" by being left in the corpse.
5. We use the term "life" and "death" with regard to organs or tissue cautiously since the characterization of an organ as "dead" can be misleading in some contexts - as when the term "brain death" is used to describe the death of a human being. See discussion below.
6. This analysis also calls our attention to the fact that organs cannot be physically "banked" as blood and various other body parts - often called "tissue" - can. See the discussion of "organs" and "tissue" in the transplantation context in the Appendix.
7. What Dr. Kass has said elsewhere about the generation and self-maintenance of an organism can be applied to a mature organ as well: e.g. "Consider the generation of living things . There is a natural end to the process of development that defines the previous motion, through its various stages, as a development, and the specific character of the end determines whether it is the development of a dolphin or a daffodil. The adult that emerges from the process of self-development and growth is no mere outcome, but a completion, an end, a whole." (Kass 1985, p. 254) Substitute "dolphin kidney" (or "human kidney") for "dolphin" and the statement still holds true.
8. This line of argument has to answer, of course, to the prediction that Dr. Hippen has made that better preventative medicine might lead to a greater need for transplants as patients are spared from other diseases before reaching the point when a transplant is called for. But whatever the practical consequences turn out to be, it is still arguably a wiser response to the shortfall of organs to call for better preventative medicine than to focus all of the public's attention on ways to get more organs. More to the point, an aggressive change of policy toward getting organs in ways that break long standing taboos about selling body parts should not be driven by a conceptualization of the problem (the body-as-machine) that is inaccurate in the many ways discussed here.
9. Regarding the material of the body as a fungible good is not entirely new - the use of corpses for study and education provides some precedent for our novel situation. In an essay exploring the history of obtaining corpses for anatomical study, Historian Ruth Richardson points out that many of our current "policy options" for obtaining organs - conscription, cash payments, presumed consent - have been tried over the centuries in this area. (Richardson 1996)
10. NOTA, subsec. (c)(1): "The term 'human organ' means the human kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin, and any other human organ specified by the Secretary of Health and Human Services by regulation." (42 USC Sec. 274)
11. Other "rights of control" over the destiny of an organ removed from a decedent are limited by the UAGA and federal regulations bearing on organ allocation - one can not, for instance, specify the race of the eventual recipient of an organ.