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Justice and the Compulsory Taking of Live Body parts

  • Cécile Fabre (a1)
Abstract

This paper argues that, if one thinks that the needy have a right to the material resources they need in order to lead decent lives, one must be committed, in some cases, to conferring on the sick a right that the healthy give them some of the body parts they need to lead such a life. I then assess two objections against that view, to wit: to confer on the sick a right to the live body parts of the healthy (a) violates the bodily integrity of the latter; and (b) constitutes too much of an interference in their life. I conclude that although the sick sometimes have a right to some of the body parts of the healthy, the latter still retain a considerable degree of autonomy.

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1 Dworkin R., ‘Comment on Narveson: In Defence of Equality”, Social Philosophy and Policy, i (1983), 39. Although the question of the compulsory taking of live body parts has not exercised theorists of distributive justice, it has exercised some moral philosophers. Thus, whereas J. Harris argues that it would be permissible, from a utilitarian point of view, to take a live person's organs, thereby killing her, in order to save the life of two persons, J. J. Thomson claims that it is not permissible to do so, except in one case: If someone maims some other individuals in the hope that they will die, and is thereby responsible for the fact that they need organs as a matter of life and death, it is not unjust to take his organs so as to save his victims' life, thereby killing him. In this paper, I focus on issues of distributive, as opposed to retributive, justice, and I therefore do not address this particular case. (See Harris J.. ‘The Survival Lottery, Philosophy, 1 (1975); Thomson J. J., Rights, Restitution, and Risk, Cambridge, Mass., 1986, ch. 6).

2 For the latest statistics in the UK, see http://www.uktransplants.org.uk. For relevant statistics in the US on organ transplants and blood donations, see http://www.unos.org, http://www.rhsa.org, and http://www.census.org. All the figures in this paper come from, or are calculated on the basis of, those sources.

3 Throughout this paper, I adopt the interest theory of rights, whereby to have a right means that an interest one has is important enough to hold some other person(s) under a duty. (See Raz J., The Morality of Freedom, Oxford, 1986.) Sometimes, I shall say that X has a moral duty to help Y: For the purpose of this paper, this should always be taken to imply that Y has a right against X that he help him.

4 For classic statements of that view, see Nagel T., Equality and Partiality, Oxford, 1991; Scheffler S., The Rejection of Consequentialism, Oxford, 1982, and Human Morality, Oxford, 1992; Williams B., ‘Persons, Characters, and Moralit’, in his Moral Luck, Cambridge, 1981. For objections to that view, see Kagan S., The Limits of Morality, Oxford, 1989.

5 On the technical and ethical difficulties raised by limb transplants, see Dickenson D. and Widdershoven G., ‘Ethical Issues in Limb Transplants’, Bioethics, xv (2001).

6 In particular, I do not take a stand on the following questions: Is someone eligible for a transplant if her life, from that point onwards, would be less than decent without the needed organ? Is someone eligible for transplant if she will have had a decent life overall, even though she will not have lead one from the moment she needs the transplant? Those questions also arise when the allocation of material resources is at issue: It also matters there whether the decisive factor, when determining someone's eligibility for help, is the overall quality of her life over time or the mere existence of her need at time t. Advocates of coercive taxation for the purpose of helping the needy do not pay much attention to this issue, and tend to assume that someone has a right to help at t if she is needy at t (and provided that no one else is needier than she is, that there are enough resources to help her, etc.).

7 Rakowski E., Equal Justice, Oxford, 1991, ch. 8. For a similar view, see Audi R., ‘The Morality and Utility of Organ Transplantation’, Utilitas, viii (1996), 148 f.

8 Of course, if I undertake to serve in the army, I may be under a duty to sacrifice myself for the sake of others. But this does not imply that justice requires of me that I make that sacrifice: It requires of me that I abide by the terms of the contract which I sign. My point is that justice cannot require of us that we sacrifice our personhood without our consent.

9 Fried C., An Anatomy of Values, Cambridge, 1970, p. 205.

10 Dworkin, ‘Comment on Narveson’, 39. For a devastating rebuttal of Fried's and Dworkin's views, see Rakowski, pp. 183 f.

11 Kant I., Lectures on Ethics, trans. Infield L., Indianapolis and Cambridge, 1963, p. 166.

12 The view that individuals have welfare rights to what they need to lead a decent or autonomous life is articulated (with variations that need not detain us here) in, e.g., Anderson E., ‘What is the Point of Equality’, Ethics, cix (1999); Fabre C., Social Rights Under the Constitution: Government and the Decent Life, Oxford, 2000, ch. 1; Frankfurt H., ‘Equality as a Moral Idea’, Ethics, xcviii (1987); Gewirth A., The Community of Rights, Chicago, 1996; Harris D., Justifying State Welfare, Oxford, 1987; Jacobs L., Rights and Deprivation, Oxford, 1993; Nussbaum M., Women and Human Development-The Capabilities Approach, Cambridge, 2000. It is important to note here that those advocates of distributive justice do not claim that we each have a right to whatever resources we need to lead a decent life. Rather, their point is that we each have a prima facie right to such resources, a right, that is, which ought to be respected, barring weighty considerations to the contrary such as the fact that other, needier individuals might have a more urgent claim to help.

13 This is not to deny, of course, that some individuals lead a decent life even though they lack some body parts, just as some individuals, for example religious ascetics, lead such a life with hardly any resources. But my concern is with cases where someone clearly needs a given body part in order to be minimally autonomous and to achieve wellbeing.

14 I assume, you recall, that individuals' material needs are met. Thus, ex hypothesi, the healthy who might be called upon to donate a body part to the sick will not be financially destitute (at least not through no fault of their own). Suppose, though, that this assumption is not in place, so that a healthy person who is otherwise very poor happens to be an eligible donor. In that non-ideal scenario, should she be held under a duty to help? My hunch is that she should contribute a pint of blood to save someone's life (just as a homeless person who is otherwise a very good swimmer should help someone who is drowning). I would hesitate to say, though, that she is under a duty to give one of her kidneys.

15 Two points. First, I am assessing here whether the loss of a body part constitutes too much of a sacrifice and undermines our bodily integrity to an unacceptable extent. I am not assessing whether its removal constitutes too much of a risk. The loss of a liver lobe does not fall foul of the objection from sacrifice, but its removal, performed as it is under general anaesthetic, might fall foul of the objection from risk, which I assess in section III.B. (There is ample evidence that in patients who had a liver lobe removed, the liver fully resumes its functions four to six weeks after the operation. See Caplan A., ‘Living Dangerously: The Morality of Using Living Persons as Suppliers of Liver Lobes for Transplantation’, Cambridge Journal of Medical Ethics, i (1992).) Second, I maintain that losing blood and bone-marrow does not constitute too much of a sacrifice; nor, for the overwhelming majority of people, does their ‘extraction’. Matthew Kramer pointed out to me that people who suffer from needle phobia would experience such terror were they to have give blood or bone-marrow that their life, for some time before and after the extraction, would be less than decent. I am not sure whether this constitutes strong enough a reason to exempt them from donation. But by the same token, I am not sure whether the fact that someone would lead a less than decent life for some time as a result of having to give some material resources to the needy would constitute enough of a reason to exempt them from a duty to help.

16 See Garwood-Gowers A., Living Donor Organ Transplantation, Aldershot, 1999, pp. 41–5.

17 See, e.g., Broome J., ‘Selecting People at Random’, Ethics, xcv (1984).

18 For the view that holding the healthy (and indeed the dead) under a duty to transfer their body parts amounts to conferring on the community, as opposed to the sick, a right over those body parts, see Scott R., The Body as Property, London, 1981, p. 91; Veatch R., Death, Dying, and the Biological Revolution, New Haven, 1976. For the view that the state is morally entitled to exercise its power of eminent domain in order to bring about justice, see Ackerman B., Private Property and the Constitution, New Haven, 1977.

19 I am grateful to N. Humphrey and D. McDermott for drawing my attention to it.

20 McFall v. Shimp, Allegheny Court, US, 1978.

21 For interesting summaries of the position taken by major religions on this issue, see E. Wiest ‘Introduction to Religious Perspectives’, D. Kelly and Walter E. Wiest, ‘Christian Perspectives’, and Twerski A., Gold M., and Jacob W., ‘Jewish Perspectives’, in New Harvest: Transplanting Body Parts and Reaping the Benefits, ed. Keyles D. C., Clifton, NJ, 1991.

22 See, e.g., Veatch R. M., Transplantation Ethics, Washington, 2000, pp. 144–6.

23 For an objection along those lines, see Lamb D., Organ Transplants and Ethics, London, 1990, p. 106. For a good account of the view that bodily integrity is a condition for autonomy, see Feinberg J., Harm to Self, Oxford, 1986, p. 54.

24 That objection was put to me at an Oxford seminar in May 2000. Note that it is different from Kant's claim, on which Fried and Dworkin draw, that the body in its entirety is so constitutive of the person that if parts are removed from someone's body, that individual by definition is no longer a person. The objection under study here need not deny that someone whose bodily integrity would be compromised by the mandatory transfer of body parts still would be a person (and indeed, that individual would retain her capacity for moral and rational agency, still have self-consciousness, and would still be sentient). All it says is that in requiring of someone that she transfer parts of her body to someone else, one fails to treat her as dictated by the fact that she is a person.

25 These points were put to me at seminars in London, on 18 October 2000, and in Bristol, on 25 October 2000.

26 It is already possible to transplant liver cells onto patients under local anaesthetic. It is hoped that this technique, which is still on trial, can be used to relieve the plight of diabetes sufferers. See Meikle J., ‘Tests hold out the hope of cure for diabetics’, The Guardian, 27 01 2001. For a very good account of the permissibility of risk imposition, see Thomson J. J., ‘Imposing Risks’, Rights, Restitution, and Risks, Cambridge, MA, 1986.

27 Versions of this paper were presented at various seminars (Bristol, Essex, London, Louvain-la-Neuve, Montreal, and Nuffield College, Oxford), whose participants I thank here for a number of useful suggestions. I am particularly grateful to D. Butt, M. CohenChristofidis, R. Dagger, J. de Wispelaere, K. Dowding, A. Gosseries, N. Humphrey, E. Jackson, G. Jones, P. Kelly, M. Kramer, D. McDermott, A. Mason, S. Mitgaard, A. Voorheve and, last but not least, G. A. Cohen and P. Vallentyne, for very helpful comments on earlier drafts.

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Utilitas
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