Bodies for Sale

Ethics and Exploitation in the Human Body Trade

Stephen Wilkinson

• Publisher: Routledge
• Year: 2004
• Print ISBN:
  9780415266246
• eBook ISBN:
  9781134501021
• Topic: Philosophy
• Subtopic: Medical Law

Bodies for Sale: Ethics and Exploitation in the Human Body Trade explores the philosophical and practical issues raised by activities such as surrogacy and organ trafficking. Stephen Wilkinson asks what is it that makes some commercial uses of the body controversial, whether the arguments against commercial exploitation stand up, and whether legislation outlawing such practices is really justified.

In Part One Wilkinson explains and analyses some of the notoriously slippery concepts used in the body commodification debate, including exploitation, harm and consent. In Part Two he focuses on three controversial issues (the buying and selling of human kidneys, commercial surrogacy, and DNA patenting) outlining contemporary regulation and investigating both the moral issues and the arguments for legal prohibition.

1 INTRODUCTION

The commercial exploitation of the human body is nothing new. Indeed, prostitution is commonly described as ‘the oldest profession’. Since the 1980s, however, concerns have been voiced about the new ways in which biomedical technologies allow us to use the human body for profit. Some people argue that this ‘commercialisation’ or ‘commodification’ of the human body is wrong and should be banned. Others take a more permissive view, arguing (for example) that people have a moral right to sell parts of their bodies. Bodies for Sale is both an introduction to this debate, the ‘body commodification’ debate, and a critical assessment of the main arguments and concepts deployed within it.

The book is divided into two parts. Part I (‘Concepts’) explains and analyses some of the notoriously slippery concepts used in the body commodification debate. These include coercion, commodification, exploitation, harm, and objectification. Drawing on some of the conceptual work in Part I, Part II (‘Practices’) consists of a detailed discussion of three examples: the buying and selling of human kidneys, commercial surrogacy, and DNA patenting. Each chapter starts by explaining contemporary regulation and/or practice and then scrutinises both the ethical objections to the practice in question and the arguments for prohibiting it.

1.1 Concepts

Part I starts with the idea of exploitation. Many commercial practices – including organ sale, prostitution, and paid surrogacy – have been the subject of attacks couched in terms of exploitation. Hence, in order to understand the case against such practices, we need to know what exploitation claims mean. Indeed, I’d go further and suggest that exploitation is the single most important and widely deployed moral concept in the body commodification debate. If this is so, then vying for second place in the important moral concepts league table are ‘commodification’ and ‘objectification’. These, and their relationship with exploitation, are the subjects of Chapter 3.

Chapter 4 looks at a concept which is less straightforward than it might at first appear – harm. Accusing commercial practices of being exploitative and accusing them of being harmful are common moves in the body commodification debate. Chapter 4 therefore aims to improve our understanding of such charges by exploring the connection between exploitation and harm and by looking at the nature of harm. The question of whether the commercial utilisation of the body is harmful is vitally important, especially given the widespread acceptance of Mill’s harm principle, according to which ‘the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others’.¹

Chapter 5 gives an overview of the idea of valid consent. This has both a primary and a secondary role within the body commodification debate. The primary role is that it’s thought by many to explain directly the wrongness of certain commercial practices. For example, it has been argued both that surrogate mothers and people who sell parts of their bodies (for example, kidneys) don’t, or can’t, validly consent. For this reason, so the argument goes, such practices are wrong, since interactions that are as intimate, or as dangerous, as these must be properly consensual. Consent’s secondary role is the contribution that it makes to the justification of exploitation claims. For, as we’ll see, most (maybe even all) instances of exploitation appear to involve a consent that is somehow defective or inadequate.

Finally in Part I, Chapter 6 analyses the concept of coercion. The relevance of this is that accusations of coercion frequently underpin attempts to show that particular commercial practices involve the wrongful use of people or the violation of their autonomy, or that any consent given is invalid. For example, it’s sometimes said that only people who were coerced would ‘volunteer’ to sell a body part or to provide ‘sexual services’.

1.2 Practices

To turn now to Part II, organ sale, commercial surrogacy, and the patenting of human DNA are really only examples (though, I believe, representative ones) and form part of a much larger debate about the desirability (or otherwise) of permitting the commercialisation of the human body. This debate, which has in recent years attracted considerable attention from scholars in a variety of disciplines, has both theoretical and practical aspects. On the theoretical side (the concern of Part I) concepts such as exploitation, personhood, property, and self-ownership are reexamined. On the applications side (the concern of Part II) a number of body-commercialising practices have been subjected to scrutiny by moral philosophers, legal academics, and others. Table 1.1 provides a framework within which to place these various practical issues.

Table 1.1 Ways of commercialising the body

We can usefully divide the issues into three categories. First, there is the commercialisation of physical objects. This includes, most obviously, the sale by individuals of particular body parts (such as kidneys) and of bodily products (such as blood and semen). Second, there is the commercialisation of abstract objects. This category includes informational and intellectual property, as well as such things as images of individuals’ bodies. Hence, interestingly, such apparently disparate practices as DNA patenting, pornography, and voyeurism might fall into the same general category. Finally, there are so-called bodily services. Two of the most hotly contested practices in this category are reproductive services (especially paid surrogacy) and paid sex work. Payment for being a subject in biomedical research should also be placed in this final grouping.

The practices selected for sustained discussion in Part II serve as representatives of each of these three categories: solid organs (for example, kidneys) are physical objects and surrogacy is (arguably) a bodily service, while DNA patenting involves the acquisition of abstract property. Hence, while we won’t examine in detail every individual aspect of the human body which is, or could be, a contested commodity, we will – to some extent – cover the whole range by looking at representative examples. I don’t, of course, wish to deny that there are important differences between the individual practices within each category. Later on, for example, I’ll point to some differences between selling blood or semen and selling solid organs like kidneys, and will suggest that paid surrogacy is different in morally relevant respects from prostitution. However, argumentative moves which are made against organ sale do tend also to be used against the sale of blood and gametes, while argumentative moves which are made against prostitution tend also to be used against paid surrogacy. In learning how to deal with the case against one commercial practice, then, we learn a lot about how to deal with similarly structured arguments against other commercial practices. A key part of the philosopher’s job is to explain and draw people’s attention to structural similarities of this kind

Finally, I should mention in passing an important issue that could usefully have been addressed in a book like this, but which hasn’t been discussed in any detail owing to space limitations: the ‘retention’ of human organs. This, particularly the retention of dead children’s organs without explicit parental consent, is very newsworthy in the UK at the time of writing and was the principal concern of the Redfern Report.² Redfern was an investigation into organ retention at Alder Hey (the Royal Liverpool Children’s NHS trust) and focussed particularly, though by no means exclusively, on the behaviour of pathologist Professor van Velzen. According to Redfern, van Velzen was guilty (amongst other things) of:

order[ing] the unethical and illegal retention of every organ in every case for the overriding purpose of research . . . ignoring written consents to limited post mortem examination . . . lying to parents about his post mortem methods and findings . . . [and] causing an unnecessary excessive, illegal and unethical build up of organs following post mortem examination, ostensibly for research but with no likelihood that the bulk of the organs stored in containers would ever be used for research.³

Professor van Velzen’s behaviour certainly failed, in many respects, to conform to the profession’s accepted standards. However, it emerged during the course of investigations that the practice of retaining dead children’s tissues and organs without explicit parental consent was not confined to Alder Hey:

In Bristol, Liverpool and some other parts of the country, many parents were not aware that their children’s organs had been retained beyond the time of burial or cremation. Nor did they consider that they had given consent for this to happen. When the existence of relatively large collections of children’s hearts, brains and other organs was revealed publicly, there was an outcry.⁴

This ‘outcry’ prompted the setting up of the Retained Organs Commis-sion (ROC) in 2001. The ROC, chaired by Professor Margaret Brazier (whose investigations are still in progress at the time of writing), was charged with responding to the ‘deep concerns’ described in Redfern and with providing advice to the government on the taking and retention of organs and tissue at post-mortem examinations.⁵

While it has not been possible to address directly these issues here, I do believe that some of the arguments and concepts explored in later chapters – for example, what I have to say about exploiting and objectifying bodies – could in principle be fruitfully applied to the ‘organ retention’ debate.

Part I CONCEPTS

2 EXPLOITATION

Although we frequently claim that some act, practice, or transaction is exploitative, the concept of exploitation is typically invoked without much analysis or argument . . . exploitation is often utilized as if its meaning and moral force were self-evident. They are not.¹

Why do we need an analysis of the concept of exploitation? One reason, a general one, is that although exploitation is a heavily used and widely accepted moral concept, moral philosophers have paid relatively little attention to it. As Wertheimer notes,

despite the frequency and ease with which we make exploitation claims in ordinary moral and political discourse, I think it fair to say that with the major (and I do mean major) exception of the Marxist tradition, exploitation has not been a central concern for contemporary political and moral philosophy.²

A second reason for looking at exploitation, one with special relevance to this project, is that asserting that ‘markets’ are somehow exploitative is perhaps the commonest way of arguing against them. Many commercial practices – including organ sale, prostitution, and paid surrogacy – have been the object of attacks couched in terms of exploitation. So in order to understand the case against such practices, we need to know what exploitation claims mean. As we’ll see shortly, though, saying exactly what exploitation is isn’t easy. For it’s a complex and contested concept and the subject of several competing theories.

2.1 Introducing exploitation

To exploit something, in the most general sense, is simply to put it to use, not waste it, take advantage of it.³

In the broadest sense, to exploit something, e.g. a natural resource, means to use it for a purpose. Such exploitation is morally neutral.⁴

The word ‘exploitation’, like the related expressions ‘use’ and ‘take advantage of’, is sometimes used evaluatively or normatively and sometimes not; it has both moral and non-moral senses.⁵ Hence, as Schwartz reminds us (above), we can talk entirely neutrally of exploiting (or of using) a resource, or an opportunity, or a talent, and when we speak of exploitation in this way we do not thereby express moral disapproval.⁶ But, at the same time, as Onora O’Neill suggests:⁷

Few moral criticisms strike deeper than the allegation that somebody has used another.⁸

On the other hand, Wertheimer (drawing on Williams) plausibly suggests that exploitation is a thick moral concept – one ‘such as treachery and promise and brutality and courage, which seem to express a union of fact and value’.⁹

Sometimes, it’s hard to tell whether ‘exploitation’ is being used normatively or not, and at times people deliberately take advantage of this ambiguity. When people do this they rarely lay out their arguments in formal terms. However, we can see how they might trade on this ambiguity by thinking about the following schematic example:

1. ‘Factory farming’ involves the commercial exploitation of animals.
2. Exploitation is a bad thing.
3. Therefore ‘factory farming’ is a bad thing.

In (1), ‘exploitation’ is used in its non-moral sense. Hence, (1) appears (and is) obviously true. (If ‘exploitation’ were used in its moral sense in (1), then (1) might still be true, but it wouldn’t be obvious, and we’d have to argue for it independently.) In (2), ‘exploitation’ is used in its moral sense and so (2) is supposed to be an obvious a priori truth. (3) The conclusion then appears to follow – but doesn’t really – from (1) and (2). In order for (3) to follow from (1) and (2) we’d need ‘exploitation’ to be used in the same sense throughout. But if we use it in its moral sense throughout then (1) loses its obviousness – and, if we use it in its non-moral sense throughout, (2) becomes false, since exploitation in the non-moral sense clearly isn’t always bad. So, either way, the argument is flawed. As I’ve said, people who take advantage of this ambiguity hardly ever present their arguments in such a formal way as this. However, what I’ve just said does capture the underlying structure of what they’re doing (sometimes intentionally, sometimes not).

Except for these equivocal cases, the non-moral use of ‘exploitation’ is irrelevant to our present concerns and from now on I’ll concentrate just on its moral sense (or senses).¹⁰ We can usually get a good (though not infallible) idea of whether ‘exploitation’ is being used normatively or not by seeing what it’s being applied to. For example, when it’s applied to inanimate objects, it’s normally being used non-morally, but when it’s applied to persons, it implies moral criticism.¹¹ Thinking along these lines, Robert Goodin even goes as far as to say that ‘an act of exploiting a person always constitutes a wrong’.¹² And, as Jonathan Wolff points out, similar things can be said about the word ‘use’:

There can be no doubt that the idea of exploitation is closely related to some notion of use . . . exploiting someone is using someone. Generally, when we say ‘x used y’, where y is a person, we intend this to be a form of criticism of x’s behaviour.¹³

One way of dealing with this is to say not that ‘exploitation’ has a moral and a non-moral sense, but that it has just one sense (it means use) accompanied by different ‘connotations’ in direct contexts, this difference being explained by the fact that while using persons is wrong, using inanimate objects is not.¹⁴ However, things are not that simple, since:

using other people may be OK, as students use teachers to learn. But it is odd to describe such cases as exploitation. Among people, the word implies merely using others, taking wrongful advantage for one’s own purposes.¹⁵

So the point is no...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• PREFACE
• 1 INTRODUCTION
• Part I CONCEPTS
• Part II PRACTICES
• NOTES