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«HANDOUT 11: ORGAN MARKETS AND EXPLOITATION 1: ORGAN MARKETS 1.1 LEGALITY IN THE UNITED STATES In this lesson we will discuss another type of state ...»

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In this lesson we will discuss another type of state paternalism which relates to public health:

restrictions on free markets for organ sales. Here our concern will be with live organ selling (or a

person selling their organs while they are still alive). Although it is legal to make a live organ donation, according the National Organ Transplant Act of 1984 it is illegal to buy or sell a live organ.

It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce. The preceding sentence does not apply with respect to human organ paired donation.1

1.2 ORGAN TRAFFICKING Despite this, there is a black market for organs because currently the number of people who need organs greatly outnumbers the supply. More than 123,000 people are currently on organ waiting lists and 21 people die every day from not being able to get the transplant they need.2 Given this, the threat of death often proves to be a stronger motivator than the punishment. The following describes a recent organ trafficking operation which involved bringing Israeli organ vendors into the United States.

Levy Izhak Rosenbaum called himself a “matchmaker,” but his business wasn’t romance. Instead, authorities say, he brokered the sale of black-market kidneys, buying organs from vulnerable people from Israel for $10,000 and selling them to desperate patients in the U.S. for as much as $160,000 […] As part of the scheme, the organ donors were brought from Israel to the United States, where they underwent surgery to remove the kidneys, authorities said.3 The question, then, is whether it would be better to make such exchanges legal.



A common reason for making organ sales illegal is paternalistic in nature: making such exchanges illegal is necessary to protect the potential organ vendors. While Gerald Dworkin does think there are cases where paternalism is justified, he does not support laws which prohibit the sale of organs.

https://www.law.cornell.edu/uscode/text/42/274e 1 http://www.americantransplantfoundation.org/about-transplant/facts-and-myths/ 2 3 http://www.nbcnews.com/id/32132371/ns/us_news-crime_and_courts/t/first-case-organ-trafficking- us/#.Vi1vtfmrTjY 1 Hughes explains that Dworkin provides both autonomy-based and consequentialist arguments in favor of organ markets. First, the autonomy-based argument.

He [Dworkin] then notes that the fact that people are now entitled to donate nonregenerative organs such as kidneys, and to sell blood, semen, ova, hair, tissue, and other replenishable body parts and products, presupposes that they have the right to use their bodies as they wish. Thus, there is an assumption of self-ownership underlying the moral and legal permissibility of these practices, an assumption that expresses respect for personal autonomy (Hughes, 90).4 Dworkin points out that we already allow be people to donate their kidneys. Furthermore, the fact that we allow people to sell replenishable products of their body such as “blood, semen, ova, hair, and tissue” suggests there is a right to self-ownership. If that is the case, then it is not clear why we should not be able to sell nonregenerative organs. Second, Dworkin also offers a consequentialist argument in favor of organ markets.

Moreover, allowing people to sell their organs adds to the supply of much-needed organs such as kidneys, thus benefitting those who need these organs to prolong their lives. So a second, consequentialist, objective is served by allowing a market in organs (Hughes, 90).


One of the main objections to organ markets, however, is that such markets would exploit those who are least well off economically. Dworkin recognizes this objection.

Clearly, those who are most likely to wish to sell their organs are those whose financial situation is most desperate. Those who have alternative sources of income are not likely to choose an option which entails some health risk, some disfigurement, some pain and·discomfort. The risks of such sales will certainly fall disproportionately by income class.5 Dworkin admits that this is the case. Because those who are poorest are also the most desperate to make money, and organ selling is not generally the most desirable arrangement, it is also those who are poorest who will be the most likely to be willing to sell their organs. However, Dworkin rejects the claim that this makes organ markets wrong.

It suggests that poor people should not be allowed to enter the army, to engage in hazardous occupations such as high-steel construction, to become paid subjects for medical experimentation. There are certainly objections of justice to the current highly unequal income distribution. But it seems to me paternalistic in the extreme, This handout is based upon Paul M. Hughes, “Exploitation, Autonomy, and the Case for Organ Sales” International 4 Journal of Applied Philosophy 12:1 (1998): 89-95. Citations will be made in-text in the following format: (Hughes, ##).

5 Gerald Dworkin, “Markets and Morals: The Case for Organ Sales,” in Morality, Harm, and the Law, (Boulder, CO:

Westview, 1994), 157.

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We generally accept that poor people should have the option to engage in other dangerous occupations to make money. So, why should the economically disadvantaged not have the option to sell their organs? Dworkin reinforces this point by putting the extent of the risk taken on by the poor in its proper context.

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In Dworkin’s view, then, a market in organ sales both increases the autonomy of the poor by providing them with more money-making options and provides important benefits for society at large. According to Hughes, however, this is not correct. Hughes believes that “what appears to be an increase in personal autonomy is in fact a decrease in freedom of an especially insidious kind” (Hughes, 91).


Hughes argues for this by distinguishing between two different kinds of options: viable options and constraining options.

Viable Options → An option which increases our autonomy or well-being either by its mere presence in one’s set of options or by its exercise (Hughes, 91).

Constraining Options → An option which does not enhance one’s well-being or autonomy by its mere presence in one’s set of options or by its exercise (Hughes, 91).

For instance, consider the following examples of options.

(i) The option to be president.

(ii) The option to vote in political elections.

It seems that either of these would be considered viable options. One may not have the desire to run for political office or vote in an election. However, merely having such options increases our wellbeing by affirming our status as equal members of political society. However, this is not the case with all options. Hughes appeals here to Mill’s discussion of contractual slavery.

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3 On the other hand, the choice to sell an organ may be only superficially consistent with personal autonomy if it is merely an additional, though constraining, option.

The point is that additional choices need not increase one’s autonomy or well-being, since merely adding to a person's set of options sometimes compromises his liberty.

This sort of “subtraction by addition” is made clear by Mill in On Liberty when he rejects the option of selling oneself into slavery on the grounds that it defeats the purpose of autonomy and is thus not a genuine choice at all. Choices which compromise autonomy because they are self-defeating are constraining options (Hughes, 91).

The choice to contract oneself into slavery adds nothing to either one’s autonomy or well-being by its mere presence or exercise. It is a constraining option.


Hughes view is that the option to sell one’s organs is also a self-defeating and constraining option.

Furthermore, the deeper worry is that an organ market would be a system which provides the poor with constraining options consequently provides everyone else with viable options.

If a market in organs provides those who would sell an organ with such a constraining option, then their autonomy will be compromised by such a market.

Moreover, if such a market provides those who can afford to buy life-prolonging organs with a viable option they did not previously have, then the increase in those persons’ autonomy and well-being requires a decrease in the autonomy and wellbeing of those who sell their organs. But this is exploitation (Hughes, 91).

Organ selling provides viable options for the rich (an increased supply of organs for transplant), but only by providing constraining options for the poor (an option which will likely tempt them to do something that is dangerous and/or harmful). The wealthy take advantage of the desperate poor.

3.3 MARX’S THEORY OF EXPLOITATION Hughes supports his claim that an organ market is exploitative by explaining the theory of exploitation outlined in the work of Karl Marx.

But the root of Marx’s concerns about exploitation is that workers in capitalism are exploited in the sense that they sell their labor power for a wage, but then produce over and above the value of that wage, thus creating what Marx refers to as “surplus value.” This surplus value is the capitalist’s “profit.” (Hughes, 92).

The nature of the wage labor system can be expressed in the following way.

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4 In order for the capitalist to derive a surplus value from the laborer’s wage, the value produced by the laborer must exceed the cost of that labor. In other words, the laborer must produce more value than he or she receives in wages. From Marx’s perspective, this means that the capitalist gets something (surplus value) for nothing (without having to compensate the laborer with equal value).


The question, then, is why would the wage laborer agree to such an arrangement? Answering this question requires thinking about the background conditions which would drive one to agree to it in the first place.

Exploitation is not just what happens when a worker labors in a factory for a wage, it’s what happens to make that happen. In other words, exploitation involves the background set of options which impel worker’s to “choose” to labor for capitalists (Hughes, 92).

What is morally problematic about exploitation is not just the fact that one is, for instance, “underpaid or underworked” or harmed in some other way (Hughes, 92). The entire explanation of what is wrong with exploitation recognizes that “the reasonable alternatives available to them [the person being exploited] are so limited that the addition of certain kinds of options may have a debilitating impact on a person’s autonomy and well-being” (Hughes, 92). Consider the following hypothetical example to see this point.

One day, while trekking through the jungle, Allan encounters a man trapped in quicksand. The sinking man begs for Allan’s help, but Allan is reluctant to offer it.

He lacks the proper equipment and could not pull the man out without at least a little risk of falling in himself. After some deliberation, however, Allan offers to help the sinking man on the condition that if Allan helps him escape the quicksand, the man will become Allan’s servant for the remainder of his life. As he sinks deeper, the man reluctantly agrees. Allan saves him and then demands that the rescued man adhere to their agreement.8 In this case, what is morally problematic is not just that the deal offered the sinking man will ultimately harm him (although that is significant). More fundamentally, this is an instance of exploitation because it is only in virtue of these desperate conditions that the sinking man would accept this deal. The sinking man, in other words, is being forced into a constraining choice. The same, in Marx’s view, occurs with wage labor. The only reason that the wage laborer would agree to an arrangement where they produce more value than they receive in return is because they do not own the means of production (for instance, the factory where the labor takes place). Thus, in Marx’s analysis the only option left for the laborer is to sell his or her labor power to the capitalist for a wage.

Palmer and Hedberg, “The Ethics of Marketing to Vulnerable Populations,” Journal of Business Ethics 116 (2013): 403

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In a similar fashion, when we consider what would make someone sell an organ it seems that only those who are most desperate would choose this option. Just like in Marx’s analysis of wage labor there is disparity in the benefit derived by the seller and buyer.

The seller of an organ derives the benefit of short term economic assistance. If this individual is facing severe economic challenges, however, this will not provide a long term solution to their problems. Additionally, while there may not be a large risk of death associated with selling a kidney, there are legitimate health risks involved with have a solitary kidney. The National Kidney Foundation notes that the following risks are associated with live kidney donation.

Some donors have reported long-term problems with pain, nerve damage, hernia or intestinal obstruction. There are not currently any national statistics on the frequency of these problems.

In addition, people with one kidney may be at a greater risk of:

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