Abstract
There remains a need to properly analyze the metaphysical assumptions underlying two organ procurement policies: presumed consent and organ sales. Our contention is that if one correctly understands the metaphysics of both the human body and material property, then it will turn out that while organ sales are illiberal, presumed consent is not. What we mean by illiberal includes violating rights of bodily integrity, property, or autonomy, as well as arguing for or against a policy in a manner that runs afoul of Rawlsian public reason.
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Notes
Most lay people will not share our belief that bodies fail to persist as corpses. But beginning the public discussion about organ policy without that sort of consensus is not problematic from a Rawlsian perspective. Our claim that presumed consent does not infringe the right to bodily integrity does not involve persuading lay people to abandon their metaphysics for ours, or if they do not have a metaphysics, to acquire ours. We are putting forth reasons to hold such a position in language that does not require them to accept a particular comprehensive doctrine.
Readers will soon see that it would not matter if the control over bodily property is qualified by prohibitions against bodily confiscations for debts or taxes and any transfer of ownership before death.
Even if we are wrong about the sense in which Locke maintains that one owns one’s body, we still believe that there is an argument against anyone owning the organs of the dead that is Lockean in spirit [24, pp. 372–374]. Our claim is based upon Locke’s own proviso about not taking more property than one can use. So, even if one does own one’s living body, neither one nor one’s heirs can own one’s remains after death for these remains would merely be left to spoil in the grave.
Someone could claim that the body is co-owned by the person and the animal and that this is not problematic because their interests are always the same. But it seems to us that they could have different interests since they die or go out of existence at different times.
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Acknowledgments
We are grateful for numerous criticisms and suggestions for improvements made by David Shoemaker, an anonymous Reviewer, and the audience at the Wake Forest University Center for Bioethics, Health and Society.
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Hershenov, D.B., Delaney, J.J. The metaphysical basis of a liberal organ procurement policy. Theor Med Bioeth 31, 303–315 (2010). https://doi.org/10.1007/s11017-010-9151-z
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DOI: https://doi.org/10.1007/s11017-010-9151-z