Coercion, Paternalism, and the Buying and Selling of Human Organs

Abstract

Professor Samuel Gorovitz contends that Congress should pass legisla-tion prohibiting the commercial brokering of human organs.¹ The fact that he holds such a view is significant, for Gorovitz believes “the government should exercise great caution in enacting prohibitions on behavior,” and that restrictive legislation ought to be enacted only when the government “can sustain a persuasive justification” for doing so.¹ It is only because Gorovitz believes there is a persuasive justification for prohibiting the buying and selling of human body parts that he advocates proscriptive legislation, and in his testimony before the House Subcommittee on Investigations and Oversight he goes to some pains to develop that justification. Like Gorovitz, I believe our government needs a compelling justification if it is to properly impose legislative restrictions upon the behavior of its citizens. On the other hand, I do not believe that Gorovitz’s testimony before the House Sub-committee provides that justification; indeed, I believe there are good reasons that a commercial market in human body parts should not be legislated out of existence. In what follows, I am going to support both of these views. I shall begin by critically evaluating Gorovitz’s argu-ments against the establishment of a commercial market in human body parts. Once the deficiencies in these arguments have been noted, I will explain why I think it would be wrong to prohibit the buying and selling of human organs.