Creating A Legal Market In Kidneys [...]
| Author | Setareh Taei |
Creating A Legal Market In Kidneys:
Recognition of Ownership of the Body and Its Parts and
A Proposal For A Legal Kidney Market
Setareh Taei*
I. INTRODUCTION
Central to libertarian ethos lies the well-embedded mantra, ‘The body is mine,
and mine alone’. Under the auspices of libertarianism, the core principles
accentuating the right to self-ownership clash with the long-standing
provisions in law against the recognition of a proprietary interest in one’s body.
The critical disparity between supply and demand in organ transplantation and
its ramified loss of life has been documented wo rldwide. 1 In a world where
three people die each day in anticipation for a kidney in Britain, and eighteen
people in the US,2 the need for kidneys is urgent. The tradit ional ‘no property’
approach in English law to the human body, including biomaterials leading to
the denial of a commercial kidney market (ss 32 and 33 Human Tissue Act
2004), has fuelled this shortage. Inevitably, ‘a global black market in human
organs and a booming transplant tourism industry has materialised’. 3
Controversy highlights the live debate regarding the valuable consideration for
the exchange of a kidney. Advocacy for such a commercial market in kidneys
has resulted in fundamental concerns with apprehension of opening up a
Pandora’s Box of ethical dilemmas. The underlying issue co ncerns the
ownership of the body and its parts — vital for discussion because ownership is a
prerequisite for economic transactions. 4 Therefore, to deal successfully with
* Setareh Taei is an LL.B graduate from SOAS, University of London. I would like to thank
Professor Paul Kohler for his much appreciated guidance throughout. For my mother, who has
been ther e for me through every step of the way and for always being my rock.
1 Alireza Bagheri, ‘Compensated Kidney Donation: An Ethical Review of the Iranian Model’
(2006) 16(3) Kennedy Institute of Ethics Journal 269.
2 ‘Organ Donation: Statements And Stances’ (Organ Donation, March 2010)
3 Steve P Caland rillo, ‘C ash For K idneys? Ut ilising Incentives To End Americ a’s Organ Shortage’
(2004) 13 George Mason Law Review 69, 87.
4 Barbro Björkman and Sven Ove Hansson, ‘ Bodily Rights and Property Rights’ (2006) 32 Journal
of Medical Ethics 209.
(2014) Vol. 1, Issue 1 Setareh Taei 31
SOAS LAW JOURNAL
commerce and remuneration, we must clarify the extent to which the body and
its parts can be recognised as property.5 This Article provides a theoretical and
legal analysis through the lens of libertaria nism, arguing for self-ownership.
Those hostile to self-ownership and a kidney market argue that it commodifies
the body, challenging one’s moral integrity. A market raises fears of
predicaments such as exploitation of the poor, who, in times of destitution, will
be attracted to making a quick buck via the system, making them slaves to the
rich by providing them an abundant supply of kidneys. This Article however
demonstrates that the body is already commodified, highlighting the
contradictory nature of the law, and that injustice and inequality underlie any
system and will be inevitably impossible to combat completely. A limited
property right further thwarts fears of individuals selling their lives; this Article
asserts that only biological material that does not harm anyone should be
allowed to be sold, just like blood, sperm and hair which are regenerative and
whose sale have been permitted in the past.
The analytical framework on ownership of the body lends itself to
philosophical and legal theorists who subscribe to the ‘body as property’ view.
The various kidney transplantation systems highlighted in this paper – UK,
Spain and Iran – further demonstrate conflicting perceptions of the body. With
Iran being the only country in which kidney sales are permitted, it provides a
concrete legal framework from which the West can learn.
Section 2 explores philosophical perspectives on the individual’s relationship
with the body, and what constitutes property, and whether the body is
congruent with these well-founded elements. The capricious nature of the law
will be illustrated via case law. The law’s progressive recognition of self -
ownership will serve as the foundation of arguing for a compensated, regulated
kidney market.
Section 3 analyses the fears held by those against commodifying the kidney. It
draws from contemporary examples – prostitution, commercial surrogacy and
the kidney exchange programme – highlighting the contradicting reasoning
justifying the denial of such a market. Utilitarianism and Kantian ethics are
further used to support such a market.
Section 4 looks at the body in three global spectrums. It compares the Iranian
model with the current opt-in/out systems in Spain and the UK. Iran
exemplifies the approach we should be taking.
5 ibid.
32 Creating A Legal Market In Kidneys: Recognition of Ownership of the
Body and Its Parts and A Proposal For A Legal Kidney Market
www.soaslawjournal.org
II. SELF-OWNERSHIP
Over himself, over his own body and mind, the individual is sovereign.6
At the epitome of libertarianism lies self ownership: the belief that every
individual owns himself and has the right to do what he wishes with his body
provided, no harm is caused. However, the law prohibits the way the body is
used, for example, by prohibiting kidney sales. This is highly debated, for the
ability to donate one’s own kidney arguably postulates prior ownership of it. It
is this paradox that haunts contemporary bioethics and law. This Section
explores these contentious issues through philosophical and legal theory and
attempts to illustrate that we own our bodies; thus, interference by the state is a
violation on our rights, and selling our kidney should be permitted.
2.1 Theories on Property Rights and the Body
The ‘body as property’ is often rejected on the grounds that its acceptance
might lead to morally objectionable practices.7 Historically, however, people as
property was comfortably accepted. For example, in Roman and Anglo-Saxon
law, and later by statute and common law fiction and equity, a debtor could be
personally attached to force payment of the debt.8 Similarly, a wife was equated
to chattel of her husband (Hopkins v Blanco).9 In the 17th century, people could
be slaves, chattel owned by their masters (Gregson v Gilbert).10 Two hundred
years of legal slavery exhibits the inherent collision of the market with human
freedom. For most anti-slavery advocates, self-ownership constituted the
‘taproot of freedom’11 and the ‘defining sin of slavery was its denial of a
property in the self’.12 Liberal notions were evident even in that era, where Sir
William Blackstone commented, ‘[T]he spirit of liberty is so deeply ingrained in
our constitution’ that the instant a slave ‘lands in England, [he] becomes a
freeman; that is, the law will p rotect him in the enjoyment of his person, his
liberty and his property’.13 For libertarians, acceptance of self-ownership is a
6 John Stuart Mill, On Liberty (J.W. Parker and Son 1859).
7 Muireann Quigley, ‘Property Rights in the Human Body: App lying Honoré’ (2007) 33(11) Journal
of Medical Ethics 631.
8 Mark Pawlowski, ‘Property in Body Parts and Products of the Human Body’ (2009) 30(1) Liverpool
Law Review 35.
9 Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974).
10 Gregson v Gilbert [1783] 99 ER 629.
11 Peter Halewood, ‘On Commodification and Self-Ownership’ (2008) 20 Yale Journal of Law
and Humanities 131, 133.
12 ibid.
13 ‘Right of Revolution’ (The Founders’ Constitution, 1765)
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