Liberalism, the Duty to Rescue, and Organ Procurement
| Date | 01 September 2008 |
| Published date | 01 September 2008 |
| Author | James Stacey Taylor |
| DOI | 10.1111/j.1478-9302.2008.00161.x |
| Subject Matter | Article |
Liberalism, the Duty to Rescue, and Organ
Procurement
James Stacey Taylor
The College of New Jersey
After outlining her rights-based theory of justice in Whose Body is it Anyway? Cécile Fabre argues that as
a matter of justice needy people have a right to be rescued provided that this would not impose
unreasonable costs upon their would-be rescuers, and that this right should be enshrined in law. Fabre
then argues that the enforcement of such a duty to rescue extends not only to the state being able to
conscript persons into a civilian service, but that it should also be able to conscript cadaveric organs for
transplant into those who need them – and even that it should be able to conscript organs for transplant
from live persons if needed. Fabre then goes on to argue that persons should be allowed to sell goods and
services that are typically held to be market inalienable – including their non-essential organs and their
sexual and reproductive services. While she agrees that there should be markets in cadaveric organs, in
Black Markets Michele Goodwin argues that the conscription of organs from either cadavers or living
persons is ethically and legally problematic. In this review article I argue that while Fabre’s arguments are
more persuasive than Goodwin’s, they do not support Fabre’s more radical conclusions. I also argue that
Fabre’s conclusions concerning cadaveric organ conscription could be strengthened by drawing upon
current philosophical arguments concerning the possibility of posthumous harm, and by clarifying her
account of rights. I conclude by noting that just as Fabre’s arguments would benefit from considering the
empirical data that Goodwin offers, so too would Goodwin’s views benefit from a greater engagement
with the type of philosophical arguments offered by Fabre.
Cécile Fabre’s Whose Body is it Anyway? promises to be a bold book. After
outlining a rights-based theory of justice she argues that as a matter of justice ‘the
imperiled have a right to being rescued against would-be rescuers provided that
the latter would not run an unreasonable risk of incurring an unreasonable cost’
(Fabre, 2006, p. 54), and that this right should be enshrined in law. With this
foundational claim in place, Fabre then argues that ‘all able-bodied members of
society [should] perform, for a short time, some sort of civilian service – that is,
work, for some time, as helpers in schools, hospitals, nursing homes, and so forth’
(p. 55).While controversial, this claim is not an especially startling one – after all,
many Western countries have imposed some form of national service upon their
citizens. What is notable about Whose Body is it Anyway? is that Fabre takes this
line of reasoning to its logical conclusion. She argues that the enforcement of such
a duty to rescue extends not only to the state being able to conscript persons into
such a civilian service, but that it should also be able to conscript cadaveric organs
for transplant into those who need them – and even that it should be able to
conscript organs for transplant from live persons if needed. Such conclusions in
themselves could render Whose Body is it Anyway? a striking work – but Fabre’s
theory of justice does not merely support the monothesis that the state should
enforce its citizens’ duties to rescue through conscripting goods and services from
© 2008 The Author. Journal compilation © 2008 Political Studies Association
T H E D U T Y TO R E S C U E A N D O R G A N P RO C U R E M E N T
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them. It also supports the thesis that they should, under certain conditions, be
allowed to sell goods and services that are typically held to be market inalienable
– including their non-essential organs and their sexual and reproductive services.
In developing the rights-based theory of justice that will provide the foundation
for both her pro-conscription and pro-market arguments Fabre notes that:
a theory of justice must give an account of the following three ele-
ments: the scope of the principles which it defends, to wit, to whom
justice is owed and on whom it is incumbent to act justly; the content of
those principles, to wit, what must be distributed as a matter of justice;
and the strength of those principles, to wit, the degree to which it is
imperative that such distribution should occur (p. 11, emphases in
original).
With respect to the scope of her theory of justice, Fabre holds that justice is owed
to, and is incumbent upon, persons. Concerning the strength of the principles of
justice, Fabre holds that ‘whatever persons should receive and distribute, it requires
that they do so as a matter of rights’ (p. 11), where:
To claim that X has a right to a particular good G or to perform some
particular act A ... means that those against whom the right is held, who
may in fact have current use of G, or have an interest in X’s non-
performance of A, do not have a choice in the matter: G must be made
available to X, and doing A must be allowed to him (p. 16).
With these two claims in place, Fabre turns to outlining the content of the
principles of justice. For Fabre, justice requires that persons who do not have the
material resources necessary to live a minimally flourishing life have rights against
those persons who have a surfeit of such resources (judged by the standards of a
minimally flourishing life) to provide them with such resources. According to
Fabre, a minimally flourishing life ‘consists in being able to exercise those
capacities which are truly human: the capacity to feel and express emotions
within a range of relationships, to have aesthetic experiences, to engage in
intellectual activities, and to develop and exercise a range of physical skills’ (p. 32).
Once everyone has the resources to live such a life, Fabre claims that ‘all
individuals are allowed to enjoy the fruits of their labour in pursuit of their
conception of the good’ (p. 39).
With her theory of justice in place Fabre argues that ‘all able-bodied members of
society perform, for a short time, some sort of civilian service’ (p. 55), that ‘the sick
have a right to the organs of the dead if they need them’ to lead a ‘minimally
flourishing life’ (p. 96) and that ‘the sick have a right against the able-bodied that
the latter give them some of their body parts’ (p. 123). Fabre’s arguments for each
of these conclusions is based on the assumption that it is legitimate coercively to
take from one person significant portions of his or her income for redistribution
to others who are less well off materially, paired with the claim, argued for in
© 2008 The Author. Journal compilation © 2008 Political Studies Association
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J A M E S S TAC E Y TAY L O R
chapter 2, that, given this, persons have a duty to rescue those who need
emergency aid provided that such a duty only imposes upon them risks that ‘most
individuals routinely incur’ (p. 46). With these two claims in hand Fabre argues
that they also, by analogy, support her three conclusions outlined above, and
devotes much of her time in chapters 3, 4 and 5 to defending these conclusions
against objections.
Let us set to one side for a moment Fabre’s acceptance of the assumption that
coercive redistribution of resources is acceptable, and her arguments for the duty
to aid in emergency situations, and consider her defences of the two most striking
of her three conclusions: that the sick have a right to (some of ) the body parts of
the able-bodied, and that they have a right to the body parts of the dead. Fabre
is unclear as to the extent of the first of these alleged rights. At times, she holds
that the sick have a right to the body parts of the healthy even when their removal
would place the healthy in danger of death. For example, she writes that ‘if the
risk of dying during or after the operation [to remove a body part for transplant]
is as acceptably low as the risks one incurs while driving ... one must accept a
moral duty to transfer body parts under general anesthetic’ (p. 116).This follows
from her earlier claim that in so far as persons run the risk of death when
engaging in activities such as ‘driving, cycling, and so on’, they have the duty to
rescue others in danger even if to do so would expose them to the risk of death
(p. 46). Later in the same passage, however, Fabre writes that ‘if rescuers are under
a duty to incur a risk, when the probability of actually incurring the harm is
sufficiently low, then we must hold the medically well off under a duty to incur
a similar risk of a similarly low harm’ (p. 116, emphasis added). Here, it seems that
persons are only required to give up body parts if doing so would expose them
to a risk of a ‘low’ harm – and, Epicureans aside, most persons would not consider
death to be such a harm. Fabre also holds that persons are only required to give
up body parts if so doing ‘would not endanger their health’ (p. 104), and that ‘we
are not under a duty to give a kidney (or a...
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