Confiscating Live Body Parts

This posting is based on Fabre C, 2006, Whose Body is it Anyway?, Oxford University Press. In chapter five Fabre argues the following.

1. Justice requires that we must be prepared to give certain of our living organs which we can live without, namely blood, a cornea, part of the liver or a kidney, to others in urgent need of these organs so that they can lead a minimally flourishing life. Provided those in need lead a less than minimally flourishing life due to no fault of their own.
2. She further believes such mandatory donation does not significantly damage someone’s autonomy.

The idea that we can take these organs without the patient’s consent runs counter to our intuitions. Does Fabre really believe justice requires that we can remove organs without a patient’s consent? Forcibly anaesthetise patients and to remove their organs? In this posting I will argue that Fabre’s argument is unsound. I will argue justice does not justify the taking of someone’s organs without her approval.

Fabre adopts a sufficientist account of justice in her argument. I will accept a sufficientist account of justice is the correct one to adopt. Such an account of justice requires we give material resources that others need in order to lead a minimally flourishing life. This requirement is subject to the proviso that those leading a less than minimally flourishing life do so due to no fault of their own. In what follows when I refer to a less than minimally flourishing life I am referring to such a life subject to the above proviso, I will however omit the proviso. Fabre’s arguments seem to roughly follow the route below.

1. Justice requires that we give some material resources to others in order to enable them to lead a minimally flourishing life. I accept this requirement.
2. Justice requires that we give our personal service to others in an emergency in order to enable them to lead a minimally flourishing life. I accept this requirement. We should, for instance, save a child from drowning in a pond.
3. Justice requires that we give our personal services to others in order to enable them to lead a minimally flourishing life. I am doubtful about accepting this requirement.
4. Justice requires that our organs are available to others for transplant when we die in order to enable them to lead a minimally flourishing life. I accept this requirement.
5. Justice requires that we should be prepared to give certain of our living organs, as set out above, to others for transplant in order to enable them to lead a minimally flourishing life.

I will now present an argument to show if we accept a sufficientist account of justice then this does not entail that we should be prepared to give certain of our living organs to others in order to enable them to lead a minimally flourishing life.

I have accepted we have a duty, due to justice, to help others lead a minimally flourishing life. I also agree with Fabre that certain transplanted organs are sometimes necessary in order to achieve this. For instance, someone receiving dialysis may need a kidney and someone involved in a road accident may need a blood transfusion in order to permit them lead a minimally flourishing lives. I further accept that it is possible to lead a minimally flourishing life after giving blood or donating a kidney. I do not accept, as Fabre does, that in certain cases a cornea transplant may be necessary for someone to lead a minimally flourishing life. The blind, for instance, can lead such a life. Let us consider two multi-millionaires John and Jane. John is required to pay£100,000 in tax on his large earnings. Jane has two healthy kidneys and is a good match for a patient urgently in need of a kidney transplant. According to Fabre’s arguments justice requires that Jane must be prepared to donate one of her kidneys in order to help this patient lead a minimally flourishing life. Let it be accepted for the present that Fabre’s arguments are correct. In the above circumstances I would feel no sympathy for John however I would feel a great deal for Jane. Indeed intuitively I would feel Jane is being treated unjustly. It follows, as pointed out above, Fabre’s arguments sometimes reach conclusions that run counter to our intuitive ideas of justice. The fact that Fabre’s arguments sometimes lead to counter intuitive conclusions does not of itself mean these are unsound. Perhaps for instance after some reflection we might alter our intuitions. However it does suggest we should examine the reasons for the differences between Fabre’s conclusions and our pre-reflective intuitions. In order to do this I will now consider why justice requires that we help others to lead a minimum flourishing life.

Fabre believes justice is based on respect for persons. She further believes this respect is based on the recognition of others as persons, page 29. It might be argued that someone who does not have a minimally flourishing life and who has no control over her life is not in the true sense a person. It might then be argued the simple recognition of someone as a person means we have a duty, due to justice, to ensure that she can lead a minimally flourishing life. I believe this account of the basis of justice is too simple. We can recognise certain people, who have certain capabilities and lead a minimally flourishing life, as persons. Secondly we can recognise certain people who have the capacities needed to lead a minimally flourishing life but are unable to lead such a life due to no fault of their own. The simple recognition of this second class of people does not automatically mean we are under a duty to enable them to lead a minimally flourishing life. Simple recognition alone does not give us a motivation to act. However most of us would intuitively feel motivated by a feeling of justice to enable such people lead a minimally flourishing life. The reason why we feel motivated by a feeling of justice is because we feel sympathy or empathy for such people. In what follows I will use the term empathy but this term can be taken to mean either empathic or sympathetic caring. In the light of the above it would seem the basis of justice is the recognition that certain people have the capacities needed to lead a minimally flourishing life together with an empathic caring for them.

I have argued that justice depends, at least in part, on empathy for others. Accepting my argument does not damage the case for adopting a sufficientist account of justice. Indeed it may count in favour of adopting such an approach as we would appear to have a natural empathy for those of us who have a less than minimally flourishing life through no fault of their own. Accepting my argument does not mean the application of the law depends on our sentiments. A just law can be defined as a law that is motivated in part by an empathic caring for others. However the application of a law based on empathic caring for others need involve no sentiments. Let us now reconsider my example of Jane. In the light of the above we can now see, why we intuitively feel Jane is treated unjustly, if the law requires her to make one of her kidneys available for transplant. The reason being we feel more empathy for someone being compelled to do something as opposed to someone which something just happens to. It follows we would naturally feel more empathy for Jane than the patient suffering from kidney failure. Further I believe we would naturally feel more empathy for Jane than John who is required to pay £100,000 in taxes. Let it be accepted my argument that empathy plays a part in deciding which laws are just is correct. Let it be further accepted that we would have empathy for a patient on dialysis. However we would have greater empathy for Jane if she was required by law to donate one of kidneys. It follows because empathy plays a part in deciding what is just that it would be unjust to require Jane to donate one of her kidneys. Accepting my argument shows Fabre is mistaken to conclude that a sufficientist account of justice requires that we must be prepared give certain of our living organs to others in urgent need of these organs to enable them to lead a minimally flourishing life.