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Buying and Selling Organs: Issues of Commodification, Exploitation and
Human Dignity
Article · December 2017
DOI: 10.7590/245227717X15090911046502
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Roberto Andorno
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119
Journal of Trafficking and Human Exploitation, 2017, n° 2, p. 119-127
Buying and Selling Organs: Issues of Commodification,
Exploitation and Human Dignity
Roberto Andorno(*)
"Liberty is at an end whenever the laws permit that, in certain cases,
a man may cease to be a person, and become a thing"
Cesare Beccaria, On crimes and punishments, ch. 20
I. Introduction
The commercial trade in human organs and the trafficking of
persons for the purpose of organ removal have become a serious human
rights problem worldwide. In 2007, it was estimated that organ trafficking
accounted for 5-10% of the kidney transplants performed annually
throughout the world.1 There are reasons to believe that these numbers have
increased since then.2
In view of the magnitude and complexity of this problem, some
intergovernmental organizations have developed over the past two decades
specific legal frameworks aiming to prevent and fight organ trafficking, the
most recent one being the Council of Europe’s Convention against Trafficking
in Human Organs (2015).3
Today, the ban on organ sale, no matter how supposedly ‘voluntary’ or
‘well informed’ could be the seller, can be counted amongst the principles of
international biolaw.4 This principle can be found in major intergovernmental
and non-governmental instruments relating to biomedicine such as the
UNESCO Universal Declaration on Bioethics and Human Rights (2005) (Art.
(*)
Roberto Andorno is Associate Professor of Bioethics and Medical Law, Faculty of Law,
University of Zurich, Switzerland.
1
Debra A. Budiani-Saberi & Francis L. Delmonico, ‘Organ trafficking and transplant tourism: a
commentary on the global realities’, American Journal of Transplantation 8 (2008): 925-929.
2
European Parliament. Policy Department. Directorate-General for External Policies, Trafficking
in Human Organs. Study (Brussels: European Union, 2015), 8.
3
See Stefania Negri, ‘Transplantation Ethics and the International Crime of Organ Trafficking’,
International Criminal Law Review 16 (2016): 287-303.
4
Roberto Andorno, Principles of international biolaw (Brussels: Bruylant, 2013), 30.
120
21, para 5)5, the WHO Guiding principles on human cell, tissue and organ
transplantation (2010) (Principle 5)6, the Council of Europe’s Convention on
Biomedicine and Human Rights, also known as the ‘Oviedo Convention’
(1997) (Art. 21)7, and the World Medical Association’s Statement on Human
Organ and Tissue Donation and Transplantation (2000) (Para. 26).8 At
domestic level, at least 55 countries have specific legislation prohibiting the
payment for organs.9
This paper briefly presents the two major reasons justifying the ban on the
commercial trade on human organs: the commodification of the human body
and the exploitation of vulnerable people. At the same time, it aims to argue
that what is ultimately at stake in the practice of buying and selling human
organs is the need to ensure respect for human dignity.
2. Commodification of the Human Body
Today it is widely accepted that it is morally –and legally–
unacceptable to treat people as if they were mere objects. Every human being
is regarded by law as deserving to be treated as ‘someone’ and not merely as
‘something’. For this reason, contemporary legal systems tend to
systematically reject any practice that implies blurring the lines between
‘persons’ and ‘things’.10 The sharp distinction between these two basic legal
concepts has been labelled as ‘the primary truth of law’.11 This dialectic
persons-things is indeed the most fundamental structuring principle of
modern legal systems.
One particular application of the summa divisio between ‘persons’ and
‘things’ is the principle of non-commercialization of human body parts. This
principle, which is included in several international and national norms
5
‘States should take appropriate measures, both at the national and international levels, to combat
(…) illicit traffic in organs’.
6
‘Cells, tissues and organs should only be donated freely, without any monetary payment or other
reward of monetary value. Purchasing, or offering to purchase, cells, tissues or organs for
transplantation, or their sale by living persons or by the next of kin for deceased persons, should be
banned’.
7
‘The human body and its parts shall not, as such, give rise to financial gain’. See also the EU
Charter of Fundamental Rights (2000) (Art. 3.2): ‘In the fields of medicine and biology, the
following must be respected in particular: (…) the prohibition on making the human body and its
parts as such a source of financial gain’.
8
‘In the case of living donors, special efforts should be made to ensure that the choice about
donation is free of coercion. Financial incentives for providing or obtaining organs and tissues for
transplantation can be coercive and should be prohibited’.
9
Council of Europe / United Nations, Trafficking in organs, tissues and cells and trafficking in
human beings for the purpose of the removal of organs. Joint Council of Europe and United Nations
Study (Strasbourg: Council of Europe Press, 2009), 47.
10
Roberto Andorno, La distinction juridique entre les personnes et les choses à l’épreuve des
procréations artificielles (Paris: L.G.D.J., 1996), 5.
11
Louis Josserand, ‘La personne humaine dans le commerce juridique’, Dalloz (1932) : 1.
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relating to organ transplantation, reflects an ethical and legal axiom according
to which human organs should not be treated as commodities that can be
bought and sold. Consistently with this imperative, the trade in human organs
is condemned on the grounds that it entails a commodification of the human
body.
In ethical and legal discourse, the term ‘commodification’ is used to refer
to the turning of people into commodities or objects of trade. Slavery is the
most obvious and extreme form of commodification. Slaves are reduced to
mere property and thus stripped of all or most of their basic rights; slaves can
be bought and sold as if they were mere merchandises; they do not belong to
themselves but to their masters. Although slavery and slave trade have been
formally abolished throughout the world, it is estimated that about 45.8
million people around the world are trapped in modern versions of
enslavement (human trafficking for various exploitative purposes, forced
labor, forced prostitution, debt bondage, etc.).12 These new slavery-like
practices constitute a highly complex phenomenon which flourishes all over
the world, requiring enhanced global action to prevent it and to protect the
rights of its victims.13
In bioethics, the concept of commodification is prominent in the discourse
on two practices: the sale of body parts and surrogate motherhood. Let us
focus on the former one and try to portray the concept of commodification in
more precise terms.
It can be said that any form of commodification has two essential features:
First, that ‘persons’ are turned into ‘things’; and second, that gift-giving
relationships are changed into commercial contracts.14 The first feature can
be called ‘objectification’ because parts of the body are treated as if they were
objects, while in fact they are constitutive elements of the person. The body
parts are regarded as ‘detached’ from the body, and thought of as distinct from
the person whom they come from. Simultaneously, the body parts are
integrated into a market logic, and seen as if they could be sold.15
It is true that an objectification of a body part may also take place in organ
donation. By making abstraction of the donor’s person, the potential organ
receiver can actually regard the donor’s organ as an ‘object’ that will save his
or her life. All of the receiver’s hopes and expectations are understandably
placed on that life-saving ‘thing’. Thus, the organ donor could be seen as
‘commodifying’ him or herself for the benefit of the receiver. Some authors
have concluded from this that organ selling and organ donation are morally
equivalent practices in terms of commodification, and that all that is ethically
12
Walk Free Foundation, Global Slavery Index, 2016, p. 4. Available at:
http://www.globalslaveryindex.org/
13
Silvia Scarpa, Trafficking in human beings: Modern slavery (Oxford: Oxford University Press,
2008), 4.
14
Herjeet Marway, Sarah-Louise Johnson, and Heather Widdows, ‘Commodification of Human
Tissue’, in Handbook of Global Bioethics, ed. H. ten Have and B. Gordijn (Dordrecht: Springer,
2014), 581-598.
15
Ibid, 585.
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at stake in this domain is the need to ensure that the individual wanting to sell
an organ gives a free informed consent and that the price paid for the organ is
‘fair’.16
However, this merely utilitarian argument is too narrow and fails to
capture the deep meaning and implications of the trade in human organs. Far
beyond the issue of the consent and the amount of the compensation to the
donor, the crucial question is whether the human body can be treated as ‘thinglike’
or property. Merely focusing on consent and compensation begs the
fundamental question because it assumes that people have property rights
over their bodies. Moreover, this argument fails to take into account the wider
background of the increasing marketization of human interrelations as well
as its impact on the life conditions of millions of people in our globalized
world. Neither the ‘consent’ nor the ‘fair’ price approach is able to counteract
the exploitation and commodification of impoverished sellers. Rather, the
market model is likely to encourage such exploitation and commodification
because any organs market is inherently based on asymmetrical power
relations, and for the purpose of generating trade, the more asymmetrical the
better.
Actually, organ donation and organ selling are not morally equivalent
practices. Organ donation does not really involve commodification because
the donor’s organ is not thought of as being saleable. As afore mentioned, one
of the features of commodification is that the body parts are integrated into a
market logic, and seen as if they could be sold. It is precisely when a person’s
organ is ‘tagged’ with a price and placed on the market for sale that
commodification emerges. The offer of an amount of money in exchange for
an organ is in no way not trivial because the presence of money radically
transforms a gift-giving relationship into a commercial transaction. More than
giving a gift of life, organ donors become the sellers of an object, which is
nothing less than a part of their own body.
By putting a price to one of their organs (e.g., a kidney), which is a
constitutive part of their selfhood, organ sellers are in some way ‘selling’ their
own persons, and are therefore degrading themselves to the level of an
‘object’. This is not the case in organ donation, where donors, far from
commodifying themselves, perform a laudable and even heroic act of altruism.
It is interesting to note that the market logic that surrounds the practice of
organ selling is totally absent from organ donation, since this latter is
motivated by solidarity towards a sick person, and not by the promise of a
financial reward.
16
Stephen Wilkinson, Bodies for Sale. Ethics and Exploitation in the Human Body (London:
Routledge, 2003).
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3. Exploitation of the Poor
Besides the concern about the need to prevent the commodification
of the human body, the prohibition of organ trade points towards a more
concrete goal: preventing the exploitation of potential donors, and especially,
poor people from developing countries. When money is offered, it is obvious
that the most desperate –the extreme poor, not the rich– is the most easily
attracted to performing a seriously degrading act –the selling of a body part–
that he or she would never do in normal circumstances. Even authors
supporting the legalization of organ selling acknowledge that ‘those who want
to sell an organ would not do so if they could raise money for other means’.17
Although it is tricky to make a precise definition of ‘exploitation’, it seems
clear that exploitation cannot be simply explained or defined in terms of a
defective informed consent. Slavery is not less exploitative because its victims
have ‘consented’ to it in order to survive and alleviate to some extent their
miserable condition. In other words, a transaction is not exploitative for the
sole reason that the putative victim of exploitation is coerced, lacking capacity,
ill-informed or manipulated. Although these different factors invalidating the
consent are in fact present in many or most cases of organ selling, exploitation
may also occur when victims are legally competent, have been clearly
informed of the nature of the transaction, and their consent is valid and free
in purely formal legal terms.
Thus, exploitation cannot be overcome by simply establishing a system
guaranteeing that potential organ sellers are fully informed about the
procedure and freely consent to it, or that the price offered to them is ‘fair’.
This is to say that organ selling is not immoral due to merely contingent
factors, which could be corrected in the context of a regulated market. Offering
money to poor people to get their organs is an intrinsically exploitative
practice because it cruelly takes advantage of the desperate situation of the
potential victims in order to take their body parts as if they were sealable
objects.
It is true that exploitation always involves the idea of some disparity in the
value of an exchange of goods and services. For instance, it can be said that a
full-time worker is exploited if the wage he or she receives is too low to
actually live on. If the wages are increased to a fair level, there is no more
disparity between the work done and the salary received, and consequently,
there is no more exploitation. However, in the case of organ selling, this
disparity cannot be prevented by simply increasing the price. As a matter of
fact, organs do not have a ‘fair price’ and the disparity is therefore inescapable.
Body parts do not have a price for the simple reason that they are not ‘things’;
they are constitutive elements of our personhood. Thus, we do not own them,
and cannot sell them as if they were ‘objects’. As Kant famously put it, persons
do not have a ‘price’ but a ‘dignity’: while ‘price’ is the kind of value for which
17
Cécile Fabre, Whose Body is it Anyway? Justice and the Integrity of the Person (Oxford:
Clarendon Press, 2006), 144.
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there can be an equivalent, ‘dignity’ is elevated above all price, and admits no
equivalent.18
Some commentators who are in favor of a market for human organs make
a distinction between selling a whole person, which they consider as selfenslavement,
and selling an element of this person’s body, which would be
ethically acceptable. For example, Michael Gill and Robert Sade claim that ‘a
person who sells a kidney still has the rest of her body left. And she can
continue to control her own destiny after that. Indeed, the money from the
sale of a kidney may enhance the range the range of choices for the seller,
increasing rather than decreasing her capacity to control her own destiny’.19
This kind of arguments appears to ignore that every element of the human
body is an interdependent and functional component of an integrated unity
which forms the whole body of the person with inherent dignity. As the
bioethicist Calum MacKellar points out, ‘the moral value of the body’s
elements is similar to that of the whole body and cannot be measured
financially. This means that if a whole body cannot have a price, then any of
its integrated elements cannot have a price either’.20
4. Respect for Human Dignity
As mentioned in the previous sections, commodification of the
human body and exploitation of the poor are the most common objections to
the commercial trade in human organs. However, the ultimate reason for the
ban on this practice is that it seriously violates human dignity. By reducing a
person’s body to the rank of a ‘thing’ that can be bought and sold, and
exacerbating the conditions for the exploitation of the poor in the global
market, the selling of human organs seriously diminishes human dignity.
From this perspective, organ selling resembles self-enslavement, although in
the former it is not the whole body which is sold, but only a part of it.
Human dignity is directly at stake in organ trade because the principle of
respect for human dignity prevents the instrumentalization of human beings.
As afore mentioned, both commodification and exploitation instrumentalize
people by reducing them –their body parts– to mere ‘objects’ of trade. In this
regard, it is worth remembering the famous Kant’s second formulation of his
categorical imperative, which emphasizes that we should always treat people
as an end in themselves and never merely as a means to our ends. The reason
18
See Immanuel Kant, Groundwork for the Metaphysics of Morals (New Haven: Yale University
Press, 2002) 52 [Akademie-Ausgabe 4:431].
19
Michael Gill and Robert Sade, ‘Payment for Kidneys: The Case for Repealing Prohibition’,
Kennedy Institute of Ethics Journal 12(1) (2002) : 30.
20
Calum MacKellar, ‘Human Organ Markets and Inherent Human Dignity’, The New Bioethics. A
Multidisciplinary Journal of Biotechnology and Genetic Ethics 20(1) (2014):59.
125
is that human beings are not ‘things’ but ‘persons’ and hence not something
that can be used merely as a means.21
As Cynthia Cohen notes, ‘human beings and their body parts have a value
that is beyond the contingencies of supply and demand or any other relative
estimation. To sell an integral human body part is to corrupt the very meaning
of human dignity’.22 The parallel with self-enslavement is indeed useful to this
purpose: if selling whole persons violates their dignity, selling body parts,
which are an integral component of persons, also violates their dignity.
The notion of human dignity has been sometimes criticized in bioethical
circles as ‘hopelessly vague’, as a ‘mere slogan’ or even as a ‘useless concept’.23
The truth is that this notion, far from being a purely philosophical or rhetorical
statement, has a very powerful, revolutionary meaning which relates to the
equal worth of all human beings.24 It is not by chance that this notion is the
bedrock of the entire international human rights system that emerged in the
aftermath of the Second World War. The Universal Declaration of Human
Rights (henceforth UDHR) is explicitly grounded on the ‘recognition of the
inherent dignity and of the equal and inalienable rights of all members of the
human family’ (Preamble). From the very beginning, the Declaration puts
forward that ‘all human beings are born free and equal in dignity and rights’
(Article 1). All human rights are regarded by international law as ‘deriving’
from human dignity.25
Although international law does not provide a definition of human dignity,
it offers helpful guidance for the understanding of this notion when it states
that dignity is ‘inherent’ to all human beings. The term ‘inherent’ means
‘existing in something as a permanent, essential, or characteristic attribute’.26
The idea contained in this word, when it is accompanied by the adjective
‘human’, is that dignity is inseparable from the human condition. Thus, dignity
is not an accidental quality of some human beings, or a value derived from
some particular personal circumstances such as the fact of being young or old,
rich or poor, man or woman, healthy or sick, but rather something that all
human beings possess by the mere fact of being human.
The principle of respect for human dignity is not only the bedrock of
international human rights law, but also plays a very central role in the
international instruments relating to bioethics that have been adopted since
the end of the 1990s by intergovernmental organizations such as UNESCO and
the Council of Europe. Thus, it is surprising that respect for human dignity has
21
Immanuel Kant, op. cit., 45 (Akademie-Ausgabe 4:428).
22
Cynthia Cohen, ‘Public Policy and the Sale of Human Organs’, Kennedy Institute of Ethics
Journal 12 (2002): 57.
23
Ruth Macklin, ‘Dignity is a useless concept’, British Medical Journal 327 (2003) : 1419-1420.
24
Jonathan Mann, ‘Dignity and Health: The UDHR’s Revolutionary First Article’, Health and
Human Rights 3(2) (1998):30-38.
25
International Covenants on Civil and Political Rights, and on Economic, Social and Cultural
Rights (1966), Preambles.
26
Oxford English Dictionary, See : https://en.oxforddictionaries.com/definition/inherent
126
been labeled as ‘the shaping principle’ 27 or even as the ‘overarching
principle’28 of international biolaw.
Interestingly, the emphasis on human dignity and rights in modern biolaw
is closely related to the same dramatic events that led to the development of
international human rights law. The drafting work of the Universal
Declaration of Human Rights was largely inspired by the discovery of the
horror of concentration camps, including the revelation that prisoners were
used for brutal medical experiments.29 In this regard, it has been said that the
Second World War was ‘the crucible in which both human rights and bioethics
were forged, and they have been related by blood ever since’.30
The international documents dealing with organ transplantation and
organ trafficking also put special emphasis on human dignity. The Council of
Europe’s Convention against Trafficking in Human Organs (2015) condemns
this practice on the grounds that it ‘violates human dignity and the right to
life’ (Preamble). The Additional Protocol to the Convention on Human Rights
and Biomedicine concerning Transplantation of Organs and Tissues of Human
Origin (2002) recognizes that ‘the misuse of organ and tissue transplantation
may lead to acts endangering human life, well-being or dignity’ (Preamble).
The Istanbul Declaration on Organ Trafficking and Transplant Tourism
(2008) mentions ‘respect for human dignity’ as one of the fundamental
principles, along with equity and justice, that are violated by organ trafficking
and transplant tourism (Article 6).
5. Conclusion
International human rights instruments relating to biomedicine,
and more specifically those dealing with organ transplantation strictly forbid
buying and selling human organs. They also condemn, even more severely,
human trafficking for organ removal, which can be labeled as “the new
slavery-like practice of our time”.31 In doing this, they require that ‘the human
body and its parts be treated, not as tradable assets, but as essential aspects
of our shared, embodied humanity’.32
27
Noëlle Lenoir & Bertrand Mathieu, Les normes internationales de la bioéthique (Paris: Presses
Universitaires de France, 2004), 16.
28
Roberto Andorno, ‘Human Dignity and Human Rights as a Common Ground for a Global
Bioethics’, Journal of Medicine and Philosophy 34 (2009): 223-240.
29
Robert Baker, ‘Bioethics and human rights: A historical perspective’, Cambridge Quarterly of
Healthcare Ethics 10 (2001): 241-252.
30
George J. Annas, American Bioethics. Crossing Human Rights and Health Law Boundaries
(New York: Oxford University Press, 2005), 160.
31
Silvia Scarpa, op. cit, 4.
32
Alaistar V. Campbell, ‘Human Dignity and Commodification in Bioethics’, in The Cambridge
Handbook of Human Dignity. Interdisciplinary Perspectives, ed. M. Düwell, J. Braarvig, R.
Brownsword and D. Mieth, (Cambridge: Cambridge University Press, 2014), 540.
127
The trade in human organs does not only entail a dramatic
commodification of the human body. It also encourages the exploitation of the
most vulnerable people in our globalized world. Ultimately, these practices
undercut the value of human dignity by allowing the instrumentalization of
some human beings for the benefit of others. In summary, as Anne Phillips
brilliantly points out, ‘it is hard to sustain notions of ourselves as equals
[emphasis mine] when the bodies of some are being employed to solve
problems in the bodies of others’.33
33
Anne Phillips, Our Bodies. Whose Property? (Princeton, NJ: Princeton University Press, 2013),
154.
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