SELLING ORGANS AND SOULS: SHOULD THE STATE PROHIBIT ‘DEMEANING’ PRACTICES? Dominic JC Wilkinson, MBBS, BMedSci Royal Children’s Hospital, Parkville, Victoria 3052, Australia Corresponding Author: Dominic Wilkinson Royal Children’s Hospital Parkville Victoria 3052 Australia Email: dominic.wilkinson@rch.org.au Phone: (+61) 3 9345 5522 Abstract: 249 words Paper: 2791 words Dominic Wilkinson 10/7/08 Page 1 of 1 Abstract: Arguments in bioethics are sometimes phrased in terms of the morality of a given practice. At other times debates focus instead on the pragmatics of social policy, practice and the law. There is substantial overlap between these, and moral claims are frequently cited to substantiate arguments for legal prohibition. One particular moral argument that recurs in different contexts is the claim that certain practices are demeaning to those who partake in them. On this basis some have argued for example, that commercial surrogacy or organ-selling should be made illegal. Other writers have suggested that such prohibitions are unreasonable interferences in personal liberty. In this paper I will try to draw out the arguments for prohibition on the basis of self-demeaning. I will set out what it means to ‘demean’ oneself. The standard response to such a claim is to question whether the practices in question are actually demeaning to the individual involved. I will take a different tack, and suggest that if we accept the claim that a given practice is demeaning, we should nevertheless resist the temptation to prohibit it by law. This is partly on the basis of the liberal principles that are widely accepted as underpinning our system of law. However I will go further to suggest that Kant himself would have rejected laws that prevented an individual from demeaning himself or herself. On the contrary it seems that laws that aim to restrict our ability to govern our own moral integrity are in themselves ‘demeaning’. Keywords: Kant, demeaning, autonomy, law. Dominic Wilkinson 10/7/08 Page 2 of 2 Selling organs and souls: should the state prohibit ‘demeaning’ practices? “If people were to turn themselves and their body parts into commodities, their very humanity and that of all of us would be demeaned”1 Arguments in bioethics are sometimes phrased in terms of the morality of a given practice. At other times debates focus instead on the pragmatics of social policy, practice and the law. There is substantial overlap between these, and moral claims are frequently cited to substantiate arguments for legal prohibition. One particular moral argument that recurs in different contexts is the claim that certain practices are demeaning to those who partake in them. On this basis some have argued for example, that commercial surrogacy or organ-selling should be made illegal2. Other writers have suggested that such prohibitions are unreasonable interferences in personal liberty3. In this paper I will try to draw out the arguments for prohibition on the basis of self-demeaning. I will set out what it means to ‘demean’ oneself. The standard response to such a claim is to question whether the practices in question are actually demeaning to the individual involved. I will take a different tack, and suggest that if we accept the claim that a given practice is demeaning, we should nevertheless resist the temptation to prohibit it by law. This is partly on the basis of the liberal principles that are widely accepted as underpinning our system of law. However I will go further to suggest that Kant himself would have rejected laws that prevented an individual from demeaning himself or herself. On the contrary it seems that laws that aim to restrict our ability to govern our own moral integrity are in themselves ‘demeaning’. What does it mean to demean oneself? The terms ‘demeaning’ or ‘degrading’ are often used in bioethical debate without clear definition. There is something almost deliberately vague or “mysterious” about the moral claims that are sometimes made in this context4. Related concepts include notions of ‘commodification’, ‘instrumentalisation’ or ‘objectification’5. These terms share a sense that the individual has lost something, or has been devalued because he or she is now viewed differently. It seems to me that since they relate to how an individual is perceived, there are two different perspectives to appreciate. Dominic Wilkinson 10/7/08 Page 3 of 3 To be demeaned in one’s own eyes relates to being treated in a way that is not consistent with one’s own self-image. (For example I am demeaned if someone treats me like a fifteen year old, or ignores my own special skills and experience). It is thus dependent upon the meaning that I give to my own life – it is highly personal and variable (what is demeaning to one person may not be to another). To be demeaned in the eyes of others is to be diminished in some way as viewed by wider society, to be perceived as less valuable. In particular there is the implication that if I am demeaned, then I am viewed or treated in a way that is less than I should be. Claims that certain practices are ‘demeaning’ to individuals are related to notions that humans have special ‘dignity’ or ‘value’, and that acting in these ways is inconsistent with recognizing that intrinsic value. For example William Stempsey suggests that “paying living people to give up their organs violates the dignity of embodied human persons” 6 This type of argument has a particularly religious or Kantian flavour, and has been most clearly developed in the writings of Immanuel Kant and those who have followed him. Specifically, the usual Kantian charge that is levied against practices such as commercial surrogacy, or organ selling is that they violate the second formulation of the categorical imperative: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.”7 Thus it is claimed for example that an individual who sells a kidney is using himself as “a mere means ”, fails to recognize the special dignity of his own body and consequently is demeaning himself. It is worthwhile before we get much further separating out the question of the effect of self-demeaning on others. One claim that is clearly related to those outlined above is that in behaving in a certain way an individual is demeaning a wider group of people. Thus Dodds and Jones in a paper on commercial surrogacy express their concern that such contracts reinforce and perpetuate attitudes towards women that see them as ‘breeders’ or mere ‘commodities’ 8 . In fact much of the debate about ‘commodification’ is focused on the way in which the commercialization of the human body and human reproduction has effects on the way that society as a whole (or subgroups) view and value human life9 . There are important questions here about the effects of ‘demeaning’ practices on others (will they cause ‘harm’ to other individuals or to society in general?). However for the sake of this paper I am setting such considerations aside to focus on the individual. The key question is Dominic Wilkinson 10/7/08 Page 4 of 4 whether the fact that an individual is demeaning himself justifies intervening by law to stop them. Should we prohibit self-demeaning? I alluded in the introduction to the first line of defense against arguments for prohibition of ‘demeaning’ practices, which is to deny that they are intrinsically demeaning. Laura Purdy for example rejects claims that commercial surrogacy is an ‘immoral alienating option’ and suggests instead that it may be a form of empowerment for women10 . David Richards argues that rather than being self-degradation, drug use may represent a form of self-control and mastery11 . A number of authors have highlighted that Kant’s second formulation prohibits the use of one’s own person or another as a ‘mere’ means, and argued that various so-called ‘demeaning’ practices are actually consistent with also using that person as an end12 . Stephen Wilkinson suggests that if someone in full knowledge and rational capacity autonomously consents to a practice they are not being used as a mere means13 (consequently they would not be demeaned). However I think that it is useful to take a step back and to examine the proper role of the law in regulating practices that might be thought to be demeaning. If we concede (for the sake of this argument) that certain behaviour is demeaning to the individual concerned, is the state justified in prohibiting it? To get the case off the ground it may be useful to have an example that most people would find involves self-demeaning. Lucius has found on the internet a wealthy German man (Franz) who professes a desire to eat human organs. Franz seems to get some sort of sexual gratification out of this. He is looking for a volunteer to be eaten, and he intends to videotape the proceedings and broadcast them on the Internet. Franz is willing to pay well for someone willing to submit to his intended act of cannibalism. Lucius decides that he would like the financial freedom that the German’s offer would give him. It would enable him to pursue a number of his life’s goals. Lucius approaches the German and make him an offer of one of his kidneys and his left arm under certain conditions. They will be removed under anaesthetic by a specialist surgeon of his choosing. The German may video the operation if he wishes. Once the body parts are removed from Lucius, Franz can do as he wishes with them. The money will be transferred into Lucius’ account immediately, and Franz will never make contact with him again.14 There is something extremely disturbing about this proposed commercial arrangement. Lucius might be thought to be demeaned by his willingness to put a price on major parts of his body and to part with them for someone else’s bizarre sexual pleasure. Furthermore the fact that this will take place in a very public way adds an extra Dominic Wilkinson 10/7/08 Page 5 of 5 element to the demeaning. In the eyes of those who watch this spectacle, Lucius might be thought to reduced to the level of a meat-producing object (albeit a uniquely consenting one). There are a number of reasons why we might choose as a society to prohibit such exchanges. We may feel that eating human flesh is intrinsically wrong and should not be permitted. We may be worried that those who are poor or mentally ill may be exploited by a wealthy minority. We might wish to prevent the development of attitudes that see the human body as fungible, or worry about the effect on our children of witnessing such acts. Cannibalism involves some distinct health risks for the cannibal15. However is the fact that this practice is demeaning to Lucius one of the reasons why we should stop him from doing it?16 The liberal argument against prohibition Laws that are designed to curtail individual freedom with the excuse that it is for the benefit of the individual are frequently described as “paternalistic”. Laws prohibiting individuals from ‘demeaning’ themselves would clearly fall into this category. The standard liberal response to any such paternalistic law is to invoke John Stuart Mill’s “harm principle”. “The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others”17 For example David Richards rejects laws prohibiting drug use on the grounds that they deprive individuals of their autonomy18. In the case above, liberals might well concede that permitting commercial cannibalism would lead to harm to other people, but they would not accept that any harm to Lucius himself is a reason to prohibit him from selling his arm and kidney. The value of individual freedom is a fundamental tenet of most modern democracies, and on liberal thinking cannot be outweighed by considerations of Lucius’ well-being. But is Lucius’ choice a fully autonomous one? If he were schizophrenic, or intellectually disabled, or a child (say age 12), we would have no compunction about preventing him from engaging in this contract. Although the state would be interfering with his choice, it is not a fully autonomous choice because of factors that limit his capacity to determine his own best interests. Laws that act to preserve the ‘best interests’ Dominic Wilkinson 10/7/08 Page 6 of 6 of those who are not fully competent are sometimes designated “soft” paternalism19. But the nature of Lucius’ decision is such that we might question whether it was a fully autonomous decision even if he doesn’t fall into the aforementioned categories20. In another context Dodds and Jones question whether it is ever possible for a woman to autonomously consent to commercial surrogacy21. Certain decisions seem to clash so strongly with commonly held values, that those who make the decisions are sometimes judged not to be competent merely on the basis of having made such a decision, rather than on the basis of their capacity to reason22. This scepticism about fully autonomous choice is developed further in Kant’s writing. The Kantian conception of autonomy is not synonymous with freedom. Autonomy means self-determination “in the light of universal reason”23. Choices that are influenced by desires or emotions are not truly autonomous. Furthermore certain choices seemed to Kant to be incompatible with a fully rational choice, for example to sell oneself into slavery. Cynthia Cohen sees organ selling in the same light: “To sell an integral part of ourselves is to misuse our autonomy in the same way that selling ourselves into slavery does so.”24 Thus, it might be argued that self-demeaning practices are irrational, and not consistent with autonomous choice. If universal reason leads us to a recognition that we should treat ourselves as ends, and never merely as means, then actions which breach this cannot be autonomously chosen. On this sort of argument legal prohibitions would only be ‘softly’ paternalistic, and actually represent greater respect for the autonomy of the individual than a bland regard for freedom of choice25. The Kantian argument against prohibition Nevertheless there is a difference between choices that are not autonomous because the decision-maker lacks the capacity to make a rational choice, and choices that are not ‘autonomous’, because the competent decision-maker has made an irrational choice. The state is justified in interfering with the former because we believe that we should safeguard the well being of those who are not capable of looking after themselves. To suggest that the state should prevent by law individuals from making irrational choices would be to license large-scale paternalistic intervention. Although it is clear that Dominic Wilkinson 10/7/08 Page 7 of 7 Kant would condemn self-demeaning practices, Kant was also clearly opposed to interference by government in our moral lives. “A paternalistic government…[would be] the worst conceivable despotism” 26 In his essay on practical philosophy “On the common saying: That may be correct in theory but it is of no use in practice”, Kant seems to provide clear liberty-based limitations on the scope of government27. He sees the place of law as ensuring freedom of citizens to pursue their own goals, but not to develop or safeguard their welfare or happiness. “Nobody can coerce me to be happy in his way (as he conceives of the wellbeing of other men) but each may seek his happiness in the way that seems good to himself, if only he does not do injury to the freedom of others to strive after a similar end”28 Given the strength of Kant’s apparent feelings against paternalism, it is interesting that he is often cited in arguments for laws that would on the face of it be clearly paternalistic. Perhaps some of the confusion arises because of Kant’s frequent talk about ‘moral law’ and ‘the universal law’29. This latter ‘law’ refers to the principles of conduct that universal reason would lead us to realise and accept. However it is the conscious appreciation of the universal law that leads to genuine autonomy. By acting to safeguard the virtue of a citizen, paternalistic ‘judicial’ laws actually interfere with the moral agency of the individual. More generally this sort of concern can be expressed in disquiet about the role of the law as a sort of ‘moral chaperone’. It is not just that in our society personal liberty is held as an important ideal that should never be limited without good reason. It is that virtue cannot be imposed from the outside. We cannot make someone more virtuous by preventing them from making the wrong decisions. Indeed there is something about this sort of attitude to the capacity and role of individuals to make choices about their lives that seems to diminish them. Dodds and Jones in a paper in 1992 reject their earlier arguments that women could not make autonomous choices to enter into commercial surrogacy arrangements partly because they worried that such arguments reinforced traditional views of women as fickle, weak-willed and easily exploited30. Richards thinks that it is morally perverse to abridge personal freedom (by prohibiting drug use) in the Dominic Wilkinson 10/7/08 Page 8 of 8 name of preventing loss of autonomy. Laws that restrict our lives with the aim of moral guardianship can be seen in this way as intrinsically demeaning. Conclusions The claim that certain practices are demeaning or degrading is a claim about the value of our life and how it is viewed by ourself and others. There is some reason to doubt individual claims that practices are intrinsically demeaning to the individuals involved, however even if this can be established it does not mean that such practices should be outlawed on that ground. In liberal democracies restrictions to personal freedom are usually only justified on the grounds of preventing harm to others. Mills himself might have written this passage with Lucius in mind: “There are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him but not for compelling him or visiting him with any evil in case he do otherwise”31 Kantian respect for the moral agency of Lucius would suggest that we should not prohibit him from demeaning himself. The above conclusion does not mean that the state should permit cannibalistic exchanges such as the one described. As already intimated, there are a number of consequentialist and non-consequentialist objections to this sort of behaviour, and these may justify legal prohibition, though I have no room to discuss them further here. Nor have I suggested that the state has no interest in preventing self-demeaning practices. There are numerous means of social regulation other than legal prohibition. Indeed it suggests something is wrong with a state in which economic necessity, social inequities or isolation, lead people to enter into such arrangements. Perhaps one way to stimulate the moral autonomy that Kant had in mind would be for more widespread education in philosophy and ethics, and the promotion of debate about the value of our lives and the problems of commodification. However there is no place for moralistic laws that purport to preserve individuals’ moral integrity by preventing self-demeaning behaviour. Dominic Wilkinson 10/7/08 Page 9 of 9 Bibliography: Cahill LS. Genetics, commodification, and social justice in the globalization era. Kennedy Inst Ethics J 2001;11(3):221-38. Cohen CB. Selling bits and pieces of humans to make babies: The gift of the magi revisited. J Med Philos 1999;24(3):288-306. Dodds S, Jones K. Surrogacy and autonomy. Bioethics 1989;3(1):1-17. Dodds S, Jones K. Surrogacy and the body as property. In: Darling S, editor. Crosscurrents. Philosophy and the nineties. Adelaide: Flinders University Press, 1992:119-133. Feinberg J. The moral limits of the criminal law: Harm to Self. New York: Oxford University Press, 1986. Green RM. What does it mean to use someone as "a means only": rereading Kant. Kennedy Inst Ethics J 2001;11(3):247-61. Guyer P. Kant on Freedom, Law and Happiness. Cambridge: Cambridge University Press, 2000. Harris J. "Goodbye Dolly?" The ethics of human cloning. J Med Ethics 1997;23(6):353-60. Hayry M. Prescribing cannabis: freedom, autonomy, and values. J Med Ethics 2004;30(4):333-6. Holland S. Contested commodities at both ends of life: buying and selling gametes, embryos, and body tissues. Kennedy Inst Ethics J 2001;11(3):263-84. Kant, I. On the common saying: That may be correct in theory but it is of no use in practice. 1793 http://www.sussex.ac.uk/Users/sefd0/tx/tp2.htm accessed 29/8/04 McLachlan HV. Defending commercial surrogate motherhood against Van Niekerk and Van Zyl. J Med Ethics 1997;23(6):344-8. Oakley J. Altruistic surrogacy and informed consent. Bioethics 1992;6(4):269-87. Dominic Wilkinson 10/7/08 Page 10 of 10 Purdy LM. Surrogate mothering: exploitation or empowerment? Bioethics 1989;3(1):18-34. Stempsey WE. Organ markets and human dignity: on selling your body and soul. Christ Bioeth 2000;6(2):195-204. Richards D. Sex, Drugs, Death and the law: An essay on human rights and overcriminalisation Totowa, Rowman and Littlefield, 1982. Wilkinson S. Bodies for sale: ethics and exploitation in the human body trade. London: Routledge, 2003. Wood A. Kant's ethical thought. Cambridge: Cambridge University Press, 1999. Dominic Wilkinson 10/7/08 Page 11 of 11 Footnotes: 1 Cohen CB. Selling bits and pieces of humans to make babies: The gift of the magi Dodds S, Jones K. Surrogacy and the body as property. In: Darling S, editor. Cross- revisited. J Med Philos 1999;24(3): p294 2 currents. Philosophy and the nineties. Adelaide: Flinders University Press, 1992:119-133 ; Stempsey WE. Organ markets and human dignity: on selling your body and soul. Christ Bioeth 2000;6(2):195-204. ; Cohen 1999 op cit 3 Hayry M. Prescribing cannabis: freedom, autonomy, and values. J Med Ethics 2004;30(4):333-6. ; McLachlan HV. Defending commercial surrogate motherhood against Van Niekerk and Van Zyl. J Med Ethics 1997;23(6):344-8. ; Purdy LM. Surrogate mothering: exploitation or empowerment? Bioethics 1989;3(1):18-34. ; Richards D. Sex, Drugs, Death and the law: An essay on human rights and overcriminalisation Totowa, Rowman and Littlefield, 1982. 4 John Harris makes this claim in the context of discussions of cloning. Harris J. for an outstanding attempt to separate and define clearly these terms in context see "Goodbye Dolly?" The ethics of human cloning. J Med Ethics 1997;23(6):353-60. 5 Wilkinson S. Bodies for sale: ethics and exploitation in the human body trade. London: Routledge, 2003. pp27-55 6 7 Stempsey 2000 op cit p202 Kant, I. Foundations of the Metaphysics of Morals, trans Lewis White Beck. 1959 cited in Green RM. What does it mean to use someone as "a means only": rereading Kant. Kennedy Inst Ethics J 2001;11(3):248 8 9 Dodds S, Jones K. Surrogacy and autonomy. Bioethics 1989;3(1): p13 see for example Cohen 1999 op cit p294 Purdy 1989 op cit p33 (she is responding to claims made by Christine Overall) Richards 1982 op cit p170 From the individual’s perspective, the question of whether an 10 11 act is demeaning depends crucially on the meaning that they give to their lives, and the value that they place on say freedom from addiction, or bodily integrity. 12 Wilkinson 2003 op cit p36-38, Green 2001 op cit p255 Dominic Wilkinson 10/7/08 Page 12 of 12 13 Wilkinson 2003 op cit p42 . See also the Volenti principle “Volenti non fit injuria” A person is not wronged by that to which he consents (Feinberg J. The moral limits of the criminal law: Harm to Self. New York: Oxford University Press, 1986. p11) 14 Although I think that many people would think that Lucius is demeaning himself by selling parts of his body to be eaten, I do not think that his act is necessarily demeaning to him. Nevertheless let us assume that it is for the sake of the argument. 15 For example ‘kuru’ is a disease transmitted by a tiny protein agent called a ‘prion’. It causes progressive neurological deterioration and was first described in Papua New Guinea tribespeople, where the eating of one’s ancestor’s brain was customary. 16 One distraction in this example is that there are two parties involved here, and laws might well be aimed at the cannibal Franz rather than at Lucius. Hence it might be illegal to eat another human’s organs (even if they consent to do so), but not to give someone else your organs to be eaten. We might change the example slightly to remove this element by suggesting that Franz does not want to eat the organs himself, but wants to feed them to his dog. However I think that this modification stretches credulity somewhat. 17 18 19 Mill, J. On Liberty cited in Wilkinson 2003 p56 Richards 1982 op cit p170 Feinberg (1986 op cit pp12-13) cites Tom Beauchamp in questioning whether soft Cf Wilkinson 2003 op cit. p43 If a person consents to be harmed by another we might Dodds, Jones 1989 op cit – see also replies by Purdy 1989 op cit and Oakley J. For example suicidality is sometimes taken as evidence of mental illness. The desire to paternalism is ‘paternalism’ at all. 20 be sceptical of whether this is a fully autonomous choice 21 Altruistic surrogacy and informed consent. Bioethics 1992;6(4):269-87. 22 end one’s life conflicts with the widespread feeling that life is precious and all-too-short. Nevertheless there are situations in which people in full rational capacity make such a decision. This can reflect the extreme situation in which they have been placed (for example a progressive debilitating illness), or the fact that they hold quite different values Dominic Wilkinson 10/7/08 Page 13 of 13 (for example societies that place great value on an honourable death (rather than being captured by an enemy army)). 23 24 25 Hayry 2004 op cit. p334 Cohen 1999 op cit. p295 Some religious ways of thinking might yield the same answer. Stempsey (2000 op cit Kant, I. On the common saying: That may be correct in theory but it is of no use in p203) values ‘integrity of body and soul’ higher than personal liberty 26 practice. 1793 http://www.sussex.ac.uk/Users/sefd0/tx/tp2.htm accessed 29/8/04. The specific translation quoted here comes from Guyer P. Kant on Freedom, Law and Happiness. Cambridge: Cambridge University Press, 2000. p264 27 28 29 ibid. ibid. The formula of the universal law is another term for the first formulation of Kant’s famous categorical imperative “Act only in accordance with that maxim through which you can at the same time will that it become a universal law” Kant I, Foundations of the metaphysics of Morals cited in Wood A. Kant's ethical thought. Cambridge: Cambridge University Press, 1999. p xx 30 31 Dodds and Jones 1992 op cit. p122 Mill, J. On Liberty quoted in Feinberg 1986 p3 Dominic Wilkinson 10/7/08 Page 14 of 14