It has long been the position in law that, subject to some minor but important exceptions, property cannot be held in the human body, whether living or dead. In the recent case of Yearworth and Others v North Bristol NHS Trust, however, the Court of Appeal for England and Wales revisited the property debate and threw into doubt a number of doctrines with respect to property and the body. This brief article analyses Yearworth, (1) reviewing the facts and the Court’s (...) decision with respect to the originators’ proprietary and contractual interests in their body and bodily products, (2) considering the significance of relying on property and its use a legal metaphor, (3) questioning the scope of the property right created, and (4) querying whether an alternate conceptual approach to extending rights and a remedy was warranted. It concludes that, while Yearworth engages with, and impacts on, important theoretical and practical issues—from legal, healthcare and research perspectives—it does not offer a great deal of guidance and, for that reason, its precedential significance is in doubt. (shrink)

Three metaphors appear to guide contemporary thinking about organ transplantation. Although the gift is the sanctioned metaphor for donating organs, the underlying perspective from the side of the state, authorities and the medical establishment often seems to be that the body shall rather be understood as a resource . The acute scarcity of organs, which generates a desperate demand in relation to a group of potential suppliers who are desperate to an equal extent, leads easily to the gift’s becoming, in (...) reality, not only a resource, but also a commodity . In this paper, the claim is made that a successful explication of the gift metaphor in the case of organ transplantation and a complementary defence of the ethical primacy of the giving of organs need to be grounded in a philosophical anthropology which considers the implications of embodiment in a different and more substantial way than is generally the case in contemporary bioethics. I show that Heidegger’s phenomenology offers such an alternative, with the help of which we can understand why body parts could and, indeed, under certain circumstances, should be given to others in need, but yet are neither resources nor properties to be sold. The phenomenological exploration in question is tied to fundamental questions about what kind of relationship we have to our own bodies, as well as about what kind of relationship we have to each other as human beings sharing the same being-in-the-world as embodied creatures. (shrink)

This collection features comprehensive overviews of the various ethical challenges in organ transplantation. International readings well-grounded in the latest developments in the life sciences are organized into systematic sections and engage with one another, offering complementary views. All core issues in the global ethical debate are covered: donating and procuring organs, allocating and receiving organs, as well as considering alternatives. Due to its systematic structure, the volume provides an excellent orientation for researchers, students, and practitioners alike to enable a deeper (...) understanding of some of the most controversial issues in modern medicine. (shrink)

The article argues that altruistic giving based on anonymity, which is expected to promote social solidarity and block trade in human body parts, is conceptually defective and practically unproductive. It needs to be replaced by a more adequate notion which responds to the human practices of giving and receiving. The argument starts with identification of the main characteristics of the anonymous altruistic donation: social separation of the organ donor from the recipient, their mutual replaceability, non-obligatoriness of donation, and non-obligatoriness of (...) reciprocation on the recipient’s part. Since these characteristics are also central to typical market relations, anonymous altruistic donation not only cannot promote solidarity but may encourage proposals for markets of transplantable organs. Thus, transplant ethics needs to be reframed. It needs to be rooted in, rather than promote, the practices of giving and receiving known to human societies. As the basis for such reframing, the idea of sharing in another’s misfortune is proposed. It relies on the human practices of giving and receiving and, with appropriate regulatory safeguards, can provide a better conceptual basis for blocking commercial exchanges of human body parts. (shrink)

The role of property theory as a framework for analysis and regulation of body parts has become a debate of topical importance because of the emergence of biomedical technologies that utilise body parts, and also because the application of the concept of property, even with respect to historically and traditionally accepted forms of property, raises serious challenges to the property analyst. However, there is another reason for the topicality of property in relation to body parts: a proprietary approach confers on (...) a claimant the advantage of continuing control that is tellingly lacking in non-property frameworks underpinned, for instance, by consent, negligence, privacy and unjust enrichment rules. In some circumstances, such as an unauthorised blood test performed on a blood sample obtained with consent, the continuing control provided by property law might be the only chance a claimant has to obtain a remedy. Economy of space, however, requires that only a prolegomenon on body parts and property theory is given below. Thus, the analysis begins by providing in outline a framework for comprehensive analysis of body parts within the realm of property theory; thereafter, the author engages with the normative question of whether body parts or rights exercisable over body parts could be admitted into the category of property. (shrink)

An innovative program recently initiated at the University of California, Los Angeles Medical Center allows people to donate a kidney in exchange for a voucher that a loved one can redeem for a kidney if and when needed. As a relatively new practice, the ethical implications of advanced kidney donation have not yet been widely discussed. This paper reflects on some of the bioethical issues at stake in this new donation program, as well as some broader philosophical issues related to (...) the meaning and moral salience of commodification. I first consider whether the literature on commercial markets in organs––a longstanding topic of bioethical debate––can meaningfully inform ethical analysis of kidney voucher programs. Specifically, I consider whether and to what extent common objections to the exchange of kidneys for cash also apply to the exchange of kidneys for “kidney vouchers.” Second, I argue that the contrast between the ethical issues raised by these two practices highlights the need to understand commodification as existing on a continuum, with different degrees of commodification giving rise to different ethical issues. Doing so can help sharpen our understanding of commodification as a moral concept, as well as its relevance to broader debates about the moral limits of markets. (shrink)

In The Gift Relationship, Richard Titmuss argued that the practice of altruistic blood donation fosters social solidarity while markets in blood erode it. This paper considers the implications of this line of argument for the organ market debate. I defend Titmuss’ arguments against a number of criticisms and respond to claims that Titmuss’ work is not relevant to the context of live donor organ transplantation. I conclude that Titmuss’ arguments are more resilient than many advocates of organ markets suggest, and (...) more relevant to the debate than is commonly appreciated. (shrink)

The involvement of children in non-beneficial clinical research is extremely important for improving pediatric care, but its ethical acceptability is still disputed. Therefore, various pro-research justifications have been proposed throughout the years. The present essay aims at contributing to the on-going discussion surrounding children’s participation in non-beneficial clinical research. Building on Wendler’s ‘contribution to a valuable project’ justification, but going beyond a risk/benefit analysis, it articulates a pro-research argument which appeals to a phenomenological view on the body and vulnerability. It (...) is claimed that children’s bodies are not mere physical objects, but body-subjects due to which children, as persons, can contribute to research that may hold no direct clinical benefit to them even before they can give informed consent. (shrink)