Globally we are facing the problem of our ever growing population, but more importantly our aging population. As our citizens continue to grow older, there has been a drastic increase in the need for organ donations. In Western Europe, around 40,000 people are awaiting a kidney transplant; between 15% and 30% of them will die while they are in the queue. A solution must be found immediately to stop these easily preventable deaths and suffering.
Although there have been many breakthroughs in the science of artificial organs and the possibility of ‘growing’ organs in the laboratory, these prospects are still in the distant future and many years away from being implemented in everyday life. Therefore alternative solutions must be addressed.
Britain currently has an opt-in system for organ donation whereby donors chose to carry a card that gives permission for their organs to be donated if they die. This has had reasonable success, however has failed to catch up to the increasing shortage of organs. Looking into the future, this policy is likely to change as Wales will become the first UK nation to introduce a policy of presumed consent (people will now have to opt-out of organ donation) by December this year. Despite this being a great advancement in meeting the organ shortage, it cannot contest with the increasing number of donations required each year.
A viable solution to the problem is a state system which allows people to sell their organs to the government and a select number of non-profit organisations. Organs would be limited to the kidney and liver as there has been substantial evidence that proves that the donor can live a full and healthy life after the transplant. By providing a significant financial incentive, the NHS is likely to experience a drastic increase in the number of organ donations which may even eliminate the current waiting list. This would not only prevent death and suffering of those in need of the organs, but would also save the government substantial amounts of money due to a decrease in the number of patients needing kidney dialysis. Given Britain’s current economic situation, and cuts being made to the NHS it is unarguable that such a system must be looked upon.
This is a liberal minded approach to the problem that promotes the idea that if we should have the right to manage our own bodies, then we should also have the right to sell our organs. As can be expected there have been many moral questions raised on this argument.
Many have presented the issue of the wealthy being the only ones who can afford the transplants and therefore having complete control of the market. However in a system run by the government, whereby the government is the sole broker between the one selling the organ and the patient, this market cannot be monopolised. The market can be efficiently incorporated into the National Health Service which will allow all citizens, regardless of wealth, to be eligible for a transplant. Should patients have to pay a portion of the price it is unlikely anyone will not be able to have the transplant. Altruism will still exist within the market and non-profit organisations would be likely to donate organs to those who cannot afford them. Furthermore, it is not inconceivable that patients will not even have to pay for their transplants. A year on kidney dialysis can cost the taxpayer up to £35,000 a year, per patient. When comparing this to the cost of a kidney transplant (about £17,500 per patient) it would even be cost effective to pay someone up to £80,000 for a kidney.
With such high rewards for those willing to sell their kidneys, the market is likely to attract those in poorer situations. There are dissenters who argue that having a monetary driven system will exploit the poor as they will be the most tempted to sell their organs for the financial benefits. However what they fail to consider is that those in a desperate situation will always look for opportunities to help themselves despite the high levels of risk or danger to themselves. This can be seen by those who turn to crime to make a living, but also to those that enlist in the army or work in coal mines. If there are legal professions that require workers to risk their lives on a daily basis then how can you prevent someone from selling their own organs – in a secure and well regulated environment – that could lift them out of poverty whilst benefitting another?
There are, however, moral questions that cannot be easily contested such as the loss of trust in doctor-patient relationships. Being central to the practise of healthcare and being something those in the medical profession value highly makes preserving the doctor-patient relationship of the uttermost importance. In a market where doctors and nurses would be using their skills to help people ‘harm’ themselves for money may result in distrust for those in the medical profession. However, if this would suggest that doctors would recommend selling a kidney then this argument is invalid. In the process of donating an organ every party gets paid excluding the donor and the patient – although the patient does receive a priceless benefit that could be compared to payment. Therefore it would seem unreasonable to imply that doctors would encourage patients to sell their organs if they will not be getting the substantial financial gain compared to the one selling the organ.
Doctors often encourage family members of patients to donate kidneys as they are more likely to have a match. Yet it would not be unreasonable to suggest that they would expect them to due to their assumed close emotional connection. This puts pressure on family members to donate even if they do not wish to. Doctors are then faced with the dilemma to ensure the best care for their patient, but also that of the family member who could donate. Creating a market for selling organs would alleviate this pressure on family members as an alternative kidney could be found. It can therefore be argued that having this option available, could improve doctor-patient relations.
There is also the extent of the ‘harm’ falling on the person selling their organ that needs to be addressed. Those that willingly donate organs are often seen as heroes. Yes, it is undeniable that what they have done has significantly benefited another individual (may even have saved their life), however the harm associated with the transplant is much less that most initially think. Medical reports have shown that when one kidney is removed the other grows to compensate for the loss. This results in many people being able to live a healthy life with one kidney. Similarly, the portion of a liver removed for transplants grows back with minimal scarring. Therefore, whilst there are risks associated with any intrusive operation, removing either the kidney or a part of the liver can be compared to donating bone marrow or even blood due to the lack of future impactions to the donor.
The argument for the ability to sell organs has not yet considered the possible negative consequences that could occur in the future. Many view putting a price on humans as repulsive as it devalues human life; they would see this market as the first step towards the moral degradation of society. They would argue that as fellow beings, society should prevent each other from harming others and ourselves. However, to what extent do we have this right? To many the greatest value in life is the right to free will. Therefore could preventing this market impose upon our rights to our own body? While protecting the sanctity and dignity of human life is important, by not allowing a market for organs we are not avoiding putting a price on human life. Economists can tell you that the true cost of something isn’t the price you pay, but what you forsake to buy it. By having the current system which relies on altruism, the opportunity cost can be quantified in the lives lost, extended suffering, and unnecessary cost of dialysis. If selling an organ allows a destitute person to save other’s life, and help life themselves out of poverty, then is anyone really harmed? And if so, do the numerous positives compensate for the negatives?
Ultimately, with no legal market for organ transplants in the UK, and currently no policy of presumed consent in England, demand will only grow due to the aging population. The problem we face today will only get worse until change is made. To save the lives of many, we hope that day arrives sooner rather than later.
Hey, You Stole My Idea!
Take this article; did you know it holds a copyright that belongs to me? How about the device you are reading it on, did you know it has a patent owned by a specific individual? What about the corporate logo on this said device, did you know it is protected by a Trademark? Intellectual Property is everywhere, permanently entwined within our everyday lives; it is almost impossible to avoid. Like all legal principles, Intellectual Property (IP) is used to protect individual rights and freedoms, it enables people to earn recognition or financial benefit from whatever they invent or create through giving them an economic monopoly of a certain section of the market. IP is in fact so sacrosanct to society it is enshrined within the UN Declaration of Human Rights under Article 27: Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he/she is the author.
At the beginning of the article I mentioned the three major tools used in IP; Copyright, Patents and Trademarks. Copyright is by far the most common branch of Intellectual Property, it is defined as any original literary, dramatic, musical or artistic works, sound recordings and films, and therefore any unique piece of expressionism is entitled to copyright protection which basically blocks anyone from reproducing the work without the owner’s permission. The main reason it is so frequently used is because it is automatically granted as soon as the creator of the piece deems it finished, the copyright also lasts until 50 years after the death of the owner at which point it becomes part of the public domain. Patents are basically the scientific version of a copyright, they are used to protect the inventions of the individual but are physically more complex to construct. To protect the new invention the owner must go to the Patent Office and apply for a patent, in exchange for the right to prevent others copying and commercially exploiting the work, the creator must sacrifice the precise details of how the device functions so it can be made available to the public after a disclosed amount of time. The final provision is Trademarks; they include anything from names, logos or symbols that distinguish one company’s products or services from other businesses competing in the same market, the owner applies to the Trademark Office, pays a small fee (£170 in the UK) and much like copyrights and patents they gain protection from unwarranted use of the mark.
Although the main concepts seem very linear and straightforward these Intellectual Property laws are regularly ignored or disputed. A prime example when looking at copyright law is that of A & M RECORDS, INC. v. NAPSTER, INC which saw the Hollywood music industry take down the pirate website Napster in 2002. The dispute arose after Napster was causing controversy by allowing the general public to download MP3s of already copyrighted music for free. Napster was in clear violation of copyright law as not only did they fail to gain permission from the music’s respective owners but were also robbing them of potential revenue, as the consumers were able to bypass paying money to the record companies who already had a monopoly of that portion of the market.
Sometimes the verdicts are less clear cut, the case LUCASFILM V. COMMITTEE FOR A STRONG AMERICA showed that the laws on copyright and trademarks are still up for interpretation. The situation started in the mid-1980s when the Reagan administration’s Strategic Defensive Initiative that planned to put anti-missile weapons in space was coined the “Star Wars” program during television and media campaigns; a law suit was subsequently filed by the Star Wars creator George Lucas who understandably did not want his branding associated with American party politics, it would seem like a clear victory for Lucas’ lawyers, but they lost. The judge ruling on the case stated that although the term Star Wars can have its brand safeguarded due to trademark laws the name lacked sufficient “originality” to warrant copyright protection. Unfortunately this is where IP can fall flat in a Common Law scenario, as it is up to the subjective opinion of the judiciary to decide whether stringing two words together is enough to fulfill copyright requirements. But what about the Trademark Protection, how were they defeated there? This came back to one of the key principles of Trademarks, as the phrase was not being used to sell and profit from products or services the Government could use it freely, clearly the judge did not see a potential increase in electoral votes as profiteering.
To conclude it is clear Intellectual property will be forced to continually evolve and adapt long into the future, the growth of the digital age and the internet has made it exponentially harder for copyright and trademark protection to be enforced, especially when vast amounts of illegally distributed material is just a mouse click away. The ways patents are granted will also have to be revolutionised as global industry becomes increasingly complex, with investment in things like nanotechnology, programming and pharmaceuticals the lines will become blurred between what constitutes a new invention or a slightly altered replica of the same formula. The philosophical and moral principles behind Intellectual Property will be subject to constant debate as the outlook of society changes; it needs to strike an optimal balance between the power of exclusive rights to stimulate the creation of inventions and works of art, while at the same time allowing widespread public enjoyment of those creations, therefore the judiciary will have to decide whether IP should promote maximum social welfare or maintain the foundations of a capitalist society. In order for an economy to remain competitive its population needs an incentive to innovate and invent, and as sufficient payment for their hard work a monopoly over their creation would be expected. However this would be leaving the welfare of society at the wayside, as placing monetary restrictions on these products will inevitably stop an element of the population from being able to access, and ultimately enjoy them.
The Right To Our Own Body
Historically, the law rejects people’s right to own their own body. Granted that this were the case, we as humans would possess the ability to auction our body in circumstances such as prostitution, slavery and organ trade. This would also provide us with the right to destroy our body; however this was prohibited and considered a violation of the law until the 1961 Suicide Act. We as humans, have the right to make decisions about our health, body, sexuality and reproductively. Nonetheless, throughout the world people are regularly restricted in this area of rights; being constantly thwarted by social attitudes, state and government agenda.
Medicine regularly challenges this concern regarding ownership. The consideration of former parts of our body as our property, was evidenced in the Yearworth case. Here, the claimants deposited semen samples prior to undergoing chemotherapy (that may result in their infertility) suffered from psychiatric injury upon finding out that the hospital had misplaced or damaged their samples. In this case, the initial concern was that they would be unable to make a personal injury claim due to the fact that the semen was no longer a part of their body. A conclusion from the court, in this case led to the ability to make a personal injury claim; the claimants were in control of the semen, resulting in an ownership relationship. In the light of this case and particularly the recognition of ownership, it comes into question where the exceptions to the law’s attitude on ownership lies regarding former and present parts of our body.
Where do we draw the line when it comes to control over our bodies? Where should courts draw the line on this prominent issue? This is concerning in regards to transplantations, control of one’s organs and to whom the cadaveric donations should go to.
We have no right to control what happens to our body after death; we merely have preferences made prior to death. Funeral wishes are not legally binding, therefore leaving us with no ownership of our body. In the case of transplants, the organs are required to go anonymously and impartially to the most compatible person at the top of the waiting list (regardless of any wishes of the cadaveric donor). As a result of the Human Tissue Act of 2004, consent is obligatory before the removal, disposal or use of body parts, organs or any human tissue. Despite this act you are unable to insist upon being a donor for a particular person; transplant teams are legally unable to accept organs that come with conditions. Indeed, this is evidenced in the case of Laura Ashwood; after dying at age 21 her kidneys were given to complete strangers despite her specific wish to donate them to her mother suffering from kidney failure. Contrastingly, an owner’s wishes regarding property are absolute, there is no obligation to destroy such property if wishes are not made prior to the death of the owner. This is unlike that of the cadaveric organs- unless a distribution agreement is made beforehand. However, bodies are not legally considered to be property and therefore do not require ownership. Legal attitudes must be questioned nevertheless. Thus taking technological advancement into consideration, as the ability to donate specific body parts are increasing, so should the laws regarding our personal ownership and right to control such body parts.
Globally, the concerns regarding ownership of one’s body are dire. In the case of Burkina Faso, bodily rights including sexual and reproductive autonomy are disregarded on a huge scale; this imperative right of freedom is restricted and controlled by the state. These rights include the ability to make decisions concerning their health, body, sexual life and identity devoid of fear, coercion or criminalisation. Here ownership is not necessary, but the right to control their body is integral. Free choice regarding women’s own bodies in Burkina Faso is not an option; a staggering 52% of girls in marry before age 18 whist 17% of women use contraceptives, this is one of the lowest rates in the world resulting in an average of 6 children per family. Burkina Faso’s circumstances are a product of a male dominant, patriarchal society, in which women’s rights are overruled by traditional and social attitudes of the state government. Rape survivors must pay for their own emergency care, women may be denied contraception if it is against their husband’s wishes. Hence making this case a direct defiance of not only ownership of one’s body, but their authoritative position. This therefore calls into question, the extent to which people’s ownership can be legally denied, in light of the awful of ongoing situations around the world.
For example Maria aged 17 in Burkina Faso was a victim of forced marriage; married to a 70 year old man at the hands of her father’s violent threats; Maria is refused the right to own control her body. Despite this being a necessary human right, the inequality of the sexes results in a lack of women’s right to chose. Abuse is often a direct consequence of this discrimination, the girl’s rights to education and health care, most notably sexual and reproductive health care are compromised. This unlawful matter is a product of traditional social attitudes restricting women’s right to control or own the rights to their body.
Culturally all around the world, the issue of body ownership is pressing. The historic legal position refusing the ownership of one’s body, appears to be highly restrictive in today’s age of technology and medical advancement. Human control over property is a vital aspect of law; hence the meaning of property and where our body falls under this description is something that may be altered in the future. This human right to ownership relies on the monitorisation of illegal activities whilst not infringing upon our autonomy.
Do We Own Ourselves?
If you want to feel rich, just count all of the things you have that money can’t buy. But what can money not buy? Nowadays, I am able to get almost whatever I want as long as I have the money to buy it. As Professor Michael Sandel states in his book, ‘What Money Can’t Buy’, one is able to receive a prison cell upgrade in the US for $82 per night. Additionally, the right to immigrate to the United States is also up for sale. Foreigners who invest $500,000 and create at least ten job opportunities in an area of high unemployment are eligible for a green card that entitles them to a permanent residency. Although the price is not posted, top universities told the Wall Street Journal that even admission to a prestigious university can be bought. Universities admitted that they “accept less than stellar students whose parents are wealthy and likely to make substantial financial contributions”, meaning that if my parents kindly built a brand new library, worth millions, for the top university in the world, my chances of getting into the university are much more probable than a just as capable or even a student of higher academic abilities who does not have this financial advantage.
The trade of all goods and services is done via markets. A market is simply defined as a place, whether it is a physical place like a shop or a digital place such as the internet, where sellers are able to sell their goods to buyers who are able to purchase them. Through economic mechanisms of demand and supply, a price is finally found. One of the requirements in the Sale of Goods Act of 1979 is that I must “own” or have been given permission to sell the good that I am selling. This means that I am not allowed to stand outside a multi-million pound property that I have found on Oxford Street and auction it off on the market. But this requirement brings up a serious question for discussion; Are you allowed to sell whatever you own? After thinking hard, the majority would finally come to a conclusion that one is able to sell whatever they own. However, complications arise in certain circumstances.
If I own a house, I am allowed to sell my house. If I own a car, I am allowed to sell my car. If I own the ability to teach, I am allowed to sell my service of teaching. If I am allowed to sell all the physical things that I own, why am I not allowed to sell my organs? Whilst the act of selling my organs may sound very strange, I own my body, so I should be able to do whatever I want with it. And if the law prohibits me from doing so, perhaps the law is trying to imply that I don’t own it. But if I don’t own it, who does?
The law has historically refused to say that anyone owns their own body. If you own your body, you can sell it, including selling organs, prostitution or selling yourself into slavery. It also means that you can decide whether to destroy it, but until 1961 suicide was a crime. In the Yearworth v North Bristol NHS Trust case, claimants had deposited semen samples with a clinic before undergoing chemotherapy for cancer, having been told that the therapy could make them infertile. The hospital did not store the samples with enough care and they were damaged, resulting in the men suffering psychiatric injury when discovering they now could not have children. The problem was that the law did not consider the bodily fluids as personal property and so the men could not bring a claim for personal injury.
However, investigations have shown that more people are willing to trade their vital organs for “extra cash”. Advertising organs for sale is illegal in the UK and anyone caught attempting it can face a three-year jail term. However, regardless of what the law says, the World Health Organisation revealed 10,000 black market operations involving organs were taking place every year. Is it really worth selling life-fatal organs for money? As Ralph Waldo Emerson, a 19th century American lecturer said, “Money often costs too much”.
The obvious question is whether the law should intervene to prevent us selling items that we own. Whilst I believe that we own our bodies, it is clear that the law limits our ability to do what we want with them. Perhaps this is what makes the question as to whether we own ourselves or not so controversial. This is also an issue of morality and an issue that will ultimately be decided by us through our elected representatives.
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