If ethics is worth doing as anything other than a purely theoretical exercise, it ought to give us some guidance in those puzzling areas of human practice where once-exotic technologies become ubiquitous, and it ought to tell us something more than ordinary common sense gives us, something we don't already know. What I want to do here today is offer an example of ethics at work by defending what to many of you may seem -- at least at first -- to be a rather shocking public policy proposal. This proposal is as follows: that there ought to be at least some limited markets in human organs. Competent adults should have the right to sell both the cadaveric organs they will leave if they undergo sudden brain death as well as those organs they can part with while still alive.

It is high time we subjected organ transplantation to rigorous ethical analysis. An exotic and dangerous technology only a generation ago, it is not becoming a fairly common means of saving lives. Tens of thousands of transplants of major organs are performed in the United States every year. With the steady improvement of surgical technique and ever-better immunosuppressant drugs, patients are becoming ever more likely to survive surgery and go on to live worthwhile and fulfilling lives. But although the technology has steadily improved, our capacity as a society to deal with the technology has apparently not kept pace. The demand for healthy human organs has outstripped supply. In 19-92, the latest year for which I have been able to get data, some 31-thousand people were on waiting lists for various vital organs, and that number does not seem to have improved much since. Many of those waiting do die before suitable organs become available (Epstein 1993).

As I have already noted, organs for transplantation can come from two sources. So-called cadaveric organs are taken from persons declared brain dead. Since the heart, lungs, and liver are necessary to life, cadavers are necessarily the only source for these organs (unless of course, we are willing to consider the grisly possibility of killing the living for their organs, but I take it no one would seriously propose such a thing). This supply is necessarily limited by the number of suitable brain deaths taking place. Not just any death will do, since persons who die after long illnesses, or of old age, or of massive trauma usually do not leave any organs in sufficiently good condition to be transplantable. So most cadaveric organs come from young people who have died from fatal head injuries, most typically those caused by motorcycle accidents or gunshot wounds.

Donations of some organs from living individuals are also possible. One can live perfectly well with only one kidney, and donations of kidneys from living donors are not uncommon: in 19-95 there were about 32-hundred such donations in the U.S (Economist Staff 1997). Bone marrow is also sometimes donated in this way.

Under present public policy, altruism is the only permitted motivation for donating one's organs. A federal statute, the National Organ Transplantation Act of 19-84, makes it a felony, punishable by fines of up to 50-thousand dollars and five years in prison "for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration." (Epstein 1993) This is lawyer-speak for the following rule. You may give your organs away, but you may not -- without ending up in the Federal pen -- sell them. Most states have similar statutes reflecting similar public policies.

Many states have public policies that attempt to encourage more altruism in donation, for example by asking people to enter an organ-donor registry when the renew their drivers' licenses. But the results have been less that successful, for a variety of reasons that should not be too hard to fathom. For one, many people do not register at all, probably because they do not like to contemplate -- even ever so briefly -- the possibility of violent death and subsequent dismemberment. Furthermore, since a promise to make a gift is not normally legally enforceable, and since decisions relating to medical care fall on close family members at times of when one is incompetent -- which one is, naturally enough, after brain death -- the system of altruistic donation of cadaveric organs requires doctors to approach family members at a moment of intense personal grief and trauma and ask them to make a difficult decision to permit the dismemberment of the loved ones (Cohen 1989).

Needless to say altruistic donations of organs from living donors are likely to be limited. One can live well with only one kidney, but one has to endure the pain of a major surgery and bear a slightly-increased risk of premature death, either in surgery itself, or as a consequence of having only one kidney, thereafter.

I am sure we can all agree that altruism is a very fine thing. But is it such a fine thing that we can imagine no other valid motivation for organ donations than it? We do not normally rely on it to deliver the necessities of life. As a wise Scotsman observed in the year this country was founded "It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and ever talk to them not of our own necessities but of their advantages. Nobody but a beggar chooses to depend chiefly on the benevolence of his fellow citizens. Even a beggar does not depend on it entirely." (Smith 1937 [1776], 14)

In the normal course of life, we do compensate people the time and trouble they take, and the opportunities they forego, to bake our bread or brew our beer. But what has the process got to do with ethics? Isn't it all just selfishness described by the dismal science of economics?

The answer is no. Economics is a normative discourse as well as a positive science, and there are deep ethical underpinnings to the institutions of free exchange.

One way to provide these moral underpinnings is utilitarianism, the doctrine that what we ought to do what will increase human welfare as much as possible overall. It is true that this doctrine has taken something of a beating over the last generation, but it remains a central part of our moral reasoning. Even people don't think that utilitarianism can or should provide the answers to all ethical questions concede the that human well-being matters morally, and that we should at least achieve more of it when all other things are equal.

But if we concede that, how are we to go about doing it? You can't just tot up goods and bads in some giant ledger book and issue orders to people. If some agent, whether an individual person, or the government, or whatever were to try to do so, it would find that there are intractable problems in comparing the well-being of different people, of shortages of information, and of strategic behavior by other agents. (Bailey in press) So in general, the only plausible strategy for improving human well-being generally is to employ an indirect means for so doing. Voluntary free exchanges are such a means. If we assume -- not implausibly -- that individual persons are effective and strongly-motivated custodians of their own well-being, and we take steps to secure their entitlements to their own persons and property -- that is, if we suppress force and fraud in human affairs, then we can plausibly conclude that when we see people trucking, bartering and exchanging with each other, that they the net results of most exchanges are individual improvements in well-being. I would not trade my bread for your beer unless I were better off with more beer and less bread, and you would not trade your beer for my bread unless you were better off with more bread and less beer. Thus our exchange, when observed, can be assumed to make us both better off. We have achieved what is technically known as a Pareto-improvement, making each better off and none worse off. Aggregate many Pareto improvements due to trade -- millions of them every day across a large society -- and you have a simple, robust mechanism for achieving massive improvements in human well-being.

A regime of general free exchange has another advantage for human well-being, in that it provides a mechanism through which goods and services can find their ways to those who value them most. The logic here is simple: those who have the greatest needs for things will be willing to bid the highest prices for them. Shortages of supply can thus be eliminated.

There are complications, of course, and people ever since Adam Smith have been thinking about them. There are problems due to imperfect or asymmetrical information among buyers and seller, external harms to third parties, and all the other forms of messiness that economists call "transaction costs." And of course, the ethical desirability of distributing things according to the willingness to pay for them depends rather centrally on the equity of the distribution of wealth. The possible existence of such imperfections is not irrelevant in a potential market for human organs, a point I shall come to in a few minutes. But the basic point stands. In general, there is a strong utilitarian presumption in favor permitting free exchanges.

There is such a strong presumption in the tradition of moral reasoning generally thought to be chief alternative to utilitarianism, that is, Kantianism. To oversimplify rather a lot, this is the view that we have an absolute moral duty respect the autonomy of other rational agents, and treat them not as mere means to achieving what we want in the world (the way we might treat a loaf of bread as a means of satisfying hunger, or an automobile as a means as getting from Princeton to Collegeville), but as ends in themselves, worthy of the same respect and concern that we would bestow upon ourselves. Kantianism thus captures the appealing and widespread intuition that people have rights, that they are not to be used up or disposed of simply for the benefit of others, even when that benefit of others is greater in the aggregate than the loss to the one.

How does Kantianism underpin free exchange? It does so in two ways. First, in requiring that we respect other persons, it presents a moral demand that we obtain the consent of other people when we want to do something that affects their own lives. If I take the brewer's beer at gunpoint, or if I swindle him out of it, then I am treating him simply as a means, a tool for quenching my thirst. But if I offer to buy the beer for a price at which he is willing to sell, then I am treating him as an end in himself, by persuading him to accept something that will help him achieve his ends as a rational agent as I achieve mine. Second, Kantianism's stress on treating other agents as ends in themselves normally requires that we respect the deliberated choices they make as part of respecting their rationality. They are, after all, free beings, and fully equally to us in moral standing.

Now there is a plausible case to be made that kidneys and cadaveric organs are in some ways rather like bread or beer. Henry Hansmann, a professor of law at Yale University, has proposed creating a regime of free exchange in cadaveric organs by allowing people to pledge their organs after death in exchange for a reduction on their health insurance premiums in life (Hansmann 1989). Richard Epstein, one of Chicago's most distinguished law professors, has proposed further that people should be allowed to get lump-sum cash payments for donating kidneys. (Epstein 1993) There exist both strong utilitarian and Kantian arguments for both of these proposals, which are special cases of the utilitarian and Kantian arguments for free exchange generally. A rational person who sells a kidney is being compensated for pain and suffering and a marginal risk of death with money he values more than these things, and thus makes himself better off. The person who buys the kidney is saving his own life for a sum of money, which definitely makes him better off. Thus we have a Pareto improvement which would be endorsed by utilitarianism. Furthermore, the effects of a general market would be to induce more donations of organs than altruism alone would, and thus could shorten the long and melancholy waiting lists of people waiting for transplants.

To a Kantian, these transactions should not be ethically suspect. At least as long as the seller has rationally deliberated the choice, he is not damaging his own autonomy or treating himself as a means. As long as the buyer deals honestly and does not use force or fraud to pull off the transaction, he is also respecting the autonomy of the seller.

So it would seem that we have a good ethical reason to repeal the National Organ Transplantation Act and like statutes and replace them with statutes that secure a market in human organs. Or should we? The case as I have presented it up to now is oversimplified. There are a number of potent counterarguments that could be made against such a market. Time permits me to discuss only three of these. These are the arguments of the paternalist, the anticommodifier, and the egalitarian.

A paternalist is someone who believes that it is a function of the criminal law to save people from themselves. In this view, people often fail to serve their own best interests, and therefore need to be prevented from engaging in certain kinds of transactions. Thus the sale of narcotics or sexual services by anyone, or of medical or legal advice by persons not properly licensed to give it, or of products deemed by a regulator to be unsafe, are all sometimes made illegal, because buyers or sellers or both may harm themselves somehow, even if their participation in the transaction is wholly voluntary.

One might make a paternalist claim about the sale of vital organs. Perhaps we should ban such sales because someone might, in a fit irrationality, make a contract which would later have much reason to regret. We certainly don't like the specter of a drunk who, temporarily broke, agrees to sell a kidney for 100 dollars so he can buy more whiskey.

Answering the paternalist effectively really requires distinguishing between two different moral positions, which for the sake of convenience I would call "hard paternalism" and "soft paternalism." The hard paternalist is someone who really thinks he knows better how to live your life than you do, and is willing to use the coercive power of the state to prevent you from making your own choices no matter how carefully you yourself have deliberated upon them. The hard paternalist is a man who wants his conception of the good life written into the criminal code. An example of a hard paternalist would be someone who wants to keep criminal prohibitions on narcotics, even if these cause more harm than they prevent, because he thinks that recreational drug use is wrong in itself. An analogous case could be made by a hard paternalist against selling a kidney, or pledging one's body after death, because he can claim to know that having two kidneys is worth more to anyone than any sum of money, whatever the actual owners of the kidneys may think.

But I think it is hard to take hard paternalism seriously in a pluralistic society. We rightly permit a large range of liberties. We permit competent persons to decline lifesaving medical care altogether, whether as a consequence of their religious beliefs or just because they are afraid of doctors. We allow them to hold dangerous jobs -- like those of construction worker or fire-fighter according to their own best judgment of how to trade off stress and risk for additional compensation. We let them choose their own religions. To be a true hard paternalist is to take oneself out of the moral gravitation field of contemporary American life. And this is not, I submit, a mere cultural peculiarity, but a position with deep and universalist ethical roots of its own. To dictate to another rational person how to live his life is not respectful of him as an autonomous human being. It is also not likely to enhance his well-being. It takes all kinds to make the world we live in, and he is a different person from you. He thus has a much better understanding of what will make his life go well than you do. He also has a much stronger incentive to make efficient use of that information than you do, since it is he, not you, who will largely bear the price of his mistakes.

But even if we dismiss hard paternalism, there is still the possibility of soft paternalism. The soft paternalist does not know how to live your life better than you do, but he will argue that people can at least suffer from transient irrationality, or that the costs of certain transactions make a completely free market likely to be self-defeating. The safety regulation of airlines is a form of soft paternalism, and probably a successful one at that. A commercial airliner contains millions of parts, the failure of any one of which has some probability of leading to disaster. Any given customer of an airline faces insurmountable costs in making a determination of the relative safety of an air trip. and consequently can't make very useful judgments about how to trade off safety for cost. So regulators, providing what is admittedly a second-best outcome to that which we could have in a world of perfect information, do the job for him, by setting safety requirements for all carriers. They thereby block transactions in which a lower price for travel is traded off for a less-safe trip. There might be people willing to make such transactions, but the market won't work will if they are permitted.

The problem with soft paternalism is that it cannot plausibly provide a rationale for completely blocking transactions involving organs. Unlike complex safety issues, the factual domain of organ transplantations is small and should be easy for a competent adult to master. A kidney removal involves a major incision, a loss of a rib, an ugly scar, and an increased risk of high blood pressure and a few other health problems later in life. Surely these facts are easy to grasp and weigh. The overall increased risk of death from the operation may be a bit harder for people to understand, given the difficulties many have in assimilating information that takes the form of numerical probabilities, but even understanding these risks not to difficult given that there is a ready comparative measure available. The marginal risk to a healthy 35-year old of donating a kidney is roughly that of his driving sixteen extra miles to work every day until retirement. (Hansmann 1989, 71) Many people in fact do choose to assume this latter risk, and assume it quite rationally too.

Another soft paternalist argument might be that we should protect people from making impulsive decisions that they would later regret. This point can be well taken, (consider the drunk who transacts for $100) but again, it is unlikely that an optimal policy would be to ban transactions altogether. Modest regulations -- such as the imposition of a waiting period of a few months on would-be sellers -- should be enough to take care of the problem of impulsiveness.

For a futures market in cadaveric organs, the soft paternalist argument is even weaker. Here there can be no cause for regret, since by its very nature this transaction will not be completed until a time when regrets are no longer possible. There may be a problem with people who change their minds about the contract some years after making it. However, the fact that a Hansmann-style futures market makes payoffs gradually rather than in a lump sum suggests that this problem will likely be a small one, since decisions of this kind are likely to be nonimpulsive. Furthermore, people's preferences about what is to be done with them after they are dead are usually fairly stable.

So paternalism fails as an argument against a market in organs. But there are other, nonpaternalistic arguments to be made against the market.

Noncommodification

Paternalists argue that we have to block transactions to keep people from harming themselves. There is a different argument that we have to block certain transactions to prevent harm from falling on everyone. This is the argument for noncommodification. It has its roots in Marx and has been worked out most extensively by some vaguely-leftish lawyers and philosophers, most impressively by Margaret Jane Radin (1987) of Stanford and Elizabeth Anderson (1993) of Michigan. Curiously, though, it is not an argument made by progressives alone; it has interesting resonances with the arguments made by conservative moralists like my friend and colleague Robbie George.

This argument is a subtle one and sometimes difficult. This is the root of the argument: life in a decent society depends on our having the right kind of moral self-understandings, and these self-understandings are made possible by the kinds of language and practices that prevail in society as a whole. The moral life of the free market consists of arms-length exchanges between self-interested people related through the cash nexus. But many of the things which make life worthwhile consist of personal relationships and understandings of human personhood which would be damaged or destroyed if we were to come to think of them as potentially subject to market transactions. It may be easier to grasp this argument through a branch than through its root, however, so consider this example: One evening, Mr. Smith wants to make love to Mrs. Smith, but Mrs. Smith, for whatever reason is disinclined. Perhaps Mr. Smith could offer Mrs. Smith compensation in cash to overcome her disinclination, but I think most of us would think it grossly inappropriate for him to do so. Were he to do so, many of us would think that whatever else Mr. and Mrs. Smith's relationship is, it does properly count as a marriage. If you treat sexual access to someone as a commodity to be bought and sold for money, you are treating them as a prostitute, not a spouse.

Anticommodifiers build from our intuitions about cases of this kind to more general arguments for blocking certain classes of otherwise free exchanges. If sexual access were to be a commodity generally, Professor Radin argues, then people might come to think of sexuality primarily in pecuniary and instrumental terms, and valuable human relationships like marriage will come to be degraded -- with great loss for the well-being of people generally. Prostitution ought therefore to be illegal, or at the very least, we should refuse to enforce contracts for prostitution. If you permit people to sell sexual access and you are on a slippery slope to a world of heartless, amoral sex.

Elizabeth Anderson makes a similar argument for criminalizing the practice of contractual surrogate motherhood, on the grounds that it damage the relations between parents and children if we come to think of motherhood as something someone might enter for money rather than love.

One can elaborate a similar anti-commodification argument against a market in vital organs. The argument might run something like this: if parts of people can be bought and sold through contracts, and if the very means of sustaining life can be bought and sold likewise, then our moral discourse runs the risk of being corrupted in a remarkably thorough way. Putting a price on a kidney or a liver that saves a life may look a lot like putting a price on human life itself. And once that is done, the road is open to seeing human beings themselves as nothing more than commodities to be bought and sold. We are then on a slippery slope down to an inferno of amoral capitalism. If I may sell a kidney on the market, if I may permit such an intimate invasion for a cash price, what is to prevent me from selling myself in toto, into slavery or prostitution? What moral principle would then stand in the way of someone's accepting a desperate gamble: a large amount of cash if he wins, forfeiture of his life if he looses? Would we really want to live in a society whose moral environment permits such transactions?

The argument against commodification is not, however, unanswerable. Even if we accept its general terms -- and we need not, but that is a story too large for me to tell here -- there is no particular reason to accept any particular argument it makes about specific policy proposals such as Hansmann's and Epstein's. Like many arguments that depend on an implied slippery slope, it neglects the possibility that specific reforms can be adequately cabined. There may be slippery slopes in life, but rather than require that no one ever venture out, we can put up signs and fences to keep people from sliding into the abyss. If we legalize one class of transactions we need not legalize all transactions that may be in some way similar to members of that class. I can sell my own time and energy piecemeal in the form of doing work for a salary. No one, except perhaps the few remaining Marxists, is likely to think that this is morally problematic. Now in a certain logical sense, making it legal for me to work for pay lies somewhere on a continuum of social practices at one end of which the entire labor market is illegal and at the other end of which I can sell myself into slavery. But I submit to you that there is not one scintilla of evidence that permitting a labor market has weakened anyone's intuition that slavery is morally wrong, even if voluntarily contracted into. Indeed, quite the opposite is the case, since a labor market lies solidly on a moral foundation in which self-ownership is regarded as unchallengeable.

That a decent society would ban some kinds of organs for cash transactions is undoubted, but the reason for doing this probably stems from the high transaction costs -- that is, the doubts about voluntariness -- of genuinely desperate transactions. When a man plays a lottery in which the stakes are his life the suspicion that coercion is involved is high enough to make the transaction deeply questionable. But the proposed specific reforms Epstein and Hansmann suggest do run plausibly run such a risk, because they leave much room for deliberated choice.

Before I leave the subject of commodification, I cannot help but make a final note. The arguments that commodification will inevitably lead to evils are invariably hypothetical in tone, turning on mights and maybes. (If we decriminalize prostitution, then people might come to regard all sex as a commodity, and then maybe valuable human relationships will break down. If we allow people to sell organs, then maybe we will end up with a world in which people are looked on as cattle.) But it is by no means certain that even a full market will lead to universal commodification in which genuinely human relationships are degraded. Consider: food is fully commodified. I can trade for it in any restaurant. But it does not follow the family Christmas dinner I attend every year is devoid of love and warmth. A market of arms-length transactions and a realm of deep personal relationships can perfectly well exist side-by-side.

Inequality

Up until now, I have been assuming that the choices of participants in a market can be free from coercion. But there is a final argument that throws doubt on this proposition, the argument from inequality. This argument begins by taking note of a nasty social fact that the distribution of income in this society is rather uneven and more people than we like to admit live in relative poverty. The argument then proceeds to a claim that people may be "compelled" by their misery to make transactions which we think no one ought to make. What is more, the poor will probably not have resources to purchase organs on a market themselves, and consequently a market for organs may end up looking like exploitation, in which cash moves from the rich (or from those in the middle-class who can afford good health insurance) to the poor, and organs in turn cycle back to the rich. The poor, in this view, become like cattle from whom organs are harvested.

I agree that such an arrangement is not be very attractive-looking. But it is important to analyze the problem to see just what evil here is. Is it the fact that transactions themselves can take place? It may appear on the surface that this is so, since we have an intuitive revulsion against anyone's being motivated by comparative poverty to enter a Mephistophelean pact. But in fact, life is full of transactions in which the poor do things for the rich that the rich do not do reciprocally for the poor. It is no fun to have to mine coal or clean bathrooms for a living, and as a matter of fact the poor do these things for the rich and middle-class as well. But it seems implausible to think that we could make the poor better off by forbidding them to work as miners or janitors. As long as we assume that poor are about as rational as anyone else, we should assume that their choosing certain lines of work is just as much a form of their doing the best the can with what they have as when a member of the upper-middle class chooses to the stressful and demanding work of a commodities trader. And I think we should find it condescending to think that the poor are not rational or that they are incapable of making intelligent choices with the resources they have. We do not limit religious liberty or freedom of association on the grounds that the poor might abuse them. Why limit economic liberty on that grounds, then? If a poor person makes a duly deliberated choice to sign a futures contract disposing of his organs in return for a reduction in his health insurance premiums -- a reduction which may make it possible for him to have health insurance at all -- how can we be making him better off by denying him the right to make this transaction?

The argument from inequality is certainly on to something, but what it is on to is a deeper injustice than permitting transactions we do not like. This is an injustice in the underlying distribution of social goods, of wealth and income and of capacities to function. I agree that it is deeply obnoxious that in a society as wealthy as ours there are people living in poverty. But the right moral response to such conditions is surely not to block people from using what means they have at their disposal for getting through life, but through the inequities in the distribution of wealth themselves. To do otherwise is to cover the symptoms, not treat the disease. (And I should note incidentally, that covering the symptoms is more likely to make the disease worse than better. Even if there are some organs sales by the poor, it is deeply patronizing to treat these sales as if their proceeds were going to be frittered away on drink. Perhaps the proceeds of the sales are the path to an escape from poverty that will provide the capital to establish a small business or finance an education.) Exactly how we are to attack the problems in distribution is too large a problem to address here, although securing a decent social minimum and a good basic education for everyone might be a good place to begin.

I can go on on this subject, but I see that I am almost out of time. I can conclude with only a few scattered remarks. It may seem that what I have proposed here is hard, cruel, perhaps even Dickensian. I admit that it is a bit shocking. Sometimes I feel a bit shocked myself by my own reasoning on this subject. But we must remember that it is the world itself that is in many ways hard and cruel. In a world of diverse preferences, it is sometimes a hard task to respect the autonomy of other people. Sometimes they will make choices that we find repugnant, but toleration of such choices is the sacrifice we must make to enjoy free institutions ourselves. Likewise, in a world of scarcity, attempts to achieve efficiency mean that we will face hard and sometimes even tragic choices involving life and death. But the fact that these choices are hard does not give us the right to flinch and pretend that the hard choices can be evaded. I submit to you then, that the policy reforms I have just proposed are not good, in any absolute sense. But they are the least bad of what is available to us, and outside of Utopia, the least bad is often what we must aim for.

Anderson, Elizabeth. 1993. Values in Ethics and Economics. Cambridge, MA: Harvard University Press.

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Cohen, Llyod R. 1989. "Increasing the Supply of Transplant Organs: The Virtues of a Futures Market." George Washington University Law Review 58:1, 1-51.

Economist Staff. 1997. "Holding Together, Better Than Most." Economist 342: 8005 (22 February 1997), 28-9.

Epstein, Richard. 1993. "Organ Transplants: Is Altruism Costing Lives?" American Enterprise 4:6 (Nov/Dec), 51-7.

Hansmann, Henry. 1989. "The Economics and Ethics of Markets for Human Organs." Journal of Health Politics, Policy, and Law 14, 57-85.

Radin, Margaret Jane. 1987. "Market-Inalienability." Harvard Law Review 100: 1849-1947.

Smith, Adam. 1937 (1776). An Inquiry into the Nature and Causes of the Wealth of Nations. Ed. Edwin Cannan. New York: Modern Library.