Organs for Sale Bioethics, Neoliberalism, and Public Moral

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Organs for Sale
Bioethics, Neoliberalism, and
Public Moral Deliberation

RYAN GILLESPIE

UNIVERSITY OF TORONTO PRESS

Toronto Buffalo London
© University of Toronto Press 2021
Toronto Buffalo London
utorontopress.com
Printed in the U.S.A.

ISBN 978-1-4875-0603-2 (cloth) ISBN 978-1-4875-3316-8 (EPUB)

ISBN 978-1-4875-2405-0 (paper) ISBN 978-1-4875-3315-1 (PDF)

Library and Archives Canada Cataloguing in Publication

Title: Organs for sale : bioethics, neoliberalism, and public moral deliberation /
Ryan Gillespie.
Names: Gillespie, Ryan, 1982– author.
Description: Includes bibliographical references and index.
Identifiers: Canadiana (print) 20200278940 | Canadiana (ebook) 20200278967 |
ISBN 9781487506032 (hardcover) | ISBN 9781487524050 (softcover) |
ISBN 9781487533168 (EPUB) | ISBN 9781487533151 (PDF)
Subjects: LCSH: Donation of organs, tissues, etc – Moral and ethical aspects. |
LCSH: Bioethics. | LCSH: Medical ethics.
Classification: LCC RD129.5 .G55 2020 | DDC 174.2/97954—dc23

University of Toronto Press acknowledges the financial assistance to its

publishing program of the Canada Council for the Arts and the Ontario Arts
Council, an agency of the Government of Ontario.
Contents

Acknowledgments vii

Section One: Morals, Markets, and Medicine

1 Organs for Sale? Normative Entanglements in the Public Sphere 5

2 Public Morality: Altruism, Rhetoric, and Bioethics 24

Section Two: The Rhetorical Positions, Arguments, and Justifications

in Human Organ Procurement

3 The Case for an Altruistic Supply System 39

4 The Case for a Market-Based Supply System 60

Section Three: Morality, Neoliberalism, and the Prospects of Reasoning

Together in a Democracy

5 The Neoliberal Graft: Medicine, Morality, and Markets in Liberal-

Democratic Regimes 87
6 Good Reasons: Metanormativity and Categoricity 116
7 Weighing Reasons: Telic Orientation, Rhetorical Force,
and Normative Force 145

Section Four: Weighing Reasons in the Organ Debate

8 The Scope of the Market: Exploitation, Coercion, Paternalism,

and Legal Consistency 157
vi Contents

9 What Money Cannot Buy and What Money Ought Not Buy: Dignity,
Motives, and Markets 179

Conclusion: What Kind of Policy for What Kind of Society? 195

Notes 219
Bibliography 275
Index 291
Acknowledgments

Making one’s debts explicit is tricky business, and not just because
someone who helped shaped this project will inevitably be accidently
unacknowledged. Rather, it is that the relationality of debt, gift, and re-
payment, and of clap and echo, is impossibly entangled: who can these
Gordian knots undo?
There are the debts that you can point to, and the debts that you can-
not, and then there are the ones you can kinda point to. Part of me wants
use this space to buck the trend of only highlighting academic influence,
but of course that list would be a book in itself and no one really wants
to read my thank yous to Flannery O’Connor, The Cure, K Records, and
Krzysztof Kieslowski, and Brian Eno, Bob Dylan, and The Beatles don’t
care or will never read my gratitude anyway.
The kind of debt that one cannot, at least usually, point to is just as
influential as the kind one can. Tolstoy captures this kind in A Confession
when he tells of a friend who lost his faith when an older brother saw him
praying and said, “Do you still do that?” And that was it; the utterance –
let alone the intellectual assents – carrying so little water compared to
the surrounding complex of assertion, disapproval, attitude, position-
ality in altering aim, path, and worldview. And then there are all the
encounters, glances, intonations that we don’t even recall! Marilynne
Robinson’s Reverend Ames is convincing when he says “you never do
know the actual nature even of your own experiences.” But now I’ll cease
with highlighting these less obvious kinds of debts and formations, even
if they are equal to the more obvious kinds.
The two clearest kinds of debts for a book like this are the intellec-
tual and the direct. In terms of the former, citations and references run
through nearly every page to document those debts. It is a pretty cool
practice, when you think about it, to document one’s debts in these ways.
You don’t see folksongs or novels so annotated. Now to the direct debts.
viii Acknowledgments

Thank you to Meg Patterson, who took a chance on this project and
carefully oversaw it from start to finish, and Lisa Jemison and the entire
editorial board and team at the University of Toronto Press. Two anon-
ymous reviewers gave extensive and helpful critiques, clearly ­improving
the book, Catherine Plear carefully copyedited the manuscript, and
Naomi Pauls constructed the index. Of course all the errors and over-
sights were and remain mine.
Carol Bakhos has been a wonderful colleague here at UCLA, and
I am also grateful to her and the Center for the Study of Religion for
institutional support. My gratitude to Dean David Schaberg and the
­Humanities Division for providing financial support for producing this
book. The first major dive into this research came thanks to an Annen-
berg Fellowship during my time in the Annenberg School at the Univer-
sity of Southern California. Tom Goodnight, Randy Lake, and Stephen
Finlay provided serious and substantive engagement at an earlier stage
of the arguments in this book; they were incisive in their comments and
collegial and generous with their time.
I’ve benefited enormously from dialogue on many of the themes in
this book and beyond, both encouraging and critical and most e­ specially
when they combine the two, with Christopher H. Smith, Sarah Banet-­
Weiser, Larry Gross, Manuel Castells, Jon Taplin, Eleanor ­Kaufman, Scott
Bartchy, Jeffrey Guhin, Mary Katherine Sheena, Megan Remington,
Nicholas Burnett, Jacqueline Irwin, Nicholas Crowe, James Murphy,
Carol Poster, Robin Reames, Paul Strait, Beth Boser, Martin Hilbert,
Garrett Broad, Ritesh Mehta, Don Waisanen, Nikki Usher, Zoltan Majdik,
Carrie Platt, Angela Gorrell, Matt Croasmun, Ryan McAnnally-Linz,
Sarah Farmer, Drew C ­ ollins, Nichole Flores, Michael Balboni, Ben Warf,
and Derek Johnson. My students over the past decade or so have been of
great assistance in critical sharpening, especially in better presentation
of arguments that become mere abstractions quite quickly.
Perhaps no conversation has benefited my academic life more
practically than one I had with Gary Ferngren in 2018. There’s a
­
more-than-possible world in which this book doesn’t happen without that
lunch; thank you for the advice – and the spirit – of that conversation.
Mark Williams taught me how to think clearer and be better, and I’m
grateful that he still motivates me on both fronts. Your friendship, good
sir, is a godsend.
The personal support and encouragement from loving friends and
family is the largest debt and the deepest well. My love and gratitude
to Ryan Lindow, Tyler Gee, and Gabe Garcia; and to Marvi, Jim, Billie
Anne, Steve, James, Daniella, and Paul for being the kind of family that
most people don’t even think it is possible to have.
 Acknowledgments ix

Part of this book is motivated by the desire to preserve and promote

these sorts of conversations and themes for a subsequent generation, at
least in my own little world of nieces and nephews. So, Graham, Heidi,
Cora, Henry, Caleb, Addie, Samantha, Kyle, and Kierstin, someday may
you read this book and argue with me about the is and oughts and hopes.
Robinson/Ames again captures it: writing has always felt like praying ...
My parents Tim and Patti model unending love as parents and now as
grandparents, and my wonderful sister Kelli is always the great encour-
ager, especially for projects like this. Thank you.
Aideyn, Liam, Emmeline: you are the joy of my life, and inspired me
every day during this project – even though only two of you were alive for
half this book, and one of you arrived just a few months ago. Backward
causation, surely, must be a thing. Your beauty, verve, and creativity are a
salubrious contagion: infect the world!
And finally, Amber: to you and for you, all ways and always ...
ORGANS FOR SALE
SECTION ONE

Morals, Markets, and Medicine

1 Organs for Sale? Normative
Entanglements in the Public Sphere

Imagine two scenarios. Let’s call the first one Child on the Range:

Suppose I am shooting a gun at a firing range. You approach me and say, “You
know, to hit the furthest target, you ought to aim a bit higher.” I respond by informing
you that I’m aiming at a different target – the one just inside that furthest one. Given
my intention, given my goal, it would be natural for you to respond, “Oh, well never
mind, then. Carry on.” Now suppose a child wanders out onto the range. “Wait, stop
firing!” you scream. But I say, “Why? Because of the stupid brat wandering around
out there? I don’t care if I hit him.” You then start screaming at me, calling for help,
and moving to physically restrain me.

Notice the contrast between the two conversations in regard to aims and
ends. In the first one, when you learn that I am aiming at a different
target than you thought, you withdraw the ought claim. You are happy to
say you are mistaken about what you perceived my aim to be, or just to
let it go, thinking that while you might want to aim at the furthest target,
it is no big deal that I don’t share that aim. You don’t go on insisting,
“Well, you really ought to aim at that furthest target.” But in the second
conversation, that’s exactly what you do. Despite my intention and disin-
terest in your goal, you nevertheless press me into pursuit of a different
aim – even calling for assistance and perhaps physically wrestling the gun
from my hand.
Now consider a different scenario. Let’s call it Family Heirloom:

Your wealthiest friend is over at your apartment. She notices an exquisite goblet on
your counter, and asks if she might buy it from you. You are going to be short on
rent this month, and anyway, you never found much use for it, so you agree to sell
it to her. “How much is it worth?” she asks you. It is from your grandmother, and so
you call her to ask. Grandma is aghast that you’d want to sell the goblet, for it is an
6 Morals, Markets, and Medicine

heirloom that has been in the family for generations. “You cannot sell it,” Grandma
says. “It is priceless.” But you don’t feel connected to it. Your friend then offers you
$10 million for it. Overhearing, Grandma laughs and says, “Well in that case, of
course you can sell it!” So you do. A few weeks later, you get a knock on your door,
and it is the police. “You are under arrest,” they say. “Don’t you know it is illegal to
sell family heirlooms?”

Notice here that what Grandma seems to mean at first is that you cannot
morally sell the goblet, even if physically you can, and that it is an inform-
ing understanding of value, purpose, meaning, kinship, or the like that
pulls significant weight. But once an outlandish money offer is made,
all those sorts of informing things disappear. It is just too much money
to turn down, as you and your grandmother agree, and so you then can
sell the goblet. That is, the object can be sold, and from your and your
grandmother’s perspective, you’ve done nothing morally wrong; and so
it comes as a surprise learn that, in this fictitious scenario, such transac-
tions are illegal.
There are likely several intuitions firing here to indicate differ-
ences in the two scenarios. In the Child scenario, the weight of the end
(or ­potential outcome) seems to do much of the intuitional work here,
for there is not much at stake regarding which target someone aims at
on a firing range – even if you are perfectly correct and rational that if
I want to hit that furthest target, I ought to aim a bit higher. But when
a life is in danger, particularly a child’s life, the agent’s stated goals and
aims and interests – or lack thereof – seem to count for much less, if any-
thing at all. Most of us would consider your response rationally justified,
contextually appropriate, or both; there are some ends (or at least one)
that trump other (the agent’s) ends, some that might be absolute or
categorical. That the contrast between the relative (aiming at a certain
target) and the absolute (not shooting at innocent children) is readily
grasped suggests an intuitive distinction between categorical and hypo-
thetical (or instrumental) value. At least since Kant, there has been a
persistent belief that it is the categorical that makes up morality, with
the hypothetical/instrumental kind of rationality given over to desires or
inclinations. Given the distinction of the problem and the intuitive grip
that such a scenario presents, I will dub this issue The Categorical Grip, and
refer to it often throughout the book.
But is nothing of the moral happening in the Heirloom scenario? Claims
of identity, memory, kinship, and honouring ancestors are clearly pres-
ent, as are notions of responsibility (to kinship and rent contracts), pru-
dence, and, of course, a citizen’s duty to uphold legal structures and the
law. Still, most of us would want to say that even if someone held family