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Sale of Human Organs in the U.S: Ethical and Legal Dilemmas

This essay examines the pros and cons of the issue of sale of human organs in the US through the legal, ethical, moral prisms and its interaction with individual freedoms to finally affirm the case for the motion.

The essay first examines the concepts of natural law and legal positivism to conclude that a case for the motion can be better supported by ascribing to legal positivism. The theme is then developed by examining the trends in contemporary views on laws and concludes that contemporary views hold that the state should reduce intrusive laws that affect privacy of individuals that includes the right to sell or buy human organs.

The essay then develops the argument through reference to the Universal Declaration of Human Rights, the 14th amendment to the US constitution and the Grisvold Vs Connecticut case.

Inadequacy of the federal law banning the sale of organs is examined next as also a reflection on the law is open to abuse.

The practical necessities of the US people are then amplified as also a reference to the utilitarian outlook on organ sale of the deceased by the relatives. The essay then examines the dangers of allowing the sale of organs and its likely effects.

The essay concludes by stating that legal positivism and contemporary views on legal jurisprudence should form the basis for allowing the sale of human organs in the US.

Amongst the various controversial issues that govern human affairs, perhaps one that has evoked considerable debate has been the issue of sale of human organs. The issue raises a number of legal, moral and privacy issues that in large parts conflict with each other. As per law, sale of human organs is banned in the US. However, many feel that this law is too restrictive and infringes basic individual rights and is impractical. This essay examines the pros and cons of the issue through the legal, ethical, moral prisms and its interaction with individual freedoms to finally affirm the case for the motion.

A balanced legal framework is essential for regulation of human society in any nation state. Laws however belong to different schools of jurisprudence and it is necessary to examine some, such as natural law and legal positivism to determine the case for or against the sale of human organs. Natural law is essentially a law whose contents are set by nature. By extension, many philosophers and theorists extend the meaning of natural law to natural justice and natural rights.

A natural law in its pristine state is a just law. Law however cannot be divorced from morality. According to the overlap thesis, law necessarily has to relate to morality and moral notions as morals form the basis of human interactions. Hence a question of sale of human organs can as per tenets of natural law, of right to life, be considered valid, however the method by which such a right is ensured must be grounded in the morality of the issue.

Legal Positivism on the other hand emphasizes that legal jurisprudence has to look at the Social fact thesis, the Conventionality thesis and the Separability thesis. The first one affirms that legal validity depends on certain social facts, while the Conventionality thesis develops that social facts lead to social conventions that give the basis for legal validity and the Separability thesis essentially states that there is no overlap between notions of law and morality which means that laws should be made without involving moral considerations.

Thus on the question of sale of human organs, the theory of legal positivism dictates that the merits of the case should be determined by its necessity to the US society. A naturalistic view, with its implicit basis on morality may find difficulty in justifying the necessity of allowing sale of human organs.

Contemporary perspective of law shows a steady march of affirming privacy rights over the restrictive stipulations of ancient laws. The contemporary view holds that laws should shed their ‘Big Brother’, intrusive nature and respect individual choices and freedoms. The contemporary view also holds that laws must change to reflect the changed moralities of the times and be based on social facts. For example, it is a social fact that homosexuality and lesbianism is no longer held as ‘unnatural’ by a large section of the US society as also the world. Therefore, archaic Victorian laws that in some countries still hold it to be a ‘criminal offense’, should be universally abolished.

Article 3 of the Universal Declaration of Human Rights, 1948, states that “everyone has the right to life, liberty and security of person” (The UN). The US is a signatory to this declaration and thus it becomes incumbent on US jurisprudence to mold according to the dictates of time. The 14th amendment to the US constitution states that “nor shall any State deprive any person of life, liberty, or property, without due process of law” (Archives and Beschloss 107).

The US Supreme court first acknowledged an existence of an implied right to privacy in the US Constitution in 1965 (Keenan 17). In the landmark Griswold Vs Connecticut (1965), Griswold, The Director of Planned Parenthood Office in Connecticut was arrested in aiding a woman in preventing pregnancy by using contraceptive methods, which at that time in Connecticut was illegal.

The US Supreme court acquitted Griswold on the judgment that the Connecticut law invaded the marital privacy of people, by allowing the law and law enforcement agencies to investigate “marital bedrooms for telltale signs for the use of contraceptives (Keenan 18)” and thus was unconstitutional. The Grisvold Vs Connecticut case had wide ranging impact on affirmation of individual privacy rights and thus by that extension can form the backdrop for precedence in legalizing the sale of human organs as what a person does with his body is a private matter as long as the actions do not harm the core interests of the state.

Title 42 of United States Code, Section 274(e) prohibits “any person to knowingly acquire, receive or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce” (Menikoff 482). This statute allows donation of organs as also ‘reasonable payments’ for the cost of procedure and incidental expenditure. Therein lays the scope for differing interpretations and abuse of the provisions as what may constitute ‘reasonable payment’ is left to the judgment of the peoples involved and can easily mutate into a commercial transaction.

The number of people legally awaiting their turn for receiving a rightly matched organ is growing by the year. Waiting for an organ transplant is akin to waiting on the death row; one never knows whether the chance to live normally again would actually come by because of the sheer scarcity of organs caused by obstructive federal regulations. By not allowing open sale of human organs, the authorities throw the door open for organ smugglers who reap immense profits from the sale of the very organs clandestinely.

By not allowing sale of organs, a large number of dialysis machines in the US are always functioning round the clock, denying the emergency facilities to someone else that may be in the dire need of dialysis. From the Utilitarian point of view, why should not the relatives of the deceased benefit from the sale of the deceased organs which in any case the donation centers are doing, who have no familial connections?

The flip side of allowing organ sales is that donations will disappear and the sale of human organs will mirror the exigencies of the market place; viz, sale of the best functioning organ to the highest bidder, which in turn would result in only the rich getting access to the organs with the poor getting nothing. Open and legal sale in itself is open to corruption and human rights violation where people may more frequently be targeted for their healthy body parts and be killed for them.

Having examined the pros and cons of the issue it can be emphatically stated that legal positivism and contemporary views on laws favor the reduction of intrusive laws that infringe individual privacy matters. An open sale of human organs with a government regulated price mechanism may possibly be the best way forward as the moralistic standpoint has clearly outlived its times and the practical, urgent necessities may well make it prudent to allow the sale of human organs in the United States.

Works Cited

Archives, National and Michael (FRW) Beschloss. Our Documents: 100 Milestone Documents from the National Archives. NY: Oxford University Press, 2006.

Keenan, Kevin M. Invasion of Privacy. Santa Barbara: ABC-CLIO, 2005.

Menikoff, Jerry. Law and bioethics: an introduction. Washington DC: Georgetown University Press, 2001.

The UN. “The Universal Declaration of Human Rights.” 2009. UN Website. Web.


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