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TitleWhose Body Is It Anyway?: Justice and the Integrity of the Person
Author
LanguageEnglish
File Size1.3 MB
Total Pages247
Table of Contents
                            Contents
Acknowledgements
Introduction
1. A Rights-Based Theory of Justice
	1.1 Setting the Problem
	1.2 Personhood, Justice, and Rights
		1.2.1 Personhood and Justice
		1.2.2 Interests, Rights, and Powers
		1.2.3 Is there a Right to do Wrong?
	1.3 Which Theory of Justice?
		1.3.1 Self-respect and Justice
		1.3.2 A Sufficientist Theory of Justice
	1.4 Conclusion
2. Good Samaritanism
	2.1 Introduction
	2.2 Good Samaritanism: A Duty of Justice to Support Just Institutions?
	2.3 The Duty to Rescue: An Enforceable Duty of Justice
		2.3.1 Defending the Duty to Rescue
		2.3.2 From a Moral to a Legal Right to Rescue
	2.4 Conclusion
3. A Civilian Service
	3.1 Introduction
	3.2 Justice and the Idea of a Civilian Service
	3.3 Objections to a Civilian Service
	3.4 Conclusion
4. Confiscating Cadaveric Organs
	4.1 Introduction
	4.2 The Case for Confiscation
		4.2.1 Who Should Decide?
		4.2.2 Questioning the Analogy
	4.3 Two Objections against the Confiscation of Cadaveric Organs
		4.3.1 Non-conscientious Objections
		4.3.2 Conscientious Objections
	4.4 Conclusion
5. Confiscating Live Body Parts
	5.1 Introduction
	5.2 Arguing for the Confiscation of Live Body Parts
	5.3 Two Objections against the Confiscation of Live Body Parts
		5.3.1 Bodily Integrity
		5.3.2 Freedom from Interference
	5.4 Justice, Sex, and Reproduction
	5.5 Conclusion
6. Organ Sales
	6.1 Introduction
	6.2 A Case for the Right to Sell and Buy Body Parts
	6.3 Two Objections against Organ Sales
		6.3.1 The Commodification Objection
		6.3.2 The Exploitation Objection
	6.4 Regulating the Sale and Purchase of Body Parts
	6.5 Conclusion
7. Prostitution
	7.1 Introduction
	7.2 A Case for the Right to Buy and Sell Sexual Services
		7.2.1 A Right to Buy and Sell Sexual Services
		7.2.2 In Practice: Prostitution as a Job
	7.3 Two Arguments against the Rights to Buy and Sell Sexual Services
		7.3.1 Selling and Buying Sex; Selling and Buying Persons
		7.3.2 Prostitution and Gender Inequality
	7.4 Conclusion
8. Surrogacy Contracts
	8.1 Introduction
	8.2 A Case for the Rights to Sell and Buy Reproductive Services
		8.2.1 Defining Surrogacy
		8.2.2 In Favour of Surrogacy Contracts
	8.3 Objections to Surrogacy
		8.3.1 The Commodification Objection
		8.3.2 The Exploitation Objection
		8.3.3 The Gender Inequality Objection
		8.3.4 The Harm-to-Children Objection
	8.4 The Reproductive Contract
	8.5 Conclusion
Conclusion
Bibliography
Index
	A
	B
	C
	D
	E
	F
	G
	H
	I
	J
	K
	L
	M
	N
	O
	P
	R
	S
	T
	U
	V
	W
	Z
                        
Document Text Contents
Page 2

WHOSE BODY IS IT ANYWAY?

Page 123

108 Con�scating Live Body Parts

needy in ways forbidden by justice. It would seem odd to allow Sw not to rescue
D on the grounds that the latter is materially better off than he is. The fact that Sw
knows how to swim is what matters, not Sw’s material situation relative to D’s. By
the same token, the fact that Su has something—a body part—which P needs so
as to lead a minimally flourishing life is what matters, not Su’s material situation
relative to P’s.

Finally, that someone may be sick—and undergoing medical treatment—
does not disqualify him from a duty to help the materially needy by way of
taxation. Suppose that P, who needs a body part but can hold down a job, earns
enough to be able to give some material resources to H, who is able-bodied but
homeless. Were P to say that he will henceforth stop helping H, on the grounds
that it would be unfair, because of his poor health, to diminish his total holdings
of resources, we would accuse him, rightly, of failing to fulfil his obligation of
justice. If P is in a position to help N by way of taxation, without having so
little by way of material resources that he cannot lead a minimally flourishing
life, there is no reason why he should not do so. By the same token, if Su is in a
position to help P, by way of a body-part transfer, without jeopardizing his health
to such an extent as to jeopardize his prospects for a minimally flourishing life,
there is no reason why he should not do so.

I have assumed so far that Su is worse off than P but not materially needy. Let
us assume that he is, though, in that he does not have the resources he needs
to lead a minimally flourishing life. In so far as we are working in ideal theory,
Su’s situation is acceptable at the bar of justice: it may be, for example, that Su
chose not to avail himself of the resources to which he had a right; or it may
be that Su can be clearly shown to be responsible for his plight and therefore
does not have such a right in the first instance. Can we, in that case, hold him
under a duty to help P? My hunch is that there is no reason why we should not.
Ex hypothesi, P does not owe it to Su to improve his material situation; and Su
has something which P desperately needs. Let us return to the drowning case.
D is in serious peril; Sw can help him, but, it turns out, is a homeless person
who has consistently refused perfectly acceptable, publicly funded, housing. Why
should Sw be exonerated from any obligation to rescue D, simply because he hap-
pens to be very needy, and need not be? Things would look different if Sw were
entitled, as a matter of justice, to housing which, for whatever reason, he can-
not get (an all too familiar situation, even in welfare state countries such as ours).
In that case, Sw might have enough of a grievance not to be held under a duty
to help D. I say ‘might’, note, because I am not entirely sure that he does. Still,
in a situation where he is responsible for his neediness, he does not have such
a grievance, and correspondingly does not have a claim not to help D. By the
same token, Su does not have a claim not to help P (provided that we can apply
the non-responsibility condition, that is, provided that we can assess that Su is
responsible for his plight without getting him to make shameful revelations about
himself).

Page 124

Confiscating Live Body Parts 109

5.3 TWO OBJECTIONS AGAINST THE CONFISCATION
OF LIVE BODY PARTS

I have argued so far that if one thinks that the needy have a right to material
resources against the well off, one is committed to the view that individuals who
need body parts in order to survive or lead a minimally flourishing life have a
right that the able-bodied give them those parts (except for the brain, the whole
liver, both kidneys, corneas, the heart, and the lungs). Now, one could obviously
object that my argument does not take sufficient account of the fact that those
resources—material or bodily—are of a different nature. The following words,
from the pen of one Judge John P. Flaherty, vividly capture what most people
think of the mandatory taking of body parts: ‘Forcible extraction of living body
tissue causes revulsion in the judicial mind . . . You can picture the man being
strapped to the table and then the extraction.’12

The confiscation of live body parts standardly elicit two objections: (a) to con-
fer on the sick a right to the body parts of the able-bodied violates the bodily
integrity of the latter; (b) it constitutes too much of an interference in their lives,
in a way that conferring on the needy a right to the material resources of the
well off does not. Note that the objection from bodily integrity, which I address
in section 5.3.1, differs from the objection from interference, which I address in
section 5.3.2, since one can undermine someone’s bodily integrity without in any
way interfering with their life. If I come into your room at night knowing that
you are asleep and very heavily sedated, and if I take blood from you, I am not
interfering with your life, since I am not preventing you from doing anything.
Yet, by taking that blood, I take something from your body and thereby might be
thought to diminish its integrity. Conversely, if, as you walk down to the beach, I
stand in your way but do not touch you, I am interfering with your life, but not
violating your bodily integrity. However, although it is conceivable to object to
the confiscation of body parts on the grounds that it undermines the suppliers’
bodily integrity without making reference to their interest in not being interfered
with, I shall argue at the close of section 5.3.1 that the objection from bodily
integrity derives much of its force from the view that in violating people’s bodily
integrity, one is interfering with their life to an unacceptable extent.

5.3.1 Bodily Integrity

To argue, as I do, that, under some circumstances, the sick have a right against
the able-bodied that they give them body parts amounts to claiming that the lat-
ter do not have a right to full bodily integrity. Quite obviously, someone might
object that they do, in fact, have such a right, which, if correct, would disprove
my case.

12 McFall v. Shimp, Allegheny Court, USA, 1978.

Page 246

Index 231

Niekerk, A. van 189 n. 3
Nissan, D. 78 n.
Nozick, R. 3 n. 1, 4 n. 4, 112
Nussbaum, M. 32 n., 140 n. 13, 158 n. 3,

158 n. 5, 161 n. 7

objectification:
and organ sales 139–40
of women in surrogacy 186
see also commodification; fungibility

Ogus, A. I. 149 n. 27
Oi, W. 68 n.
Olsaretti, S. 130 n. 1
organs:

as resources 75–6, 100–2

Parfit, D. 12 n., 13, 14 n. 6, 208–9
Parijs, P. van 3 n. 1
Pateman, C. 158, 171–2, 177 n. 25, 181

n. 30, 205 n.
paternalism 26, 146, 148, 149 n. 26, 174,

201–2, 211–12
Perkins, R. 155 n. 1, 162 n., 167 n. 10,

174 n., 180 n.
personal integrity:

defined 8
and consequentialism 35–6
posthumous 85–9

personal services:
as resources 47–9
v. material resources 62–3
see also sexual services

personhood:
defined 12–16
and organ confiscation 76, 110–13
and organ sales 141

physician-assisted suicide 134
pimping 2, 155–6, 181 n. 32, 183
pornography 24–5
price-fixing:

and organ sales 149–50
and surrogacy 213–14
see also regulation

prostitution:
as a labour contract 157–8, 171–2
as an enforceable contract 164–5, 170
criminalization of 2, 166, 174–6, 182–4
defined 154–5
see also autonomy

Radin, M. 139, 173 n. 18, 189 n. 2, 200 n.,
210 n. 31, 216 n. 40

Rae, S. B. 187 n., 189 n. 2, 200 n.
Ragonné, H. 192 n. 9, 194 n., 207 n., 217

n. 43
Rakowski, E. 99–100, 101 n. 6

rape 51, 111, 119–20, 156, 170, 178 n.,
198

Ratcliffe, J. M. 40 n.
Rawls, J. 90 n., 112
Raz, J. 17 n. 10, 24 n.
regulation:

of organ sales 149–52
of prostitution 166–71
of surrogacy 211–18

resources, see organs; personal services;
sufficiency

no-responsibility proviso:
defined 36
and Good Samaritanism 41–2
and organ confiscation 74–5
and organ sales 128, 132
see also self-respect

rights:
as claims 16, 19–20
as immunities 16
as liberties 16
as powers 16, 20–2
conditions for having 22–3
enforcement of 19–20
interest-theory of 16–17
negative v. positive 86–7
posthumous 22–3, 74, 85, 86
to act wrongly 24–8, 147–9, 175, 182
welfare rights 6–7

Ripstein, A. 42–3
risk:

in helping 45–7, 51–4, 116–18
in pregnancy 120, 122, 162, 193–4
occupational 131, 194

Robertson, J. A. 192 n. 7, 208 n. 27
Rudzinski, A. W. 40 n.

St James, M. 173 n. 20
Sartre, J. P. 76, 101–2
Satz, D. 173, 177 n. 24, 177 n. 25, 178 n. 27,

183 n., 199 n. 16, 205 n.
Scheffler, S. 34 n. 27
Scheper-Hughes, N. 145 n.
Schneewind, B. 139 n. 12
Schutz, R. 214 n.
self-ownership 3 n. 3, 4, 112
self-respect:

and no-responsibility proviso 36–8
and sex 121–2
recognition vs. evaluative 29
right to undermine 25–8, 133, 162–3
see also minimally flourishing life

sexual services:
distinctiveness of 157–61
duty to provide, see Good Samaritanism

shame, see self-respect
Sher, G. 130 n. 2

Page 247

232 Index

Shiffrin, S. 148 n.
Shoemaker, S. 13 n. 5, 14 n. 7
Shrage, L. 168, 177 n. 24
slavery 56, 66, 95 n., 148 n.

sexual 160
soliciting (in prostitution) 2, 183
Sorkow, H. 192 n. 7
Steinbock. B. 195 n. 11, 208 n. 27
Steiner, H. 79 n.
sufficiency:

and civilian service 58–9, 69
and Good Samaritanism 44
and organ confiscation 76–8, 102–9
and organ sales 145–6
and prostitution 156
and surrogacy 203
principle of 33

surrogacy:
as a labour contract 193–4
as an enforceable contract 2, 212–17
criminalization of 21, 196, 217–8
firms 196, 198, 217–8
full v. partial 186
see also autonomy, sufficiency

survival lottery 98 n.
Swales, J. K. 189 n. 4
Swanton, C. 17 n. 11

taxation:
and civilian service 58–9, 62–3, 68
and Good Samaritanism 42–7, 51–4
and inheritance 77–84, 94–5
and occupational choice 55–6, 105
and organ confiscation 105–6, 108
and organ sales 152

and prostitution 167, 169
voluntary v. compulsory 63–4

Thomson, A. 57 n. 6, 67 n., 71 n.
Thomson, J. J. 45 n., 98
Thoreau, H. D. 95 n.
Titmuss, R. 136–9
torture 111–12
Tunc, A. 40 n.

Uniform Anatomical Gift Act (1968) 1

Vallentyne P. 3 n. 1
Veatch, R. M. 79 n., 86 n. 12
Villiers, B. de 162 n., 183 n.
volunteerism, see altruism

Waldron, J. 24 n.
Wall, G. 17 n. 11
Walzer, M. 61 n. 10
Warnock, M. A. 192 n. 8, 195 n. 11, 200 n.
Weitzer, R. 177 n. 26
Wertheimer, A. 119 n., 120 n. 23, 121 n.,

142 n., 144 n. 19, 200 n., 202 n.
West, D. J. 162 n., 183 n.
West, J. 167 n. 10
Widdershoven, G. 73 n. 3
Wikler, D. 34 n. 26
Wilkinson, S. 190 n., 202 n.
Williams, B. 13–14, 34 n. 27
Wolff, J. 37 n.
Woodward, J. 208 n. 28

Zargooshi, J. 145 n.
Zyl, L. van 189 n. 3

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