Recently (27 January
) the Scottish Review
published an essay in which I discussed rights. I thought the topic was worth discussing because rights seem to be central to moral discourse at the moment. Rights, especially human rights, are claimed over many issues which the original writers on natural rights could not have imagined. One drawback of the prevalence of the vocabulary of rights is that it has eclipsed the rich vocabulary we already have to discuss moral issues. Rights offer as it were a moral lens through which we see problems, but sometimes a problem comes up which is too complex to be viewed by means of this lens.
When I was teaching – both medical students and philosophy students – I tried occasionally to use examples which brought out the need for a broader moral vocabulary. One example which always stirred up animated discussion was the sale of kidneys and other bodily parts. Students were always enthusiastic about individual autonomy, or the importance of freedom and rights to do what you wanted provided you weren't harming others. Having got students fired up with a rights/duties approach, I then posed the question: if you are in favour of individual autonomy what, if anything, is wrong in selling (as distinct from donating) your bodily parts, such as kidneys?
Consumerism with its built in system of rights and duties requires fair, free and informed contracts. If someone wants to invoke this system to sell an organ such as a kidney, why shouldn't they? I have a property in my own body so what is wrong with selling a part of it? The first response was usually that such a sale is illegal. Okay, but it could be legalised, and the question is whether it should be. Other students said that it puts the donor at risk and surgeons should not put a patient at risk even to benefit another patient. Yes, but although there are risks, as with any surgical procedure, in the hands of a skilled surgeon the risks are minimal and the benefits for the recipient of the kidney are considerable.
Another common argument was that it involves exploiting the poor for the benefit of the rich. But that need not be the situation. The price must be right and decided by some impartial judge. Moreover, the recipient need not be someone who is rich – in the UK, the NHS could set up a system to distribute the organs according to need. More positively, it could be argued that a poor family should not be deprived of an opportunity to bring financial relief to their children. Parents sometimes donate a kidney for the benefit of a child and that is praised as altruism. So why is it not also altruistic for a poor father or mother of a family to make the sacrifice not only to benefit the recipient of the organ but also to bring much needed financial assistance to their family?
It was common and acceptable in the 19th century for poor women to sell their hair. The usual reply to that kind of argument was that hair is renewable (for some people!) but a kidney is not. While that is true, it is not a decisive argument. People can live a long and vigorous life with only one kidney.
The final argument I remember from these long-ago discussions is that the tissues or organs sold are not necessarily safe; they may be infected. Those using that argument pointed to the considerable harm that was done to patients in the 1960s-70s by the use of contaminated blood purchased from overseas, an issue not yet fully resolved. This is true but it indicates a serious failing on the part of the doctors who used contaminated blood without rigorous checks, not with the procedure itself.
The conclusion I wish to draw from this is that even when the students admitted that their arguments against the sale of organs were not convincing they were still unhappy about the idea. I pointed out that there could be a contract drawn up with a fair price and witnessed, and that the operations carried out by competent surgeons were for the considerable benefit of the recipients, and the money involved was for the benefit of the donor's family. So what's wrong? Why should the students be uneasy? The answer is that there is more to morality or ethics than rights and duties.
In order to bring this out, I shall discuss a short novel by Graham Greene entitled The Tenth Man
. (I owe this example to Carl Elliott, a doctor and one of my former PhD students.) The story begins towards the end of the Second World War in occupied France. The Nazis have taken hostages and, when the French Resistance attack or blow up some installation, there are reprisals. The Nazis require that some hostages be shot. The Nazis do not care who is shot so they leave it to the hostages to make that dreadful decision for themselves. After some arguing, the hostages draw lots. One of the hostages who draws the short straw is a rich lawyer called Chavel.
Chavel offers to sign a contract making over all his wealth and property to the relatives of anyone who will be shot in his place. A poor man called Janvier agrees. A legal document is drawn up and signed in front of witnesses including the mayor of the town who is also a hostage. Janvier is duly shot, and Chavel's wealth and property is made over to Janvier's family. That concludes the opening chapter of the short novel. The rest of the novel concerns the life of the former rich lawyer Chavel after the war.
The novel has many interesting and surprising twists and turns, but what is important for the argument of this essay is that Chavel does not feel good about himself; he feels guilty, and tries to conceal his identity. Yet, if we confine our attention to a morality of rights and duties, what has he done wrong? No-one was in the least forcing Janvier to agree to this contract. He entered into it because he was motivated by an altruistic desire to assist his (twin) sister and elderly mother.
In terms of a rights and duties approach to morality, no-one can be faulted. Janvier is intending to assist his family and is making a free and informed decision, and there is a free and witnessed contract. Some students said that in a sense Janvier was committing suicide. Perhaps, but people sometimes harm themselves for the sake of others – it is called 'self-sacrifice' – and it happened all the time during the Second World War.
But the question remains: why should Chavel feel guilty about entering into this contract? There seems to me to be no reason in terms of a moral framework of rights and duties. It might be argued that what Chavel's subsequent behaviour and feelings exhibit is really fear of how others might see him. There is something in that, but the outcome of the story – and I won't spoil it for readers! – seems against that interpretation because Chavel wishes and succeeds in making some restitution.
In sum, even if contemporary morality is typically discussed in terms of rights and duties, there seem to be a number of moral concepts outside this framework. They would include concepts such as shame, honour, self-sacrifice, self-respect, love, humility, and so on. None of these on their own settle the question of a market in organs, but they bring out that some moral problems cannot be settled in terms of rights and duties. In the post-pandemic world, we should all be aware of the wide range of moral concepts needed to cover the complexity of real-life situations. Literature can be of assistance here, and I recommend Graham Greene's short novel The Tenth Man
Robin Downie is Emeritus Professor of Moral Philosophy at the University of Glasgow