There is no greater paradox in bioethics than its tendency to constantly rediscover, in every conceivable venue, that the only way to honor and preserve the dignity and freedom of huddled, exploited masses is to trim away their decisional authority and appoint panels of well-educated, rational thinkers (such as bioethicists) to lay down the reasonable options for them. Bioethics cannot claim to be the first field to impugn the rationality of the oppressed as a means of upholding their dignity.1
Karl Marx should be regarded as the godfather of this movement. Before Marx, the downtrodden were characterized for the most part as mean and stupid (alas, in an age of democracy, not a very effective way of gaining their constituency). Marx, on the other hand, claimed to discover that a certain, very large sector of the downtrodden (the proletariat) were actually commendable people who had been unjustifiably victimized by the operation of capital. Marx's account of the inevitable rise of the proletariat was couched in the language of science—as a predictable consequence of the operation of nonpersonal economic forces. This account left very little space amid the proletariat for three traditional cornerstones of human dignity: understanding, deliberation, and personal choice. For Marx, these qualities resided only in an enlightened subspecies of the communiste. The valorization of the proletariat did not, of course, prevent Marx from suspiciousness of the lowest classes. He warned, for instance: “The ‘dangerous class,’ the social scum, that passively rotting mass thrown off by the lowest layers of old society, may, here and there, be swept into the movement by a proletarian revolution; its conditions of life, however, prepare it far more for the part of a bribed tool of reactionary intrigue” (Marx K, Engels F. The communist manifesto. In: Tucker RC, ed. The Marx-Engels Reader. New York: W.W. Norton; 1978:482). The contemporary bioethicist, however, is hardly a Marxist, but much closer to what Marx called the “bourgeois socialist”—hoping for a bourgeois without a proletariat, yet couching this hope in proworker rhetoric that Marx and Engels derisively sum up with the slogan: “the bourgeois is a bourgeois—for the benefit of the working class” (p. 497).
Yet some thinkers, including some bioethicists, stubbornly persist in the commonsense belief that the best way to respect others' dignity is to believe what they say about themselves and to respect their decisions, especially as these decisions pertain to property that is legitimately theirs. Mark Cherry is such a thinker. And his recent book on organ transplantation and the market, where rights of self-ownership and personal choice mount a bumptious challenge against constrained giving, is a tour de force in the annals of dissent.
Cherry's book is extraordinary in several ways. First is its depth of reasoning. Prevailing arguments against the legalization of an organ market are engaged seriously—and exhaustively. For instance, in the first chapter Cherry introduces antimarket arguments hinging on respect for human dignity, avoidance of exploitation, moral repugnance, equality, and enhancing healthcare outcomes. In subsequent chapters numerous variations of these arguments are examined in considerable detail—as the author engages issues about burden of proof, empirical support, and ideological presupposition. Counterarguments are then sharply crafted to the contours of the current controversy.
Second, the book transcends mere theoretical disquisition and empirical analysis, bringing prevalent strains of political theory vividly to life. From the perspective of an educator, this is Cherry's most breathtaking achievement. The usual approach to teaching public policy in bioethics is either (1) to examine major theoretical works or summaries of authors such as Rawls, Nozick, Daniels, and Engelhardt and then proceed with a few illustrative cases or (2) to offer a single embedded, cosmopolitan “method” as a lens through which several issues are examined. The first approach produces glazed eyes, incomprehension, and boredom. The second reduces political theory to the level of a sophisticated nursery rhyme. Kidney for Sale by Owner, on the other hand, begins with a fairly well-circumscribed problem and, in the process of presenting a readable, detailed, clear-headed response, waxes impressively on political theory—covering virtually every major contemporary and classical school of political theory. For many students, I suspect this is the only way, or at least the best way, to impart basic theory.
Third, the book links the discussion of property with the discussion of personhood in a very provocative and fruitful manner.2
I do wish, however, that Cherry had pressed the issue a little further, for instance, by revisiting Michael Sandel's penetrating treatment of possession and desert (Sandel MJ. Liberalism and the Limits of Justice, 2nd ed. New York: Cambridge University Press; 1998, 66–103). Like Sandel, I have struggled to comprehend just where, precisely, Rawls and his followers locate the human person. As I read Cherry's account, it occurred to me that some Rawlsian bioethicists seem to locate the person in his/her body or organs.
The higher brain is a special case because it is “necessary for embodiment.” Likewise the heart and cornea are cited as examples of organs that are “necessary for adequate human functioning.” Not all organs fit into these categories, Cherry observes.
Cherry points out that in a futures market the organs are not harvested from a living being, and hence that arguments hinging on worries about the poor being manipulated into self-mutilation do not apply to these versions of the organ market.
Cherry leans heavily on Locke and Nozick in constructing his account of property and political authority (pp. 127–133, 137–146).
Finally, as I noted above, the book mounts a Herculean assault on the rapidly petrifying orthodoxy in bioethics—directed not merely at the canon on organ transplantation, but also at bioethics' increasingly reflexive treatments of issues pertaining to social justice and the nature and authority of moral consensus. For instance, in the chapter on the moral and metaphysical basis for political authority, Cherry notes that efforts to link political authority to the preservation of liberty vary significantly depending on the working conception of liberty. Bioethics, in consonance with contemporary liberal cosmopolitan ideology, tends to view liberty either as “entitlement to realize one's abilities and choices” (liberty1) or as “acting according to an ideal, rather than an actual, account of free choice, informed by rationally discoverable, universal moral norms” (liberty2). Political authority in such accounts diverges radically from political authority as it is understood in traditional societies, where liberty is conceived as “a context-full way of life, fully embedded within a particular cultural or religious context” (liberty3), or from political authority as it is understood by classic liberals, where liberty is conceived as freedom from interference (liberty4) (p. 47). Cherry observes that liberty1 and liberty2, although allowing for internal variations that are more striking than those found with liberty3, fail to accommodate substantive moral diversity. Substantive moral diversity, he argues, requires liberty4 and is hardly upended by a consensus of ideologues (e.g., bioethicists) asserting the authority of group-specific moral intuitions that favor liberty1 or liberty2.
I will not attempt to reconstruct or summarize Cherry's detailed arguments here. The book is simply too dense, and too good, for that approach to bear fruit. For the most part, I think his treatment of respect-for-persons issues (Which policies actually accord persons the respect they are due?) is more elaborate and convincing than his treatment of effectiveness issues (Will the market produce better or worse results, medically speaking, than the current system?). For instance, in addressing the concern that an organ market will erode scientific standards, Cherry pretty much sticks with familiar but contended arguments that markets link profit maximization with quality and that product liability adequately protects consumers (pp. 102–7). However, there is much to commend on both fronts.
Cherry does, indeed, come down on the side of the organ market. In this regard, much of what he writes will be regarded as shocking and irreverent. However, none but the most ideologically pure and intellectually bereft will be able to discount this work. It invites serious study and commentary. It towers both topically and as a general introduction to issues in contemporary political philosophy. It will be a landmark.
