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New Cannibal Markets

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Jean-Daniel Rainhorn
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Samira El Boudamoussi

Part 7. Mapping National and International Responses

Human Commodification: Professions, Governments, and the Need for Further Exploration

Alexander M. Capron

Texte intégral

1To explore the roles that the professions, governments, and international bodies can play in responding to the phenomenon of human commodification, we need first to understand the activities in question and second be clear about how, why, and by whom regulations are created. As to the former, the 2014 international research symposium “Globalization and Commodification of the Human Body: A Cannibal Market?” allowed us to compare human organ transplantation, medical uses of human tissues, the “brain drain” of health-care professionals, and assisted reproductive technologies; a comparative approach helps to illuminate important concepts that must be appreciated before we examine the means of regulating activities in these four fields. The first chapter reviewed the various activities that would be examined at the symposium as a way to begin reflecting on some basic conceptual issues. In my opinion, this comparative analysis is worthwhile primarily because it reveals that the movement of something from one body (or place) to another—which might explain the idea of “cannibalized” commodities—is actually not what is most important. Rather, what matters are the relationships underlying these activities when they occur in particular markets within actual cultural contexts.

2After comparing the four areas addressed at this symposium, I will turn to the ways that regulations have been or could be imposed on them, paying particular attention to the role played by the health professions, since all four fields depend upon health-care professionals and institutions to operate. I will argue that the different mechanisms used both nationally and internationally to regulate the use of human gametes, wombs, organs and tissues, and the international movement of health-care professionals have produced markedly different results. In particular, I will contend, first, that no single normative framework exists for the four fields, and second, that given the special role that physicians (and other health-care professionals) play in these activities, the considerable success achieved in several areas (particularly in protecting vulnerable persons as sources of organs and tissues) has depended heavily on the creation of a normative (and not merely technical) professional consensus, framed in terms of Hippocratic obligations and developed through collective action by the profession and through the profession’s interaction with international organizations.

Classifying the four fields as [market] commodities

3Why, then, might it be fruitful to examine these four fields as potential examples of a single phenomenon? Most basically, in all four, we find instances of something being bought and sold; that is, all involve markets, though as we shall see, all four could in theory—and, indeed, do—also occur at least in part outside the context of commercial relationships (Table 1).

Human organs and tissues

  • 1 Although manufactured goods are not traditionally classified as commodities, that label is sometim (...)

4A more basic question is whether all four areas involve commodities. Certainly the first two (organs and tissues) have many characteristics that fit within the traditional two-part definition of a commodity as “a raw material or primary agricultural product that can be bought and sold, such as copper or coffee” (Oxford English Dictionary).1 Some people would insist that both factors—the item is used in its existing state to create something more complex and the item is traded in a market—must be present to label something a commodity; in this view, a kidney that is removed for transplantation would become a commodity only if the person from whom it is removed received money for it. Other people would claim that a kidney that is given rather than sold still qualifies as a commodity, albeit one that exists outside a market, perhaps in a domain where the coin of the realm is allegiance to one’s friends or the larger community (Radin 1996). Furthermore, if the phrase “commodification of the human body” is taken to imply that the act of profiting financially from body parts, such as the sale of a kidney, commodifies the whole body—and hence, perhaps, the human person—then we will need to be clear whether, and why, the phenomenon of commodification would be avoided when the transfer of a kidney from one person to another does not involve money but does involve both (1) an objective evaluation of the particular kidney similar to what would occur with any other therapeutic product (e. g., for safety and suitability) and (2) the bestowal of certain non-monetary benefits on the donor (perhaps of a psychological or social sort). I will come back to this point because I believe that a major goal of regulating organ donation is precisely to try to instantiate the differences in attitude toward the human body in these two circumstances.

Table 1. Classifying potential human “commodities”.

Activity

Transfer? (Cannibalization)

“Raw material”?

Market?

Human organs for transplantation

Body to body [by physicians] (Donor → Recipient)

Yes

No (no payment “for the human body and its parts as such”)
Yes (on black market)

Human tissues for medical treatment

Body to body [by physicians & morticians] (Donor → Processors → Recipient)

When given: Yes
When used: No (processed)

Donation: No & Yes (some payments to procurers)
Distribution: Yes

Movement of MDs & RNs (et al.) between poor and rich countries

Country to country [directly]

No (service & time) (complex item)

Yes

Artificial reproductive technologies

Complex transfer [by physicians] (A → B → A)

Gametes: Yes
Gestation: No (service) (product: child)

Gametes: Yes
Gestation: Yes

MD medical doctor; RN registered nurse.

5Another characteristic shared by these first two activities implicates the question posed by this symposium: is this a setting in which we can say that one person cannibalizes another? In both cases—organs for transplantation and tissues used for therapy—something derived from one human body is incorporated in another. It seems significant, however, that the recipients in both cases are at least one step detached from the procurement, so that any cannibalization is undertaken by physicians and medical organizations as skilled intermediaries.

6“Cannibalization” suggests two more things that may be relevant. First, it reinforces a central aspect of commodification, that one thing is valued not in and of itself but as a source of material to benefit another, as when a repairman salvages parts from one computer to obtain replacement parts for others. Second, “cannibalization” brings to mind victimization and dehumanization. Some commentators have found both of these tropes at work in the acquisition and therapeutic use of human organs and tissues, particularly in contexts involving payments for organs or tissues, which are usually acquired from the bodies of the poor.

“Brain drain”

7While a plausible case thus exists that organs and tissues can be cannibalized commodities, it is difficult to deem it so for the third activity, namely, the cross-border movement of health-care providers from low-income countries where they were educated to high-income countries where they go to work. Clearly, with such “brain drain” something is transferred, not from a human body, of course, but from one country to another. Yet several problems arise in calling this a commodity.

8First, while this activity definitely involves a market—health-care professionals usually do expect to be paid—the thing that is being bought and sold is a service, not a good: what is transferred is a person’s labor not his or her body. Once the transaction is complete, the purchaser does not possess the thing that has been transferred (the healthcare professional’s time and effort) but rather owns whatever has been created through the person’s labor. Second, even were we to conceptualize that which has been transferred as a “thing,” it is not a “raw material” for making other products, but a form of complex labor provided by a nurse, physician, or other health-care professional. Nor is such labor usually regarded as a commodity in the sense of being fungible, since purchasers draw distinctions between one physician or nurse or another—indeed, the particular level of education, training, and demonstrable skill and expertise of each individual typically matters a good deal to the purchasers (who, by the way, are health-care institutions, not individual patients).

9Third, the entity from which something has been “cannibalized”—that is, removed for use elsewhere—is not an individual but a healthcare professional’s country of origin. Health-care professionals typically move abroad to practice their profession for the same reasons they choose to move from one institution to another within their home country: better income, better working conditions, better general environment for living, and so forth. If cannibalization is occurring here, it is at the social not the individual level, as the human beings involved are acting as autonomous agents, seeking to maximize their individual welfare under circumstances where they are not usually impelled to act by dire necessity and, indeed, usually have a range of options from which to choose.

Assisted reproduction

10Finally, where on this spectrum from an easy to a difficult argument for commodification and cannibalization should we place the symposium’s fourth topic, assisted reproduction? I believe it has characteristics of both, with the mix of the two varying based on the form of reproductive assistance involved. The earliest type of medically assisted reproduction was the use of “donor” gametes. Beginning in the 1920s, donations of fresh semen were used for what is called “artificial insemination, donor” (AID) when a male partner is infertile or carries a genetic condition that he does not wish to pass on. By the 1980s, donation usually involved freezing the semen in “sperm banks,” which now have large collections from which women wishing to become pregnant can pick a “donor” with characteristics that she wants (such as likeness to the general appearance of her husband or partner). The creation of in vitro fertilization (IVF) made possible the use of donated eggs to produce embryos for women who are unable or unwilling to use their own eggs; since the birth of the first child from a donated egg in 1983, the procedure has become increasingly common, and donor egg banks now exist in many places. From the outset sperm donors have been compensated a small amount for each “donation”—today about $60–70 per donation—which could be seen as payment simply for time and inconvenience, since the only risks are social and psychological (United States President’s Council on Bioethics 2004). Not surprisingly, when egg harvesting began, it was considered necessary and appropriate that egg “donors” would be paid (and more substantially than sperm donors, since the process is so much more burdensome and physically risky). In countries where payment is allowed, the amount can be quite large—from $3,000 to $50,000, based not merely on the risk but on the characteristics of the women from whom the eggs come. Gametes thus fit into the category of market commodities.

11When “surrogate motherhood”—today more commonly called “surrogacy”—began, it involved artificial insemination of the potential surrogate, meaning that she would be both providing the egg and gestating the fetus. While it is possible to consider the egg as a commodity, even when it remains in place in the surrogate, it is more sensible to regard it as commodified through its role in creating a child. Is the child then a commodity, since the surrogate is paid not merely to gestate it but to give it up to the waiting “social parents” when it is born? And the picture is actually further complicated by so-called “gestational surrogacy,” in which an embryo is created through IVF (using gametes either from one or both of the prospective parents or from other persons) and then transferred to the gestational surrogate in whom over the following nine months the embryo is transformed into a child, who is transferred after birth to the custody of the prospective parents. Is the surrogate thereby commodified or is she, like the physicians and nurses in the “brain drain” case, merely providing a service? If being a surrogate is described simply as labor rather than as an object, then it is highly constrained labor, especially in settings in South Asia where many Western couples now seek surrogates, who are enrolled in programs that tightly regulate their pregnancies—even separating them from their other children for the period of gestation, prescribing their diet and activities, and controlling their deliveries (commonly through Cesarean section).

12The men and women who provide third-party gametes for AID and IVF are increasingly evaluated for their suitability both by the physicians who make use of them and by the couples who appraise their characteristics and purchase their gametes, such that a true “marketplace,” with differential pricing, has begun to emerge. In contrast, it appears that the women who provide gestational services but not genetic material are treated as largely interchangeable, so long as they have been medically screened and are then controlled during their pregnancy by the physicians running the programs; they are selected for basic characteristics, not for skill or knowledge, and are expected to comply, not exercise individual choice. In this way, their labor or service is itself highly commodified and perhaps one can say their bodies are as well.

Regulations of medical practices

13How might activities such as these four possible “commodities” be regulated? That is, why, and by whom, are regulations created for activities that involve physicians and other health-care professionals? And in what circumstances do regulations impose prohibitions?

Reasons for regulating

14Three basic purposes deserve attention because of their possible application in the present context. First is the long history of regulations as a means to uphold public morality. The roots of this sort of control rest with organized religion, reflecting the close relationship between the state and religious authorities. The bases for such regulation have included not only punishing acts that would violate or undermine fundamental religious or moral principles (such as wrongfully taking human life) but also upholding more minor interests such as forbidding acts that would offend the public’s religious or moral sensibilities (or at least the sensibilities of the dominant group within the public, even when most members of the general public are not offended). Such regulation remains a feature of theocratic societies, but in modern liberal societies, public morality is seldom a ground for regulation and especially not for prohibitions, as each individual is assumed to be the best judge of the propriety of his or her own acts and how to balance moral with other considerations.

15This hardly means that liberal societies have abandoned regulation, however. Many rules exist to protect safety and promote welfare. In general, such regulations are justified based on the harm principle: that individuals are free to act as they choose except to the extent that their actions impose unconsented or unwanted harm on others or interfere with their important interests. Plainly, regulations that are supported by this second rationale may also uphold important moral or religious values—prohibiting murder serves both a moral goal (protecting the sanctity of human life) and instantiates the harm principle (since loss of life would usually amount to a great harm to one’s welfare). More controversial, however, are some public health and safety rules, including regulation of professionals (particularly in the health professions), in situations in which the risk is borne by someone who is willing to encounter it voluntarily. Such cases are criticized as instances of state paternalism: protecting people from themselves—but they may be more than that—and the harm principle may be satisfied—if the person constrained by the regulation in question imposes a risk of harm not only to him or herself but to others, either directly (the motorcyclist not wearing the required helmet who crashes when hit in the head while riding, causing harm to other motorists as well as himself) or indirectly (the person who suffers extensive injuries caused by the unlicensed health practitioner he chose, resulting in others, including the state, having to bear the costs of a great deal of medical care). In addition to commands backed by criminal sanctions, laws that promote individual and collective well-being and protect people from avoidable causes of harm also take the form of civil regulation (e.g., environmental, workplace and health-care rules), which not only prohibits certain conduct but may aim to steer people to “good” behavior through incentives.

16A third major purpose for regulating is to compensate for so-called “market failures”. For example, in the field of financial instruments, the issuers of stocks and bonds are subject to many disclosure requirements that are meant to overcome the inequalities that would otherwise exist in access to information. Legislators and regulators have also imposed disclosure rules in the medical field. A second barrier to a smoothly functioning market exists when one party’s dominant power in a relationship seriously interferes with other parties’ ability to choose or act voluntarily. In a medical as well as a commercial setting, this may result in a contract being rendered unenforceable. For example, most countries now have laws and regulations that prescribe what constitutes “informed consent” to participate as a subject in biomedical research, which aim both to provide information and to deny the validity of consent from those who would find it difficult, because of mental incapacity or being in a dependent or vulnerable position, to say “no” to a researcher.

Prohibitions

17Some forms of regulation merely adjust relationships that are shaped by the parties to the relationship, be they in a commercial or noncommercial realm. But, as already mentioned, some regulations also prohibit certain behavior and then punish violations of the prohibition. Sometimes, a market is legal but certain acts within that market are prohibited. Take for example, the sale of stolen cigarettes in circumstances where cigarettes may legally be bought and sold, or the sale of child pornography when making and selling pornographic depictions of adults is legal; in these cases, the prohibition is on selling a good obtained through violation of the rights of another person. The sale of human organs for transplantation could likewise be placed into this “legal market, prohibited product” category. In such a view, organs are usually produced in a “market” in which the price, in terms of payment to the living donor from whom the organ is procured (or the source’s family members in the case of deceased donation), is “zero” because legal transfers of organs are always unpaid gifts. The prohibition on putting a non-zero price on kidneys, that is, engaging in “organ commercialism,” falls into the category of a prohibition intended to protect against violations of the rights of others because such organs overwhelmingly come from impoverished and otherwise vulnerable people at the bottom of the socioeconomic ladder, a source that “leads inexorably to inequity and injustice” (Steering Committee of the Istanbul Summit). A related basis for the “legal market, prohibited product” category would be when the good is prohibited not because it is obtained in violation of the rights of others but because it violates a fiscal or safety regulation. A medical example would be the sale of fake medications, which would pose harm to consumers, as well as violating the economic interests of the makers of the genuine medication.

18An alternative ground for a prohibition is that an activity itself is illicit. In this view, organ sales are prohibited not because they are an illegal product in a legal market but because they constitute a distinct activity—entirely separate from the non-market arrangements by which freely donated organs are obtained and distributed—that should not be permitted. In other words, unpaid organ donation is not a “market” with a zero price but an endeavor based on a non-economic donation of human organs, whereas people who receive money for their organs are engaged in a financial exchange rather than in a donative act. Thus conceived, the latter activity would be prohibited not because it depends on harming the rights of particular people or violating a safety or other regulation, but rather because treating organs as something with a price denies that they (and by extension, the people from whom they come or could come) possess inherent, non-monetizable value (Sandel 2012).

Application of regulations to “cannibalized commodities”

19The topics examined at this symposium lend themselves to metaphorical description, starting with the very notion that physicians and others are involved in “cannibalization.” Yet, we cannot base regulations on metaphors. Rather, regulation must relate to particular harms to people and their interests and values, individually or collectively, that could be prevented through regulating behavior, including prohibitions on the activity in question. Collective action is appropriate when individual action cannot achieve the desired result (or at least not efficiently) or will not be forthcoming because individual actors cannot capture the benefit that would be produced were they to act to prevent the harm.

20I will now apply this analytic framework to the field of organ transplantation and leave to other symposium participants to explore its applicability to other areas. While “cannibalism” may be more of a trope when applied to the fields examined in this symposium, “commodity” is an apt description, especially for organs for transplantation, whether from living or deceased persons. So the central question is, for what purpose may such commodities be subjected to regulation?

Regulating to improve markets in human “commodities”

21Some prominent commentators have found the impetus for regulation in the need to overcome “market failure.” They concede that brokers in places such as Pakistan and the Philippines have for many years recruited very poor people to sell kidneys for small amounts of money (Working Group on Incentives for Living Donation 2012). Given their lack of knowledge and power, it is not surprising that such organ sellers are often cheated of the full payment they were promised and usually receive no monitoring or medical care on account of their organ “donation.” Although they hope to find relief from financial difficulties, the sellers typically end up worse off, not only physically but also financially (Budiani-Saberi and Delmonico 2008).

22The proponents of a regulated market recognize that this is not an instance where disclosure would be enough to remedy the failure of the market; instead, they argue that certain people should be kept out of the market. They propose to accomplish this by replacing those incentives, such as cash, that appeal to the poor with others, such as contributions to a retirement account or donations to an organization that an organ donor supports, that would appeal to potential organ sellers who would be better able to evaluate the risks of having a healthy kidney removed (Working Group on Incentives for Living Donation 2012). Further, contracts for the sale of organs would have to guarantee such benefits as long-term medical follow-up of the donor and provision of free medical care for problems that resulted from the organ donation.

23The central problem with regulating under a market-failure rationale is that it presupposes that an agreement to sell an organ is just like any other exchange into which anyone should have the liberty to enter if he or she wishes, subject to the minimal regulation needed to overcome imperfections in the market. Thus, once their highly restricted forms of payment fail to generate enough organs (people who are incentivized to act merely replacing those who would have been unpaid donors but do not wish to donate once the field has been commercialized), market advocates will not conclude that the market has failed, merely that the type and amount of payment has been unduly restricted. In short order, a remedy will be proposed to change the nature or size of the incentives to produce enough organs to prevent people from “dying on the waiting list” for a transplant (the goal that they present as the moral imperative for allowing as free a market as possible). The result will be to progressively loosen the restriction on incentives until the system arrives at those that we already know generate sellers, namely those that appeal to people who have no real alternative means of meeting a pressing financial need.

24Likewise, any restrictions on the manner in which organs are sold will be short-lived or not enforced. For example, a key provision of the regulated market formulated at a meeting on financial incentives held in November 2010 in Manila is that all donations are to be “undirected” and hence available to the organ allocation system for distribution to patients in the same manner as unpaid deceased donor organs at present (Working Group on Incentives for Living Donation 2012). But once organs have been removed from the category of things for which no payment is licit, then why should the person who receives an organ from a relative or close friend be prevented from expressing his or her thanks with a financial reward? Further, why would prosecutors have any incentive to go after kidney recipients who have offered potential unrelated donors some benefit beyond that provided by the official system for designating them to receive their organ? This is exactly what happens in Iran, the one country with a regulated market, where potential recipients make side-payments to kidney donors to speed up the process of getting a transplant.

Regulating to prevent harm

25If “market failure” is ultimately unpersuasive (and unworkable) as the basis for successful regulation of organ donation, what about the “prevention of harm” rationale? As already elaborated, it is widely agreed that allowing sales has resulted in harm to the individuals, especially those from poor and marginalized groups, who have parted with their organs for cash, and has also produced less beneficial results for organ recipients than unpaid donation. These well-known harms have resulted in opposition to all organ sales from professional bodies (Declaration of Istanbul Custodian Group 2014) and intergovernmental organizations (Council of Europe 1997; UN 2000; WHO 2010). In this view, only complete prohibition can avoid both the lack of voluntariness inherent in such sales and the injustice that purchased organs come almost exclusively from the poorest and most vulnerable people—as well as the further injustice that commercializing organs means they go disproportionately to the rich.

26Further, proponents of prohibition as the correct form of regulation argue that systems of paid and unpaid organ donation cannot exist side-by-side, for the former will always contaminate the latter, not only denying its need to exist (why ask a loved one to donate a kidney when the risk could instead be borne by a stranger who is paid to take it?) but robbing it of its dignity (if organs are market commodities, then the gift of an organ has no special dignity or worth). Further, the effect of a paid market in organs is to divert something that once served as a collective resource, given (heroically) by altruistic living donors and the families of deceased donors for the benefit of all, into a private market (Caplan et al. 2009). This diminution of the collective good is a further reason for the prohibition.

27Critics of prohibitions on organ sales argue that they must be justified by empirical proof (Satel 2009). Proponents point out that this is a field with a great deal of historical evidence, indeed what amount to natural experiments that establish the harm of commercializing organ donation (Danovitch 2013). Countries where organ sales have been tolerated or officially allowed have much lower rates of unpaid donation, and countries that have stopped allowing payment have experienced rapid development of unpaid donation claim, including from deceased donors. Moreover, an “experiment” with a regulated market is impossible; once the state declares that there is nothing wrong with treating human organs as such as a market commodity, how can the decision be reversed, either practically or ethically? Having been told that it is appropriate to get money for one’s kidney or one’s deceased relative’s organs, how many would now want to donate them for nothing? Having been told that human organs have a price, who will believe that they that have inherent value that cannot be expressed monetarily? How we describe things defines what they are—in this case, either market commodities or priceless expressions of love and fellow-feeling, offered through a noble and generous impulse to help another human being.

Regulating to protect a relationship

28Clearly, the considerations just presented sound like one of the reasons mentioned earlier for regulating conduct—to protect morality—that is seldom invoked today in liberal societies. I believe that would be a mischaracterization of how these considerations relate to banning organ sales, for it is not a question of controlling individual conduct that the majority in society finds offensive or distasteful. Rather, the argument rests on a claim that we are all directly harmed when an aspect of our being is framed in a manner that deprives us—even if we do not ourselves become an organ seller—of a conceptualization of ourselves as human beings and as members of a community. For that reason, opponents of organ sales have also insisted on creating transparent and equitable organ donation and allocation mechanisms to foster the responsibility of members of community, one to another, to create and celebrate this collective resource.

29The insistence that organs should be removed for transplantation only as voluntary, unpaid “gifts of life” raises a ground for regulation that is perhaps distinctive to acts that take place within another relationship, that between physician and patient. Sixty years ago, when the first kidney transplant took place between identical twins, the Harvard surgeons who performed the operations were criticized for violating their Hippocratic duties, for in removing a kidney from the donor they had made a healthy person less rather than more well-off. They, and the other transplant physicians who have followed them, have been able to reconcile this act with their ethical obligations, however, because when they are operating on living related donors they are in effect aiding someone who wishes to save (or greatly improve) the life of a loved one with organ failure, a goal that the donor can only achieve with the doctor’s aid. That desire serves not only to explain why the loss of the kidney is actually a benefit to the donor but why the donor has every reason to cooperate fully, for example by giving truthful answers during the physical and psychological screening that potential donors undergo. Not so the paid donor, whose motivation—to make money rather than to help the patient in need of a kidney—puts the physician-patient relationship on an entirely unethical plane. This harsh reality—along with the disregard of paid donors after the transplant—helps to explain the support of more than 100 national and international medical organizations, including the World Medical Association, to prevent using purchased organs in transplantation (Declaration of Istanbul Custodian Group 2014).

Conclusions

30Looking across the four fields examined at this symposium, we can see successes and failures in controlling—through regulations or even prohibitions—some of the “cannibalized commodities” (Table 2). I can offer only preliminary conclusions regarding what has happened in the other three fields, but I think that the results in organ transplantation support the conclusion that success is linked to the degree to which the leaders in field have recognized the profession’s responsibilities to deal with the problems raised. In the end, governments must act—these are not practices that the professions alone can control—but they need to be pushed to act, and medical professional in the field are—and should be—effective advocates.

31In the past 35 years, and particularly the past decade, the determination of medical leaders to combat organ commercialism, transplant tourism, and trafficking of human beings and transplantable organs has produced remarkable results, especially in Asian and Latin American countries that were major destinations for kidney patients from developed countries seeking a transplant more rapidly than they could obtain one at home. Organizations such as the Declaration of Istanbul Custodian Group brought urgency to the long-held positions of bodies such as the World Health Organization that all countries should strive to become self-sufficient in meeting the transplant needs of their own patients by developing deceased donation programs and prohibiting organ sales to stimulate live related donation. This meant directly lobbying many governments, both “sending” nations that provided financial support to their “transplant tourists” to obtain transplants abroad and “receiving” nations that lacked effective regulations. The medical organizations have also been very effective in putting pressure on physicians by barring reports about transplants that utilized purchased organs from being presented at their meetings or published in their journals.

32Yet, as indicated on Table 2, less success can be reported in the other fields examined at this symposium. In the case of medical tissues for treatment, those that most resemble organ transplantation have considerable regulatory success, such as that produced by the “no compensation” rules enforced regarding the donation of bone marrow for treatment by groups such as the Worldwide Network for Blood and Marrow Transplantation (WNBMT) and the European Tissue Banks Association (ETBA), which has adopted the WHO Guiding Principles for its members. For those tissues that are collected from cadavers and then processed, sorted, stored and distributed, however, there is a strong but not yet fully met need for regulation. In addition to the risk that poor populations will be exploited, a further concern is that when permission is given for deceased organ donation, families may not be fully informed either of the manner in which bones, ligaments, skin and other tissues may be harvested or of the commercial relationships between those operating the donation programs and the processors who obtain the tissues. Countries also need to cooperate in establishing and administering regulations that will allow uniform standards for materials of human origin, including mechanisms for vigilance and traceability.

33As to our third “commodity”—the education of health professionals who are then solicited to practice in another country—both nations and international bodies have not been terribly successful in preventing “brain drain.” Part of the problem comes from the current international commitment to trade liberalization, with even poorer countries entering into accession negotiations with the World Trade Organization. Under the General Agreement on Trade in Services (GATS), countries are obligated to permit several modes of trade, including not only the movement of capital and patients but also professionals. Further, regardless of trade agreements, draconian prohibitions on people (who happen to be health professionals) leaving one country for another (which is willing—indeed, eager—to admit them) would run into basic human-rights principles. Thus, the difficulties in establishing effective regulation in this field are well known, not the least because restrictions can easily have the effect of harming the individual skilled and educated persons who are sought out by a hiring country rather than hurting the hiring country which is the true originator of the harm.

Activity

Market?

Need for Regulation

Regulatory Successes

Human organs for transplantation

No (no payment “for the human body and its parts as such”)
Yes (on black market)

Harm-prevention: exploitation of poor & vulnerable populations
Risks to social values: placing a price on humans & their parts
Preserving relationships: citizens to community; physician to patient

SUBSTANTIAL SUCCESS
Professional: DICG, WNBMT, etc.
National: sales bans (reinforce each other)
Intergovernmental: WHO Guiding Principles & UN Protocols

Human tissues for medical treatment

Donation: No & Yes (some payments to procurers)
Distribution: Yes

Harm-prevention: exploitation of poor & vulnerable populations; traceability & vigilance for safety Risks to social values: placing a price on humans & their parts Preserving relationships: citizens to community; physician to patient Market-failure: inadequate disclosure to donor families regarding tissue harvesting

STILL DEVELOPING Professional: ETBA & WHO Guiding Principles (still being developed for medical products of human origin)

Movement of MDs & RNs (et al.) between poor and rich countries

Yes

Harm-prevention: to protect country’s health capacity
Fairness: to recoup investment in education of health-care professionals

MIXED RESULTS Regulation is constrained by GATS.
National: voluntary codes for recruiting & unclear obligations of health-care employers

Artificial reproductive technologies

Gametes: Yes
Gestation: Yes

Harm-prevention: exploitation of poor & vulnerable populations
Hype to paying patients (beyond evidence)

UNCLEAR
(patient payment over formal research)

DICG Declaration of Istanbul Custodian Group; WNBMT Worldwide Network for Blood and Marrow Transplantation; WHO World Health Organization; UN United Nations; ETBA European Tissue Banks Association; MD medical doctor; RN registered nurse; GATS General Agreement on Trade in Services.

34Finally, the field of medically assisted reproduction has been marked by decades of professional failure to impose strong self-regulation, even in the face of a number of highly publicized “scandals” at assisted reproduction facilities; when ethical standards have been articulated—such as the view that new techniques should be regarded as “experimental” and investigated formally before being used clinically—there has been no response to the widespread failure of practitioners to follow this dictate. Further, when countries have tried to regulate the field, they have tended to adopt half-measures, such as disclosure requirements (about success rates and the like) that aim to protect the people purchasing reproductive services rather than limiting the range of services that can be provided or protecting the women from whom oocytes are harvested or who gestate fetuses as “surrogate mothers.” Indeed, the reproductive technology field illustrates that once market commodification is allowed it will grow and, along with it, exploitation inevitably increases, driven by human needs and desires and facilitated by the extreme inequalities in wealth and power that are found not only between high-and low-resource countries but also within those countries.

35This review of the regulations is of course preliminary and incomplete. First, more needs to be added about all four fields—especially beyond organ transplantation, as to which I hope to have provided a fairly detailed picture. Second, I have not fully discussed the danger that some regulations—including prohibitions—raise costs and make activities less visible for monitoring. Further, “freedom of contract,” so beloved by market advocates, is not the only value that may constrain the creation and implementation of regulations. For example, one explanation of the difficulties that arise in regulating reproductive technologies is that rules that constrain what childless customers of such clinics can obtain run into the protection of the rights of women (and men) to control their own bodies and reproduction. Similar difficulties can arise in the other three areas, and further reflection on regulations as well as on commodities will be needed.

36I return, then, to the conclusion with which I began, that it is less the extent of commodification and more the risk of harm, which is aggravated by economic inequalities, that motivates regulation of these fields, and that success in regulation depends heavily on professionals identifying the steps that they can take—directly or through official rules—to protect the public, to improve access to care, and to honor the nature of their relationships with all who are involved, especially persons at risk of being treated as things rather than as human beings.

Bibliographie

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Notes

1 Although manufactured goods are not traditionally classified as commodities, that label is sometimes applied when products in a group are regarded as generic and interchangeable, such that purchasers select among them on grounds of functionality and price rather than any special qualities; when goods have come to be regarded as “mere” commodities because they are very similar and utilitarian (such as basic laptop computers or coach-class airline seats), manufacturers have to expend great efforts to induce consumers to differentiate among them by brand rather than treating them as fungible and differentiating only on price or accessibility.

Auteur

Lecturer in health ethics at the Centre for Health Equity, School of Population and Global Health, University of Melbourne, Australia. Her bioethics research focuses on ethical issues related to procurement, distribution and use of medical products of human origin, particularly where these arise in the transnational setting. She is a member of the Council of the Declaration of Istanbul Custodian Group, and cochair of the Ethics Committee of The Transplantation Society.

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