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Are Bans on Kidney Sales Unjustifiably Paternalistic?

9 Pages Posted: 21 Feb 2014  

Erik Malmqvist

Université Paris V Rene Descartes

Date Written: March 2014

Abstract

This paper challenges the view that bans on kidney sales are unjustifiably paternalistic, that is, that they unduly deny people the freedom to make decisions about their own bodies in order to protect them from harm. I argue that not even principled anti‐paternalists need to reject such bans. This is because their rationale is not hard paternalism, which anti‐paternalists repudiate, but soft paternalism, which they in principle accept. More precisely, I suggest that their rationale is what Franklin Miller and Alan Wertheimer call ‘group soft paternalism’. Group soft paternalistic policies restrict the freedom of autonomous individuals, not for their own good (hard paternalism), but as an unavoidable consequence of seeking to protect other, non‐autonomous individuals from harms that they have not voluntarily chosen (soft paternalism). Group soft paternalism supports prohibiting kidney sales on three conditions: (1) that such sales are potentially harmful to vendors, (2) that many vendors would suffer impaired autonomy, and (3) that distinguishing between autonomous and non‐autonomous vendors and interfering only with the latter is unfeasible. I provide reasons for thinking that these conditions will often hold.

Keywords: paternalism, liberty, kidney transplantation, kidney sales

Suggested Citation

Malmqvist, Erik, Are Bans on Kidney Sales Unjustifiably Paternalistic? (March 2014). Bioethics, Vol. 28, Issue 3, pp. 110-118, 2014. Available at SSRN: https://ssrn.com/abstract=2399255 or http://dx.doi.org/10.1111/j.1467-8519.2012.01984.x

Erik Malmqvist (Contact Author)

Université Paris V Rene Descartes

31, avenue Bosquet
Paris, 75270
France

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