Regulating the Organ Market: Normative Foundations for Market Regulation

30 Pages Posted: 4 Nov 2014 Last revised: 4 Apr 2015

Date Written: November 3, 2014

Abstract

Should organs for transplant be bought and sold? There is a developed literature providing various arguments against organ markets and/or refuting those arguments. There is also a developing literature on potential regulations or redesigns of the organ market that would be desirable. There has been less dialogue between these two literatures than one might expect, in part, I suspect, because (i) those who seek to offer arguments to ban the organ markets altogether have been less interested in helping to shore up their opponents’ positions or provide mechanisms by which their concerns may be blunted, and (ii) because many who are interested (or have sophisticated training) in deep normative questions of freedom, rights, and justice find themselves less interested (or have less sophisticated training) in regulatory design questions, and vice versa.

I try to bridge this gap in this article, one of two I did for this issue of Law and Contemporary Problems (the other is "Organs Without Borders? Allocating Transplant Organs, Foreigners, and the Importance of the Nation State (?)" and can be found at http://ssrn.com/abstract=2511901).

Part II of this Article maps normative arguments against the sale of organs on to regulatory proposals for “organ markets.” Those who oppose organ sale may oppose it for a number of different normative reasons independently or in conjunction, and my goal is to show to whether someone who opposes the sale of organs for X normative reasons can nonetheless support some forms of a regulated organ market. My goal might also be put in more positive terms, to show those who are unsure about whether organ markets are a good idea what forms of regulation would make organ markets worthwhile to pursue. In this part I largely suspend judgment about the validity of each of the normative critiques I set out and instead in good faith examine to what extent regulation can deal with them.

In Part III I add to the literature on regulated organ markets by engaging a particular type of argument related to just distributions that has been offered as a reason to be concerned about organ markets. More specifically, I press on the assumption that the distribution of organs in systems where compensation is prohibited is itself a just baseline against which to measure the distribution that results when compensation is permitted.

Keywords: organ transplant, market design, taboo trades, commodification, exploitation, corruption, justified, philosophy, economics paternalism, distribution, crowding out

JEL Classification: D4, H4, I1, I11, I28, K1, K10, K32, K42

Suggested Citation

Cohen, I. Glenn, Regulating the Organ Market: Normative Foundations for Market Regulation (November 3, 2014). Law and Contemporary Problems, Vol. 77, No. 3, 2014; Harvard Public Law Working Paper No. 15-02. Available at SSRN: https://ssrn.com/abstract=2518385

I. Glenn Cohen (Contact Author)

Harvard Law School ( email )

1525 Massachusetts Avenue
Griswold Hall 503
Cambridge, 02138
United States

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