Moral repugnance, moral distress, and organ sales.

Journal of Medicine and Philosophy Advance Access published April 23, 2015 Journal of Medicine and Philosophy doi:10.1093/jmp/jhv006

Moral Repugnance, Moral Distress, and Organ Sales JAMES STACEY TAYLOR* The College of New Jersey, Ewing Township, New Jersey, USA

Many still oppose legalizing markets in human organs on the grounds that they are morally repugnant. I will argue in this paper that the repugnance felt by some persons towards sales of human organs is insufficient to justify their prohibition. Yet this rejection of the view that markets in human organs should be prohibited because some persons find them to be morally repugnant does not imply that persons’ feelings of distress at the possibility of organ sales are irrational. Eduardo Rivera-Lopez argues that such instinctive distress is an appropriate response to the (rationally defensible) perception that certain kinds of arguments that are offered in favor of legalizing organ sales are “in an important sense, illegitimate.” Having argued that repugnance should not ground the prohibition of markets in human organs, I will also argue that the moral distress that some feel towards certain arguments that favor such markets is not rationally defensible, either. Keywords: kidneys, Leon Kass, markets, moral distress, organ sales, repugnance I. INTRODUCTION In recent years, powerful arguments have been offered in favor of legalizing markets in human organs purchased from living adults.1 Despite the power of these arguments, however, many still oppose legalizing markets in human organs on the grounds that they are morally repugnant.2 Moreover, as the Office of Technology Assessment of the U.S. Congress has recognized, this “moral repugnance at the notion of a market in human body parts” frequently leads those who experience it to develop arguments to justify their revulsion (U.S. Congress, Office of Technology Assessment 1987, 117). In © The Author 2015. Published by Oxford University Press, on behalf of the Journal of Medicine and Philosophy Inc. All rights reserved. For permissions, please e-mail: [email protected]

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*Address correspondence to: James Stacey Taylor, PhD, Department of Philosophy, Religion, and Classical Studies, The College of New Jersey, 2000 Pennington Road, Ewing Township, NJ 08628-0718, USA. E-mail: [email protected]

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such cases, the weight of the opposition to markets in human organs is carried by the arguments that have been developed, rather than by the revulsion that stimulated them—and so if they fail, the opposition to markets in human organs that they support fails too. At times, however, the repugnance that some persons feel towards organ sales is held to be indicative of the wrongness of such markets independently of any arguments that might be provided to show why such markets are immoral. The most prominent proponent of this approach to settling moral questions is Leon Kass, who, in “The Wisdom of Repugnance,” famously wrote that “In crucial cases…repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it” (Kass, 1997, 20). I will argue in this paper that the repugnance felt by some persons towards sales of human organs is insufficient to justify their prohibition. Persons who propose prohibiting the sale of human transplant organs for this reason must explain both which feelings of repugnance are specifically feelings of moral repugnance, and which feelings of allegedly moral repugnance justify such prohibitions. To achieve these goals, they must accept that their feelings of repugnance should be superseded by the arguments (if any) that they will offer to provide such explanations. Yet this rejection of the view that markets in human organs should be prohibited because some persons find them to be morally repugnant does not imply that persons’ feelings of distress at the possibility of organ sales are irrational. In an important paper, “Organ Sales and Moral Distress,” Eduardo Rivera-Lopez argues that such instinctive distress is an appropriate response to the (rationally defensible) perception that certain kinds of arguments that are offered in favor of legalizing organ sales are “in an important sense, illegitimate” (Rivera-Lopez, 2006, 23). And, claims Rivera-Lopez, this is so even if it is true that the legalization of organ sales “might not be wrong all things considered” (41). Although Rivera-Lopez’s arguments for this conclusion are clear, elegant, and, at first sight, persuasive, they suffer from three errors, two of which are fatal. First, there is a lacuna in part of Rivera-Lopez’s argument (that which concerns his Autonomy Argument). This lacuna, however, does not present a serious problem for his view, for it can be rectified. Second, Rivera-Lopez’s account of why persons feel moral distress at the prospect of legalizing sales of human organs is seriously flawed. As such, he not only fails to explain why it is that persons experience such distress, but he also fails to show that such distress is rational. Finally, even if RiveraLopez’s arguments concerning moral distress were correct, they would not support his view that certain arguments that are offered by advocates of organ sales are not legitimately available to them if they are political agents located within an unjust society. In this paper, then, I will show that not only is the moral repugnance that some persons feel towards organ sales insufficient to ground their prohibition, but the moral distress that some feel towards certain arguments that are

Moral Repugnance and Distress

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offered in their favor is not rationally defensible, either. As such, we should move away from opposing both organ sales and the legitimacy of certain arguments offered for them on the grounds of moral repugnance and moral distress in favor of a more reasoned approach to the question of whether or not they should be legalized. II. MORAL REPUGNANCE

To deprive oneself of an integral part or organ (to mutilate oneself), for example, to give away or sell a tooth so that it can be planted in the jawbone of another person, or to submit oneself to castration in order to gain an easier livelihood as a singer, and so on, belongs to partial self-murder. (Kant, 1964, 185)

And, for both Kant and Kass, “Man contradicts his rational being by treating his body as a mere instrument,” for “[to] dispose of oneself as a mere means to some end of one’s own liking is to degrade the humanity in one’s person (homo noumenon), which, after all, was entrusted to man (homo phaenomenon) to preserve” (185). For Kass, then, persons’ feelings of revulsion at the idea of commodifying human organs stem from an innate recognition that to treat a part of one’s body “as a mere means to some end of one’s own liking” is immoral, because it goes against a person’s nature as a rational being.4 Such treatment of a human body goes against the recognition that it “belongs in that category of things that defy or resist commensuration,” and that “the bulk of… [its]…meaning and… [its]…human worth…do not lend


The most prominent contemporary proponent of arguments from repugnance is Leon Kass. For Kass, we are revolted when we consider certain things being done, for we “intuit and feel, immediately and without argument, the violation of things that we rightfully hold dear” (Kass, 1997, 20).3 Such revulsion thus acts as a guard against a situation “in which everything is held to be permissible so long as it is freely done,” a situation in which “our given human nature no longer commands respect” (20). Furthermore, for Kass, such revulsion is not to be understood merely to be a useful catalyst for the generation of an argument as to why the acts that we are revolted by are indeed morally repugnant, and thus fit objects of this emotion. Indeed, claims Kass, any such argument would be suspect as an attempt to “rationalize away our horror,” which he understands as being “the emotional expression of [a] deep wisdom whose legitimacy as a guide to conduct needs no rational justification” (20). Kass believes that the “idea of commodification of human flesh repels us” in this way (Kass, 2002, 193). He experiences “revulsion” at the very idea, and believes that many others share his “untutored repugnance at the thought of markets in human flesh” (179, 181). For Kass, such revulsions are, “like the human body they seek to protect,” “the very embodiment of reason” (184). Quoting Kant, Kass writes:

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III. WHY ARGUMENTS FROM MORAL REPUGNANCE FAIL In holding both that organ sales are morally repugnant and that it is not clear that they are immoral, Kass has undermined his own anti-market argument from repugnance. Kass’s certainty that organ sales are morally repugnant and his lack of certainty that they should be legally prohibited shows that it is possible both to believe that something is morally repugnant, and yet still to doubt that it should be banned.5 As such, the proponents of


themselves to quantitative measures; for this reason, we hold them to be incommensurable not only morally but factually” (Kass, 2002, 194). To be sure, Kass acknowledges, one might respond to the claim that the human body is factually incommensurable with other objects by noting that the use of money “solves by convention the problem of natural [i.e., factual] incommensurability,” and so one might claim that the body and its parts are not as incommensurable with other objects as Kass holds. Yet, claims Kass, “the purpose of instituting such a conventional measure [i.e., money] was to facilitate the satisfaction of natural human needs and the desire for well-being, to encourage the full flowering of human possibility” (194). Thus, since to treat parts of one’s body as mere means to the fulfillment of one’s desired ends is to treat them in an unnatural fashion, claims Kass, money should not be used to render the human body and its parts commensurate with other objects, and so it should remain “not only morally but factually” incommensurate with other goods. Thus, concludes Kass, in “Selling our bodies, we come perilously close to selling our souls.” Indeed, he claims, “There is even a danger in contemplating such a prospect; for if we come to think about ourselves like pork bellies, pork bellies we will become” (195). Kass recognizes that his arguments against organ sales “are not easy to make,” for “their appeal is largely to certain hard-to-articulate intuitions and sensibilities that I at least consider to belong intimately to the human experience of our own humanity” (Kass, 2002, 196). Moreover, Kass is also openly ambivalent about the morality of using markets to procure human transplant organs. Although he acknowledges that he feels revulsion towards such sales and believes that this revulsion is indicative of their immorality, he also accepts that “offering financial incentives to prospective donors could very well increase the supply—and perhaps even the quality—of organs.” As such, “Because of our scruples against sales, potential beneficiaries of transplantation are probably dying…also true, their benefactors, actual and potential—unlike the transplant surgeons—are not permitted to reap tangible rewards for their acts of service” (179). Moreover, Kass admits that he thinks that he would readily sell one of his own kidneys, “were the practice legal, if it were the only way to pay for a lifesaving operation for my children or my wife” (179).


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pro-prohibition arguments that are based on claims that the practices whose prohibition is in question are morally repugnant will have to show why it is that the mere fact that something is found to be morally repugnant legitimates prohibiting it. Indeed, we have good reason to believe that feelings of repugnance that are held to be feelings of moral repugnance towards certain practices do not warrant their prohibition. Even if we believe that what is immoral should be prohibited—a view that is itself highly contentious—the proponents of the argument from repugnance must, as Mark Cherry notes, provide “some understanding of the criteria for identifying and ranking the emotions that are to qualify” (Cherry, 2005, 40–41). We need to know, for example, whether

These questions are especially pertinent in the debate over organ sales, for it is clear that many practices that were formerly the objects of widespread moral revulsion (e.g., mixed-race marriages, or homosexuality) are now widely considered to be morally neutral. Furthermore, it is indisputable that persons’ views concerning what is and what is not morally repugnant not only change over time, but also vary considerably. Similarly, Kass provides as examples of practices that clearly evoke horror the eating of brains or mice (Kass, 2002, 184). But neither brawn nor a dish of glis glis (edible dormice) would evoke anything but gustatory anticipation in many rural households in England.6 Moreover, Kass’s examples here show that the mere fact that something evokes disgust does not thereby show that it is immoral, or that it should be prohibited.7 For example, although many fungi might evoke strong feelings of disgust in many persons such disgust is not moral disgust. Thus, not only must the proponents of arguments from moral repugnance provide an account of whose repugnance is worthy of consideration, and why this is so, but they must also provide an account of when a person’s repugnance towards a certain practice is actually moral repugnance. As such, then, the proponents of such arguments must justify their feelings as being both morally laden and sufficient to ground the prohibition of the practices that are their objects. In offering such justifications, the proponents of the arguments from repugnance would need to go beyond their feelings of repugnance, to provide reasons for such feelings. In so doing, however, they would cease to draw their primary support from feelings of repugnance that they consider to be moral repugnance, instead drawing it from the reasons that they have offered to justify those feelings. Once the proponents of the arguments from repugnance are pressed to answer the questions that they must answer, the focus of their concerns must shift from their raw feelings to the justification


…all emotive reactions, by all parties, point to important moral features of a situation? Which emotions should we take as authoritative and how should we quantify them intra- and interpersonally? And if the emotive reactions differ among persons, how can…[we]…identify those that, as morally appropriate, ought to guide the formation of public policy versus those that ought to be ignored, if not actively discouraged? (41).

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of these feelings. Despite Kass’s claim that any such rationalization of one’s feelings of moral repugnance would be “suspect,” it instead appears that not only is such rationalization necessary for the views of the proponents of arguments from repugnance to carry any weight at all—but that without it we have little reason to accept them. Thus, despite the claims of those who level arguments from repugnance against organ sales, their objections to the commodification of human transplant organs will stand or fall depending on the arguments with which they are supported. IV. THE RATIONALITY OF MORAL DISTRESS Downloaded from http://jmp.oxfordjournals.org/ at EPFL Lausanne on November 14, 2015

It seems, then, that despite Kass’s claims to the contrary the moral repugnance that some persons feel towards the idea of organ sales does not carry within it any unarticulated wisdom. Instead it is, at base, merely an instinctive and nonrational response to a practice that some persons find unpleasant that should be superseded in the debate over the legalization of organ sales by rational argument. Yet although this conclusion might seem to be supported by the above arguments, Rivera-Lopez argues that the “moral distress” that some persons feel towards proposals to legalize organ sales does indeed have a rational basis—and one that does not merely exist ex post facto. Rivera-Lopez begins his discussion of moral distress by outlining two strong arguments in support of the legalization of markets in human organs: the Consequentialist Argument and the Autonomy Argument. The Consequentialist Argument is that “Organ sales should be legalized because of the global beneficial effects. The practice would significantly reduce the actual scarcity of organs for transplant, which would mean that many lives could be saved” (Rivera-Lopez, 2006, 41). The Autonomy Argument is that organ sales should be legalized because if they continue to be prohibited “the autonomy-restricting effect of the prohibition denies the potential seller the best option” that she has given her circumstances (42). Having outlined these two pro-market arguments, Rivera-Lopez then describes “the morally relevant features of the sort of situation in which the practice of organ sales would take place if it were legalized” (42). There are four such features: that the sale of (for example) a kidney is harmful for the seller, that it is beneficial to another person, that legalizing organ sales benefits society, and that such sales are, all things considered, beneficial to the seller.8 Rivera-Lopez then argues that organ sales are most likely to take place when an “unjust situation” holds. According to Rivera-Lopez, it would be sufficient for a situation S to be unjust for a person A, if it involves severe suffering and deprivation for her, if it is not unavoidable, in that there are political agents who could remove or mitigate A’s suffering, and that these agents fail to fulfill their obligations to take such measures (43).9


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With these points in hand, Rivera-Lopez argues that the moral defect of a situation (e.g., its injustice) can prevent persons who are responsible (at least in part) for the situation in question from legitimately making certain types of arguments. Persons intuitively recognize this, claims Rivera-Lopez, and this leads them to have the intuition that many people who argue for organ sales are precluded from legitimately using either the Consequentialist Argument or the Autonomy Argument. And, argues Rivera-Lopez, their intuitive recognition that many who use these two arguments are precluded from doing so leads those who have this intuition to experience moral distress at the prospect of the legalization of organ sales in an unjust situation. Thus, concludes Rivera-Lopez, such distress is not irrational, but well-founded. Rivera-Lopez’s argument for this conclusion thus progresses in two stages. First, he offers intuitive support for his view, and then he offers a systematic argument to support it. To provide the initial intuitive support for his view, Rivera-Lopez develops two examples: “Negligent father” and “Eating rats.” In “Negligent father” a man who is relatively poor but who, by working hard, could give his children a decent life, instead neglects them. This man now has to decide whether to allow one of his children to work. Rivera-Lopez claims that it is not open to this man to justify allowing his child to work by claiming that to do so would be to benefit the whole family, even though this would be the case. In “Eating rats” a group of very poor people live in a city, and to feed themselves decide to hunt and eat rats, a prohibited activity that is hazardous to their health. Rivera-Lopez holds that in deciding whether to remove this prohibition it would be “outrageous” for the city authorities to hold that it should be removed on the grounds that the hunting and eating of rats would be beneficial for the city as a whole, as this would reduce the rat population. It is clear, claims Rivera-Lopez, that in these cases it would be illegitimate for the negligent father and the authorities to draw on these Consequentialist Arguments owing to the fact that the situations in which they would do so would be unjust for the child and the poor persons, respectively—and that such injustice stems from the fact that both the negligent father and the authorities have failed to fulfill their moral obligations to these people (Rivera-Lopez, 2006, 45). Similarly, claims Rivera-Lopez, it would be illegitimate for the negligent father and the city authorities to draw on Autonomy Arguments, justifying allowing the child to work and the prohibition on eating rats to be lifted on the grounds that such decisions would enhance the autonomy of his child and of the poor. This is because, claims Rivera-Lopez, if these persons are genuinely concerned with the autonomy of the child and of the poor, they should fulfill their obligations to them.10 With these examples in place, Rivera-Lopez offers a systematic account of why “it seems outrageous to advance some kinds of arguments” in favor of organ sales (Rivera-Lopez, 2006, 47). He first distinguishes between “ideal” situations (where persons follow the norms of justice) and “non-ideal” situations (where at least some persons do not follow such norms).11 Rivera-Lopez

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V. INTEGRITY AND THE AUTONOMY ARGUMENT Rivera-Lopez makes it clear that he does not believe that his arguments show that the legalization of organ sales in unjust situations is not justified. Rather, his arguments are only intended to show that the moral distress that is widely felt at the prospect of such legalization is not irrational. Yet despite their elegance and simplicity, Rivera-Lopez’s arguments fail to achieve this end.


notes that theories that deal with nonideal situations typically do not address the question of “what the rights and duties of those are who do not follow the moral requirements.” He then moves to rectify this by outlining some of the “normative consequences that the non-compliant person might have to assume” (47). The most relevant of these consequences for the purposes of Rivera-Lopez’s argument arise from a person’s failure to meet what he terms her “duties of integrity.” These duties are imposed on persons owing to the value of having “some kind of coherence or consistency between beliefs or between beliefs and actions” (47). When a person fails to meet her duties of integrity she “can lose moral authority…by losing the authority…to support or justify a purported action via certain kinds of reasons or arguments.” It is this way in which a person might lose her moral authority that Rivera-Lopez takes to be “relevant to the arguments favouring the legalisation of organ sales” (48). Rivera-Lopez argues that political agents within the “sort of situation in which the practice of organ sales would take place if it were legalised” have lost the moral authority to offer either the Consequentialist Argument or the Autonomy Argument in support of legalizing organ sales. This is because, he argues, were they to do so, they would evince a lack of moral integrity insofar as there would be an inconsistency between their arguments and their actions. The “sort of situation” that is in question is, as Rivera-Lopez has characterized it, one in which the autonomy of the potential organ seller is curtailed owing to her deprivation, and where other political agents have failed in their obligations to alleviate this deprivation. Hence, if a political agent in this situation defends the legalization of organ sales on the grounds that they are required out of respect for the autonomy of the potential sellers and yet has failed to act so as to alleviate the autonomy-curtailing deprivation that such persons are subject to, he will evince a lack of integrity. He will thus forfeit the authority to use this argument. Similarly, RiveraLopez argues, if we (plausibly) assume that the “sort of situation” that is in question is one that would be unjust from a consequentialist perspective, then political agents within it would not be able legitimately to offer the Consequentialist Argument for organ sales. This is because they would have failed “to produce the consequentially optimal state of affairs,” and so lack the moral authority to argue from a consequentialist perspective.


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The first point to note is that there is a lacuna in Rivera-Lopez’s criticism of political agents who offer the pro-market Autonomy Argument from within an unjust situation whose autonomy-curtailing effects they have taken no steps to alleviate. It is true that a political agent who fails to rectify an autonomy-compromising situation and yet who offers an argument in favor of organ sales that rests on the value of autonomy appears to have inconsistent evaluations of autonomy. To the extent that this is so, then, such an agent would suffer from a loss of moral authority with respect to his autonomy-based argument. However, this is only the case if the arguments of the political agent in question were based on the view that autonomy was instrumentally valuable. There would be no inconsistency in the views of such a political agent if his arguments were based on the view that autonomy was intrinsically valuable.12 A political agent in an unjust situation who holds that autonomy is instrumentally valuable might favor organ sales on the grounds that persons should be afforded wide scope to exercise their autonomy, since such exercise is most likely to enhance the well-being of the person so acting. If such an agent advocates organ sales on this basis but fails also to work to alleviate the autonomy-compromising deprivation of those persons who are subject to this, then he will be guilty of an inconsistency in the way noted by Rivera-Lopez. He will thus suffer from a lack of moral authority with respect to his pro-market arguments as a result. A political agent, however, who favored organ sales on the basis of the intrinsic value of personal autonomy would not exhibit the same inconsistency. Such a person could hold that the autonomy-compromising deprivation to which others in his society were subject did not make them any less autonomous, in the sense that it did not itself make them any less able to make their own decisions, given the options available to them, and act upon them. (Note that this position is compatible with accepting that even though such persons did not suffer from any compromise of their autonomy per se, their autonomy was still less instrumentally valuable to them owing to their deprivation. The limited options that such persons would enjoy would make it less likely that their exercise of their autonomy would enable them to satisfy their desires.) A political agent who held autonomy to be intrinsically valuable, then, would not be committed to alleviating the deprivation that undermined the ability of some members of her political community to exercise their autonomy. However, such an agent could be committed to allowing organ sales. She might hold that to prohibit such sales would be coercive, in that the legal sanctions imposed on persons who traded in human organs would coerce some persons from buying or selling organs who would otherwise do so. And, such an agent might hold, to coerce someone is to render her less autonomous with respect to the acts that she performs than she would have otherwise been, absent such coercion. Although a full account of the relationship between autonomy and coercion cannot be developed here,

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this claim is not implausible. When a person is coerced into performing a certain action, she is to some extent under the direction of her coercer. To the extent that this is so, then, a coerced person lacks self-direction, and thus autonomy, with respect to her actions.13 If a political agent holds autonomy to be intrinsically valuable, she might decide that since prohibiting markets in human organs is coercive, and since such coercion renders those who are successfully subject to it less autonomous than they would have otherwise been, respect for the intrinsic value of personal autonomy should lead one to support legalizing such markets. Thus, a political agent who does nothing to alleviate the autonomy-curtailing deprivation to which potential organ vendors are subject but who advocates the legalization of organ sales on the basis of respect for the intrinsic value of personal autonomy need not be guilty of any inconsistency. The pro-market Autonomy Argument that such an agent would offer would thus not suffer from any lack of moral legitimacy, as Rivera-Lopez charges. There are, however, two ways in which Rivera-Lopez can support his view that the Autonomy Argument is (typically) a morally illegitimate argument in the context of the discussion over the legalization of organ sales. He could show that, as a matter of fact, the proponents of this argument hold autonomy to be of instrumental, rather than intrinsic, value, and so lack moral authority with respect to this argument, as outlined above. To offer this line of defense would require that Rivera-Lopez provide empirical evidence concerning the value commitments of the proponents of the Autonomy Argument. Alternatively, he could show that the proponents of the Autonomy Argument should hold autonomy to be of (primarily) instrumental value. There are two arguments that he might offer in support of this latter approach. First, he might argue that to hold autonomy to be of instrumental value would be a more defensible approach to valuing autonomy than to hold it to be of intrinsic value. Given the above discussion, this argument would certainly be plausible: that autonomy is valuable because its exercise is likely to enable its possessor to satisfy her desires is clear, while it is not so clear that the possession of autonomy is valuable in itself. (It is not clear, e.g., that a person’s autonomy would be valuable if she were unable to exercise it.) Rivera-Lopez could also argue that if an advocate of legalizing organ sales were to offer both the Consequentialist Argument and the Autonomy Argument, then she would preclude herself from holding autonomy to be intrinsically valuable. If a person advanced the Consequentialist Argument for organ sales, she would have committed herself to the view that what matters morally is that agents are made better off.14 As such, then, she would have precluded herself from endorsing the view that autonomy is valuable for its own sake (except insofar as its possession is part of an agent’s well-being), for such an endorsement would be at odds with her (utilitarian) consequentialism. A proponent of the Consequentialist Argument, however, would be able to hold that autonomy was instrumentally valuable,


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insofar as it was useful for securing the well-being of its possessors. Of course, whether Rivera-Lopez would be able to establish that an advocate of the legalization of organ sales should hold that autonomy is instrumentally, rather than intrinsically, valuable will depend on the success of these arguments—and they have been neither fully outlined nor assessed here. However, given these initial remarks, it seems plausible to hold that RiveraLopez would be able to show that an advocate of the legalization of organ sales should accept that autonomy is (primarily) of instrumental, rather than intrinsic, value. And if he is able to do this, then he will be able to show that that, despite the lacuna in his argument as it stands, the Autonomy Argument will (typically) not be a legitimate argument to make.

Despite the lacuna in his arguments concerning the Autonomy Argument, Rivera-Lopez’s claim that this argument is in an important sense illegitimate is defensible. Yet although this aspect of Rivera-Lopez’s argument can be defended (as can his similar argument concerning the Consequentialist Argument), this does not support his claim that the widely held “instinctive reaction against a market in organs” is not irrational. Rivera-Lopez holds that the widely shared moral distress at the promotion of the legalization of organ sales “by appeal to an alleged concern for the autonomy of the individual or for the well-being of the community” is rational, even though the pro-market arguments might be “valid in the circumstances” “from a detached, objective point of view” (Rivera-Lopez, 2006, 50, 49). This is because, he argues, since we believe that we are responsible for the unjust situation in which the potential sellers of organ sellers find themselves, we have lost the moral authority to advocate the legalization of such sales by appeal to these concerns. Thus, when persons do advocate legalizing organ sales by appealing to either the Autonomy Argument or the Consequentialist Argument, we intuitively recognize that they lack the moral authority to do so, and our moral distress is indicative of this. Although Rivera-Lopez seems right to hold that there is something illegitimate about advocating the legalization of organ sales in an unjust situation on the bases of these arguments, if one is unwilling also to advocate for the elimination of suffering and autonomy-curtailing deprivation that would lead the (typical) organ vendor to sell, this does not show that the widely shared moral distress at the possibility of legalizing organ sales is justified. There are two reasons why Rivera-Lopez’s arguments fail. First, Rivera-Lopez’s justification of the rationality of the moral distress that is widely felt in the context of discussions of the legalization of organ sales fails to justify such distress as being about the legalization of organ sales. If Rivera-Lopez’s analysis of why moral distress is felt as


VI. THE SOURCE OF MORAL DISTRESS

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a result of encountering certain arguments being put forward in unjust situations in favor of legalizing organ sales is correct, such moral distress would have as its intentional object the inconsistent positions that are held by those proponents of the Consequentialist Argument and the Autonomy Argument who lack the moral authority to proffer them. But if such inconsistency is the intentional object of the felt moral distress, then it is not about the substance of the conclusions of these arguments. As such, the felt moral distress is not (in the context of this debate) about the legalization of organ sales in unjust situations at all. Thus, insofar as Rivera-Lopez has shown this moral distress to be rational, he has not shown that it is rational to feel morally distressed about the legalization of organ sales. One might, however, respond to this objection to his argument by noting that it is perfectly possible for a person to feel moral distress at a practice X for reason Y, where the intentional object of her distress is X and not Y. As such, it is perfectly possible for a person to feel moral distress about proposals to legalize organ sales, where the reason for this distress (but not its intentional object) is the inconsistency evinced by the proposers of such legalization.15 But, if this is so, then it seems that such distress should be felt whenever persons offer arguments that are similarly illegitimate for them to avow, insofar as they evince discrepancies between their proponents’ words and their deeds. But this does not seem to be the case, for persons frequently offer arguments in defense of moral positions that do not comport with their everyday behavior without this leading others to feel moral distress at the positions that they advocate. It is, for example, common for persons to be convinced of the moral necessity of vegetarianism, and yet fail to become vegetarians. Similarly, persons are often unable to find flaw with Peter Singer’s utilitarian arguments, and yet fail to act in accordance with the moral requirements by which they now believe they should be bound.16 Yet such discrepancies do not result in those who encounter the arguments of such inconsistent vegetarians or utilitarians having an “instinctive reaction” against their vegetarianism or utilitarianism, or experiencing “moral distress” concerning them. It thus appears that the reason for the “instinctive” reactions of moral distress that persons have towards proposals to legalize organ sales is not the perceived discrepancies between the beliefs and the actions of those who propose this, as was suggested above in response to the first criticism of Rivera-Lopez’s argument in favor of the rationality of moral distress. Instead, what explains such moral distress is simply the fact of the proposal itself. Thus, even if Rivera-Lopez is correct to hold that to feel moral distress when one recognizes that a person is failing to fulfill her duty of moral integrity is rational, this does not show that the distinct distress that many persons feel at the prospect of legalizing organ sales in unjust situations is rational.


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VII. CONCLUSION


The view that organ sales should continue to be legally prohibited because they are morally repugnant or because they cause moral distress is prominent within the debate over whether such legalization should take place. As I have argued above, however, the proponents of the view that repugnance that is taken to be moral repugnance towards a practice should be taken to be indicative of its suitability for prohibition must, for their view to be complete, provide an account of when such felt moral repugnance can properly be taken to be indicative in this way. In doing so, however, they will need to provide reasons for that repugnance that they believe to be warranted as a justification for prohibition—and once they do so it will be these reasons, and not the repugnance itself, that will provide the support for their position. However, this rejection of the wisdom of repugnance does not show that the moral distress that some persons experience towards the proposal that organ sales be legalized has, at best, only an ex post facto rational basis. As RiveraLopez argues, such distress might be caused by the recognition that those persons who argue in favor of organ sales evince an inconsistency between their arguments and their actions—and it is this perception that renders the moral distress of their opponents rational. Yet despite the initial persuasiveness of Rivera-Lopez’s view, we should reject it, for, even if it is possible that the reason that arguments in favor of legalizing organ sales cause such moral distress in certain persons is that their proposers evince such inconsistency, it seems that it is not this inconsistency that leads to this felt moral distress. The fact that such distress thus could have a rational basis does not show that it actually does. Although Rivera-Lopez fails to show that the moral distress that certain persons feel towards proposals to legalize organ sales has a rational basis, he is successful in showing that “that there are some kinds of arguments, offered in favour of legalisation, that are, in an important sense, illegitimate” (Rivera-Lopez, 2006, 41). Yet even though he has shown that the pro-market Consequentialist Argument and the Autonomy Argument “are, in an important sense, illegitimate,” the implications of this should not be overstated. First, Rivera-Lopez is clear that even if one accepts that such arguments are “in an important sense” illegitimate this does not show that they are not “valid in the circumstances” in which they are offered. As such, the substance of these arguments must still be addressed by persons opposed to legalizing organ sales—even if such legalization would take place in an unjust situation. Second, these arguments are only illegitimate relative to certain of their proponents. That is, they are only illegitimate in the sense in which Rivera-Lopez uses this term if they are offered by persons who lack the moral authority to make them owing to discrepancies between their words and their actions. Rivera-Lopez’s arguments thus do not support his broad conclusion that these arguments are not available simpliciter as legitimate

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NOTES 1. See, for example, Radcliffe Richards (1996); Cherry (2005); Taylor (2005b); Hippen (2005). 2. That the view that markets in organs are morally repugnant is the driving force behind arguments in favor of their continued prohibition was noted by Radcliffe Richards, Daar, and Guttman (1998). Proponents of the argument from repugnance include Murray (1996). 3. Kass is here writing of human cloning. 4. Kant’s argument is more sophisticated here than Kass recognizes. For an outline and criticism of Kant’s views concerning the alienation of body parts, see Taylor (2005b, 146–155). 5. It is possible to hold that moral repugnance is a good indicator of immorality, as well as to hold that even if something is immoral it should be allowed. However, as Nussbaum notes, “Kass has not convinced us that disgust is reliably correlated with serious violations of human rights or human dignity” (Nussbaum, 2004, 91). 6. Of course, one might simply claim that this simply shows that Britain’s reputation for terrible food is justified. 7. It is not clear, for example, that even if one thinks that the eating of brains or mice is disgusting she would also think that these practices are immoral—although, of course, if she were a vegetarian for moral reasons she might do so. 8. Like many of the other participants in the debate over the legalization of organ sales, RiveraLopez focuses on the legalization of markets in human kidneys. 9. Rivera-Lopez does not make it clear whether the obligations that the political agents have are political or moral obligations. His argument would be stronger, were they to be moral obligations, for two reasons. First, although it is plausible to believe that if persons have a moral obligation to aid others who suffer from “severe suffering and deprivation,” it is not so clear that this duty should be legally (i.e., politically) enforced. (It should also be noted that Rivera-Lopez must provide an argument as to why the fact that persons could alleviate such suffering shows that they should do so.) Second, insofar as he is focusing on accounting for the moral distress that persons feel at the prospect of legalizing organ sales, his argument would be more consistent, were he to claim that such distress was generated by the moral, rather than political, failings of those advocates of the Consequentialist Argument and Autonomy Argument whose integrity he later questions. 10. Rivera-Lopez also offers a third intuition-pump to support his view that it is illegitimate for certain persons to offer certain arguments in support of their views, that is, based on questioning whether we should allow persons to work 18 hours a day in inhumane conditions. Since this example is structurally similar to “Negligent father” and “Eating rats,” I will not outline it here. 11. Rivera-Lopez notes that this distinction mirrors that drawn by Rawls and others between ideal and nonideal moral theories (Rivera-Lopez, 2006, 47). See Rawls (1972, 8–9).


arguments for public discussion within nonideal societies (i.e., those that are unjust, as Rivera-Lopez characterizes this). Rather, they only support the narrower conclusion that these arguments are not legitimately available to some persons within such societies (i.e., those who, in offering them, would evince the inconsistency that he identifies). Contra Rivera-Lopez, then, both the Consequentialist Argument and the Autonomy Argument could be legitimately available to advocates of organ sales even within nonideal societies. As such, it appears that the participants within this debate could go some way towards dispersing the emotional fog that sometimes clouds it by working to ensure that their actions are consistent with their words. And such dispersal is a consummation devoutly to be wished, for, as the above discussion shows, the debate over the legalization of organ sale should focus on the arguments both for and against this position, setting to one side the appeals to emotion that sometimes cloud this debate.17


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REFERENCES Cherry, M. J. 2005. Kidney for Sale by Owner: Human Organs, Transplantation, and the Market. Washington, DC: Georgetown University Press. Hippen, B. E. 2005. In defense of a regulated market in kidneys from living vendors. Journal of Medicine and Philosophy 30:593–626. Kant, I. 1964. The Metaphysical Principles of Virtue. Trans. J. Ellington. Indianapolis, IN: Bobbs-Merrill. Kass, L. 1997. The wisdom of repugnance. The New Republic (June 2) 216:17–26. ———. 2002. Life, Liberty, and the Defense of Dignity: The Challenge for Bioethics. San Francisco: Encounter Books. Murray, T. H. 1996. Organ vendors, families, and the gift of life. In Organ Transplantation: The Human and Cultural Context, eds. S. J. Younger, R. Fox, and L. J. O’Connell, 101– 25. Madison: University of Wisconsin Press. Nussbaum, M. C. 2004. Hiding From Humanity: Disgust, Shame, and the Law. Princeton, NJ: Princeton University Press. Radcliffe Richards, J. 1996. Nephrarious goings on: Kidney sales and moral arguments. The Journal of Medicine and Philosophy 21:375–416. Radcliffe Richards, J., A. S. Daar, and R. F. Guttman. 1998. The case for allowing kidney sales. Lancet 351:1950–52. Rawls, J. 1972. A Theory of Justice. Oxford: Oxford University Press. Rivera-Lopez, E. 2006. Organ sales and moral distress. Journal of Applied Philosophy 23:41–52.


12. The account of autonomy that is drawn on here is the basic one that a person is autonomous insofar as she acts intentionally and without having ceded control over her desires or her actions to others. This basic account of autonomy is compatible with each of the more precise accounts of autonomy that are outlined in Taylor (2005a, 1–29). 13. One might object here that insofar as a victim of coercion is still able to decide for herself what action to perform (to attempt to resist her coercer, to comply with his demands, or even simply to ignore him) it is still she, and not he, who is directing her actions, and thus she suffers from no loss of autonomy at all. This objection is certainly plausible. The force of this objection can be met if one distinguishes between a person being autonomous with respect to her decisions, and a person being autonomous with respect to her actions. With this distinction in place, one might say that a person who is successfully coerced into performing a certain action is still fully autonomous with respect to her decisions; she weighs and balances the pros and cons of resistance, compliance, and ignoring her coercer, and decides that, all things considered, she would be better off complying with his demands. However, in complying with her coercer’s demands, she abdicates control over her actions to him, having decided to do whatever he instructs her to do (within certain parameters). As such, then, to the extent that the compliant victim of coercion cedes control over her actions to her coercer, she will suffer from a diminution in her autonomy with respect to them, for it will be he, and not she, who is directing what actions she performs. Thus, if one distinguishes between a person’s autonomy with respect to her decisions and her autonomy with respect to her actions, one can accept that the compliant victim of coercion retains full autonomy with respect to the former, but not with respect to the latter. For a further discussion of this point see Taylor (2003, 127–155). 14. The class of agents for the purposes of this argument could be broader than the class of political agents. 15. I thank Eduardo Rivera-Lopez for bringing this to my attention. 16. Such persons include Singer himself; see Specter (1999), sections 7 and 10. 17. I thank Eduardo Rivera-Lopez, James Spence, and Margaret Taylor-Ulizio for useful comments on, and discussions of, earlier drafts of this paper. I also thank two anonymous referees for their constructive criticisms.

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Specter, M. 1999. The dangerous philosopher. The New Yorker (September 6) 75:46–55. Taylor, J. S. 2003. Autonomy, duress, and coercion. Social Philosophy & Policy 20:127–55. ———. 2005a. Introduction. In Personal Autonomy: New Essays on Personal Autonomy and Its Role in Contemporary Moral Philosophy, ed. J. S. Taylor, 1–29. Cambridge: Cambridge University Press. ———. 2005b. Stakes and Kidneys: Why Markets in Human Body Parts Are Morally Imperative. Aldershot, England: Ashgate Press. U.S. Congress, Office of Technology Assessment. 1987. New Developments in Biotechnology: Ownership of Human Tissues and Cells—Special Report, OTA-BA-337, 117. Washington, DC: U.S. Government Printing Office.


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