Luke Semrau

It is widely agreed that living kidney donation is permitted but living kidney sales are not. Call this the Received View. One way to support the Received View is to appeal to a particular understanding of the conditions under which living kidney transplantation is permissible. It is often claimed that donors must act altruistically, without the expectation of payment and for the sake of another. Call this the Altruism Requirement. On the conventional interpretation, the Altruism Requirement is a moral fact. It states a legitimate constraint on permissible transplantation and is accepted on the basis of cogent argument. The present paper offers an alternative interpretation. I suggest the Altruism Requirement is a moral fiction—a kind of motivated falsehood. It is false that transplantation requires altruism. But the Requirement serves a purpose. Accepting it allows kidney donation but not kidney sale. It, in short, rationalizes the Received View.

I shall argue, first, that potential kidney donors may be subject to harmful pressure to donate. This pressure may take almost any form; people have diverse interests, and anything that could set them back may qualify as pressure. Given features of the context—the high stakes, the involvement of family, and the social meaning of donation—such pressure may be especially harmful. This problem is less tractable than the more familiar worry that pressure may compromise consent. Screening may ensure donors validly consent, but it provides no protection against harmful pressure. I shall argue, second, that the use of such pressure is the predictable consequence of the prohibition on kidney sales. Potential donors have something—a transplantable kidney—that is both valuable and scarce. Many of them, informed about donation, decide against it. Those in need of a transplant may seek to persuade the unwilling. Given the prohibition, the donation cannot be made more attractive in absolute terms by, say, the addition of money. However, it can be made more attractive in relative terms. If declining the option is made worse, then, by comparison, accepting it is made better. The application of harmful pressure has the desired effect. With so much at stake, and no good alternatives, its use is predictable. I conclude that potential donors' interests should figure more prominently in the discussion of transplant policy. Those who defend the prohibition have made virtually no attempt to account for its impact on that group.

Personal relationships matter. Traditional Consequentialism, given its exclusive focus on agent-neutral goodness, struggles to account for this fact. A recent variant of the theory—one incorporating agent-relativity—is thought to succeed where its traditional counterpart fails. Yet, to secure this advantage, the view must take on certain normative and evaluative commitments concerning personal relationships. As a result, the theory permits cases in which agents do as they ought, yet later ought to prefer that they had done otherwise. That a theory allows such cases is a serious defect. We thus conclude that, in terms of how the theories handle personal relationships, agent-relative consequentialism fairs no better than its traditional counterpart.

An increasingly common objection to kidney sales holds that the introduction of monetary incentives may undermine potential donors’ altruism, discourage donation, and possibly result in a net reduction in the supply of kidneys. To explain why incentives might be counterproductive in this way market opponents marshal evidence from behavioral economics. In particular, they claim that the context of kidney sales is ripe for motivational crowding. This reasoning, if sound, would have a profound influence on the debate over kidney sales. What’s perhaps the principal reason to favor a market – the increase in supply it would bring – would be called into doubt. However, on inspection it becomes apparent that the evidence touted by market opponents not only lends no credence to their claims, but also provides some positive reason to doubt them. The near-ubiquitous references to motivational crowding in the literature on kidney sales are fundamentally misplaced.

_Thinking Through Utilitarianism: A Guide to Contemporary Arguments_ offers something new among texts elucidating the ethical theory known as Utilitarianism. Intended primarily for students ready to dig deeper into moral philosophy, it examines, in a dialectical and reader-friendly manner, a set of normative principles and a set of evaluative principles leading to what is perhaps the most defensible version of Utilitarianism. With the aim of laying its weaknesses bare, each principle is serially introduced, challenged, and then defended. The result is a battery of stress tests that shows with great clarity not only what is attractive about the theory, but also where its problems lie. It will fascinate any student ready for a serious investigation into what we ought to do and what is of value.

Agent-relative consequentialism is thought attractive because it can secure agent-centred constraints while retaining consequentialism's compelling idea—the idea that it is always permissible to bring about the best available outcome. We argue, however, that the commitments of agent-relative consequentialism lead it to run afoul of a plausibility requirement on moral theories. A moral theory must not be such that, in any possible circumstance, were every agent to act impermissibly, each would have more reason to prefer the world thereby actualized over the world that would have been actualized if every agent had instead acted permissibly.

Julian Koplin, drawing extensively on empirical data, has argued that vendors, even in well-regulated kidney markets, are likely to be significantly harmed. I contend that his reasoning to this conclusion is dangerously mistaken. I highlight two failures. First, Koplin is insufficiently attentive to the differences between existing markets and the regulated markets proposed by advocates. On the basis of this error, he wrongly concludes that many harms will persist even in a well-regulated system. Second, Koplin misunderstands the utilitarian assessment of the market. He focuses on the costs and benefits of the transaction for the vendor. But, the relevant comparison is between an individual’s welfare across different courses of action, namely, vending and the nonvending alternative. Although Koplin’s empirically informed contribution is a welcome addition to this literature, the mistakes that pervade his interpretation of the data demand correction.

When it comes to the duty of beneficence, a formidable class of moderate positions holds that morally significant considerations emerge when one's actions are seen as part of a larger series. Agglomeration, according to these moderates, limits the demands of beneficence, thereby avoiding the extremely demanding view forcefully defended by Peter Singer. This idea has much appeal. What morality can demand of people is, it seems, appropriately modulated by how much they have already done or will do. Here we examine a number of recent proposals that appeal to agglomeration. None of them, we argue, succeeds.

Drawing on empirical evidence in medicine, economics, law, and anthropology, I argue that a market is uniquely capable of meeting the demand for transplantable kidneys, and that it may be arranged so as to operate safely. The welfare gains, expected to accrue to both vendors and recipients, are sufficient to justify sales. Having spelled out the considerations recommending a kidney market, I address the most forceful objections facing the proposal. Despite its currency, the claim that incentives will crowd out altruistic donors and result in a decrease in supply is empirically unsupported and predicated on an implausible view of donorsâ motives. A host of objections claim vendorsâ will not give informed consent. Many such objections identify easily remediable problems, or impose unreasonable standards â standards that would rule out morally permissible kidney donation. And all presuppose a model of morally transformative consent that, I argue, is deficient. Two further challenges point to harms inflicted on those who do not participate in the market. Some claim that those in poverty will be subject to harmful social and legal pressure to vend. This objection fails to distinguish between being pressured to perform a specific act, and being under general economic pressure and having the option to perform an act. It, moreover, presupposes vending more common than is possible. Others worry that the market will give rise to unfair pecuniary externalities. This objection also presupposes that kidney sales will occur more often than is possible. But more importantly, the normative consideration that is supposed to make such externalities especially objectionable, in fact, recommends allowing sales. I also make a political case for kidney sales. I offer an account of the stateâs proper role in the market. I begin with a conception of democratic equality according to which the state is responsible to secure for its citizens the preconditions for democratic participation. I then show that this end would be promoted were the state to end the current prohibition on sales.

A familiar objection to mental state theories of well-being proceeds as follows: Describe a good life. Contrast it with one identical in mental respects, but lacking a connection to reality. Then observe that mental state theories of well-being implausibly hold both lives in equal esteem. Conclude that such views are false. Here we argue this objection fails. There are two ways reality may be thought to matter for well-being. We want to contribute to reality, and we want our experience of the world to be veridical. Yet, if one accepts that reality matters in either of these ways, one must posit differences in well-being where no such differences exist.

Erik Malmqvist defends the prohibition on kidney sales as a justifiable measure to protect individuals from harms they have not autonomously chosen. This appeal to ‘group soft paternalism’ requires that three conditions be met. It must be shown that some vendors will be harmed, that some will be subject to undue pressure to vend, and that we cannot feasibly distinguish between the autonomous and the non-autonomous. I argue that Malmqvist fails to demonstrate that any of these conditions are likely to obtain. His argument involves two common errors. First, he, like many, proceeds on a mistaken understanding of how to assess harm. What matters is not the balance of costs and benefits of vending, but a comparison of potential vendors’ welfare across two possible courses of action. Second, Malmqvist's concerns about third-party pressure are predicated on an empirically unrealistic understanding of the operation of a regulated market. A widely underappreciated fact is that kidney sales will be relatively rare, and most who try to vend will be unable to. Because pressure on another to vend will not result in the desired outcome, few will exert it.

Erik Malmqvist defends the prohibition on kidney sales as a justifiable measure to protect individuals from harms they have not autonomously chosen. This appeal to ‘group soft paternalism’ requires that three conditions be met. It must be shown that some vendors will be harmed, that some will be subject to undue pressure to vend, and that we cannot feasibly distinguish between the autonomous and the non-autonomous. I argue that Malmqvist fails to demonstrate that any of these conditions are likely to obtain. His argument involves two common errors. First, he, like many, proceeds on a mistaken understanding of how to assess harm. What matters is not the balance of costs and benefits of vending, but a comparison of potential vendors’ welfare across two possible courses of action. Second, Malmqvist's concerns about third-party pressure are predicated on an empirically unrealistic understanding of the operation of a regulated market. A widely underappreciated fact is that kidney sales will be relatively rare, and most who try to vend will be unable to. Because pressure on another to vend will not result in the desired outcome, few will exert it.