Liberalism, the Duty to Rescue, and Organ Procurement

After outlining her rights‐based theory of justice in Whose Body is it Anyway? Cécile Fabre argues that as a matter of justice needy people have a right to be rescued provided that this would not impose unreasonable costs upon their would‐be rescuers, and that this right should be enshrined in law. Fabre then argues that the enforcement of such a duty to rescue extends not only to the state being able to conscript persons into a civilian service, but that it should also be able to conscript cadaveric organs for transplant into those who need them – and even that it should be able to conscript organs for transplant from live persons if needed. Fabre then goes on to argue that persons should be allowed to sell goods and services that are typically held to be market inalienable – including their non‐essential organs and their sexual and reproductive services. While she agrees that there should be markets in cadaveric organs, in Black Markets Michele Goodwin argues that the conscription of organs from either cadavers or living persons is ethically and legally problematic. In this review article I argue that while Fabre's arguments are more persuasive than Goodwin's, they do not support Fabre's more radical conclusions. I also argue that Fabre's conclusions concerning cadaveric organ conscription could be strengthened by drawing upon current philosophical arguments concerning the possibility of posthumous harm, and by clarifying her account of rights. I conclude by noting that just as Fabre's arguments would benefit from considering the empirical data that Goodwin offers, so too would Goodwin's views benefit from a greater engagement with the type of philosophical arguments offered by Fabre.