Mine! (How the Hidden Rules of Ownership Control Our Lives) 5/7

Michael Heller, James Salzman

Part 4.

5/ Our Bodies, Not Our Selves

• It’s very noble to donate a kidney (we have two, but only need one), but it’s illegal to sell one. (The official logic goes like this: it creates incentive to dupe the vulnerable and misinformed people. In other words, people need to be protected from themselves.)

• There’s a shortage of kidneys, and governments can only invest so much into campaigns promoting motorcycles to young drivers. Or maybe allow (in limited circumstances) paying donors for their kidneys. It’s estimated that 43 000 deaths in the US alone can be prevented if spare kidneys are available.

• At the moment the prevailing thinking is that the body is sacred, i.e. it’s an essential part of self-ownership despite the medical advances.

• What about selling sex? What about surrogate motherhood?

Head and Master

• Self-ownership asserts that “it’s mine because it came from my body”. It consists of two components: a) the freedom not to be owned by another (i.e., not to be a slave); and b) the power to be an owner on equal terms with everyone else.

• Slavery still exists in the world; human trafficking – for the purposes of selling sex or providing services as innocent as manicure (without pay, of course) – is so prevalent that airline crew are being trained to identify potential victims.

• Limiting someone’s ability to own property is the first step towards stripping them of personal freedom, too. It can arise from any form of discrimination (racial, national, religious, gender).

Golden Eggs

• Most IVF procedures involve eggs that were sold for cash, not donated. (It requires a long preparation period and a very uncomfortable egg extraction surgery, so who can blame those brave women?)

• There are attempts to limit the payouts to donors (claiming that they would otherwise be “exploited”), while there are no such caps for the clinics’ services, which logically implies that it may not an honest effort to pass on the savings to the consumer.

• Are eggs more like sperm (fast regenerating, have capacity to create life) or like kidneys (require invasive procedures to remove)? Isn’t different treatment of eggs vs sperm a form of gender discrimination? The answers differ depending on the analogies employed and the prevailing narrative of the particular geographic area.

• Egg buyers can discriminate on who these eggs come from (white, strong, high IQ, etc.) – this discrimination is illegal in other parts of life.

Anything else?

• It’s OK to sell hair and body liquids, but not spare organs (kidneys), regenerative organs (livers) and partly transplantable organs (intestines, lungs). It’s due to the on/off mentality: on = sell whatever; off = no one is allowed to buy what you sell.

• Hair sales are always “on” and have been for millennia.

• Children – are they on or off? It’s not legal to sell children (luckily), but children don’t have full self-ownership rights, so they can be put out for adoption. So, the on/off switch doesn’t fully apply. And the parent’s “ownership” swiftly dissipates as the child grows and matures.

• There’s a huge grey area between the ON position (unrestricted sales) and the OFF position (no transactions). And the topic of self-ownership is better described as the dimmer rather than a flip switch.

• Is selling a kidney a form of slavery? It may look this way, although it’s a rough and a misleading analogy. Kidney donors live healthy and happy lives (so it’s not a “one person dies so that another one lives” kind of analogy). Kidneys don’t own themselves and can’t be compared to humans, thus rendering the analogy false. [MK: it’s not a straw man argument.]

• One can use the reasoning by distinction (which is the opposite of the reasoning by analogy): look at the differences between the logical extensions and the desired outcomes. Protecting poor donors can be done by banning open-market organ sales and having hospitals take care of the compliance. The quality of kidneys can be monitored by the very same hospitals, too. Care about the future well-being of a donor? Give them a targeted lifetime insurance against any issues arising from the kidneys.

• Would it be better for a person to sell their kidney and pay off a chunk of the mortgage so that they won’t have to work dangerous jobs? [MK: I personally don’t buy this argument because this seriously looks like winning a lottery, and this rarely ends well.]

• Why are abortions legal and kidney sales are not? Why doesn’t the freedom of contracts extend to body part sales?

• And do the prohibitions really work or just drive the sales underground (as if the Prohibition hasn’t taught people anything)?

Monetising Others’ Bodies

• If one’s (say) blood or stem cells are unique to them to the extent that any other cells won’t have the desired properties, and if some doctors/scientists create inventions based on these unique cells, should the owners of these cells somehow be compensated?

• It boils down to the ownership question, and, sadly for the cell owners, the innovations based on the cells are more important than the owners of the cells; hence, to avoid potentially costly litigations over each cell sample the rule should be universal: science wins.

• Can the process be fairer? Probably yes, using the rights-remedies distinction. Self-ownership includes the right to tell the doctors to burn the samples after the test results have been obtained (this is not always possible due to retention rules, though). The right to say “no” should be the ultimate right. The owner of the cells should be able to donate the cells to the institution of their choice, or even sell them to a hospital. The risk is that the owner may inadvertently lead the research in the other direction by choosing who to donate / sell their cells or not.

• A combination of rights and remedies makes up ownership. However, it’s not always possible to arrive at a fair market value for the remedy (it can be too low or too high in the absence of a benchmark). Severe remedies are likely to halt medical innovations as each case has to be negotiated, which is not practicable.

• A mandatory licence may be a neat solution because it will create one settlement mechanism for all “licensors” (owners) and “licensees” (hospitals). The licensees pay a small percentage of royalties to the licence administrator (clearinghouse), and cell owners will be compensated for their materials.

• Being a “shade of grey” solution, it looks much better than the otherwise available black-or-white solutions.

Gestational Surrogacy (or a Womb for Rent)

• In the US there’s a divide between states if the surrogate mother acquires parental rights (and has to give them away to the paying parents) or doesn’t. In countries like Germany surrogacy is a no-no: a birth mother bonds with a child well before its birth (but not if the surrogate mother is hired in other countries where such bond is apparently not developed).

• (Traditional surrogacy is something different: the surrogate mother IS the biological mother; this brings its own set of legal problems.)

• A “womb for rent” arrangement in the case of gestational surrogacy doesn’t look so bad if all the parties are happy. Again, it all boils down to the ownership design, whether a person is legally allowed to do whatever they want with the body or not.

Professional Sport and Business

• In the US up until recent it was allowed to lock players in contracts for as long as the owners wanted. (If it looks like a form of high-paid slavery, it is.) However, many other aspects are still controlled by owners, including the games played, the outfits, even interviews. Most player salaries are capped, too.

• The official logic of a lockup is that owners invest in players and if they can’t reap the rewards – they won’t spend the money on players. To players this comes at a cost of freedom, but often very lucrative keep (education, salaries, career paths and sometimes endorsements).

• [MK: I was waiting for this] Noncompete agreements are a form of restraint of trade, they’re often unenforceable, but many people still believe they should be bound by them. Often the downside is the inability to seek higher compensation elsewhere, leading to lower quality of life.

• The argument that fully informed people are free to enter long-term noncompete agreements doesn’t hold water because no one can foresee life circumstances. Unless, of course, there’s an “out” clause.

• Noncompetes for people with limited earning capacity is unconscionable, and many states understand this now. Large companies are motivated to do about face and not enforce them. In IT the cross-pollination of firms with employees possessing different skills, experiences and ideas has created trillions of dollars of value.

• Non-disclosure and non-solicitation are other (very reasonable) concepts and shouldn’t be confused with noncompetes.

Part 6.