Hugh McLachlan: Operating on a basis of freedom of choice

The suggestion made recently by Sue Rabbitt Roff that the sale of human organs - in particular, kidneys - should be legalised has caused quite a stir. It is worth considering seriously.

The issue is typically wrongly addressed. Actions should be legal unless a specific case can be made for making them crimes. The onus is on the banners to justify bans. When the state prohibits and punishes particular actions, the prohibition must be justified or else removed. The rest of us are not required to present a justification in support of the claim that we should be legally permitted to perform the particular actions.

The central objections raised are that the practice would be exploitative and in other ways against the interests of poorer prospective organ sellers.

The fear has been expressed that if it were legal to sell one's organs, some poor people would feel themselves under pressure to do so. This might be true but it is not a good reason for maintaining the legal prohibition on the selling of one's organs. Such poor people would be pressurised by their poverty, not by the possibility of selling their organs.

If we prohibit them from selling their organs, the pressure of their poverty remains the same. All we have done is to deny them a particular way of relieving it. Bizarrely, some people seem to think that to deny poor people the legal possibility of selling their organs is, somehow, to do them a great favour. This is misguided paternalism. This attitude is unacceptably patronising. It fails to treat people with the dignity and respect they are due.

Suppose that two people want to enter into a particular voluntary transaction. Suppose that one person believes that he can improve his lot by gaining a sum of money and parting with one of his kidneys and the other believes that she can improve her lot by parting with that particular some of money and acquiring that kidney. They might both be right. We have no basis for imagining that we know what the interests of the people concerned are better than they do themselves.

Even if it turns out that one or other of the people is wrong and that the transaction is not in his or her best interests, that is not a good reason for saying that no one should be legally permitted to buy or sell a kidney or any other organs or tissues. We should be allowed to make our own mistakes.There is no reason to imagine that this relationship will necessarily be "exploitative". The relationship is voluntary. That does not mean that the parties to it are not driven by strong motives. It means that neither of the parties coerces the other into the transaction. There is a difference between being, say, driven by hunger into transacting voluntarily with the baker and being coerced by the baker into transacting with him. There is a difference between being coerced by a rapist and being driven by passion into the arms of a lover.

"Exploitation" is not a specific category of criminal offence. Hence, the argument that it should be a criminal offence to sell one of one's kidneys because such commercial transactions are exploitative would not stand up even if it could be shown that such transactions are necessarily exploitative. For instance, Karl Marx argued very strongly that the capitalists exploit their workers, the members of the proletariat, every time they employ them. However, he did not for a moment suggest that it should be a criminal offence to employ someone under capitalism.

There are far worse things than being "exploited", such as being prevented from being "exploited" by well-meaning but misguided, interfering busybodies.

We have two kidneys but can survive with one. That is why there is particular attention on the question of selling one's kidneys as opposed to various other organs such as, say, one's heart. However, it might turn out that, after we have sold one of our kidneys, our other one becomes, for whatever reason, damaged or unhealthy. We might die. It might turn out that the gamble we made does not pay off.

That is not a good reason for making the buying and selling of kidneys illegal. Such is life. After all, if we donate a kidney altruistically, the same thing might happen but people do not say that this is a good reason for saying it should be illegal to donate one's kidney to a relative or friend. We might take the risk of cycling to work in heavy traffic and be killed in an accident. That is not a good reason for saying that it should be illegal to cycle.

The prospect of receiving money can cloud our judgement, especially if we are poor, some people say. They suggest that the decision to sell one's organs would not be a properly rational sort of decision for some people. However, we are no less likely to be clouded in our judgement by affection and loyalty than we are by the prospect of being paid. Nonetheless, no one suggests that so-called altruistic donation of our organs should be illegal although it is no less risky to donate one of one's kidneys to a relative or friend than to sell one to a stranger.

The argument has been presented that an "ethical" market for organs such as kidneys might be developed if the NHS or some such official state agency were to act as the purchaser of the organs.That might be an improvement on the current situation where such transactions are not legal. However, if would not be a particularly "ethical" solution. A central objection is that it would be against the interests of the sellers of organs if there were only one buyer. In such circumstances, the sellers of organs are likely to be paid far less than what would be the market price. Would that not be a sort of exploitation?

I suspect that the proper role for the law and the state with regard to the buying and selling of kidneys should merely be to ensure that the terms of the transaction are adhered to and that each party fulfils his or her side of the deal. Exploitation will occur if someone provides an organ without receiving the due payment or someone hands over the payment without receiving the promised organ.

To ride a bicycle in heavy traffic seems to me a risk that is not worth taking. I would not do so either for love of family and friends or for money. However, I might in some circumstances consider donating one of my kidneys or, if economic circumstances were particularly tight, selling one. I mightsell a kidney in order to be able to fulfil some act of charitable kindness for a stranger or to provide for healthcare that would otherwise be unavailable for my wife.

The state not only allows us to take the risk of riding bicycles, which it should do, but it even seems to exhort us to do so, which it should not do. That the state prohibits us from selling one of our kidneys is not only impertinence, it is an unwarranted intrusion into our private lives. Why should the state assume that it knows better than we do what risks are worth taking with regard to the sale of our organs?

Whether is it, for instance, wise, sensible or ethical to sell one's organs is not the issue at stake. The question is: should it be a criminal offence? Is it justifiable to prohibit such actions and to punish people for committing them? It does not appear to be.

• Hugh McLachlan is Professor of Applied Philosophy in the Department of Social Sciences, Media and Journalism at Glasgow Caledonian University