Abstract
In this paper, I discuss exploitative transactions in bioethics. Examples of this kind of transactions allegedly include, among others, commercial surrogacy, organ selling, and research with human subjects in developing countries. The most problematic kind of exploitation is what Allan Wertheimer calls “mutually advantageous exploitation:” the weak party’s (W’s) consent for the transaction is an effective and rational consent. Moreover, W does not suffer any harm by the transaction; on the contrary, the transaction benefits W. My aim in this paper is twofold. From the perspective of individual ethics, I offer a model to understand the nature of the wrongfulness of the strong party’s action. And from the perspective of legal ethics, I suggest some reasons to believe that the prohibition of beneficial exploitative contracts is problematic and can only be justified in very exceptional cases.
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Notes
- 1.
I always refer to what Alan Wertheimer calls “transactional exploitation,” that is, when exploitation occurs in a contract or transaction between two (or more) parties. I leave aside what he calls “structural exploitation,” which depends on the existence of a set of rules and institutions that unduly harm a class of individuals (workers, women, etc.) in a systematic way. Such a concept of macro-exploitation is referred to by the Marxist tradition (see Wertheimer and Zwolinski 2017). For a similar distinction between Marxist and non-Marxist exploitation, see Hawkins (2008, pp. 44–49).
- 2.
- 3.
The last expression is used by Wertheimer (2017).
- 4.
The example is based on two known cases of research. The first took place in several African countries and the Dominican Republic between 1994 and 1997 to find a medically more efficient and cheaper way to avoid maternal-fetal transmission of HIV. The second was proposed to test a new drug for acute respiratory distress syndrome called Surfaxin in Bolivia in 2000. In this last case, it was also proposed to carry out the research using a placebo, although other effective drugs existed (Hawkins and Emanuel 2008, pp. 1–3; 58–61).
- 5.
The case is quite realistic. Despite the existing prohibition worldwide, selling kidneys for transplantation is a reality in countries like Pakistan, India, China, Egypt, Turkey and the Philippines. In Pakistan alone, it is reported that about two thousand kidney transplants are performed each year to patients from Europe or North America with this methodology (Kelly 2013, p. 1320). Still, this practice should be distinguished from trafficking persons in order to coercively obtain organs for transplantation. I will not go into the question of whether this kind of traffic exists or its magnitude. In any case, I do not refer to it in this paper.
- 6.
Unlike the case of the sale of kidneys, commercial surrogacy takes place (even legally) in both rich and poor countries. There is the phenomenon of “reproductive tourism” since the costs of surrogacy are much lower in developing countries, but poor women in the United States also accept this type of transaction since it is legal in some states. For an overview of both phenomena, see Voskoboynik (2016).
- 7.
A very similar position has been defended by Wertheimer, at least in terms of public decision. My purpose is to provide different arguments that go in the same direction.
- 8.
- 9.
I do not intend for all of these examples to be convincing; only some are. For other examples, see Waldron (1993, p. 63–64).
- 10.
I follow Waldron (1993) on this.
- 11.
This is obviously not the only possible strategy. I assume without argument that other strategies, such as paternalism, are less plausible.
- 12.
- 13.
Radin (1987, p. 1917).
- 14.
Cohen (2013, p. 279). Cohen refers to Radin (1987, p. 1910), and Rivera Lopez (2006, pp. 44–48). The hypocrisy argument has been defended also more recently in Stone (2013). Using an argument similar to the one I develop here, Stone objects to Shiffrin’s argument (in 2000), according to which the state cannot recognize exploitative contracts, not for paternalistic reasons, but for self-referential ones.
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Rivera-López, E. (2019). Consent and Exploitation in Bioethics: Individual Ethics and Legal Regulation. In: Rivera-López, E., Hevia, M. (eds) Controversies in Latin American Bioethics. International Library of Ethics, Law, and the New Medicine, vol 79. Springer, Cham. https://doi.org/10.1007/978-3-030-17963-2_6
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