Redefining stewardship over body parts.

"And the question will then arise whether we are still willing to use the concept ... or whether in such circumstances it has lost its purpose, because the phenomena gravitate towards another paradigm...."

Ludwig Wittgenstein, Philosophical Investigations (3d ed. 1958) (translated by G.E.M. Anscombe), at [paragraph] 385 (p.118e).

 
  I. INTRODUCTION 
 II. BODY PARTS IN CONTEMPORARY SOCIETY 
III. DIFFERING APPROACHES TO BODY PARTS 
     A. The Body As Owned Property: Creating Market 
        in Body Parts 
        1. Benefits of Property and Market Treatment 
        2. Shortcomings of a Property Regime for 
           Body Parts 
     B. Partial Commoditization-Legislative and 
        Regulatory Schemes. 
     C. Trust Paradigm 
     D. Altruism and Consent-The Current U.S. Model 
     E. Opt-Out Policies: Presumed Consent and 
        Routine Removal 
     F. Other Proposals 
 IV. CASE LAW 
  V. REFRAMING THE DEBATE 
 VI. DEFINING STEWARDSHIP TO INCLUDE FIDUCIARY 
     DUTIES TO SOCIETY AND DONORS THROUGH AGENCY 
     PRINCIPLES 
VII. CONCLUSION 

I. INTRODUCTION

Today's society struggles with organ shortages. (1) Exacerbating the problem is the absence of a universally accepted paradigm for how justly to treat body parts, such as organs and tissue. Scholarly tomes are filled with articles addressing this subject. Yet confusion still reigns. Limited framing of the question that requires acceptance of either a property/market paradigm or altruistic donor paradigm has failed to lead to a solution, as neither the property nor altruistic solutions are universally accepted. Further, many compromise solutions also fall short as they are either impractical legislative solutions with no realistic chance of implementation or small, piecemeal, too little, too late experiments. Similarly, the case law addressing body parts imparts a sense of disorder and bewilderment. The law is at a loss as to how to address body parts consistently. This failure to reach a generally acceptable solution to the treatment of body parts can be seen as a "failure of [our] imagination." (2)

This paper proposes one possible avenue for defining a framework to address body parts. I begin with the presumption that given the increasing use of body parts outside of our bodies, either after death or during life, society requires a framework with institutions and rules to govern our body parts. Yet there is no settled framework. Much of the controversy over differing approaches stems from whether people should be able to sell body parts. Thus, each potential framework implicitly addresses the question of monetary value. While multiple possibilities exist, the predominant models are (1) property, most often meaning ownership that permits monetary compensation; (2) stewardship, implying altruism and no monetary compensation to the donor; and (3) a compromise solution involving regulatory bodies, which could assign monetary value under certain circumstances.

Each approach suffers from multiple shortcomings. Yet each has its strengths. For example, the need for rules drives, in part, the attraction to a market and property paradigm, with its long-standing and familiar institutions and rules. (3) Yet property is not an exact match, and significant long-term problems regarding how we conceive of ourselves may develop if our legal conceptions of property are mapped directly onto our bodies. Stewardship is a competing concept often relied upon, but it lacks the institutions and rules that the property concept provides. As a vague and amorphous ethical concept, stewardship is poorly suited to be a consistent guide in the evolving reality of a marketplace of human tissue and other body parts. (4) Markets and other distribution systems require consistent off-the-rack rules, as well as ethics. This paper, therefore seeks to look creatively at other bodies of law to see if they can be reimagined and used to give stewardship some backbone, meaning concrete principles that can be applied to the use of body parts. In doing so, it seeks to provide a place for compensation and incentives which property provides but avoid some of the pitfalls of property by preserving the special place that the body has in defining ourselves and our humanity. It seeks to do this by using, as a starting point, one of the law's older bodies of law, agency law. While, like so many other concepts, there is not an exact match with this concept either, there is the potential to take agency law as a starting point and fashion certain principles into a better fit than either property or undefined stewardship.