I personally know at least one American who did this—sold his kidney, that is, albeit, as an adult; I consider that particular individual mostly normal, only slightly deranged, and in some ways quite exceptional, as I have written elsewhere. The questions raised by the sale of kidneys regarding ownership and use of one’s own body, and the relationship to such things as abortion, child-labor laws, euthanasia, prostitution, stem-cell research, slavery, and the 13th Amendment, are very interesting: “We hold these truths to be self-evident: that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness.” If I-Phones, I-Pods, and I-Pads bring or confer either “true” Happiness or that nearly indistinguishable phenomenon known as “the illusion of Happiness,” are individuals, including minors, permitted to exchange body parts for “wealth?” In what can only be called a case at the heart of the “substantive due process” debate in American Civil Rights/World Human Rights law, I ask this question and try to address it as follows:
A Chinese teenager has sold his kidney to buy an iPad and iPhone.
:: Commentary on this video is in Mandarin
Xiao Zheng, from the country’s south-eastern Anhui province, is believed to have met a broker on the internet who said he could help him sell his kidney for £1,825 (Yuan 20,000).
He is said to have left a message for the middleman saying: “I want to buy an iPad 2.”
Zheng then travelled to Chenzhou in central Hunan province, where he had his right kidney removed in a hospital.
His mother told reporters she was devastated by the news.
She said: “When my son came home he had a laptop computer and an Apple phone.
“Where did all that money come from? Only when he could bear it no longer did he tell us.
“He said, Mum, I sold my kidney.
“When I heard it I felt like the sky was crashing down on our family.”
The boy’s mother alerted police after she found out but they were unable to locate the broker as his phone was switched off.
The hospital was not authorised to perform organ transplants, and claimed they had no idea about the surgery because the department had been contracted to a businessman from a neighbouring province, reports said.
CEL NOTES: Does anyone else think that this is among the most interesting and challenging news items recently? A poor Chinese boy exercised his free will and made an interesting business deal which resulted in a slightly diminished life expectancy to him. How does the (forbidden) sale of body parts among the living relate or compare to the (much encouraged) willing of body parts for premature death (encouraged on state drivers’ licenses all over the United States, for example)? How does the sale of body parts relate to prostitution? To abortion? To the use of aborted fetus tissue in stem-cell research? How do all of these things relate to Slavery and the Thirteenth Amendment?
An old political riddle in the mother country runs like this: (1) We all agree that the Power of Parliament is absolute, correct? (2) We all agree that Parliament can delegate some of its power by statute, correct? (3) Historically speaking, Parliament derived its power on the one hand from the King and on the other hand from the people, correct? (4) So now that we know that the Power of Parliament is Absolute, that Parliament can delegate some of its power by statute, and that Parliament historically derived its power from the King on the one hand and the people on the other, can Parliament now by statute give away or delegate all its power, to the King, for example? Or to a “President”? Or to the “European Parliament?” would be a more likely modern problem.
Likewise the individual human being: we posit that he is free (albeit that teenage “minors” such as the Chinese teenager in this story are supposedly under their parents and/or the State’s special protection in loco parentis or parens patriae). We posit that every individual can give away some significant portion of their freedom by contract (i.e. a contract of employment, or of marriage, or of service in the military, or in the clergy, etc.). We would doubtless concede that models can and do often lose weight as part of their employment, or have plastic surgery or “implants” or collagen shots or “whatever” to enhance their careers and “marketability.” We would recognize that, whether as a matter of conscious choice or not, athletes, sports stars, and manual laborers and body builders can and do alter their bodies gain wait and build muscle mass as part of their employment, either by healthy eating or vitamins, or training programs. So we clearly recognize that “freedom of choice” includes control over one’s own body.
“Freedom of Choice….Control over one’s own body”—can we be far from the discussion of abortion? The Latin legal doctrine ius in re aliena now comes to mind: “right in the affairs [or property] of another.” Is an individual’s body an aspect of his or her life, liberty, or property? When does another person have rights in your life, liberty, or property? A father clearly has interest in a wanted child: he is the father, and has every right to protect his child, even from a (post-natally) abusive mother (although—based on personal experience—”good luck!” if the abuse is anything less than actual murder). But some seem to think that either the father or society at large has certain rights to decide when a child is “wanted” or “unwanted” prenatally. The monstrosity of internal contradictions and inconsistent, incoherent doctrine which is U.S. Federal abortion law, starting with Roe v. Wade is just a nightmare if you’re trying to make sense out of why a two-to-three month old unwanted fetus has either less or more “rights” than a six-seven month old unwanted fetus. No Supreme Court decision in the history of the United States, except possibly Scott v. Sanford or Brown v. Board of Education were ever more clearly judicial usurpations of power to fill the gap where the “overtly” political branches had either abdicated or abrogated their own power.
The debate over abortion and what to do with “fetal tissue” has become more intense and aggravated by the apparent extreme utility of fetal tissue and body parts in stem-cell research, but the conundrum that “from death proceeds life” is as ancient and iconic as “the Tree of Jesse” that grows from either the loin of the dead ancestor of the House of David or, as a blood dripping Cross, from the hill called “Golgotha” (Calvary: the Hill of the Skull).
So how can we deal with Xiao Zheng’s sacrifice of his long-term marginal well-being for his perception of his own salvation? AND YES, Yes, there are blasphemers who, before its release even, referred to the I-Phone as “the Jesus Phone”—right above the now seemingly ubiquitous adds for “Travel Girls” the on-line Urban Dictionary has these entries: “The iPhone, one of the most hyped products ever and occasionally called the “Jesus phone” like it was the Second Coming” and “The iphone by apple. A phone that makes you feel like Jesus. In fact Jesus probably has one himself.” http://www.urbandictionary.com/define.php?term=Jesus%20Phone
Abortion is of course one directly analogous “freedom” to mutilate and maim body parts (whether we like it or not, that’s what it is) which decreases “life expectancy” at the margins… at the very least, and yet through stem-cell research it could lead to longer life and greater health, cures for Alzheimers among those who are unambiguously still alive—there being so much debate in the abortion arena about “when life begins.”
Abortion, relating to human sexuality, raises the questions of prostitution and white slavery more easily than the sale of a kidney. Most states permit minors, at least under certain circumstances, to get abortions without parental consent. So why should minors not sell their kidneys? Or even their eyes? (Fantine’s repeated sale of her beautiful good healthy teeth was one of the stories in Victor Hugo’s Les Miserables (the grim 19th century novel, not the Andrew Lloyd Webber Musical) which has, frankly, given me nightmares my whole life—that along with stories of people being buried alive in ordinary cemeteries are about on the same level).
To what degree can we say that, without the reproductive overtones of abortion and prostitution, the sale of a kidney is more like “ordinary employment”—like the work of models, body builders, athletes, sports stars, or even manual laborers—who make physical sacrifices and adjustments in their bodies for purposes of making a living?
So if we were to permit Xiao Zheng to sell his kidney and thus reduce his life-expectancy, let us then ask whether he can sell his entire body and life? Under the 13th Amendment, he cannot literally sell himself into slavery—involuntary servitude for life—but could he contract for a lifetime job? Now, obviously, some people (rarely these days, but a few, like the Queen of England for instance, and some Justices of the U.S. Supreme Court) keep the same job from appointment or accession until death—but I suppose we assume that this is completely voluntary because abdication or resignation are permitted. Could one sign a contract for life employment without possibility of quitting? It has been established by precedent that no Court would ever “specifically” enforce such a contract, by compelling performance, at least not in the U.S. after and in light of the 13th Amendment.
But how about the choice for euthanasia or suicide then? That is analogous to Parliament giving away all its power, and it is most disfavored. But we allow abortion—in fact, our courts for going on 40 years have vigorously protected it as a fundamental right. Minors can have abortions. So should minors be allowed to make money by selling body parts? Minors can be body builders, models, and athletes, even sports stars, and engage in body-altering manual labor. Some people die as a result of diets, or excessive labor, or voluntary body-alteration. Can society intervene to prevent one kind of behavior but not the other?