Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts, and Other Things.

• Author: Robertson, John A.

By Margaret Jane Radin. Cambridge: Harvard University Press. 1996. Pp. xiv, 279. $35.

When traveling to my office at the University of Texas, I often pass the Austin Plasma Center. At the edge of the University near several downscale restaurants, people line up in the morning to sell their blood. I glance quickly as I drive by, discomforted by the desperate look on their faces.

Austin also has a thriving trade in human research subjects. Pharmaco, Inc., started by a local entrepreneur and sold recently for $95 million, provides drug companies with "volunteers" for toxicity studies.(1) These subjects must be reliable and committed, and thus are paid more than the plasma sellers. One local filmmaker raised seed money for his first feature film by serving as an experimental subject(2)

These practices typify the many transactions involving the payment of money for uses of the body or its parts that occur daily throughout the country. The world's oldest profession sells sex. Sperm and egg "donors" sell their gametes, and surrogate mothers their gestation. The intimacy of psychoanalysis is bought. Professional football players "sell" the muscles and tendons that tear and atrophy in the course of their playing careers, as well as the spectacle of their battering and being battered by opposing linemen. Those who work in construction, manufacturing, agriculture, and countless other jobs trade their toil and sweat for money. Indeed, workers who take on greater risks to life and health often are paid higher wages.(3)

While many of these practices form part of the fabric of daily life, others are highly controversial, particularly proposals to extend the market to the sale of babies, human organs and tissue, and a woman's gestational capacity. Opponents of markets for body parts and reproductive services raise several concerns. One is the fear that these practices will pervade large areas of life formerly immune from market practices, particularly those related to life and death. For example, many developments in the medical arena, such as organ transplants, assisted reproduction, and genetic engineering, rely on markets to further innovation and to allocate access to new technologies. As further proof of the pervasiveness of market rhetoric, opponents also point to welfare economists, who analyze a person's choices about marriage, reproduction, and other major life events as cost-benefit, profit-maximization decisions.(4)

A second concern is that extending markets to body parts and intimate services will demean both participants and society. A market approach threatens to exploit poor and vulnerable persons, often women. But even if problems of coercion and exploitation are overcome, opponents of markets for body parts and intimate services claim that money payments and the logic of bargain and sale cheapens fundamental aspects of human relations. To prevent this, many would restrict money exchanges for body parts and intimate aspects of the self, while trying to undo the market rhetoric that has become so pervasive.

The issue, however, is highly vexed. Given the deep societal commitment to personal autonomy and to reliance on markets to allocate most goods and services, how can society deny the use of markets to match those who would buy and sell body parts and reproductive services? A core notion of modern liberalism is that people are free to do as they wish, subject only to the limitations of the harm principle, ordinarily construed to mean tangible harm to others. Because persons buying or selling the service or part in question choose freely and others are not harmed tangibly, limiting the market smacks of a paternalism that is inconsistent with personal freedom. If not paternalistic, the limitation still may be faulted as an attempt to foist a particular moralistic view of human relations on everyone.(5)

Margaret Jane Radin's(6) book Contested Commodities is an ambitious and stimulating, but ultimately unsatisfying, exploration of these issues. Building on earlier work, in particular her oft-cited 1987 Harvard Law Review article,(7) Radin has written one of the few books that attempts to treat "contested commodification" and its dilemmas -- the questions of whether market transactions should extend to body parts and intimate aspects of the self -- across a range of issues. After describing the book's virtues, I shall note its limitations and show how Radin's approach fails to resolve two contemporary debates in bioethics over the role of markets.

RADIN'S CONTRIBUTION TO THE DEBATE

Professor Radin's book has several strengths. One is its focused analysis of an important issue of liberal theory and public policy. Although commentators and policymakers often raise fears of commodification, few have attempted to confront the topic with Radin's depth and rigor.(8) Despite her attempt at a systematic discussion, however, she ultimately eschews any claim to grand theory, and settles instead for presenting "a pragmatic philosophical and legal approach" to thinking about the extension of markets to intimate exchanges (p. xi).

A second strength is the broad range of knowledge that Radin brings to bear: she draws on Hobbes, Bentham, Hegel, Kant, Mill, Marx, and Lukacs, as well as contemporary thinkers such as Posner, Epstein, Becker, Rose-Ackerman, Calabresi, Walzer, Nussbaum' and Sen to advance her views. She also addresses a range of applications, including not only the standard issues of selling sex (pp. 132-36), organs (pp. 125-26), and babies (pp. 136-40), but also questions of free speech (pp. 164-83), tort remedies for pain and suffering (pp. 184 205), and public choice theory and democracy (pp. 206-23), which are not usually discussed in the context of human commodification. The richness and range here will be useful to anyone thinking through the role of markets in traditionally nonmarket areas.

A third strength is that Radin provides a generally useful, though occasionally muddy, conceptual framework for thinking about these issues. She proceeds by contrasting two archetypes -- universal commodification and universal noncommodification -- and then shows how a middle ground of incomplete commodification best resolves several contested issues.

Radin first presents the view that she calls universal commodification. According to this view, everything is commensurable and can be reduced to money and market exchange unless market failures justify regulation (pp. 2-15, 21-29). Although this view is partly a heuristic archetype, she finds ample evidence of its existence in the writings of Richard Posner, Richard Epstein, Gary Becker, and others of the Chicago school (pp. 3-5, 22-29). An important aspect of universal commodification is its market rhetoric, which Radin views as having effects independent of the transactions that actually occur (pp. 6-14).

Radin calls the competing view market-inalienability. She uses inalienability to mean the prohibition of voluntary transfer by sale, as distinguished from the belief that certain personal attributes simply are incapable of being severed from the person (pp. 16-20). Market-inalienability in Radin's sense denotes a policy, or at least an aspiration, to prevent commodification (pp. 20-21).

Radin also discusses several liberal approaches that attempt to limit commodification through compartmentalization, including a conceptualist strategy (pp. 32-34), a Kantian-Hegelian approach (pp. 34 40), and Michael Walzer's attempt to carve out spheres of activity that are not suitable for market transactions (pp. 46 49). She also discusses attempts to justify market-inalienability as a prophylaxis to promote free choice (pp. 49-53). She finds all such approaches inadequate because, in addition to problems unique to each attempt, they make no attempt to link noncommodification and market-inalienability with a theory of human flourishing.(9)

To correct these deficiencies, Radin makes her greatest contribution to the debate: she attempts to articulate a theory of human flourishing to ground arguments for market-inalienability. While this articulation rarely provides determinate answers,(10) Radin advances the discussion significantly simply by providing this foundation. She constructs "possible contours of a pragmatic approach to reimagining personhood and human flourishing" that focus on those aspects of the self that are integral to it and thus should never be marketed (p. 54). Radin articulates this view as follows:

I believe that a better view of personhood should understand many

kinds of particulars -- one's politics, work, religion, family, love,

sexuality, friendships, altruism, experiences, wisdom, moral commitments,

character, and personal attributes -- as integral to the self. To

understand any of these as monetizable or completely detached from

the person . . . is to do violence to our deepest understanding of what

it is to be human. [p. 56]

Radin explores this view by stressing the contextuality of identity and by distinguishing fungible and commensurable property from noncommensurable, or personal, property, which is inseparable from the integrity of the holder -- from the integrity of the self.(11) But how does one know what is central to the self? Here Radin draws on the ideal theories of personhood developed by Sen and Nussbaum, while recognizing the need for nonideal theory and a reasonably flexible, though stable, context. She relies on Nussbaum's theory of "Aristotelian essentialism" to construct a theory of human nature that considers the characteristics and capabilities that enable each person to develop into a fully functioning human being. Radin lists these characteristics and notes how they differ from traditional liberalism and indeed reflect a sense of connection that is close to the nurturing traditions of women that some feminists emphasize (p. 72). In her view, these aspects of the self are incommensurable with each other or with money and cannot...