Whose Body Is It Anyway? Justice and the

If there is one thing that is beyond the reach of others, it is our body in particular, and our person in general. Our legal and political tradition is such that we have the right to deny others access to our person and body, even though doing so would harm those who need personal services from us, or body parts. But are these rights as watertight as they seem? Cecile Fabre's controversial and original book teases out the unexplored implications that arguments for distributive justice have for the rights we have over ourselves, by looking at topical issues such as good Samaritanism, organ confiscation, organ sales, prostitution, and surrogate motherhood.

Cecile Fabre is Senior Lecturer in Political Theory at the London School of Economics and Political Science.

Acknowledgements

xiii

Introduction

1

(10)

1. A Rights-Based Theory ofJustice

11

(29)

1.1 Setting the Problem

11

(1)

1.2 Personhood, Justice, and Rights

12

(16)

1.2.1 Personhood and Justice

12

(4)

1.2.2 Interests, Rights, and Powers

16

(7)

1.2.2A Interests

17

(2)

1.2.2B Claims

19

(1)

1.2.2C Powers

20

(2)

1.2.2D Conditions for having rights

22

(1)

1.2.3 Is there a Right to do Wrong?

23

(5)

1.2.3A The claim to act wrongly

24

(2)

1.2.3B The power to act wrongly

26

(2)

1.3 Which Theory ofJustice?

28

(10)

1.3.1 Self-respect and Justice

28

(2)

1.3.2 A Sufficientist Theory ofJustice

30

(8)

1.4 Conclusion

38

(2)

2. Good Samaritanism

40

(15)

2.1 Introduction

40

(2)

2.2 Good Samaritanism: A Duty ofJustice to Support Just Institutions?

42

(2)

2.3 The Duty to Rescue: An Enforceable Duty ofJustice

44

(10)

2.3.1 Defending the Duty to Rescue

44

(6)

2.3.2 From a Moral to a Legal Right to Rescue

50

(4)

2.4 Conclusion

54

(1)

3. A Civilian Service

55

(17)

3.1 Introduction

55

(1)

3.2 Justice and the Idea of a Civilian Service

55

(8)

3.3 Objections to a Civilian Service

63

(8)

3.4 Conclusion

71

(1)

4. Confiscating Cadaveric Organs

72

(26)

4.1 Introduction

72

(3)

4.2 The Case for Confiscation

75

(9)

4.2.1 Who Should Decide?

75

(4)

4.2.2 Questioning the Analogy

79

(5)

4.3 Two Objections against the Confiscation of Cadaveric Organs

84

(12)

4.3.1 Non-conscientious Objections

86

(3)

4.3.2 Conscientious Objections

89

(7)

4.4 Conclusion

96

(2)

5. Confiscating Live Body Parts

98

(28)

5.1 Introduction

98

(1)

5.2 Arguing for the Confiscation of Live Body Parts

99

(10)

5.3 Two Objections against the Confiscation of Live Body Parts

109

(9)

5.3.1 Bodily Integrity

109

(4)

5.3.2 Freedom from Interference

113

(5)

5.4 Justice, Sex, and Reproduction

118

(5)

5.5 Conclusion

123

(3)

6. Organ Sales

126

(28)

6.1 Introduction

126

(1)

6.2 A Case for the Right to Sell and Buy Body Parts

127

(8)

6.3 Two Objections against Organ Sales

135

(14)

6.3.1 The Commodification Objection

135

(6)

6.3.2 The Exploitation Objection

141

(8)

6.4 Regulating the Sale and Purchase of Body Parts

149

(3)

6.5 Conclusion

152

(2)

7. Prostitution

154

(32)

7.1 Introduction

154

(3)

7.2 A Case for the Right to Buy and Sell Sexual Services

157

(14)

7.2.1 A Right to Buy and Sell Sexual Services

157

(9)

7.2.2 In Practice: Prostitution as a Job

166

(5)

7.3 Two Arguments against the Rights to Buy and Sell Sexual Services

171

(13)

7.3.1 Selling and Buying Sex; Selling and Buying Persons

171

(5)

7.3.2 Prostitution and Gender Inequality

176

(8)

7.4 Conclusion

184

(2)

8. Surrogacy Contracts

186

(36)

8.1 Introduction

186

(2)

8.2 A Case for the Rights to Sell and Buy Reproductive Services

188

(7)

8.2.1 Defining Surrogacy

188

(4)

8.2.2 In Favour of Surrogacy Contracts

192

(3)

8.3 Objections to Surrogacy

195

(16)

8.3.1 The Cotnmodification Objection

196

(4)

8.3.2 The Exploitation Objection

200

(4)

8.3.3 The Gender Inequality Objection

204

(3)

8.3.4 The Harm-to-Children Objection

207

(4)

8.4 The Reproductive Contract

211

(7)

8.5 Conclusion

218

(1)

Conclusion

219

(3)

Bibliography

222

(7)

Index

229

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Whose Body Is It Anyway? Justice and the Integrity of the Person

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