"An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation." ~ John Marshall
Who Owns the Dead?
From time to time, the injustice of the ban on buying and selling organs is raised in libertarian circles. What I want to do is raise and attempt to 'defend the indefensible' by exploring the larger question: Can you own the recently dead? In other words, under the ideal libertarian conditions of unobstructed self-ownership, could you inherit, or purchase and sell property titles to, a corpse?
The fundamental principle of libertarian theory is that a person owns his body and its produce. As many others have written, embargoes on selling one's body property constitute a direct attack on our property rights.
From conception, by occupying and using your body, you acquire undivided ownership over it. And just like any other property, you should be able to bequeath your remains to your designated heirs, adding conditions that are voluntarily agreed to, in this case requesting cremation or burial, describing the funeral, and so on. Moreover, this would also include designating your heirs as beneficiaries from the sale of your organs and/or entire body.
Today, however, the 'ownership' of the remains of a loved one is still treated based on tribal-like notions of familial obligation. But what if a parent or other relation could treat their own remains as their property: to give away or sell as they please?
Many would object that property rights for corpses would spawn all sorts of gruesome and macabre practices, such as grave robbing, morgue looting, and who knows what else.
Another objection might simply be, how can you contract to buy property from the dead? Who is their representative? Who can act for them? Surely, if you can't take it with you, you can't still claim it back here.
The solution for this is to contract for the sale of your remains before you die. To make arrangements not only for the disposition of your property and your body, but contracting to sell body parts after death occurs on agreed upon conditions made before your death. You could allow your heirs to inherit your remains, while simultaneously contracting for the sale of these remains on their behalf and naming your heirs as the beneficiaries of the sale.
Although your property rights to your body are extinguished upon your death (for the obvious reason that, no longer being alive, you can't act to express or defend them), while alive you can transfer title to your body in your will just as you would do with other property. To avoid dispute and recrimination, wills are drawn up to transfer title to property upon the death of the testator. Your wishes regarding your estate are made while you are still alive and in possession of clear titles to your estate. In that case, you should be able to pass on title to your organs or even your entire body to those you designate as your heirs or to a third party. The will would in this case be the deceased's final exchange giving ownership of his remains to the heirs and would transfer title in whole or even in part by dividing ownership between several contracted parties to the will.
Some might imagine that this scenario would lead to a world of horrors with a corpse-trading pit down at the Chicago Board of Trade, speculation on organ futures and back-alley corpse brokers. This is unlikely. The remains of loved ones have great sentimental and emotional value. So corpses are unlikely to be sold 'off-the-shelf' (needless to mention is the added social stigma, biological limitations and commercial inefficiencies of distributing the products of remains like this). Except in cases of complete body donation or sale as medical training cadavers ' and even then, the body could be returned to or bought by the family afterwards ' there likely wouldn't be open selling of corpses where no funeral or other proper respect for the dead occurs. Although, if one wants to speculate, after the terms of the will have been fulfilled, perhaps cremation of the remains may predominate ' but the selling of a corpse by an insurer or heirs without any burial at all, where the non-marketable remains are simply thrown away into the trash can, would probably be even less likely than it is today. What family or insurance firm or hospital would want that kind of publicity?
Opponents of organ/corpse selling might dissent by asking how all of this would be enforced. What really is there, other than social stigma, to prevent one's earthly remains from being harvested and thrown away with the trash ' or worse, being recycled and produced into who knows what?
First off, under our hypothetical ideal libertarian conditions, wills and last testaments would likely be nearly universal and something you would write while fairly young, regularly update and have prepared just in case of accidental death. In a world where the free market is allowed to serve the demand for organs and other body parts, it is probably likely that insurance companies would insist that their clients designate in their wills what is to be done with their organs and their body, just as with any other property they may have. And both the insurer and the client have the incentive to notify the heirs and the designated executor of the will to ensure that the client's wishes and contracted obligations to the insurer are carried out. And while some individuals may feel comfortable in leaving total discretion to their heirs over how their remains are sold and put to use, most people, I think, would want to spell out in detail what they want to happen to their body after they die, for their own peace of mind while they're still alive, if for no other reason.
As many argue, by having monetary incentives, people would have more of an incentive to give up their organs after death. So, because in a free market organs and entire bodies would bear clear market prices, there would be monetary incentives for the insured to consult with their heirs and contract to sell their organs or body with the proceeds going to their heirs as part of the distribution of their estate. I think it is likely corpses that are sold in whole or in part would be first sold to their life insurers to be resold later for scientific research, as medical training cadavers, or for organ transplantations.
So in this theoretical model, the insurer would contract an obligation to pay the heirs an agreed upon price ' most likely the market price at the time of death ' for certain organs or the entire body if that is the client's wish. As part of the policy with the client, which would follow his or her wishes and decisions, life insurers would contract to purchase all marketable organs or their entire body and compensate the heirs immediately. Or alternately, he or she may decide to donate their organs or body to a charity or other organization designated in their will and not include the body in the inheritance.
With the insurer paying up front to the heirs as ordered by the deceased's will, the life insurer would assume the risk of locating buyers. These buyers would more than likely be their fellow insurance companies, who in a free market would have the incentives to manage the organ and body procurement process. Although this is speculation, I think at least those insurers that specialize in medical and health insurance would have departments devoted to negotiating with other insurers for the purchase and sale of organs. With modern database technology, insurance companies can compile and share information about their clients' organ needs, from hearts, livers, and lungs to bone, corneas and maybe increasingly, transplant limbs and even possibly hair for wig manufacturers. The fact that these same insurers would be liable for claims from the same clients (or their heirs) who they are assisting in finding organs for would significantly contribute to the policing of the market for organs and cadavers. This would be done by insurers themselves screening for quality and compatibility in order to prevent damage claims and lawsuits from their clients and with other insurers who do business with them, as well as avoiding a black eye with the general public.
So, could you actually buy a corpse? Unlikely, since surely everyone will have made the necessary arrangements for the disposition of their remains whether from accidental or natural death, and their insurer will have the financial incentive to market the organs in order to recover the upfront or contingency payments to the heirs and to fulfill the terms of the original contract with the deceased. In this arrangement, the family and heirs of the deceased also have their natural emotional attachment to the remains and the desire to ensure that the terms of the will are strictly adhered to. The combination of family loyalty and contractual obligations will ensure that, except for corpses expressly willed for medical research and other similar needs, which could then be bought and sold, the remains of loved ones will rest in peace and security. The only people who would actually be involved in buying and selling bodies would be the insurance companies involved and medical institutes and similar organizations. And the market would finally be able to ensure that organs find their way to those in need while for those families owning the dead would increase the honor and care that the dead deserve.
Up Next: Mothers-in-Law for Sale! (Just Kidding)