ABSTRACT
Medical law in Britain is characterized by a series of anti-market prohibitions. The sale of organs, gametes and surrogacy services is either banned or subject to severe restrictions.1 Brokering and advertising are outlawed. These restrictions have been subject to harsh criticism, particularly from ethicists. Ethicists argue that such paternalistic restrictions cannot be justified in terms of coherent rational argument (Wilkinson 2003). They reflect instead a set of ill-defined taboos and prejudices. But this approach abandons rather too soon the analysis of statutory limitations on markets in medicine. In particular it fails to take seriously the historical and cultural context of anti-market arguments. In this chapter, I attempt to remedy that defect, drawing on rhetorical analysis and literary criticism to trace the political background to legislative prohibitions on trade in the human body and some of its functions. In short I propose that anti-market arguments instantiate and extend certain utopian aspirations shared by the founders of the National Health Service. Their rhetorical plausibility depended significantly on their resonance with this general vision of the health service as an enclave, an exemplary zone of non-commodified human relations. It is equally true that the declining plausibility of anti-market arguments is linked with the perceived failure of this broader vision of the NHS. In the last two decades the commodity form has been gradually reasserted across the range of medical practice. Patient autonomy, which is used to justify commerce in human tissue or surrogacy services, resonates with market-based reforms to the structure of the NHS. The chapter is organized as follows. The next section takes as its particular focus the ethical and legal debate regarding commercial surrogacy. The utopian backdrop to this debate is then elaborated using contemporary literary and social theory. I pay particular attention to the formal aspects of fictional and political utopias. The notion of the utopian enclave can be discerned in the speeches and writings of Aneurin Bevan,
founder of the NHS, and in the work of Richard Titmuss, its most important academic proponent. Decommodification of clinical work is framed in utopian terms with reference to the writings of the nineteenthcentury visionary William Morris. The following section reads Professor Ian Kennedy’s germinal Reith Lectures of 1980 as an anti-utopian attack on the enclave status of health care under the NHS. This stance has also been shared by Health Secretaries over the last two decades seeking to reform the Service in the name of choice and accountability. In the penultimate section I seek to reveal the hidden utopian dimensions of this new dispensation. Drawing on the work of David Harvey and Zygmunt Bauman, I argue that the enclave form has been replaced by a utopian idealization of processes, such as market exchange, rational ethical debate and the law itself. In conclusion I suggest a number of anti-utopian critiques of this new common sense.
