| The question of whether human organs should be "altruistic gifts" or subject to market norms opens up the deeper problem of how to think about precious things, ownership and obligation. This thesis offers a resolution to the theoretical impasse created by this presumed binary by reconceptualizing the transfer that takes place in the context of organ "donation". Utilizing the more complex conception of gift-exchange (as something that is both free and obligatory) suggested by Marcel Mauss, this thesis inaugurates a new account of the "economy of the sacred" that lies at the heart of classical Jewish law.;Close readings of Talmudic and later Rabbinic texts provide the basis for the articulation of a particular conception of property whereby, given the definitional premise of divine ownership, the notion of "return gifts" to God plays a foundational role. Based on the Rabbinic development and extension of institutions contemplating transactions with the divine realm of ownership such Temple sacrifice, what is developed is a general theory that presumes all property to be ultimately encumbered by a divine lien. The Rabbis derive the substantive content of the divine lien by extrapolating from the complex Temple/agricultural system structured to ensure continuing sustenance for the priests and poor. All property (including the human) is understood to contain (divine) lien-related obligations, triggered by the imperative (or mitzvah) to preserve human life. Acts of "charity" (tsedakah), life-saving and healthcare fulfill the requirement of making "return gifts" to God. At the same time, this lien-based requirement applies with equal, if not primary, force to the self.;This thesis offers a model of property and obligation not premised on social contract. Based on Rabbinic sources, it theorizes an institution of property built upon a prescription for distributive justice that operates as an inherent lien inuring to the benefit of the needy. Thus, organ transfer for transplantation is conceptualized neither as a sale (given the obligation to save life, and the special status of human body parts in relation thereto) nor as an "altruistic gift." The thesis offers recommendations for responding to the shortage of organs for transplant. |
