The Gift_ Creativity and the Artist in the Modern World - Lewis Hyde [60]
The definition is a broad one, but it allows us to make the distinctions necessary to a discussion of cases in which human beings become property of one kind or another. A rather odd problem that arose with the advent of organ transplants will illustrate the particular distinction we need at the moment. It used to be the case that when a person died the law recognized no property rights in the body. Growing out of a religious sense of the sacredness of the body, this legal formula was intended to make it clear that the executors of an estate could not make the body of the deceased into an item of commerce to be bought, sold, or used to pay debts. It even used to be the case that a man could not direct the manner of his own burial and expect the courts to back him up, because his body, not being property, was not a part of his estate. As soon as it became possible to transplant an organ from the dead to the living, however, it became clear that the sense of “property rights” being used here was too vague. The law justly restrained the right to sell, but what of the right to bestow?
In response to just this question, every state in the Union has recently adopted what is known as the Uniform Anatomical Gift Act, a law that recognizes the right of an adult to bequeath all or part of his body in the event of his death. It vests that right primarily in the person himself, of course, but in special cases it extends the right of bestowal to other people. In the case of minor children the right of bestowal lies with the parents, who may now legally donate the body of a child who has died or been killed.
Our ability to transplant body organs raises ethical questions—and has therefore required legal clarification— because with it comes the understanding that while the body from which an organ is removed may be dead, the organ itself is not. Transactions that involve life itself seem to constitute the primary case in which we feel called upon to distinguish the right of bestowal from the right of sale. The rules of gift exchange are such that what is treated as a gift retains or even increases its liveliness, and most cultures, when forced to decide, therefore classify human life as a gift (which explains why the most significant work on gift exchange outside of anthropology has focused on matters of medical policy and ethics). If human life itself must become an item of commerce, transferred from person to person or house to house, then it must be gift property and the “rights of action” must be those that appertain to gifts, not to commodities.
With this distinction in mind we may return to the problem of the woman given in marriage, beginning, as I say, at the beginning. Not only do most cultures classify human life as a gift, but they take in particular the life of a newborn child to be a gift that has been bestowed upon its parents. (Bestowed by whom? By the gods, by the earth, by the spirits of the recently dead, by the tree near the water hole which is known to make women pregnant—however the local story has it.) The recipients of this gift are its custodians so long as the child is dependent upon them, and they may, under special circumstances, exercise their right of bestowal. The child whose body organs are given away when it dies is one instance, albeit an unusual one; the young woman whose father gives her in marriage is a second. A third example again distinguishes the right of sale from the right of bestowal: our laws prohibit parents from selling their children, but they grant them the right to give a child up for adoption. There are special restrictions and guidelines under which a child is given away, of course, but they only serve to emphasize once again our feeling that if a child’s life must be transferred from one family to another, it must be a gift.* There are many cultures in which all children are given away in the normal course of events, being raised by the family of a paternal aunt, for example, and not by their