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Consentability involves the power of the state. It considers whether – and when – the state should exercise its power to prevent an individual from consenting to an activity. Because the purpose of consent is to safeguard and promote autonomy, the question of consentability must be addressed within the context of autonomy. Chapter 3 introduces a framework for evaluating consentability. This chapter seeks to answer the questions that sprout from the core question of consentability. Given that the role of consent is promoting autonomy, Chapter 3 begins with a discussion of the meaning of autonomy. It then analyzes the meaning of consent and how consent can diminish or promote autonomy.
In societies which value individual freedom, consent plays a singular role. The moral authority of consent depends upon its authenticity, what we typically refer to as the “validity” of consent. Assessing the validity of consent requires recognizing the dynamic nature of consent and understanding the different conditions which are constitutive of it. Perhaps the most difficult and problematic consent condition to assess is the knowledge condition. Cognitive biases negatively affect an individual’s ability to make optimal decisions, especially given any temporal disconnect between the intentional manifestation of consent and performance of the consented-to act. People may have motivations other than self-interest. These very human cognitive and behavioral limitations and fallibilities complicate assessments of consent because they impair the knowledge condition, undermine the ability of an individual to act in her best interests, and often result in the consenter regretting her decision.
Chapter 1 examines the meaning of consent and the conditions necessary to establish its validity. It also introduces the concepts of consent construction and consent destruction.
Chapter 2 presents hard cases involving consent. These cases involve acts which are physically harmful or risky and which often challenge or transgress social norms. The first category consists of “self-directed” activities, such as suicide or body modifications. The second category, “bodily integrity exchanges,” consists of activities which involve the body on an intimate level. They pose varying degrees of risk of harm but the risk is generally considered reasonable. The basis for the objection to the activity is not that the risk is unreasonably high, but that the commercialization of the exchange or activity is morally objectionable because it commodifies the body. This category includes surrogacy contracts and kidney sales. The third category encompasses activities which involve a high risk of serious bodily injury or death. The purpose of the activity is not to harm oneself but to achieve some other objective through a dangerous or highly risky undertaking. This Chapter explores the consentability issues raised by these hard cases.
Consentability of a risky activity is advisable only where it is likely that the conditions of consent will be properly constructed in light of the gravity of the consequences resulting from the risky activity. Regretable decisions are the byproduct of constraints on human cognition and the limits imposed by socio-economic conditions. As imperfect humans in an imperfect and unfair world, we can expect some degree of regret over our past decisions. But sometimes the level of regret is so profound that the decision should never have been made. Chapter 5 addresses the first guiding principle of the consentability framework, the Regret Principle, and suggests some ways to improve the conditions of consent.
Opportunistic conduct has a negative effect on consent and undermines social trust necessary for cooperation and social cohesion. Chapter 6 addresses the second guiding principle of the consentability framework, the Opportunism Corollary, and suggests ways to reduce opportunism. These proposals include imposing a duty of candor in certain exchanges, imposing restrictions on advertisements and solicitation, and requiring training and licensing for certain activities.
Chapter 7 revisits the hard cases applying the consentability framework and proposes that consentability should be based, not upon the fact of payment, but upon the threat that an activity poses to one’s future self. Where the threat to autonomy is high, the act should be prohibited or “inconsentable” for most people. For example, certain medical trials might be restricted to those who understand the risks of the procedure (perhaps only other medical personnel) or to those who have nothing much to lose (because they are suffering from incurable pain, a terminal illness or imminent death). However, as more information becomes available about the potential consequences of an experiment or procedure, the knowledge condition may be more robust for more people with the result being that more people may validly consent to participate.
Chapter 4 discusses how contract law affects consentability. Because a contract expresses a present intent to bind oneself to do something in the future, there always lurks the potential for a party to change her mind. But the very purpose of a contract is to ensure performance even when a party at a later time no longer wishes to perform. The binding nature of a contract means that it can be a double-edged sword as a tool for promoting autonomy. All contracts require consent, but not all consentable acts are – or should be – contractable Chapter 4 concludes that, in some cases involving autonomy, contract enforcement would pose harmful societal effects. This chapter examines contract law through the consentability framework and explains how consentability determinations are often based upon contractability.