This paper was first presented and discussed at the Council's June 2006 meeting.
It was prepared by the author solely to aid discussion and does not represent the official views of the Council or of the United States Government.
Organ Procurement: What are the Questions?
Gilbert Meilaender
The richest and most helpful bioethical discussions are, I
think, neither pure theory nor simple policy prescription. Rather,
they take up policy questions that make a practical difference in life,
but they do so in the context of more far-reaching philosophical
reflection that probes the assumptions framing everyday policy
discussion. At any rate, if a President's Council on Bioethics has
anything helpful to offer, it will reflect, I believe, this sort of
two-pronged approach. The issue of organ procurement and
transplantation, which the Council began to explore at its April, 2006
meeting, seems naturally to invite both sorts of treatment. It raises
obvious and recurring policy questions; yet, it is hard to think long
about those questions without being forced into more conceptual and
difficult-to-articulate reflection on the nature of our humanity.
In some respects, however, one might think--or I, at least,
am tempted to say--that the Council began in medias res. In the
presentation of Robert Veatch, we began with certain givens: a
shortage of organs for transplant, which shortage it was
imperative to solve. Against that background, we were presented
with six recommendations (some more far-reaching than others) for ways
to increase the number of organs available.1
Professor Veatch is quite persuasive in his admirable
refusal to use linguistic formulas that conceal more than they clarify
(e.g., "presumed consent" for what is in fact "disguised
conscription"). Nevertheless, were we to begin where he began,
the work of a Council on Bioethics would involve less the examination
of "given" assumptions, and more a simple "yea" or
"nay" to various recommendations for policies aimed at
solving an organ shortage. That might fulfill our charge "to
explore specific ethical and policy questions" in biomedical
ethics, but it would not fulfill our charge "to undertake
fundamental inquiry into the human and moral significance of
developments in biomedical and behavioral science and
technology."2 To
hold these two tasks together, we must also ask what we mean by a
shortage of organs for transplant, why it might be imperative to solve
that shortage, and in what sense an organ of the body is a thing that
should be available for transfer at all (even apart from asking whether
it should be a commodity that could be bought or sold). I would not
myself know how to respond to Veatch's recommendations (or why,
even, to prefer them to what he termed the "nuclear option"
of organ conscription) without thinking through those deeper background
questions.
Veatch was not the only presenter who began in medias
res. The exchange between Richard Epstein and Francis Delmonico,
which focused on the wisdom of establishing a market for organ
procurement, did so as well. On the face of it, I think any observer
would be hard pressed to deny that Epstein had the better of the
argument. That is, if the exchange involved an argument in
which one looks for persuasive reasons, he had the stronger case.3 Dr. Delmonico was forced
to recur a number of times to the supporting letters he had provided
(from the United Network for Organ Sharing, from the American Society
of Transplant Surgeons, from the National Catholic Bioethics Center,
from the National Kidney Foundation, and from the Transplantation
Society), noting that their combined weight made it unlikely that
Professor Epstein's arguments would meet with much legislative
success. To this, Epstein quite reasonably replied that he was not
arguing that he had more of these heavy hitters supporting him; he
simply believed that their positions were incoherent and, hence, should
not persuade a thoughtful and reflective body.
Here again, however, we are driven back to more fundamental
questions, which were not really articulated in the Epstein/Delmonico
exchange. Even if we simply assume that there is a shortage of organs
for transplant and that it is imperative that we overcome this
shortage, how would we decide whether a market in organs was an
acceptable way to meet that imperative? How decide without first
asking ourselves what organs and bodies are? Or, how decide without
asking ourselves who the person is who, with a kind of sovereign
freedom, disposes--whether by gift or by sale--of bodily organs? After
all, not everything is for sale, and we cannot decide whether a thing
is a commodity that could properly be marketed without thinking about
the kind of thing it is.
We do not want to think about this, however, because it
would force us back to some disquieting questions we would rather not
raise; hence, we are tempted to prefer beginning in the midst of
things, with particular questions that seem (even if deceptively so)
more manageable. To his credit, Epstein sees this. In one of his
articles provided for the Council's background reading, he notes
arguments Leon Kass had offered against the sale of human organs, and
then he puts his finger on the point we would like to avoid:
"Taken at one level, Kass's arguments are so strong that they
would preclude gifts as well as sales . . . ."4
We have trained ourselves to think that organs are the sort of thing
that can be given in the good cause of saving lives. But it now
turns out that there are still more lives to be saved. Why then,
exactly, are organs not the sort of thing that can also be sold in this
same good cause? (Does not the mortician, as Epstein perceptively
notes, make a tidy profit from the handling of organs and bodies, while
managing to carry out this handling with decorum?) If we've
learned to think of the organ as a separable part that can be offered
to another, if we no longer see this offer as a kind of problematic
self-mutilation, then it is hard to know why sale of these separable
parts should be forbidden. The organs procured will save more lives
and mitigate the shortage that operates as a given in the argument;
hence, Epstein's concern will be met. And it may be that the
freedom to sell a kidney will also help the condition of the poor;
hence, one of Veatch's concerns will be met.5
I, by contrast, would like to ask some different
questions: In what sense is there a shortage of organs for transplant
which must be overcome? On what basis, if any, should we
suppose that the organs of one's body ought to be available for
transplant into the body of another? Without making at least some
progress in addressing these questions, I do not know how to think
about whether proposals for increasing the number of organs for
transplant--in particular, proposals for some sort of market in
organs--make moral sense.
Death as a problem to be solved
If a man is dying of kidney failure, and if his life might
be prolonged by a transplanted kidney but none is available for him,
those connected to him by special bonds of love or loyalty may quite
naturally and appropriately feel grief, frustration, even outrage.6 We are heirs of a
tradition of thought that teaches us to honor each person's life as
unique and irreplaceable.7 Although the sympathy any of us feels is inevitably
proportioned to the closeness of our bond with one who dies, we are
right to honor the grief, frustration, and outrage of those who
experience a loved one's death as uniquely powerful.
These quite natural feelings fuel the belief, widely shared
in our society, that it is imperative to make more organs available for
transplant; however, the same feelings of urgency and desperation also
make it difficult to think critically about assumptions driving the
transplant system in general. To take a very different example, we may
also be experiencing a "shortage" of gasoline in this
country. Relative to the demand, the supply is scarcer than we would
like. In the face of such a shortage, we could permit drilling in
heretofore protected lands or we could ease the general demand for oil
by developing alternative energy sources such as nuclear power. We
could also learn to moderate our desires and demands for gasoline,
altering the pattern of our lives. So there are ways to deal with the
gasoline shortage that might work but would--at least in the eyes of
some--exact too high a moral price. And there are ways to deal with
the shortage that would teach us to modify our desires in such a way
that we would no longer think in terms of a shortage, but they would
entail accepting certain limits on how we live. Upon reflection, we
may well decide that neither of these answers to the gasoline shortage
is a wise direction to take, but it would be a frivolous person who
continued to speak of a "shortage" without considering
carefully both sorts of alternatives: exploring new sources of energy,
or moderating our demands and expectations. Most of the time, though,
when the subject is organ transplantation, we attend only to the search
for new ways to procure organs.
If, however, we were to moderate the demands we make on
medicine, we might be less pressured to think in terms of an organ
shortage. Over against our natural desperation at the impending death
of one who cannot be replaced, over against our natural tendency to see
death as an evil to be combated, we must set another angle of vision
about what it means to be human. Each of us is unique and
irreplaceable; that is true. But each of us also shares in the limits
of our finite condition; we are mortals. "The receiving of an
organ does not rescue the living from the need to die. It only defers
the day when they will have to do their own dying."8 Tolstoy's Ivan Ilyich knew
well the relentless logic of the syllogism: if all men are mortal, and
if Caius is a man, then Caius is mortal. But that logic seemed both
absurd and unjust when he tried to slot his own name, Ivan, into the
syllogism in place of Caius. Yet, there is truth in each angle of
vision.
We should not deny the existential anguish; we should also not deny the
homely truth that each of our names can and will find its place in the
syllogism. To refuse to acknowledge that second truth would turn
medicine into nothing more than a crusade against death, plagued
constantly by a "shortage" of cures for one or another deadly
ailment. In other areas of medicine we are ready to brand that
approach as inadequate, and a recognition of our mortality ought to
elicit similar caution when speaking about a shortage of organs for
transplant. As Hans Jonas argued in one of the seminal articles of the
bioethics movement in this country, progress in curing disease is not
an unconditional or sacred commitment. The survival of society is not
threatened when we do not conquer disease, however sad this may be for
those who suffer.9
From one angle, as long as one irreplaceable person dies whose life
might have been prolonged through transplantation, there will always be
an organ shortage. From another angle, that is just the truth of the
human condition. If we turn organ procurement into a crusade, we make
of death simply a problem to be solved rather than an event to be
endured as best we can, with whatever resources of mind and spirit are
available to us. To be sure, when a particular person--Ivan--faces
death, we confront a problem that calls for our attention and our
attempts to cure. But not only that. We also face the human condition
that calls for wisdom and care. Sometimes, at least, we will undermine
the needed wisdom and care if we think of this person's death as
only or primarily a problem which it is imperative that we solve.
Starting at the beginning
Freed of the sense that we are under some imperative to
secure more organs, we may be able to think again of the price we would
pay--perhaps, to be sure, a justified price--to increase the supply of
organs for transplant. It may be that the limited supply of organs is
due to thoughtlessness, selfishness, fear, or simply limited altruism.
But it may also be based on weighty--if difficult to
articulate--beliefs about the meaning of human bodily life. If our
problem is thoughtlessness, selfishness, fear, or limited altruism,
financial incentives might "solve" the problem. But if there
are deeper reasons at work, reasons that have to do with what we may
even call the sacredness of human life in the body, we pay a
considerable price if we seize upon certain means to increase the
supply of organs for transplant.
Perhaps, then, we need to start with the disquieting
question that we prefer to pass by. Forget the issue that arises in
medias res, whether some kind of market in bodily organs could be
morally acceptable. Start farther back with the now widely shared
presumption that it is morally acceptable--indeed, praiseworthy--freely
to give an organ when this donation may be lifesaving. In the
encyclical letter, Casti Connubii, Pope Pius XI wrote:
"Private individuals . . . are not free to destroy or mutilate
their members, or in any other way render themselves unfit for their
natural functions, except when no other provision can be made for the
good of the whole body."10 How does one get from that to Pope John Paul II's words?:
"There is an everyday heroism, made up of gestures of sharing, big
or small, which build up an authentic culture of life. A particularly
praiseworthy example of such gestures is the donation of organs,
performed in an ethically acceptable manner, with a view to offering a
chance of health and even of life itself to the sick who sometimes have
no other hope."11
John Paul's words notwithstanding, we would not
ordinarily want a physician whose "treatment" harmed us in
order to bring benefit to someone else. And ordinarily a surgeon would
not think of operating on a person in order to help someone other than
that person himself. For we know a person only in his or her embodied
presence. In and through that body the person is a living whole. For
certain purposes we may try to "reduce" the embodied person
simply to a collection of parts, thinking of the person (from below)
simply as the sum total of these parts. But we do not know, interact
with, or love others understood in that way; on the contrary, we know
them (from above) as a unity that is more than just the sum of their
parts. The very idea of organ transplantation upsets these standard
assumptions in a way that is problematic and that calls for
justification.
Procuring organs from cadavers
Understandably, therefore, we are inclined to turn first to cadaver
donation, to procuring organs for transplant from (newly) dead bodies.
After all, it may not seem to raise these troubling questions so
acutely. Even here, however, a certain caution is in order.
There is something uncanny about a corpse, for it is
someone's mortal remains. We would, I think, worry about a
medical student or a mortician who felt no need to stifle within
himself a deep reluctance and contrary impulse the first time he was
called upon to handle or cut a human corpse. Reverence for the dead
body is not (we think) entirely incompatible with using it for a good
purpose, but surely there is much that this reverence would not
permit. It is one thing--and not, we hope, incompatible with
reverence--that medical students should, with fear and trembling, learn
needed skills through dissecting a corpse. Would we think it equally
unproblematic if corpses were dissected in high school biology
classes? We accept that some people, out of a deep desire to serve the
wellbeing of those who come after them, may give their corpses for
dissection and study by medical students. Would we think it equally
unproblematic if they freely donated their bodies for the manufacture
of soap?
If we really freed ourselves of reservations and reverence, we could
develop the bioemporia filled with neomorts that Willard Gaylin
envisioned more than thirty years ago: repositories of brain dead but
breathing, oxygenating, and respiring bodies available for countless
uses (medical training, drug testing, experimentation, harvesting of
tissues and organs, and manufacturing).12 That few of us would be willing to turn in
such a direction indicates, again, that certain deep human impulses
must be overcome before we use the dead human body, even for the best
of purposes--and not all uses would be acceptable to us, even were the
body freely donated for such use.13
That the corpse from which an organ is taken for
transplantation is someone's mortal remains (and not just a
collection of readily available organs) is also indicated by how hard
it is for us not to think that the presence of a transplanted organ
(or, at least, of certain organs) somehow brings with it the presence
of the person from whom that organ was taken. Just such psychological
complexities are at the heart of Richard Selzer's profound and
provocative short story, "Whither Thou Goest," anthologized
in the Council's reader, Being Human. When Hannah Owen
writes to Mr. Pope seeking permission to listen for an hour to the
heart of her deceased husband, which now beats in the body of Mr. Pope,
she does so, as she puts it, because of "the predicament into
which the 'miracle of modern science' has placed me." She
professes no interest at all in Mr. Pope himself other than as one who
houses something she used to know well and longs to hear again. Such
is the mystery of the body and its parts, however, that a reader may
wonder about this when, after finally receiving permission to listen to
the heart now beating in Mr. Pope, Hannah is "nervous as a
bride." For her, at any rate, the heart now beating in Mr.
Pope's chest continues to carry the presence of her husband.
This is fiction, of course, but it may be profound
humanistic wisdom as well. That the organ, the body, and the person
for whom that body is the locus of presence are not so easily separated
in our psyches is well known. Thus, Renee Fox and Judith Swazey noted
that "the gift of an organ may be unconsciously perceived by donor
and recipient as an exchange through which something of the donor's
self or personhood is transmitted along with his organ."14 Writing more than a decade
later, Fox and Swazey had not found reason to change their mind. Many
recipients of transplanted organs, they wrote, have "apprehension
about absorbing a donated part of another known or unknown individual
into his or her body, person, and life." Doing so evokes deeply
buried "animistic feelings" people have about their bodily
integrity, and they tend to feel that not just physical but also
psychic qualities are transferred from the donor.15
Thus, we should not too quickly assume that transplantation
of organs even from a dead body is unproblematic. Those mortal remains
retain the "look" of a person's life: not just a
mechanism whose parts work together well or poorly, but the unity of
that individual life. The mortal remains signify the history of that
life in all its connections, especially with those to whom the person
now dead was closely attached. It is not bad--indeed, it is highly
desirable--that they should honor their shared history and mourn their
loss by demonstrating reverence for that embodied life, and such
reverence is quite a different thing from parceling out the component
parts of a corpse for the sake of achieving desirable goals. In order
to relieve suffering or save life some may overcome these considerable
reasons for reluctance to give organs for transplant after death, but
it would be deeply troubling if we experienced no reluctance that
needed overcoming--if our thinking and acting were governed solely by
the sense of an organ shortage that needed to be solved. "There
is," as William F. May once put it, "a tinge of the inhuman
in the humanitarianism of those who believe that the perception of
social need easily overrides all other considerations."16
Cadavers (?) in a liminal state
Having come this far, we may also need to remind ourselves
that the language of procuring "cadaver" organs for
transplant is in some respects misleading. This is not the sort of
cadaver upon which medical students hone their skills. Cadaver
donation generally means taking organs for transplant from bodies
which, though brain dead and sustained entirely by medical technology,
do not look dead. (Hearts still beat, blood still circulates,
respiration continues.) The very concept of "brain death"
that makes this liminal state possible has come under new challenge in
recent years, and it is a challenge that will eventually have to be
faced, lest our criteria for death seem to be determined chiefly by our
desire to procure organs for transplant.
It is striking, for example, that when organs are taken
from a brain-dead but heart-beating corpse, the dead body is first
anesthetized, lest its blood pressure rise precipitously. Thus, even
the brain-dead body seems to manifest certain integrative functions.
My point here is not to argue that we should return exclusively to
cardiopulmonary criteria for determining death; on the contrary, there
is still much to be said in favor of the concept of "whole brain
death." Rather, I simply note that, even if this body with its
heart still beating is a corpse, we would not bury it until it had
"died all the way" (a formulation which, even if inexact,
indicates that it is not foolish to think of such a body as in a kind
of liminal state closely related to the condition of still living
donors).
What we are in danger of losing here is a humane death.
Indeed, death itself becomes a kind of technicality--an obstacle to
organ procurement, which obstacle must be surmounted in order to
procure the body's parts and accomplish our worthy purposes. This
is equally evident in recent attempts, motivated again by a supposed
imperative to diminish an organ shortage, to plan the deaths of
patients in such a way as to procure organs almost immediately after
the cessation of heart and lung activity. A patient on life support is
prepared for surgery, taken to the operating room, given drugs that
will protect the viability of his organs after death, removed from life
support, declared dead two minutes after cardiac arrest--at which time
his organs are removed for transplant. Thus, in an age that has
worried greatly about having death occur in the dehumanizing context of
machines and technology, our desperate sense that it is imperative to
procure organs has led to precisely the opposite: the loss of a humane
death and acceptance of what Renee Fox has called a "desolate,
profanely 'high tech' death."17
Living donors
We have yet to consider the truly living donor--not one in
the liminal state of the brain-dead-but-heart-beating cadaver, but one
who accepts injury to his or her body in order to relieve the suffering
or preserve the life of another (usually, though not always, another to
whom one is closely bound by ties of kinship or affection).
Transplantation in these circumstances raises profound questions about
the relation of organ(s), body, and person.
We need not question the charitable motives of the donor, even what
Pope John Paul II termed the "heroism" of such an act.
Nonetheless, it involves intending one's own bodily harm in order
to do good for another. It is, as I noted earlier, the sort of thing a
surgeon would normally not even consider doing. Indeed, near the dawn
of the transplant age, noting the way in which our justifications of
transplantation tend to imagine the person as "a spiritual
overlord, too far above his physical life," Paul Ramsey suggested
that, in the face of that exaltation of freedom to use the body for our
purposes, physicians would "remain the only Hebrews," looking
upon each person's life as a sacredness in the body.18 What, then, if anything,
makes surgical mutilation acceptable--even good--in the context of
transplantation?
One way to address this question would involve trying to
overcome the close connection of organ, body, and person. We may train
ourselves to think of the organ as entirely separable from the body,
and the body as little more than a useful conveyance for the person.
Thus, for example, Sally Satel has recently suggested that thinking of
the body's parts as not for sale is "outdated
thinking."19 But,
partly because it is not easy so to train ourselves, and partly because
the very difficulty of doing so suggests that there might be something
dehumanizing about the attempt, we have turned in a quite different
direction: the idea of donation. To think of the transplanted organ as
a gift means that its connection to the donor's body remains and is
recognized. Whatever psychological complications this may entail, it
protects us against supposing that our bodies are simply collections of
parts that could be "alienated" from ourselves in the way a
thing or a commodity can be.
One who agrees to donate an organ gives himself or
herself--not a thing that is owned, but one's very person.20 A gift--even a gift of
something other than one's body--carries with it the self's
presence in a way that a sale and purchase, for example, do not. This
accounts, in fact, for the very strange mixture of freedom and
obligation that is part of the experience of receiving a gift. One who
gives has no obligation to do so and acts, therefore, with a kind of
freedom and spontaneity that are not possible for the one who receives
that gift.21 And to
receive it is to incur an obligation to use the gift with gratitude.
If I buy from a retiring professor a rare edition of Kant's works,
I have not failed in any obligation of gratitude to him if a year later
I give those works to a paper recycling drive. But if, having invested
himself in those writings over the years, he now makes a gift of them
to me, I am constrained to receive and use the gift with gratitude; for
it carries his presence in a way that a purchased commodity could
not.22
It misses something, therefore, to say, as Robert Veatch does, that the
donation model "is built on the premise that one's body, in
some important sense, belongs to one's self."23 That model of ownership will sever the
person from the body, and, once this has been done, it will be a short
step to pretending (the psychology of it will be trickier) that the
"donated" organ, being utterly alienable, retains no
connection of any sort to the self who has given it. We have been wise
not to think of our bodies that way, and, instead, to turn to the
concept of donation as a way of conceptualizing for ourselves what
happens in organ procurement and transplantation. To think otherwise
would lose the human and moral significance of our bodies as the place
of personal presence.
To be sure, thinking in terms of donation, gives rise to
its own difficulties. "It is rare," as Jennifer Girod has
put it, "that an individual or family can give a gift that costs
others so much."24
Even with the supposed shortage of organs, we spend billions of dollars
yearly on organ transplantation (and the follow-up expenses, even apart
from complications). This "gift" costs us all in government
payments, increased insurance premiums (or less insurance coverage for
other medical services). and in less attention to preventive or chronic
care medicine.25
Nonetheless, the language of gift or donation is the only way we have,
while permitting transplantation to go forward, to continue to honor
the sense in which a person is an embodied whole, and the sense in
which a transplanted organ carries with it continued attachment to the
one who gives not just an organ but himself or herself.
We might, of course, even while continuing to think in
terms of donation, try to make the gift seem less sacrificial.
Especially when the organ is transplanted into a loved one with whom
the donor's own wellbeing is bound up, it might make some sense to
characterize it is as less a mutilation than a fulfillment (at some
higher, spiritual level) of the self. Just as an organ might be
surgically removed if that was necessary for the health of one's
body, so also perhaps the good of the body might be subordinated to the
wellbeing of the person as a whole. Roman Catholic moral theology has
sometimes used a "principle of totality" to refer to this
moral and spiritual wholeness of the person.26
Certainly, however, such reasoning could take us only so
far. If it may give a justifying rationale for donation of a kidney,
we would probably draw back from similar reasoning used to justify the
gift of a heart from a living donor. And the same thing would be true
were we to forego this sort of reasoning (about a higher moral
wholeness achieved by mutilation of one's body) and simply use the
language of love and gift to explain the acceptability of harming
one's own bodily self for the sake of another. Then, too, there
would be limits to the kind of harm we would allow a living donor to
incur: a kidney or a portion of the liver, but not a heart.
But, one might ask, why? Why such limits to the "gift
of life"? The only answer, I think, is that, even when we
override it for very important reasons, bodily integrity continues to
be a great good that cannot simply be ignored in our deliberations. It
continues to exert moral pressure, and, if it permits some gifts of the
body, it does not permit any and all. And it exerts this pressure
because the person (though more than just body) is present in and
through the body--not as a mechanism composed of separable and readily
alienable parts, but as a unified living whole that is more, much more,
than simply the sum of those parts.
Unless we appreciate the deep-seated and legitimate reasons
for reluctance to give organs for transplant, we are doomed to plunge
ahead as if the greatest imperative under which we labor were
fashioning means to procure more organs. If, then, in order to try to
solve a perceived shortage of organs, we turn to means of procurement
that invite and encourage us to think of ourselves as spiritual
overlords, free to use the body and its parts as we see fit in the
service of good causes, we may save some lives, but we will begin to
lose the meaning of the distinctively human lives we want to save.
Even a practice of donating organs can be abused, of course. But
permitting organ procurement only through the practice of donation
allows us, even if just barely, to retain a sense of connection between
the part and the whole, the person and the body--allows us, that is,
not to destroy ourselves in seeking to do good.
_______________________
ENDNOTES
1. There are, to my mind,
some strange aspects of Veatch's overall position, which I will
pass by in my general discussion here. Thus, for example, a part of
his reason for thinking we should experiment with some kind of (for
now, modest) payment for organs is that in the last several decades
the federal government has failed adequately to address the plight of
the very poor in our society. For such people, he suggests, an organ
such as the kidney, may be their most marketable possession. and we
do them an injustice if we proscribe a market in organs. Thus,
having begun with the problem of a shortage of organs for transplant,
we somehow are drawn into the rather different problem of the plight
of the poor. Connecting the two as Veatch does can make sense only
if we assume from the outset that there is no general problem with
thinking of bodily organs as commodities.
2. See Executive Order
13237 (November 28, 2001) that established the President's
Council on Bioethics.
3. There is, though, a
different way to think of Dr. Delmonico's references to these
supporting societies, and I will return to it later. (See note 18
below.)
4. Richard A. Epstein,
"Organ Transplants: Is Relying on Altruism Costing Lives?"
The American Enterprise, 4:6 (1993), p. 56.
5. See Robert M. Veatch,
"Why Liberals Should Accept Financial Incentives for Organ
Procurement," Kennedy Institute of Ethics Journal, 13:1
(March, 2003), p. 14: "There are still people desperate to
provide the most basic necessities for themselves and their
families. The kidney in their body may be their most valuable and
marketable possession." First we think of the person as other
than embodied, then we see the organs as simply possessions available
for various uses, and then we are hard pressed to imagine why those
who wish should not sell their possessions. The only sorts of
questions that remain will be questions about possible
injustice--whether opening up such possibilities might constitute
"coercive offers" or improper inducements to those who are
impoverished.
6. Memo to Dan Foster:
The clinician's sorrow, frustration, and outrage when transplants
are unavailable for his patients--as you have articulated it--is
therefore both understandable and appropriate. But alongside it we
must place a second angle of vision that acknowledges our mortality.
7. Whether we really
have any longer an adequate grounding for that regard is far from
clear. I myself doubt whether we can make full sense of this
inherited belief apart from reference to the God-relation, which is
uniquely individuating for each of us.
8. William F. May,
"Attitudes Toward the Newly Dead," in Peter Steinfels and
Robert M. Veatch (ed.), Death Inside Out (Harper & Row,
1975), p. 149.
9. Hans Jonas,
"Philosophical Reflections on Experimenting with Human
Subjects," in Philosophical Essays (Prentice-Hall, 1974),
p. 131. See also p. 115: "What is it that society can
or cannot afford--leaving aside for the moment the question of what
it has a right to? . . . The specific question seems to be
whether society can afford to let some people die whose death might
be deferred by particular means if these were authorized by society.
Again, if it is merely a question of what society can or cannot
afford, rather than of what it ought or ought not to do, the answer
must be: Of course, it can."
10. Pius XI is here
making direct reference to eugenic sterilization, which, of course,
connects in complicated ways to larger issues in the Roman Catholic
understanding of sexuality and marriage, but the point about bodily
mutilation is made in a way that has broader application.
11. Evangelium
Vitae, par. 86.
12. Willard Gaylin,
"Harvesting the Dead," Harper's Magazine, 249
(September, 1974).
13. I should not
overstate this reluctance, however, for some at least seem ready to
overcome it. Thus, Byron Spice, Science Editor for the Pittsburgh
Post-Gazette, noted in a January 19, 2003 article the increasing
eagerness of researchers to use brain-dead patients or, even,
"nearly dead patients" for research (such as developing and
testing a catheter, or studying the spread of viruses). This is not
quite Gaylin's vision of bioemporia, but it is a step in that
direction. "No one is talking about warehousing brain-dead
patients indefinitely," Spice wrote. "But researchers are
making use of brain-dead patients--even if only for a few minutes or
hours--while they still breathe and circulate blood." See
"Researchers try to expand use of brain-dead to help give
life," at
http://www.post-gazette.com/healthscience/20030119cadaver2.asp
(accessed 5-9-06). Noting that Spice writes of such research also on
those who are "nearly dead," we ought to be struck by how
far we have come from Hans Jonas's claim that "Drafting [the
unconscious patient] for nontherapeutic experiments is simply and
unqualifiedly impermissible; progress or not, he must never be used,
on the inflexible principle that utter helplessness demands utter
protection" (Jonas, p. 126).
14. Renee C. Fox and
Judith P. Swazey, The Courage to Fail: A Social View of Organ
Transplants and Dialysis. Second edition, revised. (Chicago and
London: The University of Chicago Press, 1978), p. 30.
15. Renee C. Fox and
Judith P. Swazey, Spare Parts: Organ Replacement in American
Society (New York and Oxford: Oxford University Press, 1992),
pp. 35-36.
17. Renee C. Fox,
"'An Ignoble Form of Cannibalism': Reflections on the
Pittsburgh Protocol for Procuring Organs from Non-Heart-Beating
Cadavers," Kennedy Institute of Ethics Journal, 3 (June,
1993), p. 236.
18. Paul Ramsey, The
Patient as Person (New Haven and London: Yale University Press,
1970), p. 193. This is the point of the promissory note I offered
in footnote 3 above. It may be that Dr. Delmonico's invocation
of various medical societies was less an argument than a gesture in
the direction of a kind of wisdom that may come from the practice of
medicine. "Among doctors," as Ramsey wrote in the same
context, "the human life that is to be respected, protected,
cured, or cared for means an integrated and mutually sustaining whole
of vital functions." Hence, even when physicians overcome their
natural reluctance to engage in transplant surgery at all, they may
well see reason to do it in a way that preserves a sense of the body
as a unity and of even the transplanted organ as a gift that carries
with it something of the presence of the giver.
19. Sally Satel,
"Death's Waiting List," at
http://www.nytimes.com/2006/05/15/opinion/15satel.html?_r=1&oref-slogin.
Accessed 5-16-06. We have, Satel claims, "accepted markets for
human eggs, sperm, and surrogate mothers." Setting aside
without comment the chronological snobbery which assumes that what we
think now must be better than what our predecessors thought, one
might still wonder whether it is really true that we have accepted
this at least in the case of eggs and surrogate mothers. Nor, to the
degree that we have, has an acceptance of "alienability" of
the body and its parts necessarily been persuasive. Surrogate
mothers sometimes find themselves wanting to keep their offspring
after birth, and we face continuing questions about the rights of
children to explore their identity by learning about their genetic
"parents" (whose identity is evidently not entirely
separable from their gametes).
20. Memo to Peter
Lawler: It is, therefore, strange to think of the person as
exercising "sovereign authority" over even his mortal
remains, as if he were floating entirely free of them.
21. Paul Camenisch,
"Gift and Gratitude in Ethics," The Journal of Religious
Ethics, 9 (Spring, 1981), p. 12.
23. Robert M. Veatch,
Transplantation Ethics (Washington, DC: Georgetown University
Press, 2000), p. 152.
24. Jennifer Girod,
"Wading Through Blood and Suffering," Second Opinion
(December, 2000), p. 18.
25. Girod, p. 19. It
costs the recipient as well: a lifetime of immunosuppression,
vulnerability to infections, fatigue and weakness, possible serious
complications (such as diabetes, bone density problems, cancer,
clinical depression) (p. 17).
26. Memo to Robby
George: Note that this is where the "familial" language to
which you are attracted may lead. But is this not a peculiar
separation of body and person? As Paul Ramsey observed in The
Patient as Person (p. 184), even if we say that the larger act of
donation is good, it is nonetheless "performed upon men in the
only place they are to be found, namely, in the flesh."
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