This staff working paper was prepared by staff solely to aid discussion for the June 2006 meeting, and does not represent the official views of the Council or of the United States Government.
"Organ Transplantation: Defining the Ethical and Policy Issues"
Staff Discussion Paper
Eric Cohen
Since the first human kidney was transplanted in 1954, the nation has
engaged in an ongoing public debate about the ethical, social, and
medical dimensions of organ transplantation. This discussion has
included physicians, policymakers, bioethicists, religious leaders, and
concerned citizens. It has considered the human significance and moral
hazards of seeing the human body (or embodied person) as a potential
source of replacement parts; the hardship of the sick who wait for
organs that sometimes never come; the criteria for determining when
death has occurred and thus when a deceased person's organs might be
removed; the moral obligations of physicians who remove and transplant
organs; and the ethical and practical issues raised by different organ
procurement and allocation systems.
With the recent release of a major report by the Institute of Medicine
in May 20061, and
heightened attention to possible remedies for the "organ shortage" on
op-ed pages, bioethics journals, and medical journals,2 the time seems ripe for the Council to
consider the issue of organ transplantation in full-as a matter of
national policy that raises fundamental human questions. This
working paper aims to provide a preliminary survey of the
debate-beginning with where we are, examining the ongoing ethical
dilemmas we face, and evaluating different proposals for reform. My
hope is to spur discussion-by raising ethical problems and making
ethical arguments, not in any way trying to settle them.3
I. The Current Situation:
(1) By any objective measure, the quality of medical care for
individuals suffering from organ failure is remarkably better today
than it was when the first organ transplantation was performed.
Diseases that were once a death sentence, or that left afflicted
individuals with little hope of regaining normal function, are now
routinely treated. When it comes to organ failure, we can do more and
we can help more people than ever before, both extending and improving
life for the afflicted. While organ transplantation is obviously not
the only form of medical progress to benefit those suffering from organ
disease, in some cases it is the only available remedy-the only source
of hope-for those suffering from certain types of organ failure.
Fortunately, organ transplantation is reaching an ever larger number of
afflicted patients. Consider just a few data points: In 1984, the total
number of organs transplanted in the U.S. was 7,692; in 2005, the total
number of organs transplanted was 28,110. In 1984, there were 244
transplant programs functioning in the U.S.; in 2005, there were
approximately 865 transplant programs. In 1988, the total number of
organ donors (both living and deceased) was 5,901. In 2005, the total
number of organ donors (both living and deceased) was 14,490.4 In other words: more organ
donors, more organ transplants, more transplant doctors, and more lives
saved.
These dramatic increases in organ transplantation come in the context
of other supportive medical improvements-such as improved strategies
for combating the immune rejection of organ grafts and better
alternative care for patients with organ disease or organ failure, in
many cases making it possible to survive longer while waiting for a
possible organ transplant. In general, our medical successes over the
past fifty years have allowed us to treat many diseases that would have
proven deadly or permanently debilitating in the past, often allowing
individuals to live long enough to suffer future medical afflictions,
including future or repeat organ failure. We thus confront the
complicated paradoxes of medical progress: treatment success in one
area increases the demand for other kinds of treatment, especially for
age-related diseases; and the possibility of treating once-untreatable
diseases makes the failure to treat them in every case seem like a
"crisis" rather than real but limited medical progress. Even though
things are, in general, getting better, we often feel like things are
getting worse, because they do not get better as quickly or for as many
people as we would like.
(2) Yet these significant improvements in medical care have surely not
eradicated the tremendous suffering of those with failing or diseased
organs. Indeed, the very success of organ transplantation has produced
new kinds of human hardship: waiting for organs while one's condition
declines, and sometimes dying while waiting. Because the demand for
organs has grown more quickly than the supply, the size of the waiting
list and the wait time for receiving an organ have grown and continue
to grow at a rapid pace. As the Institute of Medicine reports: "In
1988, there were 16,026 individuals on the waiting list for an organ
transplant; by 1995 the waiting list had increased almost 275 percent
to 43,937; and it has since more than doubled so that by January 2006
the waiting list topped 90,000 individuals."5 While American hospitals and transplant
centers perform an average of 56 organ transplants each day, nearly 19
people die daily on average waiting for organs that never come.6 In the past, certain types of
organ failure meant little or no hope for improvement and often
imminent death; today, there is greater hope but also a novel form of
human misery that comes with difficult, uncertain waiting. Many hopes,
alas, still go unfulfilled.
The extended waiting list for organs also produces other real or
potential problems that threaten to undermine some of the medical gains
made by the advent of organ transplantation. Because the waiting list
and waiting time for organs have increased, transplant centers
(especially in large urban areas) have relaxed the criteria of donor
eligibility, using organs from donors who are older or sicker,
including drug users and those with infectious diseases. There are
still inadequate data on the differential outcomes of using such
extended criteria organs, and some observers fear an overall reduction
in the quality of the organs actually transplanted. In addition,
because patients suffering from organ failure are waiting longer for
organ transplants, the medical condition of patients who actually
receive organs is, in some cases, getting measurably worse. People who
get organs today are in some cases sicker than people who got organs in
the past, which also risks moderating or undermining the benefits of
receiving an organ.
There is no single or simple explanation for why more people need
organs today than in the past. Part of the reason is obviously
positive: the fact that organ transplantation is now seen as beneficial
for a broader array of patient populations. Other potential
explanations for the growing organ demand include: longer lifespans
leading to a higher incidence of age-related organ failure; the general
aging of the population; unhealthy lifestyles like smoking, alcohol,
and obesity; inadequate preventive care; and repeat organ failure after
transplantation. While both health and health care have improved in
crucial respects, the health of the population has also declined in
certain respects-in part because of demographic changes, in part
because of social changes, and in part because of lifestyle changes.
Sorting out the epidemiology of organ need might allow us to explore
preventive or alternative strategies to reduce the demand for organs.
But this demand will almost certainly continue to increase in the years
ahead. This has prompted various calls for reform to the current system
of organ procurement-some modest, some radical. Each is rooted in
different principles; all are aimed at increasing the organ supply.
(3) Yet before we can consider the wisdom of different potential
reforms, we need to understand the current system and its aims. Over
the past few decades, a series of public policies and medical protocols
have been enacted that govern organ donation, procurement, allocation,
and transplantation in the United States. Three acts of the U.S.
Congress, in particular, establish the central legal, moral, and
medical framework: (a) The Uniform Anatomical Gift Act (UAGA) of 1968,
adopted in some form in all fifty states, which granted individuals the
right to decide before death whether they wished to donate their
organs. (b) The Uniform Determination of Death Act of 1981, which
established the following criteria for declaring someone dead: "An
individual who has sustained either irreversible cessation of
circulatory and respiratory functions, or irreversible cessation of all
functions of the entire brain, including the brain stem, is dead." (c)
The Organ Transplantation Act of 1984, which aimed to encourage organ
donation by establishing an organized organ matching and procurement
network, while outlawing the buying and selling of human organs or the
direct compensation of organ donors and their families.
These laws, and the myriad policies and procedures developed in
accordance with them, have multiple aims:
-
The Dead Donor Rule: First, our policies aim to ensure that all
deceased donors are truly dead; that there are clear criteria for
discerning when death has occurred; that these criteria are grounded in
the nature of death itself as a biological phenomenon and yet
applicable in light of novel technological capacities to sustain
various biological functions even after whole-brain death has occurred;
and that the desire to procure organs does not invite us to redefine
death in general or hasten the death of particular patients in order to
expand the organ supply, or tempt us to procure vital organs from those
who are severely debilitated or imminently dying but not yet dead.
-
Donor Consent, Respect for Families: Second, our policies aim to
ensure that organs are only procured with the explicit prior consent of
donors and/or their surviving family members. In some cases, these two
aims-respecting the wishes of potential donors and respecting the
families of the deceased-can come into tension. The 1987 amendment to
the UAGA gave explicit priority to the intention of donors over that of
their relatives, but it is rare that organs are procured over the
explicit objection of surviving family members. This tension aside,
however, the right to donate organs is protected by law, and the
decision to donate organs is left to individuals and families, with no
organs procured without the informed consent of living donors, the
prior consent of deceased donors, or the present consent of grieving
family members. Neither the state nor anyone else has a prior or
presumed claim on the organs of the living or the dead.
-
Promoting Organ Donation: Third, our policies aim to promote and
facilitate organ donation as a public good-by investing significant
public dollars to facilitate organ procurement and allocation, by
paying for organ transplantation through public healthcare programs, by
funding public education efforts to promote organ donation, and by
initiating pilot programs to define "best practices" for requesting
donor consent and for retrieving the maximum number of organs per
deceased donor.
-
Gifting, Not Selling: Fourth, our laws prohibit the buying and
selling of human organs, the treatment of organs as commodities, and
the use of cash payments or other "valuable considerations" as
incentives to expand the organ supply. Our system of organ procurement
is rooted in the belief that organ donation should be an act of
altruism or gifting, motivated by the desire to do good for a needy
patient or the desire to give added meaning to the donor's death, not
the desire to profit from the sale of one's body or the sale of a
family member's mortal remains.
-
Allocation by Justice and Love: Fifth, our policies aim to
establish a fair system of allocating organs procured from the
deceased, one that takes into account a range of factors. These factors
include: the amount of time spent on the waiting list, the
physiological compatibility of organ donor and organ recipient, the
urgency of a patient's medical condition, the likely benefits to be
gained by the patient from receiving an organ transplantation, and the
age of the potential recipient. These allocation criteria do not govern
organ donation by living donors to their chosen recipients-such as
family members, loved ones, or even strangers who have made a personal
appeal via the Internet, billboards, or newspaper ads. So while the
system of publicly allocating available organs (mostly from deceased
donors) aims to be governed by the commitment to justice (with
debates about what justice requires), the system of privately arranged
donation (mostly from living donors) is governed (mostly) by love.7
Taken together, these laws aim to reap the medical benefits of organ
transplantation and to encourage individuals to become organ donors,
while preserving certain ethical limits against treating the body as
property, the dying as dead, and the newly dead as simply natural
resources. Whether the current policy has been a great success or
terrible failure-both medically and ethically-is a question that
invites disagreement and debate. Many lives have been saved that would
not have been otherwise, and yet waiting lists for organs continue to
increase. Many individuals have given of themselves (literally) to save
the life of another, and yet the ethical practice of medicine has been
tested by cutting the healthy to procure their organs and managing the
death of future donors. The human body (dead or alive) has not been
reduced to mere property, and yet the desperation of watching thousands
of individuals die every year while waiting for organs has led both
professional societies and national policymakers to endorse or consider
introducing monetary incentives in an effort to increase the organ
supply.
(4) The hardship of those waiting for organs has also prompted new,
private-sector efforts to expand the donor pool without violating the
prohibition on providing "valuable considerations." These efforts
include:
-
Websites like Matchingdonors.com, where those in need of organs can
describe their life-stories and specific medical conditions in an
effort to solicit unrelated altruistic living donors, and where those
interested in donating to strangers can make themselves available.
While the number of such organ matches still remains quite small, the
fastest growing source of organs are living, unrelated donors,
suggesting that these kinds of appeals might find a growing pool of
anonymous altruists, including those seeking a human connection
precisely by giving their organs.
- Initiatives like Lifesharers.com, which aim to create a private network
of organ donors, by giving explicit priority to fellow network members
in the event that they die and their organs are usable for transplant.
The animating principle of this movement is that those willing to
donate their organs should be given priority when organs become
available, and that such priority creates an incentive to become an
organ donor in the first place. It thus aims to combine self-interest
with a notion of fairness-although, in the process, it creates a
restrictive or separate list of potential donors and recipients.
- Using new database technologies and sophisticated networks of organ
donors to arrange "paired organ exchanges," whereby family donor A
gives a compatible organ to family patient B, and family donor B gives
a compatible organ to family patient A.
These initiatives thus seek to find ways of working outside (or
alongside) the organ waiting list to find a compatible organ donor more
quickly, or ways to create incentives for being an organ donor without
transgressing the law against "valuable considerations."
(5) Another response to the problem of organ failure and the growing
shortage of organs is biomedical research into alternative therapies,,
including xeno-transplantation, the creation of extra-corporeal
artificial organs, stem cell medicine, and various nano-based
therapies. At present, such research is either speculative or in the
early stages of development, and while it may offer a future remedy for
those suffering from various forms of organ failure, it does not change
the current imbalance between organ supply and organ demand.
(6) Clearly, the issue of organ transplantation is now a subject of
intense and intensifying public debate-between those who seek to defend
and improve the current system of organ procurement and allocation,
those who believe the current system inadequately protects the living
and the dead, and those who believe that misplaced concerns about
"human dignity" and the "commodification of the body" are preventing
reforms that would significantly increase the organ supply. This debate
centers on the nature of death, the ethical obligations of doctors, the
moral differences between altruism and commerce, the relationship
between individuals and the state, and the meaning of justice and love
in the provision of organs. The most intense participants in this
debate are those calling for dramatic changes in our policies, not only
on practical grounds (the current system is not working) but also on
ethical grounds (the current system is morally misguided). These
arguments are gaining momentum and thus merit special scrutiny, lest we
forget the arguments in defense of the current system-and, more deeply,
the understanding of our humanity that informs it.
Three questions seem central to the current debate: (1) Does the
current system unduly limit the number of available organs, by
restricting the donor pool or prohibiting incentives to increase the
provision of organs? (2) Does the current system adequately protect and
promote those human goods that our society holds-or should hold-dear?8 (3) Are there policy
reforms that might expand the organ supply, ameliorate the suffering of
those with organ failure, and yet preserve the moral integrity of the
procurement and allocation system?
II. Framing the Issue:
Before considering the arguments for and against different specific
reforms, however, one must first consider the deeper human context and
human meaning of organ transplantation, beginning with the dignity and
integrity of the human body. A frequent line of argument in the organ
transplantation debate is that organs are of "no use" to individuals
after they have died, and that those with two healthy kidneys need
their redundant organ less than a person with no healthy kidneys at
all. No doubt this is in a certain sense true-though as the healthy
kidney donor ages, he, too, may suffer kidney failure. And yet, this
argument also assumes that an individual's body has meaning only
because it is "useful"; it suggests that the body is a tool
individuals have rather than what individuals are, or a collection of
useful parts separable from the integrity of the whole. We are tempted,
as Gilbert Meilaender has written, "to suppose that the 'real'
person transcends the body."9 But in fact, our humanity and identity are inseparable from our
bodies-including the dilemmas and miseries that confront us when our
bodies fail, and the unique dignity of fundamental human-bodily
activities such as the loving embrace.
Of course, modern medicine and medical progress depend on gaining some
mastery of the body, including the routine study of the dead so that we
might acquire knowledge to help the living, and experimentation on
living individual's bodies in the hope of curing dreaded diseases.
Medicine often involves "violating" the body in order to
"save" it-for example, amputating a limb to contain the
spread of gangrene or opening the chest to operate on the heart. In the
case of organ transplantation, this "violation" is done to
one person, living or dead, in order to save another-with the
possibilities for both charity and coercion that such an intervention
entails.
This brings us to the second context for understanding organ
transplantation: the obligations and limits of medicine. No one can
deny the great good that has come from organ transplantation in both
lives saved and suffering ameliorated, as well as the great suffering
that cannot be ameliorated because of the organ shortage. And yet, if
saving the most possible lives while inflicting the least harm on the
living were the only significant human obligation, then our policy on
organ transplantation (not to mention human experimentation) would be
very different. Society could simply take all available organs, and
treat dead bodies as a public resource; it could even conscript the
healthy to donate kidneys to the sick. But we do not do this, and for
good reason. The aspiration to cure as many ill patients as possible
exists in concert (and sometimes in conflict) with other human values:
the obligation to care always for those we cannot cure, the duty of
families to mourn the deceased, the responsibility of doctors to "do no
harm" even when very great good might come from it.
To think about organ transplantation also invites us to think more
broadly about the meaning of human creativity and human limits. In the
medical context, our creativity often involves opposing nature's
failures by mastering nature's possibilities. As natural beings, we are
ever vulnerable to the indifference of blind nature to human fairness
and human love, especially the amoral nature that causes organs to fail
in the young. Replacing organs is an act of creative altruism, an
example of human mastery moved by love, of man's capacity to oppose
nature's penchant for decline using nature as our instrument. But this
act of creative altruism is limited in two senses: by the availability
of organs and by the moral limits of altruism itself. For there are
some things we should not do to ourselves or to others even to help
those we love. The living father who donates a heart to his son
transgresses even while acting from altruistic (or "selfless") motives;
his total act of giving goes beyond what human beings can rightly give
to one another.10
With organ transplantation, these large human questions-about the body,
about medicine, about the limits of autonomy and altruism-take on
specific shape: Whose wishes should finally prevail in determining
whether organs are taken-the dead person himself while he or she was
living or the family that must mourn the deceased after death? Does
autonomy mean having the right to dispose of one's body (or enter
into contracts for one's body) in any way an individual sees fit?
Do fears about turning the body into property justify policies-such as
no payment for organs-that potentially limit the supply of a
life-saving "resource," and limit the right of individuals to
make decisions about their bodies before and after death? Are there
legitimate moral reasons not to be an organ donor or not to allow the
organs of a deceased loved one to be taken? Do siblings or parents,
while alive, have a moral obligation to donate organs to siblings or
children who would otherwise die? Has the possibility of organ
transplantation created new kinds of pressures or new forms of
suffering-such as waiting in misery on organ waiting lists, and perhaps
facing a death that comes to seem "unnecessary"?
Before we can judge the wisdom of different policies, we need consider
these deeper ethical and philosophical-anthropological issues. We need
to think clearly about the meaning of organ transplantation in its
fullness: about organ donation as a "gift of life," organ retrieval as
a violation of the human body, organ transplantation as a "noble form
of cannibalism," in Leon Kass's words, and the organ shortage as a
tragedy for those individuals and families that wait for organs and
often die waiting.
As we consider these questions, two things are worth keeping in mind:
First, there is a difference between perfect moral obligations and
imperfect moral obligations. Perfect moral obligations are those
duties that should never be violated, no matter the consequences, and
duties that we are obliged to meet no matter what circumstances nature
or history put before us. For example: We have a perfect moral
obligation never, with intention, to cause the death of a child or to
cause the death of an afflicted patient when acting as his or her
physician. Imperfect moral obligations are oriented to those
ends we rightly seek-like reducing suffering and curing disease-but
which we should not seek by any means possible (i.e., by using some
persons as mere tools to benefit others), and which we must often
balance with other imperfect moral obligations-like educating the young
and promoting democracy abroad. Such imperfect obligations are also
limited by the limitations and imperfections of human nature itself-as
mortal beings, afflicted by disease, often unfairly; and beings whose
capacity for altruism is shaped in part by the limits of human love,
which is always focused most intensely on family and friends.
Perhaps there are moments of supreme emergency, when the existence of
moral society itself is at stake, when we might override even our
perfect moral obligations. But it is wrong to see the hardship of those
dying of organ failure as such a supreme emergency. It is a hardship,
not a crisis-demanding our best moral efforts to ameliorate the
suffering of those waiting for organs, but not the ethic of triage that
invites us to override those moral limits that rightly govern everyday
life. And it requires us to keep in mind the distinction between the
horrors that nature inflicts upon us (like organ failure), which we
seek morally to ameliorate but for which we cannot bear ultimate moral
responsibility, and the actions we take (like organ procurement), for
which we do bear ultimate moral responsibility.
This is not to belittle the horrible suffering of those waiting for
organs, or the desperation of families who would do anything to save
their loved ones, especially when they know a remedy is possible. All
of us, after all, are real or potential patients; all of us do or will
face afflictions of the body and the inevitability of death. But we
should resist-or hesitate before-the understandable temptation to see
the current limitations in our organ system as a "social crisis," lest
we override those principles and obligations that keep medicine moral
and civilization civilized. This does not mean the current system is
the best system or that major reforms should not be contemplated; it
means, however, that the goal of reform is not simply to maximize the
organ supply or eliminate the waiting list but to help as many patients
as possible without violating fundamental human goods, and without
dismantling those prudential limits that protect the dignity of persons
and the integrity of the medical vocation.
III. Ethical Considerations in Donation from Deceased Donors:
(1) In myriad ways, organ transplantation forces us to confront the nature
of human death: we see the frailty of the human body whose organs fail;
we see the possibilities and limits of medicine as it seeks to aid
failing bodies; we see the complexity of determining when death occurs
in an age when we can sustain parts of the body even after the whole
embodied person has died. Many advocates for reforming the current
system of organ procurement-especially those calling for organ markets
or for the routine retrieval of organs by the state-define the dead
body as a "natural resource," of no good any longer to the person who
has died. To leave organs unused is wasteful-like leaving food uneaten
when people are starving. But of course, the issue is far more
complicated, for even the dead body is always more than a resource to
help others. As Gilbert Meilaender has pointed out, we go to great
lengths to retrieve the bodies of our dead loved ones, to honor them in
burial and rites of mourning. Even the dead body is the body of the
person once present-still him, even when he is gone; still more than a
thing for our use, even when no longer animated by the life the
embodied person once lived. And while there are compelling biological
reasons to define the person whose whole brain is dead as no longer
living because no longer functioning as a whole integrated organism, we
would never bury a loved one with a moving chest and beating heart.
Somehow, even the dead donor seems to be donating as one last act, one
final giving of what he still has to give, before the final silence. We
thus need to distinguish the "death" of the brain (partially or
wholly), the "death" of the body, and the "death" of the person, and we
need to disentangle, both biologically and morally, the relationship
between these three kinds of deaths.11
(2) We also cannot ignore that procuring organs from the deceased can
disrupt (or interrupt) both the act of dying and the activity of
accepting the death of those we love. Those sudden deaths-such as car
accidents and heart attacks-that take the deceased without warning also
take the survivors without warning. The husband or wife, father or
mother, colleague or friend whom we expected for dinner-so ordinary-is,
suddenly, gone. The ordinary is dead. In the moments of terrible
discovery, all thoughts are for that person, his dying, the void he
leaves behind. And so it is strange, in a period all about him, to ask
of him a favor, so to speak, that might benefit others. And one can
surely forgive the sudden mourners if the wellbeing of strangers in
need of organs is not, in the moment, their primary concern. One can
even forgive them for seeing the request as an act of gross
insensitivity, especially in cases (like uncontrolled cardiac death)
when a decision is needed immediately.
(3) For those deaths that are more controlled, where a deliberate decision
to remove life support is made, organ procurement brings other
existential hazards. The manner of dying is dictated by the desire to
procure organs-in the operating room, surrounded by surgeons, surgeons
whose presence is usually a source of hope. But here the surgeon's
presence is (for the mourners) a reminder of futility, of the
incapacity to help the person one loves.12
(4) Another moral hazard is coming to see death as a good-a way to get more
resources on the market, so to speak. Of course, for the donor and the
donor's family, the decision to donate might be seen as one final act
of love, a deed that gives added meaning to one's death, even a way to
live on in the flesh of another, to be the temporary savior of their
failing body. But accepting death and welcoming death are very
different matters; and welcoming death can lead to hastening death, by
redefining the life barely here or just gone as valueless in itself, a
"natural resource" for others. Yes, allowing one's organs to be
procured can be a redemptive act of love after death, but it also
depends upon the love of others, in whose care the giver rests
entirely. That act of donor love is undermined if the donor's
caregivers compromise their own duty to love in order to make organ
gifting possible.
(5) To prevent the misuse of the deceased embodied person requires clear
criteria for determining death, and for keeping the act of procurement
as dignified as possible-which is to say, as little deforming as
possible of the dying process, the mourning process, and the integrity
of the dead body. The circumstances that precede organ procurement from
the deceased vary tremendously from case to case, but the types of
death can at least be categorized in general terms:
(a) Whole-brain death or death by neurological criteria, often
involving sudden trauma. In such cases, death itself often occurs
suddenly and unexpectedly, but the decision and the act of procuring
organs are not necessarily made in the moment of felt crisis. The
brain-dead body (or embodied person) can be preserved on life support,
the heart keep beating, the organs maintained even as the organism is
dead. In this sense, the body (or embodied) person is already dead
before the apparatus of procurement is set in motion; there is at least
some time for the family to accept death before permitting organ
procurement to take place. Yet it is also, necessarily, only a partial
acceptance, since the body prepared for organ procurement is not
lifeless enough for burial; mourning is temporarily suspended, for one
last act of giving or taking before the deceased is given to (or taken
by) the dust to which he must return.
(b) Controlled death by cardiac criteria, involving circumstances where
life-support is deliberately turned off. In such cases, the person is
still alive until the life-support is turned off; he is dead only after
the heart has stopped beating for a given period of time. In such
cases, therefore, the apparatus of organ procurement is set in motion
before death; death itself occurs on the procuring surgeon's watch. One
ongoing debate is how long the heart must no longer beat before death
can be declared and the act of organ-taking permitted: 2 minutes, five
minutes, 10 minutes. To wait longer ensures the finality of death; it
ensures that revival of the deceased is impossible; but it also risks
compromising the health and worth of the organs procured. To remove
organs sooner improves the likely quality of the organs taken, but
leaves us less certain that the deceased donor is irreversibly dead.
(c) Uncontrolled death by cardiac criteria, when the heart stops
unexpectedly. In such cases, the decision to procure organs (or at
least sustain organs for future procurement) needs to be made quickly.
Sudden death demands sudden consent; news of sudden death is
necessarily accompanied by the request to permit the dead loved one to
help another, and to have the body handled in ways not directed toward
restoration of the deceased, which is now futile, but preservation of
his useful parts. For practical reasons, those who die by cardiac
criteria in uncontrolled settings are usually not organ donors. But
there is great interest in expanding the rate of donation from this
group-with comparatively more successful programs in Europe and a
strong recommendation from the Institute of Medicine to expand the
donation rate from this pool of potential donors.
(6) Some-including Robert Veatch-have proposed redefining death so as to
include among the dead those who have lost (only) the higher-brain
functions: that is to say, those who are not wholly brain-dead, who
thus retain the orderly functioning of the whole organism, yet seem
permanently to lack consciousness or self-awareness. In general, the
great moral hazard in seeking to procure more organs from the dead is
that we will manage, redefine, or hasten death in order to maximize and
expand the pool of available organs. This is exactly what embracing the
"higher-brain" criteria would do: It would redefine the current patient
as dead in order to make his body more useful to others; it would
replace the physician's duty to care always for the patient in his care
with the ethic of triage-saving whom we can, abandoning the lives we
cannot help. The definitions of death now used in practice can be
defended philosophically-as consistent with the nature of the
biological human organism, as well as with the nature of death as a
biological phenomenon. But we also cannot forget that even our present
ways of understanding death-whether whole brain-death or death after a
set number of minutes of cardiac arrest-are interpretations of nature
made necessary by our growing technological control over the end of
life. Because we can sustain the organs of a dead human being, because
we can manage the moment of his death, and because he is seen as not
only a departed person but also as a potential resource for other
persons, we have come to see death differently than we did in the past.
We have assumed a more authoritative role in the certification of
death's arrival. Yet so far, at least, we have done so while trying to
heed death's reality in nature, and thus to preserve a crucial moral
limit on organ procurement. By contrast, to re-define those without
self-awareness or higher consciousness as dead, in order to increase
the supply of useable organs, would cross a troubling moral
threshold-coming to see the vulnerable patient as a means to help other
vulnerable patients, including the willingness to use patients in a
"persistent vegetative state" when our knowledge of what is happening
in the brains of such patients is still fairly limited. By crossing
this line, we not only mistreat those entrusted to our care, we also
risk undermining the physician's obligation to the patient in general
and the organ transplantation system in particular, by undermining the
confidence of future patients (meaning nearly everyone) that those who
care for them will care for them always.
IV. Ethical Considerations in Donation from Living Donors:
(1) When it comes to living organ donors, there are certain moral limits on
free choice that nearly everyone accepts: for example, we would not
permit the decision to donate all one's organs, including one's
heart, even in an act of freely chosen lethal organ donation.13 But why not? After all, there
might be compelling reasons to make such a decision: to save a dying
child, in the belief that the life of one's beloved offspring, the long
and open future she might have, is more valuable than one's own limited
remaining life; to benefit one's family, if selling one's organs on the
black market seemed the only way to lift them out of impoverishment; to
benefit the poor, by selling one's organs and donating the proceeds to
the most needy, or by giving one's organs to an impoverished, lonely,
dying person with no loving donors of his own and no advocates to
secure the best chance of getting an organ from the waiting list. Yet
we believe, despite these plausible-sounding reasons, that lethal organ
donation is morally impermissible, and that free choice in such a case
needs to be restricted by society as a whole. Some might even question
the sanity of people tempted to be lethal organ donors and wonder how
truly "free" such a decision could ever be. Yet it is also possible to
envision a tragic rationalist, sanely weighing the options, and
concluding that dying for another is the best possible choice in a
world of imperfect, indeed miserable alternatives. That we are still
inclined to limit such a person's freedom invites reflection (as noted
above) on the limits of altruism itself: that is, the moral limits on
what human beings can and should do to benefit others, including and
perhaps especially the ones they love most. It also invites reflection
on the ethical duties that govern the practice of medicine as a whole,
and especially the obligation of doctors to preserve the integrity of
their profession by refusing to perform certain actions, even those
that might save more lives than they would endanger or sacrifice.
(2) In procuring organs from healthy, living donors-even, as with kidneys,
when the health risks are not necessarily prohibitive-the doctor
necessarily violates the physician's duty to "do no harm" and to act
always in the best interests of every patient in his care. Of course,
his ultimate goal is to do very great good for another: to help a sick
patient in need. But in the moment of cutting into the healthy donor,
he is potentially harming and certainly violating the person before
him, who is not a patient when he arrives but only becomes a patient
when the doctor intervenes-a radical inversion of the normal
doctor-patient encounter. The question is: Are there sound moral
grounds to override the basic medical ethic in pursuit of another
medical good? In the extreme and hypothetical case of living heart
donors, the answer is emphatically no. But in the real-life cases of
living kidney donors and living liver donors, the situation is more
complicated. Strict adherence to the medical ethic would put physicians
in the position of preventing the donor's free decision to endure a
certain violation and bear a certain measure of risk in order to
benefit or save the life of a loved one. Many acts of love require the
acceptance of risk-such as a parent who rushes into a burning building
to save a child, or even a man who supports his family as a police
officer or fireman. The question the doctor must face is whether the
potential injury to the ethical principle of "do no harm" is warranted
in particular cases, and what it means to be the doctor in those
(typically rare) cases in which a healthy donor suffers adverse
consequences or even death because of the doctor's own action. In the
kidney case, where the surgical removal is not excessively risky and
where the donor is left with an intact organ, overriding the medical
ethic seems justified, because the risks are limited. In the liver
case, where a portion of the donor's vital organ must be removed, the
moral judgment seems more complex; the risks are sufficiently great
that the doctor may be justified in denying a loving donor the chance
to be altruistic. But whether the doctor has a positive moral
obligation not to remove parts of livers from healthy donors is
a difficult question with no easy or single answer-a question that
should be re-opened.
(3) The most common form of living organ donation is between family members
and loved ones, which of course makes perfect sense: The desire to save
a person one loves is a humanly intelligible motive to sacrifice
oneself on their behalf. But the possibility of helping or even saving
a loved one by giving one's kidney or a portion of one's liver raises
new, complicated questions. Is donation to a needy family member or
close friend a moral obligation? Is it possible to love one's spouse or
sibling well and yet deny (or withhold) the organ one is physically
capable of giving to them? True love often requires sacrifice on behalf
of those one loves; it requires acts of self-denial and self-giving for
the good of the other, including (often) some sacrifice of the body,
expended in the activities of working or care-giving. But this form of
self-giving (organ donation), which involves the deliberate violation
of one's own bodily person, also seems different in kind. However much
we might praise those who give their organs to a beloved family member,
we surely cannot condemn those who elect not to give-not, at any rate,
without trying to understand their reluctance.
(4) Giving an organ to a sick family member or loved one is surely the most
understandable form of organ donation, motivated by the special
attachments that form with love and intimacy. But giving to one's own
is not necessarily or typically the most just form of organ
donation. After all, many others (i.e., non-family members) might have
been waiting much longer for organs; their health condition may be even
direr; their likelihood of benefiting from an organ may be
significantly greater. But few of us would condemn the decision to give
only to one's own, and we might even be willing to say that doing so is
the most (if not the only) justifiable case of living organ donation,
especially for an act that involves significant risk to the donor. But
it also means that love and justice sometimes exist in
tension; and that the most understandable and perhaps most justifiable
form of living organ donation is not necessarily the most just. Justice
cannot explain who is loved, or who is loved by someone who happens to
be a willing and compatible donor.
(5) Perhaps the most complicated case of living organ donation is donation
to strangers, or to those with whom one's relationship begins with the
act of giving an organ. On one level, this seems like the highest form
of altruism: the giving of oneself (literally) for the good of the
unknown other, especially another whose need is greatest. Yet the line
between angelic charity and questionable sanity may be hard to discern.
For there is something almost inhuman in the willingness to accept (or
even seek out) the violation of one's own body for the sake of a
stranger, however desperate and moving his story might be. Perhaps such
altruism exemplifies human love in its highest form, unaffected by
partiality or preference. But we might also wonder: Is such a personal
sacrifice truly and entirely an act of giving, without psychological
strings attached? Or does the donor perhaps give of himself with the
expectation of being loved by the recipient, or even with the
expectation of holding a debt that can never be fully repaid? Is the
donation truly an act of magnanimity, an overflowing of selfless love?
Or is it an act born of desperation, a need to be loved by strangers,
an effort to give one's life meaning by fulfilling the deepest desires
of another? In light of these questions and concerns, it is imperative
to ensure that all living donors, but especially donors to strangers,
undergo rigorous scrutiny to ensure that the decision to donate is free
of coercion, well-considered, and made for the best human reasons
(hardly an easy task, and one that still leaves open the question of
who decides what motives are psychologically acceptable). Otherwise, we
risk coercing those we love most or using those most in need of love.
V. Ethical Considerations in Organ Allocation:
(1) Because the demand for organs is presently far greater than the supply,
we need a system for rationing the organs we do have. With that system,
we aspire to justice but we also confront the limits of justice. It is
simply unavoidable that some people, as discussed above, will have
loving, willing, compatible living donors and others will not, and it
would be perverse to prohibit such acts of love in the name of justice.
And even when it comes to the allocation of organs from deceased
donors-organs not given to specific recipients but meant to be given to
the most deserving recipient-the problems of just allocation are
significant, since many legitimate criteria for being "most deserving"
or "most needy" often come into tension with one another. These
include: the amount of time spent on the waiting list, the
physiological compatibility of organ donor and organ recipient, the
urgency of a patient's medical condition, the likely benefits to be
gained by the patient from receiving an organ transplantation, and the
age of the potential recipient.
(2) Consider some specific kinds of conflicts: (a) Only compatible organs
are worth transplanting. But compatibility admits of degrees, and there
may be cases in which a perfectly compatible recipient whose need is
less urgent competes with a less compatible recipient whose need is
more urgent. (b) In some cases, the patient who needs an organ most
urgently-whose very life hangs in the balance-is far less likely to
gain long-term benefits from transplantation, precisely because his
health is already critically impaired, whereas another, healthier
patient whose need is less urgent would likely benefit a great deal. So
whose claim is greater: the sickest who will benefit least (not in
terms of survival, but in terms of survival time) or the healthiest who
will benefit most? (c) For one patient, getting an organ might mean
living a slightly longer but still pain-filled life; for another, it
might not extend life at all but allow the patient to live considerably
better in the time remaining to him. How should such quantitative and
qualitative benefits be weighed against each other? (d) In some cases,
the organ that becomes available now is not the best organ-that is, it
is compromised in some way by the impaired health of the deceased
donor. Should it go automatically to the person at the top of the list,
or should that person have the option to wait for a better organ,
especially if his life is not in immediate danger?
(3) Deciding whose claims are most worthy is no easy matter, about which
reasonable people will disagree. For example, one might argue for the
following hierarchy of criteria: (a) The young should have priority
over the old, with a view to giving the younger potential recipient a
chance to experience some of the life that the older potential
recipient has already experienced. (b) Those who stand to benefit the
most from transplantation should have priority even over those whose
need is more urgent but for whom long-term benefits are unlikely. (c)
It should be licit to give some weight to the moral worthiness of the
recipient: for example, those whose need for an organ is predominantly
self-inflicted (say, by long-term alcohol or drug abuse) should have
less of a claim than those whose need for an organ is due to the
vicissitudes of nature. In all cases, we should not treat some lives as
worthier than others in the ultimate sense, yet practically, we must
acknowledge that we cannot do everything imaginable for every patient.
To deal with this limitation, the primary purpose of organ
transplantation might be seen as restoration rather than
preservation: restoring a life to greater normalcy rather than
extending a life on the edge. But, of course, the counter-argument is
compelling: namely, that the first duty is to help the neediest, which
means giving organs first to those who might be rescued from death.
(4) Whatever criteria govern the system, creating a list necessarily
involves making imperfect guesses, predictions, and judgments. Often we
cannot know with any certainty which patient will benefit the most, or
which patient needs an organ most urgently. We are left with a
conundrum from which we cannot escape: we need a thoroughly
rationalized system that gives each potential recipient a rank on the
list, and yet the rankings always require imperfect clinical judgments,
as well as spot decision by doctors, decisions made under pressure,
with inadequate time, always open to second-guessing by others, both in
the moment and after the fact. We thus need to improve and refine the
system, while recognizing the permanent limits of the system. The best
we can do is do our best on the ground-seeking fairness and consistency
in the face of sickness and suffering that usually afflict human beings
blindly without regard for fairness and consistency. Confronted with
the amoral capriciousness of nature and disease, we need to seek the
most ethical allocation system possible, knowing that it will always
fall short of our ethical aspirations. It is these aspirations that
animate the current drive to expand the organ supply.
VI. Policies Aimed at Increasing Organ Donation:
Before considering various reforms of the current system (two in
particular), we need to restate the core principles and aspirations
that guide it: namely, to encourage organ donation; to respect, as much
as possible, both the prior wishes of the individual who has died and
the present wishes of the surviving family; to prevent the
commodification of the body; to prevent perverse incentives for
self-mutilation; to ensure that the system of organ allocation is as
equitable as possible; and to enshrine in society the principle of
"gifting." Paul Ramsey described this "gifting" principle as
follows in The Patient as Person:
A society will be a better human community in which giving and
receiving is the rule, not taking for the sake of good to come. The
civilizing task of mankind is the fostering, the achievement, or the
shoring up of consensual community in general, and not only in regard
to the advancement of medical science and the availability of cadaver
organs in efforts to save the lives of others.. The positive consent
called for by Gift Acts, answering the need for gifts by encouraging
real givers, meets the measure of authentic community among men. The
routine taking of organs would deprive individuals of the exercise of
the virtue of generosity. If, as is said, the young rarely think about
their own deaths or about giving their organs upon death, then they
should be constrained and enabled to do so by the institutions and
practices and laws we enact. To become partners in proved therapies, or
joint adventurers in proving therapies, could be among the most
civilized and civilizing things young people can do. The moral sequels
that might flow from education and action in line with the proposed
Gift Acts may be of far more importance than prolonging lives
routinely. The moral history of mankind is of more importance than its
medical advancement, unless the latter can be joined with the former in
a community of affirmative assent.
Yet the altruistic system we now have also has a limitation we find
hard to accept: it does not result, at least at present, in enough
living or cadaveric organs for all who would benefit from them. The
imbalance of organ demand and organ supply has prompted various calls
for action and reform: to increase the number of voluntary living
donors, to increase the number of eligible deceased donors, to increase
the percentage of eligible deceased donors who become actual donors,
and to improve the efficiency of organ procurement from deceased
donors. Some of these proposed changes work within the current ethical
and policy framework (e.g., more effective strategies for convincing
citizens to be organ donors, better strategies for requesting consent
from surviving relatives, more effective procurement from those
declared dead by cardiac criteria, soliciting live donors via the
Internet, paying health and living expenses for those who donate,
expanding the criteria for donor eligibility, promoting paired organ
exchanges); others seek radical changes in the current system (e.g.,
moving to a system of "presumed consent," redefining death to include
those who have lost higher-brain functions, government payment for
organs, free or regulated organ markets, organ conscription).
As the Council prepares to evaluate these myriad possible reforms, it
might begin by considering three policies-ideal types in reverse-that
nearly all Americans would rightfully find unacceptable, albeit, for
different reasons. The first is a policy of organ conscription
or mandatory organ retrieval. Under such a policy, all cadaveric organs
would be retrieved regardless of the wishes of the deceased individual
or the surviving family; the operative principle here is that dead
bodies are a public resource that may be deployed to serve the common
goal of saving human life. The second is a policy of unrestricted
autonomy, which would allow individuals to enter into any contracts
they wish for the buying-and-selling of their organs, to be procured
during life or after death. The guiding principle of such a policy is
that individuals "own" their bodies as a "possession," and that only
individuals can weigh the risks versus benefits, the pains versus
pleasures, entailed in deciding whether to keep, sell, or be buried
with one's organs. Such a policy would include, on its own
principles, the right to sell vital organs while alive (so-called
"lethal transplants"), since an individual might rationally
decide that the satisfaction of providing money for his family
outweighs his desire to continue living. The third policy is
state-mandated protection of the inviolability of all bodies,
dead or alive. Such a policy would outlaw all organ retrieval, on the
principle that the body should not be turned into a mere means or
thing, even for a noble purpose such as saving life, and that the
activity of mourning must not be interfered with by removing the
deceased individual's organs.
Each of these policies, by trying to preserve or attain an absolute but
isolated human good-saving life whenever possible, granting the highest
degree of individual autonomy, protecting the inviolable integrity of
bodily life-ends up compromising or sacrificing other vital human
goods. By seeing the extremism of these policies, we are perhaps
awakened to the challenge of making a policy (or preserving the
existing policy) that is both more moderate and more sober. And we are
in a better position to judge some of the reforms now being proposed.
Two prominent reforms-the use of monetary incentives and the routine
retrieval of organs from the deceased (often called "presumed
consent")-merit special evaluation here.
(1) Monetary Incentives ("Buying and Selling"):
(a) One of the most discussed proposals for increasing the supply of organs
is to provide monetary incentives for individuals to supply their
organs. (Note: once money of this sort is involved, it is incorrect to
speak any longer of organ donors.) These proposals take many
different forms, and disentangling them is the first step to evaluating
their wisdom.
(b) One proposal would involve the buying and selling of organs in the open
market, with prices and practices set by supply and demand, just as
with other valuable commodities. Most likely, such a system would give
rise to organ brokers who act as middle-men, matching prospective
buyers with potential sellers, and matching both suppliers and
recipients with a medical facility that can perform the procurement and
transplantation. It would likely include both "spot markets," where
living individuals or relatives of the deceased could sell their organs
now; and "futures markets," where living individuals could sell the
rights to their organs if and when they die in a manner that makes
organ recovery possible. The highest prices would be paid for living
organs from healthy donors, who provide not a potential future
commodity but an actual present commodity. The future rights to one's
organs would likely command a far lower market price, since most people
do not die in such a way that organ retrieval is actually possible. (Of
course, organ markets could be combined with other reforms that permit
organ retrieval from the debilitated or dying but not yet dead, making
the future rights to one's organs a more valuable commodity.) There
already exists a black market for living organ donors, suggesting that
the most likely organ sellers would be the very poor at home and
especially abroad, who see their organs as the most valuable (perhaps
the only valuable) economic asset they have, and who judge that selling
them is the most promising way to lift themselves and their families
out of abject poverty. Moreover, a truly free market in organs would
obviously affect not only organ procurement but organ allocation: the
wealthiest individuals would have readiest access not only to the most
organs but to the best organs. Most likely, a two-tier system would
evolve, with the wealthy securing their organs in the private market
and the less affluent joining the public waiting list for organs
donated rather than sold by those who find the prospect of selling
repugnant. Some seek to develop a system that would permit organ
selling in the free market while preserving a system of organ
allocation that is dictated by moral and medical criteria rather than
market criteria. But this idea seems unworkable, since it would
prohibit the creation of a motivated buyer pool-namely, those who need
organs for themselves or their loved ones. Perhaps insurance companies
would buy organs for those they cover because the long-term costs of
dialysis are greater than the immediate costs of organ transplantation.
But this seems a questionable prospect.
(c) Another proposal for introducing monetary incentives involves various
kinds of public compensation for organs-in the form of cash payments at
a fixed price per organ, tax credits, reduced health-insurance costs,
early eligibility for Medicare coverage, payment of funeral expenses,
or donation to the donor's chosen charity. Defenders of such
compensation proposals often seek to distinguish them from organ
markets: they argue that the compensation would be public, not private,
and thus would represent the appreciation of the entire community
rather than a private contract between parties; furthermore, a public
compensation system could set firm limits on what could be
compensated-for example, allowing cash payments to the families of the
deceased but not payment to living donors, or paying for funeral
expenses rather than paying a cash price for particular organs.
Moreover, a public compensation system for increasing organ procurement
could be kept separate from the system of organ allocation so as not to
endanger the equity of organ allocation, whereas the right to sell
one's organs in the open market would likely give special
advantages to wealthy prospective buyer-recipients.
(d) The moral case for financial incentives is rooted primarily in the
desire to increase the organ supply and thus ameliorate the current
suffering and potential death of those on organ waiting lists. To some
observers, it seems absurd not to treat organs like any other
commodity, where the free market effectively brings supply and demand
into balance. And it seems irresponsible to allow vague moral
considerations about the "commodification of the body" to impede the
concrete good of saving lives by potentially expanding the organ
supply-especially when there are wealthy people desperate to buy organs
and poor people desperate to sell them, an exchange that mutually
benefits both parties. Some believe free markets should only be
permitted for organs from deceased donors, where the possibility of
harm is limited; others believe the most promising use of markets is to
expand the pool of living donors. Moreover, some proponents of buying
and selling are intent not only on increasing the organ supply but also
on expanding the scope of individual autonomy. They affirm that free
choice should dictate the provision of organs; that those individuals
who believe selling a "redundant organ" could improve the quality of
their life should be permitted to do so; and that it is condescending
to protect the poor (or anyone else) against the rational choices they
might make for themselves, including the decision to sell part of their
body. And they note-quite correctly-that everyone else involved in the
organ transplantation business-the doctors, the health insurance
companies, those working for organ procurement organizations, and so
on-profits in some way from the practice of organ transplantation,
except for those who supply the most valuable asset: the organs
themselves.
(e) The most common objection to payment for organs is that such monetary
incentives would exploit the poor, who would bring harm to themselves
motivated only by money. This is a weighty but problematic objection.
To defenders of organ markets, the freedom to sell their organs extends
opportunity to the poor, who stand to benefit the most from this new
freedom and expanded ownership over their own bodies. They would not be
coerced to sell their organs; they would merely be given the option to
do what many poor people want to do anyway (and in some cases are doing
already); and they would be lifted up from the dangerous underground
market, where the health of the donor is a low priority, to a regulated
system of compensation, in which all exchanges are done above board and
with adequate safeguards for donor health. And yet, in a wealthy
society like our own, do we really benefit poor people by encouraging
them to believe that the only way or best way to make ends meet is to
sell their body parts-that is, to sell "assets" that require no work,
no skills, no possibility for long-term self-improvement? Do we not, in
fact, consign the poor to hopelessness if the only hope we extend them
is the one-time sale of a kidney?
(f) That said, if the only major objection to organ markets is aversion to
exploiting the poor, one could permit only those with incomes above a
certain level to sell their organs, or prohibit buying and selling
organs of people from impoverished countries. True, this would
dramatically reduce the supplier pool, since most wealthy and
middle-class people are unlikely to expand their wealth by selling
organs; the poverty of the poor is precisely what makes them such good
targets for solicitation. Yet we also must ask: Is organ selling by the
non-poor-to buy a second car, to help pay for college, to finance a
second honeymoon-really less morally problematic? Isn't there something
about turning one's body into alienable property that is always
problematic, no matter how much other property the prospective organ
seller already has? This question is best considered in two parts-by
looking at what it means to buy organs from the living and organs from
the dead.
(g) Even without payment of any kind, as we noted above, organ procurement
disrupts the course of dying and mourning. Introducing money into such
situations would likely aggravate this disruption: it could lead to new
tensions among surviving family members who disagree about whether to
permit organ donation, or about the propriety of taking money for
organs; it could tempt family caregivers to alter the course of care in
order to get paid; it could (in the case of "futures markets") give a
third party a commercial claim on the body that trumps the interests of
the surviving family, whose wishes and needs as mourners might violate
the business arrangement entered into years ago by the deceased; it
could add confusion to the family's sorrow at the death of a loved one,
leaving it unclear whose responsibility it is to retrieve the organs
that belong at death to whoever has paid for them. We might also
wonder: Is the marginal value of selling the future rights to one's
organs likely to prove a sufficient incentive to expand the donor pool
in a significant way? And is the value of selling a family member's
organs on the spot really likely to override those religious, ethical,
or personal reasons that make many individuals or surviving families
hesitate to become altruistic donors? To what extent, in other words,
will the promise of money actually change people's attitudes and
judgments about the wisdom of permitting their own or their loved one's
organs to be retrieved at death? In one sense, when it comes to the
deceased, worries about exploitation seem much less compelling: if we
believe that becoming a posthumous organ donor is a good thing for
everyone, then we would hardly be exploiting the poor person after
death by honoring his good deed with compensation that his family
probably needs. One problem, however, is that the prospect of payment
may change the way families care for loved ones before death, or while
they are dying. The poor donor is at risk of being exploited not only
or primarily by the buyer but, at least potentially, by the donor's
family who now stand to benefit financially by his death. But here
again, exploitation is not the only or deepest worry. The most serious
concern is coming to see the body as a mere thing, like any other
commodity or natural resource. The market works efficiently by making
things generic and therefore interchangeable; the price system is
effective because it can put a price on anything, with little regard
for what the thing is. In many cases, this reduction of things
to comparable quantities is desirable, since it allows different
commodities to be traded, and thus allows a multitude of different
producers and consumers to obtain what they need and dispose of the
valuable things they wish to sell. But in some cases, as with the human
body, the market's blindness to what a thing is debases those
who trade in it. The very efficiency that would come from
depersonalizing the source of organs-by treating them as mere
resources, not as parts of this embodied person-makes the whole
enterprise morally compromised. Even if a market in dead bodies were to
increase the organ supply-which it very likely would-the cost of
putting so explicit, so impersonal a price on the body is too high for
society as a whole. Perhaps it would be less objectionable to honor the
donor in some valuable way rather than pay the supplier an explicit
price; and perhaps we should explore ways of honoring that are valuable
but not exactly (or quite so explicitly) monetary. But the line will
always be grey between honors with value and reward by payment.
(h) The problems of commodification only become more severe when we
consider buying organs from living (mostly poor) donors. Living donors
necessarily expose themselves to some harm, an exposure that makes
greatest moral sense when done to benefit a family member or friend, as
an act of love. It makes less moral sense as an act of commerce. True,
the motive to sell one's organs might still be love: namely, the desire
to benefit one's family with the proceeds of one's sale. And the poor,
merely by being poor, are no doubt already exposed to a variety of
risks comparable to or greater than the risks associated with giving up
a kidney. But even if this is so, it does not justify the act of organ
removal by physicians who abide by the medical ethic: first, do no
harm. And using monetary incentives to create a large pool of anonymous
"donors" for sale would put untold pressure on doctors to compromise
that ethic on a grand scale.
(i) In the end, those who object to the buying and selling of organs cannot
deny the possibility-indeed the likelihood-that organ markets
(especially for living donors) would significantly expand the organ
pool and save many lives. In saying no, we need to acknowledge that
likelihood, believing nonetheless that other crucial values-the dignity
of the body, the ethical vocation of medicine, the humanity of dying
and death, the meaning of giving vs. selling the body-should not be
compromised. The obligation of doctors and of society to the sick is to
do everything permissible to heal them, not everything imaginable. The
weight of their suffering will always be heavy, but it would be a
mistake to permit the very ethical boundaries that preserve our common
humanity to crumble even under this admittedly heavy weight.
(2) Routine Retrieval ("Taking and Getting")
(a.) Another proposal for expanding the organ supply would replace the
current system of requiring explicit consent before organs can be
procured with a system of routine and default retrieval, in which it
becomes standard policy to retrieve all usable organs after death,
unless individuals or surviving families expressly request that such
organs not be retrieved. This proposal is often called "presumed
consent," but this name is misleading: consent, by its nature, cannot
be presumed; it must be given. More accurately, such a policy is a form
of universal organ conscription, which at the same time acknowledges
the right of conscientious objectors to renounce participation in the
common system of retrieval. One must choose explicitly to "opt out"
rather than choosing to "opt in."
(b.) The primary aim of such a policy would be to increase the organ
supply, while at the same time eliminating the delicate and difficult
task of requesting organs from family members moments after a loved one
has died. The presumption is that most people who are not declared
organ donors do not in fact have deliberate reason not to be; the fact
that they have not gotten around to opting in is no reason to believe
they want to opt out. There are different potential implementations of
routine retrieval, ranging from those that make non-retrieval of organs
relatively easy to those that make it relatively difficult.
(c.) Yet while such a system seems likely to increase the supply of
organs, it does so at a cost, by staking a claim to the deceased and
his or her body without individual or family consent. In the name of
making things easier-sparing us the difficult work of requesting
consent from the grieving-it wrongfully imposes on their good will at a
time when they need the good will of others. It would change the
character of organ procurement from "giving" to "taking," and it would
replace the personal act of charity, undertaken knowingly and freely,
with a policy that treats dead persons as public resources, unless they
insist otherwise. And, it would greatly expand the power of the state,
forcing families to claim "possession" of the deceased body only so
that they might proceed with rites of "surrender and separation."14
VII. Conclusion
The fact that these two possible reforms-"buying and selling" or
"taking and getting"-raise substantial moral problems hardly means that
the current system is morally best. The council can perhaps contribute
most by disentangling other possible avenues of increasing the supply
of organs-namely, those that do not involve monetary incentives, organ
conscription, or the willful re-definition of death. This includes: (a)
"mandated choice," which would require all adults to make a positive
decision about whether they wish to be organ donors and/or whom they
wish to act as surrogate decision-makers at their death; (b) "organ
exchanges," including those that allocate an organ from the waiting
list to a lower ranking recipient in exchange for a donated organ from
the recipient's family member or friend; (c) "Internet solicitation,"
which aims to expand the pool of anonymous living donors; (d) giving
organ preference to organ donors, including the accrual of points based
on how long one has been a designated donor; (e) the expanded use of
"expanded criteria" organs taken from donors with compromised health;
(f) expanded efforts to procure organs after unexpected cardiac death;
and (g) rewards that do not put an explicit price on individual organs.
Yet as we consider the practical policy options before us, we need
always to keep in mind the image of man that any particular system
necessarily reflects. Indeed, the debate over organ transplantation
touches on many of the deepest issues in bioethics: the obligation to
heal the sick and its limits; the blessings and the burdens of medical
progress; the dignity and integrity of bodily life; the dangers of
turning the body, dead or alive, into just another commodity; the
importance of individual consent and the limits of human autonomy; and
the difficult ethical and prudential judgments required when making
public policy in areas that are both morally complex and deeply
important. It is no exaggeration to say that our attitudes about organ
transplantation say much about the kind of society that we are, both
for better and for worse.
In the end, in trying to fashion the best system for organ donation, we
are forced to accept the "tragic" nature of any policy we choose.
Inevitably, some goods will be compromised in order to preserve other
goods that are deemed to be more important. By setting moral limits and
outlawing "cash for flesh," we may be decreasing organ
supply-and thus accepting the suffering and death of those we might
have saved, at least temporarily. By setting aside those moral
limits-by treating the body as alienable property-in the hope of
increasing the organ supply, we risk devaluing the very human life (and
human bodies) that we seek to save. It is of course possible that
current opposition to organ markets or public compensation will someday
seem as quaint and misguided as past opposition to organ
transplantation itself. No doubt the taboos of the past-such as respect
for the utter inviolability of dead bodies-have stood in the way of
much that is good about modern life and modern medicine. But it is also
possible that the sweeping aside of some old taboos has diminished us,
dehumanized us, and corrupted us. It is this risk of corruption and
dehumanization that we must not fail to recognize, even as we seek to
ameliorate suffering and cure disease by every ethical means possible.
_______________________
ENDNOTES
1. Institute of Medicine, Organ Donation: Opportunities for Action (The National
Academies Press, Washington, DC 2006).
2. For example, see
op-eds on the same day by Sally Satel, "Death's Waiting List," New
York Times, May 15, 2006 and Richard Epstein, "Kidney
Beancounters," The Wall Street Journal, May 15, 2006.
Interesting also is the special issue of the Kennedy Institute of
Ethics Journal, Vol. 13, No. 1, March 2003.
3.This discussion paper
benefits greatly from the writings and reflections of those who have
written for years on this subject, and it surely makes no pretense of
originality. These thinkers include (though hardly exclusively): Paul
Ramsey, Hans Jonas, Leon Kass, Gilbert Meilaender, William F. May,
Edmund D. Pellegrino, Robert Veatch, and Richard Epstein.
4. Organ Donation:
Opportunities for Action, p. 25-26.
5. Organ Donation:
Opportunities for Action, p. 19.
6. This data is available
at the website of the Organ Procurement and Transplantation Network,
www.optn.org.
7. Of course, justice and
fairness are concepts that invite serious inquiry and debate. In
present usage, a "just" or "fair" system of organ allocation is one
that allocates organs to the most worthy recipients, with worthiness
defined by medical, moral, and social criteria. Disagreements abound
on what medical, moral, and social factors to weigh most heavily in
deciding which potential recipients have the greatest or most urgent
claim on the organs we have. (See Section V for a fuller discussion
of the ethics of organ allocation.) Indeed, one might even ask: Is
the fairest system (one that ranks all patients according to the same
weighted criteria) truly the most just (a system that gives each
patient his due)? Is the most just system really fair? But for
present purposes, justice and fairness are used (albeit cautiously)
somewhat interchangeably.
8. The human goods at
stake in our system of organ donation, procurement, allocation, and
transplantation include: the dignity of every patient, including
those with permanent disabilities and those who are irretrievably
dying; the good of healing the sick and giving hope to the ill; the
standing of medicine as a moral vocation; the protection of
vulnerable individuals from self-inflicted harm; the promotion of
altruism as a civic good; devotion to family members and loved ones
in medical need; the integrity of the human body (or embodied
person), both in life and after death; and respect for those in
mourning, especially those who have lost a loved one suddenly and
unexpectedly.
9. Gilbert Meilaender, "Second Thoughts About Body Parts," First Things, Number 62,
April 1996, pp. 32-37.
10. One would not say
the same about a father who throws himself in front of a bullet to
save his son. In the organ transplantation case, the father
deliberately chooses suicide as the means to help his son. He is the
willful agent of his own death, making himself the means to the
(good) end of saving his son. In the bullet case, the father accepts
death but does not seek it deliberately; he is not the agent of his
own death. There is a moral difference between being shot and hiring
a shooter, so to speak, even if the goal (saving the son) is morally
praiseworthy in both cases.
11. Some still contend
that even whole-brain death does not mark the death of the whole
person, and that organs should only be removed from those who have
suffered whole-brain death after allowing the heart to stop for at
least two to five minutes. In addition, while the death of the whole
body surely means the death of the whole embodied person-how else
could the person be alive if his body is dead-parts of the body are
still "alive" residually even after the person is clearly dead.
12. Of course, the
surgeon is also a symbol of hope for the waiting organ recipient, and
thus perhaps a source of solace for the surviving family whose gift
makes such hope possible.
13. For example, this is
considered at great length by Paul Ramsey in his The Patient as
Person.
14. For an elaboration
of this point, see William F. May, "Attitudes Toward the Newly Dead,"
The Hastings Center Studies, Vol. 1, No. 1, 1973.
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