Abstract
Although the phrase the dead donor rule was not coined until 1988, Arnold and Youngner consider it to be “an unwritten, uncodified standard that has guided organ procurement in the United States since the late 1960s” (1993, p. 264). It represents two moral commitments that guide the retrieval of organs. The first is that healthcare professionals may not harm, kill, or hasten the death of a patient in the pursuit of organs. This is, of course, a basic moral commitment of medical practice—first, do no harm—that is being reiterated in the context of donation and transplantation. The second commitment is that the donor must be dead prior to retrieval and therefore beyond any possible harm that might result from doing so. Whilst this rule is obviously contravened in the cases of live donation of non-vital organs, it is maintained at the end of life. For example, the kidney of a dying patient would not be removed even if the patient wishes to be a (post-mortem) organ donor and doing so would not hasten their death.
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Notes
- 1.
- 2.
Lock (1998).
- 3.
- 4.
Arnold and Youngner (1993).
- 5.
- 6.
The required waiting time varies between three and ten minutes Stiegler et al. (2012, p. 482).
- 7.
- 8.
Warren (2006) for discussion.
- 9.
Kagan (2012).
- 10.
- 11.
Becker (1975).
- 12.
Holland (2010).
- 13.
See Belkin (2014) for a more comprehensive account - and defense - of this practical reality.
- 14.
- 15.
Emmerich (2013).
- 16.
- 17.
Bishop and Jotterand (2006).
- 18.
- 19.
Rose (2007).
- 20.
Abi-Rached and Rose (2013).
- 21.
In contexts such as these the term neo-liberalism usually carries critical, if not abusive, connotations. I am resisting such usage here.
- 22.
The implication of the biopolitical view taken here is that the sovereign power of the state historically precedes that of the individual. A view for which there is ample evidence when one considers that the idea of self-governance has its origin as an attribute of the state only later being applied to the individual (and thereby rendering the autonomous individual the sine qua non of morality and moral being). Schneewind (1998, p. 483). The more contentious corollary is that the state (or at least society or culture) constructs, and so brings into being, the individual who—morally speaking—is autonomous, self-governing, self-legislating and, therefore, their own sovereign power. Further argument and empirical support is needed but on this point one can, I think, consider the work of Reubi (2012, 2013) as providing at least some evidence for the existence of the relevant socio-cultural processes. However, these points must be put to one side for the time being.
- 23.
- 24.
It is on this ground that one can begin to articulate a biopolitical critique of the type I have put to one side (see: Fn. 21). The ground of such a critique is, as always, the degree of freedom individuals can be considered as actually having within (neo-)liberal systems of government and governance. Given the governmental power inherent in the true sovereign power of law, and the degree to which dominant discourses of biomedicine and bioethics are implicated in the formation, reformation and exercise of this power, to what degree might we consider the self-legislating individual as being able to legitimately exercise their own sovereign power? My argument here can be seen as suggesting that Organ Donor Registers ought to be expanded in such a way that such individuals—the neo-liberal subject—can exercise a greater degree of freedom, of sovereign power, and not have their choices closed off by the exercise of true sovereign power. Nevertheless the ODR remains, of course, a mode of biopolitical governance.
- 25.
Bourdieu (1990).
- 26.
Lambek (2010).
- 27.
Schumacher (2010, p. 45).
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Emmerich, N. (2016). Challenges to the Dead Donor Rule: Configuring a Biopolitical Response. In: Jox, R., Assadi, G., Marckmann, G. (eds) Organ Transplantation in Times of Donor Shortage. International Library of Ethics, Law, and the New Medicine, vol 59. Springer, Cham. https://doi.org/10.1007/978-3-319-16441-0_10
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