Abstract
The most common and public mode of addressing procurement of organs has traditionally taken one of two lines. The most widely accepted approach to raising the procurement rate has been an appeal to charity. The other has been one of commodification—an economic appeal or market-based mode. Each side in this debate has put forth strong reasons why the other fails as an acceptable strategy to procure organs, but ultimately, neither puts forth sufficient support for its own position. This chapter argues that the call to relinquishing organs upon our deaths can easily be understood as an “ordinary” obligation and may be even more pointedly seen as a moral obligation. As such, not to release our organs for transplantation constitutes a serious moral wrong.
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Notes
- 1.
“Data,” UNOS, accessed January 15, 2018, https://optn.transplant.hrsa.gov/data/view-data-reports/national-data/
- 2.
Arthur Caplan, “Requests, Gifts, and Obligations” in If I Were a Rich Man Could I Buy Myself a Pancreas? (Bloomington, IN: Indiana University Press, 1992), 156.
- 3.
cf. William James, “The Moral Philosopher and the Moral Life.” International Journal of Ethics, 1:330–54; John Dewey, The Quest for Certainty. (New York: Milton, Balch, and Co., 1926), see, in particular, chapter 10.
- 4.
I am not the only person to have attempted to make this kind of argument. Cf. James Childress, “Ethical Criteria for Procuring and Distributing Organs for Transplantation,” Journal of Health Politics, Policy, and Law, 14, no.1 (Spring 1989), 87–113; Caplan 1992, 156–157 n2; JL Nelson, “Harming the Dead and Saving the Living,” American Journal of Bioethics, 3, no. 1 (2003), 13–15; RJ Howard, “We Have an Obligation to Provide Organs for Transplantation after We Die,” American Journal of Transplantation, 6 (2006), 1786–9.
- 5.
An admittedly awkward, though more precise, phrase, taken from Erich Lowevy, “Of Community, Organs and Obligations: Routine Salvage with a Twist,” Theoretical Medicine and Bioethics, 17, no. 1 (1996), 63.
- 6.
The legal and strategic questions of whether and how the state should address the relinquishing of organs upon death is importantly distinct (and is discussed later in the chapter), and while I believe our liberal democracy rightly demands that we allow the moral choice to be real, whatever are the legal/strategic implications of my position, the moral question must be answered first.
- 7.
cf. “Timeline of Kidney Transplantation,” Medical University of South Carolina, accessed January 24, 2018, http://waring.library.musc.edu/exhibits/kidney/Transplantation.php
- 8.
cf. CR Blagg, “The Early History of Dialysis for Chronic Renal Failure in the United States: A View from Seattle,” American Journal of Kidney Dialysis, 49, no. 3 (March 2007), 482–96.
- 9.
cf. Natalie Neysa Alund, “Jahi McMath: Timeline of Events in Case of Brain-dead Oakland Teen,” The Mercury News, accessed Jan. 24, 2018, https://www.mercurynews.com/2014/01/05/jahi-mcmath-timeline-of-events-in-case-of-brain-dead-oakland-teen/
- 10.
James Bernat, “Life or Death for the Dead-Donor Rule?” New England Journal of Medicine, 369 (October 2013), 1289; cf. John A. Robertson, “Delimiting the Donor: The Dead Donor Rule,” 29, no. 6 (November 1999), 6–14.
- 11.
cf. FM Wijdicks, et al., “Evidence-based Guideline Update: Determining Brain Death in Adults,” Neurology, 74, no 23 (June 2010), 1911–8.
- 12.
Thomas Murray, “The Gift of Life Must Always Remain a Gift – Organ Donations and Biotechnology Industry,” Discover (March 1986), 90–2; Renee Fox and Judith Swazey, Spare Parts: Organ Replacement in America (New York: Oxford University Press, 1992), 32–3; F Svenaeus, “What Is an Organ? Heidegger and the Phenomenology of Organ Transplantation,” Theoretical Medicine and Bioethics, 31, no. 3 (June 2010), 179–96; Alexander Glazier, “The Principles of Gift law and the Regulation of Organ Donation,” Transplant International, 24, no. 4 (April 2011), 368–72.
- 13.
Still under a “charity” model, but employing a state-sponsored incentive, in 2005 the state of Utah passed a law giving tax credit for expenses incurred by living donors and had previously passed a law giving 30-day leave to state employees who donate (see http://www.idslife.org/news-145i.php). Other states have followed suit with similar tax provisions. Other proposed “ethical incentives” can be found in Delmonico et al. “Ethical Incentives—Not Payment—For Organ Donation,” New England Journal of Medicine, 346 (2002), 2002–2005 and David Steinberg, “An “Opting In” Paradigm for Kidney Transplants,” American Journal of Bioethics, 4, no 4 (2005), 4–14., among others.
- 14.
John Lachs, “On Selling Organs,” Forum on Medicine, 11 (1979), 746–7; George Annas, “Life, Liberty, and the Pursuit of Organ Sales,” Hastings Center Report, 14, no. 1 (1984),:22–23; MB Gill and Robert M Sade, “Paying for Kidneys: The Case against Prohibition.” Kennedy Institute of Ethics Journal, 12, no. 1 (2002),:17–45; Mark J. Cherry, Kidney for Sale by Owner: Human Organs, Transplantation, and the Market, (Washington, DC: Georgetown Univ. Press, 2005); Kishore, “Human organs, scarcities, and sale: morality revisited,” Journal of Medical Ethics, 31 (2005), 362–65; Gerald Dworkin, “Organ Sales and Paternalism,” Journal of Medical Ethics (2012) online: http://jme.bmj.com/content/medethics/early/2012/06/18/medethics-2012-100647.full.pdf; Gary Becker and Julio Elias, “Cash for Kidneys: The Case for a Market for Organs,” Wall Street Journal, Jan. 17, 2014).
- 15.
M Goya, et al., “Economic and Health Consequences of Selling a Kidney in India,” Journal of the American Medical Association, 288, no. 13 (2002), 1589–93; Wilkinson and Garrad, “Bodily Integrity and the Sale of Human Organs,” Journal of Medical Ethics, 22, no. 6 (1996), 334–9; Cynthia B. Cohen, “Public Policy and the Sale of Human Organ,” Kennedy Institute of Ethics Journal, 12, no. 1 (2002), 47–64; Richard Demme, “Ethical Concerns about an Organ Market,” Journal of the National Medical Association, 102, no1 (Jan 2010), 46–50.
- 16.
Mine is hardly the only voice to argue that procuring organs might follow from a moral obligation. In fact, Almassi suggests that there are two kinds of arguments regarding the moral obligation of “donation [sic.]”—“arguments from fairness” (cf, Jarvis 1995; Eaton 1998; Steinberg 2004; Altman 2011—among others cited in Ben Almassi , “Trust and the Duty of Organ Donation,” Bioethics, 28, no. 6 (2014), 276n2) and “arguments from easy rescue” (cf., Hester 2006; Spital /Taylor 2007; Nelson 2003a, b, 2005, 2010, and 2011—among other cited in Almassi 2014, 277n14). (See also, James Childress, 2001; John Harris 2003; Howard 2006, among others not cited by Almassi.)
Almassi believes all these arguments fail to support a moral obligation to release one’s organs upon death. However, the arguments from fairness typically only imply a moral obligation, as they focus primarily on “free-rider” concerns and the desire to close the supply-demand gap. Arguments from easy rescue, however, tend to develop directly some logical claim regarding a moral obligation. Since Almassi sees my argument as falling into the latter camp (easy rescue), I will return to his concerns regarding my own position later.
- 17.
Thomas Scanlon, What We Owe to Each Other (Cambridge, MA: Belknap Press, 2000).
- 18.
John Rawls, Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 114.
- 19.
John Stuart Mill, “On Liberty,” in Three Essays (London: Oxford University Press, 1975 [1859]), 69.
- 20.
Peter Singer, “Famine, Affluence, and Morality,” Philosophy & Public Affairs, 1 (1972), 231.
- 21.
James 1891.
- 22.
For example, wound and other surgical complications are around 5% for kidney transplant patients, which is roughly the same rate as with other urological (non-transplant) surgeries (A Humar and AJ Matas, “Surgical Complications after Kidney Transplantation,” Seminars in Dialysis, 18, no. 6 [Nov-Dec 2005], 505–10).
Also, there are questions about whether or not the DDR is violated by current procurement procedures, and if so, that might constitute a moral wrong. Of course, this holds only if it is agreed that the DDR is a true moral prohibition—this, too, has been questioned (Frank Miller and Robert Truog , “The Dead Donor Rule: Can It Withstand Critical Scrutiny,” Journal of Medicine and Philosophy, 35, no. 3 [June 2010], 299–312). Either way, that is different than saying the patient from whom organs were procured was harmed (see note 34).
- 23.
Alvin Moss and Mark Siegler, “Should Alcoholics Compete Equally for Liver Transplantation?” Journal of the American Medical Association, 265, no. 10 (1991), 1295–1298; EJ Kluge, “Drawing the Ethical Line between Organ Transplantation and Lifestyle abuse.” Canadian Medical Association Journal, 150, no. 5 (1994), 745–6.
- 24.
“Genetics of Alcohol Use Disorder, National Institute on Alcohol Abuse and Alcoholism, accessed January 26, 2018, https://www.niaaa.nih.gov/alcohol-health/overview-alcohol-consumption/alcohol-use-disorders/genetics-alcohol-use-disorders
- 25.
Traci Mann, et al., “Medicare’s Search for Effective Obesity Treatments: Diets Are Not the Answer,” American Psychologist, 62, no. 3 (April 2007), 220–33.
- 26.
Frankly, many of these concerns would affect allocation, rather than procurement, decisions, and in the case of alcoholic liver disease, for example, transplants are as successful as transplants for other liver patients. Cf. MR Lucey, “Liver Transplantation in patients with alcoholic liver disease,” Liver Transplantation, 17, no. 7 (July 2011), 751–9.
- 27.
Edwina Brown and Patrick Parfrey, Complications of Long-term Dialysis. (New York: Oxford Univ. Press. 1999).
- 28.
Mange, Joffe, Feldman, “Effect of the Use or Nonuse of Long-term Dialysis on the Subsequent Survival of Renal Transplants from Living Donors,” New England Journal of Medicine, 344, no. 10) (2001), 726–31.
- 29.
A Sayin, R Mutluay, S. Sindel, “Quality of life in hemodialysis, peritoneal dialysis, and transplantation patients,” Transplantation Proceedings, 39, no. 10 (December 2007), 3047–53.
- 30.
Nelson, J L., Hippocrates’ Maze. (Lantham, MD: Rowman & Littlefield, 2003), 118–120.
- 31.
Nelson, J L., “Harming the Dead and Saving the Living.” American Journal of Bioethics, 3, no. 1 (2003), 14.
- 32.
Almassi 2014.
- 33.
Here, following Frances Kamm (and others; cf. Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, Mass.: Harvard University Press, 2009), pp. 44–46), I make a distinction between “wronging” and “harming.” Wronging is a deontological condition that occurs when respect is violated. Harming is a consequentialist condition that occurs when outcomes prove problematic or troubling, painful or worrisome. As such, someone might be wronged in some morally recognizable way, even when they are not otherwise harmed and vice versa. Frances M. Kamm, “Some Conceptual and Ethical Issues in Munchausen Syndrome by Proxy,” in Ethical Dilemmas in Pediatrics: Cases and Commentaries, Lorry Frankel, et al. (eds.) (Cambridge, UK: Cambridge University Press, 2005), 77n8.
- 34.
Almassi 2014, 282.
- 35.
JL Nelson, “Donation by Default? Examining Reservations about Opt-out Organ Procurement,” International Journal of Feminist Approaches to Bioethics, 3, no. 1 (Spring 2010), 36.
- 36.
Almassi 2014, 282.
- 37.
cf. JD. Kunin, “The Search for Organs: Halachic Perspectives on Altruistic Giving and the Selling of Organs,” Journal of Medical Ethics, 31, no. 5 (May 2005), 269–72; Lam and McCullough, “Influence of religious and spiritual values on the willingness of Chinese–Americans to donate organs for transplantation,” Clinical Transplantation, 14, no. 5 (200), 449–56.
- 38.
Cooper and Taylor, SEOPF/UNOS: Organ and Tissue Donation: A Reference Guide for Clergy, 4th ed. (Richmond, VA, 2000).
- 39.
Robert Truog , “Are Organs Personal Property or a Societal Resource?” American Journal of Bioethics, 5, no. 4 (2005), 15.
- 40.
JL Nelson, “Trust and Transplants,” American Journal of Bioethics, 5, no. 4 (2005), 26.
- 41.
Childress 1989, 15.
- 42.
Aaron Spital , “The Shortage of Organs for Transplant: Where Do We Go from Here?” New England Journal of Medicine, 325, no. 17 (1991), 1243–1246; Aaron Spital , “Unrelated Living Kidney Donors: An Update of Attitudes and Use in US Transplant Centers,” Transplantation, 57, no. 12 (1994), 1722–6; Aaron Spital , “Mandated Choice for Organ Donation: Time to Give It a Try,” Annals of Internal Medicine, 125, no. 1 (1996), 66–69; Aaron Spital and CA Erin. “Conscription of Cadaveric Organs for Transplantation: Let’s at least Talk about It,” American Journal of Kidney Diseases, 39, no. 3 (2002), 611–615.
An earlier version of a “conscription” model can be seen in Dukeminier and Sanders classic piece “Organ Transplantation: A proposal for routine salvaging of cadaver organ” in Dukeminier J, Sanders D. Organ transplantation: a proposal for routine salvaging of cadaver organs. New England Journal of Medicine, 1968; 279(8):413–9. Veatch and Ross have much to say about “routine salvaging” in their book, Transplantation Ethics, 2nd ed. Georgetown Univ. Press, 2015, chpt 10, 147–163.
- 43.
Aaron Spital and JS Taylor, “In Defense of Routine Recovery of Cadaveric Organs: a Response to Glannon,” Cambridge Quarterly of Healthcare Ethics, 17, no. 3 (Summer 2008), 339.
- 44.
Aaron Spital , “Conscription of Cadaveric Organs for Transplantation: Neglected Again,” Kennedy Institute of Ethics Journal, 13, no. 2 (2003), 169–174.
- 45.
Spital /Taylor 2008, 300.
- 46.
“Charity” is never an obligation, but supererogatory. “Obligations” are requirements; “donations” are not. This, then, is not to be confused with what we sometime colloquially call “charitable acts” (giving to the poor, famine relief, etc.) which may, in fact, be obligatory—see Singer’s argument for famine relief as an example (1972). Here we simply misuse the concept when we call such acts “charitable.”
- 47.
Spital A, Taylor JS 2007, 302, ref. 23. To be clear, Spital cites both herein and elsewhere other sources for his claim, and thus, I believe Spital takes my argument to be merely sufficient, not necessary, to support his procurement proposals. It is worth noting that in 2007 Spital , along with Taylor, changed his rhetoric from “conscription” to “routine removal.”
- 48.
Robert Veatch, Transplantation Ethics (Washington, DC: Georgetown University Press, 2000), 175.
- 49.
A relatively recent account of the tenants of liberal democracy can be found in Robert B Talisse. A Pragmatist Philosophy of Democracy (New York: Routledge, 2007), especially chapter 2, 27–53.
- 50.
Obligations, if valid, are not matters of choice per se, so the policy I propose is not based on presuming that citizens have already “consented”. Instead, like conscription , the presumption is that release of organs is “required.” The ability to opt out, then, is to allow citizens to make a choice, albeit an unethical one, based on whatever reasons they might have. This is akin to Veatch’s category of “routine salvaging with opting-out,” though the moral arguments behind it differ from the usual utilitarian argument that others have previously given. Further, Veatch’s “required response” model may be a viable alternative to the opt-out model I propose; it differs, however, in that it begins first from the standpoint that choice is paramount, while I argue the moral obligation to release trumps the value we place on autonomous choice. The difference in our suggested models is, thus, a difference concerning which side of the moral tension we believe takes precedence. See Veatch and Ross 2015, 147–163.
- 51.
This differs even from a conscription model that allows conscientious objections (CO) in that CO demands a higher threshold than simple “opting out” since, as Mark Wicclair argues, CO requires vetting, while an opt-out model as I conceive it, at least, would not. Cf. Mark Wicclair, “Conscientious Objection in Medicine,” Bioethics, 14, no. 3 (2000), 205–227.
- 52.
Childress JF, Leverman CT, eds. Organ Donation: Opportunities for Action. A Report from the Institute of Medicine. (Washington, DC: National Academies Press, 2006), 205–28.
- 53.
Schweda and Schicktanz. “Public Moralities Concerning Donation and Disposition of Organs: Results from a Cross-European Study,” Cambridge Quarterly of Healthcare Ethics, 17, no. 3 (2008), 308–317.
- 54.
Johnson EJ, Goldsein D, “Do Defaults Save Lives?” Science, 302, no. 5649, 1338–39.
- 55.
This chapter is based on two prior publications, substantively revised and updated: D. Micah Hester, “Why We Must Leave Our Organs to Others,” American Journal of Bioethics, 6, no 4 (Sept 2006), W23–28, and D. Micah Hester, “Opting Out: The Relationship between Moral Arguments and Public Policy in Organ Procurement, Cambridge Quarterly of Healthcare Ethics, 18, no. 2 (April 2009), 159–65.
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Hester, D.M. (2018). Organ Procurement: The Ethical Obligation to Release Organs. In: Boonin, D. (eds) The Palgrave Handbook of Philosophy and Public Policy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-93907-0_54
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