Ethical and Philosophical Barriers to Organ Donation
Danielle Cameron
Philosophy Senior Essay
Haverford College
April 25, 2005
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According to the United Network of Organ Sharing (UNOS)1, nearly 89,000
Americans are currently awaiting organs for life-saving transplants. In 2004, only 24,
812 transplants were performed, made possible by 12,948 donors. Based on these
statistics and the expected continuing shortage of donor organs, it is likely that only
twenty-five percent of the 89,000 potential recipients will receive the gift of a donor
organ. The desperate shortage of donor organs in the U.S. demands that we re-examine
our method of procuring organs and ask where we should revise policy to increase organ
donation. Our current system gives individuals the chance to register as potential donors
on their driver’s licenses, but these decisions are not always honored at the critical hour.
Failure to obtain consent is often the result of physicians’ reluctance to obtain consent
from the family of the deceased, even when the deceased was registered as a donor.
These barriers to organ donation can be avoided by adoption of a different system of
procurement.
The U.S. is currently ranked fourth behind Spain, Austria, and Belgium in per
capita rate of organ donation.2 Spain, Austria, and Belgium all operate under the
Presumed Consent policy, which will be explained later. This paper aims to explore
several other possible procurement policy options and to evaluate which policy could be
most effective in increasing organ donation while still upholding the ethical principles we
understand to be essential to our rights as living beings. In doing so, I hope to show that
we should follow the example of our European neighbors by implementing a Presumed
Consent policy in the United States. The second half of the paper will deal with the
1
2
www.unos.org. Date viewed: April 22, 2005
http://www.ama-assn.org/amednews/2002/09/16/prsa0916.htm
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philosophical issues raised by Presumed Consent. It will be argued that it is important to
separate our rights of ownership of our bodies during our lifetime from those
postmortem. Supporting evidence from various religious and cultural perspectives will
provide a philosophical foundation for acceptance of a policy of Presumed Consent.
Policies
Throughout the world today there are four policies or models of obtaining
permission for donation of organs postmortem: Presumed Consent, Mandated Choice,
“Eye for an Eye” , and commodification of organs for an established organ market. Each
policy has certain advantages and disadvantages, some pertaining more to practical issues
and others to matters of ethics and philosophy. Practical issues are secondary to the
philosophical and ethical concerns although they will be dealt with when relevant.
Presumed Consent
Presumed Consent legislation is already established in 13 European countries; it
presumes that everyone is a donor unless there is legal documentation that the individual
has explicitly refused. The choice of “opting-out” is available to everyone and it is
assumed that everyone is aware of their right to choose not to be a donor.
One practical aspect of The Presumed Consent policy is that it requires that the
public maintains a high level of trust in medical practitioners, and in particular,
confidence that medical treatment would never be compromised for the sake of
harvesting our organs. The Hippocratic Oath states that, above all, a doctor will “keep
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them from harm and injustice.”3 It is a given that a physician will follow the Hippocratic
Oath and not harm or endanger the life of a patient in the name of organ transplantation.
It should be noted that in countries that operate under Presumed Consent policies, there
are no recorded instances of doctors providing inadequate treatment because of a
potential conflict of interest between potential donor and potential recipient.
The ample supply of donor organs in European countries demonstrates the
success of the policy of Presumed Consent. Another advantage that the policy offers is
the preservation of autonomy. In discussions about organ donation, most people feel that
they should have the right to determine whether or not to be a donor. In countries like the
U.S. where individual rights assume great importance, it is self-evident that our policies
should reflect and honor those rights. Several studies have shown that the failure to
procure organs is not due to the lack of general public support for organ donation, but
rather to the failure to obtain permission to recover viable donor organs4. A Presumed
Consent policy would therefore directly address this defect in the current system.
Presumed Consent legislation is potentially problematic because it demands
moral responsibility. The assumption that everyone is a donor, unless they have specified
otherwise, reflects a prevalent notion that organ donation is the proper thing to do with
one’s death. Although the policy allows one to opt out, it could be difficult to establish
an effective system that records an individual’s objection to donation and makes the
3
4
Edelstein, Ludwig. The Hippocratic Oath: Text, Translation, and Interpretation. Trans. Ludwig Edelstein.
Baltimore: Johns Hopkins Press, 1943
Laurie G. Futterman, “Presumed Consent: The Solution to the Critical Donor Shortage” Ed. Arthur L.
Caplan. The Ethics of Organ Transplantation.(Amherst: Prometheus Books, 1998) p. 161 – 172
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record easily and immediately available to all doctors and healthcare providers involved
in the terminal care.
Another objection to the Presumed Consent legislation is that its name is
misleading. In their paper entitled, “The Myth of Presumed Consent: Ethical Problems in
New Organ Procurement Strategies”, Robert M. Veatch and John Pitt write that
Presumed Consent is in fact a method also known as Routine Salvaging, as it permits
doctors to remove available organs without explicit consent. Veatch claims that it is
unethical to use the word “consent” with regards to Presumed Consent; he writes,
“to presume consent is to make an empirical claim. It is to claim
that people would consent if asked, or, perhaps more precisely that
they would consent to a policy of taking organs without explicit
permission. The reasoning behind true presumed consent laws is
that it is legitimate to take organs without explicit consent because
those from whom the organs are taken would have agreed had they
been asked when they were competent to respond.”5
However, Veatch’s claim that the reasoning behind Presumed Consent is
unethical is unconvincing; in our legal system it is legally justified to presume consent if
there is an opportunity to document one’s position against the concern at hand and that
right is waived by the individual.
By labeling such a policy in a misleading way, Veatch feels that we risk
compromising the ethical relationship of the individual and society. This objection,
however, can be countered by the option of “opting-out”, and it is certainly not true that
society is ignoring the autonomy of the individual and his right to decline donation. If
the individual chooses not to document his decision, it is legally justified for the state to
5
Robert M . Veatch and John Pitt, “The Myth of Presumed Consent: Ethical Problems in New Organ
Procurement Strategies” Ed. Arthur L. Caplan. The Ethics of Organ Transplantation.(Amherst: Prometheus
Books, 1998) p. 176
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make the decision about organ donation postmortem without dishonoring the autonomy
of the individual.
One might say that Presumed Consent excludes the family from a critical
decision. The British Medical Association has responded to this concern and has
encouraged the establishment of a “soft” system involving presumed consent that takes
into account the views of the relatives of the deceased. They have suggested that instead
of seeking consent from the relatives, relatives would be informed that their family
member had not opted out of donation and that, unless they objected, the organs would be
harvested.6 Although this still allows for the rejection of organ donation, statistics have
shown that 75% of families approve, a percentage that might even increase further if
Presumed Consent became standard practice.
Mandated Choice
The second possible policy for organ procurement is the Mandated Choice policy
which requires that every citizen legally document his preference regarding organ donor
status during his lifetime. This decision would be registered in a centralized database
system that could be accessed by medical professionals when needed. It has similarities
to Presumed Consent, and in many ways is most competitive with it.
The Uniform Anatomical Gift Act of 1968 recognized the authority of the
individual to determine how his organs are to be used postmortem. The legislation also
awarded the next of kin the same authority if it was the case that the individual had not
indicated his desire during his lifetime. Later reformation of this legislation required that
hospital staff record each patient’s desire for organ donation upon admission; in addition,
6
Alison Hardie, “’Presumed Consent’ Would End Shortage.” The Scotsman. Lexis Nexis. Date of
publication: December 6, 2004. Date article was viewed: February 20, 2005.
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healthcare staff are required to ask the family of brain dead patients to consider organ
donation. “Required request” policy puts an unusual burden on both family and
physician at an already traumatic and devastating time. With legislation like Mandated
Choice, the need to obtain family consent could be avoided and the discomfort of
discussion of organ donation at a time of bereavement would be avoided.
Mandated Choice is also favored by many because it increases public awareness
about the need for donor organs and mandates that the individual as well as the public
engage in serious thought and discussion over organ transplantation. Another advantage
is that the policy would eliminate the delay that healthcare professionals encounter when
trying to obtain permission to procure organs. Delays in organ procurement often result
in deterioration of organ function and compromise long-term results of the transplant. At
the same time, a Mandated Choice policy would also honor the right of the individual to
exercise autonomy and yet preserve the altruistic and voluntary nature of organ donation,
as those who donate do so willingly and presumably with the well being of others in
mind. Aaron Spital, the medical director of the New York Organ Donor Network, is in
favor of a system based on Mandated Choice; in a paper, “Mandated Choice for Organ
Donation: Time to Give It a Try” he states that, “mandated choice would preserve
altruism and voluntarism, which are the philosophical foundations of our current system
for obtaining consent.”7
The elimination of the family’s consent in the Mandated Choice process has been
a major issue for those who campaign against Mandated Choice. Spital responds: “In
fact, it is kinder to families than is our present system because it eliminates the need for
7
Aaron Spital, “Mandated Choice for Organ Donation: Time to Give It a Try”
Ethics of Organ Transplantation.(Amherst: Prometheus Books, 1998) p. 149
Ed. Arthur L. Caplan. The
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devastated families to confront the emotionally wrenching issue of organ donation during
their most trying moments. The concern that most families would not tolerate being
excluded from the final consent process is not well substantiated.”8 Spital adds that a
family would not be entirely removed from the decision making process. Each individual
still has the opportunity to discuss his desires about organ donation prior to registering
those desires. With Mandated Choice, the system ensures that the individual’s desires
will be honored and removes the stress of decision-making at a most difficult time.
It must also be remembered that organ donation can be a positive experience for a
family, even during the devastation that accompanies death of a family member. In most
cases of organ donation, the organs are procured from a young person who died in a
tragic accident. In these situations, there is the potential to give meaning and salvage
good from otherwise inexplicable tragedy. Anne and David Klassen argue that a family’s
decision to permit donation, especially in circumstances of brain death and accidental
death, can be altruism in its highest and finest form. They also point out that the claim
that a Mandated Choice policy might deprive a family from the opportunity to act
altruistically and that asking for consent from the next of kin does not necessarily negate
the altruistic nature of the act. Unfortunately, Mandated Choice can also cast a negative
light on organ transplantation when family refusal is overturned by a patient’s premortem
wishes. While it is certainly important to incorporate the family in the process of organ
procurement, these considerations should not be taken as an absolute objection to the
policy itself. Instead, we might encourage families to actively talk about organ donation
and become familiar with each family member’s preference and perspective.
8
Aaron Spital, “Mandated Choice for Organ Donation: Time to Give It a Try”
Ethics of Organ Transplantation.(Amherst: Prometheus Books, 1998), p. 150
Ed. Arthur L. Caplan. The
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With the growing shortage of organs, the transplantation effort cannot afford to be
seen in a negative light. The system must appear fair and respectful of individual’s
wishes. People agree to be donors under the assumption that they are donating to a
system that operates fairly. This also raises an important ethical dilemma about what is
done with the information that Mandated Choice records. There are many states that
maintain databases of donation preferences of its residents. Often the local organ
procurement organization (OPO) might use this information to influence family decisions
about donation. By showing that the deceased individual had registered as an organ
donor, the organization could convince a family to donate the patient’s organs. But what
happens if the OPO’s records show that an individual is registered as a non-donor but the
family wants to donate his organs? It seems unethical to suppress that information and
allow the family to donate the organs despite the preferences of the deceased. The
Klassens raise the question, “Under mandated choice, would information on a driver’s
registration as a non-donor also be honored?”9 If that information was honored then the
system could actually lose potentially available organs and the shortage problem would
not be exacerbated.
“Eye for an Eye”
The third policy, suggested by Rupert Jarvis, holds that in order to encourage the
public to register as organ donors, we ought to make eligibility for a transplant contingent
upon registering as an organ donor. That is, “you can receive an organ only if you are
willing to give one.”
9
Ann C. Klassen and David K. Klassen, “Who Are the Donors in Organ Donation? The Family’s
Perspective in Mandated Choice.” Ed. Arthur L. Caplan. The Ethics of Organ Transplantation. (Amherst:
Prometheus Books, 1998) p. 158
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The premise of “Eye for an Eye” is that in agreeing to donate organs, the
individual increases his chances for a successful transplant, should he ever need one.
This introduces a personal incentive into what would otherwise be a purely altruistic
gesture. However, the logistics of this approach do not withstand close scrutiny. The
likelihood of any individual requiring a transplant is extremely low, and indeed those
most likely to need transplants are least likely to be donors.
The attempt to “influence” donation has been criticized as being coercive. Jarvis
responds to the objection,
“the proposal seems no more coercive than any other
arrangement which offers a valued future goal as a reward for
some sacrifice. Indeed, the coercion involved looks to be
particularly thin, given that all the benefits accrue to the
individual while s/he is alive while the costs are exacted
exclusively after his/her death. The responsibility to register as
a potential donor - and therefore as a potential patient - rests
with the individual alone.”10
This arrangement may appear unethical because it does not honor the right of the
individual to refuse to be an organ donor without consequences. Although the model
eliminates certain negative aspects of our current system (such as denial of
transplantation for those who cannot pay), it also seriously discriminates against
populations based on their belief about organ transplantation.
One final objection relates to the practical matter in that there is the potential for a
surplus of available organs. How would we manage this? It seems worse to waste the
precious gift of donated organs and yet there may be unused organs who might otherwise
have been available to some patients who were not registered as donors. When
10
Rupert Jarvis, “Join the Club: A Modest Proposal to Increase Availability of Donor Organs” Ed. Arthur
L. Caplan. The Ethics of Organ Transplantation. (Amherst: Prometheus Books, 1998) p. 190-91
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exceptions are made in these circumstances, how does one preserve the integrity of the
system?
In summary, “Eye for an Eye” is very problematic, and probably substantially
inferior, both ethically and practically, to the models of Mandated Choice and Presumed
Consent.
Organ Commodification
The final suggested policy operates under the assumption that as autonomous
individuals we have the exclusive right to determine how we use our bodies, including
selling body parts postmortem on an open market. A likely advantage and benefit of this
system would be an increase in the number of donor organs, but there are several
substantial objections to an organ market.
The first is that healthcare is already inaccessible to many people and
commodification would likely worsen the problem of maldistribution. The second
objection is based on the insoluble mix of money and morality, one that inevitably leads
to a slippery slope. Where would we draw the line on which parts were appropriate to
sell, and when?
Thomas Peters is an advocate of an organ market system that would provide
financial incentives to families that agree to donate their relative’s organs. Peters claims
that this policy would be effective because it would satisfy the goal to save as many lives
as possible. In his paper, “Families’ Self-Interest and the Cadaver’s Organs: What Price
Consent?” Edmund Pellegrino counters Peters saying, “Peter’s proposal also seriously
undermines the consent process. Ethically, the family does not have proprietary rights
over a relative’s dead body. That body is not an object to be scavenged even for good
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purposes.”11 Pellegrino offers a convincing argument that any sort of market system that
commodifies the body is ethically compromising. Furthermore, no person has the right to
sell another person’s body, even if the sale has a beneficial outcome, as in the case of
organ donation.
If by creating an organ market system we limit transplants to only those who can
pay for them, we risk damaging the integrity of the organ procurement and allocation
system. If the public does not trust that the distribution of a scarce commodity is fair,
they become less likely to register as donors. Robert Evans agrees that our healthcare
system is flawed and that there is unequal access to treatment across the board, not just in
the field of transplantation. Arthur Caplan, a prominent bioethicicst at the University of
Pennsylvania, has also published on the topic of commodification. He writes that,
“Calls for markets, compensation, bounties, or rewards should be
rejected because they pose risks to personal autonomy and fairness.
They convert donor into sources, human beings into products, thus
undermining the foundational values requisite for respect for others
and for self-esteem. Commercial schemes risk further
disadvantage and alienating the already disadvantaged who often
are underrepresented in transplant programs.”12
Caplan makes the valid point that buying much needed organs from
underrepresented donor populations like the African-American communities emphasizes
how organ commodification could seem almost like a slave trade in which price tags are
placed on bodies and their parts, completely depersonifying human beings in the process.
11
Edmund D. Pellegrino, “Families’ Self-Interest and the Cadaver’s Organs: What Price Consent?
Arthur L. Caplan. The Ethics of Organ Transplantation. (Amherst: Prometheus Books, 1998) p. 206
12
A.L. Caplan, C.T. Van Buren, and N.L. Tilney, “Financial Compensation for Cadaver Organ Donation:
Good Idea or Anathema?” Ed. Arthur L. Caplan. The Ethics of Organ Transplantation. (Amherst:
Prometheus Books, 1998) p.223
Ed.
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Caplan is most convincing in his discussion about self respect, respect for others,
and self-esteem. What morality is promoted by a financial incentive system? To donate
organs is to give the gift of life; financial incentives taint the beauty of that gift
irrevocably.
Mandated Choice vs. Presumed Consent
Most importantly, the Presumed Consent and Mandated Choice policies address
questions of autonomy. Philosophically, we understand autonomy as one of the most
fundamental elements of human existence. The ability to think rationally and govern
ourselves is essential to our being and sense of wellbeing. Neither Presumed Consent nor
Mandated Choice is designed to strip the individual of his autonomy. So why would a
Presumed Consent be preferable to the Mandated Choice policy?
Mandated choice is an attractive option because it will raise public awareness
about the desperate situation of transplantation due to organ shortages, but ultimately it is
not practical. The administrative effort required to determine a patient’s donor status can
be burdensome on the hospital staff, especially when there is limited time to perform
procurement surgery. Also, the paradoxical ethical dilemma arises when the classified
information of donor status complicates the request made to families to allow organ
donation. A Presumed Consent policy would also raise public awareness about the
severity of the donor organ shortage; based on the experience in Europe it would be more
effective than our current system in the United States, which most closely resembles the
Mandated Choice policy. In the balance, the disadvantages of a Presumed Consent
policy are not outweighed by advantages of the Mandated Choice policy.
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It is my belief that we stumble during our thinking about the removal of body
parts because we tend to equate our bodies with the essence of ourselves. Presumed
Consent challenges us to think about our corpses as separate from our identity and
selfhood. The policy would comply with a philosophical notion that any physical change
to my corpse does not alter me because I am dead. All that is left is my body. In the final
section, I plan to address these philosophical concepts of the self postmortem and their
implications in the implementation of a Presumed Consent policy. These ideas about our
bodies after death are often shaped by our religious and cultural perspectives. It therefore
seems valuable to investigate the religious and cultural attitudes toward organ
procurement and examine donation as an ethical act.
Cultural and Religious Perspectives
There has been near universal agreement among secular and religious committees
dealing with bioethics and organ transplantation that there is justification for removal of
organs for life-saving purposes. This agreement provides a foundation for all
procurement policies and enables further discussion about which policy best satisfies the
ethical and cultural requirements of a population, while maximizing utilization of an
important resource. Because major religions willingly recognize that removal of organs
for transplantation not as desecration of the body, but instead as an ethical, morally “good
act,” attention can be turned toward cultural and religious perspectives on procurement
policy, rather than transplantation itself.
In his book Transplantation Ethics, Robert M. Veatch reviews each of the major
religions that have shaped cultures across the world. Because all religions were
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established long before organ transplantation, there are no direct, literal references to
organ donation in the classic religious texts, but various Medical Ethics Codes have been
reviewed in an attempt to understand how religion embraces and responds to
advancements in medical and scientific technology.
On Desecrating the Corpse
In thinking about organ transplantation, we are forced to contemplate the fate of
our bodies after death. This typically involves thoughts about burials with inevitable
religious and spiritual implications. Whether or not one is deeply religious, everyone has
a vision or plan for how his body should be treated after death. Traditionally, there are
many religious beliefs and guidelines on burials and ceremony after death. For example,
to be “eligible” to be buried in a Jewish cemetery, a corpse must not be violated by
tattoos, piercing, or other desecrations of the vessel given to you at birth. Based on
traditional beliefs about burials and conceptions of fate of the soul and body after death,
some members of the public have used religion as an excuse to opt out of organ donation,
but this is based on inaccurate understanding of religious doctrine.
Catholics and Protestants alike have endorsed organ donation and transplantation,
calling it a noble act because of its lifesaving and gift-giving nature. Judaism also sees
organ donation as a noble act. Depending on the sect of Judaism (reform, conservative,
or orthodox), there are small discrepancies about how “intact” the body should be at
burial; however, if it is not wholly intact because of an organ donation, exceptions will be
made to acknowledge the benevolence of the donor and family.
Muslims have a different approach toward donation and transplantation that is
somewhat less flexible. Their religious views do not expressly prohibit organ donation.
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Muslims believe in the sacredness of the human body and have some difficulty
reconciling any disturbance of the body after death. Veatch writes, “Although the
general population tends to feel positively toward donation,13 guidelines set limits,
including that transplants occur only when no other treatment is available, that the
procedure has a good chance of success, that voluntary consent is obtained from either
the donor or the next of kin to procure the organs, and that death has accurately been
pronounced.”14 Thus, Islam is not opposed to transplantation but because transplantation
compromises certain reverences for the body there must be a slow, gradual introduction
of donation and transplantation into the Muslim community. The Islamic perspective on
organ donation has been compared to the earlier views that Judaism held, which were
later transformed to incorporate organ donation and transplantation. Both religions have
shaped a cultural understanding of donation leading to transplantation as a way of making
a positive contribution to society. All religions have elements of charity and
responsibility to serve one’s community. Organ donation is understood in a similar way.
The Islamic Code of Medical Ethics instructs that, “The individual patient is the
collective responsibility of the Society, that has to ensure his health needs by any means
inflicting no harm on others. This comprises the donation of body fluids or organs such
as blood transfusion to the bleeding or a kidney transplant to the patient with bilateral
irreparable renal damage. This is another “Fardh Kifaya,” a duty that donors fulfill on
13
V. Rispler-Chaim, “Islamic Medical Ethics in the 20th Century,” Journal of Medical Ethics 15 (1989):
203-08; Abdullah S. Daar, “Islam,” in Organ and Tissue Donation for Transplantation, ed. Jeremy R.
Chapman, Mark Deierhoi, and Celia Wight (New York: Oxford University Press, 1997), p. 29-33.
14
Robert M. Veatch, Transplantation Ethics. (Washington D.C.: Georgetown University Press, 2000) p. 9
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behalf of society.”15 Islamic tradition recognizes the body as sacred but also understands
that certain desperate situations demand drastic action, such as organ donation and
transplantation. If individuals have responsibility to society to help others without
harming or endangering others, organ donation would appear a logical and acceptable
venue for such service. Muslims further believe that declaration of death is a serious task
that can only rest on the shoulders of the doctor. They also understand and agree that full
brain death is an acceptable and adequate definition of death. Given this compliance with
the brain-death definition, it seems that there are many circumstances where it could be
morally acceptable for the corpse of a Muslim to be used for organ donation.
Hinduism and Buddhism have ideologies that are even more difficult to come to
terms with organ donation, transplantation, and possible desecration of the corpse. For
example, there are Hindu and Buddhist myths that recognize the donation of body parts
and the giving of eyes as “virtuous behavior.”16 On the other hand, the Hindu tradition of
cremating the body is based on the belief that it becomes literally untouchable after death
and thus might steer Hindus away from transplantation. Because there is evidence in
Hindu myth that donation is seen as virtuous behavior and because of the notion of karma
– how one engages in the world determines how the next life will be – the use of the
corpse for donation (the betterment of another’s life) is not prohibited.
Similarly in the Buddhist tradition, the cyclic nature of life and the
interconnectedness of our existence to the existence of others can be confusing when
embracing organ donation, transplantation, and desecration of the corpse. In one sense, it
15
International Organization of Islamic Medicine, Islamic Code of Medical Ethics, p. 81, also see p.84
cited in Robert M. Veatch, Transplantation Ethics. (Washington D.C.: Georgetown University Press, 2000)
16
Wendy Doniger, “Transplanting Myths of Organ Transplants,” in Organ Transplantation: Meanings and
Realities, ed. Stuart J. Youngner, Renée C. Fox, and Laurence J. O’Connell (Madison: University of
Wisconsin Press, 1996), p. 200-202
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is praiseworthy to be so “outside” of oneself that you would agree to give away body
parts after death. Because of our co-dependency we are almost required to contribute to
the health of others if we have available resources. In another sense, because of beliefs in
reincarnation, it is difficult to understand why someone would be so inclined to prolong a
life on earth once organ failure sets in. Yet it seems intuitive that even if freed from ego
attachment to the physical world, there is still instinctual desire to live. Again, because
there is no clear objection to donation or the “desecration” of a corpse for the sake of
donation, organ donation can be understood as noble and praiseworthy.
On Routine Salvaging vs. Donation
We see then that most of the major religions are not entirely opposed to using a
corpse for the generous act of organ donation. While certain aspects of ideologies
challenge the nature of organ donation and transplantation, there are no flagrant clashes
with religious belief systems and the principles of procuring organs for transplantation.
The next important question, then, is how can we ethically procure those organs in a way
that is mindful of varying religious and cultural perspectives? This investigation requires
an understanding of the preference of these religions with regards to a procurement
policy that acts under principles of either routine salvaging or donation.
The earlier section devoted to procurement policies explained Robert Veatch’s
criticism of presumed consent saying that it should actually be called “routine salvaging”
because there really is no element of consent. What he means by “routine salvaging” is a
system where doctors have the right to procure organs from a cadaver if that patient had
not indicated during his lifetime whether he wished to “opt out” of donation. The
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“routine salvaging” system is contrasted against a system that relies entirely on explicit
consent to donate whether it is consent from the family or documented consent from the
deceased individual. Veatch writes, “The assumption is that an individual has rights over
and against the state, including the right to bodily integrity. Holders of this view insist
that these rights do not cease at death. Although the state possesses certain rights to
protect society from infectious disease and to perform autopsy when foul play is
suspected, it does not automatically have the right to appropriate body parts.”17 The aim
of this paper is to show that a policy like Presumed Consent can provide us with a both
ethical and effective alternative and it does not have to disturb any notions of autonomy
preservation. It seems important to understand the religious and cultural approaches to
the donation vs. “routine salvaging” debate in order to form an account of a Presumed
Consent policy that incorporates and is supported by religious and cultural beliefs.
The Judeo-Christian approach traditionally would favor the donation alternative
because it is believed that the rights of the individual and the duty to honor and respect
the deceased should not cease when that individual has passed away. Veatch explains
this concept saying, “The body is affirmed to be a central part of the total spiritual being.
Any scheme that abandons the mode of donation in favor of viewing the cadaver as a
social resource to be mined for worthwhile social purposes will directly violate central
tenets of Christian thought and create serious problems for Jews as well, especially in a
state not based on Jewish law.”18 While this ideology is clear and agreeable it does not
really take into account the fact that evidence has shown that religions do accept the
17
18
Robert M. Veatch, Transplantation Ethics. Washington D.C.: Georgetown University Press, 2000. p. 12
Ibid., p.13
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notion of donation and consider it, in some ways, a moral obligation. It is considered a
moral obligation in that it is our duty to act in a charitable manner and offer help to those
in need. Organ donation provides this opportunity and it is possible to do after death. It
could be understood as the ultimate good deed – saving another life. Veatch notes the
contradiction and points out, “Given the fact that these religious traditions all support
organ donation in at least some circumstances and in fact consider it a morally weighty
obligation, they would favor public policies making it as easy as possible to express a
willingness to donate organs for lifesaving purposes.”19 Presumed Consent would
implicitly allow for people to express willingness to donate, it would be in accordance
with the notion that it is incredibly important to help those in need and recognize that we
have a capacity to change or save another human’s life.
Islamic tradition also recognizes donation as more ethical than “routine
salvaging”. Muslims believe that an organ should be a voluntary gift from either the
individual or from the family. It seems that they primarily believe this because of a fear
that the donor will be put in the way of harm if routine salvaging was the standard
practice. If this is the case, then Presumed Consent could still honor the wishes and
concerns of Muslims and increase the amount of donated organs. Presumed Consent
does not put the donor in the path of harm because the donor has already passed away.
The gift could still be voluntary on the part of the family if we enacted a presumed
consent policy that incorporated communication with the family as a stipulation to organ
retrieval.
19
Robert M. Veatch, Transplantation Ethics.(Washington D.C.: Georgetown University Press, 2000), p.13
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Interestingly, India is the only country where it is culturally acceptable to have an
organ market. This may be in part because of the caste system that is grounded in the
Hindu belief that people are born into certain classes and socioeconomic contexts and
they essentially “get what they deserve.” This caste system has caused great poverty and
people are driven to do desperate things like sell their organs to survive. A policy like
Presumed Consent could not be too objectionable if many Hindus do not consider the
sanctity of the body important enough not to sell it for money.
Veatch makes an interesting point in his assessment of the Buddhist approach to
the question of routine salvaging vs. donation. He notes that because of traditions of
hospitality in Japanese culture, organ donation has been difficult to grow accustomed to
because there is no way to have reciprocity for such a generous gift. Traditionally, the
Japanese require some sort of gift in for a gift. He suggests that perhaps it is dangerous
to think of donation as a gift for that very reason. Overall the Buddhist tradition is in
favor of free donation. Buddhists claim that if donation were anything else than a gift,
the virtuous nature would be erased. While I do understand the importance of preserving
the virtuousness of donation, I believe that Presumed Consent can honor donation as a
virtue. To give an organ entails saving a life. We need to understand organ
transplantation as a virtuous act in and of itself. Because we have seen that major
religions are willing to recognize organ donation as an admirable, virtuous act we seem to
be provided with support for a policy like Presumed Consent which also views organ
donation as virtuous.
Finally, Confucianism has an entirely different approach to organ donation and
transplantation. In China there are incidents of procurement from prisoners. This seems
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to indicate recognition of the great necessity for organs and allows for the priority to be
getting the organs and saving lives, and making the “rights” of the deceased secondary.
The purpose of looking closely at various religious and cultural beliefs about
desecration of the corpse and the debate of donation vs. routine salvaging is to have a
grasp of the belief systems that we need to take into account in choosing policies of
procurement. The philosophical implications of certain policies seem closely related to
the religious and cultural perspectives on the issue of organ transplantation. Similarities
between religious beliefs about organ donation and procurement policies like Presumed
Consent can instruct us about how the direction of the general public support of
procurement policies might go.
The trend is that although each religion values the corpse and has certain burial
ceremonies it remains acceptable to “alter” the corpse if the purpose is procuring organs
for donation. Because of the virtuous nature of saving a life through organ donation,
exceptions are easily made in those religions that require a “whole” corpse for the burial
ceremony. Although most religions favor donation, the reason for such a preference is
because it is agreed that the virtuous act of saving a life can only remain so if and only if
the act is entirely voluntary and not seen as an obligation. This seems slightly
contradictory. If each religion claims that it is our moral responsibility to act virtuously
and help others then shouldn’t we fulfill that obligation? In the Buddhist tradition, for
example, there is not as much of a distinction between the self and other and it is even
more important that one recognizes the “interconnectivity” and responsibility to the
community which is already so naturally dependent on itself. If we have these moral
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responsibilities and saving a life is seen as one of the most virtuous acts, then why not
encourage organ donation as some sort of a moral standard or obligation?
Philosophical Implications
The challenge remains to maximally utilize a scarce resource using a system of
procurement that is ethical and effective, and for reasons above and below, Presumed
Consent appears superior in satisfying those requirements. Perhaps the most unsettling
scenario behind the Presumed Consent policy is the possibility that organs could be
harvested from someone who might have refused to be a donor but never recorded a
preference. This concern can be addressed using standard legal procedure for similar
circumstances. If the option was available and the individual did not take advantage of it,
then the state is justified in assuming consent of the individual. Another possible
objection to Presumed Consent is the physically altering of corpses and that the removal
of organs is a violation of the body. This concern was addressed using the support of
religious attitudes about donation. My hypothesis is that Presumed Consent is unsettling
for many because of our failure to comprehend and accept the notion of the self
postmortem. That is to say, we cannot seem to separate our essence of being between the
realms of life and death. It seems reasonable to state that our essence of being ceases
when our bodies expire, but it is more much difficult to accept its finality. We want to
hold on to something of ourselves, as do our family members, and so we find comfort in
ideas of reincarnation or eternity of the soul.
If our estate, body, or personal property were distributed after our death without
adherence to our personal wishes, most would find that an unacceptable disposition.
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But in cases where our personal wishes are not recorded, it is presumed fair and legal for
the state to claim ownership of that property and distribute it as is necessary. In fact, the
state demands ownership of a portion of our estates through taxes and mandates
limitations on how much property can be willed to relatives and friends at the time of
death. Yet, we seem to think of the body as entirely our own and free from any
obligation to others or the state. That understanding of body ownership seems to be
intertwined with the fact that the body actualizes being (living) in the world. If someone
other than yourself were to claim ownership, there would be a violation of personal
rights. This would be as preposterous as a stranger amputating one’s arm with the
justification that it was needed more by someone else. We are fearful that our bodies will
be viewed as mere resources, scavenged for others, yet people willingly donate blood
for live-saving transfusions and grow their hair long in order to donate it for wigs made
for cancer patients. These practices indicate that it is possible that our bodies could be
used ethically as resources, as long as those parts which are to be removed are of no use
to the individual from whom they are removed. In the case of organ donation, there is no
longer a living, rational, thinking human being who can determine which parts of the
body he may need. In many respects, the notion of ownership becomes obsolete.
Some religions recognize the body as a holy gift that should be honored. Some
would say that using the body as a resource dishonors the sanctity of the body.
Philosophically we understand our bodies as entities that realize our being. If we are to
take this as an adequate understanding of the body, what would we then say about the
body after it dies? It seems that our being takes a new form that is carried in the
memories of those who live on without us. It is foolish to expect that ownership of the
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body would endure the cessation of the existence of the body. If there is no living being
to determine what happens to his body, then perhaps we should have the right to use the
body to help those who are in need of its useful parts.
The investigation of religious and cultural perspectives served the purpose of
showing that it is natural to think that organ donation – saving another person’s life – is
the most virtuous act. These same religions recognize autonomy of the individual, that is,
the right to govern oneself and have a say in the distribution of one’s property including
the body. These perspectives show us that the autonomy of the individual can be
preserved in his lifetime and that, postmortem, it is fair and ethical to expect a moral
obligation to help others through organ donation. There is no violation of the sanctity of
the body because of the virtuous nature of organ donation.
A major problem in health care today, a problem rooted in misconception, is the
way we view and understand our bodies and our ‘selves’ postmortem. Dr. Phil Berry Jr.
is an orthopedic surgeon from Dallas who is also a liver transplant recipient. His
experience has motivated him to become an activist in support of the Presumed Consent
policy in the U.S. "When I speak about organ donation, people say 'What's the answer?' I
say 'presumed consent.' The most common cry I hear is that people's freedom will be
taken away because their decisions are being made for them. But I say, 'Do we want to
solve the problem or don't we?' " 20 Berry shows us where we need to focus our attention
and how certain understandings of personal freedom, essence of being, and preservation
of “selfhood” may need to be tailored. Once we are dead, is there really a self for whom
we make decisions? As stated above, if we think of our bodies in an Aristotelian sense
then the body is the matter of the actualization of our being alive. Once the body is dead,
20
http://www.ama-assn.org/amednews/2002/09/16/prsa0916.htm
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we cease to live and our being is gone. On this account it would not follow, then, that we
exist separately from the body as a Cartesian dualist might insist. While it seems logical
to ascribe autonomous decision-making to living persons, it is not sensible that people
should have the right to say what happens to their bodies after death.
If a Presumed Consent policy is to succeed in the United States, we need to be
more comfortable with the idea of death as the end of who we are as rational, thinking
individuals. Death is clearly an uncomfortable issue and the circumstances of organ
donation (usually involving tragic death or comas involving brain death) are even more
difficult to think about. For me as a living person, it is nearly impossible to think about
my body after I have died as being separate from me or any essence of who I am as a
person. It follows then, that any kind of physical invasion of my body seems to me an
invasion or violation of my private, personal space and freedom to decide what happens
to me. Perhaps, then, we should not assume that we as individuals can think rationally
about our own deaths and award the decision of being an organ donor to living people. It
seems that to think rationally about one’s body being dissected, even if for a virtuous
purpose like organ donation is an unsettling thought. Even in cases where someone is
going to have major surgery it is difficult to completely comprehend being cut open
because there is such a profound sense of personal violation. It is nearly impossible to
think of one’s own body as separate from one’s character or sense of being.
It is clear that there is no great opposition to organ donation on moral grounds, so
the claim that people’s organs would be harvested in an animalistic disregard for human
integrity is unfounded. Organ donation is viewed as a moral and ethically “impressive”
act so it seems unlikely that the public would suddenly think that doctors are performing
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terrible, animalistic acts when harvesting organs for donation. It is essential to keep in
mind that organ donation is recognized as a virtuous and necessary act, especially given
the shortage of available resources.
Additionally, it could be the case that a body that is used for organ donation
would be honored and memorialized through the practice of organ donation. For
example, many medical schools now have ceremonies honoring the corpses that are
donated for anatomy classes and students are expected to perform their dissections in a
manner that respects the gift of the corpse.
The three countries that lead the United States in organ donation rates all operate
under traditional Western ideologies and notions of selfhood and yet, their public opinion
supports Presumed Consent and is much more at ease with it as a standard practice.
Perhaps this acceptance is not because of any revision of philosophical conceptions with
the self, but instead the comfort could be attributed to a mere pragmatic acceptance of the
policy as standard. This acceptance implies recognition of the claim that we are living,
rational thinkers who are not capable of rationalizing how our body can exist without any
sense of self or character attached to it and therefore should forgo the ownership of our
organs postmortem. This type of system would recognize the inability of human beings
to separate a dead body from some personal, character or being and it would capitalize on
the statistics that show that very few people would actually feel so opposed to organ
donation that they would “opt-out” of being a donor. In his research on the success of
Presumed Consent policies in European countries, Dr. Phil Berry discovered that in the
last ten years in Belgium, only 2% of the population opted out of being an organ donor.21
21
http://www.ama-assn.org/amednews/2002/09/16/prsa0916.htm
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It seems that if more people had really been opposed to the idea of donating their organs,
they would have made use of the opting out alternative.
The question of Ethics is how we can live morally and interact in an ethical way
with others. Most religions recognize the importance of helping those in need and organ
donation provides that opportunity free of any personal sacrifice. In light of the desperate
necessity for donor organs, it is essential to evaluate our philosophical understanding of
the self postmortem. The Aristotelian account of the body with regards to the essence of
being seems most appealing because it connects one’s selfhood to the physical, living
matter which is the body. A system for organ procurement would benefit from a
philosophical understanding of the self on Aristotle’s account because it recognizes the
cessation of the individual and his right to autonomy once he is dead. It is not that
autonomy or personal freedom is revoked, instead, there ceases to be an individual to
whom that freedom can be rewarded. A policy like Presumed Consent would capitalize
on this understanding of the self and, as we see in the examples from our European
neighbors, the policy could increase the number of donor organs. Presumed Consent as
contrasted with a Mandated Choice policy is more practical because it does not involve
extensive measures of documentation for donor preferences. The available alternative for
“opting-out” would preserve the necessary freedom to autonomy during one’s lifetime
thus preventing the policy from being truly unethical. Religious and cultural
understanding of organ donation as one of the most virtuous acts because of its lifesaving purposes supports organ donation as a moral standard or even an obligation on
behalf of the individual to his fellow human beings.
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Conclusion
The ethical dilemmas surrounding organ procurement are both delicate and
complex. Through this investigation of procurement policies and religious perspectives,
it seems clear that the most fundamental of issues are the philosophical implications of
ontological being. There are certain rights that we have as individuals that may not be
transferable postmortem. The first section that discussed policies showed us that altruism
and autonomy have been considered fundamental principles that should be incorporated
in the system of decision making, but once an individual has passed away, I have argued,
altruism and autonomy become irrelevant to the individual. It has been the aim of this
paper to show that a Presumed Consent policy can satisfy concerns about autonomy and
altruism as part of the decision making process while remaining ethical and effective. In
cases that deal with living human beings, it is important that autonomy and altruism be
preserved and a policy of Presumed Consent would honor those principles through the
opportunity to “opt-out” of donation. The discussion on religious and cultural
perspectives served to show that organ donation is generally understood to be virtuous
and is ethically justified in the context of a religious appreciation of the sanctity of the
body. The statistics presented in the introduction underscore the gravity of the donor
organ shortage in our country and emphasize how important it is to implement an
effective policy that is ethical and still upholds universal philosophical principles.
An article published in the Washington Post February 14th, 2005 told the story of
a young girl who had received a heart transplant at the age of four. This young
beneficiary of the transplant miracle said of organ donation, “It’s a way to help other
people who are really sick. You can give them something that they need that you don’t
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need anymore when you die.”22 Her words were simple, direct, and true. We don’t need
organs after death. There is no living being, essence, or character entombed within a
corpse. Why not pass the gift of an organ to another and save a life? Presumed Consent
would go a long way toward acting on the wisdom of that young girl.
22
Tracy Grant, “Have a Heart; Organ Transplant Gives Girl a Second Chance” Washington Post. Lexis
Nexis. February 14, 2005. Article viewed April 21. http://web.lexis-nexis.com
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