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Opting-Out: The Relationship between Moral Arguments and Public Policy in Organ Procurement

Published online by Cambridge University Press:  01 April 2009

D. MICAH HESTER
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Type
Responses and Dialogue
Information
Cambridge Quarterly of Healthcare Ethics , Volume 18 , Issue 2 , April 2009 , pp. 159 - 165
Copyright
Copyright © Cambridge University Press 2009

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References

1. Hester DM. Why We Must Release Our Organs to Others. American Journal of Bioethics 2006;6(4):W23–W28.

2. See note 1, Hester 2006:W24–26.

3. See the deontologically minded W.D. Ross and T. Scanlon (1999), utilitarians such as J.S. Mill and P. Singer, as well as pragmatists like W. James, to name but a few. Ross WD. The Right and the Good. Oxford, UK: Oxford University Press, 2003; Scanlon TM. What We Owe Each Other. Cambridge, MA: Belknap Press, 2000; Mill JS. Utilitarianism, 1863; Singer, P. Famine, affluence, and morality. Philosophy and Public Affairs 1972;1:229–43; James W. The moral philosopher and the moral life. International Journal of Ethics 1891;1:330–54.

4. Thorough explanation of the limiting condition (not provided herein) would include how/if “brain death” procurement differs from non-neurological-death procurements.

5. Spital A. The shortage of organs for transplant: Where do we go from here? New England Journal of Medicine 1991;325(17):1243–6; Spital A. Unrelated living kidney donors: An update of attitudes and use in US transplant centers. Transplantation 1994;57(12):1722–6; Spital A. Mandated choice for organ donation: Time to give it a try. Annals of Internal Medicine 1996;125(1):66–9; Spital A, Erin CA. Conscription of cadaveric organs for transplantation: Let's at least talk about it. American Journal of Kidney Diseases 2002;39(3):611–5.

6. Spital A. Conscription of cadaveric organs for transplantation: Neglected again. Kennedy Institute of Ethics Journal 2003;13(2)169–74; Spital A. Conscription of cadaveric organs for transplantation: A stimulating idea whose time has not yet come. Cambridge Quarterly of Healthcare Ethics 2005;14(1):107–12; Spital A, Taylor JS. Routine recovery of cadaveric organs for transplantation: Consistent, fair, and life-saving. Clinical Journal of the American Society of Nephrology 2007;2(2):300–3; Spital A, Taylor JS. In defense of routine recovery of cadaveric organs: A response to Walter Glannon. Cambridge Quarterly of Healthcare Ethics 2008;17(3):337–43.

7. Dukeminier J, Sanders D. Organ transplantation: a proposal for routine salvaging of cadaver organs. New England Journal of Medicine, 1968;279(8):413–9.

8. See note 6, Spital, Taylor 2008:339.

9. See note 6, Spital, Taylor 2007:302, ref. 23. To be clear, Spital cites both herein and elsewhere other sources for his claim, and, therefore, I believe Spital takes my argument to be merely sufficient, not necessary, to support his procurement proposals.

10. Glannon W. The case against conscription of organs for transplantation. Cambridge Quarterly of Healthcare Ethics 2008;17(3):330–6.

11. See note 10, Glannon 2008:331.

12. See note 10, Glannon 2008:334.

13. See note 10, Glannon 2008:335.

14. Glannon confusingly states, in this light, that people “would be obligated to donate their organs,” but this surely is a category error—donations are supererogatory, not obligatory (see note 19).

15. Admittedly, and this may be splitting hairs, I do not take my argument as communitarian (a la Sandel, 1982, and MacIntyre, 1981), though it certainly recognizes the consequences of a constitutive relationship among individual persons. Sandel M. The Limits of Liberalism. New York: Cambridge University Press; 1982; MacIntyre A. After Virtue. Notre Dame, IN: Notre Dame University Press; 1982.

16. I take the use of the term “conscription” by Spital and Taylor as significant. To “conscript” is to “force enlistment on behalf of a cause.” Like military conscription, the alternative to being conscripted is conscientious objection to the cause itself or to the means required to achieve the cause. If, instead, Spital and Taylor mean something akin to Dukeminier and Sanders's “routine salvage” (see note 7, Dukeminier and Sanders 1968), a possibility given their use of the alternative term “routine removal,” then we may be less at odds than my comments herein will indicate. (See notes 20 and 26.)

17. See note 6, Spital 2003.

18. See note 6, Spital, Taylor 2007:300.

19. As argued in my article listed in note 1 (Hester 2006), “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 act” (giving to the poor, famine relief, etc.) which may, in fact, be obligatory—see note 3, Singer 1972, for an argument for famine relief as an example. Here we simply misuse the concept when we call such acts “charitable.”

20. It is worth noting that in 2007 Spital, along with Taylor, changed his rhetoric from “conscription” to “routine removal” (see note 16).

21. Veatch RM, Transplantation Ethics. Washington, DC: Georgetown University Press; 2000:175.

22. See note 6, Spital, Taylor 2008.

23. See note 21, Veatch 2000:chaps. 3–8; Brody B. How much of the brain must be dead? In: Younger S, Arnold R. The Definition of Death. Baltimore, MD: Johns Hopkins University Press; 2002; Shewmon DA. Recovery from “brain death”: A neurologist's apology. Linacre Quarterly 1997;64(1):30–96.

24. Among others, see Rady MY, Verhiejde JL, McGregor J. Organ donation after circulatory death: The forgotten donor? Critical Care 2006;10(5):166–9.

25. A relatively recent account of the tenets of liberal democracy can be found in Talisse RB. A Pragmatist Philosophy of Democracy. New York: Routledge; 2007, especially pp. 27–53.

26. I lazily called for a “presumed consent” policy in my previous paper (see note 1, Hester 2006:W27, note 5); however, given the nature of an obligation, “consent” would not be presumed at all. That is, 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, whereas 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 note 21, Veatch 2000:143–81.

27. Cf. Wicclair MR. Conscientious objection in medicine. Bioethics 2000;14(3):205–27.

28. 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.

29. Schweda M, Schicktanz S. Public moralities concerning donation and disposition of organs: Results from a cross-European study. Cambridge Quarterly of Healthcare Ethics 2008;17(3):308–17.