Archive for the ‘presumed consent’ Tag
Filed under: Bioethics, Ethics, Popular culture, Uncategorized | Tags: justice, organ donation, preferential option for the poor, presumed consent, rationing
Maybe because I teach the topic, but I have been noticing a significant increase in the media’s coverage of organ allocation in recent weeks. In January, two sisters who had been in prison for sixteen years in Mississippi were released on the condition that the younger sister donate her organ to her older sister. The ethical response to this case focused on the financial motives for releasing the sisters:
After considering the matter for several months, Governor Barbour announced in late December that he would not pardon the sisters, but would indefinitely suspend their sentences.
He said he had acted in part out of concern over Jamie Scott’s health, but also to relieve the state of the cost of her dialysis treatment, which is approximately $200,000 a year.
“The Mississippi Department of Corrections believes the sisters no longer pose a threat to society,” Mr. Barbour said in a Dec. 29 statement. “Their incarceration is no longer necessary for public safety or rehabilitation, and Jamie Scott’s medical condition creates a substantial cost to the State of Mississippi.”
Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, said Mr. Barbour’s decision to free the women on the basis of the kidney donation had crossed a moral line.
“Either out of ignorance or out of indifference, he shifted what had been a gift into compensation,” Dr. Caplan said. “He turned it into a business contract.”
While it definitely raised ethical eyebrows, the judge’s decision in this case reflects a much larger ethical debate concerning what should be done about the shortage of available organs.
Currently in this country, about 100,000 people are waiting for organs. About three-quarter of these will die before they receive an organ. There are numerous proposals for what to do about the shortage of available organs, some of them rather creepy like the New York “Organ Wagon” that will try and harvest organs from cardiac arrest patients within twenty minutes of death. More serious and far-reaching proposals tend to focus on two solutions: (a) moving to a “presumed consent” policy and (b) encouraging donation through financial incentives.
A “presumed consent” policy already has a lot of worldwide support. Currently, in the US, organ donation depends on explicit informed consent. In other words, organs can only be harvested from your cadaver if you explicitly say so, usually by indicating so on your driver’s license. Supporters of a presumed consent policy argue that the number of available organs could be increased dramatically by requiring explicit “opting-out” of donation, presuming that all those who have not said otherwise have tacitly consented. This is already the policy in many European countries. Opponents argue that such a policy violates the foundational bioethical principle of informed consent, and furthermore, could exacerbate fears about doctors prematurely “harvesting” organs.
Another solution to the organ shortage looks to financial incentives. This is the argument of Sally Satel (herself an organ recipient) who argues specifically that relying on altruism for organ donation has failed. Satel’s argument is not so much that human beings are primarily self-interested rather than other-interested, but rather that an altruistic motive for organ donation alone is not sufficient. She recommends incentives like health insurance, tax credits, education vouchers, funeral expenses, and retirement funding as added motivations for people to donate.
The obvious response to a financial incentive solution is that it will place undue burdens on the poor while possibly disproportionately favoring the wealthy. In other words, it is the poor who would be most motivated by financial incentives to give up their organs without the same likelihood as the rich in actually receiving an organ. Satel’s incentives are primarily federally-allocated, as they are in Israel, thus avoiding the less savory option of having the organ recipient pay the donor directly (which is currently illegal in the US and elsewhere). Critics still argue that such a federal-based solution might not resolve the current organ trafficking problem, and may actually make it worse.
Most recently in the US, the debate has shifted away from increasing the supply of organs towards re-allocating the distribution of organs. The new policy of the United Network for Organ Sharing attempts to replace the current first-come, first-serve model with a more complex rationing protocol that would distribute organs first to those most likely to benefit: the young and the healthy.
“Right now, if you’re 77 years old and you’re offered an 18-year-old’s kidney, you get it,” said Dr. Richard N. Formica, a transplant physician at Yale University and a member of the panel that wrote the proposed policy. “The problem is that you’ll die with that kidney still functioning, while a 30-year-old could have gotten that kidney and lived with it to see his kids graduate from college.”
Under the proposal, patients and kidneys would each be graded, and the healthiest and youngest 20 percent of patients and kidneys would be segregated into a separate pool so that the best kidneys would be given to patients with the longest life expectancies. The remaining 80 percent of patients would be put into a pool from which the network that arranges for organ matches, called the United Network for Organ Sharing, would try to ensure that the age difference between kidney donors and recipients was no more than 15 years.
While this policy shift has been commended for its sensibility, Satel and others are critical of the assumption that we should have to ration organs in the first place. “Rationing should not be taking place at all,” Satel told NPR earlier this week.
Is there an “everydaythomist” response to the organ shortage? Aquinas obviously never dealt with this issue, but there are a few guidelines we might apply from his general worldview. The first is that the debate over how to increase the number of available organs is often susceptible to the utilitarian critique that the “ends justify the means.” In other words, whatever we need to do (within limit) to increase the number of available organs is justified if we can save more lives. From a Thomistic worldview, the ends do not justify the means. The means themselves must be good as well. More specifically, the means chosen to increase the organ supply must also attend to those who are most potentially vulnerable, in this case, the poor who are more likely to give their organs and less likely to receive organs when in need. Thomas is famous for arguing that theft in the case of necessity is not actually theft (II-II Q. 66, art. 7) because “whatever certain people have in superabundance is due, by natural law, to the purpose of succoring the poor.” While this “preferential option for the poor” (not Thomas’ language but not necessarily inconsistent with Aquinas’ idea of justice) need not preclude a financial incentive solution, it does provide us with a reminder to be wary of how the poor will fare in the long and short term should such incentives be implemented.
Second, the debate about organs frequently presumes on both sides that our bodies are our own. Our bodies, however, are not our own property, but rather, gifts from God over which we are stewards. We are not free to dispose of our bodies in any way we would like, but we should also not cling to our bodies as ultimate goods. Christians can be encouraged to donate their organs freely as a sign of the reality of the body’s giftedness. In other words, in donating their organs especially as live donors, Christians are reminded in a very visceral way that the body is a gift, and thus just as Christ gave up his body for us, we in turn are called to give up our bodies for others. As such, Christians need not be opposed in principle to a presumed consent policy on the basis that it violates autonomy. For Christians, autonomy is subordinated to the body’s giftedness. Christians can set a marvelous example to a nation that is rapidly concluding that “altruism isn’t enough” by making altruistic acts a little more common.
Finally, the organ shortage is partially a result of longer life-spans and better overall care for the terminally-ill and severely handicapped like those in a persistent vegetative state. In light of extraordinary new medical procedures to extend life, Christians need also to be reminded that death need not be avoided at all costs, nor must “every step be taken” to extend life. For Christians, what matters is dying well. In order to die well, Christians must prepare, not only by “living well” as Robert Bellarmine wrote in his book “The Art of Dying Well,” but also by making specific plans for end-of-life treatment and organ donation. Many organs are lost because the dying or deceased person did not make their wishes known. Christians reading this who want to register to become an organ donor can also take the opportunity to reflect on what constitutes a good death and how they can begin to live in such a way to make that good death possible. A wonderful exercise for the season of Lent.