Bioethics has been subject over the years to misuse at the hands of some of its practitioners, even to the extent that it has led some philosophers to regard it as a less than serious contribution to their field. T. M. Wilkinson's Ethics and the Acquisition of Organs provides a welcome antidote to such scepticism and a model of the powerful potential of the discipline. His analysis of the ethical debate surrounding organ transfer is marked by a meticulous exposition of the factual background and by a rigorous assessment of the ethical issues involved. It is an impressive and arresting study, demanding and deserving the reader's close attention. Nevertheless, Wilkinson's conclusions are unlikely to be acceptable to all his readers. Indeed, at least one policy recommendation, that concerning the sale of organs, represents a position that is anathema not only to this reviewer but to most of the Western world, with the notable exception of the USA.

To form a considered judgement, however, it is necessary to follow the author along the systematic path that has led him to these conclusions. Wilkinson's main concern is the transplantation of kidneys and, to a lesser extent, other solid organs including livers, hearts, and lungs. Much factual information is provided throughout and, although the relevant facts will be familiar to some readers, others may surprise. For example, while most people know that the demand for kidneys greatly exceeds the supply and that traffic accidents provide a key source of donors, they may not be aware that the speed of deterioration of kidneys means that most of those that are potentially available for transfer are unusable. In practice, then, most donors are patients who have been diagnosed as brain dead in intensive care units. Another less well-known fact is the substantial contribution made by live donation. Wilkinson reports that a third of all kidney transplants in the United Kingdom are provided by living donors, and he quotes the figure of 6,387 for live donors in the USA in 2009. He sums up the situation in two neat sentences: ‘the public policy problem of transplantation is at root the shortage of its raw materials. The core ethical problem is that the organs are within people, who are not just raw material.’ (7)

The practical implications of these ethical limitations are extensively discussed throughout the book, but the ground is well-prepared by the more theoretical discussions of the earlier chapters, which take into account concepts such as autonomy, personal sovereignty, rights, and justice. Wilkinson offers a considered defence of personal sovereignty and also of a right of bodily integrity. He defends posthumous rights and interests, and raises the intriguing question of whether recognizing the possibility of posthumous harm necessarily involves endorsing the notion of backward causation. His own answer to this question is that a person can be harmed before death by the later non-fulfilment of their goals, but that this is a logical, not a causal, relationship and ‘the harm is not a matter of cause and effect’. (37)

Such philosophical pyrotechnics, Wilkinson observes, have important relevance in the area of transplantation, and it is indeed true that this area of medicine is a fertile field for ethical dilemmas. For example, a refusal to donate one's organs that is based on the negative right to control what happens to one's body after death may be set against the moral claims of people whose lives could be saved, or whose health could be benefited, by those organs. Why, then, should the wishes of the dead have moral force – more so, perhaps, than those of the living? The answer, Wilkinson believes, is to be found in a ‘basic intuition that my body is mine and I should decide what happens to it’ (45) – an intuition that cannot be justified in terms of some other value, such as well-being. Wilkinson draws some important conclusions from this: on the one hand, that people should be able to veto the posthumous retrieval of their organs, on the other, that there is an a priori assumption that the organs of people who have neither consented nor dissented, may be taken.

This is the system often referred to as ‘presumed consent’, although Wilkinson himself prefers the term ‘opt out’ because this, he suggests, implies that taking the organs is the default position – the view he himself endorses. He is also rightly wary of the term ‘donation’, and dismisses the language of gifts and generosity when applied to the present system of donation as ‘sentimental hyperbole’. It is an essential part of his case that the concepts of consent and donation have been given an unnecessarily strong position in relation to organ retrieval. As for the popularly held view that donation is generally a matter of informed consent, and that it is reliably signalled by a donor card, he regards this as even more dubious. He writes: ‘So powerful is the idea of donation that the term “donors” is often used to describe anyone from whom organs are taken, including young children or sellers, whether or not they did anything that could be construed as giving.’ (148) He illustrates this by reference to New Zealand, where a tick in a box on a driving-licence application is enough to signal the applicant's willingness to be a donor. As Wilkinson points out, this is normally a casual decision made by a would-be driver who is unlikely to know what organ retrieval involves, or to have thought about the effect it might have on other family-members.

Donor-cards and driving licences apart, it is more common for the potential donor's opinion on the matter to be unclear, and uncertainty might seem to demand a strong restriction on the retrieval of organs. Wilkinson, however, takes the opposite view: that consent is not required in a situation of uncertainty, just as it is not required in the case of an unconscious accident victim who is brought into hospital needing immediate life-saving treatment. Even less necessary is it, he believes, to investigate whether a person who has never made his views known would in fact have ‘wanted’ to donate, although this is in practice often the basis on which relatives give permission for the taking of organs. Wilkinson takes the strong view that ‘wanting’ to donate is not the same as ‘consenting’, the former being a state of mind, while the latter is a public act.

Recognising that this might sound like a declaration of ‘open season’ on organ retrieval, Wilkinson reiterates his strong support for a right to refuse, and he gives some consideration to the case for respecting a similar right of refusal for families of the deceased, even when the potential donor has given formal consent. He concludes that the wishes of other family-members do not carry enough moral weight to justify allowing them a veto on ethical grounds, but he is more sympathetic to the idea of allowing a veto for empirical reasons, i.e. on the ground that that the supply of organs would be adversely affected if families were not allowed the power of veto. He concedes that this may well be true, citing an incident that took place in Singapore where a strict ‘presumed consent’ law makes family agreement unnecessary. In the case he describes, a group of distressed family-members who were pleading with doctors to keep their relative on life-support were held under physical restraint by nine police officers while hospital staff took their relative away for organ retrieval. This much-publicised incident, which took place in 2007, led to a surge of demands from the public for opt out forms to record their own refusal to donate.

In the light of such considerations, Wilkinson is prepared to accept that an agreement to donate one's organs cannot and should not be interpreted as an adamant demand to donate regardless of the personal distress it might cause to close family. He is also aware that, although some jurisdictions such as Austria, do give doctors power to remove organs against the wishes of families, in practice doctors are reluctant to do this. But this is not, he believes, enough to justify giving families the power of veto in cases where the deceased has not previously expressed a view. On the contrary, he says: ‘there is no direct ethical requirement before taking organs to get the informed consent of either the dead person or the family.’ (101) The reason he gives for holding so strongly to this point of view is that in such cases, the needs of potential recipients provide a pro tanto reason for taking the organs and that their need carries more weight morally than either the feelings of the living or the absence of expressed consent from the dead.

Nevertheless, Wilkinson does want to retain his own basically libertarian position which carries with it a fundamental objection to the idea that bodies are owned by the state. It follows that some element of consent must be involved, allowing people to retain control over the use of their organs after death. This element is provided by the notion of personal sovereignty and it is expressed in this context by the principle that it is right to proceed with organ retrieval only if there is no reason to think the deceased would have objected, and if the family does not object. On the basis of this analysis, Wilkinson offers the interesting observation that the United Kingdom and New Zealand are in reality and in practice already presumed consent countries. (see n. 33, 93)

These are complex arguments, and in the closing chapters, Wilkinson explores how they might be applied in a number of other contentious areas. On the retrieval of organs from living donors, he recognizes the challenge that this poses to doctors, since it appears to run counter to their duty to ‘do no harm’. He gives two examples of circumstances in which he believes doctors might properly refuse to take organs: ‘from someone who wants to donate to a stranger and thus neglect his parental responsibilities’ and in cases of ‘excessive sacrifice’. (140) These are paternalistic rather than libertarian reasons for refusing to carry out a requested medical procedure, but Wilkinson is inclined to go along in most cases with the widely accepted view that the decision rests in the end with the person who wants to donate an organ. Indeed, he is ready to take this judgement further. He writes: ‘… many of the arguments for living donation are also arguments for permitting sale. Here I point out that if we take the arguments for living donation seriously, current screening practices may not be permissive enough. I also argue that, contrary to trends in practice, competent children should be allowed to donate …and that, when donation is in their interests, organs may be taken from non-competent people too.’ (124)

These are dramatic claims, particularly in view of the fact that, in relation to posthumous donation, Wilkinson believes that ‘children do not have posthumous rights’. (9) And in the case of living donation, he suggests that the consent of children or incompetent adults is not needed, simply for the reason that they are unable to consent or dissent. This is not, of course, true without qualification and Wilkinson acknowledges that some children – those described in clinical practice as ‘Gillick competent’ – are old enough to be capable of consent. In their case, he says, competent children should be treated as competent adults, and they should not be subjected to forced removal of organs or tissue when they have expressed their dissent. But younger children and babies are left in a dangerously exposed position by this concession in situations in which it may seem a priority to respond to the medical needs of others. Many people will be surprised to know that organs are taken from children at all. The practice is specifically banned in some jurisdictions, including England and New Zealand, but in at least 60 cases in the USA between 1987 and 2000, kidneys were taken from people under 18. Wilkinson's libertarian position is seriously compromised by his failure to recognize that rights are involved here; for whether or not children have rights, the rights of the adult they will become can be violated by procedures not for their own benefit that may adversely affect their adult life and expectations. And yet children at risk of being treated as a source of material for others are a prime example of the vulnerable for whom libertarian theory traditionally demands protection.

There are, however, other proposals in Wilkinson's account that rest on a sounder libertarian base. For example, he rejects inappropriate demands for justice and impartiality in the allocation of transplants in favour of allowing people freedom to designate the recipients of their organs. He argues, too, that donors and families ought to be able to be selective in the organs they or their families wish to donate, for example, to accept their right to say yes to kidneys, no to hearts.

But it is his advocacy of a legal market in organs that throws down the greatest challenge to the kind of liberal position Wilkinson favours. A potential market that crosses borders and allows selection and choice on grounds that suit the purchaser while ignoring the social pressures on donors, is widely regarded as both exploitative and offensive. However, Wilkinson rejects these characterizations. He does not agree that the sale of organs is incompatible with people's rights over their bodies, nor does he accept that legitimised commercial dealing in kidneys would risk creating a world–wide economic underclass of organ donors serving the rich. In sum, he rejects considerations of exploitation, injustice, repugnance, altruism, and commodification as reasons to prevent people selling their organs. (185, 192) These are strong views and although he qualifies them by allowing for some exceptional cases, he has not yielded his position to some powerful objections.

These objections have come from both secular and religious sources, many influenced by Ronald Dworkin's appeal to ‘the vague but powerful idea of human dignity’. Applied to this particular biomedical issue, it is the argument that there are values at the core of our communal life which demand a certain respect for the human body. While this is not incompatible with the voluntary donation of organs, it is violated by their sale. Wilkinson discusses these claims, but prefers to throw the burden of proof back at the advocates of dignity and humanity rather than attempt to refute them. It may be this that has allowed him, in the closing few pages of his book, to make the leap from academic disagreement to the extraordinary claim that ‘As far as respect for dignity is concerned, treating people as criminals for making decisions about what they do with their own bodies with other consenting adults is no more justified in the case of organ sales than it was when homosexual acts were illegal’. (191) This analogy with the commercialization and sale of human body parts may well evoke, for some readers, a rather different comparison: the justification of the sale of the whole human body under systems of slavery.

At the beginning of his book, Wilkinson wrote: ‘It does not matter to me whether the practical conclusions are radical. I have followed the arguments where they have gone.’ (10) This was the right strategy, but one that cannot be guaranteed always to lead to the right destination. Paths can sometimes diverge and lead the unwary traveller astray.