Introduction
The past 40 years has witnessed the transformation of solid organ transplantation from an experimental procedure to a common, albeit complex and intricate, component of mainstream medicine. More than half a million people in the United States have received transplants. Because of the increasing rate of success, the demand for organs has never been greater, while the supply has only marginally improved. Each year, thousands of patients die while waiting for hearts, livers, lungs, and kidneys that never appear.
Even though organ procurement organizations and hospitals have enhanced both the overall referral and the conversion rates, they still fall well below 100%, which is presumably the state wherein supply could be maximized. Footnote 1 Although interventions have been developed that may improve this percentage, Footnote 2 numerous reasons have been cited for the failure to boost donation rates, including administrative and institutional causes, as well as social, demographic, ethnic, and religious influences. Footnote 3 Because the overwhelming majority of people die without being eligible to provide organs for transplantation—they die outside of a hospital setting (home, hospice, sudden death in a variety of locations), they do not meet medical criteria for death by neurological criteria or donation after circulatory death, or they have coexisting conditions that preclude organ retrieval (metastatic cancer, infectious disease)—organ “donation” affects only a very small minority of the 2,600,000 deaths per year in the United States. Footnote 4
Nevertheless, it has been estimated that if all the people who could potentially donate their organs would do so, the supply could be increased by at least 25 percent (if not more, depending on the region of the country). Footnote 5 Even though this may be thought to represent only an incremental improvement, each additional donor could conceivably supply organs to up to eight recipients and, therefore, the beneficial effect of augmenting the retrieval rate could be magnified manyfold. Hence, any proposal that could lead to a sustained enhancement in organ retrieval rates, organs transplanted, and thus lives possibly saved, would be a significant advance. The question is how to accomplish this worthy goal in a manner that can be ethically justified.
In some sense, the organ transplant system—and especially the way in which organs are “donated” and collected in the United States—represents a “tragedy of the commons”: because we do not require that potential recipients declare themselves unequivocally willing to donate, we are all potential users of the system without being willing to contribute. If faced with organ failure that could potentially be remedied by transplantation, it is reasonable to assume that most of us would willingly be placed on an eligibility list (all other things being equal); therefore, we can then conclude that virtually all of us desire to drink at the public trough but only a relatively few wish to commit to replenishing the supply.
There have been strategies used outside the United States that have improved donation rates by altering the method by which people elect (or not) to indicate their predilection for donation. For example, some countries have adopted a so-called “opt-out” approach in which the default assumption (also known as presumed consent) is that individuals would wish to be donors unless they take the step of actively indicating the contrary. This has led to increased rates of organ recovery. Footnote 6 Israel has instituted a priority allocation program in which close relatives of deceased individuals who become donors are elevated in the listing as potential recipients, and this has also led to an increase in donation rates. Footnote 7 However, although these methods have proved gratifying, there may be reasons to be concerned about how these approaches take advantage of psychological predispositions to advance a (worthy) goal (which will be discussed subsequently).
In the United States, despite the best efforts of various publicity drives, and the enactment of so-called “motor donor” laws, whereby individuals may indicate their wish to be potential organ donors at the time of driver’s license registration, the number of cadaveric organs available for allotransplantation continues to fall behind the need. Footnote 8 In response to the worsening shortage of organs, some have advocated for the creation of a regulated market in kidneys, although there are many who have vehemently disagreed, arguing that it would be impossible to prevent taking advantage of the vulnerable and impoverished. Footnote 9 An international survey of nephrologists on their views of this issue provided mixed and somewhat nuanced results; however, physicians specializing in transplantation were more uniform in their objections. Footnote 10
It is very rare that ethical questions, especially medical ethical questions, are resolved cleanly with unambiguous answers and with differing parties to a dilemma both completely satisfied with the outcome. More commonly, settling an issue of contention requires balancing competing interests, including those with differing views of the right and the good (both in general and in the specific situation) and, more often than not, reaching a compromise. Therefore, in the argument over possible approaches to increasing the number of organs available for transplantation to meet the needs of those who are dying of organ failure, there are opposing positions of what is important. On the one side are those who are sick and suffering, whose lives are in imminent danger of ending and who are desperate for a heart, liver, kidney, or other organ. On the other are those who maintain that the decision of how to obtain those organs rightly belongs with an antemortem informed decision of the now deceased or, in the absence of prior consent, the authorization of that person’s legal surrogate decisionmakers. To do otherwise would abridge either individual or substituted (surrogate) autonomy and could obstruct personal goals and interests (of the now deceased), thus diminishing respect for persons. The two positions—the interests and the needs of the living sick for an organ to preserve life versus those of the now dead—would seem to be at loggerheads, if the latter is conceived of as just as important as the former.
There are many people who believe strongly that antecedent, antemortem consent or authorization of the individual involved or someone close to that person (a blood relative, spouse, good friend, or healthcare proxy) should not simply be legally required, but morally necessary, in order to obtain organs from a dead body to use for transplantation. Footnote 11 The reasons for this view are varied, including the idea that there are posthumous harms that can occur when the wishes of the former living selves (or their survivors speaking in their stead) are overturned and that, like the sanctity of testamentary wills that transfer (real) property according to the written desires of rational (living) persons, one’s desires about the disposition and treatment of one’s body after death—including the organs it contains—should be virtually inviolate. Footnote 12 And, there are a variety of religious and cultural traditions that maintain that dead bodies must be treated a certain way, and in which unauthorized organ retrieval would be an act of desecration. Footnote 13
However, it remains a central feature of organ procurement that either first-person consent or authorization by surrogates (and in practice, often both) is mandatory to proceed with organ removal from cadavers. Presumably, this is based on the accepted moral value of respect for persons and the derivative ethical principle of individual autonomy, a so-called “negative right” in which individual moral agents have virtually absolute authority over what happens to their bodies (or their surrogates when they are unable to participate). Footnote 14 In this article, I will revisit this topic and consider why consent may not be required to obtain organs from dead bodies to save the lives of the living. This is not a new idea. Dukeminier and Sanders first proposed “routine salvaging” of cadaveric organs in 1968 (ironically, the same year that the Harvard Ad Hoc Committee published its recommendations on equating whole brain death with corporal death). Footnote 15 In what follows, I will discuss both practical and moral arguments for and against compulsory retrieval of organs from eligible deceased individuals. These will include a reconsideration and expansion of those previously argued, as well as some novel ones. I will conclude, that with some notable exceptions, it is morally acceptable to remove organs from the dead without consent (so-called “conscription”), and that this therefore meets a laudatory and valuable public (health) need. However, acceptability in the moral sphere—although necessary—is not sufficient to justify implementing such a policy for sociopolitical reasons.
Arguments For and Against Compulsory Retrieval
Because the initial suggestion that organs could (or should) be procured from cadavers without needing permission from either the now-deceased patient (first-person or antecedent consent) or from that person’s surviving surrogate decisionmaker(s), a number of arguments have been mounted both for and against this proposal. Footnote 16 I think that they are incomplete, because they do not acknowledge practical social and political objections. In what follows, I will discuss four substantive arguments in favor of compulsory retrieval and eight distinct, but related, objections.
Arguments in Favor
Public good and welfare.
The standard utilitarian argument holds that the “good” of respecting individual agency over the disposition of one’s organs after death is incommensurable with the good of saving lives with organs from people who are now dead. There are sound reasons to believe that we consider at least some of this argument valid as we as a society express a compelling interest to advance society’s welfare (and saving lives) by promoting organ transplantation. The needs of the critically ill whose lives could be saved by receiving organs from the dead who neither need them nor are using them in any meaningful sense, are infinitely greater than those of the deceased (or their families). Even as we acknowledge the grief of families whose loved ones have recently died, it seems immoral to let their concerns trump the concerns of those whose lives lie in the balance. Spital and Harris have been probably the most consistent and vocal advocates in the past for conscription, arguing for the social good that would be accomplished. However, in a more recent publication, Harris seemed to take a more tempered view and only argued against a British commission’s refusal to endorse an “opt-in” system for organ procurement. Footnote 17
Similarity to forensic autopsies.
This is the most common reason advanced to justify compulsory organ retrieval, as we have long accepted the validity and value of forensic autopsies, even when there are objections by family members. It is argued that there is a moral equivalence of the virtually universal acceptance of legally mandated violations of cadaveric integrity (i.e., forensic autopsies and exhumations) and organ conscription. Both are aimed at furthering a public good and share the goal of improving or saving lives. If we dictate potential state-ordered autopsies for all who meet certain criteria (suspicious death, possible public health threat), they affect only a relatively small number of people who die each year. Similarly, although mandatory organ retrieval would potentially affect a large number of people, the actual number of patients who would be affected by this who already did not indicate that they would be willing to be organ donors, would be relatively small, even if the difference between the voluntary donors and those whose organs were conscripted would represent a significant increase in the number of organs available for transplantation. Related to this argument are the regulations and statutes that govern the disposition of cadavers, such as laws about handling bodies, and burials. Although there may be occasional grievances about these rules, such as those mandating criteria for cremation or locations where people may be buried, these grievances never appear to gain much traction and seem to be viewed more as curiosities rather than substantive objections.
Duty to rescue.
Most common moral codes hold that people have some form of moral obligation to help rescue or save another person in dire straits if it would not be a significant threat or imposition to oneself. Although this is not a binding duty, we do hold people up to moral reproach if they fail to throw a life preserver to a drowning person close to shore, or refuse, simply because it may inconvenience them, to engage in beneficial activities (to others) that pose little risk to themselves. At the same time, we rightly applaud those who perform such actions. On the other hand, we do not demand that civilians rush into burning buildings to save fire victims or swim out into the surf to rescue those in peril. There is a balance between individual risk (and one’s tolerance for personal danger in pursuit of the good of others) and the demands of communal assistance morality. However, having one’s organs removed after one is dead is risk free, at least in the usual way we conceive of risk. And refusing to permit this act, when to do so could save the lives of so many others at such little cost, seems deserving of the greatest of moral opprobrium to the extent that personalized objections to retrieval are unworthy of serious consideration, much less respect. It would, therefore, appear reasonable to require organ conscription on the basis of the good it would do to rescue others when the physical sacrifice is nil. However, although we usually tend to view incurred or possible risk in rescue situations in terms of physical hazard, in the case of mandatory organ retrieval we should also consider the potential for psychological harms to those who might fear that their organs could be removed without their prior approval (I will have more to say about this subsequently). Even so, the distress possibly experienced by grieving relatives cannot be commensurate with the harm endured by those who fail to receive an organ transplant.
Distributive justice.
The demands of distributive justice (some might call it redistributive justice) would suggest that society is justified in requiring that the more well-off contribute some of their excess goods to those who are (much) less well-off such that the latter’s lives could be substantially improved by that distribution, especially if doing so would not appreciably diminish the quality of life of the former. Fabre argues that this should rightly include the conscription of organs even if we think that the dead retain some residual possessive right over their cadavers. Footnote 18 If this prescription were realized, it is conceivable that reducing the shortage of organs could lead to a liberalization of the selection criteria for recipients and hence reduce some of the still extant disparities. As an exemplar of strict rationing, the organ transplantation system employs a variety of mechanisms to maintain fairness in allocation decisions, while at the same time remaining cognizant of the fact that organs, as a precious public scarce resource, must be utilized to maximize benefit. For example, generally speaking, most recipients who pass psychosocial and socioeconomic tests for eligibility tend to be more well off, from intact and socially stable families, and fewer come from ethnic minorities. It might be reasonable to assume that if organs became more plentiful, the decision to transplant might embrace more risk, meaning that the emphasis on good stewardship of a scarce and shared resource might be lessened.
Arguments Against
Safeguarding interests.
Many philosophers hold that people can be harmed by events that occur after they have died, by so-called posthumous harms. Footnote 19 This view is based on an assumption that people can be injured, or the interests that they had while alive could be thwarted, by what happens in the world after they die, especially by events that could have been avoided. For example, many people engage in projects to which they devote a great deal of energy, and which, if left unfinished at the time they die, they might prefer to be completed or to have work continue after their death. When others fail to respect the continuity of this work, or deliberately derail it by neglect or active endeavors, it is argued that they can harm the now-dead individual. Another example of this focuses on the value that people place in their (presumably positive) reputations surviving after they are no longer here. When others impugn or undermine the character or social standing of the deceased, some would argue that this leads to postmortem harm. Similarly, ignoring or contravening the expressed wishes of persons or their surviving surrogates about the disposition of their bodies (and organs) as would occur with compulsory organ retrieval, could presumably result in harms of this nature. Although there is a somewhat convoluted argument that attempts to avoid the conclusion that these are cases that require backward causation, a metaphysically problematic state of affairs, there are nevertheless strong philosophical arguments in favor of this view, even though I recognize that those unfamiliar with this subject may view this concept with some degree of skepticism. Nevertheless, it forms a strong current in the moral philosophy literature discussing this topic.
This is not to say that one cannot (or should not) have desires that survive one’s actual life. Footnote 20 We may have good psychological and societal reasons to respect certain types of wishes that people have, for example, about the disposition of their real property, after their deaths. However, it is unlikely that there are wishes or desires of this kind that are absolutely inviolate for all time. Even testamentary wills that involve a great deal of money may be subject to alteration, albeit under very restrained (and usually court-determined) circumstances. Footnote 21
However, if personal interests continue after death (and I am not convinced that they do), it is unquestioned that interfering with them while the person is still living results in harm to that person. If the person no longer exists (as in the postmortem state) then there is no one to whom the harm can be done; there is no person who suffers harm. Footnote 22 We are left searching for another explanation for our intuition to respect some of the antemortem wishes of the now deceased, even if not doing so would not result in harm them as a persons (which they no longer are by virtue of being dead). Ernest Partridge, for example, suggests that our adherence to some form of a social contract can account for this intuition, and I am attracted to this idea (see subsequent discussion). Footnote 23
Some might argue that although the interests of the dead might be minimal, and any that do adhere are only carryovers from the persons they were when alive, they pale in comparison with those of the living, and especially of the ill whose suffering could be relieved by appropriating the organs of the now dead. What of the interests of the relatives and loved ones of the dead? Do they form some sort of derivative or secondary function, or do survivors merely fulfill some role as protectors or guarantors of the prior desires of the deceased that would empower them to secure that person’s reputation, or wishes for disposition of that person’s remains? Do they themselves have claims that are worthy of being addressed in what happens to the organs of their now-deceased relative? They could have interests similar to those that are active when they act as surrogate decisionmakers for an incapacitated patient in ensuring that the latter’s desires and needs are met. By extension, they could then be said to be looking out for or advancing the welfare of the former person—the person’s legacy—by acting on his or her behalf, perhaps analogous to the executor of a will. Even if this is all true and we wish to grant it both some relevancy and significance, it cannot compare with the importance of being able to save the lives of several others by retrieving organs no longer in use.
Psychological harms to the family or other survivors who object.
There can be little doubt that family and friends of the newly declared dead would be upset, especially so in clinical situations likely to make individuals good sources of transplantable organs (for example, trauma and youth) if organs were removed without consent. No one would wish to add to their grief by taking their loved one’s organs without their approval; however, Spital has argued that the very formalized process of having organ procurement people approach the family and discuss organ “donation” can be even more disruptive. Footnote 24 However, as Harris has stated, the speculated additional psychological trauma to the survivors is minimal compared with the potential benefit to the recipients of organs. Footnote 25 Although the harms experienced by the patients whose lives could be saved by the removal and transplantation of organs are both tangible and quantitative, the harms that could be experienced by family and friends of the deceased are both hypothetical and putative.
There could also be possible psychological harms to individuals who, while living, could come to fear the “mutilation” of their bodies from the (unconsented) removal of their organs after death. A corollary to this is the disquiet that many people have over the concept of brain death as a valid criterion for believing someone is truly dead. Mandatory autopsies (and even elective ones, or dissections in medical schools) are performed on bodies that are truly dead (by cardiorespiratory criteria), whereas organ retrieval is performed on bodies that are biologically alive, even though they have met the valid criteria for whole brain death. The fiction that brain death equals (true) death introduces some queasiness in people as the organs are removed from an individual who is legally deceased but still very much alive, both physically and in the visual imaginations of those who remain. Footnote 26 Presumably, if there are substantial numbers of such people, their lives could be made worse by the anticipatory anxiety they could experience as a result of the knowledge that their organs could be removed postmortem, despite the fact that they would not “feel” anything at the time (after all, they would be dead). Finally, this anxiety or fear could contribute to eroding trust in physicians and the healthcare system (see subsequent discussion).
Most people would oppose it.
In an uncontrolled study, Spital employed a polling firm to perform a phone survey of 1,000 adults in the United States, inquiring about their views on compulsory organ conscription. The data (other than related by him) were not published; however, more than 60 percent of respondents found the idea unacceptable. Footnote 27 To my knowledge, there have been no attempts to validate or replicate this finding in the decade since. However, if this finding were valid, it could indicate that a significant majority of Americans would oppose organ conscription. This contrasts with the overwhelming support enjoyed by organ transplantation, a disjunction that could prove problematic.
Social costs objection.
Compulsory organ retrieval could serve to amplify or worsen the precarious trust in the healthcare system held by many ethnic minorities (especially African Americans and the poor) that physicians will hasten the declaration of death to remove organs for transplantation. Footnote 28 If there were no check on this activity (such as the requirement for authorization or consent) then the already fragile state of confidence that some people have that physicians are acting in their (and their loved ones’) interest could erode even further. This is a significant objection that must be carefully considered. I have discussed the potential negative effects of unilateral overriding of patients’or families’ objections to medical interventions before (either initiating—as with cardiopulmonary resuscitation [CPR]—or withdrawal—such as with advanced life support). Footnote 29 At the same time, it is also true that members of ethnic minority groups suffer disproportionately from the diseases that can lead to kidney and heart failure such as diabetes, hypertension, and coronary artery disease, and hence could stand to benefit the most from a larger supply of transplantable organs.
Religious objections.
McGuinness and Brazier note that none of the major Abrahamic religions officially have an objection—and some actively endorse—organ donation. They also point out, however, that simply because official dogma (and the leaders of various faiths) is not averse to organ retrieval from the dead, individual believers may have iconoclastic beliefs on this point that do not necessarily invalidate them or automatically lead to such people no longer being members of their professing faith community. Footnote 30 However, some religious traditions hold that dead bodies need to be buried intact (some of these same groups also object to the idea of whole brain death as a legal form of death). Footnote 31 Associated with this is a view that bodily integrity after death is intrinsically important to some people (to the dead and to their previously alive self when anticipating future death). In its most extreme view, this belief is incoherent as decomposition is the natural ending for dead bodies. Footnote 32 Fabré makes the fundamental point that conscientious objections have compelling force if and only if the failure to respect them could result in grievous harm to the objector’s moral life and integrity, not simply in having a wish or desire frustrated. Footnote 33 This objection may have some currency; however, it brings up the problem of “exemption creep” as has been discovered to have occurred with loose laws permitting exemptions for childhood vaccination. One way to avoid this would be recommend that people declare their religious objections before death, and that in the absence of such declarations (and approvals) the family could not object after the fact on behalf of the now-dead person. In the special case of minors who die, if there were good reasons to believe the children were being raised in a faith that dogmatically objects to organ donation, and if the parent(s) also were on record as approved objectors, then it might not be unreasonable to expand their objection to their minor children. It would have to be decided whether people who were granted objections on the basis of religion would also not be eligible for organ transplants themselves because of their opting out, to avoid a “free rider” problem. Presumably, not all people who profess a religious belief that doctrinally opposes organ retrieval (or nominally belong to a faith community that does) would claim the exemption. However, attempting to avoid having to create a system that would make decisions on whose religious convictions were or were not sufficient departures from orthodoxy to qualify (or not) for a valid exemption, would invite enormous controversy by ruling between different strains of religious belief. Inevitably, such an approach would result in choosing some religions over others; and it may be better to be inclusive and generous. Nevertheless, it does raise the interesting question about those whose convictions would permit them to accept an organ from someone with different views, but not let their own to be used in the converse situation, an asymetrical form of interchange that may be a matter of injustice.
Silver suggests that it would be necessary to have a religious exemption to avoid First Amendment issues over the free exercise of religion. Footnote 34 Having a reasonable religious exemption would also avoid a policy potentially violating the Religious Freedom Restoration Act of 1993. Footnote 35 However, it is unclear what it would require to avoid these constitutional issues. For example, if one were a practicing Catholic and used one’s religious membership and faith as the basis for objecting to conscription, would that be sufficient to count, even though the church has endorsed organ retrieval and transplant as consistent with its belief system? Could a declaration of belief in an iconoclastic or even idiosyncratic religion (perhaps even a reductio ad absurdum of a “Church of One”) qualify? Unless there were clear guidelines, such as those that have existed to exempt individuals from military conscription (for example), the situation would be ripe for exploitation.
Constitutional objection.
Do the body parts of a deceased individual constitute the kind of real property that would invoke the Fifth Amendment prohibition of “takings” without just cause and compensation to the now-dead individual or that person’s estate and heirs? Jaffe contends that
property rights do exist in the human body and its constituent parts. Characterizing the body as property leads to the conclusion that laws authorizing the removal of bodily tissues without the consent of the “owner” must be consistent with the due process and the takings clauses of the fifth and fourteenth amendments. Specifically…laws authorizing coroners to remove bodily tissues from a cadaver without the consent of either the deceased or the next of kin, and without reasonable efforts to obtain such consent, violate due process and constitute a taking without just compensation. Footnote 36
It is worth noting that the United States Court of Appeals for the Second Circuit held in Colavito v. New York Organ Donor Network that there were no property rights in deceased organs (in affirming a lower court ruling in the case). Footnote 37
Nevertheless, the Uniform Anatomical Gift Act clearly holds that individuals may make provisions for the disposition of their body and its constituent organs for the purposes of transplantation as if such parts were property similar to such things as houses, works of art, and money. There is a long history of common law in which successful legal actions have been brought against hospitals and other organizations for conducting unauthorized autopsies, suggesting that some form of consent—either antemortem by the now-deceased or postmortem by her next of kin—is required, except in the situation of a compelling state interest to determine the cause of death. Footnote 38 Finally, arguing against considering organs (or the body for that matter) as property is the universal proscription against selling organs (even though there are numerous examples of this rule being flouted), something that one would be able to do if bodies and their parts were considered commodities that could be traded in some fashion for compensation. Footnote 39 Nevertheless, the pervasive notion of organs being “donated” implies in some sense that the people whose bodies from which the organs were obtained (or their surrogates) have some kind of possessory claim to them and their disposition, despite the fact that they cannot be sold.
The “social contract” objection.
This objection extends the social and cultural norms we have to respect the antemortem wishes of (rational) people to dispose of their property as they see fit after death (wills and testaments). Partridge holds that respecting the wishes of the living (or at least some of them) after they are dead, even though they can have no knowledge that their wishes were indeed respected, is what he calls a “social contract” that we find to be socially beneficial. Footnote 40 If we all believed that our desires for the disposition of goods and possessions after our death were left to the capricious whims of others, then we possibly would be less inclined to accumulate goods and possessions that remained after we died (presumably we would make efforts to dispose of them before death). Furthermore, the absence of being able to rely on promises of these sorts could be socially corrosive. However, it is important that most, if not all, antemortem intentions that are respected involve tangible goods, specifically property. Although one’s reputation may be immensely valuable while one is alive, and could even be of great concern to be preserved intact after one has died, the gloves are off as far as what people can say without fear of being held accountable for libel or defamation. Because organs are not property, they cannot be viewed in the same light as money, real estate, or jewelry. Denying lifesaving organs taken from the dead to enable others to continue their lives would lead to demonstrable and grievous harm to real, present people, and not those who once were. As the New York Supreme Court stated in 1944 “An individual’s rights did not allow an individual to hurt or harm the overwhelming majority of the community”. Footnote 41 How can a liberal polity permit this to occur, even if we might grant that the dead could have some interests?
A related objection is raised by the question of whether organ transplantation is a societal or communal good, as the benefits accrue to individual recipients. Even though many thousands of transplants are performed each year, and advocates of conscription (or other means to increase the organ supply) hold that many more could be performed if there were more organs available, it still does not seem to reach the level of public health from which all of us can benefit directly or indirectly (such as we do by good sanitation, clean water, and universal vaccination). Nevertheless, we have approached organ transplant as if it were a shared social good by centrally organizing and funding organ collection and distribution and acknowledging that anyone who needs one could be a potential organ recipient. Seen in this light, it supports the idea of a shared good that is widely endorsed, and hence can plausibly be viewed as constituent of a social contract.
Financial or justice objection.
Harter makes the important point that if organ retrieval were mandatory, then as a matter of justice, access to transplant need not be contingent on such irrelevant factors as the ability to pay for the operation and the follow-up (such as lifelong antirejection medications). Footnote 42 That being said, however, it may be reasonable to continue to consider other factors that may diminish the benefit of organ transplant, such as mental illness or severe family dysfunction, which are well-known contributors to graft failure. Nevertheless, if the supply of organs ever became sufficiently plentiful such that choosing among potential recipients no longer entailed hard rationing of this sort, then the salience of these other factors would decrease.
A secondary objection about justice (or fairness) would be that some socially and/or financially well-placed people (or their families) could evade conscription because of who they are, and in the absence of a valid religious objection. This would be analogous to the sometime preferential treatment permitted to wealthy patients who are able to take advantage of loopholes in the organ allocation system such as, for example, being listed in multiple regions or, as in the case of the famous Steve Jobs, physically relocating (temporarily) to a region that had a shorter waiting list for a liver. This could contribute to eroding trust in the system as being one that was fair. Footnote 43
Conclusion
A major goal of the national organ transplantation system has always been to maximize the number of organs made available. Various strategies have been employed, including appealing to the public’s sense of altruism, and employing the symbolism of gifts and donations. In countries other than the United States, opt-out mechanisms that take advantage of the proclivity of people to accept default positions, and other incentives to donate have been used with varying success. At the same time, these methods have been balanced by a recognition of what the local society in which they are used can tolerate. Hence, similar to proscriptions against the commercialization of organ procurement by creating a market in organs, at no time has compulsory conscription been seriously considered as a mechanism to increase the supply of organs.
There have been a number of arguments made against resorting to compulsory retrieval, most of which have focused on respecting the antemortem wishes of individuals as expressed by them or by their surviving spokespersons about the postmortem disposal of their bodies and constituent body parts. Although many have questioned the philosophical and legal validity of claims about personal interests surviving past one’s death and the ability to visit harm upon deceased people by thwarting them, the fact remains that many of us have deep-seated intuitive qualms about ignoring these wishes. Even so, there is a long-standing and unquestioned ability of the state to intervene by mandating forensic autopsies when there are suspicious deaths, or in the case of possible public health implications such as determining the cause of death during outbreaks of infectious disease. These procedures are at least as intrusive (and often more so) as organ retrieval, but are viewed as acceptable for the general good of the public.
One possible distinction between organ procurement and mandated public health measures is that the former benefits a few identifiable individuals at a specified time whereas the latter bestows potential advantages on the anonymous public at large. Ironically, in other situations, picking out individuals who are suffering generally awakens what has been called the “rule of rescue,” our psychological disposition to help named or ascribable people as opposed to nameless “statistical” unspecified lives. Footnote 44 This could suggest that creating a more personalized connection between potential organ donors (and especially their surrogate decisionmakers) and those who stand to benefit from transplantation (rather than keeping recipients completely anonymous) could better stimulate rescue sentiments and lead to higher rates of donation.
Except for the possible minority of patients (and their families) who might have long-standing foundational religious objections to compulsory organ retrieval, I am not convinced that the main objections as listed can overpower the compelling claims of the sick who wish to live. The needs of the dead (even if one accepts that this statement is coherent) and their survivors wither in comparison with those of the suffering living. Hence, I believe that compulsory organ retrieval is morally acceptable, if not required, in a just society.
However, I think that the social costs of compulsory conscription—even with exceptions—would override any benefits that would accrue. Compulsory retrieval can be morally justified, but I do not believe that it can be so on a sociopolitical basis. The ethnic and religious diversity of this country demands that respect be paid both to those traditions and beliefs inherent in these communities as well as to their history within the larger context of America and American medicine. There is a long and sometimes sordid experience of exploitation, discrimination, and bias at the expense of minority groups. Even though the medical and moral claims of the sick are powerful and compelling, they are not sufficient to overcome this history. Practitioners have demonstrated similar prejudices to those of the lay public, and this has resulted in substantial discrimination in the administration and delivery of healthcare. Certainly, progress has been made, and the transplant system has been at the forefront, as demonstrated by the gratifying results after the introduction of the Model for End-Stage Liver Disease (MELD) scoring system in liver transplantation. Footnote 45 Nevertheless, I conclude that exigent circumstances supersede even the urgent needs of the ill and suffering.
The long historic distrust of physicians and the healthcare system that is pervasive in many minority communities could only be validated and strengthened by a system that failed to respect their wishes regarding the disposition of their dead. It may be that it is easier for people to understand that autopsies for determining cause of death in forensic or public health cases serves the interest of the wider community as well as their own. It may also be true that such autopsies are performed on cadavers that can readily be viewed as dead by people who regard the claims by doctors and nurses that people who are declared dead by neurologic criteria are also “truly dead” when they look alive. Although these cases rarely affect organ donation, there is ample data that demonstrate that African Americans (for example) are much more likely to insist that intensive care be continued and maximized even in the face of poor prognoses, because they do not trust the medical information (or the messengers) they are provided. Footnote 46 This problem may also explain some disparities in organ donation rates. Footnote 47 Any attempt to mandate procurement of organs from the newly declared dead would likely exacerbate existing issues of trust, and could be so disruptive that any benefit that might accrue would be superseded by the animosity and even outrage that ensued.
Nevertheless, although this conclusion is, I think, based on sound reasoning and persuasive argument, it may not be sufficient to legitimize its implementation in a democratic society. One could say that a satisfactory moral argument would encompass the social price of feasible implementation. However, I think that in this case, it may demand too much of moral argument. As I have concluded, and with the clear exceptions I have noted, the claims of those who require organs easily trump those who would object. However, more than this is needed than even the overwhelming and heartbreaking needs of the sick and dying. In a nation that to a great extent depends on the consent of the governed for at least some major policy decisions, especially those that have the possibility to affect large numbers of people and the values that they hold dear, such as religious and other moral precepts, the ability to implement major social changes may be limited, even if such changes can be morally justified. In the United States, one has only to turn to the long-standing debate on elective early pregnancy termination to understand the limits that can be imposed in a democratic polity. Another example, taken from the organ transplantation arena, is the public opprobrium than is heaped on officials and medical personnel when word leaks out that an “undeserving” individual, such as an incarcerated prisoner or an undocumented immigrant is eligible for, or worse, receives, an organ transplant. Footnote 48 Therefore, although the interests of the dead and their survivors are minimal compared with those of the ill, they may still become paramount when their acceptance of such a potentially controversial and contentious practice would be needed. This would be a matter of politics being the art of the practical and not of the right.
I am also cautious about endorsing strategies that take advantage of natural psychological mechanisms that most people possess to resort to default options or what have been called “nudges.” Footnote 49 Such is the case with “opt-out” methods in which donation (or procurement) is considered to be the choice unless people actively indicate otherwise by going to the effort of registering as objecting. Although clearly effective in increasing the supply of organs, these approaches resort to employing cognitive tricks that many people might find offensive, at least in this country. Whereas this is not as potentially objectionable as mandatory or compulsory retrieval, this method may leave people feeling as if they had been somehow deceived, and could stoke resentment of the sort discussed. However, one means of enhancing the number of available organs would be to attempt to increase the number of people who engage in antemortem consent, and strengthen the law and resolve of organ procurement organizations to respect those wishes and not allow any wishes of survivors to override the prior decisions of their loved ones.
Finally, it is worthwhile considering the free rider problem mentioned previously. Compulsory organ retrieval would solve this issue, as there would not be anyone who could potentially receive an organ transplant who could also not be a possible provider of organs. If, however, for the reasons just stated, the status quo remains in place in which organs are obtained only by the willingness of individuals or their relatives to donate them to the general supply, many more people will take advantage of the system by receiving transplants without themselves or their surrogates predisposed to participate on the other end. One could imagine a system in which people would declare their readiness to be future donors and at the same time also be entered into a database of latent recipients. For minors, this decision could be made for them by their parents, with them making their own decisions when they reached the age of 18 years. Those who refuse to be “dormant” donors would also opt out of the possible recipient population. Although theoretically feasible, this proposal fails for those who have plausible religious or philosophical objections to organ retrieval; to eliminate them from consideration for a future transplant on the basis of their sincerely held religious beliefs is likely unconstitutional and possibly immoral. Hence, I am left with the conclusion that the current system, as imperfect and inadequate as it is in maximizing the supply of organs and subsidizing a free rider population, may be the best compromise available that our complex and diverse society can tolerate.
