Two (Complementary) Approaches

Bioethicists currently working in the United Kingdom demonstrate—as indeed do the very best of their colleagues internationally—an eagerness to engage in two extremely different but complementary approaches to their subject. First, they readily become involved in discussions of concrete bioethical issues that are of great concern to the medical profession, legislators, and the wider U.K. public. Second, perhaps because they recognize the importance of the “first-order” questions that exercise the public imagination, they show themselves commendably willing to turn their critical gaze onto the very methods and frameworks they use to address those questions. The first approach we can properly call “bioethical,” whereas we might term the second approach “metabioethical.”

As an example of the sort of first-order issue on which U.K. bioethicists have of late had much to say, I will, in what follows, start by focusing on a cluster of concerns around commercial live-organ donation. I do so for two reasons. First, recent work on this topic (in the shape of a slew of articles and at least one important book) has been of very high quality, showcasing the rigor and incisiveness of U.K. bioethics and addressing a very real crisis in the numbers of organs available for transplant. Second, the views typically expressed on commercial donation in this work throw vividly into relief the divide between the opinions of academic bioethicists, on the one hand, and those of the man, woman, medical professional, and legislator in the street, on the other. It is quite possibly the existence of this divide that has motivated the sort of metabioethical work I survey later in this article. That is, if the methods of bioethics frequently produce what amount to highly counterintuitive results, it is appropriate that bioethicists should occasionally step back and ask whether those methods can really be justified—especially if bioethical work is to make its proper impact on public debate.

A Crisis in Organ Donation: The Ethicists' Response

It is small wonder that bioethicists in the United Kingdom have turned their attention to the question of organ donation. According to figures cited by Charles Erin and John Harris, as of late November 2002, it was the case that 667 people had donated organs, 2,055 had received transplants, and a staggering 5,615 people were still awaiting transplants.¹

The crucial question is, clearly, what course of action will both increase the number of available organs and be ethically acceptable? The prospects for a system of presumed consent for postmortem donation have, unfortunately, been all but destroyed by an organ-retention scandal involving Alder Hey Children's Hospital in Liverpool, in which organs of dead children were retained for research without the consent of the parents. Whether those scandals ought to have had this effect on public opinion is an important and largely neglected question, though it has been addressed, and answered firmly in the negative, by at least two U.K. bioethicists.³

What is more, public opinion in the United Kingdom is overwhelmingly opposed, on ethical grounds, to commercial dealing in human organs and tissues, and the practice is outlawed under the Human Organ Transplants Act 1989 (HOTA).⁴

First, she notes that when the practice initially came to light in the United Kingdom, its condemnation followed immediately, without any weighing of pros and cons or careful analysis of the likely outcomes. Most significantly, the huge benefits that might attend its acceptance (namely, a potentially large increase in the numbers of organs available for transplant) were never even mentioned, let alone considered, by those who saw fit to condemn it. The implication seems to be that this would be odd if the opponents of the practice were genuinely utilizing a risk-benefit model of ethical reasoning, rather than merely representing themselves as doing so.

Second, Radcliffe-Richards points out that, whenever a consequentialist objection to a market in human organs is defeated (an objection that makes mention of a harm to be expected from the existence of such a market), opponents instantly produce another to take its place. But this is not what we would expect if the vanquished objection were the real reason for the opponents' condemnation. Radcliffe-Richards adds to these two points the observation that

Radcliffe-Richards does not address the possibility that a commercial market in human organs might actually be “wrong in itself,” though it can admittedly be hard to see how such a claim might be supported. And if it actually is the case that those who believe such a market would be intrinsically wrong only ever deploy arguments pointing instead to its supposedly harmful outcomes, it is tempting to think that they too find it hard to formulate adequate justifications for their real beliefs. It might, on the other hand, simply be that they feel their actual reasons, although sufficient to establish the unethical nature of a commercial market, would be ineffective as a means to ensuring prohibition.

And what of the common objections to live commercial donation? Are they really so easily defeated as Radcliffe-Richards seems to think? The strength of those most commonly used is assessed in a chapter of Stephen Wilkinson's book, Bodies for Sale: Ethics and Exploitation in the Human Body Trade.⁷

The chief objections to organ sales that Wilkinson considers are that such sales would cause (excessive) harm to donors, that permitting them would have the socially adverse effect of reducing the amount of altruism in the world, that any consent to organ sales on the part of vendors would be invalid, that organ vendors' donations would inevitably be coerced, and that many organ vendors would be subject to exploitation. Here, I report Wilkinson's response to the first two objections. I also refer briefly to his response to the last objection (that a commercial market in human organs would be exploitative) a little later.

Wilkinson is dismissive of the claim that organ sales ought to be prohibited on the grounds that permitting them would bring harm to donors. First of all, there is the straightforwardly empirical fact that kidney removal, for instance, is, if performed in proper conditions, actually not all that dangerous, carrying a perioperative mortality rate of about 0.03%.⁸

What seems to me the strongest of Wilkinson's responses to the “harm” objection is this: if performed under proper conditions (which, as the previous point makes clear, can only be guaranteed if the practice is legal), commercial live donation would obviously be no more harmful than noncommercial live donation. The fact that organs are paid for in no way increases the already very small risk associated with live donation.

However, Wilkinson acknowledges the possibility that those who deploy the “harm” objection might do so because they adhere to the principle that it is wrong to pay people to endanger themselves. But can this principle be justified? What is certain is that, if it were justified, it would show that professions such as firefighting and motor racing (both of which carry greater risks than live organ donation) are unethical. And this is a result to which we presumably do not wish to commit ourselves.

The subject of the “harm” objections outlined by Wilkinson so far is personal harm. He goes on to consider a supposed social harm arising from permitting organ sales. The claim is that permitting such sales would reduce the amount of altruism in the world. Because altruism is a good, the argument runs, we ought not to do anything that will reduce it.

Wilkinson deals with this objection by casting doubt first on the notion that altruism is always a good, and second on the claim that allowing organ sales would lead to a decline in altruism. First, it is not as if there is already in place a substantial practice of altruistic donation that would be adversely affected by the existence of a commercial market. Indeed, if there were, there would be no need for a commercial market. Second, Wilkinson points out that the existence of a commercial market could plausibly increase the number of altruistic acts performed. For example, HOTA was introduced in the United Kingdom following the discovery that a British doctor had arranged, for the benefit of his private patients, the sale of kidneys by Turkish peasants. Now, as Wilkinson points out:

It is not clear that the only altruism-related concerns about commercial donation are those addressed by Wilkinson, however. That is, supposedly as an example of the sort of “decrease in altruism” objection leveled at commercial donation, he quotes the following, from an article by J. Cameron and R. Hoffenberg in Kidney International:

However, this seems to me not to be an instance of the sort of “altruism maximizing” argument that Wilkinson considers and rejects. Instead, it is an argument that (a) says something about the sorts of things human organs are (things that are priceless, and so things to which it is not appropriate to assign a monetary value), and (b) says that the only sort of donation that, as it were, fits the sort of things that organs are is one motivated by altruism. So, the claim is not that we ought to bring it about that there is more altruism in the world, or that we ought not to bring it about that there is less. Rather, the claim is that, if we are to donate organs, we ought only to donate them from the motive of altruism. Now, whether this argument is sound is not my concern here: my point is simply that it is not an argument of the sort that Wilkinson apparently takes it be. (It might be pointed out, though, that it ignores the possibility that one might seek monetary gain in order to carry out an act of altruism, as did the Turkish kidney vendor mentioned earlier.)

Now, Wilkinson of course admits that not all possible arrangements for the sale of organs from live donors are ethically defensible. Those that genuinely involve coercion or lack of consent, for instance, are straightforwardly wrong. But he, and others who broadly agree with him, think that there is nothing in principle wrong with the idea of a commercial market in human organs: what is needed is a set of proper regulations and procedures to ensure that such a market avoids ethically unacceptable practices.

Regulating Organ Sales and Avoiding Exploitation

In their paper “An Ethical Market in Human Organs,”¹²

Commenting on Erin and Harris's proposal,¹⁴

She then argues that, if a total ban on sales is presumptively bad, so too must be any restriction of sales. That is, the burden of proof will again fall on those who want to introduce restrictions, to show why those restrictions are justified. And because Erin and Harris patently do introduce restrictions, Radcliffe-Richards takes it upon herself to raise questions about the justification for doing so.

First, she asks why Erin and Harris insist that there should be only one purchaser of organs per market. She acknowledges that the aim of this restriction is equity of distribution, which is of course desirable. However, she writes:

Second, Radcliffe-Richards questions why the proposed market should be restricted to one self-governing geopolitical area. She concedes that a one-way traffic of organs from the poor to the rich would be undesirable but maintains that its undesirability is not sufficient to establish whether on balance (that is, when all the costs and benefits have been weighed) it ought to be allowed. Additionally, she points out that lots of existing trade between poor and rich countries is similarly undesirable, but that it would presumably be still more undesirable for poorer countries if it were to stop altogether. Radcliffe-Richards's point mirrors one made by Wilkinson about the claim that an unrestricted commercial market in organs would inevitably prove exploitative of the world's poor:

Radcliffe-Richards's commentary ends by admitting that there may be answers to the questions she raises and that Erin and Harris's proposal might include restrictions solely “to give it greater chance of political success.”¹⁶

In fairness to Radcliffe-Richards, it is understandable that she should have failed to notice this feature of Erin and Harris's proposal. After all, their pragmatic intent is not stated in the original paper: a paper that, furthermore, bears the title “An Ethical Market in Human Organs” rather than “A Market in Human Organs that Is Likely to Be Thought Ethical by Legislators” or something of the sort. What is more, Erin and Harris state the following constraint on organ sales:

They then seem to present their proposal as adhering to this constraint. It is understandable, then, that the reader should take the proposal to be meeting legitimate (rather than unsound) ethical concerns and to be safeguarding against genuinely wrongful exploitation.

Metabioethics in the United Kingdom: Is Bioethics Just Too Rational?

Despite small disagreements, however, we can see that the U.K. bioethicists considered here are overwhelmingly of the opinion that an ethical market in human organs is possible. Even so, as Radcliffe-Richards notes, “most professional and political opinion is still against [organ sales].”¹⁸

These are the sorts of “metabioethical” questions that U.K. bioethicists frequently ask themselves. Recently, a good deal of such metabioethical work has been showcased in a volume entitled Scratching the Surface of Bioethics.¹⁹

According to those who level such criticisms at bioethicists, what is needed in bioethics is a nonrational, emotional approach. However, Takala contends that this is as untenable as the claim that bioethics should be purely rational: both reason (sense) and emotion (sensibility) have their roles to play, and a bioethics that rejects either will be all the poorer for that rejection.

The main problem with a purely feeling-based approach to bioethical problems, according to Takala, is that it inevitably ends up giving weight to some feelings at the expense of others and that this is unjustifiable by the approach's own lights. To illustrate this point, let us consider the case of organ sales again. The thought of people selling organs evokes feelings of disgust in many. Then again, the thought of thousands of people dying for want of transplant organs equally evokes disgust in others. Inevitably more weight will be given to one of these feelings of disgust over the other. But where is the justification for this? It certainly cannot come from within the emotion-based approach itself. As Takala says:

This last point is similar to one made in a paper by Harry Lesser in the same volume. Lesser argues that the chief problem with purely emotion-based approaches, such as that put forward by Anne Maclean in her book The Elimination of Morality,²⁵

Takala, however, is just as dismissive of purely reason-based approaches, with which she sees two problems. First, ethics is patently concerned with issues of human well-being and happiness, and reason alone cannot account for these. Second, there is, she maintains, “no one universal reason to be consulted to begin with.”²⁷

Takala's conclusion, as mentioned previously, is that both reason and emotion ought to be exercised in our approach to bioethical questions. And when, as will frequently happen, we cannot decide whose reason and whose feelings ought to guide us, we will simply have to find workable compromises. Given the nature of reason and emotion, a true consensus will never be achievable. Therefore, “the philosophical bioethicist's main task is to try to formulate minimal regulations that would take everyone's senses and sensibilities into account,”²⁹

The emotion-based approach to the sorts of questions that bioethics raises is, as one would suspect, hugely suspicious of moral theory. For this reason, it is often explicitly characterized as “antitheoretical.” A spirited defense of the importance of moral theory to bioethics is, however, offered by Eve Garrard and Stephen Wilkinson in their paper “Does Bioethics Need Moral Theory?”.³⁰

Those in the antitheory camp frequently make two criticisms of normative moral theory: first, that theory offers no real guidance about how we ought to act, and so is practically useless; and second, that the different varieties of theory (most notably, consequentialist and deontological theories) tend to offer indistinguishable conclusions in real-life situations. Garrard and Wilkinson, with considerable analytical skill, rebut each criticism individually but also point out that they are mutually incompatible: “the claim that theory is not action-guiding is not really consistent with the claim that the different theories guide action in the same direction.”³¹

This is an especially important point, given that the sort of antitheoretical stance championed by Anne Maclean—a stance that regards our actual practices as authoritative in matters of ethics—tends, as Harry Lesser notes, to slide into just this sort of cultural relativism.³⁴

In conclusion, it seems worth reemphasizing the plausibility of the claim that any healthy bioethical “scene” must not only engage in the important first-order bioethical questions of the day—the questions that exercise medical professionals, legislators, and the general public. It must also frequently turn its attention back on itself and critically examine its own methods. This being the case, and given the evidence available, it would appear that bioethics in the United Kingdom is, happily, in the best of health.