THE AUTOMATIC AVAILABILITY OF DONOR ORGANS

We need to begin by being clear about just what it is I propose and why. At the moment in the United Kingdom we have an “opting in” system (donor cards) and there has been some pressure for us to move to an “opting out” system which is sometimes called “presumed consent”. In this latter case organs would be available for transplantation unless the potential donor had registered his or her objections to donation prior to death. Both of these systems give central place to the individual’s right to determine what happens to his or her body after death. I challenge this assumption. I suggest that consent is inappropriate as a “gatekeeper” for cadaver donations.⁵

All the moral concern of our society has so far been focused on the dead and their friends and relatives. But there are two separate sets of individuals who have moral claims upon us, not just one. There is the deceased individual and her friends and relatives on the one hand, and the potential organ or tissue recipient and her friends and relatives on the other. Both have claims upon us, the claims of neither have obvious priority. If we weigh the damage to the interests of the deceased, and her friends, and relatives if their wishes are overridden against the damage done to would be recipients and their friends and relatives if they fail to get the organs they need to keep them alive, where should the balance of our moral concern lie?

If we address this question seriously we must think what each group stands to lose. The cadaver donor stands to lose very little, but not nothing, as Hamer and Rivlin rightly say. She is dead and past being harmed, except in the relatively trivial sense in which people possess interests that persist beyond their death and which can in some sense be harmed.⁶

We must remember that while the organ donor may have a posthumous preference frustrated, (more of which anon) and her friends and relatives may be distressed and upset, the potential organ recipient stands to lose her very life and her friends and relatives will have grief to add to their distress.

CADAVER ORGANS SHOULD BE AUTOMATICALLY AVAILABLE

One solution to the problem of sensibilities would, I have suggested, be to provide for the automatic or mandatory availability of donor organs. If this were done, of course only as a result of democratic acceptance of the idea, neither relatives nor the former “owners” of the cadavers need be consulted about their disposal. This would remove the necessity for asking permission at a sensitive moment and hence the moral objections to so doing. People would, I believe, soon get used to the idea, particularly if there were to be a concerted campaign of education and argument.

Indeed it seems clear that the benefits from cadaver transplants are so great, and the harms done in going against the wishes of those who object so comparatively small, that we should remove altogether the habit of seeking the consent of either the deceased or relatives. This would be another example of a small but significant class of public goods, participation in which is mandatory.

MANDATORY AND VOLUNTARY PARTICIPATION IN PUBLIC GOODS

It is widely recognised that there is clearly sometimes an obligation to make sacrifices for the community or an entitlement of the community to go so far as to deny autonomy and even violate bodily integrity in the public interest and this obligation is recognised in a number of ways.⁷

All British citizens between 18 and 70 are liable for jury service: those over 65 may be excused if they wish. They may be called, and unless excused by the court, must serve. This may involve days, but sometimes months of daily confinement in a jury box or room, whether they consent or not. Although all are liable for service, only some, however, are actually called. If someone is called and fails to appear they may be fined. Most people will never be called but some must be if the system of justice is not to break down. Participation in or facilitation of this public good is mandatory.

There are many senses in which automatic cadaver donation involves features relevantly analogous, in particular to jury service. But the clearest case is that of postmortem examination. The courts can order examinations without any consent being required and despite the fact that these involve interference with the dignity of a dead body and the removal of organs. Of course postmortem examinations are not usually ordered simply out of curiosity, there are public safety and public policy considerations. It is important that the cause of death be known in case the same cause represents a further danger to the community, whether that danger be in the form of a disease or contagion, or in the form of a possible murderer at large.⁸ But again related but more powerful considerations weigh in favour of mandatory cadaver transplants.

It therefore seems appropriate to consider mandatory availability of cadaver organs. The public interest in saving the lives of fellow citizens at risk is at least as urgent and as important as the public interest which justifies court ordered postmortem examinations. Moreover it is, I suggest, less damaging to civil liberties and less compromising of individual autonomy than—for example, compulsory jury service. (I say nothing of compulsory military service, which is widely accepted in many countries.) For although both jury service and postmortem examinations have justifications in terms of protection of the lives and liberties of citizens, so of course does the automatic availability of cadaver organs.

THE HAMER AND RIVLIN OBJECTIONS

This then is the proposal to which Hamer and Rivlin object. They have two main grounds of objection. Before coming to these, however, we should just consider a preliminary claim, namely that “both objections stem, essentially, from the fact that utilitarianism denies freedom to moral agents: . . . because it requires that they be used as means to another’s end if the consequences are sufficiently good . . ..” I will not be drawn into defending utilitarianism because my position is not straightforwardly utilitarian, but this suggestion is simply false. All ethical systems require that the freedom of people be subordinated to moral considerations if the reasons for so doing are sufficiently important or, as Hamer and Rivlin suggest, “if the consequences are sufficiently good”. If this were not the case there could not be laws against murder nor—for example, requiring the compulsory wearing of seat belts in cars. The only remaining question is when the moral considerations for restrictions on liberty are sufficiently compelling; and this is the subject of the disagreement between us. Utilitarianism gives moral agents reasons to make certain choices, to say it denies them freedom is, in the words of a famous utilitarian, “nonsense upon stilts”.

Hamer and Rivlin then elaborate two main objections to my proposal that cadaver organs be automatically available for transplantation. They suggest that I have ignored or deny the possibility of the dead having what they call “surviving interests”. Unfortunately Hamer and Rivlin have relied for their understanding of my position on two very recent internet sources. One a live interview, the accuracy of which is doubtful, another from “midwalesonline”. For the record I do not deny that there are such things as “surviving interests” or, as I termed them more than 10 years ago, “persisting interests”. The issue is whether these interests are sufficiently strong to constitute plausible objections to sacrificing such interests to save the lives of those who need transplants.

PERSISTING OR “CRITICAL” INTERESTS

I have never doubted that there is a real sense in which individuals may have some interests that survive their death and hence there are some senses in which an individual’s interests are still in play after death.⁹ While such interests deserve some respect, they are, I have argued, relatively weak¹⁰ when compared with the interests of living persons who exist to be harmed in person by the neglect of their interests. The appropriate principle should be that their wishes when alive as to affairs after death should be respected, (out of courtesy so to speak)⁵ subject to reasonable demands of public interest.

It is tempting to think of those sorts of interests we have termed “critical” or “persisting” as contrasted with so called “experiential” interests—interests that we are aware of and aware of being either served or not served by what happens. Ronald Dworkin highlights this particular contrast, defining experiential interests as things we have an interest in because we like the experience of doing them. Critical interests on the other hand are those “interests that it does make . . . life genuinely better to satisfy”.¹¹

There is, however, another distinction which has some importance and that is whether particular interests are “person affecting” in the sense that their satisfaction or frustration would be good or bad for the person whose interests they are. It is widely accepted in contemporary ethics that “the part of morality concerned with human wellbeing should be explained entirely in terms of what would be good or bad for those people whom our acts affect”.¹² So although what happens to my children, or my body after my death, can involve my critical interests in the sense that it contributes both to the success or failure of my life as a whole and to whether it has achieved the meaning with which I had hoped to endow it, such things are not person affecting, they are not good or bad for me, they do not affect my wellbeing because “I” no longer exist. I am simply not there to be affected one way or the other, my wellbeing cannot be affected because I am no longer “a being”. In short, though in a sense my interests persist, “I” do not.

Some, but not all, critical interests will be person affecting, all experiential interests will, but person affecting is what counts when we are principally concerned with human wellbeing, or with personal rights or interests. Posthumous interests are never person affecting nor are posthumous frustrations of autonomous choices.

I believe that although there are such things as persisting interests they are, of necessity, less significant than person affecting interests. In Wonderwoman & Superman¹³ I put the point like this:

It is I admit, hard work imagining why one should separate harming someone’s interests and harming that someone. But the point of doing so is perhaps this: if we damage the environment irreparably today, this will harm the interests of future generations but it will not harm individuals as yet undifferentiated until they come into being. It harms their interests now and them only when they exist. Similarly the interests of actual people persist after their deaths. When they are alive you can harm (or benefit of course) both the individual and her interests. Once she is dead only her interests remain to be harmed.

This is why the damage to the persisting interests of the dead must be set against the damage to the persisting interests of the living, damage which, in the case of the living, also affects the persons whose interests they are. This double damage will for all practical purposes always give the edge to the interests of the living.

While the life of a person then is affected by frustration of interests the dead are not affected “in person” by this. Note that it is not a question of experiential versus critical interests but person affecting versus persisting interests. Person affecting considerations affect living persons whether or not they experience them in the sense of being aware of them. I am affected in person—for example, by malicious gossip; it is person affecting even if I remain unaware of it.

Since the dead subject has ceased to be the subject of person affecting morality, since she has neither autonomy rights nor interests to protect and only some rather attenuated persisting or critical interests if any, her wishes do not have the primacy that rights and person affecting interests can claim in moral argument. They cannot function, in Dworkin’s famous terminology, as “trumps”.¹⁴ Equally the wishes of parents or next of kin lack their normal central role. Next of kin or “guardians” are called upon to make decisions for the incompetent only on the assumption that these represent safeguards of best interests or sometimes, (I believe erroneously)¹⁵ as interpretations of the wishes of the incompetent individual. Here again the wishes of next of kin, guardians or other relatives as to what happens to their deceased relation cannot have the primacy that they have traditionally been accorded, in that they represent neither the expression of the rights nor the person affecting interests of the deceased. Again they cannot function as “trumps” in moral argument.

We should note that there is a sense in which what happens to my body after death is person affecting; it is just that it is not me who is the affected person. The things that happen to my body after death are person affecting in the sense that they affect the persons who will benefit from the organs or tissue that could be harvested from me and indeed the persons who are distressed by the tissue being collected retained or used.

So that when Hamer and Rivlin say: “It is open to Professor Harris to concede that the dead have surviving interests . . . imposing moral restrictions upon our treatment of them, but to deny that this means that we cannot use them as donors against their will”, they are quite right, it is not only open to me, I have said precisely this. Hamer and Rivlin have spent the main part of their paper articulating a conception of posthumous interests that I (and many others) have also articulated and in establishing a point that I concede but, which I have argued has scant moral force when set against the harm that overriding such interests might prevent.

Against this final point Hamer and Rivlin say:

We do not know whether an interest in posthumous bodily integrity should trump an interest in continued life (as a minor objection, even assuming we agree with Harris that such a comparison of “harms” is necessary we are at a loss to think of a way to go about it, except in a very rough intuitive manner).

I am at a loss to understand their problem here. We always have to compare the moral importance of different sorts of interests. To take a hackneyed example already mentioned, we have to decide whether the freedom to choose not to wear seat belts in cars can be compared with the harm of loss of life or serious injury and the costs of this to the health care system of a nation state. Equally we have to decide whether the harm to a person’s posthumous interests of imposing a tax in the form of so called “death duties” compares with the benefits of the good that the revenue raised will do. It may to some extent be rough and ready, but we try to assess the moral, political, and social importance, the “strength”, of the respective rights and interests in play. We do this partly by asking the sorts of questions I have been asking. What does the individual whose rights or interests are sacrificed stand to lose compared with what will be gained by the sacrifice of those rights or interests? Even when the rights or interests in play are trumps—very strong rights indeed, it is still accepted that some weight of countervailing interests might be enough to warrant their disregard. We do this in medicine every day. We compare the harms of surgery, (scarring, pain, the risks of anaesthesia etc) with the gains from the surgery; or we compare the harms of chemotherapy with the expected gains in terms of remission. We do this even when we cannot be assisted by the wishes of the patient (because they are incompetent or unconscious). What would we say of a medical team that lamely pleaded “we are at a loss to know how to make this calculation”?

In fact Hamer and Rivlin are considerably overstating the difficulties here. There is in fact remarkable objectivity (by which I mean convergence or consensus in judgments) about the relative severity of harms. Particularly, there is almost universal agreement that death is usually the worst harm than can befall a human person who wants to live: fates “worse than death” are rarely suffered outside Victorian melodrama. Thus it is relatively easy to see that rights or interests would have to be extremely powerful to warrant upholding such rights or interests at the cost of the lives of others. I have argued (not simply suggested or intuited) that the interests involved after death are simply nowhere near strong enough, and I have heard nothing from Hamer or Rivlin to persuade me (or I believe any rational person) that there is much merit in a contrary view, in a view which would sacrifice lives to the protection of a desire not to donate organs.

So since Hamer and Rivlin state: “our argument against the moral permissibility of removing organs against premortem wishes does not rely only on the surviving interests idea”, let’s see what else they’ve got.

NO MORAL SPACE

The first of two arguments with which they supplement their main argument considered above, they call “the non-moral space” argument. Basically the argument is:

By requiring that our concern for those in need of organs leads us to remove organs from the dead against their wishes, Harris’s theory is too demanding. Utilitarianism makes no distinction between causing an event and allowing it to happen when it was physically within our power to prevent—we are as responsible for outcomes which we fail to prevent when it is in our power to do so as we are for events we straightforwardly cause. . . . He says that those who refuse to allow their organs to be used “would have to explain why they would wish other people to die rather than have their organs used” and suggests it is “surely far from clear that people are entitled to conscientiously object to practices that will save innocent lives”.

Hamer and Rivlin make great play of the idea “that those who refuse to allow their organs to be used “would have to explain why they would wish other people to die rather than have their organs used”. This they get from a live interview reported on the web. I do not believe I used the phrase “would have to explain why they would wish other people to die” but if I did, it was an off the cuff rhetorical flourish and does not represent my views. It certainly does not convey any argument that I have ever produced in print. I have always argued strongly for the irrelevance of “intention” when ascribing moral responsibility. To me it matters not a jot whether people “intend” or “wish for” what they bring about. What matters morally is what people deliberately and knowingly do or fail to prevent.¹⁶ That said, Hamer and Rivlin’s main point is still good, for I stand by the suggestion that it is “surely far from clear that people are entitled to conscientiously object to practices that will save innocent lives” with the missing proviso “when the costs to them are insignificant in comparison with the gains to others”. So when Hamer and Rivlin say all “the person who refuses to donate aims at, it seems to us, is having their body remain whole after their death” they are right. My point is that it is surely implausible to think that having one’s body remain whole after their death is an objective anyone is entitled to pursue at the cost of other people’s lives! It is implausible to the point of wickedness, not least because the objective is irrational and impossible of achievement.

As I recently argued in a related context:

The human body cannot for long remain intact after death. It is perishable and will, as has been chronicled in art and literature since time immemorial, inevitably decay, disintegrate and turn to dust, or worse . . .. Shakespeare, as ever, tells it like it is. In this conversation between Hamlet and Horatio the inevitable fate of the dead is made both vivid and comic.

Hamlet: Prithee Horatio, tell me one thing.

Horatio: What’s that my Lord?

Ham: Dost thou think Alexander looked o’ this fashion i’ the earth?

Hor: E’en so my lord

Ham: To what base uses may we return

Horatio! Why may not imagination trace the noble dust of Alexander, till he find it stopping a bung hole?

Hor: ‘Twere to consider too curiously, to consider so.

Ham: No, faith. Not a jot; but to follow him thither with modesty enough, and likelihood to lead it; as thus: Alexander dies, Alexander was buried; Alexander returneth into dust; the dust is earth; of earth we make loam, and why of that loam, whereto he was converted, might they not stop a beer-barrel?

Imperious Caesar, dead and turn’d to clay

Might stop a hole to keep the wind away:

O! that that earth, which kept the world in awe, Should patch a wall to expel the winter’s flaw.¹⁷

No dead body remains intact; the worms (a certain convocation of politic worms—if one is lucky!) or the fire and eventually dust claim it. It is disintegrated, dispersed and may end as the bung in a beer barrel or the mortar in a wall. The alternatives are not burial intact or disintegration. There is simply no alternative which does not involve disintegration.

Given the irrationality of the aim, it is difficult to defend a right to pursue such an aim when it is clear that doing so costs lives.

Hamer and Rivlin’s final point is that my account denies moral agents freedom. This is nonsense. Giving people powerful reasons to do something does not deny them freedom. If, persuaded by this they then enact legislation (like that concerning seat belts) it is not the argument that has denied people freedom to contravene the law but the democratic process.

They say:

Why does the fact that there is this unfortunate state of affairs—a person whose organs are failing—have any consequences for what we, as uninvolved parties, not doctors or nurses, have to do?

Why does any unfortunate state of affairs have this effect? Why is there ever an obligation to rescue? Why do we have a health care system set up to remedy “unfortunate states of affairs”? I know that rhetorical questions are not arguments. The arguments I have provided elsewhere¹⁶; but I am confident that simply asking the questions will show the moral poverty of any person, or any philosophy, that could even ask such a question with a straight face! I have to say that someone who does not see that the remediable suffering of others creates obligations is simply not a moral agent. This is the parable of the good Samaritan. Why did the plight of the man who fell among thieves—“have any consequences for what” the Samaritan, as an uninvolved party, not a doctor or nurse, had to do? Remember he was not “good” because he did what he should have done. The “good” was a reference to the lack of expectation among Jews that Samaritans would be minimally decent.

Then they produce an argument attributed to David Schmidtz who:

imagines that there is a button that, if pushed, will cause all sentient life to painlessly cease to exist. “You will, of course, minimise suffering in the process” Schmidtz says, correctly we feel, that this case “shows us that minimising suffering is not the only thing that matters. Nor is it always what matters most”.

Well it might show suffering is not the only thing that matters. I have never claimed that it is. What it does not show is that the suffering of others does not sometimes create obligations. The example is, however, polluted by the wrongness of killing the innocent who might want to live despite their suffering. Change the example slightly to something much nearer our case. Imagine that there is a button that, if pushed, will cause all sentient life to painlessly cease to suffer forever. The only cost is that one’s own body will not remain intact after one’s own eventual painless death. Would there be no obligation to press the button?

I will end, as did Hamer and Rivlin, with a last chilling example. They ask what separates cases where there is an obligation to rescue from organ transplantation and answer as follows:

It is not always terribly clear, but some plausible suggestions are: (1) because the situations are usually emergency or disaster situations, and (2) because they are usually “one offs”—our actions will not set a precedent. (3) They are also situations in which a decision has to be made (often because all will die if we do not allow some to). Everyday tragedies, such as the plight of those in end stage organ failure, are sadly neither extraordinary nor likely to end in the foreseeable future. Thus they are not ones in which we feel a decision need be made—we cannot morally retrieve organs against the donors’ and families’ wishes.

The implication that everyday tragedies are not examples of the needs of others, which require from us a decision to help, is chilling indeed. Surely all remediable suffering gives us powerful reasons to help, but those reasons having nothing to do with whether the tragedies are “one off”! Question: “why must I help those suffering?” Answer: “because it’s only an emergency and its only a “one off”. Would such an answer provide anyone with a motive for rescue? The motive, the reason, is surely that when people are threatened and/or are suffering and we can help, we can and should prevent suffering unless the costs of so doing are unreasonably high. And as for the desirability of not setting a precedent . . . I am reminded of the immortal F M Cornford’s famous lampoon of those who invoke such a principle:

The Principle of the Dangerous Precedent is that you should not now do an admittedly right action for fear you, or your equally timid successors, should not have the courage to do right in some future case . . .. Every public action which is not customary, either is wrong, or, if it is right, is a dangerous precedent. It follows that nothing should ever be done for the first time.¹⁸