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No one has the right to say what should be done to their body after death
In my opinion any concept of property in the human body either during life or after death is biologically inaccurate and morally wrong. The body should be regarded as on loan to the individual from the biomass, to which the cadaver will inevitably return. Development of immunosuppressive drugs has resulted in the cadaver becoming a unique and invaluable resource to those who will benefit from organ donation. Faced with the biological reality, the moral error of any concept of property in the body, and the quantitative failure of voluntary organ donation, I believe that the right of control over the cadaver should be vested in the state as representative of those who may benefit from organ donation.
How one regards the dead human body, the cadaver, is in part governed by one’s familiarity with it. At the present time, very few people ever see a cadaver which has not in some way been altered after death, and even fewer touch, handle, deal in any way with the dead human body. In developed countries, death itself most frequently occurs away from the home, in an institution, under the supervision of professional caregivers. For most people, ideas concerning the cadaver, its nature, the proper way to deal with it, are formed under these conditions.
As a pathologist specialising in forensic pathology, for 50 years I have been at the other end of the spectrum of experience. In my daily work I have been privileged to examine the cadaver in all its stages after death from the immediate postmortem moments through all the stages of decomposition to bare bones. Working in a relatively small community, I have sometimes been charged with examining the body of someone I have known in life, which is never an easy task. These experiences have moulded my ideas as to what the cadaver is, what it represents, and how it should be treated. My beliefs are by no means unique, but I believe the experience which has formed them is unusual and because of this, important. Reading the works of ethicists who pronounce upon these matters, I wonder how many of them have ever viewed and touched a human cadaver, or seen a decomposing body.
Out of all this I have become what I understand is termed a dichotomist, one who believes that the body and soul are separate, different entities. I use the term “soul” for want of a better, not knowing a word which does not in some way carry implications of the soul’s origin, nature, value, and destination. I wish to imply none of these, nor to intrude here my own religious beliefs. For the purposes of this discussion, the soul to me is a non-physical, immaterial entity which animates the body and gives it what we know as life. In knowing and experiencing a person, we cannot separate body and soul, because we always know them together. From the moment of birth until that of death they are inseparable and intertwined to form the person, the human being. At death the soul departs from the body—I have watched this occur—and here I express no beliefs whatsoever as to what happens to it at that point; where it goes, if anywhere, what its future is, if any. What is clear to me is, that without the soul, the body is not and can never again be a part of the person. The cadaver is not, what the body has been.
The body, on the other hand, is more easily defined and described. This, the physical entity animated by the soul, is formed of chemical elements and compounds, organised into tissues and organs, combined in a marvellous complexity and with the soul, it is the human person. In this combined state, the person is alive; without the soul, the body is dead, with all that implies. From the moment of conception the component parts of the body are formed from material drawn from the external physical world, in active interchange and dynamic equilibrium with the biomass, the sum total of living organisms on the planet, and with some of its inorganic matter. We study the human person from its earliest beginnings, through growth, differentiation, maturity, decline, disease, and death. The life of the metazoan animal Homo sapiens, as we know it—and this is only one of the ways of considering the human being—is finite; senescence starts with the zygote, and corporeal death is its inevitable end.
After death the human body decays, a process with which few are familiar and which excites revulsion which is both instinctive and learned. The instinctive part of this revulsion I think is easily explained, as an inherited reflex acquired by ancestral experience that rotten meat is not good to eat. Embedded very deeply in the nature of humanity there is another element to this, a belief that death is not the end of the soul and that the life of the body can somehow persist or be restored. This was expressed in the burial practices of the earliest humans, in the staining of bones of the deceased with red pigment as a symbol of continuing or resurgent life. Such practices have been elaborated by many different cultures, as in preservation and veneration of the bones of ancestors; burial with grave goods, food, slaughtered animals, and slaves, and mummification and embalming, to retain a simulacrum of continuing life, the last a common practice in many contemporary societies including our own. All these seek in some manner to deny the fact of death, or at the very least to delay its acceptance, to spread this as a process over a period of time, and to come to admit it gradually rather than as an instant blow at a single temporal point. Such practices often contrast oddly an expressed belief in an afterlife in a better world, with profound reluctance to leave this one. Many religions express belief in some form of “the resurrection of the body” but so far as I am aware, at the present time, this is only rarely interpreted as a strict physical reconstitution of its elements as at the moment of death. There is too much practical human experience for this, and however belief in a resurrection is interpreted, an element of symbolism is for most people inescapable.
However acceptance of death is denied or delayed, the human body is inexorably destined to decay as the beginning of a recycling process. Its constituent components are broken down by various means into simpler forms, and these in turn are recycled into the bodies of later generations of living things. We die and decay—or are burned—to come up again as wheat or roses, which in turn may form the bodies of future generations of people. Were this not so I would not be alive to write this, nor you to read it; the elements which might have formed us would all have been locked up in the indestructible physical remains of the first generation of living organisms. Decay is the inevitable and necesssary consequence of finite corporeal mortal life.
Viewed from this point, the human body can only legitimately be regarded as on extended loan from the biomass, to the individual of which it forms a part, and any view of it as property which can be owned and disposed of must be examined very seriously, questioned, and modified. Our culture accepts as a fundamental principle that while the body is animated by the soul, the person resulting from this union has a right to the preserved integrity of the body which is a necessary part of his or her total being. This is expressed in law, in our society, by prohibitions against killing, wounding, or even such minimal assault as threatening to touch the body without the person’s consent. But how we should view the cadaver after death is a very different and much more questionable matter.
In that part of the ethics of our society which is expressed in law, there is no concept of the cadaver as property which may be disposed of for gain. The law, formed over a period of time before the possibility of transplantation existed, at present charges someone with the responsibility to dispose of the cadaver in accordance with society’s customary practice and the requirements of public health, and gives this person powers to do so, but the cadaver is not his or her property. Until very recently there was no significant value in a human cadaver, and no legitimate use for it save its quantitatively very minor utilisation in dissection as a part of the training of physicians and surgeons. All this changed, recently, suddenly and dramatically, with the invention of immunosuppressive drugs which block the bodily rejection of transplanted organs and tissues, and make organ transplantation possible as a practical and effective treatment of human disease. The change is tremendous, unprecedented, unparalleled in our experience. The difference—for example, between chronic haemodialysis and kidney transplantation for the treatment of renal failure, is the difference between existence and life. From the strictly practical viewpoint, from being an object without intrinsic value destined only for disposal, the cadaver became at one leap a vital resource, something quite new in human experience. This quantum jump in technological capability brought with it, as all such advances inevitably do, totally new ethical problems. These in their turn can and must be tackled, and possibly solved, and faced with the unprecedented, it can only be done by fundamental examination of our basic beliefs, and their reconciliation with immutable physical facts.
One thing which must be considered at the very beginning, is the problem of immediacy. To be effective, an organ for transplantation must be removed as soon after death as possible. But it may be very difficult for relatives to accept that their loved one’s body, maintained in a semblence of life by artificial respiration, is in fact dead and will obviously be so when the respirator is turned off. Added to this, there is acceptance of death as a process, not as an event; a fact which those close to the deceased come to accept gradually and which in its fullness may take years. Some progress towards reconciling these facts—for human emotions are facts with which we must deal—and resolving this dilemma, can be made when the death of an individual is known to be inevitable but can be postponed for a short time during which the family can come to terms with it. A great deal more could be done by the more gradual and diffuse processes of public education, but while the problem can be lessened, it inevitably will remain.
The cadaver has now become, to those who may receive its organs as replacement for their own which have failed, quite literally a source of continued life restored to something close to its fullness, and qualitatively different from existence maintained by mechanical means. In discussing this I shall limit myself to kidney transplantation, the commonest procedure which has become routine. Again, one wonders if some of the ethicists who pronounce on this, have ever met with and talked to patients who have experienced both existence maintained by haemodialysis, and life restored by transplantation. There is this real difference. This situation requires re-examination of basic beliefs; to whom does the cadaver “belong”, and who should morally have rights to determine its disposal? To the deceased, it is something that has been a vital component of the person but now is no longer and is no more needed. To the bereaved family, it is a remaining part of the beloved deceased person, emotionally tremendously evocative, hallowed by individual experience and by centuries of belief and tradition. To the potential recipient of its donated organs, it is the very new hope of restored life.
I do not think that the concept of ownership or property in the human body is an accurate, defensible, or moral one, and I believe that the body should be regarded morally as on loan from the biomass to the individual of whom it is, during life, a part. Previously a matter of only academic interest, this is now of immense practical importance. I have no problem with the right of the individual to bodily inviolability during life; integrity of the body is a necessary part of integrity of the person, together with the individual freedoms that are commonly stated in charters of rights and the like. I am deeply concerned with the right of the person to govern disposal of their body after death, when separation of body and soul is irrevocably complete, and the individual is incapable of reconstitution. The person no longer exists, the soul has departed, and the individual who was but is no longer has no further use for the body which has been part of him or her during life. The concept of the right of a person to determine before death, the disposal of their body after death, made sense only when there was no continuing use for that body; it makes neither practical nor moral sense now, when the body for which the dead person no longer has any use, is quite literally a vital resource, a potential source of life for others. Another way of looking at the cadaver, is to liken it to a dress or a suit of clothes hanging in a closet, worn by the person during life, evocative of pleasant experiences and happy times, but now no longer needed by the one who has died and useful only as a memorial by the bereaved. If it can help to keep the living warm, should not this be done? Is this not both practically and morally, its right utilisation?
If this argument is correct, then it is even more morally unacceptable for the relatives of the deceased to deny utilisation of the cadaver as a source of transplantable organs. Their only claim upon it is as a temporary memorial of a loved one, inevitably destined to decay or be burned in a very short time. To me, any such claim cannot morally be sustained in the face of what I regard as the overwhelming and pre-emptive need of the potential recipient. It is particularly unacceptable when the deceased has during life expressed consent for cadaver organ donation, and still unacceptable if he or she has expressed no opinion. The need of the potential recipient, the benefit which may accrue to him or her, to me trumps and surpasses all other considerations. The proportionate benefit is too great to be subordinate to anything else. This can be expressed in a simple parable. A rich man has a loaf which he does not need, which he cannot eat, for which he has no use. To a poor man, starving, the gift of this loaf would be the gift of life itself. But the rich man says: “I will not give you this loaf; I will drop it on the dunghill to decay, or fling it in the fire to burn”. This is to me a specific analogy of the denial of organ donation, of the conscious refusal to grant it. In many instances the denial is not conscious, a positive act, but a negative omission, a failure to consider and decide upon the possibility before it becomes real. It is commonplace that there is a great gap between the proportion of people in a society who favour organ donation, and the much smaller proportion who do anything about it.
In my opinion the human cadaver, at the point at which life departs, should become a resource for those who may benefit from donation of its organs. Our society has conspicuously failed to achieve this by voluntary means, and the increasing length of the queues for donated organs testifies eloquently to this failure. On the other hand, a majority of the community express their belief that cadaver organs should be used for transplantation. Faced with this contradiction and the dilemma so caused, it appears to be morally and practically necessary for society to act to overcome this failure, and this could best be done by making the human cadaver the charge and responsibility of the state, to determine its best disposition. Without going into detail, it might be done by establishing an organisation for this purpose, under the authority of the state but at “arm’s length”, very strictly separated from government and politics. The rights and responsibilities of disposal of the cadaver should be vested in this organisation. When the cadaver has been used, if possible, as a source of transplantable organs it may, if the family wishes, be reconsigned to their care, for such religious and social observances as they desire. Practically, this might be welcomed by many, as removing the necessity for an agonising decision by the family. Also practically, it is impossible for the family, in such circumstances, to be able to tell what has been done; after routine autopsy the body is reconstituted so that there is no outward sign, to ordinary observation such as that at an open coffin funeral or memorial service, that any examination has been performed. Legally, this might be regarded as an extension of the doctrine of Parens patriae, the assumption by the state of parental responsibility when this is necessary, on behalf of the persons benefiting from organ donation and transplantation. Morally, I regard the rights of the potential recipient, because of the benefits accruing, to be pre-emptive over all others.
In this situation, the idea of consent and its corollary, refusal are not morally applicable. One may be able to give or refuse consent to a procedure which affects oneself, but organ donation affects no one physically; no human person is involved as donor. To grant the right and power of consent to an individual who may be affected emotionally, is to elevate the possible emotional affect of one person, as more important than the physical life of another. The imbalance of benefit is too great to permit of this, and I find it morally unacceptable. To require consent for cadaver organ donation from the one of whose person in life the body is a part, is unacceptably to extend control of that body beyond legitimate limits. To require consent from the relatives of a previously living person is unacceptably to extend their control over matters where the good of others should be the predominant concern. The concept of consent in this situation is morally incorrect.
This having been said, in a society which places predominant value in autonomy, it may not be possible to enact in law what is morally correct. Should this matter ever attain the status of a legislative proposal, as it has in some countries, it might be a practical necessity to extend the principle of autonomy to a right to refusal of cadaver organ donation, to a living individual—to legitimise, in effect, the attitude of the rich man in my parable. To me this would be immoral, but it might be necessary to condone this limited immorality, commonly expressed as the right to opt out, or to refuse, to the individual. It would be a limited sacrifice to the much greater good.
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