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“Living apart together”: moral frictions between two coexisting organ transplantation schemes
  1. M T Hilhorst
  1. Dr M T Hilhorst, Department of Medical Ethics and Philosophy (Office AE 342), Faculty of Medicine and Health Care, Erasmus MC, PO Box 2040, 3000 CA Rotterdam, The Netherlands; m.hilhorst{at}erasmusmc.nl

Abstract

Cadaveric transplantation and living transplantation exist side by side. Both practices help to alleviate organ need. They provide us with two separate moral schemes. Is it rational to keep them apart? The cadaveric system is organised along strict, impartial lines, while the living system is inherently partial and local. The ethical justification for this partial scheme seems to be that it merely supplements the cadaveric scheme: partial transplants do not come at the expense of cadaveric impartiality, but in fact significantly reduce the waiting time for patients on the list for a cadaveric transplant.

This seemingly peaceful coexistence is challenged by new initiatives, among them living donation list exchange, and also the LifeSharers initiative, leading to practices that undermine cadaveric impartiality. Should we bemoan this fact, or should we move on towards a new balance in the relationship between cadaveric and living transplantation practices, towards a new moral weighing of impartial and partial values? I argue, against the background of a rapid growth of living donations, that we have good, ethical reasons—not only utilitarian ones—for giving the value of partiality a more prominent place in our policies.

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TWO TRANSPLANTATION SYSTEMS, TWO MORAL SCHEMES

The Dutch cadaveric system is organised along strictly impartial lines, as regards both the acquisition and the allocation of organs. Organs donated after death can be donated only anonymously and unconditionally and are allocated according to general principles of medical need and justice. The Dutch system is a national, public, opt-in system. Patients on the waiting list are faced with long and varying waiting times and a significant risk of morbidity and mortality, but at least they have the assurance that they are being treated impartially—that is, according to objective medical criteria.1

Living donation and transplantation are inherently partial and local. The donation of organs—kidneys, and also split livers—is primarily taking place within close relationships of families, partners and friends. They are directed and non-anonymous. These transplants help, above all, those patients who are lucky enough to have a living donor. The living transplantation practice is rooted in and built upon “partial ethics”, as I prefer to call it: on strong personal loyalties and special commitments within the context of close relationships. Its success must be understood against this background.

Several programmes have been developed. A well-functioning, national cross-over programme (paired, living-donor exchange) has been in place in The Netherlands since 2004 for those couples who do not match. Altruistic, “Samaritan” living donations have also been accepted. Living transplants are, strictly speaking, carried out within a private context: living programmes facilitate, support and effectuate private organ transactions between individuals.

TWO MORAL LOGICS: COHERENT, RATIONAL, DESIRABLE?

Cadaveric practices and living practices exist side by side. The two practices exist for the same reason (the alleviation of organ need) and serve the same end (the best arrangement of organ acquisition and allocation). The two practices have their own—albeit very different—ethical bases: the former is based on impartial ethics, the latter on partial ethics. This raises questions of coherence with respect to the practices, policies and underlying ethics.

One may wonder how desirable it is to keep the two practices apart. Is it rational to have two policies, one for cadaveric and one for living transplantation, in which—to use a familiar image—your right (impartial) hand does not know what your left (partial) hand is doing? And how coherent is it to base the two policies on two sorts of moral logic? If transplantation ethics is divided by partial and impartial theories, shouldn’t we at least balance out the two sides?2

HARMONIOUS COEXISTENCE?

The ethical justification for the private scheme seems to be that it merely supplements the public, cadaveric scheme. All parties directly involved benefit from these partial transactions if they are performed freely and voluntarily. Living transplants do not come at the cost of others, according to this view, but instead reduce significantly the waiting time for cadaveric transplants.

This seemingly peaceful picture of harmonious coexistence is, however, misleading. First, partial transplantation ethics does not merely supplement impartial transplantation ethics, as I will show hereafter. In several respects, severe tension exists between the two schemes. And second, this supplementary picture seems to take for granted that impartiality is the only norm, ethically and politically. It leaves the impartial ethical base, as implemented in cadaveric transplantation, beyond discussion. I will show that this is not self-evident. In transplantation we may have good reasons to prefer partiality to impartiality, in circumstances where partiality and impartiality contradict each other and serve divergent ends.

A SIGNIFICANT SHIFT

We have seen a rapid growth of living kidney donations in The Netherlands, and given the persistently low numbers of cadaveric donations, and the potential for it, one may expect further growth in the near future. At present, therefore, a very effective contribution is being made to the alleviation of kidney scarcity along partial lines.

At the same time, the impartial scheme is losing its once-obvious predominance. The cadaveric scheme guarantees impartiality, but for many it provides no help, because of severe scarcity. As a consequence, it should come as no surprise to hear that both patients and doctors lose their faith and hope in this scheme and its hitherto self-evident status, and go looking for alternatives. For many kidney patients and their relatives, the partial option is currently the better and more reliable one. The fact that a living kidney has twice the average life expectancy of a cadaveric organ is an additional reason to consider living donation. And if a couple does not match, the cross-over option offers a further perspective.

Important to note here is that this development—a significant shift in practice from postmortal (impartial) to living (partial) donation—also reflects a remarkable shift in attitudes and motivation: a shift from a passive wait-and-see to active participation. Many patients and their relatives no longer wait, but take their precarious fate into their own hands and opt for a living donation. Transplantation centres as well patient organisations take new initiatives, develop programmes and present proposals that may help these patients out. This shift is also ethically significant, for it grants a crucial role to personal relationships and personal motivations. Given this shift in practice, and given this change in attitude, one might also expect a deliberate change in policy.

FRICTIONS

In other countries, as well, several initiatives are challenging the current distinction between partial and impartial. Some initiatives are patient-driven, others are transplantation-centre-driven. I mention five.

Personal loyalties after death

In The Netherlands, if I am terminally ill and express my wish to donate one of my organs after death to a sick relative, this wish cannot be granted. Unlike in the USA, for example, conditional (directed) donation is against the law in The Netherlands. All organs must go to the impartial allocation scheme. Rightly or not, conditional donations are seen as unjustified discrimination (“not to blacks, alcoholics, criminals”). The question with which we are faced is whether we should stick to this strict impartiality, or change the law and allow, or even encourage, conditional donations in such non-suspect cases.3 4

This case clearly shows that partial values do not necessarily express discrimination, nor are they necessarily in conflict with considerations of justice. It is hard for many people to understand why they are allowed to donate to a relative before they die but not afterwards. The ethical issue is about personal autonomy (and its limits), and the body as personal property, but also, and more fundamentally, about the meaning and value of personal loyalties and commitments. The Dutch policy frustrates these considerations and doubly undermines the motivations to donate. Why, when it comes to cadaveric transplantation, do we not respect ethical principles about giving that are normally accepted elsewhere in life? By turning down morally decent requests for directed donation to a relative after death—a gift that is even seen as laudable when given before death—partial values are harmed. Moreover, impartial donations may be at risk as well: the willingness to give one’s organs after death may be weakened by this legal prohibition, and the value of solidarity—indispensable also in impartial donations—may be disrupted.

Reciprocal group loyalties

The so-called LifeSharers initiative casts doubts on another, hard-to-accept constituent of the impartial ethical base of the cadaveric scheme.5 According to this grassroots network, it is only fair that one’s cadaveric organs be given (with priority) to those who themselves are prepared to donate. This initiative both defends partial loyalties (for example, group loyalties) as a sound ethical base—as a respectable moral logic that includes reciprocity—for organ allocation, and also honours the idea that it has motivational force with regard to organ acquisition: if accepted as a policy, it will motivate individuals—in an appropriate, connected way—to donate after death. This initiative, of course, weakens the prevailing cadaveric impartiality. It is (presently) against the law in The Netherlands to donate and allocate conditionally.

The idea behind the initiative is crucial for our understanding and appreciation. It links the issue of organ allocation to organ acquisition and challenges us to rethink its interrelatedness. It requires from policies that the ethics of (fair) allocation be coherent with the ethics of acquisition. It points (again) to the fact that the success of our transplantation policies is dependent on the success of our acquisition policies. The claim is made that one cannot and should not expect that all potential donors be motivated enough to donate exclusively impartially, as the law requires; that all potential donors see this impartiality as the only fair basis for donation. The claim is made that certain incentives to donate, as introduced by this initiative, are both appropriate and fair. The prevailing cadaveric impartiality is, from this perspective, ineffective and unfair: those who are not willing to give can simply claim an organ if they need one. Again, public faith may be at risk if we uphold the strict principle of cadaveric impartiality.

From an ethical point of view, we might still defend the initiative based on group loyalty as impartial, since it does not give an a priori preference to specific persons. It does, however, clearly exclude individuals who are not able to donate (for example, persons in bad health or with an undesirable lifestyle, as well as persons who prefer to donate after death but do not do so out of respect for some deep objections from their partner or family). Once such individuals become patients, relegating them to a lower place on the waiting list may be felt as unfair. “Registered as a LifeSharer” defines an individual in rather personal, non-medical terms, and registration as a condition for transplantation may be considered arbitrary, and unjustified, since not everyone can meet this condition. I leave this argument about impartiality as fairness—that is, formal justice—open for ethical debate and prefer instead to underline the moral drift of partiality in this context. Partiality refers to an attitude of special loyalty towards a specific group—for example, LifeSharers—on the basis of reciprocity. It may provide an important (additional) and proper motivation to donate, with significant consequences for policy. Why not give it some more weight?

Promise to a living donor

Living donors may become ill later in their lives—for example, owing to a failing kidney or liver. What, then, is the fair course of action? Should they take their (impartial) place on the cadaveric waiting list, like any other patient? We already compensate living donors for their costs, in order to remove serious obstacles to donate. Shouldn’t we also promise them, when in need, priority on the list?

Such a promise, understood as priority on non-medical grounds, clearly conflicts with current impartial allocation. On the other hand, however, these donors contribute significantly and positively—through their partial acts—to a further shortening of the cadaveric waiting list. Isn’t it reasonable and fair to give them some compensation by promising them priority? Moreover, this may serve for some as an added motivation to donate.

If we accept priority in these cases, we acknowledge and ethically stress the significance of these partial acts of living donation also for those waiting for a cadaveric organ. The interrelatedness of the issue of acquisition and allocation is (again) acknowledged, as is the idea that policies can undermine and frustrate, or can support and facilitate, these unique motivations to donate.

Priority for a patient with a non-matching living donor

Another proposal concerns living donation list exchange (LDLE). In The Netherlands, a nationwide cross-over (paired living donor exchange) programme is in place as an option for non-matching couples (of which one is person is willing to donate an organ to the other): one couple is paired with another couple in a similar situation, and the two donors are swapped.

For a number of these couples, however, still no match can be found. The offer to donate is attractive, but they are not able to make use of it. Should we therefore leave it unused?6 The LDLE proposal would give the donor the option to donate. One can donate one’s living kidney to the cadaveric waiting list and one’s partner will be placed at the top of the list and be the first to receive an appropriate cadaveric kidney in return.

According to this proposal, priority on the cadaveric waiting list would be given to those patients who bring with them a willing, non-matching living donor. Although this would clearly take place at the expense of impartial allocation (based on medical criteria), the idea is tempting. It would lead to more transplants and benefit many on the waiting list. On the other hand, this same priority constitutes a definite disadvantage for those who are set back on the list, often those with blood type O, who already experience longer average waiting times. From the perspective of justice, serious objections can be raised: Kantian, formal objections against any priority rule that is not based on relevant (for example, medical) criteria, a dominant argument in the Dutch position; and Rawlsian, material objections that cannot accept a setback for those who already belong to the worst-off group, as prevalent in the USA.7 8

If “allocation” were the only issue, we should probably reject the proposal on grounds of impartial justice, because the built-in preference for those who bring along their own donor introduces a definite personal (non-medical, and therefore arbitrary?) characteristic that will give some patients less chance of obtaining a transplant than others. This conclusion may be disputed and is, of course, open for ethical discussion. I leave the theoretical debate about the proper use and application of the principle of impartiality aside and confine myself to the conclusion that this impartial allocation is not the only issue. What complicates the picture is the prospect of valuable benefits for many through partial acts of living donation. The issue is therefore also “acquisition”, and its ethical, motivational base is “partiality”. More partial donations can contribute significantly to the alleviation of organ need.

The LDLE proposal connects, again, the issue of allocation with the issue of donation. Rejecting it leads to fewer transplants, frustrates partial loyalties towards a partner, family member or friend, and overlooks the significance of partial donations in general for all patients waiting for a cadaveric organ. Embracing LDLE would not be just a matter of utilitarian thinking, in which the benefits for many outweigh the harms for some. A policy that accepts LDLE would also send the message that partial loyalties are of high value. If seen as an essential part of the total living donation programme—as an option, following accepted living donation and cross-over donation—LDLE may provide additional support for those who are already considering living donation and encouraging others to do so.9

Altruistic priority for the living pool

Altruistic (Samaritan) donors are expected to donate directly to the waiting list. It is tempting for transplantation doctors to ask such altruistic donors who come to their centre to donate their kidney not to the waiting list, but to the living programme—for example, to a non-matching couple in the cross-over programme for whom it is difficult to find another, matching couple. A successful proposal of this sort enables the centre to perform a twofold, so-called “domino-paired” kidney transplant:10 the altruistically donated Samaritan kidney will then be given to the patient with a non-matching living donor, and the non-matching living donor’s kidney will be offered to the waiting list (or to a different couple, and so on, and from there to the waiting list). This arrangement benefits two (or more) patients instead of one: one on the waiting list, and another within the cross-over programme. However, this proposal is likewise based on a priority rule, with a negative implication: the living programme is the first to benefit from these altruistic donations, the cadaveric scheme only secondarily. If, for instance, an altruistic donor with blood type O offers a kidney, or if another, less common and therefore more valuable type of kidney is offered, the living programme will take advantage of this, whereas the kidney that will be given to the waiting list after domino pairing will usually be less valuable. We can discuss whether there are good, impartial reasons to justify this priority, and similar objections to those in the LDLE proposal can be raised here. Yet we can also start our moral reasoning from the special loyalties that can be found in these altruistic donors themselves, and ask what preferences they have. Why should we not honour their partial wishes and welcome any altruistic donation, be it impartial to the waiting list or partial to the cross-over system, domino-paired or not, or directly to a well-known stranger?

THE ETHICAL ISSUES

All of the cases we have touched upon have their differences. Some concern the cadaveric scheme, and some, a combination of the cadaveric and living schemes. We should, of course, judge them on their own merits, but we should not overlook their common base. What all these cases have in common is, first, the fact that they broaden the scope of transplantation ethics by taking partiality seriously and, second, that they suggest that we have good ethical reasons to give more weight to partial ethics, given the new reality of the rapid growth of living donations within a variety of programmes.

Connect policies connect to a new reality

I have pointed to a shift in practice from cadaveric to living donation, and to a corresponding shift in attitudes from passive expectation to active participation. Patients, relatives, doctors and transplantation centres take initiatives to alleviate organ shortage. I have also pointed to severe frictions. Partiality can undermine current cadaveric impartiality, just as, conversely, cadaveric impartiality can undermine partial values. If the two live apart together, it is not a peaceful coexistence.

We may regret the growing attention to partial values and fear that it will be at the expense of the cadaveric scheme and its impartiality, but we must acknowledge the new reality: that the cadaveric scheme cannot ensure help; that patients and doctors lose their hope and faith in the current impartial scheme; that—for kidneys—the scheme has lost its predominant and self-evident place; that partiality provides more certainty and has, for many, become the best way out. I suggest that, in order to be both adequate and effective, our policies should connect to this reality. Our policies should take the values, commitments and motivations inherent in partial loyalties seriously. And they should connect to personal motivations and build upon the partial, conditional willingness to give and receive. The ethical principles concerning giving and receiving, as normally accepted elsewhere in life, should be no different in the case of transplantation.

Broaden the scope of ethics

I have pointed to the issue of organ acquisition and the role of partiality and motivation in it. Even if “cadaveric allocation” were the only issue, current impartiality could be disputed, as shown in the case of personal loyalty after death and the case of LifeSharers. But allocation and acquisition are interrelated, and it is difficult—and possibly unwise—to keep the two issues apart.

I have also suggested that impartiality cannot do the full “job of ethics”. It is often thought that the core of ethics is impartiality, but it would be a mistake to stick to impartial values in all circumstances. Partiality has turned out to be a fundamental and significant moral resource for organ acquisition. Policies should be built on it when the impartial scheme falls short. The initiatives mentioned above show us situations in which we may have good ethical reasons to think that under certain conditions partial considerations may outweigh impartial ones. Personal relationships are basic to our societies. If policies support and do not frustrate the inherent partial values and motivations, they can make a significant—if not decisive—contribution to the alleviation of organ need.

The ethical issue is not merely a dilemma of utility and justice. Instead, I prefer to perceive it as a challenge to achieve a new balance between the impartial moral logic—as dominant in current transplantation policies—and the partial moral logic of ordinary life.

The dying patient and the LifeSharers initiative show that conditional (partial) cadaveric donations need not be unjust or discriminatory, although both cases may come at the expense of the impartial scheme. In the other cases we grant some patients priority over others. To ethically explain and justify this preference, one can adopt a utilitarian stance (benefits outweigh the harms; utility outweighs justice), or defend a better overall outcome (win–win for all … though for some more than others), as the cadaveric waiting list will be shortened when our policies have the effect of motivating more individuals to a living donation). We can also point, as I do, to the meaning and value of partial relationships, which should be reason to give them more weight in our policies.

Attribute more meaning and value to partiality

In transplantation policies, partial loyalties and motivations have been severely neglected. Initially, cadaveric donation was portrayed as a “free gift”, an act of altruism. Later on, the value of solidarity came to be stressed more and more, but not in terms of a moral obligation to donate or enlightened self-interest (eg, reciprocity). Relationships have been perceived primarily as abstract, impersonal and impartial. At present, however, given the successes of living transplantation, note is being taken of the ethical significance of unique bonds. Although organ donations in general are, from an impartial (outsider’s) perspective, “altruistic offers”, they are often seen from a partial (insider’s) perspective as “natural and self-evident”. Even living donations are taken as something that “one simply does for a loved one, just as she would (reciprocally!) have done for me”.11 Policies should take this ordinary morality, and its inherent motivations, more seriously. For the position I take here (but do not defend) on partiality, I refer to McBride and Seglow.12 In short, partial concern cannot be reduced to impartial concerns. Partiality is typical for personal relationships and fundamental to ethics and society, and includes, interestingly enough, reciprocity or mutuality in daily life. Partiality would seem to be even more basic for morality than impartiality. Impartiality, as a formal principle, must be parasitic upon the value of more particular, partial concerns. And, as we have seen, local, partial practices are threatened when we embrace exclusively “impartialist” norms.12 Blum, in his conscientious defence of the position that partiality should be assessed on its own terms, concludes that we no longer can hold the view that impartial norms are more fundamental and should have primacy over partial norms.13

The frictions that arise because of the new initiatives are, in a broader scope, basically a tension between impartial and partial considerations. Ethics requires that we seek a new and fair balance between the two, but also that we acquire a better understanding of both. By embracing the initiatives mentioned above, a government underscores the significance of partiality for the practice of organ transplantation as a whole. By giving partial considerations (more) weight, acknowledgement is made of the fact that partial motivations are extremely relevant for the issue of acquisition (more transplants); and that policies can frustrate partial motivations, but also support and encourage them. Acknowledgement is also given to the fact that individuals are more willing to donate partially—for example, to a sick person who is known to them. This is not just a psychological issue, but also a moral one. Within the context of particular relationships, persons take and should take special responsibility for each other. When they choose to take that special responsibility, policies can and should support individuals, remove obstacles and change their “wait-and-see” attitudes into active participation.

CONCLUSIONS

If my portrayal of current transplantation policies is fair, partiality should be not just tolerated, but warmly welcomed. Partial donations are acts not of discrimination, but of loyalty; their intention is not to exclude, but to include. The interests of unique others are made our own. In both ordinary life and ethics, we normally appreciate this attitude as good, even laudable.

Policies that do not connect with these motivations are unfit for the new realities and the unique situations in which patients and their relatives live their lives. Within the context of organ scarcity, we as a society have good, ethical reasons to give partiality more weight. How much weight we should accord to partial values is a question that we have not addressed here in detail. The ways in which and extent to which a government should encourage partiality is also a matter for further research and discussion.

Acknowledgments

Thanks to the Rotterdam ELPAT-group (Research in the Ethical, Legal and Psychological Aspects of Transplantation), which includes Dr Mike Bos, Dr J J V Busschbach, Dr B J J M Haase-Kromwijk, Dr L W Kranenburg, Professor J Passchier, Professor W Weimar and W Zuidema. Thanks also to two reviewers of this journal for their critical but constructive guidance in revising the paper.

REFERENCES

Footnotes

  • Competing interests: I declare to have no competing interests and have received no funding related to the subject of the paper.

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