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Normative consent and organ donation: a vindication
  1. Ben Saunders
  1. Correspondence to Dr Ben Saunders, Philosophy, Room A82, Pathfoot Building, University of Stirling, Stirling, FK9 4LA, UK; ben.saunders{at}stir.ac.uk

Abstract

In an earlier article, I argued that David Estlund's notion of ‘normative consent’ could provide justification for an opt-out system of organ donation that does not involve presumptions about the deceased donor's consent. Where it would be wrong of someone to refuse their consent, then the fact that they have not actually given it is irrelevant, though an explicit denial of consent (as in opting out) may still be binding. My argument has recently been criticised by Potts et al, who argue that such a policy would involve taking organs from people whose organs should not be taken and would be a recipe for totalitarianism. The present response seeks to rebut both the ethical and political objections. I argue that people can indeed be under a moral obligation to donate their organs, even if they are not technically dead at the time and their donation does not save anyone else's life. Moreover, I argue that an opt-out system—unlike mandatory donation—is not totalitarian because it preserves the right of individuals to act morally wrongly, by opting out when they have no good moral reason to do so. The policy I propose is neither immoral nor totalitarian.

  • Donation
  • procurement of organs
  • tissues
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In an earlier piece in this journal, I argued that David Estlund's notion of ‘normative consent’ could, in conjunction with Peter Singer's principle that we ought to prevent serious moral evils where we can do so without significant loss, provide a justification for an opt-out system of organ donation.1 This argument has recently been subjected to forceful critique.2 The aim of the present note is to clarify and defend my position.

First, the intent of my original article was not to provide a complete defence of an opt-out system of donation. Rather, it was to show how normative consent might figure in such a defence and to suggest that this idea should be given more attention. Nonetheless, it is worthy of further consideration only if it has at least prima facie plausibility. Potts et al criticise me on both moral and political grounds, claiming that donation is not generally a moral obligation and that my proposal is a ‘recipe for totalitarianism’.2 I believe that they are wrong on both counts.

The morality of taking organs

Potts et al point to a ‘growing moral and scientific agreement that the organ donors in heart-beating and non-heart-beating procurement protocols are not dead when their organs are surgically removed’.2 I am aware that the criteria of death are subject of much controversy.3 4 This is a problem for any justification of organ procurement. If you reject brain death, you presumably think either that it is permissible to take organs from those who are still alive or that our present practices are impermissible. It does not, however, raise any particular difficulty for my argument, since nothing in my article was about the time at which we should take organs.

Recall that I grounded the duty to donate on Singer's ‘greater moral evil’ principle, which he uses to argue that we have a duty to give money to alleviate suffering in the Third World.5 It is not a requirement that this aid saves lives—he explicitly includes measures that improve quality of life—and so one could have a duty to donate kidneys (if doing so involved no significant moral loss) in order to save someone from a lifetime on dialysis.

Nor is it necessary that the donor be dead. Obviously, when I give money to charity instead of buying myself some new clothes, there is a real loss to me, but it is not morally significant. Questions about whether the donor is really dead or suffers posthumous harm do not undercut the claim that most people do not sacrifice anything of moral significance at the time their organs are taken. Thus, these people are under an obligation to donate their organs.

The weak version of Singer's principle allows that those whose donation would result in any morally significant loss are not under an obligation to donate their organs.5 I mentioned those who have religious objections to donation, who may be under no obligation to donate their organs (and may therefore permissibly opt-out). Potts et al point out that one's donation may also cause distress to relatives.2 This was not a case I explicitly addressed, but it is quite consistent with my argument to say that people are not under an obligation to donate their organs where doing so would cause significant distress to their family (perhaps because the family share religious views that the donor does not, for example).

One might still ask how we tell who really is under a duty to donate their organs and who is not—how, that is, we tell whether the burden faced by a potential donor is ‘morally significant’. The beauty of the opt-out system, however, is that we never need to make this judgement. If someone opts-out then we do not take their organs, period. Their explicit refusal of consent is binding, whether or not it is morally justified—as illustrated by the analogy to sexual contact.1 Some of those who refuse will be acting morally justifiably, while others will be acting wrongly, but in all cases we should respect their wishes.

The politics of taking organs

Potts et al question how it is that one can allow people to opt-out if doing so is morally wrong.2 It is not the role of the state to enforce all of our moral obligations—for example, fidelity. If Singer is right, then many of us act wrongly by not giving a significant percentage of our income to Third World aid, but this does not imply that the state—or anyone else—can simply seize our money and redirect it to more worthwhile causes. A liberal state recognises that people have the right to live their own lives, even where what they do is wrong. Ironically, it is the legal moralism apparently endorsed by Potts et al that comes closer to totalitarianism than my own liberal position.

Moreover, in charging that ‘an expansion of government authority over individuals' bodies is incompatible with democratic society’, Potts et al conflate the distinct ideas of democracy and liberalism.2 While I would rather live in a liberal democracy than a totalitarian one, there is nothing inherently contradictory in the latter idea. The nature of both democracy and liberalism is of course contested, but allow me to present a brief caricature that will illustrate the difference.

Democracy simply suggests a state in which the people (demos) rule over all aspects of life. If an overwhelming majority support some particular policy—even the compulsory harvesting of organs from all cadavers, whatever their objections—then implementing such a policy would be democratic. This is the ‘totalitarian democracy’ that has come to be associated with Rousseau's general will by many liberal critics.6 7

Liberalism, in contrast, seeks to limit the power of the state so that each individual enjoys control over his or her own life. In a classic statement of this position, John Stuart Mill insists that the state should only exercise power over individuals in order to prevent harm to others, and never for either their own good or to enforce society's moral norms.8 A liberal might think homosexuality or sex before marriage to be morally wrong, but that this is no reason for the state to interfere by banning such conduct between consenting adults.

With this contrast in mind, I shall now argue that my position—far from being totalitarian—is both liberal and democratic. First, though I have argued that most individuals are under a moral duty to donate their organs, I do not assume that it is the state's business to enforce this. If individuals choose to opt-out, then that is their right, even if they act morally wrongly in doing so. There is a distinction between what morality demands of individuals (which requires most to donate) and what law it is legitimate for the state to adopt (an opt-out policy which allows individuals to act wrongly).

Moreover, my position is democratic, not because of its content, but because of the way it is held. It would be undemocratic were I to insist that the UK ought to adopt an opt-out policy because I have privileged access to moral truth. In a democratic state, the laws must reflect the will of the people (through their elected representatives). This does not mean, however, that people are prohibited from arguing any opinion until it has been established as the will of the majority, or then it would be impossible to have a debate before the vote. Rather, all should be free to advocate for the truth as they see it and to attempt to persuade their fellow citizens. In this debate, the opinion of a philosopher is no better than that of any other citizen.9 10

I defend an opt-out policy in this spirit. I think that it is the most justifiable policy for the state to adopt, because it serves the morally urgent end of increasing the supply of donors organs, without infringing on individual freedom, since all have the right to opt-out on any grounds that they wish. I hope that I can persuade my fellow citizens of its merits, for I recognise that it would only be legitimate to adopt such a policy with popular support. This is the sign of a democrat; not one who would force moral truth on the people whatever their views.

Conclusion

As a democrat, I would not wish to impose an opt-out system on a resistant public. Such a move may only promote a counter-productive backlash anyway. Given that the topic has recently been debated, however, I would add my voice to those calling for the introduction of an opt-out system. I think we need not be so preoccupied with whether or not it is reasonable to presume consent, given that there are powerful moral reasons for most people to donate their organs. As liberals, we ought to respect the wishes of those who refuse their consent, but the moral course of action should be the default, unless people explicitly refuse to donate.

Acknowledgments

I thank Chris Brooke, Robert Jubb and Benjamin Morison for pertinent discussion and suggestions.

References

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Footnotes

  • Funding This piece, like the original article, was written while in the employ of the Faculty of Philosophy, University of Oxford.

  • Competing interests None.

  • Provenance and peer review Not commissioned; not externally peer reviewed.

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