This paper contends that the conventional ethical and legal ways of analysing the wrong involved in the misuse of human body parts are inadequate, and should be replaced with an analysis based on human dignity. It examines the various ways in which dignity has been understood, outlines many of the criticisms made of those ways (agreeing with many of the criticisms), and proposes a new way of seeing dignity which is exegetically consonant with the way in which dignity has been historically understood, and yet avoids the pitfalls which have led to dignity being dismissed by many as hopelessly amorphous or incurably theological. The account of dignity proposed is broadly Aristotelian. It defines dignity in terms of human thriving, and presupposes that it is possible, at least in principle, to determine empirically what makes humans thrive. It contends that humans are quintessentially relational animals, and that it is not possible (and certainly not ethically desirable) to define humans as atomistic entities. One important corollary of this is that when using dignity/thriving as a criterion for determining the ethical acceptability of a proposed action or inaction, one should ask not merely how the dignity interests of the patient (for instance) would be affected, but how the dignity interests of all stakeholders would be affected. The business of ethics is then the business of auditing all those interests, and determining the course of action which would maximise the amount of thriving in the world.
- Bills, Laws and Cases
- Donation/Procurement of Organs/Tissues
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Ethicists and lawyers struggle to define the nature of the wrong associated with the misuse of body parts and materials produced by human bodies. Lawyers struggle less than the ethicists, since they are concerned primarily with the adequacy of a remedy, and can therefore paint the philosophical nature of the wrong with a broader brush than can the ethicists.
In Yearworth v North Bristol NHS Trust1 the Court of Appeal struggled free from the constraints imposed on the law by the old maxim that there is no property in a corpse, and was prepared to analyse the problem of the ownership of semen using the language of property. Hence the law of bailment gave the claimants the remedy they wanted. The intellectual route taken to the Court's conclusion was controversial, and has provided rich pickings for academic lawyers,2–4 but the conclusion was, to most eyes, the right one. If the pragmatic Court provides the right (for which read ‘just’ or ‘intuitively correct’) result, the spotlight moves away from the reasoning.
Nevertheless, ethicists cannot be so cavalier about the reasoning. The two major camps of ethical thinking in relationship to the use that can be made of body parts are: (1) the autonomists and (2) the utilitarians. The autonomists claim that the actual or presumed wishes of the person from whom the relevant part is derived, or those of their proxy decision maker, should be paramount. The utilitarians would resolve questions of use by reference to the overall good that would result from use on the one hand as opposed to non-use on the other. The constructive tension between these two principles can be seen in, for instance, the Human Tissue Act 2005.
However, do these two lenses have sufficient resolution to expose the nuances of tissue-ownership problems? I suggest not.
The utilitarian analysis presupposes that it is obvious where the good lies. It may indeed be obvious, but the nature of the good has to be explained, and its exact location disclosed, by something other than utilitarianism itself. In practice, many utilitarians would use an account of the good based on respect for autonomy.
It is for that reason (because it begs fewer questions), that autonomy is less obviously inadequate than simple utilitarianism, but even so, it falters. Often, in body-ownership problems, one will have competing autonomy claims (for instance, where tissue belonging to X, who refuses permission for DNA analysis, is needed to give to a relative, Y, crucial information about Y's own genome. Here, Y's claim to possibly life-saving self-knowledge is most naturally couched in terms of Y's own autonomy. Yet it cannot be realised without truncating X's autonomy). Often, too, one simply will not know the wishes of the person from whom the tissue originates, either because they are dead, or because they never expressed or recorded a view from which their wishes could be deduced.
Legal solutions to body-part ownership problems tend to follow similar lines. Property-based analyses are derived philosophically from autonomy. The law of conversion says that if X is mine I can deal with it in the way that I want, and it is wrong to deal with it in any other way. The law of bailment uses similar language. So do other models based on trusteeship. Article 8(1) of the European Convention on Human Rights (ECHR) expresses the individual's right to live her life in the way that she pleases, and could be invoked to prevent anyone dealing with one's tissue in a way not endorsed by the person whose tissue it was. Article 8(2) notes that the Article 8(1) right may be modified by reference to wider societal concerns: that is the voice of utilitarianism.
The adequacy of existing solutions to problems about body-part ownership
Let us test the adequacy of these solutions against three scenarios.
The human ear ashtray: Medical students steal an ear from the cadaver they are dissecting. They varnish it and use it as an ashtray. The cadaver was donated for the purposes of medical education. Liberal though he was, the donor did not regard use of an ear as an ashtray as one of those purposes.
The head of an unknown person: Children play football in the street. They are using, not a football, but the head of an unknown and untraceable person which a dog has retrieved from a mediaeval cemetery.
The heart of a child, retained for the purposes of medical research: The heart of a six-month-old child is retained in a pot of formalin in a major research institute. The child died of congenital cardiomyopathy—which is the main research interest of the institute. The heart was removed at postmortem. The body was returned to the parents for burial. The parents’ permission was not sought or obtained for the retention. The researchers say that they did not seek permission because they knew that it would be refused, and the benefit to future patients from the information that could be derived from the heart outweighed any detriment (and they could not identify any) that would result from the heart being returned to the parents for burial.
In the ashtray case, a property analysis captures some, but not all, and not the most important part, of the culpability. Yes, the students have done something with property entrusted to them (of which, if you please, they were bailors) which they were not entitled to do. If work has been invested in the ear (for instance by the injection of latex to outline the vessels), then it may be possible to give a criminal label (theft) to the wrongness. But most of the wrongness is not that there was an inappropriate dealing with property per se, but that there was an inappropriate dealing with ‘property’ of this kind. The law fails adequately to reflect this. A sentencing judge in a criminal case on these facts would, no doubt, make some stern remarks about the disgusting behaviour of those students. It is in those remarks, rather than the arid equations of the property lawyers, that the more fundamental truth lies.
Ethically, how does one characterise the wrongness of the students’ action? Autonomy is not necessarily unable to help, but it does not do a very good job. Autonomy can reach into and beyond incapacity (for instance, in the case of advance decisions about the refusal of medical treatment) and into and beyond the grave (nobody suggests that there is anything unethical about the law of wills). But is it wholly satisfactory to say that the ashtray is wrong because the original owner of the ear would not have liked his ear to be used that way? I suggest not. If one changes the thought experiment one can see that that is the case. Even if the ear came from someone who would have thought it amusing for his ear to be so used, its use would still be regarded as offensive. The degree of autonomy's inadequacy will vary according to the facts of the case. One might contend that it does a good enough job in the context of Gunther Von Hagen's ‘Body Worlds’ exhibition.
The other Beauchamp and Childress’ principles have nothing to say. Beneficence, in this context as in all others, requires other principles to decree the content of the good that it mandates. Non-maleficence is similarly parasitic on other principles. One might say that misusing the ear makes the students callous, and that that callousness and its repercussions constitute undeniable harm, but that, again, is hardly likely to be most people's most fundamental reason for objecting to the misuse.
The use of the mediaeval head as a football can similarly be criticised in several different types of legal language. One might contend that a property-based view gives a sufficient remedy (deprive the children of their toy on the ground that it is not theirs), but surely, again, it is the type of property that the head is that makes us feel that some alternative, or at least additional, epithets ought to be used in denouncing the children's conduct.
Ethically, autonomy is arguably more obviously unsatisfactory in expressing our disapproval than it was in the example of the ashtray. We know nothing about the wishes of the head's owner: no relatives can be either consulted or offended. Beneficence and non-maleficence, by themselves, have nothing to add.
The child's heart raises other considerations. The Human Tissue Act 2005 has been flouted, but the ethical mischief here has nothing to do with the child's autonomy: the child would have been incapable of understanding a request for postmortem donation. Nor is this really about the parents’ autonomy. The parents will be upset because they were denied the opportunity to exercise their autonomy in a way which accorded with their view of how their child's body should be treated. It is the appropriateness of the treatment that is really at stake, and that, in turn, is conditioned by the parents’ view of the propriety of dealing with human bodies in general. The parents’ autonomy is distinctly secondary to the overwhelming perceived importance of ‘doing the right thing’ in relation to human beings.
Similar motives govern the researchers’ actions. They have conducted a sophisticated utilitarian calculation. That calculation could be described in terms of autonomy: more children will be kept alive (and, therefore, capable of exercising autonomy) if the heart is used. But this is strained and artificial. It seems better to say that they have figured that the net amount of human thriving in the world will be maximised by using the heart.
Dignity works where other principles do not
In each of the above examples, the only really satisfactory way of describing the real harm is by using language that looks (for many, embarrassingly) like that of dignity. Ears should not be used as ashtrays, or heads as footballs, because it is contrary to the dignity of humans.
This is an unfashionable position. Dignity has been much maligned. It is commonly thought of as being hopelessly amorphous (the name given to whatever principles give one the answer which one intuitively thinks is the right one), or incurably theological (derived from principles, such as the Imago Dei, which are not shared by most or many in the academy ).
Its proponents have often not helped its reputation, recruiting it both to advocate and object to (for instance) abortion, euthanasia and capital punishment.
‘Dignity is a vacuous concept’, wrote Bagaric and Allen. ‘The notion of dignity should be discarded as a potential foundation for rights claims, unless and until its source, nature, relevance and meaning are determined.’5 I agree with their second statement, but not with their first. The relevance is clear from examples like those above. Like it or not, dignity has to be used—there's simply nothing else. The source, nature and meaning of dignity are not as elusive as sometimes thought.
There are broadly three groups of ‘dignity-dismissers’. First there are those, like Bagaric and Allen, who say simply that the word is too ambiguous to be useful. Then there are some who, like Ruth Macklin,6 Roger Brownsword and Deryck Beyleveld,7 and Martha Nussbaum,8 who insist that dignity is essentially respect for persons or their autonomy. And finally, some (for instance, Diana Schaub9) say that, whatever it might mean, dignity is redundant since rights can do its job.
The objection of the first group melts away if dignity can be given a hard-edged meaning. The second group has to deal with the manifest inadequacy of autonomy and respect for persons to deal with situations like the ones cited above, to explain why we should have respect for persons (when we should not have, or not have equivalent respect for, for instance, a stone), and generally to show that the notion of dignity begs fewer questions than autonomy or respect for persons. The third group must tell us why humans should be accorded rights. Rights are necessarily parasitic on other principles. Rights can be derived from dignity, but not vice versa.
All three groups have to deal with the conviction (ubiquitous, except amongst professional philosophers) that dignity (whatever it is) is real, with important ethical consequences.
There is, I suggest, an account of dignity which gives a more satisfactory (or at least less unsatisfactory) way of describing the wrongness of the acts and omissions in the cited cases.10 That this is an account of dignity, rather than an account of some other scheme, can only be demonstrated hermeneutically. There is no room for that in this article.
This account is as follows.
The substantive meaning of dignity can be derived from empirical observation of what makes human beings thrive
Derivation might attract derisive howls from metaethicists about the naturalistic and/or the is-ought fallacy. I answer their charges elsewhere,10 but even if the charges are philosophically intelligent (which I contend they are not), they don't worry me much. We necessarily do almost all our ethics suspended vertiginously over the is-ought gap, and yet no one sensible suggests that we should stop doing ethics.
We either know, or can in principle know, what makes human beings thrive. There's less variation than we think. It's good for human beings to be grafted into a community, for instance, and not good for them not to be. The fact that some opt into misanthropic hermitry is neither here nor there. Autonomy isn't everything. We can autonomistically make bad choices—by which I mean choices that won't generate thriving. Grumpy recluses aren't thriving. Misanthropy tends towards subanthropy. Misanthropes choose dehumanisation: they're not being what they might be. There are plenty of objective measures one can use to demonstrate this. Take the worth of altruism, for example. In a cohort of patients recovering from illness, the ones with the best survival statistics and well-being indices will be the most altruistic ones—those who see themselves, self-givingly, as existing for the community. It's the atomistic human islands unto themselves who die first.11–14
Does this work? Take a wrongly accused political prisoner. He is daily tortured and raped by his captors. But he forgives them, asks them about their families, and prays for their reformation. Whatever dignity is, he has it.
Take a patient in permanent vegetative state (PVS). Medical students are allowed to practise their rectal and vaginal examinations on her. Is it wrong? Yes. However one describes the wrongness, ‘undignified’ (whatever that means) is one way.
Many have thought and think that dignity means something completely different in these two examples: that when we say that the prisoner is dignified, what we really mean is that he is displaying attributes associated with dignity (which I will call attribute-dignity), whereas the PVS patient is dignified in that she has the inalienable status-dignity (by virtue typically, and perhaps theologically) of being human. This ambiguity is one of the main reasons why dignity is dismissed as philosophically useless, but, I suggest, the distinction is wrong. The error arises because the attributes associated with dignity are wrongly seen as akin to chattels that can be possessed and then lost; as tools we use for doing life. In fact, those attributes are a corollary of the status possessed both by the PVS victim and the prisoner. They are not a way for doing life, but a way of being. One major reason why the PVS patient should not be violated is because being human, in the way demonstrated by the prisoner, means that one should not be treated like that. Both the prisoner and the PVS patient are going about the same enterprise: that of being human. That doesn't necessarily entail doing anything at all. One doesn't need to be conscious to be. Indeed, one doesn't need to be alive. Flourishing is primarily about being, not doing. The prisoner is flourishing because it is of the essence of humans to behave in hopeless circumstances in the way that he does. Flourishing is helped by consciousness, of course. It's nonsense to say that a PVS patient flourishes as much as a sensate person, simply by being, in the limited biological way permitted by her injury. But nonetheless, there is the same kind of dignity in her being as there is in the prisoner's being.
The way to wield dignity in analysis is to adopt a ‘transactional’ approach
Bioethicists (and particularly clinical ethicists) are often guilty of tunnel vision. They see the object of their analysis as a single relationship—typically that of the doctor–patient relationship. In fact there are many other people affected by every proposed medical or bioethical intervention or omission.
I propose a sort of utilitarianism. The unit of bioethical discourse should be not the doctor–patient relationship (for instance), but the whole transaction. One should assess how the dignity/thriving interests of every stakeholder will be affected by the proposed act or omission, and then, having weighted the dignity score allocated to each stakeholder to take account of (for instance, their proximity to the transaction), add up the dignity scores. One conducts, therefore, a holistic audit of the net change in the amount of dignity in the world that would be involved in the transaction. The outcome of the audit determines the ethical outcome.
It is easy to say that one should ‘weight’ the dignity score. Of course that assertion begs many very fundamental and important questions. But the questions are not as fundamental as the ones that have already been addressed by the time one gets to this stage. The necessity to weight doesn't mean that we're caught in a dizzyingly circular argument. Just how the weighting should be done will be the subject of hot and anxious ethical and legal discussion. I do not join the battle here, but simply note that proximity will play a big but not decisive part: the impact on a patient will tend to attract a higher score than the impact on a treating healthcare professional.
Putting the model to work: the human ear ashtray
If the model works for the ashtray, it will work for the other problems enumerated above, and, a fortiori, for less challenging problems in bioethics, such as consent to treatment, enhancement, end-of-life decision making, confidentiality and so on.
Why is it wrong to use an ear as an ashtray? The answer, per the model, is that to do so does not promote human thriving.
There are at least five ways in which this proposition might be true. The first two are specifically to do with the person from whom the ear came. The remaining three are not. The proposition could mean that:
Part of the ear-owner's being survives death. She lives on in the minds of others, and for that part of her to continue to flourish, her remains need to be treated with respect.
Her wishes (another part of her being), survive death. It's reasonable to presume that one does not want one's body parts abused.
The possibility of our body parts being so abused after our death interferes with our peace of mind and, hence, with our flourishing. Thus to prohibit such abuse, by way of law or ethical code, is to promote our present and future flourishing.
The abusers of the ear are doing something that diminishes their own flourishing: it dehumanises them.
Expressivism: a set of rules prohibiting this sort of abuse will exhibit and entrench flourishing-enhancing respect.
I adopt all these meanings. Necessarily underpinning each is the account of dignity I have advanced. While ‘respect for persons’ might sometimes seem to do the necessary work, it requires the deeper idea of dignity to give it any content at all.
From ethics to law
This analysis fits neatly within the structure of Article 8 of the ECHR. Article 8 acknowledges the importance of respect for autonomy but, in its insistence (in 8(2)) on balancing individual self-determination against the interests of others, recognises that individual autonomy is not the whole story.
There is no doubt that, whatever philosophers think, the judges who actually have to decide cases find that dignity means something; indeed that it is foundational. In Pretty v UK, the European Court of Human Rights said: ‘The very essence of the Convention is respect for human dignity and human freedom.’15 In R (A, B, X and Y) v East Sussex County Council (No. 2), Munby J said: ‘The recognition and protection of human dignity is one of the core values—in truth the core value—of our society and, indeed, of all the societies which are part of the European family of nations and which have embraced the principles of the Convention.’16
Article 8 has been the vehicle used in Europe for the protection of rights of confidentiality and privacy,17 ,18 and other situations akin to the use of body parts. Dignity is at its core.19 ,20 There is no need to strain the notion of property, trusteeship or any other idea forged in a workshop far from the dissecting room and the ward. Indeed there is no need to use such ideas at all. One can, and should, go straight from ethics to Article 8. Any other route is convoluted and dangerous. Dignity is the only vehicle that takes the direct road .
Contributor Charles Foster is the sole author of this manuscript.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.
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