• Transplantation
• Philosophical Ethics
• Death

In his précis, James Stacey Taylor sets out his full-blooded Epicureanism, which concludes that “death is not a harm to the person who dies and that persons can neither be harmed nor wronged by events that occur after their deaths.”1 He then considers various topics in bioethics in the light of his Epicureanism, one of which I consider here: presumed consent in the procurement of organs for transplantation. Although I do not accept Taylor's Epicureanism and although his examination of presumed consent is flawed in various ways, I think we can learn something important from him.

Taylor couches the problem in terms of what we are supposed to presume about people's consent or dissent and he thinks that the USA and UK have a system of ‘presumed refusal’ “whereby it is presumed that a person would refuse to have her transplantable organs removed from her postmortem unless she had explicitly indicated otherwise” (ref. 2, p. 111—page references in text refer to this book). Taylor makes a common mistake. The USA and UK have never had such a presumption. In these countries, people who explicitly refuse may not have their organs taken, whereas people who do not explicitly consent may have their organs taken if, roughly speaking, their families consent. Thus non-consenters are not presumed to be refusers.

Leaving aside the mistake about the status quo, it seems odd at first sight for a full-blooded Epicurean to be interested in arguing about opt in and opt out systems. Leaving aside any claims of the deceased's families (whom Taylor ignores anyway), why would it matter to an Epicurean whether those who did not consent had their organs taken since they can, by Epicurean hypothesis, be neither wronged nor harmed? But Taylor thinks matters are more complex because even Epicureans should accept that people's autonomy can be relevant to how they are treated after they die (p. 124–5). Consider Taylor's example. If A promises B that A will do something after B's death, then A infringes on B's autonomy if the promise is insincere, that is, if at the time A promises he does not intend to carry it out. However, if A does not carry out the promise after B has died, the failure does not infringe on B's autonomy (for Epicurean reasons). The infringement comes at the time of the promise, while B is alive, and it comes through the absence of the right intent. Taylor's argument is ingenious. It raises this nice question: assuming A was sincere when he promised, does A have any reason to do what he intended once B is dead and can no longer be harmed or wronged?

Taylor extends the claims of living autonomous people from whatever they may get from promises to an entitlement to have due weight given to their desires about their postmortem bodies. As with promises, any infringement of their autonomy would come about not after they die but before, if the authorities do not intend to give their desires due weight. So concludes Taylor's argument for why Epicureans should not dismiss the bioethical debate about presumed consent. But Taylor's argument has a problem, which lies with ‘due weight’. Why may not the authorities say ‘We intend now to give your desires due weight and that weight is zero because nothing we can do after you die can harm or wrong you (see full-blooded Epicureanism)’. I can see how one could conclude this from Taylor's point: do not make promises you do not intend to keep, and perhaps from that, it follows that you should keep your promises to those now dead. But Taylor has not given a reason of autonomy to solicit people's wishes at all.

Taylor thinks the debates over presumed consent have been needlessly bogged down in assertions about the supposed mistakes various systems would make in either taking organs from those who did not want to donate or failing to take from those who did. His alternative is a two-step procedure: (1) record people's wishes and (2) give them due weight. ‘Due weight’ is unspecified, but since Taylor is an Epicurean and since he contrasts his procedure with requiring either consent or the absence of dissent before retrieval, his sense of due weight must be at the lighter end (p. 120). However, if we leave aside how much weight should be given to people's wishes, Taylor's proceduralism has a number of advantages.

First, Taylor is right that focusing on the procedure gets us away from concentrating too much on mistakes. Indeed, if the procedure is done very well, no mistakes would occur. People's wishes would be known and, if their wishes were to be overridden, it would not be by mistake. However, not everyone's wishes would be recorded in practice, perhaps because they had no wishes to record. The question of a default thus arises—what should be done for null entries? Although Taylor denies it, one relevant consideration might well be the number of mistakes a default would cause. Taylor does show that other considerations besides mistakes are relevant and that the number of mistakes is not decisive but I do not think he shows mistakes to be entirely irrelevant.

We can see a second major advantage in proceduralism, although it is not quite explicit in Taylor. Let us frame the question this way: “what do we owe potential donors when it comes to the retrieval of their organs?” Suppose a system makes it easy to state one's wishes, records them accurately, follows the wishes and has a well-publicized default in the case of null entries. Taylor might well say such a system does enough to respect the autonomy of potential donors. If someone's organs are taken by mistake, that is regrettable but no moral failure (except perhaps on the part of the deceased who should have been more careful). Should we say in such a case that the person's autonomy is diminished? Perhaps, but his/her autonomy has not been infringed upon. Compare this example: hazardous waste must be moved and everyone is warned to keep away and numerous precautions are taken. If someone is exposed nonetheless, that person has been harmed and that is regrettable but he/she had no claim infringed upon. Enough was done to protect the person.3

It is easy to see how one could now construct a case for presumed consent. If enough is done in the procedure, organs could be taken in default cases without failing to respect anyone's autonomy. A lot more needs to be said to make a policy case for presumed consent4 ,5 but Taylor's proceduralism is a helpful and important idea that, on a personal note, clarified my own thinking about opt out systems.