Kidnap a kidney

Organ transplants save lives: 1107 of them in the UK between March 2011 and April 2012. But the demand for transplantable organs greatly exceeds supply. Currently, about ten thousand people in the UK are in need of a transplant and about a thousand die every year while on the waiting list. Some ways of increasing the number of available organs, such as urging people to sign up with the Organ Donor Register, are ethically unproblematic. But others raise ethical issues, or have been rejected on ethical grounds. These ethical objections are the subject of Janet Radcliffe Richards’s admirably lucid book. She believes that some widely accepted objections to organ procurement are based on mistakes in moral reasoning: the ‘careless thought’ that ‘costs lives’. Identifying and analysing these mistakes is one of her aims, but she has a broader purpose as well: to show that, as experts in moral reasoning, philosophers have a unique role in debates about public policy.

As medical technology advances it becomes possible to collect and transfer more and more parts of the body: organs, tissues, blood, gametes and so on. But Radcliffe Richards restricts her attention to the major organs – kidneys, liver, heart, lungs – whose transplantation is most likely to save lives. Her starting point is the proposition that saving someone’s life, or preserving someone’s health, by means of a transplant is an intrinsically good thing. This establishes a rebuttable presumption in favour of any method of procuring organs for transplant. The rebuttal may take the form of an argument against a particular method: against, for example, the suggestion that we should randomly kidnap people off the street to harvest their organs. But the burden of proof lies on the opponents to find some such argument; if those they advance do not survive critical scrutiny, then the initial presumption will stand.

This analytic procedure, Radcliffe Richards contends, enables us to identify the ethically salient factors concerning any proposed means of organ procurement. (She doesn’t deal, except in passing, with the allocation of organs.) She applies the procedure to two practices which have been widely condemned as unethical – allowing the purchase of kidneys from live donors and permitting those who sign up for posthumous donation to direct their organs to specific recipients – and argues that there is no good ethical reason to reject either.

Payment for kidney donation is currently prohibited in the UK, as it is in most of the world, and has been condemned by the World Health Organisation and in the 2008 Declaration of Istanbul on Organ Trafficking and Transplant Tourism. The main objections are well known: those who might be tempted to sell a kidney need to be protected against harming themselves; only the poor would be so tempted, but their consent would be invalid since it would be coerced by their poverty; any purchase of a kidney by the rich from the poor would inevitably be exploitative; payment for organs would foreclose opportunities for altruism; a market in organs would be an offence against human dignity. Radcliffe Richards works through each of these arguments with care and concludes that none of them is sufficient to rebut the initial presumption in favour of procurement.

It is worth looking closely at one of her arguments, to illustrate how her approach works. The most frequent objection to a market in organs is that it would exploit the poor. Radcliffe Richards’s analysis invokes three general requirements of successful argumentation: clarity, consistency and validity. The demand for clarity consists in asking what, exactly, would make the purchase of organs exploitative. Normally, a transaction is deemed exploitative when one party takes advantage of the other’s weak bargaining position to pay them less (or charge them more) for a product or service. But in this case a market transaction between a poor kidney vendor and a rich purchaser would not be exploitative as long as a fair price was being paid (whatever that might be). So there does not seem anything necessarily or inherently exploitative about the poor selling organs to the rich. This conclusion might be avoided by shifting to a different criterion, according to which the exploitation would lie simply in the economic imbalance between seller and buyer. But then the requirement of consistency kicks in, since by that criterion, any purchase of goods or services by the rich from the poor would be equally exploitative. In any case, even if it were somehow possible to make the charge of exploitation stick, it would not follow that the practice should be prohibited. Since prohibition would succeed only in making the poor even worse off, the appropriate solution would be to regulate the market so as to ensure that vendors were paid a fair price.

The conclusion Radcliffe Richards draws is that ‘organ-selling does not in itself directly contravene any of the moral principles that underpin our social organisation.’ Many will find this deeply counterintuitive. Surely, they will feel, there is something wrong with the idea of people mining their bodies in order to lift themselves out of poverty? And they may continue to feel this way even after every attempt to identify just what is wrong with it has failed. Radcliffe Richards acknowledges the deep revulsion that organ-selling arouses, a revulsion that requires explanation even if it has no justification. But one of the most important points she makes is that our moral feelings are not a reliable guide to moral truth. History furnishes countless instances in which the most intense feelings have been harnessed in the service of the most detestable causes. Moral feelings may furnish starting points for ethical inquiry, by provoking us to ask whether they can be rationally defended, but they cannot serve as end points.

If organ-selling were ethically impermissible it would follow that it should be prohibited. The converse, however, does not hold: prohibition might be justified even if there is no ethical objection to the practice. If any of the ethical objections to organ-selling examined by Radcliffe Richards were successful, then a market in organs would simply be rejected. However, if they all fail, further issues need to be resolved before the best policy can be identified. These issues are essentially pragmatic, balancing the risks and benefits of various policy options, especially the possibility of a regulatory scheme which would provide adequate protection for organ sellers (and buyers) while also increasing the supply of organs. Arguments about the individual elements of the best policy will inevitably rely heavily on empirical evidence, including experience in other jurisdictions.

Radcliffe Richards applies the same analytic approach to directed donation by the dead. The current practice in the UK is that a cadaver’s organs must be allocated to whoever is at the top of the waiting list; they cannot be directed, either by the deceased or by their family, to particular recipients. There is in this a curious asymmetry with procurement from the living, where so-called ‘Samaritan’ donations are regarded with suspicion. In short, the living are required to direct their donation while the dead are prohibited from doing so. This principle requiring the impartial distribution of organs from the dead is commonly advanced as an ethical constraint on procurement policy and so is in need of justification. Radcliffe Richards again painstakingly works through the various candidates for such a justification – that directed donation would mean queue jumping, that it would allow for a racist specification of recipients, that it would violate the principle of allocating organs to those in greatest need – and again concludes that none of them is successful.

More fundamentally, she argues that the principle makes the mistake of treating the dead’s organs as though they were public goods whose distribution should be determined by a public body, rather than private goods belonging to someone who has the right to decide what is to be done with them. Everyone regards the estate of the deceased as a private good, or a bundle of private goods, whose posthumous allocation is to be determined, absent any competing claims, by bequest. Where real property is concerned, directed donation is the rule and impartial distribution the exception (it happens in some cases of intestacy). Unwillingness to treat body parts as property in this way may once have been appropriate, when there was no real prospect of their transfer to other parties. But it now makes more sense, Radcliffe Richards argues, to treat organs as the property of the deceased, and so as eligible for bequest as any other property. In that case, directed posthumous donation would become the rule, rather than the exception (though organs could still be bequeathed to a public body for impartial distribution).

This idea of property rights in one’s own body parts unifies the two main parts of Radcliffe Richards’s argument. If such rights are recognised then the presumption shifts in favour both of allowing living donors to sell dispensable organs, such as kidneys, and of allowing posthumous donors to direct the allocation of their organs. It bears repeating that Radcliffe Richards is not (necessarily) advocating a shift of policy in either of these directions. She has dealt only with what she regards as the ethical constraints against such policies and found them wanting. There may be practical problems that would render these policies inadvisable, all things considered, but they would need to be worked through case by case, using all available evidence, and the final judgment might well be different for different jurisdictions. Her claim is just that neither policy would be subject to a decisive ethical objection. Indeed, more positively, there is a strong ethical case, based on the idea that we all own our body parts, in their favour.

Radcliffe Richards’s book is heavy on ethical principle, light on practical policy. Her avoidance of messy practical issues also frees her from having to engage with the masses of empirical data that would be needed to design a workable policy. She conducts her analysis in a straightforward, often colloquial, manner that avoids needless technical complexities. It isn’t easy for philosophers trained in the analytic tradition to combine argumentative rigour with an accessible style, but she succeeds brilliantly.

That said, I still found her reluctance to discuss policy somewhat frustrating. For one thing, it means she fails to provide even the most basic facts about the extent and real costs of the current organ shortage (the figures for the UK I cited earlier were drawn from the NHS Blood and Transplant website, not from her book). As a result, many may not fully appreciate the urgency of the need to increase the supply. It also leads her to overstate the firmness of the distinction between principle and pragmatism which is so central to her analysis. Radcliffe Richards treats ethical constraints on policy as though they were absolute, raising an insurmountable threshold against the practices they condemn. If the constraint on organ-selling could be justified, she says, that would altogether exclude further consideration of a policy permitting a market in organs, and the same would hold for the constraint on directed donation by the dead. Some constraints – such as that which forbids kidnapping people to harvest their organs – are doubtless absolute in this sense. But ethical principles in general, and ethical constraints on organ procurement in particular, need not be absolute and usually are not. Instead, a constraint may raise a threshold which is surmountable if the cost of continuing to respect it becomes sufficiently high. The cost of allowing a thousand people to die every year for want of a transplantable organ might be thought sufficiently high to override some constraints. However this might be, the general point is that a non-absolute constraint against some form of procurement can, indeed must, be traded off against the practical effects of continued compliance. In that case messy pragmatic issues become unavoidable, even to settle the issue of ethical principle.

This last point is academic where the constraints against organ-selling and directed donation are concerned, since Radcliffe Richards argues that such constraints cannot be justified in either case, so that we are left with just the practical policy issues to debate. But it does pertain to the last section of her book, which tackles troubling questions concerning criteria for the determination of death. One familiar ethical constraint is the ‘dead donor rule’: organs may not be taken from living donors, even with their consent, if doing so will hasten their death. A living donor may therefore donate a kidney, but not a heart or liver or lungs (or a second kidney). The rule is uncontroversial in most cases but runs into difficulties where patients in irreversible comas are being maintained by means of ventilators and feeding tubes. Organs are best removed while the blood is still circulating but their removal would seem to violate the dead donor rule, since it would immediately result in the patient’s death. In most jurisdictions, including the UK, this is avoided by allowing death to be declared while ventilation continues, on the basis of the irreversible loss of all brain function (so-called ‘whole-brain death’). But the declaration of death in these cases flies in the face of the patient’s obvious signs of life, including respiration, circulation, excretion etc. It also contradicts the commonsense way in which we describe the disconnection of the ventilator as the removal of life support or as allowing the patient to die.

It is difficult to avoid the conclusion that a counterintuitive criterion for determining death has been tailored to allow for the transplantation of usable organs while avoiding violation of the dead donor rule. That the organs are desperately needed, and can save lives, is beyond dispute. Whether this sleight of hand concerning the determination of death is the best means of achieving this result is not beyond dispute. Another option would be to revert to a much more conservative criterion, according to which death has not occurred until respiration and circulation (whether spontaneous or artificially supported) have irreversibly ceased. In that case, if organ retrieval is to continue to be permitted (as it should) then the dead donor rule will have to be recognised as a non-absolute ethical constraint. Its violation in cases of irreversible loss of consciousness would be justified on the grounds that hastening death by the removal of transplantable organs will do no harm to the organ donor and will be of considerable potential benefit to the recipients – in other words, by means of a mix of principled and pragmatic considerations.

The difficult task remains of designing a procurement policy that is both ethical and capable of reducing the current organ shortage, but one hopes that the process will be informed by Radcliffe Richards’s arguments. If careless thought costs lives, perhaps more careful thought might save some of them.