Journal of Medicine and Philosophy, 40: 263–277, 2015 doi:10.1093/jmp/jhv009
Inquiry in Bioethics and the Philosophy of Medicine: Organ Donation, Defining Death, and Fairness in Distribution VICTOR SAENZ* *Address correspondence to: Victor Saenz, MA, Department of Philosophy, Rice University, 6100 S. Main Street, Houston, TX 77251, USA. E-mail: [email protected]
This issue of the Journal of Medicine and Philosophy brings together fresh essays addressing three main genres of questions: (1) questions about the nature of bioethical inquiry and the relevance of the humanities to medical practice; (2) questions regarding the ethics of organ donation; (3) questions bearing on the application of fairness to the distribution of medical resources. I. WHAT KIND OF INQUIRY IS BIOETHICS? What ought one to expect from philosophical bioethical reflection?1 Should one expect that most parties will agree to the same basic premises and rules of evidence? Will such reflection deliver canonical answers about what it means to be human, and so some canonical answers to our deepest bioethical questions? H. Tristram Engelhardt, Jr. has famously argued over the last decades that the relevant parties have radically different first premises and rules of evidence, and that philosophical reflection not only does not, but simply cannot deliver a common bioethics (see Engelhardt, 1996, 2000, 2014). Engelhardt has argued, recalling the ancient skeptic Agrippa (ca. 1st– 2nd century A.D.) and his pente tropoi (“five modes”), as recorded by Sextus Empiricus (ca. 2nd or 3rd century A.D.) and Diogenes Laertius (ca. 3rd century A.D.) that in attempting to resolve substantive philosophical disagreements, at best the relevant parties will beg the question, argue in a circle, or engage in infinite regress. It is an understatement that each of these is a philosophical faux pas. It is thus that Engelhardt poses a challenge to bioethics and medical humanities programs as they are usually carried out in the secular academy. Important parts of the secular academy seem to presuppose © The Author 2015. Published by Oxford University Press, on behalf of the Journal of Medicine and Philosophy Inc. All rights reserved. For permissions, please e-mail: [email protected]
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the possibility of a unified view of secular morality. Such a presupposition is, in Engelhardt’s view, thoroughly unjustified. The first paper in this issue is the text of Engelhardt’s remarks at his reception of the Life-time Achievement Award from the American Society of Bioethics and Humanities (ASBH), in which he re-states this challenge succinctly. Engelhardt notes that one of his cardinal puzzles was and remains: what is ASBH really about? He writes:
In a world increasingly structured by science and technology, he writes, the humanities were taken to offer us a view about what it means to be truly human. People have an “almost religious hunger for guidance” which science cannot give (Engelhardt, 2015, 278); hence the proliferation of medical humanities programs. Yet, “in a culture in which God is dead, man is dead as well, in the sense of the presence of the canonically human. The humanities are far from unambiguous in their messages or their meanings” (Engelhardt, 2015, 279). In Engelhardt’s view, without God, all one is left with is competing narratives and no way to adjudicate between them; it is all intuitions in the void.2 Yet, he also points to another development in the field over the last few decades: the growth of a bioethics that takes religious commitments seriously, as evinced by, among other things, the journal Christian Bioethics. These are all familiar themes for those who have followed Engelhardt’s philosophical career, but no less urgent for that.3 Next there are three short commentaries by some who have been Engelhardt’s philosophical interlocutors over the years: Laurie Zoloth (2015), Tom Koch (2015), and Nancy King (2015). The reader is invited to see how they each accentuate or respond to different parts of Engelhardt’s challenge. II. PERSPECTIVES ON ORGAN TRANSPLANTATION The contributions by Robert Veatch (2015) and James Stacey Taylor (2015) both concern aspects of the ethics of organ transplantation. Veatch addresses debates about criteria of death and aspects of declaring nonbeating heart donors dead. Taylor aims to refute some recent arguments against organ markets based on moral repugnance. Both of these topics have been vigorously debated in the pages of the Journal of Medicine and Philosophy (e.g., the special issue by Iltis and Cherry, 2010; Radcliffe Richards, 1996; the special issue by Hippen, 2009). These articles add to those conversations.
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The meetings I have attended have made it clear that these groups have not, and do not, represent one particular professional or one particular academic community. I have encountered instead well-articulated but profoundly disparate narratives concerning the projects that should be embraced. The people I met remained separated by different rankings of cardinal human values. (Engelhardt, 2015, 278)
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Brain Death and Organ Procurement
The criteria for death One can distinguish three different families of criteria concerning when a physician can diagnose that a patient is dead.5 The first is the traditional cardiorespiratory criterion of death. Under this criterion, if a patient’s cardiac and respiratory functions have irreversibly ceased, the patient should be diagnosed as dead. This was the commonly accepted view before the advent of modern ventilator technologies in the 1950s. Yet, ventilators made it possible for patients’ cardiac and respiratory functions to continue despite the occurrence of severe brain damage. Were such patients alive or dead? The second criterion for diagnosing death, the neurological or wholebrain criterion, speaks to this question. The neurological criterion states that one should diagnose that a patient is dead if and only if all the functions of the entire brain have irreversibly ceased. This criterion for diagnosing death was first proposed in the 1968 report of the Ad Hoc Committee of Harvard Medical School, chaired by anesthesiologist Henry K. Beecher (see Beecher, 1968). Adopting this criterion of death has dramatic consequences, since it would make possible the harvesting of fresh vital organs even before circulatory and respiratory functions have ceased. Once the person is declared dead the organs can be harvested and then the ventilator turned off.6 Crucially however, current statues on brain death in the United States, which are versions of a model statute proposed in 1981, incorporate both neurological and cardiopulmonary criteria. The 1981 statute from the United Determination of Death Act reads: “An individual who has sustained either (1) irreversible cessation of circulatory or respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including brain stem, is dead. A determination of death must be made in accordance with accepted
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Robert Veatch (2015) critically engages a recent book by Franklin Miller and Robert Truog, Death, Dying, and Organ Transplantation (2012), which is the product of their work over several years,4 and where they reflect on the ethics of harvesting organs from purportedly dead patients. In order properly to understand the dialectic of Veatch with Miller and Truog, one must have a clear sense of (1) the different ways in which one might determine whether a patient is dead and (2) how organ harvesting usually takes place. Having gotten clear on these two points, one will be in a better position to see Miller and Truog’s provocative theses: (a) that, as a matter of fact, physicians routinely kill their patients both when they withdraw life-sustaining treatment (LST) and when they harvest their organs; and (b) that physicians should continue to do such procedures, so that one should abandon the socalled “dead donor rule,” which requires that patients be dead before their organs are harvested. It is these theses that Veatch engages.
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medical standards” (President’s Commission for the Study of Ethical Problems in Biomedicine and Biomedical and Behavioral Research, 1981, 2).7 A third criterion states that not all brain functions are relevant, but only parts of the higher brain (see Engelhardt, 1975; Veatch, 1975). Though the neurological criterion is the majority view, versions of the higher brain and even the traditional cardiopulmonary criterion still have their defenders. With these distinctions in place, one is now in a position to see how organ procurement usually takes place so as to then appreciate Miller and Truog’s proposal.
As Miller and Truog explain, there are two main avenues for organ donation from purportedly dead patients. First, there may be organ donation after a patient is declared dead by the neurological criteria, “permitting the removal of all vital organs, including the heart, under optimal conditions while they are still being perfused with oxygenated blood” (Miller and Truog, 2012, 97). Second, one may have donation after determination of cardiac death (DCD). DCD patients have usually sustained enough brain injury so that they would necessarily be consigned to a ventilator to keep pulmonary functions working, but have not sustained enough injuries to be brain dead. In such cases, the patients will have had a decision made either to withdraw or withhold life-sustaining treatment after such an injury. After a patient becomes pulseless, there is a waiting period, between 2 and 5 minutes, depending on the protocol. Once the waiting period, or “deathwatch” has elapsed, the patient is declared dead and the organs are harvested (cf., Miller and Truog, 2012, 98–99). But DCD donation remains controversial. A main reason is that, although the patient is declared dead after the waiting period, it is less than clear that the patient is actually dead at that time. A patient could very well be resuscitated within that time frame, in which case it is far from obvious that they were dead in the first place. Quite tellingly, the average person is not aware of such distinctions when he or she consents to becoming a organ donor.8 Miller, Truog, and Veatch With these distinctions in place, one can now appreciate Miller and Truog’s argument. A first part of their argument concerns cases of withdrawing lifesustaining treatment. They affirm that, at least since the Quinlan case in 1976, “withdrawing life-sustaining treatment [LST] has been publicly considered a legally and ethically legitimate practice” (Miller and Truog, 2012, 2). Further, “medicine, medical ethics, and the law” endorse the norm that doctors should never intentionally kill their patients, so that “withdrawing LST has been widely regarded as allowing the patient to die and not as causing
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Organ procurement
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the functioning of the brain, by itself, has nothing to do with whether human beings are alive or dead, any more than any other individual organ. The brain is not the integrator of the human organism, without which it ceases to maintain homeostasis and lapses into entropic disintegration. Nor is the brain necessary to perform ‘the vital work’ of the organism. Hence, human beings rendered brainless by massive neurological injury, or even by decapitation, are not dead as long as their bodies continue to function as an organism with the aid of technological intervention… Although the brain is necessary for consciousness, consciousness is not necessary to life, and the permanent absence or loss of consciousness does not constitute death. (Miller and Truog, 2012, 78)
As noted above, physicians often have organs harvested after declaration of brain death. Yet, if the neurological criterion is false, as Miller and Truog argue, such patients are not really dead. Rather, they are killed by having their organs harvested. Third, they argue for a version of the traditional cardiopulmonary criterion. Yet, they also argue that, in the way that the criterion is applied to cases of DCD donation—with a 2–5-minute waiting period, as noted above—the patient cannot, in fact, be known to be dead. This is “because the cessation of circulation is not necessarily irreversible within a very short interval after the absence of breathing and heart beat have been observed” (Miller and Truog, 2012, 99–100). Organ harvesting kills the patient, in their view. In making such arguments, they do not mean “to challenge the ethical legitimacy of these practices,” rather, they think bioethics should be made to “harmonize with the reality of these practices” (Miller and Truog, 2012, vii). Hence, fourth, they argue that we should abandon the dead donor rule. Assuming that, for a patient, there exists (a) a legitimate plan for withdrawing LST and (b) proper consent to procure organs, physicians should be allowed to kill the patient by organ procurement. Key to their argument is the claim that such patients are neither “harmed or wronged…provided that any potential for suffering from the procurement procedure is neutralized by
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death” (Miller and Truog, 2012, 1). An important reason why withdrawing LST is often regarded as merely allowing the patient to die is that the physician’s action is performed with the intention of avoiding some kind of treatment, not in order to kill the patient; the physician’s action merely has the secondary effect of causing death by “the fact that the patient has a disease or injury that makes impossible to live in the absence of LST” (Miller and Truog, 2012, 2). Yet, Miller and Truog provocatively argue that the removal of life-sustaining treatment is in fact causing patient death, not merely allowing them to die. Second, Miller and Truog also argue that the neurological criterion is false. Their own view is that death is defined by irreversible ceasing of the functioning of the organism as whole—and that the neurological criterion does not identify this. The upshot is that:
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adequate anesthesia” (Miller and Truog, 2012, 115). By “harms” they understand “setbacks to a person’s or being’s interests” (Miller and Truog, 2012, 115; cf., Beauchamp and Childress, 2009). One must recall that they have argued that the neurological criterion fails to identify death. Yet Miller and Truog acknowledge that US law recognizes the neurological criterion, and that this criterion is used widely in cases of donation after brain death. Though the criterion, in their view, is false, they grant that it would be very impractical to abandon it immediately. Thus, finally, they propose an account of legal fictions, under which the neurological criterion would be classified as a fiction. The criterion is a fiction, but a useful fiction, they claim. Veatch agrees with Miller and Truog’s claim that “current brain or circulatory death pronouncements misidentif[y] the biologically dead” (Veatch, 2015). However, Veatch takes issue with almost every one Miller and Truog’s central arguments. First, Veatch grants that Miller and Truog are surely right that doctors “cause” the death of such patients if by “cause” we merely mean that they “are causal factor.” Yet this is a very small concession, says Veatch, since not all causal roles are equal. Some causal roles are unacceptable—such as a physician unilaterally deciding to withdraw LST—whereas others are considered widely acceptable, such as foregoing excessive treatment in accordance with the wishes of the patient. Further, the physician is one among many causal factors, which might include, for example, ministers, surrogates, family members, friends, and the like. Quite crucially, says Veatch, Miller, and Truog fail to give sufficient attention to the Doctrine of Double Effect—they “devote a short three-and-a-half pages” (Veatch, 2015, 294)—under which one can distinguish between being a mere causal factor in a foreseen but unintended death and being a causal agent who intends to bring about death. Veatch notes that they must establish convincingly that there is “bright line differences between intended and merely foreseen roles in causing death,” and it is not clear they have done that (Veatch, 2015, 295). Concerning Miller and Truog’s rejection of the dead donor rule, one must recall that, in Miller and Truog’s view, assuming that patients meet proper criteria—as stated above—physicians should be allowed to kill them by organ procurement. Veatch, however, takes issue with their claim that patients are neither “harmed or wronged.” Although Miller and Truog “make a good case” for the claim that such patients are not harmed, it is less clear that there is no wrong involved (Veatch, 2015, 303). For example, a Kantian or those with religious epistemologies might hold that such a killing constitutes a wrong. Although Veatch agrees with Miller and Truog’s rejection of the neurological criterion, he denies that it is a mere legal fiction. It is not a fiction, says Veatch, because there exist different meanings of the word “death” and the neurological criterion seems to be tracking one of these. Veatch raises
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a proposal that he has argued for in the past: that we simply acknowledge a different, “social” meaning of death, as “applied to the category of beings who no longer have full moral standing as members of the human community with all the rights of that community” (Veatch, 2015; see Veatch 1975, 2003). The neurological criterion is not a fiction, but is tracking that someone has lost full moral standing. Though Miller and Truog’s position is a minority view, it will surely continue to spark much debate. Moral Disgust
concerns must shift from [persons’] raw feelings to the justification of these feelings. Despite Kass’s claim that any such rationalization of one’s feelings of moral repugnance would be “suspect,” it instead appears that not only is such rationalization necessary for the views of the proponents of arguments from repugnance to carry any weight at all—but that without it we have little reason to accept them. (Taylor, 2015, 316–7)
Yet, Rivera-Lopez’s (2006) arguments seem to offer further reasons for thinking that there are, indeed, good reasons behind our moral distress at the prospect of legalizing organ markets. His strategy is “to show that some kinds of arguments offered in favour of legalization are in an important, albeit limited sense, illegitimate” and that “[t]his illegitimacy helps explain why legalisation is a source of rational moral distress, even though it might
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The wisdom—or illegitimacy—of moral disgust in the context of discussions of organ markets is the subject of the next contribution, by James Stacey Taylor (2015). An immediate response to the idea of organ markets is sometimes repugnance, disgust. There seems to be a sense that there is something deeply wrong about exchanging our bodily parts for financial incentives—or so some contend. In this vein, Leon Kass writes regarding this emotive reaction that “[i]n crucial cases…repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it” (Kass, 1997; see Kass, 2002). Taylor (2015) challenges the wisdom of such repugnance-based arguments against organ markets. Specifically, he challenges moral repugnance arguments by both Leon Kass (2002) and Eduardo Rivera-Lopez (2006). Kass takes moral repugnance to disclose the immorality of organ markets; such repugnance, in his view, points to the immorality of this practice. However, it does not provide a discursive rational argument for such immorality—nor is it meant to. Yet, Taylor points out, persons’ views about what is and what is not morally repugnant both change over time and vary considerably. It is not clear how one should decide among such views. Hence, some of the important questions moral repugnance proponents must answer are: whose repugnance matters and in which circumstances, and whether such repugnance is one that arises out of moral considerations. But in order to answer such questions, repugnance proponents will need to give discursive arguments to defend their positions. Contra Kass’s project, Taylor notes:
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not be wrong all things considered” (Rivera-Lopez, 2006, 41). There are two powerful arguments that might be offered in favor of organ markets, says Rivera-Lopez. First, one has the consequentialist argument. Roughly, the argument goes, one should allow organ markets because this would promote the greater good—for example, there would be less scarcity of organs for transplantation and many lives would be saved (Rivera-Lopez, 2006, 41). Second one has the autonomy argument. It would be autonomy-enhancing, it is argued, to allow persons to sell their organs, all things considered (Rivera-Lopez, 2006, 42). Rivera-Lopez goes on to argue that the conditions under which organ markets are most likely to flourish are also the conditions under which such arguments are illegitimate for political authorities to make. He does so in the following way. Rivera-Lopez claims that “[i]t seems clear” that organ markets would most likely flourish under unjust rather than just conditions (Rivera-Lopez, 2006, 43). To see why he would think this, one must see what he stipulates form jointly sufficient conditions for injustice: (1) that the situation involve severe suffering for the agent; (2) that the agent’s situation is not unavoidable, in the sense that there are political agents who could act to remove or at least mitigate the agent’s suffering; (3) that these political agents fail to fulfill their obligations to perform those actions (Rivera-Lopez, 2006, 43). These three are meant to be merely sufficient conditions for injustice. Further, he affirms that this is an extremely weak conception of justice; it does not dictate what actions political authorities should do to remedy the injustice. Moreover, it is compatible with both consequentialist and autonomy-based accounts of justice, “since it is extremely unlikely that a situation where some people suffer extreme poverty will be optimal” and since such injustices are “incompatible with respecting, promoting or recognizing” an agent’s autonomy, since the agent “is deprived of options that would improve her ability to choose a meaningful life plan” (Rivera-Lopez, 2006, 43).9 Organ markets are more likely to flourish under unjust conditions, in his view, for the following reasons. He is assuming that, in most cases, people would only agree to sell their organs under conditions of severe deprivation; they would sell their organs as a means to mitigate such extreme deprivation. If people were not in such extreme deprivation, he claims, they would rarely decide to sell their organs. As support for this he cites the empirical claim that “[i]n fact, actual (black) organ markets do not arise in rich countries, and this cannot be only due to better enforcement of the prohibition” (Rivera-Lopez, 2006, 44). Under such unjust conditions, he will go on to argue, it becomes illegitimate for those who fail to fulfill their obligations to make either the consequentialist or autonomy arguments noted above. After presenting some arguments from intuition, Rivera-Lopez presents his systematic argument for such an illegitimacy by drawing from Lynne McFall’s (1987) account of the virtue of integrity. An essential component of integrity is consistency between words and actions. For example, if an agent is
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mendacious, he may lose the authority to teach his children about truth-telling.10 This loss occurs, he affirms, because of an inconsistency between the agent’s words and actions. It would evince a lack of integrity for an agent to do so. Most relevant to their argument, agents can lose the authority “to support or justify a purported action via certain kinds of reasons or arguments” (Rivera-Lopez, 2012, 48). Once again, he claims, such cases would evince a lack of integrity and would show a contradiction between an agent’s words and his actions, a practical contradiction. Regarding arguments for organ markets, one might think of a political authority trying to make such an argument under what Rivera-Lopez claims are unjust conditions. Such a political authority, while being responsible for the deprivation of certain citizens, might argue for the legalization of organ markets on consequentialist grounds, arguing that it would promote the greatest benefits for all. Yet this would evince a contradiction between the authority’s words and actions, insofar as they are arguing for promoting the consequentially best state of affairs while failing to produce it. If “[p]olitical agents fail to produce the consequentially optimal state of affairs, and then they promote a measure alleging that it benefits all (that is, that it produces the best state of affairs for all, including the seller),” there is a practical contradiction (2012, 48–49). It would evince a lack of integrity on the authority’s part. Mutatis mutandis a similar kind of practical contradiction occurs if such political authorities were to cite the autonomy argument. Ultimately, in Rivera-Lopez’ view, the moral distress we feel at the promotion of the legalization of organ sales by appeal to the autonomy of the individual or the greater good of the community is rational, since such distress is tracking the practical contradictions just described. The distress we feel is distress about the inconsistency between the person’s words and his actions. While granting the sophistication in Rivera-Lopez’ arguments, Taylor offers a critique. Most saliently, Taylor argues that it is less-than-clear that the distress we feel is about organ markets specifically and not merely about inconsistent propositions. For example, what is not to keep the distress we feel from arising mainly from inconsistent propositions, regardless of their content? Further, it is less than clear in the case of organ sales that distress is felt because of an inconsistency. The reason is that people often present arguments for “moral positions that do not comport with their everyday behavior without this leading others to feel moral distress” (Taylor, 2015, 323). Yet people do not routinely feel moral distress at the arguments of inconsistent vegetarians or inconsistent consequentialists, despite the fact that there is a lack of integrity of the kind Rivera-Lopez claims, says Taylor. Rather, it seems that in the case of organ sales, says Taylor, the cause of the moral distress is not inconsistency but the proposal itself. With all that in view, affirms Taylor, one must attend to careful, discursive arguments about the proposal itself—not merely to instinctive reactions—if the debate about the moral status of organ markets is to advance.
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III. FAIRNESS AND MEDICAL RESOURCES
Organ Distribution Scandals Of a recent scandal in organ distribution in Germany Annette Dufner and John Harris write: The physicians involved in the German scandal that affected clinics in Göttingen, Regensburg and Münich had for years deliberately entered misleading data in their waiting list patients’ files. As a result, their patients moved further up the priority list for liver transplants than they would have otherwise. (Dufner and Harris, 2015, 329)
When this became known available organs decreased by 40% toward the end of 2012 and numbers have continued to decline since (Dufner and Harris, 2015, 329; cf., Der Speigel, 2012). It seems that many who had originally chosen to donate decided that, in light of such scandals, they should withdraw. Harris and Dufner address whether this is the morally appropriate response. Among the most morally relevant considerations, one finds the following. Is it not unjust for a person to receive an organ through manipulated means, insofar as that person is placed at distributive advantage over others in the distribution system? How relevant is the consideration that the reception of an organ outside of current practice or regulation might bring about the death of a person who would have received this organ had regulations been followed? And yet, is it not the case that, in refusing to be a posthumous donor, one is failing to save lives that would otherwise be saved, however unjust the distribution scheme might be? Thus, for the potential donor, this seems to raise a dilemma: “become a willing partner in either wrongful allocation of organs on the one hand or in unnecessary deaths on the other” (Dufner and Harris, 2015, 332).
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Egalitarian concerns for fairness seem to find their contemporary canonical formulation in John Rawls’ (1921–2002) A Theory of Justice (Rawls, 1971). Rawls was aiming to find principles of distributive justice that could be supported by rational, overlapping consensus, despite peoples’ disparate and many times mutually inconsistent conceptions of the good. In the spirit of Rawls, our last two contributions both attend to a concern for fairness in the distribution of medical resources. Annette Dufner and John Harris (2015) continue the theme of organ donation and address a recent organ distribution scandal that surfaced in Germany, in which it was shown that several physicians systematically dismissed considerations of fairness in favor of their own patients in transplant waiting lists. Finally, Andreas Albertsen (2015) aims to elucidate what a particular understanding of fairness demands in an under-discussed area of bioethics: oral health. He does so by way of the prominent luck egalitarian theory of distributive justice.
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Luck Egalitarianism and Oral Health In our last contribution, Andreas Albertsen (2015) seeks to apply luck egalitarianism to oral health. Luck egalitarianism affirms that “distributions are just if, and only if, how well people fare relative to others reflects their exercises of responsibility” (Albertsen, 2015, 342; see Lippert-Rasmussen, 1999; Knight, 2009). Yet, the theory is often chided for its harsh implications, since it seems to hold that people should not be compensated for their imprudent choices. However, several luck egalitarians have attempted to meet this objection, arguing that, given certain conditions, people should indeed be compensated for their imprudent choices. Albertsen uses the luck egalitarian framework to consider three sets of related questions as relevant to oral health, specifically, to caries and periodontal disease. First, how should one ascertain whether and to what degree a person is responsible for his choices as relevant to the development of
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Dufner and Harris reflect on these considerations. They first consider the worry that a donor’s organ may go to a patient who is complicit in being unjustly moved up the list. Against this claim, they point out that the risk of this occurring is fairly small, and that the benefit derived from the good of donating “outweighs the comparatively small moral risk involved” (Dufner and Harris, 2015, 332). They also appeal to the distinction between foreseeing and intending: a donor who wants to abide by fairness might foresee that his organ might go to the wrong recipient, while not intending this to happen. Second, they consider innocent patients who nevertheless receive an organ through an unjust procedure—perhaps because of “overambitious physicians who wanted to advance the interests of their own patients” (Dufner and Harris, 2015, 335). Indeed, they note, it is most likely that this was precisely the problem. Granted that the system as practiced has been discovered to be unfair, Dufner and Harris raise the question: is fairness so important that one must withhold donation, in spite of saving less lives? That fairness is so important that large numbers of lives may be sacrificed for its sake is, they point out, a thesis famously advanced by John Taurek (1977). Further, they note that this view is adopted by several prominent German philosophers such as Weyma Lubbe (2005, 2008, 2009), Jens Timmermann (2004), and Kirsten Meyer (2006). Yet, they emphasize that appeals to equality notoriously can produce serious leveling down effects; like so, if a person withholds consent from donating this “will produce a leveling-down effect in the number of lives saved” (Dufner and Harris, 2015, 337). Ultimately they argue that, all things considered, “what should matter primarily is that people are rescued,” that “not being a donor is a missed chance, since organs will go to waste instead of rescuing someone” (Dufner and Harris, 2015, 339).
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IV. CONCLUSION The essays in this issue have returned us to questions about the nature of bioethical inquiry and the relevance of the humanities to medical practice; to questions about the ethics of organ procurement; and to questions of fairness in the distribution of medical resources. Engelhardt (2015) forces his interlocutors to confront the reality of moral diversity and challenges the attempt to provide a canonical secular bioethics; Zoloth (2015), King (2015), and Koch (2015) in different ways acknowledge this challenge. Veatch (2015) argues that, despite Miller and Truog’s (2012) many insights, they fail adequately to make key distinctions, such as the different ways one may be a part of a causal chain, the distinction between “harm” and “wrong,” and the different meanings of the word “death.” Taylor (2015) moves forward the debate about organ markets by carefully challenging arguments from moral disgust. One must establish, he argues, what precisely it is that grounds our disgust, and whether that is relevant to the ethics of organ markets. Dufner and Harris (2015) argue that though fairness in distribution is an important moral principle, it is not so important that it should justify serious leveling-down consequences. What matters ultimately, they argue, is whether peoples’ lives are being saved. Finally, Albertsen (2015) argues that, in egalitarian terms, people are in large part responsible for their oral health and so should not be compensated. The reader is here invited to draw from these authors’ insights and to critically reflect on these questions as well. Whether such debates will be settled in the medical practice that informs our bioethical reflection, only time will tell.
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these diseases? Second, assuming people are responsible, do the several arguments that luck egalitarians have recently offered for compensating people despite their responsibility actually hold? Third, given the answers to the first two questions, what would a luck egalitarian compensation system look like for oral health? To address the first question, Albertsen invokes the work of the prominent egalitarian John Roemer. One should note, as Albertsen does, that Roemer himself was hesitant to apply his system to healthcare, which is precisely what Albertsen does (see Albertsen, 2015, n9). To the second, Albertsen addresses the arguments of several egalitarians and concludes that only under limited conditions should we compensate people for outcomes for which they are responsible. Third, Albertsen sketches several features of what a luck egalitarian compensation system would look like. For example, he notes that “one’s place on the waiting list [should be allocated] in accordance with whether or not one is deemed to be responsible for one’s level of oral health” (Albertsen, 2015, 355). He also proposes that those who are responsible for their own oral ill health should be required to provide out-of-pocket payments.
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NOTES
ACKNOWLEDGMENTS I thank H. Tristram Engelhardt, Jr. for helpful conversations about the topics here addressed.
REFERENCES Albertsen, A. 2015. Tough luck and tough choices: Applying luck egalitarianism to oral health. Journal of Medicine and Philosophy 40(3):342–362.
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1. One might distinguish philosophical bioethical reflection from theological or other kinds of bioethical reflection. 2. One might agree with Engelhardt that relevant parties in many important cases do disagree about basic premises and rules of evidence, and so find themselves in intractable disagreements. Yet this need not warrant the conclusion that philosophical inquiry cannot deliver both true answers and a way to adjudicate between competing narratives. Alasdair MacIntyre very much agrees with Engelhardt about the first, yet resists his conclusion on philosophical grounds; see quite explicitly MacIntyre (2009), and also MacIntyre (1977, 1988). 3. For a recent discussion of these themes in Engelhardt’s work in an explicitly religious context, see Bishop (2014). 4. Part of this work was presented in this Journal; see Miller and Truog (2010). For a response, also in this Journal, see Birch (2013). 5. One must distinguish between (a) criteria for diagnosing death and (b) definitions of death. The former are used in a clinical setting to determine when death has taken place. Yet, such criteria need not be a definition of what death actually is. 6. For an overview of the history of the neurological criteria between 1967 and 1981, see Pernick (1999). As Martin Pernick notes, “the precise role of transplantation in shaping the Harvard criteria remains very controversial” (Pernick, 1999, 9). Yet, in his view, Beecher “wanted not only to promote organ donation, but also to protect the profession against transplantation’s critics. He hoped the Harvard criteria would not only increase the supply of organs but, more broadly, defend the entire medical profession against the public perception that transplant surgeons were organ-stealing killers” (Pernick, 1999, 9). As Pernick also notes, Beecher’s concerns were mainly practical; he saw the project of the criteria of death as mainly the province of physicians and had little patience for the conceptual concerns of philosophers or the legal concerns of lawyers (Pernick, 1999, 13). Hence, Beecher was less concerned with a definition of death and much more concerned with criteria for diagnosing it. As Pernick puts it, “If two opposing concepts of death both were compatible with his criteria, Beecher saw that as objective confirmation of the criteria, not a troublesome conceptual confusion” (Pernick, 1999, 12–13). 7. For a history of this bifurcated standard in the United States, see Capron (1999). 8. Less relevant for Miller and Truog’s purposes, one can also procure organs from nonbeating heart donors where life support is not deliberately withdrawn. For example, a patient might come into a hospital after a heart attack at the point of death. After resuscitation efforts fail, physicians might attempt to harvest the patient’s organs. 9. Rivera-Lopez does acknowledge, however, that his conception of justice, though very weak, would not seem to be compatible with certain kinds of libertarian views (Rivera-Lopez, 2006, 51, n11). One thinks of Robert Nozick (1974), who argues that the correct view of the state is the minimal state, whose obligations are “limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts” and the like (Nozick, 1974, ix). If the kinds of “severe suffering and deprivation” that Rivera-Lopez has in mind go beyond the duties of the minimal state, in Nozick’s view, however capable the state might be of mitigating such or removing such circumstances, it is not the state’s obligation. Condition (3) would not hold, in Nozick’s view. 10. Rivera-Lopez does not distinguish between different senses of “authority.” A person might be “in authority,” in virtue of some kind of office, such as being the father of a family. A person might also have “authority” in the sense of credibility. A father of a family might lose authority in the sense of “credibility,” but he surely remains “in authority” in the sense of being the father.
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Beauchamp, T. L. and J. Childress. 2009. Principles of Biomedical Ethics. 6th ed. New York: Oxford University Press. Beecher, H. 1968. A definition of irreversible coma. Journal of the American Medical Association 205:337–40. Birch, S. C. M. 2013. The dead donor rule: A defense. Journal of Medicine and Philosophy 38(4):426–40. Bishop, J., ed. 2014. Reclaiming the Christianity in Christian Bioethics. Special issue, Christian Bioethics 20(2). Capron, A. M. 1999. The bifurcated legal standard for determining death: Does it work? In The Definition of Death: Contemporary Controversies, eds. S. J. Youngner, R. M. Arnold, and R. Schapiro, 117–36. Baltimore, MD: Johns Hopkins University Press. Der Speigel. August 3, 2012. Falsified test results: Organ transplant scandal shocks Germany. Der Speigel [On-line]. Available: http://www.spiegel.de/international/germany/organtransplant-scandal-shocks-germany-a-848016.html (accessed February 25, 2015). Dufner, A. and J. Harris. 2015. Organ distribution scandals: Do they provide good reasons to refuse posthumous donation? Journal of Medicine and Philosophy 40(3):328–341. Engelhardt, H. T. 1975. Defining death: A philosophical problem for medicine and law. American Review of Respiratory Disease 112:587–90. ———. 1996. Foundations of Bioethics. New York: Oxford University Press. ———. 2000. Foundations of Christian Bioethics. Amsterdam, The Netherlands: Swets & Zeitlinger Publishers. ———. 2014. Dopo Dio: Morale e bioetica in un mondo laico. Italy: Claudiana. ———. 2015. Courage: Facing and living with moral diversity. Journal of Medicine and Philosophy 40(3):278–280. Hippen, B., ed. 2009. Symposium on a regulated market in transplantable organs. Special issue, Journal of Medicine and Philosophy 34(6). Iltis, A. and M. Cherry, eds. 2010. Revisiting death: Organ donation and the dead donor rule. Special issue, Journal of Medicine and Philosophy 35(3). Kass, L. 1997. The wisdom of repugnance. The New Republic 20:17–26. ———. 2002. Life, Liberty, and the Defense of Dignity: The Challenge for Bioethics. San Francisco, CA: Encounter Books. King, N. M. 2015. The importance of amicable and productive disagreement. Journal of Medicine and Philosophy 40(3):286–288. Knight, C. 2009. Luck Egalitarianism. Edinburgh: Edinburgh University Press. Koch, T. 2015. On Tristram Engelhardt. Journal of Medicine and Philosophy 40(3):284–285. Lippert-Rasmussen, K. 1999. Arneson on equality of opportunity for welfare. Journal of Political Philosophy 7:478–87. Lubbe, W. 2005. Numbers scepticism, pairwise comparison and common-sense morality: Comment on Michael Otsuka. In Gleichheit und Gerechtigkeit in der modernen Medizin, eds. O. Rauprich, G. Marckmann, and J. Vollmann, 159–66. Paderborn: Mentis. ———. 2008. Taurek’s no worse claim. Philosophy and Public Affairs 36:69–85. ———. 2009. The aggregation argument in the numbers debate. In Handeln mit Bedeutung und Handeln mit Gewalt, eds. C. Fehige, C. Lumer, and U. Wessels, 406–21. Paderborn: Mentis. MacIntyre, A. 1977. Epistemological crises, dramatic narrative, and the philosophy of science. The Monist 60(4):453–72. ———. 1988. Whose Justice? Which Rationality? South Bend, IN: University of Notre Dame Press.
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———. 2009. Intractable moral disagreements. In Intractable Disputes About the Natural Law: Alasdair Macintyre and Critics, ed. L. Cunningham, 1–52. Washington, DC: CUA Press. McFall, L. 1987. Integrity. Ethics 98:5–20. Meyer, K. 2006. How to be consistent without saving the greater number. Philosophy and Public Affairs 34:136–46. Miller, F. and R. Truog. 2010. The dead donor rule: Can it withstand critical scrutiny? Journal of Medicine and Philosophy 35:299–312. ———. 2012. Death, Dying, and Organ Transplantation. New York: Oxford University Press. Nozick, R. 1974. Anarchy, State, Utopia. New York: Basic Books. Pernick, M. S. 1999. Brain death in a cultural context: The reconstruction of death, 1967– 1981. In The Definition of Death: Contemporary Controversies, eds. S. J. Youngner, R. M. Arnold, and R. Schapiro, 3–33. Baltimore, MD: Johns Hopkins University Press. President’s Commission for the Study of Ethical Problems in Biomedicine and Biomedical and Behavioral Research. 1981. Defining Death: A Report on the Medical, Legal, and Ethical Issues in the Determination of Death. Washington, D.C.: Government Printing Office. Radcliffe Richards, J. 1996. Nepharious goings on Kidney Sales and Moral Arguments. Journal of Medicine and Philosophy 21:375–416. Rawls, J. 1971. A Theory of Justice. Cambridge, MA: Belknap Press. Rivera-Lopez, E. 2006. Organ sales and moral distress. Journal of Applied Philosophy 23:41–52. Taurek, J. 1977. Should the numbers count? Philosophy and Public Affairs 6:293–316. Taylor, J. S. 2015. Moral repugnance, moral distress, and organ sales. Journal of Medicine and Philosophy 40(3):312–327. Timmermann, J. 2004. The individualist lottery, how people count but not their numbers. Analysis 64:106–112. Veatch, R. 1975. The whole-brain-oriented concept of death: An outmoded philosophical formulation. Journal of Thanatology 3:13–30. ———. 2003. The dead donor rule: True by definition. American Journal of Bioethics 3:10–11. ———. 2015. Killing by organ procurement: Brain death and legal fictions. Journal of Medicine and Philosophy 40(3):289–311. Zoloth, L. 2015. Citizenship: Bioethics and the duties of teachers. Journal of Medicine and Philosophy 40(3):281–283.
Inquiry in Bioethics and the Philosophy of Medicine: Organ Donation, Defining Death, and Fairness in Distribution VICTOR SAENZ* *Address correspondence to: Victor Saenz, MA, Department of Philosophy, Rice University, 6100 S. Main Street, Houston, TX 77251, USA. E-mail: [email protected]
This issue of the Journal of Medicine and Philosophy brings together fresh essays addressing three main genres of questions: (1) questions about the nature of bioethical inquiry and the relevance of the humanities to medical practice; (2) questions regarding the ethics of organ donation; (3) questions bearing on the application of fairness to the distribution of medical resources. I. WHAT KIND OF INQUIRY IS BIOETHICS? What ought one to expect from philosophical bioethical reflection?1 Should one expect that most parties will agree to the same basic premises and rules of evidence? Will such reflection deliver canonical answers about what it means to be human, and so some canonical answers to our deepest bioethical questions? H. Tristram Engelhardt, Jr. has famously argued over the last decades that the relevant parties have radically different first premises and rules of evidence, and that philosophical reflection not only does not, but simply cannot deliver a common bioethics (see Engelhardt, 1996, 2000, 2014). Engelhardt has argued, recalling the ancient skeptic Agrippa (ca. 1st– 2nd century A.D.) and his pente tropoi (“five modes”), as recorded by Sextus Empiricus (ca. 2nd or 3rd century A.D.) and Diogenes Laertius (ca. 3rd century A.D.) that in attempting to resolve substantive philosophical disagreements, at best the relevant parties will beg the question, argue in a circle, or engage in infinite regress. It is an understatement that each of these is a philosophical faux pas. It is thus that Engelhardt poses a challenge to bioethics and medical humanities programs as they are usually carried out in the secular academy. Important parts of the secular academy seem to presuppose © The Author 2015. Published by Oxford University Press, on behalf of the Journal of Medicine and Philosophy Inc. All rights reserved. For permissions, please e-mail: [email protected]
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the possibility of a unified view of secular morality. Such a presupposition is, in Engelhardt’s view, thoroughly unjustified. The first paper in this issue is the text of Engelhardt’s remarks at his reception of the Life-time Achievement Award from the American Society of Bioethics and Humanities (ASBH), in which he re-states this challenge succinctly. Engelhardt notes that one of his cardinal puzzles was and remains: what is ASBH really about? He writes:
In a world increasingly structured by science and technology, he writes, the humanities were taken to offer us a view about what it means to be truly human. People have an “almost religious hunger for guidance” which science cannot give (Engelhardt, 2015, 278); hence the proliferation of medical humanities programs. Yet, “in a culture in which God is dead, man is dead as well, in the sense of the presence of the canonically human. The humanities are far from unambiguous in their messages or their meanings” (Engelhardt, 2015, 279). In Engelhardt’s view, without God, all one is left with is competing narratives and no way to adjudicate between them; it is all intuitions in the void.2 Yet, he also points to another development in the field over the last few decades: the growth of a bioethics that takes religious commitments seriously, as evinced by, among other things, the journal Christian Bioethics. These are all familiar themes for those who have followed Engelhardt’s philosophical career, but no less urgent for that.3 Next there are three short commentaries by some who have been Engelhardt’s philosophical interlocutors over the years: Laurie Zoloth (2015), Tom Koch (2015), and Nancy King (2015). The reader is invited to see how they each accentuate or respond to different parts of Engelhardt’s challenge. II. PERSPECTIVES ON ORGAN TRANSPLANTATION The contributions by Robert Veatch (2015) and James Stacey Taylor (2015) both concern aspects of the ethics of organ transplantation. Veatch addresses debates about criteria of death and aspects of declaring nonbeating heart donors dead. Taylor aims to refute some recent arguments against organ markets based on moral repugnance. Both of these topics have been vigorously debated in the pages of the Journal of Medicine and Philosophy (e.g., the special issue by Iltis and Cherry, 2010; Radcliffe Richards, 1996; the special issue by Hippen, 2009). These articles add to those conversations.
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The meetings I have attended have made it clear that these groups have not, and do not, represent one particular professional or one particular academic community. I have encountered instead well-articulated but profoundly disparate narratives concerning the projects that should be embraced. The people I met remained separated by different rankings of cardinal human values. (Engelhardt, 2015, 278)
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Brain Death and Organ Procurement
The criteria for death One can distinguish three different families of criteria concerning when a physician can diagnose that a patient is dead.5 The first is the traditional cardiorespiratory criterion of death. Under this criterion, if a patient’s cardiac and respiratory functions have irreversibly ceased, the patient should be diagnosed as dead. This was the commonly accepted view before the advent of modern ventilator technologies in the 1950s. Yet, ventilators made it possible for patients’ cardiac and respiratory functions to continue despite the occurrence of severe brain damage. Were such patients alive or dead? The second criterion for diagnosing death, the neurological or wholebrain criterion, speaks to this question. The neurological criterion states that one should diagnose that a patient is dead if and only if all the functions of the entire brain have irreversibly ceased. This criterion for diagnosing death was first proposed in the 1968 report of the Ad Hoc Committee of Harvard Medical School, chaired by anesthesiologist Henry K. Beecher (see Beecher, 1968). Adopting this criterion of death has dramatic consequences, since it would make possible the harvesting of fresh vital organs even before circulatory and respiratory functions have ceased. Once the person is declared dead the organs can be harvested and then the ventilator turned off.6 Crucially however, current statues on brain death in the United States, which are versions of a model statute proposed in 1981, incorporate both neurological and cardiopulmonary criteria. The 1981 statute from the United Determination of Death Act reads: “An individual who has sustained either (1) irreversible cessation of circulatory or respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including brain stem, is dead. A determination of death must be made in accordance with accepted
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Robert Veatch (2015) critically engages a recent book by Franklin Miller and Robert Truog, Death, Dying, and Organ Transplantation (2012), which is the product of their work over several years,4 and where they reflect on the ethics of harvesting organs from purportedly dead patients. In order properly to understand the dialectic of Veatch with Miller and Truog, one must have a clear sense of (1) the different ways in which one might determine whether a patient is dead and (2) how organ harvesting usually takes place. Having gotten clear on these two points, one will be in a better position to see Miller and Truog’s provocative theses: (a) that, as a matter of fact, physicians routinely kill their patients both when they withdraw life-sustaining treatment (LST) and when they harvest their organs; and (b) that physicians should continue to do such procedures, so that one should abandon the socalled “dead donor rule,” which requires that patients be dead before their organs are harvested. It is these theses that Veatch engages.
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medical standards” (President’s Commission for the Study of Ethical Problems in Biomedicine and Biomedical and Behavioral Research, 1981, 2).7 A third criterion states that not all brain functions are relevant, but only parts of the higher brain (see Engelhardt, 1975; Veatch, 1975). Though the neurological criterion is the majority view, versions of the higher brain and even the traditional cardiopulmonary criterion still have their defenders. With these distinctions in place, one is now in a position to see how organ procurement usually takes place so as to then appreciate Miller and Truog’s proposal.
As Miller and Truog explain, there are two main avenues for organ donation from purportedly dead patients. First, there may be organ donation after a patient is declared dead by the neurological criteria, “permitting the removal of all vital organs, including the heart, under optimal conditions while they are still being perfused with oxygenated blood” (Miller and Truog, 2012, 97). Second, one may have donation after determination of cardiac death (DCD). DCD patients have usually sustained enough brain injury so that they would necessarily be consigned to a ventilator to keep pulmonary functions working, but have not sustained enough injuries to be brain dead. In such cases, the patients will have had a decision made either to withdraw or withhold life-sustaining treatment after such an injury. After a patient becomes pulseless, there is a waiting period, between 2 and 5 minutes, depending on the protocol. Once the waiting period, or “deathwatch” has elapsed, the patient is declared dead and the organs are harvested (cf., Miller and Truog, 2012, 98–99). But DCD donation remains controversial. A main reason is that, although the patient is declared dead after the waiting period, it is less than clear that the patient is actually dead at that time. A patient could very well be resuscitated within that time frame, in which case it is far from obvious that they were dead in the first place. Quite tellingly, the average person is not aware of such distinctions when he or she consents to becoming a organ donor.8 Miller, Truog, and Veatch With these distinctions in place, one can now appreciate Miller and Truog’s argument. A first part of their argument concerns cases of withdrawing lifesustaining treatment. They affirm that, at least since the Quinlan case in 1976, “withdrawing life-sustaining treatment [LST] has been publicly considered a legally and ethically legitimate practice” (Miller and Truog, 2012, 2). Further, “medicine, medical ethics, and the law” endorse the norm that doctors should never intentionally kill their patients, so that “withdrawing LST has been widely regarded as allowing the patient to die and not as causing
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Organ procurement
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the functioning of the brain, by itself, has nothing to do with whether human beings are alive or dead, any more than any other individual organ. The brain is not the integrator of the human organism, without which it ceases to maintain homeostasis and lapses into entropic disintegration. Nor is the brain necessary to perform ‘the vital work’ of the organism. Hence, human beings rendered brainless by massive neurological injury, or even by decapitation, are not dead as long as their bodies continue to function as an organism with the aid of technological intervention… Although the brain is necessary for consciousness, consciousness is not necessary to life, and the permanent absence or loss of consciousness does not constitute death. (Miller and Truog, 2012, 78)
As noted above, physicians often have organs harvested after declaration of brain death. Yet, if the neurological criterion is false, as Miller and Truog argue, such patients are not really dead. Rather, they are killed by having their organs harvested. Third, they argue for a version of the traditional cardiopulmonary criterion. Yet, they also argue that, in the way that the criterion is applied to cases of DCD donation—with a 2–5-minute waiting period, as noted above—the patient cannot, in fact, be known to be dead. This is “because the cessation of circulation is not necessarily irreversible within a very short interval after the absence of breathing and heart beat have been observed” (Miller and Truog, 2012, 99–100). Organ harvesting kills the patient, in their view. In making such arguments, they do not mean “to challenge the ethical legitimacy of these practices,” rather, they think bioethics should be made to “harmonize with the reality of these practices” (Miller and Truog, 2012, vii). Hence, fourth, they argue that we should abandon the dead donor rule. Assuming that, for a patient, there exists (a) a legitimate plan for withdrawing LST and (b) proper consent to procure organs, physicians should be allowed to kill the patient by organ procurement. Key to their argument is the claim that such patients are neither “harmed or wronged…provided that any potential for suffering from the procurement procedure is neutralized by
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death” (Miller and Truog, 2012, 1). An important reason why withdrawing LST is often regarded as merely allowing the patient to die is that the physician’s action is performed with the intention of avoiding some kind of treatment, not in order to kill the patient; the physician’s action merely has the secondary effect of causing death by “the fact that the patient has a disease or injury that makes impossible to live in the absence of LST” (Miller and Truog, 2012, 2). Yet, Miller and Truog provocatively argue that the removal of life-sustaining treatment is in fact causing patient death, not merely allowing them to die. Second, Miller and Truog also argue that the neurological criterion is false. Their own view is that death is defined by irreversible ceasing of the functioning of the organism as whole—and that the neurological criterion does not identify this. The upshot is that:
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adequate anesthesia” (Miller and Truog, 2012, 115). By “harms” they understand “setbacks to a person’s or being’s interests” (Miller and Truog, 2012, 115; cf., Beauchamp and Childress, 2009). One must recall that they have argued that the neurological criterion fails to identify death. Yet Miller and Truog acknowledge that US law recognizes the neurological criterion, and that this criterion is used widely in cases of donation after brain death. Though the criterion, in their view, is false, they grant that it would be very impractical to abandon it immediately. Thus, finally, they propose an account of legal fictions, under which the neurological criterion would be classified as a fiction. The criterion is a fiction, but a useful fiction, they claim. Veatch agrees with Miller and Truog’s claim that “current brain or circulatory death pronouncements misidentif[y] the biologically dead” (Veatch, 2015). However, Veatch takes issue with almost every one Miller and Truog’s central arguments. First, Veatch grants that Miller and Truog are surely right that doctors “cause” the death of such patients if by “cause” we merely mean that they “are causal factor.” Yet this is a very small concession, says Veatch, since not all causal roles are equal. Some causal roles are unacceptable—such as a physician unilaterally deciding to withdraw LST—whereas others are considered widely acceptable, such as foregoing excessive treatment in accordance with the wishes of the patient. Further, the physician is one among many causal factors, which might include, for example, ministers, surrogates, family members, friends, and the like. Quite crucially, says Veatch, Miller, and Truog fail to give sufficient attention to the Doctrine of Double Effect—they “devote a short three-and-a-half pages” (Veatch, 2015, 294)—under which one can distinguish between being a mere causal factor in a foreseen but unintended death and being a causal agent who intends to bring about death. Veatch notes that they must establish convincingly that there is “bright line differences between intended and merely foreseen roles in causing death,” and it is not clear they have done that (Veatch, 2015, 295). Concerning Miller and Truog’s rejection of the dead donor rule, one must recall that, in Miller and Truog’s view, assuming that patients meet proper criteria—as stated above—physicians should be allowed to kill them by organ procurement. Veatch, however, takes issue with their claim that patients are neither “harmed or wronged.” Although Miller and Truog “make a good case” for the claim that such patients are not harmed, it is less clear that there is no wrong involved (Veatch, 2015, 303). For example, a Kantian or those with religious epistemologies might hold that such a killing constitutes a wrong. Although Veatch agrees with Miller and Truog’s rejection of the neurological criterion, he denies that it is a mere legal fiction. It is not a fiction, says Veatch, because there exist different meanings of the word “death” and the neurological criterion seems to be tracking one of these. Veatch raises
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a proposal that he has argued for in the past: that we simply acknowledge a different, “social” meaning of death, as “applied to the category of beings who no longer have full moral standing as members of the human community with all the rights of that community” (Veatch, 2015; see Veatch 1975, 2003). The neurological criterion is not a fiction, but is tracking that someone has lost full moral standing. Though Miller and Truog’s position is a minority view, it will surely continue to spark much debate. Moral Disgust
concerns must shift from [persons’] raw feelings to the justification of these feelings. Despite Kass’s claim that any such rationalization of one’s feelings of moral repugnance would be “suspect,” it instead appears that not only is such rationalization necessary for the views of the proponents of arguments from repugnance to carry any weight at all—but that without it we have little reason to accept them. (Taylor, 2015, 316–7)
Yet, Rivera-Lopez’s (2006) arguments seem to offer further reasons for thinking that there are, indeed, good reasons behind our moral distress at the prospect of legalizing organ markets. His strategy is “to show that some kinds of arguments offered in favour of legalization are in an important, albeit limited sense, illegitimate” and that “[t]his illegitimacy helps explain why legalisation is a source of rational moral distress, even though it might
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The wisdom—or illegitimacy—of moral disgust in the context of discussions of organ markets is the subject of the next contribution, by James Stacey Taylor (2015). An immediate response to the idea of organ markets is sometimes repugnance, disgust. There seems to be a sense that there is something deeply wrong about exchanging our bodily parts for financial incentives—or so some contend. In this vein, Leon Kass writes regarding this emotive reaction that “[i]n crucial cases…repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it” (Kass, 1997; see Kass, 2002). Taylor (2015) challenges the wisdom of such repugnance-based arguments against organ markets. Specifically, he challenges moral repugnance arguments by both Leon Kass (2002) and Eduardo Rivera-Lopez (2006). Kass takes moral repugnance to disclose the immorality of organ markets; such repugnance, in his view, points to the immorality of this practice. However, it does not provide a discursive rational argument for such immorality—nor is it meant to. Yet, Taylor points out, persons’ views about what is and what is not morally repugnant both change over time and vary considerably. It is not clear how one should decide among such views. Hence, some of the important questions moral repugnance proponents must answer are: whose repugnance matters and in which circumstances, and whether such repugnance is one that arises out of moral considerations. But in order to answer such questions, repugnance proponents will need to give discursive arguments to defend their positions. Contra Kass’s project, Taylor notes:
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not be wrong all things considered” (Rivera-Lopez, 2006, 41). There are two powerful arguments that might be offered in favor of organ markets, says Rivera-Lopez. First, one has the consequentialist argument. Roughly, the argument goes, one should allow organ markets because this would promote the greater good—for example, there would be less scarcity of organs for transplantation and many lives would be saved (Rivera-Lopez, 2006, 41). Second one has the autonomy argument. It would be autonomy-enhancing, it is argued, to allow persons to sell their organs, all things considered (Rivera-Lopez, 2006, 42). Rivera-Lopez goes on to argue that the conditions under which organ markets are most likely to flourish are also the conditions under which such arguments are illegitimate for political authorities to make. He does so in the following way. Rivera-Lopez claims that “[i]t seems clear” that organ markets would most likely flourish under unjust rather than just conditions (Rivera-Lopez, 2006, 43). To see why he would think this, one must see what he stipulates form jointly sufficient conditions for injustice: (1) that the situation involve severe suffering for the agent; (2) that the agent’s situation is not unavoidable, in the sense that there are political agents who could act to remove or at least mitigate the agent’s suffering; (3) that these political agents fail to fulfill their obligations to perform those actions (Rivera-Lopez, 2006, 43). These three are meant to be merely sufficient conditions for injustice. Further, he affirms that this is an extremely weak conception of justice; it does not dictate what actions political authorities should do to remedy the injustice. Moreover, it is compatible with both consequentialist and autonomy-based accounts of justice, “since it is extremely unlikely that a situation where some people suffer extreme poverty will be optimal” and since such injustices are “incompatible with respecting, promoting or recognizing” an agent’s autonomy, since the agent “is deprived of options that would improve her ability to choose a meaningful life plan” (Rivera-Lopez, 2006, 43).9 Organ markets are more likely to flourish under unjust conditions, in his view, for the following reasons. He is assuming that, in most cases, people would only agree to sell their organs under conditions of severe deprivation; they would sell their organs as a means to mitigate such extreme deprivation. If people were not in such extreme deprivation, he claims, they would rarely decide to sell their organs. As support for this he cites the empirical claim that “[i]n fact, actual (black) organ markets do not arise in rich countries, and this cannot be only due to better enforcement of the prohibition” (Rivera-Lopez, 2006, 44). Under such unjust conditions, he will go on to argue, it becomes illegitimate for those who fail to fulfill their obligations to make either the consequentialist or autonomy arguments noted above. After presenting some arguments from intuition, Rivera-Lopez presents his systematic argument for such an illegitimacy by drawing from Lynne McFall’s (1987) account of the virtue of integrity. An essential component of integrity is consistency between words and actions. For example, if an agent is
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mendacious, he may lose the authority to teach his children about truth-telling.10 This loss occurs, he affirms, because of an inconsistency between the agent’s words and actions. It would evince a lack of integrity for an agent to do so. Most relevant to their argument, agents can lose the authority “to support or justify a purported action via certain kinds of reasons or arguments” (Rivera-Lopez, 2012, 48). Once again, he claims, such cases would evince a lack of integrity and would show a contradiction between an agent’s words and his actions, a practical contradiction. Regarding arguments for organ markets, one might think of a political authority trying to make such an argument under what Rivera-Lopez claims are unjust conditions. Such a political authority, while being responsible for the deprivation of certain citizens, might argue for the legalization of organ markets on consequentialist grounds, arguing that it would promote the greatest benefits for all. Yet this would evince a contradiction between the authority’s words and actions, insofar as they are arguing for promoting the consequentially best state of affairs while failing to produce it. If “[p]olitical agents fail to produce the consequentially optimal state of affairs, and then they promote a measure alleging that it benefits all (that is, that it produces the best state of affairs for all, including the seller),” there is a practical contradiction (2012, 48–49). It would evince a lack of integrity on the authority’s part. Mutatis mutandis a similar kind of practical contradiction occurs if such political authorities were to cite the autonomy argument. Ultimately, in Rivera-Lopez’ view, the moral distress we feel at the promotion of the legalization of organ sales by appeal to the autonomy of the individual or the greater good of the community is rational, since such distress is tracking the practical contradictions just described. The distress we feel is distress about the inconsistency between the person’s words and his actions. While granting the sophistication in Rivera-Lopez’ arguments, Taylor offers a critique. Most saliently, Taylor argues that it is less-than-clear that the distress we feel is about organ markets specifically and not merely about inconsistent propositions. For example, what is not to keep the distress we feel from arising mainly from inconsistent propositions, regardless of their content? Further, it is less than clear in the case of organ sales that distress is felt because of an inconsistency. The reason is that people often present arguments for “moral positions that do not comport with their everyday behavior without this leading others to feel moral distress” (Taylor, 2015, 323). Yet people do not routinely feel moral distress at the arguments of inconsistent vegetarians or inconsistent consequentialists, despite the fact that there is a lack of integrity of the kind Rivera-Lopez claims, says Taylor. Rather, it seems that in the case of organ sales, says Taylor, the cause of the moral distress is not inconsistency but the proposal itself. With all that in view, affirms Taylor, one must attend to careful, discursive arguments about the proposal itself—not merely to instinctive reactions—if the debate about the moral status of organ markets is to advance.
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III. FAIRNESS AND MEDICAL RESOURCES
Organ Distribution Scandals Of a recent scandal in organ distribution in Germany Annette Dufner and John Harris write: The physicians involved in the German scandal that affected clinics in Göttingen, Regensburg and Münich had for years deliberately entered misleading data in their waiting list patients’ files. As a result, their patients moved further up the priority list for liver transplants than they would have otherwise. (Dufner and Harris, 2015, 329)
When this became known available organs decreased by 40% toward the end of 2012 and numbers have continued to decline since (Dufner and Harris, 2015, 329; cf., Der Speigel, 2012). It seems that many who had originally chosen to donate decided that, in light of such scandals, they should withdraw. Harris and Dufner address whether this is the morally appropriate response. Among the most morally relevant considerations, one finds the following. Is it not unjust for a person to receive an organ through manipulated means, insofar as that person is placed at distributive advantage over others in the distribution system? How relevant is the consideration that the reception of an organ outside of current practice or regulation might bring about the death of a person who would have received this organ had regulations been followed? And yet, is it not the case that, in refusing to be a posthumous donor, one is failing to save lives that would otherwise be saved, however unjust the distribution scheme might be? Thus, for the potential donor, this seems to raise a dilemma: “become a willing partner in either wrongful allocation of organs on the one hand or in unnecessary deaths on the other” (Dufner and Harris, 2015, 332).
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Egalitarian concerns for fairness seem to find their contemporary canonical formulation in John Rawls’ (1921–2002) A Theory of Justice (Rawls, 1971). Rawls was aiming to find principles of distributive justice that could be supported by rational, overlapping consensus, despite peoples’ disparate and many times mutually inconsistent conceptions of the good. In the spirit of Rawls, our last two contributions both attend to a concern for fairness in the distribution of medical resources. Annette Dufner and John Harris (2015) continue the theme of organ donation and address a recent organ distribution scandal that surfaced in Germany, in which it was shown that several physicians systematically dismissed considerations of fairness in favor of their own patients in transplant waiting lists. Finally, Andreas Albertsen (2015) aims to elucidate what a particular understanding of fairness demands in an under-discussed area of bioethics: oral health. He does so by way of the prominent luck egalitarian theory of distributive justice.
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Luck Egalitarianism and Oral Health In our last contribution, Andreas Albertsen (2015) seeks to apply luck egalitarianism to oral health. Luck egalitarianism affirms that “distributions are just if, and only if, how well people fare relative to others reflects their exercises of responsibility” (Albertsen, 2015, 342; see Lippert-Rasmussen, 1999; Knight, 2009). Yet, the theory is often chided for its harsh implications, since it seems to hold that people should not be compensated for their imprudent choices. However, several luck egalitarians have attempted to meet this objection, arguing that, given certain conditions, people should indeed be compensated for their imprudent choices. Albertsen uses the luck egalitarian framework to consider three sets of related questions as relevant to oral health, specifically, to caries and periodontal disease. First, how should one ascertain whether and to what degree a person is responsible for his choices as relevant to the development of
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Dufner and Harris reflect on these considerations. They first consider the worry that a donor’s organ may go to a patient who is complicit in being unjustly moved up the list. Against this claim, they point out that the risk of this occurring is fairly small, and that the benefit derived from the good of donating “outweighs the comparatively small moral risk involved” (Dufner and Harris, 2015, 332). They also appeal to the distinction between foreseeing and intending: a donor who wants to abide by fairness might foresee that his organ might go to the wrong recipient, while not intending this to happen. Second, they consider innocent patients who nevertheless receive an organ through an unjust procedure—perhaps because of “overambitious physicians who wanted to advance the interests of their own patients” (Dufner and Harris, 2015, 335). Indeed, they note, it is most likely that this was precisely the problem. Granted that the system as practiced has been discovered to be unfair, Dufner and Harris raise the question: is fairness so important that one must withhold donation, in spite of saving less lives? That fairness is so important that large numbers of lives may be sacrificed for its sake is, they point out, a thesis famously advanced by John Taurek (1977). Further, they note that this view is adopted by several prominent German philosophers such as Weyma Lubbe (2005, 2008, 2009), Jens Timmermann (2004), and Kirsten Meyer (2006). Yet, they emphasize that appeals to equality notoriously can produce serious leveling down effects; like so, if a person withholds consent from donating this “will produce a leveling-down effect in the number of lives saved” (Dufner and Harris, 2015, 337). Ultimately they argue that, all things considered, “what should matter primarily is that people are rescued,” that “not being a donor is a missed chance, since organs will go to waste instead of rescuing someone” (Dufner and Harris, 2015, 339).
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IV. CONCLUSION The essays in this issue have returned us to questions about the nature of bioethical inquiry and the relevance of the humanities to medical practice; to questions about the ethics of organ procurement; and to questions of fairness in the distribution of medical resources. Engelhardt (2015) forces his interlocutors to confront the reality of moral diversity and challenges the attempt to provide a canonical secular bioethics; Zoloth (2015), King (2015), and Koch (2015) in different ways acknowledge this challenge. Veatch (2015) argues that, despite Miller and Truog’s (2012) many insights, they fail adequately to make key distinctions, such as the different ways one may be a part of a causal chain, the distinction between “harm” and “wrong,” and the different meanings of the word “death.” Taylor (2015) moves forward the debate about organ markets by carefully challenging arguments from moral disgust. One must establish, he argues, what precisely it is that grounds our disgust, and whether that is relevant to the ethics of organ markets. Dufner and Harris (2015) argue that though fairness in distribution is an important moral principle, it is not so important that it should justify serious leveling-down consequences. What matters ultimately, they argue, is whether peoples’ lives are being saved. Finally, Albertsen (2015) argues that, in egalitarian terms, people are in large part responsible for their oral health and so should not be compensated. The reader is here invited to draw from these authors’ insights and to critically reflect on these questions as well. Whether such debates will be settled in the medical practice that informs our bioethical reflection, only time will tell.
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these diseases? Second, assuming people are responsible, do the several arguments that luck egalitarians have recently offered for compensating people despite their responsibility actually hold? Third, given the answers to the first two questions, what would a luck egalitarian compensation system look like for oral health? To address the first question, Albertsen invokes the work of the prominent egalitarian John Roemer. One should note, as Albertsen does, that Roemer himself was hesitant to apply his system to healthcare, which is precisely what Albertsen does (see Albertsen, 2015, n9). To the second, Albertsen addresses the arguments of several egalitarians and concludes that only under limited conditions should we compensate people for outcomes for which they are responsible. Third, Albertsen sketches several features of what a luck egalitarian compensation system would look like. For example, he notes that “one’s place on the waiting list [should be allocated] in accordance with whether or not one is deemed to be responsible for one’s level of oral health” (Albertsen, 2015, 355). He also proposes that those who are responsible for their own oral ill health should be required to provide out-of-pocket payments.
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NOTES
ACKNOWLEDGMENTS I thank H. Tristram Engelhardt, Jr. for helpful conversations about the topics here addressed.
REFERENCES Albertsen, A. 2015. Tough luck and tough choices: Applying luck egalitarianism to oral health. Journal of Medicine and Philosophy 40(3):342–362.
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1. One might distinguish philosophical bioethical reflection from theological or other kinds of bioethical reflection. 2. One might agree with Engelhardt that relevant parties in many important cases do disagree about basic premises and rules of evidence, and so find themselves in intractable disagreements. Yet this need not warrant the conclusion that philosophical inquiry cannot deliver both true answers and a way to adjudicate between competing narratives. Alasdair MacIntyre very much agrees with Engelhardt about the first, yet resists his conclusion on philosophical grounds; see quite explicitly MacIntyre (2009), and also MacIntyre (1977, 1988). 3. For a recent discussion of these themes in Engelhardt’s work in an explicitly religious context, see Bishop (2014). 4. Part of this work was presented in this Journal; see Miller and Truog (2010). For a response, also in this Journal, see Birch (2013). 5. One must distinguish between (a) criteria for diagnosing death and (b) definitions of death. The former are used in a clinical setting to determine when death has taken place. Yet, such criteria need not be a definition of what death actually is. 6. For an overview of the history of the neurological criteria between 1967 and 1981, see Pernick (1999). As Martin Pernick notes, “the precise role of transplantation in shaping the Harvard criteria remains very controversial” (Pernick, 1999, 9). Yet, in his view, Beecher “wanted not only to promote organ donation, but also to protect the profession against transplantation’s critics. He hoped the Harvard criteria would not only increase the supply of organs but, more broadly, defend the entire medical profession against the public perception that transplant surgeons were organ-stealing killers” (Pernick, 1999, 9). As Pernick also notes, Beecher’s concerns were mainly practical; he saw the project of the criteria of death as mainly the province of physicians and had little patience for the conceptual concerns of philosophers or the legal concerns of lawyers (Pernick, 1999, 13). Hence, Beecher was less concerned with a definition of death and much more concerned with criteria for diagnosing it. As Pernick puts it, “If two opposing concepts of death both were compatible with his criteria, Beecher saw that as objective confirmation of the criteria, not a troublesome conceptual confusion” (Pernick, 1999, 12–13). 7. For a history of this bifurcated standard in the United States, see Capron (1999). 8. Less relevant for Miller and Truog’s purposes, one can also procure organs from nonbeating heart donors where life support is not deliberately withdrawn. For example, a patient might come into a hospital after a heart attack at the point of death. After resuscitation efforts fail, physicians might attempt to harvest the patient’s organs. 9. Rivera-Lopez does acknowledge, however, that his conception of justice, though very weak, would not seem to be compatible with certain kinds of libertarian views (Rivera-Lopez, 2006, 51, n11). One thinks of Robert Nozick (1974), who argues that the correct view of the state is the minimal state, whose obligations are “limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts” and the like (Nozick, 1974, ix). If the kinds of “severe suffering and deprivation” that Rivera-Lopez has in mind go beyond the duties of the minimal state, in Nozick’s view, however capable the state might be of mitigating such or removing such circumstances, it is not the state’s obligation. Condition (3) would not hold, in Nozick’s view. 10. Rivera-Lopez does not distinguish between different senses of “authority.” A person might be “in authority,” in virtue of some kind of office, such as being the father of a family. A person might also have “authority” in the sense of credibility. A father of a family might lose authority in the sense of “credibility,” but he surely remains “in authority” in the sense of being the father.
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