Why Consent May Not Be Needed For Organ Procurement

Abstract

Most people think it is wrong to take organs from the dead if the potential donors had previously expressed a wish not to donate. Yet people respond differently to a thought experiment that seems analogous in terms of moral relevance to taking organs without consent. We argue that our reaction to the thought experiment is most representative of our deepest moral convictions. We realize not everyone will be convinced by the conclusions we draw from our thought experiment. Therefore, we point out that the state ignores consent in performing mandatory autopsies in some cases. If readers are willing to give up the permissibility of mandatory autopsies, we then offer some metaphysical arguments against posthumous harm. Drawing upon claims about bodies ceasing to exist at death and Epicurean-inspired arguments against posthumous interests, we make a case for an organ conscription policy which respects fundamental liberal principles of autonomy, bodily integrity, and property.

Keywords:

• organ procurement
• consent
• posthumous harm
• conscription
• body as property
• autonomy of the dead

Notes

1. We suspect a case can be made that their interests in not donating can be overridden just as are the wishes of those opposed to being autopsied. However, defending an override of the wishes of the deceased will not be our strategy. So our defense of organ conscription will not rely upon a consequentialist-based denial of the deceased's rights or interests or a balancing of interest or rights. We believe our defense of organ conscription is consistent with a deontological ethics because the deceased are not the appropriate subjects of the constraints that characterize deontology.

2. Even if the body is not property, a Lockean proviso against useful resources spoiling might apply.

3. M. Wilkinson pressed us on this point.

4. We are skeptical that frequency is playing any role in the disparate reactions to the two cases. Readers can always imagine that it could be the involuntary organ procurement that was infrequent. That should neutralize the frequency objection basis for the greater anxiety but it does not seem to be making involuntary organ acquisition any more intuitively acceptable. So we tentatively conclude that readers' reactions are not due to the infrequency of mausoleum scenarios and their engaging in some implicit calculations of expected utility.

5. Perhaps the error is due to a failure to distinguish the momentary event of death, which brings it about that one life was lived rather than another of different length, with the alleged state of being dead.

6. Readers can now also see that there are reasons to be prudent even if death is not a harm to the non-existing. Although it would be irrational to fear the state of being dead, it would not be irrational to seek the benefits of more life. Since more life would be enjoyable, the living have considerable reason to pursue the means to such an end even if their failing to achieve it due to death would not be bad for them.

7. That people talk of corpses undergoing bodily saponification, embalmment, mummification, and even fossilization implies they might believe such processes involve the addition of body parts rather than the corpses remaining within newer and larger saponified, embalmed, mummified, or (partially) fossilized entities.

8. There is a further worry that many people refuse to consent to organ donation for religious reasons, perhaps they fear that resurrection requires the burial (or cremation) of an intact body. We are open to the possibility that there should be an exception on the grounds that religious citizens will not accept our Epicurean account due to the lack of a posthumous subject and considerations of constitutionality. Theodore Silver (1998) claims that several United States Supreme Court decisions suggest that an organ draft would violate the first amendment, which establishes the free exercise of religion. Our worry is about potential abuses of a system with an exemption. People might intend to deceive the government about their beliefs, and conversely, the government might engage in heavy-handed measures to determine their actual beliefs. Our tentative recommendation is that the exemption be withdrawn for those willing to receive transplants since they cannot then claim that resurrection worries justify keeping all of their organs. If they think their persistence conditions are such that they can survive the acquisition of a transplanted organ or two on earth, they surely should accept that God can give them a new pair of organs at their resurrection.