Why I'm Sceptical to the Idea of Harvesting Donor Organs from Living People

In a recent article in the Cambridge Quarterly of Health Care Ethics (alas behind a paywall for those of you who lack access to university library services or have a private subscription), it is argued that the so-called Death Donor Rule (DDR) of most (if not all) regulations of organ donation around the world, is not valid from a moral point of view. It is the Canadian bioethicist Walter Glannon, who argues that the requirement with regard to so-called vital organs – that is organs, the removal of which is not compatible with sustained life of the donor – that they should not be removed until the donor is dead in fact lacks support of relevant ethical arguments. The thesis and argument have been picked up by the shadily cloaked Christian/Catholic "bioethics news" webpage, BioEdge, where there is some cautious snickering and mockery, albeit as usual without any hint of argument (which is the usual BE style), and from there passed around on Twitter. 

Now, what Glannon points out is that death, in the present day of organ donation regulations, has become a purely man-made institution: Death is whatever is defined as death in relevant legal statutes. So, "brain death" is one such legal institution which makes vital organ donation compatible with the DDR, while "heart death" makes these two much more difficult or even impossible to combine. But these legal constructs do not become ethically relevant merely because we call them "death". To see what is ethically relevant, we have to look for what moral reasons there are for or against taking a vital organ. We may then compare the outcome of such an analysis to the DDR. This, it would seem, is what Glannon does, and he points to four interconnected reasons when it comes to the case of severely and irreparably brain-damaged patients:

1. That the removal of the vital organ does not harm the donor

2. That an earlier death does not deprive the donor of any meaningful or valuable life

3. That the removal of the organ and its subsequent use for transplantation is in line with the donor's known wants, as expressed by him-/herself or a validly appointed proxy

4. That the donation actually leads to a successful transplantation

What matters is not that the donor is or is not dead, or when death is declared, but that the donor or a surrogate consents, that the donor has an irreversible condition with no hope of meaningful recovery, that procurement does not cause the donor to experience pain and suffering, and that the donor’s intention is realized in a successful transplant.

From this Glannon also concludes that doctors or relatives who try to forestall or delay a donation of a vital organ can be argued to wrong the donor. This is called "paradoxical" by the BioEdge commentator without a hint of any argument. However, the conclusion would seem to follow swiftly from premises 1 and 3 – as long as conditions 2 and 4 are assumed to be met. Not acting on the donor's wants would be one way of going against those of his/her interests that are assumed to be of ethical relevance also by supporters of the DDR.

Glannon's conclusion is that:

We should reject the view that organ donors are beyond harm only after they have been declared dead and that they are harmed if organ procurement occurs before this time

Thus falls the ethical basis of the DDR, or so it may seem. However, while I accept Glannon's argument, I do not accept that it is a valid reason to remove the DDR. That is, while Glannon does support the idea that death (however it happens to be defined in a legal statute) is not by itself ethically relevant when looking at single cases (what is relevant is the presence or non-presence of harm, deprivation of goods or disrespect of wants), it does not follow from that claim that the DDR should be taken out of organ donation regulation.

The problem with Glannon's argument is that it assumes that the only reason for a legal rule is that it immediately reflects morally relevant facts in single cases, or that it gets it right from an ethical point of view in single cases. However, that is clearly not the only support for legal rules that there are. I, on my part, would argue that the strongest support of legal rules is about the overall impact of the legal system containing them. So, it is actually not important if legal statutes echo ethically valid norms or if they get it ethically right in every single case (or even most cases). The importance is about the legal system as whole getting it reasonably right on the level of the entire society, and that this system has enough popular support for this body of regulation to be sustainable. This may imply that some legal rules do echo ethical norms, or track them in application, however, that is a side-effect rather than a justification. What justifies the rule is that the system functions well on the whole on the basis of some plausible set of values.

Now, in light of this, we can see what is the problem with the idea of removing the DDR. The problem is, simply put, the strong reasons for not tampering with the legal rule against murder, manslaughter and other forms of unjustified homicide. For this is what we would have to do if we are to take away the DDR – we would have to say that intentionally cutting up a living person so that he or she dies is sometimes not a crime. The problem, of course, starts when we think about how to formulate and implement this sort of clause in a way that would be both legally secure and certain, socio-economically efficient (with regard to the problem of organ donation as well as the general interest of society not to have people going about killing each other for whatever reason, and the resources that would have to be spent of running the administration of the clause) and, on the basis of that, ethically justified. Now, I'm not trying to belittle the problem of the shortage of donor organs, that is indeed a problem. But is it a problem of a gravity that motivates starting to play around with the core statute in criminal law? I don't think so.

Should Names of Swedish STASI- Collaborators be Revealed?

This year, a continuing debate in my country has concerned a list of names of Swedes, extracted from a part of the DDR (a.k.a. GDR or East Germany) secret police, STASI, archives, that somehow drifted out of Germany in connection to the dismantling of DDR and in some way or another found its way into the hands of the Swedish Security Service (SÄPO) The list is supposed to contain names of certified STASI collaborators, although SÄPO officially maintains that none of them have been found to be bona fide spies, albeit some of them possibly potential active agents against other countries (primarily West Germany). To the extent that people on the list could be said to have engaged in criminal activity, these crimes have passed the time in the Swedish statute of limitations when they are no longer possible to prosecute, SÄPO maintains.

For some time, journalists and researchers have tried to access the list and the associated files, while SÄPO has insisted on restricting the access due to national security, the integrity of SÄPO activities and concern for individuals. June 24 this year, the Swedish Supreme Administrative Court decided to order SÄPO to make the records in question accessible to professor Birgitta Almgren. However, the order was surrounded by qualifications, among these that Almgren was not allowed to identify the individuals on the list. Just recently, Almgren published a book (only in Swedish so far) where she reveals generic facts about the people on the list – stressing not least the point that there is more ways of being an agent for a country than being a spy. At the same time, apparently, the list has leaked and found its way into the hands of various journalists, who have started to argue that the reasons for protecting the identities of the individuals on the list are bogus – or at least not obviously strong enough to trump the public interest of letting the detailed information become widely known. Part of the argument is about that even if only a handful of the people on the list did things motivating suspicion of criminal activity, many of them seem to have collaborated with STASI in other, less criminal or draconian, ways – such as influencing the view of the DDR in Sweden, especially in the higher levels of official society. On the list, Almgren's book reveals, are names of not only politicians or interest organisation representatives, but also researchers, educators, journalists, politicians and business-people. Another argument is more about the general need for Sweden to relate itself realistically to the era of the Cold War, in the same way as the many sides of Sweden's famous neutrality policy towards the US and NATO has been detailed in later years. SÄPO, however, resists the call for transparency, insisting on the reasons given above.

There is a basic problem with trying to assess the competing sides of this debate in that SÄPO, true to its position (and maybe its nature), does not reveal any details supporting its claims. Almgren, on the other hand, make opposing claims on the basis of the records she has been allowed to access, but an outsider has troubles assessing the validity of her position, since the raw data are not available to anyone else than Almgren. That is, as long as we do not consider the claims of those journalists and debaters who claim themselves to have access to these data (i.e. the list). Looking at this situation with the calm and disinterested eyes of a researcher, it is hard for me to avoid the conclusion that neither side has - to this day - presented much reliable evidence. At the same time, the sole cause of this is the insistence of SÄPO to keep access to the files restricted.


Now, if we could be certain about the position of SÄPO being a result mainly of the "natural instinct" of any security or intelligence organisation to keep everything a secret, it would seem that the argument about the generic need of making this part of Swedish history clear would be a rather strong reason for SÄPO to reconsider its position. However, since SÄPO does not reveal any details, we cannot know that this is the case. There may be a national security interest in keeping the names of the collaborators hidden from the public eye in numerous ways. The most obvious are that these people may just as well have been double agents, or that they are presently active informers of SÄPO in virtue of their past experiences – in both cases, this means that the files may indirectly reveal details about SÄPO's operational methods. SÄPO may also be right in its argument about protecting innocent people against public embarrassment on false grounds, at least in some cases. The problem, of course, is that there is no way to reliably evaluate these arguments, since the evidence is kept under lid. And, again, the same holds for the claims of those debaters who maintain that SÄPO's reasons for continued secrecy are bogus.


On the basis of this, I make four general observations:


First, one part of the problem here seems to have to do with the need for public trust in public agencies. Security and Intelligence agencies are especially in need of this, since so much of what they do and how they do it is hidden from the public eye. Such agencies, it may be said, constitute a special section of the imagined social contract of any country. This means that, for better or worse reasons, if a process of distrust is initiated by some operation of such an agency, as this process becomes more powerful, it also becomes a continuously better reason for this agency to revise the operation in question. In fact, this can be claimed to be a central task of any agency: to act in such a way that maintains its legitimacy.


Second, another part of the problem is that – apparently – the secret list is not such a big secret as it used to be anymore. Besides Almgren, it appears that several journalists and the tabloid Expressen has hold of it. The latter has the last few days started a series of articles detailing the individuals on the list (here, here) – immediately provoking responses of denial from two of the accused. No names have been given so far, but the articles are as close to identification as you can get without revealing identities in a formal way. This obviously creates a problem for SÄPO, both regarding its claims about need for continued secrecy and its trust among the public. However, it also underscores SÄPO's argument about protecting innocent individuals from disproportionate public embarrassment. In view of the passionate denial, we have reason to ask also about the soundness of the reason for making this information public in the way that it is done. It appears that we may have cause to distrust the reasons not only of SÄPO, but also of the media, in this case Expressen. Is this campaign really only about making history clear? Doesn't it smell just a little bit of the vigilante mentality of making the bad guys pay – getting back at them in the only way currently possible?


Third, while the argument in terms of the need to make clear Swedish history in these respects is a valid one, it does not follow that the time to do this is while these people are still alive. Where we are standing now, we have no way of knowing with any certainty the substance of the detailed claims made by either SÄPO, Almgren or Expressen. The only way of achieving such certainty is to have open access to the relevant evidence. But such access, as may be exemplified by the latest developments due to Expressen's articles, may be used for furthering a lot of other, less honourable, agendas as well. In effect, it creates a new uncertainty, but now the doubt targets the press rather than SÄPO. In addition, the risk of unnecessarily harming individuals for no good reason seems to be real. So, in consequence, why not wait for a while? What is the hurry? As much as I sympathise with Almgren's project and the general agenda of making important historical facts known to the public, this is not the only thing that matters. And, to this day, I have seen no good arguments for why secrecy should be lifted before the persons on the list have indeed become historical persons.


Fourth, this last point actually reveals a rather serious research ethical argument that may not be apparent at first glance. One response to the just said would be this: if we are going to have a clear picture of this historical phase, we need to be able to talk to the individuals involved. This is an impossibility given the currently valid court decision on this case (Almgren is forbidden not only to give names, but also to contact anyone of the people on the list). However, let us play with the scenario that the list is made public, in what position will this put the people found in the files? We can be certain that the press will have a field day. We can also be certain that researchers wanting to investigate the area will not hesitate to publish details from the files also when the individuals decline any participation in a study. In other words, the offer being made to these people will be: "Have your say in my study, in the context of all the bad things the press is saying about you, or the details on file about you will be revealed without your comments and explanations attached". While not constituting direct force or coercion, it does come daringly close and I, for one, would hesitate to OK a study on such premises.


So, what is my final verdict? I'm still uncertain, but I tend to lean towards the view of doubting the urgency of publicity, while at the same time seeing that SÄPO is in a position where its arguments for maintaining secrecy are gradually becoming weaker. What I do not support, though, is any simplistic black-or-white view of this matter. Not least the research ethical complexity created by immediate and complete publicity should worry researchers a bit, and the news media seem to have reason to revisit and scrutinise their reasons for publication.