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.

Organ trade and the penal system: contrasting cases, pragmatics and structural effects

This is a piece on a complex of related issues that I find it difficult to form a coherent opinion about. Any suggestions are welcome!

Yesterday, it was reported (here, here, here, here, here, here, here, here and here) that two sisters, Jamie and Gladys Scott, serving life sentences in the state of Mississippi, USA, have had their sentences suspended and been released (under parole-like conditions) on the condition that one of them will donate one of her kidneys to the other one (who has been on dialysis for quite some time). The case has raised some controversy, commentators bringing up the issue of whether or not the sentence was fair in the first place, whether the court decision is really in compliance with US federal law (banning organ trade) and – not surprisingly – that the whole idea is immoral. My colleague, Arthur Caplan, argues today that the decision crosses an important moral line, where legal decisions are transformed into business contracts involving people's bodies. The president of the American Society of Transplantation, Dr. Maryl R. Johnson, reportedly said in a formal statement:

The decision to donate an organ should be a truly selfless act, free from coercion and not conditioned on financial or any other material gain

It is a bit interesting that such strong, absolutist statements are made at the same time as the pragmatic case for allowing a controlled system of organ trade has been building with continuing reports about the hideous free global black market in human organs and tissue.  Especially the strong condition of "true selflessness" seems to me to be totally out of place, since it rests on a simplistic picture of human motivation: generally, there are no "true" selfless acts, just as there are no "true" self-centered ones – the human motivational apparatus is much too sophisticated to allow such crude – albeit romantic – characterisations. However, the pragmatic case for (regulated) human organ/tissue trade has one weakness (besides the question-marks surrounding the prospects of successfully enforcing the control of prices, procedures, consent, et cetera): the possible structural effects of such a system. And, possibly if not probably, cases where the transfer of organs between people is connected to the criminal penal system make this sort of threat salient.

For several years now, reports about and criticism of exactly this sort of connection in China has been a repeated news item (here, here, here) – connecting to the organised harvesting of the organs of prisoners, some after having been executed under the death penalty, as part of the domestic organ "donation" system or for sale on the international market. Tasteless, unethical and discriminatory (regarding non-living "donors" targeting especially groups disliked by the Chinese totalitarian regime) as this practice is, the most worrying element is revealed when it is cross-referenced with the vast illegal market for human organs in and from China (here, here). While the practice of harvesting the organs of prisoners (executed or alive) mainly pose serious ethical issues (bad enough, you might think), it does not in itself undermine the confidence in Chinese legal security (which can be questioned on many other grounds, of course) and rule of law. However, with the vast and highly profitable black organ market in place, the Chinese organ harvesting practice suddenly attains devastating proportions also from this standpoint. The illegal organ trade (as most other illegal businesses) having such gigantic turn overs and profits, the assumption that the system of organised organ harvesting in Chinese prisons sooner or later will corrupt the Chinese criminal law and penal system is highly warranted.

So, how does this connect to the recent US case? Well, one connection, of course, is the mere fact that criminal legal and penal decisions are connected to issues of organ transplantation. In the case at hand, a particularly nasty ingredient is the open reference made by officials about what providing one of the sisters with dialysis cost the state of Mississippi. But even discounting for that, the ruling puts into question rule of law, since it conveys the impression that convicted offenders may buy themselves off by providing some sort of socially beneficial service. That is, those offenders who happen to have the resources at hand. It also – just as in the Chinese case – creates serious doubts about the voluntariness of the donation in question. But to my eye, the doubts about the workings of the criminal legal system are far more serious. Some of this could be tackled, of course, by having the US adopt a variant of the Chinese position, where transparent statutes are created according to which inmates may buy themselves reduced or slacked sentences by giving away their organs. Such a revision, however, would put US on a sub-cellar level as regards the basic principle of equality before the law. And, of course, in either case, it is now well known that the black market in human organs is highly present and operational also in the US, thus creating worries regarding corruption and undermining of the rule of law similar to the Chinese case.


Now, the pragmatic case for a regulated market for human organs rests on two pillars: (1) the existence of the black market and (2) the great amount of good that a better supply of organs for transplantation would do. Standing as they are, these two reasons seem to apply to ideas about connecting the system for organ donation and the penal system. If inmates are made to donate their organs this is a good thing according to (2), and if it is done in an open and controlled system this will help crippling the bad thing of (1). What troubles me is that the fact of (1) makes it less probable that the idea of a well-functioning controlled organ market is realistic. It makes a difference that the black market is already in place, since the incentives to channel the organ supply out of the controlled system and into the black market are so great. This, in turn, serves to undermine (2), since that reason now has to be balanced against the risk of having the basic functionality of the legal and penal system undermined. As bad as the shortage of organs for transplantation is, it is completely overshadowed by that sort of threat.