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This paper was first presented and discussed at the Council's June 2006 meeting. It was prepared by the author solely to aid discussion and does not represent the official views of the Council or of the United States Government.

Organ Procurement: What are the Questions?

Gilbert Meilaender

The richest and most helpful bioethical discussions are, I think, neither pure theory nor simple policy prescription.  Rather, they take up policy questions that make a practical difference in life, but they do so in the context of more far-reaching philosophical reflection that probes the assumptions framing everyday policy discussion.  At any rate, if a President's Council on Bioethics has anything helpful to offer, it will reflect, I believe, this sort of two-pronged approach.  The issue of organ procurement and transplantation, which the Council began to explore at its April, 2006 meeting, seems naturally to invite both sorts of treatment.  It raises obvious and recurring policy questions; yet, it is hard to think long about those questions without being forced into more conceptual and difficult-to-articulate reflection on the nature of our humanity.

In some respects, however, one might think--or I, at least, am tempted to say--that the Council began in medias res.  In the presentation of Robert Veatch, we began with certain givens: a shortage  of organs for transplant, which shortage it was imperative to solve.  Against that background, we were presented with six recommendations (some more far-reaching than others) for ways to increase the number of organs available.1

Professor Veatch is quite persuasive in his admirable refusal to use linguistic formulas that conceal more than they clarify (e.g., "presumed consent" for what is in fact "disguised conscription").  Nevertheless, were we to begin where he began, the work of a Council on Bioethics would involve less the examination of "given" assumptions, and more a simple "yea" or "nay" to various recommendations for policies aimed at solving an organ shortage.  That might fulfill our charge "to explore specific ethical and policy questions" in biomedical ethics, but it would not fulfill our charge "to undertake fundamental inquiry into the human and moral significance of developments in biomedical and behavioral science and technology."2  To hold these two tasks together, we must also ask what we mean by a shortage of organs for transplant, why it might be imperative to solve that shortage, and in what sense an organ of the body is a thing that should be available for transfer at all (even apart from asking whether it should be a commodity that could be bought or sold).  I would not myself know how to respond to Veatch's recommendations (or why, even, to prefer them to what he termed the "nuclear option" of organ conscription) without thinking through those deeper background questions.

Veatch was not the only presenter who began in medias res.  The exchange between Richard Epstein and Francis Delmonico, which focused on the wisdom of establishing a market for organ procurement, did so as well.  On the face of it, I think any observer would be hard pressed to deny that Epstein had the better of the argument.  That is, if the exchange involved an argument in which one looks for persuasive reasons, he had the stronger case.3  Dr. Delmonico was forced to recur a number of times to the supporting letters he had provided (from the United Network for Organ Sharing, from the American Society of Transplant Surgeons, from the National Catholic Bioethics Center, from the National Kidney Foundation, and from the Transplantation Society), noting that their combined weight made it unlikely that Professor Epstein's arguments would meet with much legislative success.  To this, Epstein quite reasonably replied that he was not arguing that he had more of these heavy hitters supporting him; he simply believed that their positions were incoherent and, hence, should not persuade a thoughtful and reflective body.

Here again, however, we are driven back to more fundamental questions, which were not really articulated in the Epstein/Delmonico exchange.  Even if we simply assume that there is a shortage of organs for transplant and that it is imperative that we overcome this shortage, how would we decide whether a market in organs was an acceptable way to meet that imperative?  How decide without first asking ourselves what organs and bodies are?  Or, how decide without asking ourselves who the person is who, with a kind of sovereign freedom, disposes--whether by gift or by sale--of bodily organs?  After all, not everything is for sale, and we cannot decide whether a thing is a commodity that could properly be marketed without thinking about the kind of thing it is.

We do not want to think about this, however, because it would force us back to some disquieting questions we would rather not raise; hence, we are tempted to prefer beginning in the midst of things, with particular questions that seem (even if deceptively so) more manageable.  To his credit, Epstein sees this.  In one of his articles provided for the Council's background reading, he notes arguments Leon Kass had offered against the sale of human organs, and then he puts his finger on the point we would like to avoid:  "Taken at one level, Kass's arguments are so strong that they would preclude gifts as well as sales . . . ."4 

We have trained ourselves to think that organs are the sort of thing that can be given in the good cause of saving lives.  But it now turns out that there are still more lives to be saved. Why then, exactly, are organs not the sort of thing that can also be sold in this same good cause?  (Does not the mortician, as Epstein perceptively notes, make a tidy profit from the handling of organs and bodies, while managing to carry out this handling with decorum?)  If we've learned to think of the organ as a separable part that can be offered to another, if we no longer see this offer as a kind of problematic self-mutilation, then it is hard to know why sale of these separable parts should be forbidden.  The organs procured will save more lives and mitigate the shortage that operates as a given in the argument; hence, Epstein's concern will be met.  And it may be that the freedom to sell a kidney will also help the condition of the poor; hence, one of Veatch's concerns will be met.5

I, by contrast, would like to ask some different questions:  In what sense is there a shortage of organs for transplant which must be overcome?  On what basis, if any, should we suppose that the organs of one's body ought to be available for transplant into the body of another?  Without making at least some progress in addressing these questions, I do not know how to think about whether proposals for increasing the number of organs for transplant--in particular, proposals for some sort of market in organs--make moral sense.

Death as a problem to be solved

If a man is dying of kidney failure, and if his life might be prolonged by a transplanted kidney but none is available for him, those connected to him by special bonds of love or loyalty may quite naturally and appropriately feel grief, frustration, even outrage.6  We are heirs of a tradition of thought that teaches us to honor each person's life as unique and irreplaceable.7  Although the sympathy any of us feels is inevitably proportioned to the closeness of our bond with one who dies, we are right to honor the grief, frustration, and outrage of those who experience a loved one's death as uniquely powerful. 

These quite natural feelings fuel the belief, widely shared in our society, that it is imperative to make more organs available for transplant; however, the same feelings of urgency and desperation also make it difficult to think critically about assumptions driving the transplant system in general.  To take a very different example, we may also be experiencing a "shortage" of gasoline in this country.  Relative to the demand, the supply is scarcer than we would like.  In the face of such a shortage, we could permit drilling in heretofore protected lands or we could ease the general demand for oil by developing alternative energy sources such as nuclear power.  We could also learn to moderate our desires and demands for gasoline, altering the pattern of our lives.  So there are ways to deal with the gasoline shortage that might work but would--at least in the eyes of some--exact too high a moral price.  And there are ways to deal with the shortage that would teach us to modify our desires in such a way that we would no longer think in terms of a shortage, but they would entail accepting certain limits on how we live.  Upon reflection, we may well decide that neither of these answers to the gasoline shortage is a wise direction to take, but it would be a frivolous person who continued to speak of a "shortage" without considering carefully both sorts of alternatives: exploring new sources of energy, or moderating our demands and expectations.  Most of the time, though, when the subject is organ transplantation, we attend only to the search for new ways to procure organs.

If, however, we were to moderate the demands we make on medicine, we might be less pressured to think in terms of an organ shortage.  Over against our natural desperation at the impending death of one who cannot be replaced, over against our natural tendency to see death as an evil to be combated, we must set another angle of vision about what it means to be human. Each of us is unique and irreplaceable; that is true.  But each of us also shares in the limits of our finite condition; we are mortals.  "The receiving of an organ does not rescue the living from the need to die.  It only defers the day when they will have to do their own dying."8  Tolstoy's Ivan Ilyich knew well the relentless logic of the syllogism: if all men are mortal, and if Caius is a man, then Caius is mortal. But that logic seemed both absurd and unjust when he tried to slot his own name, Ivan, into the syllogism in place of Caius.  Yet, there is truth in each angle of vision.

We should not deny the existential anguish; we should also not deny the homely truth that each of our names can and will find its place in the syllogism.  To refuse to acknowledge that second truth would turn medicine into nothing more than a crusade against death, plagued constantly by a "shortage" of cures for one or another deadly ailment.  In other areas of medicine we are ready to brand that approach as inadequate, and a recognition of our mortality ought to elicit similar caution when speaking about a shortage of organs for transplant.  As Hans Jonas argued in one of the seminal articles of the bioethics movement in this country, progress in curing disease is not an unconditional or sacred commitment.  The survival of society is not threatened when we do not conquer disease, however sad this may be for those who suffer.9

From one angle, as long as one irreplaceable person dies whose life might have been prolonged through transplantation, there will always be an organ shortage.  From another angle, that is just the truth of the human condition.  If we turn organ procurement into a crusade, we make of death simply a problem to be solved rather than an event to be endured as best we can, with whatever resources of mind and spirit are available to us.  To be sure, when a particular person--Ivan--faces death, we confront a problem that calls for our attention and our attempts to cure.  But not only that.  We also face the human condition that calls for wisdom and care.  Sometimes, at least, we will undermine the needed wisdom and care if we think of this person's death as only or primarily a problem which it is imperative that we solve.

Starting at the beginning

Freed of the sense that we are under some imperative to secure more organs, we may be able to think again of the price we would pay--perhaps, to be sure, a justified price--to increase the supply of organs for transplant.  It may be that the limited supply of organs is due to thoughtlessness, selfishness, fear, or simply limited altruism.  But it may also be based on weighty--if difficult to articulate--beliefs about the meaning of human bodily life.  If our problem is thoughtlessness, selfishness, fear, or limited altruism, financial incentives might "solve" the problem.  But if there are deeper reasons at work, reasons that have to do with what we may even call the sacredness of human life in the body, we pay a considerable price if we seize upon certain means to increase the supply of organs for transplant.

Perhaps, then, we need to start with the disquieting question that we prefer to pass by.  Forget the issue that arises in medias res, whether some kind of market in bodily organs could be morally acceptable.  Start farther back with the now widely shared presumption that it is morally acceptable--indeed, praiseworthy--freely to give an organ when this donation may be lifesaving.  In the encyclical letter, Casti Connubii, Pope Pius XI wrote:  "Private individuals . . . are not free to destroy or mutilate their members, or in any other way render themselves unfit for their natural functions, except when no other provision can be made for the good of the whole body."10  How does one get from that to Pope John Paul II's words?:  "There is an everyday heroism, made up of gestures of sharing, big or small, which build up an authentic culture of life.  A particularly praiseworthy example of such gestures is the donation of organs, performed in an ethically acceptable manner, with a view to offering a chance of health and even of life itself to the sick who sometimes have no other hope."11

John Paul's words notwithstanding, we would not ordinarily want a physician whose "treatment" harmed us in order to bring benefit to someone else.  And ordinarily a surgeon would not think of operating on a person in order to help someone other than that person himself.  For we know a person only in his or her embodied presence.  In and through that body the person is a living whole.  For certain purposes we may try to "reduce" the embodied person simply to a collection of parts, thinking of the person (from below) simply as the sum total of these parts.  But we do not know, interact with, or love others understood in that way; on the contrary, we know them (from above) as a unity that is more than just the sum of their parts.  The very idea of organ transplantation upsets these standard assumptions in a way that is problematic and that calls for justification.

Procuring organs from cadavers   

Understandably, therefore, we are inclined to turn first to cadaver donation, to procuring organs for transplant from (newly) dead bodies.  After all, it may not seem to raise these troubling questions so acutely.  Even here, however, a certain caution is in order.

There is something uncanny about a corpse, for it is someone's mortal remains.  We would, I think, worry about a medical student or a mortician who felt no need to stifle within himself a deep reluctance and contrary impulse the first time he was called upon to handle or cut a human corpse.  Reverence for the dead body is not (we think) entirely incompatible with using it for a good purpose, but surely there is much that this reverence would not permit.  It is one thing--and not, we hope, incompatible with reverence--that medical students should, with fear and trembling, learn needed skills through dissecting a corpse.  Would we think it equally unproblematic if corpses were dissected in high school biology classes?  We accept that some people, out of a deep desire to serve the wellbeing of those who come after them, may give their corpses for dissection and study by medical students.  Would we think it equally unproblematic if they freely donated their bodies for the manufacture of soap? 

If we really freed ourselves of reservations and reverence, we could develop the bioemporia filled with neomorts that Willard Gaylin envisioned more than thirty years ago: repositories of brain dead but breathing, oxygenating, and respiring bodies available for countless uses (medical training, drug testing, experimentation, harvesting of tissues and organs, and manufacturing).12  That few of us would be willing to turn in such a direction indicates, again, that certain deep human impulses must be overcome before we use the dead human body, even for the best of purposes--and not all uses would be acceptable to us, even were the body freely donated for such use.13

That the corpse from which an organ is taken for transplantation is someone's mortal remains (and not just a collection of readily available organs) is also indicated by how hard it is for us not to think that the presence of a transplanted organ (or, at least, of certain organs) somehow brings with it the presence of the person from whom that organ was taken.  Just such psychological complexities are at the heart of Richard Selzer's profound and provocative short story, "Whither Thou Goest," anthologized in the Council's reader, Being Human.  When Hannah Owen writes to Mr. Pope seeking permission to listen for an hour to the heart of her deceased husband, which now beats in the body of Mr. Pope, she does so, as she puts it, because of "the predicament into which the 'miracle of modern science' has placed me."  She professes no interest at all in Mr. Pope himself other than as one who houses something she used to know well and longs to hear again.  Such is the mystery of the body and its parts, however, that a reader may wonder about this when, after finally receiving permission to listen to the heart now beating in Mr. Pope, Hannah is "nervous as a bride."  For her, at any rate, the heart now beating in Mr. Pope's chest continues to carry the presence of her husband.

This is fiction, of course, but it may be profound humanistic wisdom as well.  That the organ, the body, and the person for whom that body is the locus of presence are not so easily separated in our psyches is well known.  Thus, Renee Fox and Judith Swazey noted that "the gift of an organ may be unconsciously perceived by donor and recipient as an exchange through which something of the donor's self or personhood is transmitted along with his organ."14  Writing more than a decade later, Fox and Swazey had not found reason to change their mind.  Many recipients of transplanted organs, they wrote, have "apprehension about absorbing a donated part of another known or unknown individual into his or her body, person, and life."  Doing so evokes deeply buried "animistic feelings" people have about their bodily integrity, and they tend to feel that not just physical but also psychic qualities are transferred from the donor.15

Thus, we should not too quickly assume that transplantation of organs even from a dead body is unproblematic.  Those mortal remains retain the "look" of a person's life: not just a mechanism whose parts work together well or poorly, but the unity of that individual life.  The mortal remains signify the history of that life in all its connections, especially with those to whom the person now dead was closely attached.  It is not bad--indeed, it is highly desirable--that they should honor their shared history and mourn their loss by demonstrating reverence for that embodied life, and such reverence is quite a different thing from parceling out the component parts of a corpse for the sake of achieving desirable goals.  In order to relieve suffering or save life some may overcome these considerable reasons for reluctance to give organs for transplant after death, but it would be deeply troubling if we experienced no reluctance that needed overcoming--if our thinking and acting were governed solely by the sense of an organ shortage that needed to be solved.  "There is," as William F. May once put it, "a tinge of the inhuman in the humanitarianism of those who believe that the perception of social need easily overrides all other considerations."16

Cadavers (?) in a liminal state

Having come this far, we may also need to remind ourselves that the language of procuring "cadaver" organs for transplant is in some respects misleading.  This is not the sort of cadaver upon which medical students hone their skills.  Cadaver donation generally means taking organs for transplant from bodies which, though brain dead and sustained entirely by medical technology, do not look dead.  (Hearts still beat, blood still circulates, respiration continues.)  The very concept of "brain death" that makes this liminal state possible has come under new challenge in recent years, and it is a challenge that will eventually have to be faced, lest our criteria for death seem to be determined chiefly by our desire to procure organs for transplant.

It is striking, for example, that when organs are taken from a brain-dead but heart-beating corpse, the dead body is first anesthetized, lest its blood pressure rise precipitously.  Thus, even the brain-dead body seems to manifest certain integrative functions.  My point here is not to argue that we should return exclusively to cardiopulmonary criteria for determining death; on the contrary, there is still much to be said in favor of the concept of "whole brain death."  Rather, I simply note that, even if this body with its heart still beating is a corpse, we would not bury it until it had "died all the way" (a formulation which, even if inexact, indicates that it is not foolish to think of such a body as in a kind of liminal state closely related to the condition of still living donors). 

What we are in danger of losing here is a humane death.  Indeed, death itself becomes a kind of technicality--an obstacle to organ procurement, which obstacle must be surmounted in order to procure the body's parts and accomplish our worthy purposes.  This is equally evident in recent attempts, motivated again by a supposed imperative to diminish an organ shortage, to plan the deaths of patients in such a way as to procure organs almost immediately after the cessation of heart and lung activity. A patient on life support is prepared for surgery, taken to the operating room, given drugs that will protect the viability of his organs after death, removed from life support, declared dead two minutes after cardiac arrest--at which time his organs are removed for transplant.  Thus, in an age that has worried greatly about having death occur in the dehumanizing context of machines and technology, our desperate sense that it is imperative to procure organs has led to precisely the opposite: the loss of a humane death and acceptance of what Renee Fox has called a "desolate, profanely 'high tech' death."17

Living donors

We have yet to consider the truly living donor--not one in the liminal state of the brain-dead-but-heart-beating cadaver, but one who accepts injury to his or her body in order to relieve the suffering or preserve the life of another (usually, though not always, another to whom one is closely bound by ties of kinship or affection).  Transplantation in these circumstances raises profound questions about the relation of organ(s), body, and person.

We need not question the charitable motives of the donor, even what Pope John Paul II termed the "heroism" of such an act.  Nonetheless, it involves intending one's own bodily harm in order to do good for another.  It is, as I noted earlier, the sort of thing a surgeon would normally not even consider doing.  Indeed, near the dawn of the transplant age, noting the way in which our justifications of transplantation tend to imagine the person as "a spiritual overlord, too far above his physical life," Paul Ramsey suggested that, in the face of that exaltation of freedom to use the body for our purposes, physicians would "remain the only Hebrews," looking upon each person's life as a sacredness in the body.18  What, then, if anything, makes surgical mutilation acceptable--even good--in the context of transplantation?

One way to address this question would involve trying to overcome the close connection of organ, body, and person.  We may train ourselves to think of the organ as entirely separable from the body, and the body as little more than a useful conveyance for the person.  Thus, for example, Sally Satel has recently suggested that thinking of the body's parts as not for sale is "outdated thinking."19  But, partly because it is not easy so to train ourselves, and partly because the very difficulty of doing so suggests that there might be something dehumanizing about the attempt, we have turned in a quite different direction: the idea of donation.  To think of the transplanted organ as a gift means that its connection to the donor's body remains and is recognized.  Whatever psychological complications this may entail, it protects us against supposing that our bodies are simply collections of parts that could be "alienated" from ourselves in the way a thing or a commodity can be.

One who agrees to donate an organ gives himself or herself--not a thing that is owned, but one's very person.20  A gift--even a gift of something other than one's body--carries with it the self's presence in a way that a sale and purchase, for example, do not.  This accounts, in fact, for the very strange mixture of freedom and obligation that is part of the experience of receiving a gift.  One who gives has no obligation to do so and acts, therefore, with a kind of freedom and spontaneity that are not possible for the one who receives that gift.21  And to receive it is to incur an obligation to use the gift with gratitude.  If I buy from a retiring professor a rare edition of Kant's works, I have not failed in any obligation of gratitude to him if a year later I give those works to a paper recycling drive.  But if, having invested himself in those writings over the years, he now makes a gift of them to me, I am constrained to receive and use the gift with gratitude; for it carries his presence in a way that a purchased commodity could not.22

It misses something, therefore, to say, as Robert Veatch does, that the donation model "is built on the premise that one's body, in some important sense, belongs to one's self."23  That model of ownership will sever the person from the body, and, once this has been done, it will be a short step to pretending (the psychology of it will be trickier) that the "donated" organ, being utterly alienable, retains no connection of any sort to the self who has given it.  We have been wise not to think of our bodies that way, and, instead, to turn to the concept of donation as a way of conceptualizing for ourselves what happens in organ procurement and transplantation.  To think otherwise would lose the human and moral significance of our bodies as the place of personal presence.

To be sure, thinking in terms of donation, gives rise to its own difficulties.  "It is rare," as Jennifer Girod has put it, "that an individual or family can give a gift that costs others so much."24  Even with the supposed shortage of organs, we spend billions of dollars yearly on organ transplantation (and the follow-up expenses, even apart from complications).  This "gift" costs us all in government payments, increased insurance premiums (or less insurance coverage for other medical services). and in less attention to preventive or chronic care medicine.25  Nonetheless, the language of gift or donation is the only way we have, while permitting transplantation to go forward, to continue to honor the sense in which a person is an embodied whole, and the sense in which a transplanted organ carries with it continued attachment to the one who gives not just an organ but himself or herself.

We might, of course, even while continuing to think in terms of donation, try to make the gift seem less sacrificial.  Especially when the organ is transplanted into a loved one with whom the donor's own wellbeing is bound up, it might make some sense to characterize it is as less a mutilation than a fulfillment (at some higher, spiritual level) of the self.  Just as an organ might be surgically removed if that was necessary for the health of one's body, so also perhaps the good of the body might be subordinated to the wellbeing of the person as a whole.  Roman Catholic moral theology has sometimes used a "principle of totality" to refer to this moral and spiritual wholeness of the person.26

Certainly, however, such reasoning could take us only so far.  If it may give a justifying rationale for donation of a kidney, we would probably draw back from similar reasoning used to justify the gift of a heart from a living donor.  And the same thing would be true were we to forego this sort of reasoning (about a higher moral wholeness achieved by mutilation of one's body) and simply use the language of love and gift to explain the acceptability of harming one's own bodily self for the sake of another.  Then, too, there would be limits to the kind of harm we would allow a living donor to incur: a kidney or a portion of the liver, but not a heart.

But, one might ask, why?  Why such limits to the "gift of life"?  The only answer, I think, is that, even when we override it for very important reasons, bodily integrity continues to be a great good that cannot simply be ignored in our deliberations. It continues to exert moral pressure, and, if it permits some gifts of the body, it does not permit any and all.  And it exerts this pressure because the person (though more than just body) is present in and through the body--not as a mechanism composed of separable and readily alienable parts, but as a unified living whole that is more, much more, than simply the sum of those parts.

Unless we appreciate the deep-seated and legitimate reasons for reluctance to give organs for transplant, we are doomed to plunge ahead as if the greatest imperative under which we labor were fashioning means to procure more organs.  If, then, in order to try to solve a perceived shortage of organs, we turn to means of procurement that invite and encourage us to think of ourselves as spiritual overlords, free to use the body and its parts as we see fit in the service of good causes, we may save some lives, but we will begin to lose the meaning of the distinctively human lives we want to save.  Even a practice of donating organs can be abused, of course.  But permitting organ procurement only through the practice of donation allows us, even if just barely, to retain a sense of connection between the part and the whole, the person and the body--allows us, that is, not to destroy ourselves in seeking to do good.

_______________________

ENDNOTES

1. There are, to my mind, some strange aspects of Veatch's overall position, which I will pass by in my general discussion here.  Thus, for example, a part of his reason for thinking we should experiment with some kind of (for now, modest) payment for organs is that in the last several decades the federal government has failed adequately to address the plight of the very poor in our society.  For such people, he suggests, an organ such as the kidney, may be their most marketable possession. and we do them an injustice if we proscribe a market in organs.  Thus, having begun with the problem of a shortage of organs for transplant, we somehow are drawn into the rather different problem of the plight of the poor.  Connecting the two as Veatch does can make sense only if we assume from the outset that there is no general problem with thinking of bodily organs as commodities.

2. See Executive Order 13237 (November 28, 2001) that established the President's Council on Bioethics.

3. There is, though, a different way to think of Dr. Delmonico's references to these supporting societies, and I will return to it later.  (See note 18 below.)

4. Richard A. Epstein, "Organ Transplants: Is Relying on Altruism Costing Lives?" The American Enterprise, 4:6 (1993), p. 56.

5. See Robert M. Veatch, "Why Liberals Should Accept Financial Incentives for Organ Procurement," Kennedy Institute of Ethics Journal, 13:1 (March, 2003), p. 14:  "There are still people desperate to provide the most basic necessities for themselves and their families.  The kidney in their body may be their most valuable and marketable possession."  First we think of the person as other than embodied, then we see the organs as simply possessions available for various uses, and then we are hard pressed to imagine why those who wish should not sell their possessions.  The only sorts of questions that remain will be questions about possible injustice--whether opening up such possibilities might constitute "coercive offers" or improper inducements to those who are impoverished.

6. Memo to Dan Foster:  The clinician's sorrow, frustration, and outrage when transplants are unavailable for his patients--as you have articulated it--is therefore both understandable and appropriate.  But alongside it we must place a second angle of vision that acknowledges our mortality.

7. Whether we really have any longer an adequate grounding for that regard is far from clear.  I myself doubt whether we can make full sense of this inherited belief apart from reference to the God-relation, which is uniquely individuating for each of us.

8. William F. May, "Attitudes Toward the Newly Dead," in Peter Steinfels and Robert M. Veatch (ed.), Death Inside Out (Harper & Row, 1975), p. 149.

9. Hans Jonas, "Philosophical Reflections on Experimenting with Human Subjects," in Philosophical Essays (Prentice-Hall, 1974), p. 131.  See also p. 115:  "What is it that society can or cannot afford--leaving aside for the moment the question of what it has a right to? . . . The specific question seems to be whether society can afford to let some people die whose death might be deferred by particular means if these were authorized by society.  Again, if it is merely a question of what society can or cannot afford, rather than of what it ought or ought not to do, the answer must be: Of course, it can."

10. Pius XI is here making direct reference to eugenic sterilization, which, of course, connects in complicated ways to larger issues in the Roman Catholic understanding of sexuality and marriage, but the point about bodily mutilation is made in a way that has broader application.

11. Evangelium Vitae, par. 86.

12. Willard Gaylin, "Harvesting the Dead," Harper's Magazine, 249 (September, 1974).

13. I should not overstate this reluctance, however, for some at least seem ready to overcome it.  Thus, Byron Spice, Science Editor for the Pittsburgh Post-Gazette, noted in a January 19, 2003 article the increasing eagerness of researchers to use brain-dead patients or, even, "nearly dead patients" for research (such as developing and testing a catheter, or studying the spread of viruses).  This is not quite Gaylin's vision of bioemporia, but it is a step in that direction.  "No one is talking about warehousing brain-dead patients indefinitely," Spice wrote. "But researchers are making use of brain-dead patients--even if only for a few minutes or hours--while they still breathe and circulate blood."  See "Researchers try to expand use of brain-dead to help give life," at http://www.post-gazette.com/healthscience/20030119cadaver2.asp (accessed 5-9-06).  Noting that Spice writes of such research also on those who are "nearly dead," we ought to be struck by how far we have come from Hans Jonas's claim that "Drafting [the unconscious patient] for nontherapeutic experiments is simply and unqualifiedly impermissible; progress or not, he must never be used, on the inflexible principle that utter helplessness demands utter protection" (Jonas, p. 126).

14. Renee C. Fox and Judith P. Swazey, The Courage to Fail: A Social View of Organ Transplants and Dialysis.  Second edition, revised.  (Chicago and London: The University of Chicago Press, 1978), p. 30.

15. Renee C. Fox and Judith P. Swazey, Spare Parts: Organ Replacement in American Society (New York and Oxford: Oxford University Press, 1992),  pp. 35-36.

16. May, p. 141.

17. Renee C. Fox, "'An Ignoble Form of Cannibalism': Reflections on the Pittsburgh Protocol for Procuring Organs from Non-Heart-Beating Cadavers," Kennedy Institute of Ethics Journal, 3 (June, 1993), p. 236.

18. Paul Ramsey, The Patient as Person (New Haven and London: Yale University Press, 1970),  p. 193.  This is the point of the promissory note I offered in footnote 3 above.  It may be that Dr. Delmonico's invocation of various medical societies was less an argument than a gesture in the direction of a kind of wisdom that may come from the practice of medicine.  "Among doctors," as Ramsey wrote in the same context, "the human life that is to be respected, protected, cured, or cared for means an integrated and mutually sustaining whole of vital functions."  Hence, even when physicians overcome their natural reluctance to engage in transplant surgery at all, they may well see reason to do it in a way that preserves a sense of the body as a unity and of even the transplanted organ as a gift that carries with it something of the presence of the giver.

19. Sally Satel, "Death's Waiting List,"  at http://www.nytimes.com/2006/05/15/opinion/15satel.html?_r=1&oref-slogin.  Accessed 5-16-06.  We have, Satel claims, "accepted markets for human eggs, sperm, and surrogate mothers."  Setting aside without comment the chronological snobbery which assumes that what we think now must be better than what our predecessors thought, one might still wonder whether it is really true that we have accepted this at least in the case of eggs and surrogate mothers.  Nor, to the degree that we have, has an acceptance of "alienability" of the body and its parts necessarily been persuasive.  Surrogate mothers sometimes find themselves wanting to keep their offspring after birth, and we face continuing questions about the rights of children to explore their identity by learning about their genetic "parents" (whose identity is evidently not entirely separable from their gametes).

20. Memo to Peter Lawler:  It is, therefore, strange to think of the person as exercising "sovereign authority" over even his mortal remains, as if he were floating entirely free of them.

21. Paul Camenisch, "Gift and Gratitude in Ethics," The Journal of Religious Ethics, 9 (Spring, 1981), p. 12.

22. Camenisch, p. 9.

23.  Robert M. Veatch, Transplantation Ethics (Washington, DC: Georgetown University Press, 2000), p. 152.

24. Jennifer Girod, "Wading Through Blood and Suffering," Second Opinion (December, 2000), p. 18.

25. Girod, p. 19.  It costs the recipient as well: a lifetime of immunosuppression, vulnerability to infections, fatigue and weakness, possible serious complications (such as diabetes, bone density problems, cancer, clinical depression) (p. 17).

26. Memo to Robby George:  Note that this is where the "familial" language to which you are attracted may lead.  But is this not a peculiar separation of body and person?  As Paul Ramsey observed in The Patient as Person (p. 184), even if we say that the larger act of donation is good, it is nonetheless "performed upon men in the only place they are to be found, namely, in the flesh."


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