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This staff working paper was prepared by staff solely to aid discussion for the June 2006 meeting, and does not represent the official views of the Council or of the United States Government.

"Organ Transplantation: Defining the Ethical and Policy Issues"

Staff Discussion Paper
Eric Cohen

Since the first human kidney was transplanted in 1954, the nation has engaged in an ongoing public debate about the ethical, social, and medical dimensions of organ transplantation. This discussion has included physicians, policymakers, bioethicists, religious leaders, and concerned citizens. It has considered the human significance and moral hazards of seeing the human body (or embodied person) as a potential source of replacement parts; the hardship of the sick who wait for organs that sometimes never come; the criteria for determining when death has occurred and thus when a deceased person's organs might be removed; the moral obligations of physicians who remove and transplant organs; and the ethical and practical issues raised by different organ procurement and allocation systems.

With the recent release of a major report by the Institute of Medicine in May 20061, and heightened attention to possible remedies for the "organ shortage" on op-ed pages, bioethics journals, and medical journals,2 the time seems ripe for the Council to consider the issue of organ transplantation in full-as a matter of national policy that raises fundamental human questions. This working paper aims to provide a preliminary survey of the debate-beginning with where we are, examining the ongoing ethical dilemmas we face, and evaluating different proposals for reform. My hope is to spur discussion-by raising ethical problems and making ethical arguments, not in any way trying to settle them.3

I. The Current Situation:

(1) By any objective measure, the quality of medical care for individuals suffering from organ failure is remarkably better today than it was when the first organ transplantation was performed. Diseases that were once a death sentence, or that left afflicted individuals with little hope of regaining normal function, are now routinely treated. When it comes to organ failure, we can do more and we can help more people than ever before, both extending and improving life for the afflicted. While organ transplantation is obviously not the only form of medical progress to benefit those suffering from organ disease, in some cases it is the only available remedy-the only source of hope-for those suffering from certain types of organ failure.

Fortunately, organ transplantation is reaching an ever larger number of afflicted patients. Consider just a few data points: In 1984, the total number of organs transplanted in the U.S. was 7,692; in 2005, the total number of organs transplanted was 28,110. In 1984, there were 244 transplant programs functioning in the U.S.; in 2005, there were approximately 865 transplant programs. In 1988, the total number of organ donors (both living and deceased) was 5,901. In 2005, the total number of organ donors (both living and deceased) was 14,490.4 In other words: more organ donors, more organ transplants, more transplant doctors, and more lives saved.

These dramatic increases in organ transplantation come in the context of other supportive medical improvements-such as improved strategies for combating the immune rejection of organ grafts and better alternative care for patients with organ disease or organ failure, in many cases making it possible to survive longer while waiting for a possible organ transplant. In general, our medical successes over the past fifty years have allowed us to treat many diseases that would have proven deadly or permanently debilitating in the past, often allowing individuals to live long enough to suffer future medical afflictions, including future or repeat organ failure. We thus confront the complicated paradoxes of medical progress: treatment success in one area increases the demand for other kinds of treatment, especially for age-related diseases; and the possibility of treating once-untreatable diseases makes the failure to treat them in every case seem like a "crisis" rather than real but limited medical progress. Even though things are, in general, getting better, we often feel like things are getting worse, because they do not get better as quickly or for as many people as we would like.

(2) Yet these significant improvements in medical care have surely not eradicated the tremendous suffering of those with failing or diseased organs. Indeed, the very success of organ transplantation has produced new kinds of human hardship: waiting for organs while one's condition declines, and sometimes dying while waiting. Because the demand for organs has grown more quickly than the supply, the size of the waiting list and the wait time for receiving an organ have grown and continue to grow at a rapid pace. As the Institute of Medicine reports: "In 1988, there were 16,026 individuals on the waiting list for an organ transplant; by 1995 the waiting list had increased almost 275 percent to 43,937; and it has since more than doubled so that by January 2006 the waiting list topped 90,000 individuals."5 While American hospitals and transplant centers perform an average of 56 organ transplants each day, nearly 19 people die daily on average waiting for organs that never come.6 In the past, certain types of organ failure meant little or no hope for improvement and often imminent death; today, there is greater hope but also a novel form of human misery that comes with difficult, uncertain waiting. Many hopes, alas, still go unfulfilled.

The extended waiting list for organs also produces other real or potential problems that threaten to undermine some of the medical gains made by the advent of organ transplantation. Because the waiting list and waiting time for organs have increased, transplant centers (especially in large urban areas) have relaxed the criteria of donor eligibility, using organs from donors who are older or sicker, including drug users and those with infectious diseases. There are still inadequate data on the differential outcomes of using such extended criteria organs, and some observers fear an overall reduction in the quality of the organs actually transplanted. In addition, because patients suffering from organ failure are waiting longer for organ transplants, the medical condition of patients who actually receive organs is, in some cases, getting measurably worse. People who get organs today are in some cases sicker than people who got organs in the past, which also risks moderating or undermining the benefits of receiving an organ.

There is no single or simple explanation for why more people need organs today than in the past. Part of the reason is obviously positive: the fact that organ transplantation is now seen as beneficial for a broader array of patient populations. Other potential explanations for the growing organ demand include: longer lifespans leading to a higher incidence of age-related organ failure; the general aging of the population; unhealthy lifestyles like smoking, alcohol, and obesity; inadequate preventive care; and repeat organ failure after transplantation. While both health and health care have improved in crucial respects, the health of the population has also declined in certain respects-in part because of demographic changes, in part because of social changes, and in part because of lifestyle changes. Sorting out the epidemiology of organ need might allow us to explore preventive or alternative strategies to reduce the demand for organs. But this demand will almost certainly continue to increase in the years ahead. This has prompted various calls for reform to the current system of organ procurement-some modest, some radical. Each is rooted in different principles; all are aimed at increasing the organ supply.

(3) Yet before we can consider the wisdom of different potential reforms, we need to understand the current system and its aims. Over the past few decades, a series of public policies and medical protocols have been enacted that govern organ donation, procurement, allocation, and transplantation in the United States. Three acts of the U.S. Congress, in particular, establish the central legal, moral, and medical framework: (a) The Uniform Anatomical Gift Act (UAGA) of 1968, adopted in some form in all fifty states, which granted individuals the right to decide before death whether they wished to donate their organs. (b) The Uniform Determination of Death Act of 1981, which established the following criteria for declaring someone dead: "An individual who has sustained either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem, is dead." (c) The Organ Transplantation Act of 1984, which aimed to encourage organ donation by establishing an organized organ matching and procurement network, while outlawing the buying and selling of human organs or the direct compensation of organ donors and their families.

These laws, and the myriad policies and procedures developed in accordance with them, have multiple aims:

  • The Dead Donor Rule: First, our policies aim to ensure that all deceased donors are truly dead; that there are clear criteria for discerning when death has occurred; that these criteria are grounded in the nature of death itself as a biological phenomenon and yet applicable in light of novel technological capacities to sustain various biological functions even after whole-brain death has occurred; and that the desire to procure organs does not invite us to redefine death in general or hasten the death of particular patients in order to expand the organ supply, or tempt us to procure vital organs from those who are severely debilitated or imminently dying but not yet dead.
  • Donor Consent, Respect for Families: Second, our policies aim to ensure that organs are only procured with the explicit prior consent of donors and/or their surviving family members. In some cases, these two aims-respecting the wishes of potential donors and respecting the families of the deceased-can come into tension. The 1987 amendment to the UAGA gave explicit priority to the intention of donors over that of their relatives, but it is rare that organs are procured over the explicit objection of surviving family members. This tension aside, however, the right to donate organs is protected by law, and the decision to donate organs is left to individuals and families, with no organs procured without the informed consent of living donors, the prior consent of deceased donors, or the present consent of grieving family members. Neither the state nor anyone else has a prior or presumed claim on the organs of the living or the dead.
  • Promoting Organ Donation: Third, our policies aim to promote and facilitate organ donation as a public good-by investing significant public dollars to facilitate organ procurement and allocation, by paying for organ transplantation through public healthcare programs, by funding public education efforts to promote organ donation, and by initiating pilot programs to define "best practices" for requesting donor consent and for retrieving the maximum number of organs per deceased donor.
  • Gifting, Not Selling: Fourth, our laws prohibit the buying and selling of human organs, the treatment of organs as commodities, and the use of cash payments or other "valuable considerations" as incentives to expand the organ supply. Our system of organ procurement is rooted in the belief that organ donation should be an act of altruism or gifting, motivated by the desire to do good for a needy patient or the desire to give added meaning to the donor's death, not the desire to profit from the sale of one's body or the sale of a family member's mortal remains.
  • Allocation by Justice and Love: Fifth, our policies aim to establish a fair system of allocating organs procured from the deceased, one that takes into account a range of factors. These factors include: the amount of time spent on the waiting list, the physiological compatibility of organ donor and organ recipient, the urgency of a patient's medical condition, the likely benefits to be gained by the patient from receiving an organ transplantation, and the age of the potential recipient. These allocation criteria do not govern organ donation by living donors to their chosen recipients-such as family members, loved ones, or even strangers who have made a personal appeal via the Internet, billboards, or newspaper ads. So while the system of publicly allocating available organs (mostly from deceased donors) aims to be governed by the commitment to justice (with debates about what justice requires), the system of privately arranged donation (mostly from living donors) is governed (mostly) by love.7

Taken together, these laws aim to reap the medical benefits of organ transplantation and to encourage individuals to become organ donors, while preserving certain ethical limits against treating the body as property, the dying as dead, and the newly dead as simply natural resources. Whether the current policy has been a great success or terrible failure-both medically and ethically-is a question that invites disagreement and debate. Many lives have been saved that would not have been otherwise, and yet waiting lists for organs continue to increase. Many individuals have given of themselves (literally) to save the life of another, and yet the ethical practice of medicine has been tested by cutting the healthy to procure their organs and managing the death of future donors. The human body (dead or alive) has not been reduced to mere property, and yet the desperation of watching thousands of individuals die every year while waiting for organs has led both professional societies and national policymakers to endorse or consider introducing monetary incentives in an effort to increase the organ supply.

(4) The hardship of those waiting for organs has also prompted new, private-sector efforts to expand the donor pool without violating the prohibition on providing "valuable considerations." These efforts include:

  • Websites like Matchingdonors.com, where those in need of organs can describe their life-stories and specific medical conditions in an effort to solicit unrelated altruistic living donors, and where those interested in donating to strangers can make themselves available. While the number of such organ matches still remains quite small, the fastest growing source of organs are living, unrelated donors, suggesting that these kinds of appeals might find a growing pool of anonymous altruists, including those seeking a human connection precisely by giving their organs.
  • Initiatives like Lifesharers.com, which aim to create a private network of organ donors, by giving explicit priority to fellow network members in the event that they die and their organs are usable for transplant. The animating principle of this movement is that those willing to donate their organs should be given priority when organs become available, and that such priority creates an incentive to become an organ donor in the first place. It thus aims to combine self-interest with a notion of fairness-although, in the process, it creates a restrictive or separate list of potential donors and recipients.
  • Using new database technologies and sophisticated networks of organ donors to arrange "paired organ exchanges," whereby family donor A gives a compatible organ to family patient B, and family donor B gives a compatible organ to family patient A.

These initiatives thus seek to find ways of working outside (or alongside) the organ waiting list to find a compatible organ donor more quickly, or ways to create incentives for being an organ donor without transgressing the law against "valuable considerations."

(5) Another response to the problem of organ failure and the growing shortage of organs is biomedical research into alternative therapies,, including xeno-transplantation, the creation of extra-corporeal artificial organs, stem cell medicine, and various nano-based therapies. At present, such research is either speculative or in the early stages of development, and while it may offer a future remedy for those suffering from various forms of organ failure, it does not change the current imbalance between organ supply and organ demand.

(6) Clearly, the issue of organ transplantation is now a subject of intense and intensifying public debate-between those who seek to defend and improve the current system of organ procurement and allocation, those who believe the current system inadequately protects the living and the dead, and those who believe that misplaced concerns about "human dignity" and the "commodification of the body" are preventing reforms that would significantly increase the organ supply. This debate centers on the nature of death, the ethical obligations of doctors, the moral differences between altruism and commerce, the relationship between individuals and the state, and the meaning of justice and love in the provision of organs. The most intense participants in this debate are those calling for dramatic changes in our policies, not only on practical grounds (the current system is not working) but also on ethical grounds (the current system is morally misguided). These arguments are gaining momentum and thus merit special scrutiny, lest we forget the arguments in defense of the current system-and, more deeply, the understanding of our humanity that informs it.

Three questions seem central to the current debate: (1) Does the current system unduly limit the number of available organs, by restricting the donor pool or prohibiting incentives to increase the provision of organs? (2) Does the current system adequately protect and promote those human goods that our society holds-or should hold-dear?8 (3) Are there policy reforms that might expand the organ supply, ameliorate the suffering of those with organ failure, and yet preserve the moral integrity of the procurement and allocation system?

II. Framing the Issue:

Before considering the arguments for and against different specific reforms, however, one must first consider the deeper human context and human meaning of organ transplantation, beginning with the dignity and integrity of the human body. A frequent line of argument in the organ transplantation debate is that organs are of "no use" to individuals after they have died, and that those with two healthy kidneys need their redundant organ less than a person with no healthy kidneys at all. No doubt this is in a certain sense true-though as the healthy kidney donor ages, he, too, may suffer kidney failure. And yet, this argument also assumes that an individual's body has meaning only because it is "useful"; it suggests that the body is a tool individuals have rather than what individuals are, or a collection of useful parts separable from the integrity of the whole. We are tempted, as Gilbert Meilaender has written, "to suppose that the 'real' person transcends the body."9 But in fact, our humanity and identity are inseparable from our bodies-including the dilemmas and miseries that confront us when our bodies fail, and the unique dignity of fundamental human-bodily activities such as the loving embrace.

Of course, modern medicine and medical progress depend on gaining some mastery of the body, including the routine study of the dead so that we might acquire knowledge to help the living, and experimentation on living individual's bodies in the hope of curing dreaded diseases. Medicine often involves "violating" the body in order to "save" it-for example, amputating a limb to contain the spread of gangrene or opening the chest to operate on the heart. In the case of organ transplantation, this "violation" is done to one person, living or dead, in order to save another-with the possibilities for both charity and coercion that such an intervention entails.

This brings us to the second context for understanding organ transplantation: the obligations and limits of medicine. No one can deny the great good that has come from organ transplantation in both lives saved and suffering ameliorated, as well as the great suffering that cannot be ameliorated because of the organ shortage. And yet, if saving the most possible lives while inflicting the least harm on the living were the only significant human obligation, then our policy on organ transplantation (not to mention human experimentation) would be very different. Society could simply take all available organs, and treat dead bodies as a public resource; it could even conscript the healthy to donate kidneys to the sick. But we do not do this, and for good reason. The aspiration to cure as many ill patients as possible exists in concert (and sometimes in conflict) with other human values: the obligation to care always for those we cannot cure, the duty of families to mourn the deceased, the responsibility of doctors to "do no harm" even when very great good might come from it.

To think about organ transplantation also invites us to think more broadly about the meaning of human creativity and human limits. In the medical context, our creativity often involves opposing nature's failures by mastering nature's possibilities. As natural beings, we are ever vulnerable to the indifference of blind nature to human fairness and human love, especially the amoral nature that causes organs to fail in the young. Replacing organs is an act of creative altruism, an example of human mastery moved by love, of man's capacity to oppose nature's penchant for decline using nature as our instrument. But this act of creative altruism is limited in two senses: by the availability of organs and by the moral limits of altruism itself. For there are some things we should not do to ourselves or to others even to help those we love. The living father who donates a heart to his son transgresses even while acting from altruistic (or "selfless") motives; his total act of giving goes beyond what human beings can rightly give to one another.10

With organ transplantation, these large human questions-about the body, about medicine, about the limits of autonomy and altruism-take on specific shape: Whose wishes should finally prevail in determining whether organs are taken-the dead person himself while he or she was living or the family that must mourn the deceased after death? Does autonomy mean having the right to dispose of one's body (or enter into contracts for one's body) in any way an individual sees fit? Do fears about turning the body into property justify policies-such as no payment for organs-that potentially limit the supply of a life-saving "resource," and limit the right of individuals to make decisions about their bodies before and after death? Are there legitimate moral reasons not to be an organ donor or not to allow the organs of a deceased loved one to be taken? Do siblings or parents, while alive, have a moral obligation to donate organs to siblings or children who would otherwise die? Has the possibility of organ transplantation created new kinds of pressures or new forms of suffering-such as waiting in misery on organ waiting lists, and perhaps facing a death that comes to seem "unnecessary"?

Before we can judge the wisdom of different policies, we need consider these deeper ethical and philosophical-anthropological issues. We need to think clearly about the meaning of organ transplantation in its fullness: about organ donation as a "gift of life," organ retrieval as a violation of the human body, organ transplantation as a "noble form of cannibalism," in Leon Kass's words, and the organ shortage as a tragedy for those individuals and families that wait for organs and often die waiting.

As we consider these questions, two things are worth keeping in mind: First, there is a difference between perfect moral obligations and imperfect moral obligations. Perfect moral obligations are those duties that should never be violated, no matter the consequences, and duties that we are obliged to meet no matter what circumstances nature or history put before us. For example: We have a perfect moral obligation never, with intention, to cause the death of a child or to cause the death of an afflicted patient when acting as his or her physician. Imperfect moral obligations are oriented to those ends we rightly seek-like reducing suffering and curing disease-but which we should not seek by any means possible (i.e., by using some persons as mere tools to benefit others), and which we must often balance with other imperfect moral obligations-like educating the young and promoting democracy abroad. Such imperfect obligations are also limited by the limitations and imperfections of human nature itself-as mortal beings, afflicted by disease, often unfairly; and beings whose capacity for altruism is shaped in part by the limits of human love, which is always focused most intensely on family and friends. 

Perhaps there are moments of supreme emergency, when the existence of moral society itself is at stake, when we might override even our perfect moral obligations. But it is wrong to see the hardship of those dying of organ failure as such a supreme emergency. It is a hardship, not a crisis-demanding our best moral efforts to ameliorate the suffering of those waiting for organs, but not the ethic of triage that invites us to override those moral limits that rightly govern everyday life. And it requires us to keep in mind the distinction between the horrors that nature inflicts upon us (like organ failure), which we seek morally to ameliorate but for which we cannot bear ultimate moral responsibility, and the actions we take (like organ procurement), for which we do bear ultimate moral responsibility.

This is not to belittle the horrible suffering of those waiting for organs, or the desperation of families who would do anything to save their loved ones, especially when they know a remedy is possible. All of us, after all, are real or potential patients; all of us do or will face afflictions of the body and the inevitability of death. But we should resist-or hesitate before-the understandable temptation to see the current limitations in our organ system as a "social crisis," lest we override those principles and obligations that keep medicine moral and civilization civilized. This does not mean the current system is the best system or that major reforms should not be contemplated; it means, however, that the goal of reform is not simply to maximize the organ supply or eliminate the waiting list but to help as many patients as possible without violating fundamental human goods, and without dismantling those prudential limits that protect the dignity of persons and the integrity of the medical vocation.

III. Ethical Considerations in Donation from Deceased Donors:

(1) In myriad ways, organ transplantation forces us to confront the nature of human death: we see the frailty of the human body whose organs fail; we see the possibilities and limits of medicine as it seeks to aid failing bodies; we see the complexity of determining when death occurs in an age when we can sustain parts of the body even after the whole embodied person has died. Many advocates for reforming the current system of organ procurement-especially those calling for organ markets or for the routine retrieval of organs by the state-define the dead body as a "natural resource," of no good any longer to the person who has died. To leave organs unused is wasteful-like leaving food uneaten when people are starving. But of course, the issue is far more complicated, for even the dead body is always more than a resource to help others. As Gilbert Meilaender has pointed out, we go to great lengths to retrieve the bodies of our dead loved ones, to honor them in burial and rites of mourning. Even the dead body is the body of the person once present-still him, even when he is gone; still more than a thing for our use, even when no longer animated by the life the embodied person once lived. And while there are compelling biological reasons to define the person whose whole brain is dead as no longer living because no longer functioning as a whole integrated organism, we would never bury a loved one with a moving chest and beating heart. Somehow, even the dead donor seems to be donating as one last act, one final giving of what he still has to give, before the final silence. We thus need to distinguish the "death" of the brain (partially or wholly), the "death" of the body, and the "death" of the person, and we need to disentangle, both biologically and morally, the relationship between these three kinds of deaths.11

(2) We also cannot ignore that procuring organs from the deceased can disrupt (or interrupt) both the act of dying and the activity of accepting the death of those we love. Those sudden deaths-such as car accidents and heart attacks-that take the deceased without warning also take the survivors without warning. The husband or wife, father or mother, colleague or friend whom we expected for dinner-so ordinary-is, suddenly, gone. The ordinary is dead. In the moments of terrible discovery, all thoughts are for that person, his dying, the void he leaves behind. And so it is strange, in a period all about him, to ask of him a favor, so to speak, that might benefit others. And one can surely forgive the sudden mourners if the wellbeing of strangers in need of organs is not, in the moment, their primary concern. One can even forgive them for seeing the request as an act of gross insensitivity, especially in cases (like uncontrolled cardiac death) when a decision is needed immediately.

(3) For those deaths that are more controlled, where a deliberate decision to remove life support is made, organ procurement brings other existential hazards. The manner of dying is dictated by the desire to procure organs-in the operating room, surrounded by surgeons, surgeons whose presence is usually a source of hope. But here the surgeon's presence is (for the mourners) a reminder of futility, of the incapacity to help the person one loves.12

(4) Another moral hazard is coming to see death as a good-a way to get more resources on the market, so to speak. Of course, for the donor and the donor's family, the decision to donate might be seen as one final act of love, a deed that gives added meaning to one's death, even a way to live on in the flesh of another, to be the temporary savior of their failing body. But accepting death and welcoming death are very different matters; and welcoming death can lead to hastening death, by redefining the life barely here or just gone as valueless in itself, a "natural resource" for others. Yes, allowing one's organs to be procured can be a redemptive act of love after death, but it also depends upon the love of others, in whose care the giver rests entirely. That act of donor love is undermined if the donor's caregivers compromise their own duty to love in order to make organ gifting possible.

(5) To prevent the misuse of the deceased embodied person requires clear criteria for determining death, and for keeping the act of procurement as dignified as possible-which is to say, as little deforming as possible of the dying process, the mourning process, and the integrity of the dead body. The circumstances that precede organ procurement from the deceased vary tremendously from case to case, but the types of death can at least be categorized in general terms:

(a) Whole-brain death or death by neurological criteria, often involving sudden trauma. In such cases, death itself often occurs suddenly and unexpectedly, but the decision and the act of procuring organs are not necessarily made in the moment of felt crisis. The brain-dead body (or embodied person) can be preserved on life support, the heart keep beating, the organs maintained even as the organism is dead. In this sense, the body (or embodied) person is already dead before the apparatus of procurement is set in motion; there is at least some time for the family to accept death before permitting organ procurement to take place. Yet it is also, necessarily, only a partial acceptance, since the body prepared for organ procurement is not lifeless enough for burial; mourning is temporarily suspended, for one last act of giving or taking before the deceased is given to (or taken by) the dust to which he must return.

(b) Controlled death by cardiac criteria, involving circumstances where life-support is deliberately turned off. In such cases, the person is still alive until the life-support is turned off; he is dead only after the heart has stopped beating for a given period of time. In such cases, therefore, the apparatus of organ procurement is set in motion before death; death itself occurs on the procuring surgeon's watch. One ongoing debate is how long the heart must no longer beat before death can be declared and the act of organ-taking permitted: 2 minutes, five minutes, 10 minutes. To wait longer ensures the finality of death; it ensures that revival of the deceased is impossible; but it also risks compromising the health and worth of the organs procured. To remove organs sooner improves the likely quality of the organs taken, but leaves us less certain that the deceased donor is irreversibly dead.

(c) Uncontrolled death by cardiac criteria, when the heart stops unexpectedly. In such cases, the decision to procure organs (or at least sustain organs for future procurement) needs to be made quickly. Sudden death demands sudden consent; news of sudden death is necessarily accompanied by the request to permit the dead loved one to help another, and to have the body handled in ways not directed toward restoration of the deceased, which is now futile, but preservation of his useful parts. For practical reasons, those who die by cardiac criteria in uncontrolled settings are usually not organ donors. But there is great interest in expanding the rate of donation from this group-with comparatively more successful programs in Europe and a strong recommendation from the Institute of Medicine to expand the donation rate from this pool of potential donors.

(6) Some-including Robert Veatch-have proposed redefining death so as to include among the dead those who have lost (only) the higher-brain functions: that is to say, those who are not wholly brain-dead, who thus retain the orderly functioning of the whole organism, yet seem permanently to lack consciousness or self-awareness. In general, the great moral hazard in seeking to procure more organs from the dead is that we will manage, redefine, or hasten death in order to maximize and expand the pool of available organs. This is exactly what embracing the "higher-brain" criteria would do: It would redefine the current patient as dead in order to make his body more useful to others; it would replace the physician's duty to care always for the patient in his care with the ethic of triage-saving whom we can, abandoning the lives we cannot help. The definitions of death now used in practice can be defended philosophically-as consistent with the nature of the biological human organism, as well as with the nature of death as a biological phenomenon. But we also cannot forget that even our present ways of understanding death-whether whole brain-death or death after a set number of minutes of cardiac arrest-are interpretations of nature made necessary by our growing technological control over the end of life. Because we can sustain the organs of a dead human being, because we can manage the moment of his death, and because he is seen as not only a departed person but also as a potential resource for other persons, we have come to see death differently than we did in the past. We have assumed a more authoritative role in the certification of death's arrival. Yet so far, at least, we have done so while trying to heed death's reality in nature, and thus to preserve a crucial moral limit on organ procurement. By contrast, to re-define those without self-awareness or higher consciousness as dead, in order to increase the supply of useable organs, would cross a troubling moral threshold-coming to see the vulnerable patient as a means to help other vulnerable patients, including the willingness to use patients in a "persistent vegetative state" when our knowledge of what is happening in the brains of such patients is still fairly limited. By crossing this line, we not only mistreat those entrusted to our care, we also risk undermining the physician's obligation to the patient in general and the organ transplantation system in particular, by undermining the confidence of future patients (meaning nearly everyone) that those who care for them will care for them always.

IV. Ethical Considerations in Donation from Living Donors:

(1) When it comes to living organ donors, there are certain moral limits on free choice that nearly everyone accepts: for example, we would not permit the decision to donate all one's organs, including one's heart, even in an act of freely chosen lethal organ donation.13 But why not? After all, there might be compelling reasons to make such a decision: to save a dying child, in the belief that the life of one's beloved offspring, the long and open future she might have, is more valuable than one's own limited remaining life; to benefit one's family, if selling one's organs on the black market seemed the only way to lift them out of impoverishment; to benefit the poor, by selling one's organs and donating the proceeds to the most needy, or by giving one's organs to an impoverished, lonely, dying person with no loving donors of his own and no advocates to secure the best chance of getting an organ from the waiting list. Yet we believe, despite these plausible-sounding reasons, that lethal organ donation is morally impermissible, and that free choice in such a case needs to be restricted by society as a whole. Some might even question the sanity of people tempted to be lethal organ donors and wonder how truly "free" such a decision could ever be. Yet it is also possible to envision a tragic rationalist, sanely weighing the options, and concluding that dying for another is the best possible choice in a world of imperfect, indeed miserable alternatives. That we are still inclined to limit such a person's freedom invites reflection (as noted above) on the limits of altruism itself: that is, the moral limits on what human beings can and should do to benefit others, including and perhaps especially the ones they love most. It also invites reflection on the ethical duties that govern the practice of medicine as a whole, and especially the obligation of doctors to preserve the integrity of their profession by refusing to perform certain actions, even those that might save more lives than they would endanger or sacrifice.

(2) In procuring organs from healthy, living donors-even, as with kidneys, when the health risks are not necessarily prohibitive-the doctor necessarily violates the physician's duty to "do no harm" and to act always in the best interests of every patient in his care. Of course, his ultimate goal is to do very great good for another: to help a sick patient in need. But in the moment of cutting into the healthy donor, he is potentially harming and certainly violating the person before him, who is not a patient when he arrives but only becomes a patient when the doctor intervenes-a radical inversion of the normal doctor-patient encounter. The question is: Are there sound moral grounds to override the basic medical ethic in pursuit of another medical good? In the extreme and hypothetical case of living heart donors, the answer is emphatically no. But in the real-life cases of living kidney donors and living liver donors, the situation is more complicated. Strict adherence to the medical ethic would put physicians in the position of preventing the donor's free decision to endure a certain violation and bear a certain measure of risk in order to benefit or save the life of a loved one. Many acts of love require the acceptance of risk-such as a parent who rushes into a burning building to save a child, or even a man who supports his family as a police officer or fireman. The question the doctor must face is whether the potential injury to the ethical principle of "do no harm" is warranted in particular cases, and what it means to be the doctor in those (typically rare) cases in which a healthy donor suffers adverse consequences or even death because of the doctor's own action. In the kidney case, where the surgical removal is not excessively risky and where the donor is left with an intact organ, overriding the medical ethic seems justified, because the risks are limited. In the liver case, where a portion of the donor's vital organ must be removed, the moral judgment seems more complex; the risks are sufficiently great that the doctor may be justified in denying a loving donor the chance to be altruistic. But whether the doctor has a positive moral obligation not to remove parts of livers from healthy donors is a difficult question with no easy or single answer-a question that should be re-opened.

(3) The most common form of living organ donation is between family members and loved ones, which of course makes perfect sense: The desire to save a person one loves is a humanly intelligible motive to sacrifice oneself on their behalf. But the possibility of helping or even saving a loved one by giving one's kidney or a portion of one's liver raises new, complicated questions. Is donation to a needy family member or close friend a moral obligation? Is it possible to love one's spouse or sibling well and yet deny (or withhold) the organ one is physically capable of giving to them? True love often requires sacrifice on behalf of those one loves; it requires acts of self-denial and self-giving for the good of the other, including (often) some sacrifice of the body, expended in the activities of working or care-giving. But this form of self-giving (organ donation), which involves the deliberate violation of one's own bodily person, also seems different in kind. However much we might praise those who give their organs to a beloved family member, we surely cannot condemn those who elect not to give-not, at any rate, without trying to understand their reluctance.

(4) Giving an organ to a sick family member or loved one is surely the most understandable form of organ donation, motivated by the special attachments that form with love and intimacy. But giving to one's own is not necessarily or typically the most just form of organ donation. After all, many others (i.e., non-family members) might have been waiting much longer for organs; their health condition may be even direr; their likelihood of benefiting from an organ may be significantly greater. But few of us would condemn the decision to give only to one's own, and we might even be willing to say that doing so is the most (if not the only) justifiable case of living organ donation, especially for an act that involves significant risk to the donor. But it also means that love and justice sometimes exist in tension; and that the most understandable and perhaps most justifiable form of living organ donation is not necessarily the most just. Justice cannot explain who is loved, or who is loved by someone who happens to be a willing and compatible donor.

(5) Perhaps the most complicated case of living organ donation is donation to strangers, or to those with whom one's relationship begins with the act of giving an organ. On one level, this seems like the highest form of altruism: the giving of oneself (literally) for the good of the unknown other, especially another whose need is greatest. Yet the line between angelic charity and questionable sanity may be hard to discern. For there is something almost inhuman in the willingness to accept (or even seek out) the violation of one's own body for the sake of a stranger, however desperate and moving his story might be. Perhaps such altruism exemplifies human love in its highest form, unaffected by partiality or preference. But we might also wonder: Is such a personal sacrifice truly and entirely an act of giving, without psychological strings attached? Or does the donor perhaps give of himself with the expectation of being loved by the recipient, or even with the expectation of holding a debt that can never be fully repaid? Is the donation truly an act of magnanimity, an overflowing of selfless love? Or is it an act born of desperation, a need to be loved by strangers, an effort to give one's life meaning by fulfilling the deepest desires of another? In light of these questions and concerns, it is imperative to ensure that all living donors, but especially donors to strangers, undergo rigorous scrutiny to ensure that the decision to donate is free of coercion, well-considered, and made for the best human reasons (hardly an easy task, and one that still leaves open the question of who decides what motives are psychologically acceptable). Otherwise, we risk coercing those we love most or using those most in need of love.

V. Ethical Considerations in Organ Allocation:

(1) Because the demand for organs is presently far greater than the supply, we need a system for rationing the organs we do have. With that system, we aspire to justice but we also confront the limits of justice. It is simply unavoidable that some people, as discussed above, will have loving, willing, compatible living donors and others will not, and it would be perverse to prohibit such acts of love in the name of justice. And even when it comes to the allocation of organs from deceased donors-organs not given to specific recipients but meant to be given to the most deserving recipient-the problems of just allocation are significant, since many legitimate criteria for being "most deserving" or "most needy" often come into tension with one another. These include: the amount of time spent on the waiting list, the physiological compatibility of organ donor and organ recipient, the urgency of a patient's medical condition, the likely benefits to be gained by the patient from receiving an organ transplantation, and the age of the potential recipient.

(2) Consider some specific kinds of conflicts: (a) Only compatible organs are worth transplanting. But compatibility admits of degrees, and there may be cases in which a perfectly compatible recipient whose need is less urgent competes with a less compatible recipient whose need is more urgent. (b) In some cases, the patient who needs an organ most urgently-whose very life hangs in the balance-is far less likely to gain long-term benefits from transplantation, precisely because his health is already critically impaired, whereas another, healthier patient whose need is less urgent would likely benefit a great deal. So whose claim is greater: the sickest who will benefit least (not in terms of survival, but in terms of survival time) or the healthiest who will benefit most? (c) For one patient, getting an organ might mean living a slightly longer but still pain-filled life; for another, it might not extend life at all but allow the patient to live considerably better in the time remaining to him. How should such quantitative and qualitative benefits be weighed against each other? (d) In some cases, the organ that becomes available now is not the best organ-that is, it is compromised in some way by the impaired health of the deceased donor. Should it go automatically to the person at the top of the list, or should that person have the option to wait for a better organ, especially if his life is not in immediate danger?

(3) Deciding whose claims are most worthy is no easy matter, about which reasonable people will disagree. For example, one might argue for the following hierarchy of criteria: (a) The young should have priority over the old, with a view to giving the younger potential recipient a chance to experience some of the life that the older potential recipient has already experienced. (b) Those who stand to benefit the most from transplantation should have priority even over those whose need is more urgent but for whom long-term benefits are unlikely. (c) It should be licit to give some weight to the moral worthiness of the recipient: for example, those whose need for an organ is predominantly self-inflicted (say, by long-term alcohol or drug abuse) should have less of a claim than those whose need for an organ is due to the vicissitudes of nature. In all cases, we should not treat some lives as worthier than others in the ultimate sense, yet practically, we must acknowledge that we cannot do everything imaginable for every patient. To deal with this limitation, the primary purpose of organ transplantation might be seen as restoration rather than preservation: restoring a life to greater normalcy rather than extending a life on the edge. But, of course, the counter-argument is compelling: namely, that the first duty is to help the neediest, which means giving organs first to those who might be rescued from death.

(4) Whatever criteria govern the system, creating a list necessarily involves making imperfect guesses, predictions, and judgments. Often we cannot know with any certainty which patient will benefit the most, or which patient needs an organ most urgently. We are left with a conundrum from which we cannot escape: we need a thoroughly rationalized system that gives each potential recipient a rank on the list, and yet the rankings always require imperfect clinical judgments, as well as spot decision by doctors, decisions made under pressure, with inadequate time, always open to second-guessing by others, both in the moment and after the fact. We thus need to improve and refine the system, while recognizing the permanent limits of the system. The best we can do is do our best on the ground-seeking fairness and consistency in the face of sickness and suffering that usually afflict human beings blindly without regard for fairness and consistency. Confronted with the amoral capriciousness of nature and disease, we need to seek the most ethical allocation system possible, knowing that it will always fall short of our ethical aspirations. It is these aspirations that animate the current drive to expand the organ supply.

VI. Policies Aimed at Increasing Organ Donation:

Before considering various reforms of the current system (two in particular), we need to restate the core principles and aspirations that guide it: namely, to encourage organ donation; to respect, as much as possible, both the prior wishes of the individual who has died and the present wishes of the surviving family; to prevent the commodification of the body; to prevent perverse incentives for self-mutilation; to ensure that the system of organ allocation is as equitable as possible; and to enshrine in society the principle of "gifting." Paul Ramsey described this "gifting" principle as follows in The Patient as Person:

A society will be a better human community in which giving and receiving is the rule, not taking for the sake of good to come. The civilizing task of mankind is the fostering, the achievement, or the shoring up of consensual community in general, and not only in regard to the advancement of medical science and the availability of cadaver organs in efforts to save the lives of others.. The positive consent called for by Gift Acts, answering the need for gifts by encouraging real givers, meets the measure of authentic community among men. The routine taking of organs would deprive individuals of the exercise of the virtue of generosity. If, as is said, the young rarely think about their own deaths or about giving their organs upon death, then they should be constrained and enabled to do so by the institutions and practices and laws we enact. To become partners in proved therapies, or joint adventurers in proving therapies, could be among the most civilized and civilizing things young people can do. The moral sequels that might flow from education and action in line with the proposed Gift Acts may be of far more importance than prolonging lives routinely. The moral history of mankind is of more importance than its medical advancement, unless the latter can be joined with the former in a community of affirmative assent.

Yet the altruistic system we now have also has a limitation we find hard to accept: it does not result, at least at present, in enough living or cadaveric organs for all who would benefit from them. The imbalance of organ demand and organ supply has prompted various calls for action and reform: to increase the number of voluntary living donors, to increase the number of eligible deceased donors, to increase the percentage of eligible deceased donors who become actual donors, and to improve the efficiency of organ procurement from deceased donors. Some of these proposed changes work within the current ethical and policy framework (e.g., more effective strategies for convincing citizens to be organ donors, better strategies for requesting consent from surviving relatives, more effective procurement from those declared dead by cardiac criteria, soliciting live donors via the Internet, paying health and living expenses for those who donate, expanding the criteria for donor eligibility, promoting paired organ exchanges); others seek radical changes in the current system (e.g., moving to a system of "presumed consent," redefining death to include those who have lost higher-brain functions, government payment for organs, free or regulated organ markets, organ conscription).

As the Council prepares to evaluate these myriad possible reforms, it might begin by considering three policies-ideal types in reverse-that nearly all Americans would rightfully find unacceptable, albeit, for different reasons. The first is a policy of organ conscription or mandatory organ retrieval. Under such a policy, all cadaveric organs would be retrieved regardless of the wishes of the deceased individual or the surviving family; the operative principle here is that dead bodies are a public resource that may be deployed to serve the common goal of saving human life. The second is a policy of unrestricted autonomy, which would allow individuals to enter into any contracts they wish for the buying-and-selling of their organs, to be procured during life or after death. The guiding principle of such a policy is that individuals "own" their bodies as a "possession," and that only individuals can weigh the risks versus benefits, the pains versus pleasures, entailed in deciding whether to keep, sell, or be buried with one's organs. Such a policy would include, on its own principles, the right to sell vital organs while alive (so-called "lethal transplants"), since an individual might rationally decide that the satisfaction of providing money for his family outweighs his desire to continue living. The third policy is state-mandated protection of the inviolability of all bodies, dead or alive. Such a policy would outlaw all organ retrieval, on the principle that the body should not be turned into a mere means or thing, even for a noble purpose such as saving life, and that the activity of mourning must not be interfered with by removing the deceased individual's organs.

Each of these policies, by trying to preserve or attain an absolute but isolated human good-saving life whenever possible, granting the highest degree of individual autonomy, protecting the inviolable integrity of bodily life-ends up compromising or sacrificing other vital human goods. By seeing the extremism of these policies, we are perhaps awakened to the challenge of making a policy (or preserving the existing policy) that is both more moderate and more sober. And we are in a better position to judge some of the reforms now being proposed. Two prominent reforms-the use of monetary incentives and the routine retrieval of organs from the deceased (often called "presumed consent")-merit special evaluation here.

(1) Monetary Incentives ("Buying and Selling"):

(a) One of the most discussed proposals for increasing the supply of organs is to provide monetary incentives for individuals to supply their organs. (Note: once money of this sort is involved, it is incorrect to speak any longer of organ donors.) These proposals take many different forms, and disentangling them is the first step to evaluating their wisdom.

(b) One proposal would involve the buying and selling of organs in the open market, with prices and practices set by supply and demand, just as with other valuable commodities. Most likely, such a system would give rise to organ brokers who act as middle-men, matching prospective buyers with potential sellers, and matching both suppliers and recipients with a medical facility that can perform the procurement and transplantation. It would likely include both "spot markets," where living individuals or relatives of the deceased could sell their organs now; and "futures markets," where living individuals could sell the rights to their organs if and when they die in a manner that makes organ recovery possible. The highest prices would be paid for living organs from healthy donors, who provide not a potential future commodity but an actual present commodity. The future rights to one's organs would likely command a far lower market price, since most people do not die in such a way that organ retrieval is actually possible. (Of course, organ markets could be combined with other reforms that permit organ retrieval from the debilitated or dying but not yet dead, making the future rights to one's organs a more valuable commodity.) There already exists a black market for living organ donors, suggesting that the most likely organ sellers would be the very poor at home and especially abroad, who see their organs as the most valuable (perhaps the only valuable) economic asset they have, and who judge that selling them is the most promising way to lift themselves and their families out of abject poverty. Moreover, a truly free market in organs would obviously affect not only organ procurement but organ allocation: the wealthiest individuals would have readiest access not only to the most organs but to the best organs. Most likely, a two-tier system would evolve, with the wealthy securing their organs in the private market and the less affluent joining the public waiting list for organs donated rather than sold by those who find the prospect of selling repugnant. Some seek to develop a system that would permit organ selling in the free market while preserving a system of organ allocation that is dictated by moral and medical criteria rather than market criteria. But this idea seems unworkable, since it would prohibit the creation of a motivated buyer pool-namely, those who need organs for themselves or their loved ones. Perhaps insurance companies would buy organs for those they cover because the long-term costs of dialysis are greater than the immediate costs of organ transplantation. But this seems a questionable prospect.

(c) Another proposal for introducing monetary incentives involves various kinds of public compensation for organs-in the form of cash payments at a fixed price per organ, tax credits, reduced health-insurance costs, early eligibility for Medicare coverage, payment of funeral expenses, or donation to the donor's chosen charity. Defenders of such compensation proposals often seek to distinguish them from organ markets: they argue that the compensation would be public, not private, and thus would represent the appreciation of the entire community rather than a private contract between parties; furthermore, a public compensation system could set firm limits on what could be compensated-for example, allowing cash payments to the families of the deceased but not payment to living donors, or paying for funeral expenses rather than paying a cash price for particular organs. Moreover, a public compensation system for increasing organ procurement could be kept separate from the system of organ allocation so as not to endanger the equity of organ allocation, whereas the right to sell one's organs in the open market would likely give special advantages to wealthy prospective buyer-recipients.

(d) The moral case for financial incentives is rooted primarily in the desire to increase the organ supply and thus ameliorate the current suffering and potential death of those on organ waiting lists. To some observers, it seems absurd not to treat organs like any other commodity, where the free market effectively brings supply and demand into balance. And it seems irresponsible to allow vague moral considerations about the "commodification of the body" to impede the concrete good of saving lives by potentially expanding the organ supply-especially when there are wealthy people desperate to buy organs and poor people desperate to sell them, an exchange that mutually benefits both parties. Some believe free markets should only be permitted for organs from deceased donors, where the possibility of harm is limited; others believe the most promising use of markets is to expand the pool of living donors. Moreover, some proponents of buying and selling are intent not only on increasing the organ supply but also on expanding the scope of individual autonomy. They affirm that free choice should dictate the provision of organs; that those individuals who believe selling a "redundant organ" could improve the quality of their life should be permitted to do so; and that it is condescending to protect the poor (or anyone else) against the rational choices they might make for themselves, including the decision to sell part of their body. And they note-quite correctly-that everyone else involved in the organ transplantation business-the doctors, the health insurance companies, those working for organ procurement organizations, and so on-profits in some way from the practice of organ transplantation, except for those who supply the most valuable asset: the organs themselves.

(e) The most common objection to payment for organs is that such monetary incentives would exploit the poor, who would bring harm to themselves motivated only by money. This is a weighty but problematic objection. To defenders of organ markets, the freedom to sell their organs extends opportunity to the poor, who stand to benefit the most from this new freedom and expanded ownership over their own bodies. They would not be coerced to sell their organs; they would merely be given the option to do what many poor people want to do anyway (and in some cases are doing already); and they would be lifted up from the dangerous underground market, where the health of the donor is a low priority, to a regulated system of compensation, in which all exchanges are done above board and with adequate safeguards for donor health. And yet, in a wealthy society like our own, do we really benefit poor people by encouraging them to believe that the only way or best way to make ends meet is to sell their body parts-that is, to sell "assets" that require no work, no skills, no possibility for long-term self-improvement? Do we not, in fact, consign the poor to hopelessness if the only hope we extend them is the one-time sale of a kidney?

(f) That said, if the only major objection to organ markets is aversion to exploiting the poor, one could permit only those with incomes above a certain level to sell their organs, or prohibit buying and selling organs of people from impoverished countries. True, this would dramatically reduce the supplier pool, since most wealthy and middle-class people are unlikely to expand their wealth by selling organs; the poverty of the poor is precisely what makes them such good targets for solicitation. Yet we also must ask: Is organ selling by the non-poor-to buy a second car, to help pay for college, to finance a second honeymoon-really less morally problematic? Isn't there something about turning one's body into alienable property that is always problematic, no matter how much other property the prospective organ seller already has? This question is best considered in two parts-by looking at what it means to buy organs from the living and organs from the dead.

(g) Even without payment of any kind, as we noted above, organ procurement disrupts the course of dying and mourning. Introducing money into such situations would likely aggravate this disruption: it could lead to new tensions among surviving family members who disagree about whether to permit organ donation, or about the propriety of taking money for organs; it could tempt family caregivers to alter the course of care in order to get paid; it could (in the case of "futures markets") give a third party a commercial claim on the body that trumps the interests of the surviving family, whose wishes and needs as mourners might violate the business arrangement entered into years ago by the deceased; it could add confusion to the family's sorrow at the death of a loved one, leaving it unclear whose responsibility it is to retrieve the organs that belong at death to whoever has paid for them. We might also wonder: Is the marginal value of selling the future rights to one's organs likely to prove a sufficient incentive to expand the donor pool in a significant way? And is the value of selling a family member's organs on the spot really likely to override those religious, ethical, or personal reasons that make many individuals or surviving families hesitate to become altruistic donors? To what extent, in other words, will the promise of money actually change people's attitudes and judgments about the wisdom of permitting their own or their loved one's organs to be retrieved at death? In one sense, when it comes to the deceased, worries about exploitation seem much less compelling: if we believe that becoming a posthumous organ donor is a good thing for everyone, then we would hardly be exploiting the poor person after death by honoring his good deed with compensation that his family probably needs. One problem, however, is that the prospect of payment may change the way families care for loved ones before death, or while they are dying. The poor donor is at risk of being exploited not only or primarily by the buyer but, at least potentially, by the donor's family who now stand to benefit financially by his death. But here again, exploitation is not the only or deepest worry. The most serious concern is coming to see the body as a mere thing, like any other commodity or natural resource. The market works efficiently by making things generic and therefore interchangeable; the price system is effective because it can put a price on anything, with little regard for what the thing is. In many cases, this reduction of things to comparable quantities is desirable, since it allows different commodities to be traded, and thus allows a multitude of different producers and consumers to obtain what they need and dispose of the valuable things they wish to sell. But in some cases, as with the human body, the market's blindness to what a thing is debases those who trade in it. The very efficiency that would come from depersonalizing the source of organs-by treating them as mere resources, not as parts of this embodied person-makes the whole enterprise morally compromised. Even if a market in dead bodies were to increase the organ supply-which it very likely would-the cost of putting so explicit, so impersonal a price on the body is too high for society as a whole. Perhaps it would be less objectionable to honor the donor in some valuable way rather than pay the supplier an explicit price; and perhaps we should explore ways of honoring that are valuable but not exactly (or quite so explicitly) monetary. But the line will always be grey between honors with value and reward by payment.

(h) The problems of commodification only become more severe when we consider buying organs from living (mostly poor) donors. Living donors necessarily expose themselves to some harm, an exposure that makes greatest moral sense when done to benefit a family member or friend, as an act of love. It makes less moral sense as an act of commerce. True, the motive to sell one's organs might still be love: namely, the desire to benefit one's family with the proceeds of one's sale. And the poor, merely by being poor, are no doubt already exposed to a variety of risks comparable to or greater than the risks associated with giving up a kidney. But even if this is so, it does not justify the act of organ removal by physicians who abide by the medical ethic: first, do no harm. And using monetary incentives to create a large pool of anonymous "donors" for sale would put untold pressure on doctors to compromise that ethic on a grand scale.

(i) In the end, those who object to the buying and selling of organs cannot deny the possibility-indeed the likelihood-that organ markets (especially for living donors) would significantly expand the organ pool and save many lives. In saying no, we need to acknowledge that likelihood, believing nonetheless that other crucial values-the dignity of the body, the ethical vocation of medicine, the humanity of dying and death, the meaning of giving vs. selling the body-should not be compromised. The obligation of doctors and of society to the sick is to do everything permissible to heal them, not everything imaginable. The weight of their suffering will always be heavy, but it would be a mistake to permit the very ethical boundaries that preserve our common humanity to crumble even under this admittedly heavy weight.

(2) Routine Retrieval ("Taking and Getting")

(a.) Another proposal for expanding the organ supply would replace the current system of requiring explicit consent before organs can be procured with a system of routine and default retrieval, in which it becomes standard policy to retrieve all usable organs after death, unless individuals or surviving families expressly request that such organs not be retrieved.   This proposal is often called "presumed consent," but this name is misleading: consent, by its nature, cannot be presumed; it must be given. More accurately, such a policy is a form of universal organ conscription, which at the same time acknowledges the right of conscientious objectors to renounce participation in the common system of retrieval. One must choose explicitly to "opt out" rather than choosing to "opt in."

(b.) The primary aim of such a policy would be to increase the organ supply, while at the same time eliminating the delicate and difficult task of requesting organs from family members moments after a loved one has died. The presumption is that most people who are not declared organ donors do not in fact have deliberate reason not to be; the fact that they have not gotten around to opting in is no reason to believe they want to opt out. There are different potential implementations of routine retrieval, ranging from those that make non-retrieval of organs relatively easy to those that make it relatively difficult.

(c.) Yet while such a system seems likely to increase the supply of organs, it does so at a cost, by staking a claim to the deceased and his or her body without individual or family consent. In the name of making things easier-sparing us the difficult work of requesting consent from the grieving-it wrongfully imposes on their good will at a time when they need the good will of others. It would change the character of organ procurement from "giving" to "taking," and it would replace the personal act of charity, undertaken knowingly and freely, with a policy that treats dead persons as public resources, unless they insist otherwise.  And, it would greatly expand the power of the state, forcing families to claim "possession" of the deceased body only so that they might proceed with rites of "surrender and separation."14 

VII. Conclusion

The fact that these two possible reforms-"buying and selling" or "taking and getting"-raise substantial moral problems hardly means that the current system is morally best. The council can perhaps contribute most by disentangling other possible avenues of increasing the supply of organs-namely, those that do not involve monetary incentives, organ conscription, or the willful re-definition of death. This includes: (a) "mandated choice," which would require all adults to make a positive decision about whether they wish to be organ donors and/or whom they wish to act as surrogate decision-makers at their death; (b) "organ exchanges," including those that allocate an organ from the waiting list to a lower ranking recipient in exchange for a donated organ from the recipient's family member or friend; (c) "Internet solicitation," which aims to expand the pool of anonymous living donors; (d) giving organ preference to organ donors, including the accrual of points based on how long one has been a designated donor; (e) the expanded use of "expanded criteria" organs taken from donors with compromised health; (f) expanded efforts to procure organs after unexpected cardiac death; and (g) rewards that do not put an explicit price on individual organs.

Yet as we consider the practical policy options before us, we need always to keep in mind the image of man that any particular system necessarily reflects. Indeed, the debate over organ transplantation touches on many of the deepest issues in bioethics: the obligation to heal the sick and its limits; the blessings and the burdens of medical progress; the dignity and integrity of bodily life; the dangers of turning the body, dead or alive, into just another commodity; the importance of individual consent and the limits of human autonomy; and the difficult ethical and prudential judgments required when making public policy in areas that are both morally complex and deeply important. It is no exaggeration to say that our attitudes about organ transplantation say much about the kind of society that we are, both for better and for worse.

In the end, in trying to fashion the best system for organ donation, we are forced to accept the "tragic" nature of any policy we choose. Inevitably, some goods will be compromised in order to preserve other goods that are deemed to be more important. By setting moral limits and outlawing "cash for flesh," we may be decreasing organ supply-and thus accepting the suffering and death of those we might have saved, at least temporarily. By setting aside those moral limits-by treating the body as alienable property-in the hope of increasing the organ supply, we risk devaluing the very human life (and human bodies) that we seek to save. It is of course possible that current opposition to organ markets or public compensation will someday seem as quaint and misguided as past opposition to organ transplantation itself. No doubt the taboos of the past-such as respect for the utter inviolability of dead bodies-have stood in the way of much that is good about modern life and modern medicine. But it is also possible that the sweeping aside of some old taboos has diminished us, dehumanized us, and corrupted us. It is this risk of corruption and dehumanization that we must not fail to recognize, even as we seek to ameliorate suffering and cure disease by every ethical means possible.

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ENDNOTES

1. Institute of Medicine, Organ Donation: Opportunities for Action (The National Academies Press, Washington, DC 2006).

2. For example, see op-eds on the same day by Sally Satel, "Death's Waiting List," New York Times, May 15, 2006 and Richard Epstein, "Kidney Beancounters," The Wall Street Journal, May 15, 2006. Interesting also is the special issue of the Kennedy Institute of Ethics Journal, Vol. 13, No. 1, March 2003.

3.This discussion paper benefits greatly from the writings and reflections of those who have written for years on this subject, and it surely makes no pretense of originality. These thinkers include (though hardly exclusively): Paul Ramsey, Hans Jonas, Leon Kass, Gilbert Meilaender, William F. May, Edmund D. Pellegrino, Robert Veatch, and Richard Epstein.

4. Organ Donation: Opportunities for Action, p. 25-26.

5. Organ Donation: Opportunities for Action, p. 19.

6. This data is available at the website of the Organ Procurement and Transplantation Network, www.optn.org.

7. Of course, justice and fairness are concepts that invite serious inquiry and debate. In present usage, a "just" or "fair" system of organ allocation is one that allocates organs to the most worthy recipients, with worthiness defined by medical, moral, and social criteria. Disagreements abound on what medical, moral, and social factors to weigh most heavily in deciding which potential recipients have the greatest or most urgent claim on the organs we have. (See Section V for a fuller discussion of the ethics of organ allocation.) Indeed, one might even ask: Is the fairest system (one that ranks all patients according to the same weighted criteria) truly the most just (a system that gives each patient his due)? Is the most just system really fair? But for present purposes, justice and fairness are used (albeit cautiously) somewhat interchangeably.

8. The human goods at stake in our system of organ donation, procurement, allocation, and transplantation include: the dignity of every patient, including those with permanent disabilities and those who are irretrievably dying; the good of healing the sick and giving hope to the ill; the standing of medicine as a moral vocation; the protection of vulnerable individuals from self-inflicted harm; the promotion of altruism as a civic good; devotion to family members and loved ones in medical need; the integrity of the human body (or embodied person), both in life and after death; and respect for those in mourning, especially those who have lost a loved one suddenly and unexpectedly.

9. Gilbert Meilaender, "Second Thoughts About Body Parts," First Things, Number 62, April 1996, pp. 32-37.

10. One would not say the same about a father who throws himself in front of a bullet to save his son. In the organ transplantation case, the father deliberately chooses suicide as the means to help his son. He is the willful agent of his own death, making himself the means to the (good) end of saving his son. In the bullet case, the father accepts death but does not seek it deliberately; he is not the agent of his own death. There is a moral difference between being shot and hiring a shooter, so to speak, even if the goal (saving the son) is morally praiseworthy in both cases.

11. Some still contend that even whole-brain death does not mark the death of the whole person, and that organs should only be removed from those who have suffered whole-brain death after allowing the heart to stop for at least two to five minutes. In addition, while the death of the whole body surely means the death of the whole embodied person-how else could the person be alive if his body is dead-parts of the body are still "alive" residually even after the person is clearly dead.

12. Of course, the surgeon is also a symbol of hope for the waiting organ recipient, and thus perhaps a source of solace for the surviving family whose gift makes such hope possible.

13. For example, this is considered at great length by Paul Ramsey in his The Patient as Person.

14. For an elaboration of this point, see William F. May, "Attitudes Toward the Newly Dead," The Hastings Center Studies, Vol. 1, No. 1, 1973.


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