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Thursday, February 15, 2007


Session 1: On the Body and Transplantation: Philosophical and Legal Context

Staff Discussion Paper - Setting the Stage for Council Consideration and Possible Action on Policy Options and Proposals

 

DR. PELLEGRINO: We will begin this first session this morning on the body and transplantation, a philosophical and legal context.  We have asked two members of the Council who graciously agreed to open the discussion and therefore will be the focus and to carry out that theme we want to play throughout this session, focusing on where we are at the present moment and on the possibilities of closure.

The first discussion will be Dr. Meilaender and the second will be Dr. Alfonso Gómez-Lobo.

Dr. Meilaender?

PROF. MEILAENDER:  Thank you.  The staff paper that we have for this session quotes some comments that Jim Childress made to the Council when he was here once and they make a point that it seemed to me is useful to start my comment.  He was here, you remember, to discuss the Institute of Medicine report, what it had done and what it had not tried even to do and that report dealt mainly with certain kinds of policy questions, some of which we ourselves will talk about in other sessions at this meeting, but what it hadn't tried to do and what Childress said and it's in that quote, said that he thought this Council might usefully do was to push the discussion to what he called the deeper level by thinking through some of the fundamental anthropological questions that are buried in the policy issues.  And that I take to be the aim of the staff paper that we're discussing in this session, to invite us to think about such questions and the special contribution that we might make.

I want to highlight just a few aspects of the paper, a few questions that come out of that seem to me central for any report that we might produce.  The whole of the paper may be, if I may sort of gently put it this way, a little too interested in teasing out every possible question that arises and I'm going to try to follow each one of those.  I'm just going to take up a couple of things.

The passage from Hume that the paper cites somewhat later notes what, in some ways is obvious, but still worth noting that we face changed circumstances, where once the body and its parts might not have been thought of as alienable possessions, in part simply because we lacked the technology to act on that way of thinking anyway.  This is no longer true.  We're now able to think of the parts of the body as resources available to others and then even as commodifiable resources and here, as elsewhere in life, what we're able to do is hard not to do, even if it's in some ways disturbing.

The first thing I'd say is that I don't think we should suppress that sense of being disturbed.  We should try to learn from it.  As we've had occasion to note several times along the way in previous meetings, even the dead body retains something of its character as the place of personal presence.  Back in June of 2006, an Al Qaeda-led group in Iraq released footage, you probably remember the incident of two corpses that it said were those of U.S. soldiers who had been killed and the video showed a decapitated body and several dead bodies being stepped on.

And if you think about it, that kind of ritual dishonoring of a corpse can't have any point or it has its point only because even the corpse still signifies something about the body's inseparable connection to the person and the presence of the person.

Likewise, in what I thought and I think everybody maybe thought was one of our most interesting sessions, Thomas Lynch, the poet-mortician, gave us a definition of the human that goes a lot deeper, I think, actually than some definitions philosophers might give us.  What Lynch said was is ours is the species that keeps track of its dead.  That was his anthropology.   Keeps track of the persons whose identities are so closely tied even to those now dead bodies.  If that is true of the dead body, then how much more so of the living body?

Stuart Spicker, in another session that we had, invited us to think about this.  You may remember he even gave us German terms to think about it.  Then you know you're serious.  Distinguishing between what he called a korper, the material organic body and what he calls leip, the lived body.  That was his translation of that, in which the leip, in which the person, the subject is not separated from the body but is one with it and it is thinking, acting, and feeling.

That really is where it seems to me any report we make in some ways does need to start.  We don't need German terms probably to accomplish that.  But not maybe starting where the staff paper starts with the analogy of machine and body part, but starting with that understanding of the lived body and its wholeness and fullness. 

The paper does, the staff paper does capture this, I think, quite nicely at several places along the way.

For instance, in its discussion in the sense in which an organ is not itself a whole, depicts, for instance, a person's respiratory system as involving much more than just the functioning of the lungs, but involving other parts of the body and even in a sense every cell of the body in the intake and outflow of air.  It seeks to capture that.

The paper also points to another place to the way in which the immune response is not just a matter of certain cells, but the person responding to the foreign object, the way those cells retain their connection to the whole lived body of the person.

So the organ has to be thought of first in connection to the bodily whole.  A kidney doesn't urinate, a person does.  An eye or an optic nerve doesn't see, a person does.  So we can only understand those as human actions, seeing for instance from above, from the perspective of that whole person, the lived body.  And it's this, I think, that has always troubled and disturbed people somewhat when they think about separating or alienating the organ from the person and grafting it into another body of another person.

As I've said, I think it would be a mistake just to suppress that sense of being disturbed because we need it to point us to the sense of the truth about the kinds of beings that we are as embodied wholes, and not just as collections of parts or resources.  We have, though, managed to find a way to retain some of that sense while still detaching organs for transplant, and to do this without thinking of the organs simply as a resource.  We've done it with the language we're given, which again is I think inseparably connected with where we need to begin.  It is not language precisely about motives of agents so much as the nature of the act, and the gift, whatever the precise mode of the giver retains a connection to the giver.

The gift is not utterly and completely detachable from the giver in the way that the commodity is detachable from the seller.  So the giving of organs has been the way we found to achieve some good ends for those who are in need without denying that there is also something troubling about what we're doing.  It's been a way of trying to do justice to two concerns that just ineluctably stand in a certain tension and the giving language which seems to me important for us to contemplate.  It's been our way of doing that.

Anyway, this is where I think we might start the staff's paper.  In particular, its decision of the sense in which an organ is not a self-sufficient whole points us in this direction.  It's related to that deeper contribution that Jim Childress said we might usefully make.  And I think it will make anything we say about specific policy questions more illuminating when we set them into the context of reflection of this sort.

DR. PELLEGRINO:  Thank you very much, Gil.  What we'll do is go ahead and have Dr. Alfonso Gómez-Lobo's comments and then open up the subject to discussion for the whole Council.  Professor Gómez-Lobo?

DR. GÓMEZ-LOBO:  Thank you.  It's always dangerous to speak after Gil, but I'll try to do my best.  I saw the staff paper, very good, excellent staff paper as an invitation, a two-fold invitation.  On the one hand to reflect on the philosophical assumptions that underlie the practice of transplantation in general, but I thought it already pointed towards one of the most contentious and concrete points mainly, whether the Council is prepared to endorse or to reject a regulated market in organs.

Now I am going to start by admitting that I find the philosophical issues surrounding organ transplantation perplexing, very perplexing and this may be one more case where philosophy is accused of being useless.  Nevertheless, I will try partially to overcome my perplexity and offer first the conjecture about background assumptions that are, I think, unconsciously at work in the proposal, for example, to open up a market for organs.  And then I'll end with some suggestions for the discussion.

In the second section of the staff paper, there's an argument that the machine metaphor is at work in much of the conceptualization of transplantation.  And the paper shows, I think, in a lucid manner how this metaphor is in many ways misleading, it is insufficient.  It leads us the wrong way.  For example, it makes us think about organs only as detachable and replaceable body parts.  And if they are, why not sell them as we sell automobile parts?

For the purposes of our discussion, I would like to take the metaphor one step backwards.  In the 17th century, many thinkers were seduced by the idea that the body was a machine and La Matrise is not the only one.  But this was possible.  The very conceptual possibility of thinking about the body as a machine was due to the prior assumption that humans are really compounds of two substances, a body or extended thing and a soul or thinking thing.  And this view of human nature is known in our profession as dualism. 

Now one of the really surprising things in Anglo-American philosophy in recent decades is that dualism consciously or unconsciously is making a comeback.  The standard talk about "a fetus becoming a person" requires, I would argue, dualistic assumptions.  It requires a body that begins to exist and something quite different that arrives at a later point.  A prominent defender of such a view talks about the body being first unoccupied and then occupied by the mind.  These are his terms.  And of course, by analogy something similar may happen at the end of life, the famous "two death" theory that says in the case of persistent vegetative state, the person dies, say on a given date and then something different, namely the body continues to live and dies later on. 

Now this, I think, is a very pervasive view presently in America although it may be, as I said, consciously or unconsciously present in people's minds.  Now if we are essentially minds that are associated with a body, then our body is strictly speaking alien to us.  And it seems to me that there's a short distance between being alien to me and being alienable, being something whose parts I can sell, something that is over which I have property rights.

As any student of the history of philosophy realizes, dualism, whether Cartesian, that is envisaging body and an immaterial soul or what I would call post-Cartesian or post-modern Cartesian envisaging a body and a material mind, any form of dualism is deeply unsatisfactory. 

Now I will not rehearse the arguments here that have been fielded against it.  That's typical of our modern philosophy class, but among the many inconsistencies and paradoxes it generates, I would ask you to consider the fact that almost obsessive care of the body occupies center stage even for those who see themselves as essentially minds.  I interpret this as a form of performative self-refutation.  Perhaps it signals that they do not really believe that their body is an appendage to their minds.

Now what is a reasonable alternative to dualism?  I think it is the view that underlies the admirable contributions submitted by Leon to the dignity volume, namely, that we are unified beings, that we're not two-fold, that we're unified beings whose bodies are essential constituents of the person.  In my opinion, this entails in a very profound sense that the slogan "our bodies, our selves" is true.

Now what does this contribute to the problems we were discussing?  Well, consider for a moment the difference between freely selling one's body in prostitution and freely gifting one's body in committed love.  In the language of dignity, the former amounts to treating one's body, that is, oneself as a mere means for the sake of an extremely sick game.  The latter, on the other hand, manifests human dignity in one of its highest forms.  The action itself is an end and one treats their — oneself and the loved one as an end in him or herself.

I suggest that we might be able to extend this analogy to the selling versus the gifting of body parts.  In both cases, the core of our humanity is at stake, but in one of them it seems human dignity is violated.

To this invitation to start from the assumption that his or her body is not alien to a human being, an obvious objection can be raised and will be raised, I think.  At the receiving end, there's also — in transplantation, there's also a body, there's also a person who will be preserved if she can buy an organ.  In generalizing, we have been urged to consider how a market in human organs will be for the greatest good of the greatest number.

The shape of the argument is well known.  It is the utilitarian argument.  Perhaps we'll be forced to revisit once again the old dilemma, do good ends justify any means or are there means that we should refrain from using even at the cost of giving up those ends?

I take it that this should give us sufficient material for a discussion.  Thank you.

DR. PELLEGRINO:  Thank you very much.  We'll now open the commentaries and the paper to discussion.  The authors of the paper are standing by only to answer technical questions, but we'd like to have the conversation focused on the Council's own opinions and responses.

We'll follow our usual procedure, indicating your desire to speak and we will take each of you in order.

DR. FOSTER:Alfonso, just a very brief question.  We've heard "our bodies, our selves" very often.  If I have my gall bladder out or somebody takes my uterus out or if I remove pituitary glands and both breasts or something for cancer and so forth, am I less myself?  Is that person less of self because a very great deal of our discussion is about donation or selling of organs and so forth.  But obviously, you don't literally mean that my body, myself, if it's missing any part then I'm less myself any more than I would be less myself — I mean not in the same sense I'd be less myself if I became cruel or uncaring or something of that sort.

DR. GÓMEZ-LOBO:  Well, that opens up the next step in a discussion of this topic, namely, how should we understand the body which is something that I did not touch upon.

There is, of course, the well-known fact that there are — maybe they can be called "dispensable [parts]" of the body.  There is this whole problem of what would constitute something like the core elements in the body.

Now, of course, it's not that I'm less of myself, but the question that I'm trying to raise is if there's an integral unity between myself and my body, then the idea of selling organs becomes deeply disturbing, whereas I think that gifting does not.

DR. FOSTER:Well, why is it disturbing to you if, let's forget about the selling and so forth.  It doesn't disturb you to give away — to have something taken out, let's say surgically and so forth, but on the other hand, if it's taken out to save a life or something of that sort that's terribly disturbing and as a consequence the human dignity is lost.  I'm trying to get the connection between those things.

If you come to me as your physician and I tell you, you know, what I've got to do to you to save your life you might decide you'd rather die, but by and large you would do this.  And I'm still struggling with the idea of how it's a loss of human dignity to give or at least to sell an organ to save a life as opposed to taking an organ out to save a life of your own.  I mean I just don't really see it.

DR. GÓMEZ-LOBO:  If I may.  I think it's a very subtle point.  The case of extracting an organ say an organ because of gangrene or illness, I think has to be conceptualized as an action for the sake of the good of life, particularly if it is threatening to your life.

Now the case of gifting the organ, I think should be conceptualized in the same way, whereas the selling of an organ has built into its very structure the idea that this is just a means to obtain an extraneous end which is the money.  That's the point I think at which there is an important difference in the action itself.  It's that there is a goal built into it, a goal which makes say the body or the organ into a means for gain.

DR. PELLEGRINO:  Dr. Kass.

DR. KASS:  Let me disagree with Alfonso and try to respond to Dan's question.

I don't think that the essential feature here is the exchange of money.  If there wasn't something disquieting about the — let me speak luridly, of the self-mutilation, not for the body's own benefit, we wouldn't really be worried about people making a living at it or making gain.

I think the difference has to do with for the same reason that we don't allow (just) anybody to cut a body, we cut the body for the sake of the well-being of that body, usually not for any other reason and that's why live organ donation is at least a dilemma for the medical profession.

It's not true, I think, that in all cases where parts are removed to save a life that the person doesn't somehow feel in some way diminished.  I'm not going to speak the language of dignity.  People who have hysterectomies or who lose a breast for therapeutic reasons, in the one case, want to have reconstructive surgery and many a woman would feel somehow diminished by this, even if it's lifesaving.

But I think the question has to do with the difference between the amputation of a part for the sake of the whole of which that part has now become threatening and the gratuitous amputation of that part for some extraneous good.  And I think if you start this discussion only with the buying and selling, you will not see the kind of question that Gil wants to start us with and I don't think you can do this — I don't think you could sort of see the difficulty if you start where Alfonso says giving not for one's own bodily health is not a mutilation.  It becomes a mutilation only when there's commerce involved.

So that would be my — it doesn't settle the question of what we ought to do, but there really is something disquieting about the transfer, especially of non-renewable parts to diminish the wholeness even if for good purpose.  And on balance, we might be able to justify that good purpose, but there is some kind of new relation of oneself when one does this.  I think.

DR. PELLEGRINO:  Thank you.  Dr. Eberstadt and Dr. Carson in that order.

DR. EBERSTADT:  Leon just touched on the question that I wanted to pose which is whether members of the Council found a discontinuity or a break between the — in terms of their discomfort, between the prospect of transfer of regenerative body parts and the prospect of permanent transfer of non-regenerative body parts.  Is this the sort of moral or conceptual line in the sand that people see as being the distinction that we need to focus on?

Alternatively is any sort of transfer of body parts, regenerative or not, a question of discomfort?

DR. PELLEGRINO:  Thank you.  Dr. Carson?

DR. CARSON:Thank you.  I find the whole discussion a little disturbing in the sense that we're trying to come up with our recommendations about how a body market should be crafted.  And there's a premise that we ought to even be delving into this and the reason I find it disturbing is that there are portions of our population who would be considerably more tempted to sell their body parts than others for economic reasons.  And they might find an easy mechanism for obtaining sustanence when, in fact, if they didn't have that option they might go out and do something else that might be more constructive for society and less destructive for themselves.

It's hard to become part of something that would facilitate something like that and I wonder if perhaps more energy should be devoted to finding ways to encourage organ procurement in situations where the organ is no longer needed.

DR. PELLEGRINO:  Dr. Meilaender and Dr. Lawler next.

PROF. MEILAENDER:  Back to your question, Dan, which is an important one.  When I spend a couple days grading 30 exams, as I did recently, and say to myself, gee, I could have been a doctor instead of doing this, I think about the fact that sometimes we talk about doctors.  Classically, we've talked about physicians and surgeons.  There's something special about being a surgeon, especially problematic actually in certain respects.  And if any of us just think gee, I could have been a doctor, it would be one sort of thing I'd have to do to become a physician and if I wanted to become a surgeon, I would have to repress, really learn to repress certain fundamental impulses, for good reasons, but nevertheless, to repress them, because that is a sort of harm that's done in service of the well being of the person.

I mean it's in that sense even surgery has been troubling in certain respects.  We find reason to do it in service to the person, but that's part of what I meant.   Part of what I meant in my remarks by saying that we shouldn't suppress our sense that something is troubling, even more troubling in removing the organ in order to transplant it into another body.  There may be reasons to do it.  But if we don't suppress what bothers us about that it will at least force us to think about whether there are ways of doing that that sort of don't deny the truth of what we're doing and ways of doing it that sort of blind us a little bit to the truth.  That's the issue, it seems to me.

DR. PELLEGRINO:  Dr. Carson, did you want to respond?

DR. CARSON:Only in the sense that first of all as a surgeon, I don't like to do surgery.  Most people find that rather strange.  I don't like the sight of blood.  They say how can you be a surgeon?  I would say would you rather have a surgeon who likes the sight of blood?

(Laughter.)

In fact, perhaps, you do have to suppress certain emotions and tendencies in order to do what you do and it's a very good point to bring up, but still I have to keep coming back to the issue of are there better ways to get organs?  I mean how many people die every day with absolutely great organs that, in fact, could be used to save other people's lives?

And the emphasis is not where it needs to be.  And until we reach a point where we're taking maximum advantage of those organs that are being wasted, why would we start taking organs from functional individuals?

DR. PELLEGRINO:  Dr. Lawler?

DR. LAWLER:  Let me say first of all, I agree with Gil's theoretical argument against organ transplants, organ sales, rather.  And Ben's practical objections.  Nonetheless, I think this is a tough issue in terms of guiding American public policy as opposed to reaching philosophical conclusions.  For example, I agree with Alfonso's argument against dualism, but I wonder to what extent our country isn't built on dualism anyway, for example, the core of our understanding of justice is rights. 

I understand our rights seem to come mainly from Locke and according to Locke, we're free from nature.  And to push ourselves away from nature as far as possible, and Locke does seem to understand the body as our property.  So this does present a problem that Locke may — his understanding of rights may be contrary to the high-falutin' understanding of dignity of Leon and Gil. 

Second, there are certain practices that we have which should disturb us in terms of precedence.  For example, the final arguments made by Leon should make plastic surgery illegal, because what is — cosmetic plastic surgery, obviously — but what is cosmetic plastic surgery but self-mutilation for money?  If you look better, you'll make more and we allow this.  I don't think if I give up a kidney for whatever reason, I'm diminished in the same way a woman is, if for some reason, has to give up her uterus or give up her eggs.  Nonetheless, we allow women to sell their eggs.  And that surely diminishes the woman who does that more than the person who would sell a kidney.

And in general, in this report, there is a fine criticism of the body as mechanism which I agree with, I guess.  If you understand the body simply as mechanism, if something is broken, then you knock yourself out to find a replacement part.

On the other hand, in the footnote on page 8, footnote 8 on 8, and the material in the text that accompanies that, the alternative presented is we should present more emphasis on preventive medicine to fend off "the tragic necessity of transplantation," but why is that a tragic necessity?  It's like Paul's tragic necessity of having to have a bypass operation.  Operations aren't tragic.  You get old, things happen and as a result you need to be fixed up.  There's no way we can create a transplant-free world as long as transplants are legal.  There's no way we can prevent organs from going bad completely.

And so prevention seems to me to be mechanical in this sense.  You shouldn't have let the machine run down anyway.  You should have changed the oil.  You should have gone in for the tune up and then you wouldn't need a new carburetor or whatever.  So it seems to be a mechanical solution to a mechanical understanding.

Preventive medicine really doesn't fend off the understanding of body as mechanism.  It's just another understanding of body as mechanism.  So we have a lot of practical problems here in my opinion because of the right space, character or regime or country which may be based on faulty philosophy and especially Leon and Alfonso and Gil have pointed that out to us.  But we now have to figure out how to turn our deep insights into actual public policy that will be convincing to people in our country.

DR. PELLEGRINO:  Thank you.  Gil?

PROF. MEILAENDER:  I just could resist responding that a criticism of some views on the grounds that they are theoretical and high falutin'. Appeals to Locke, concepts of rights, concepts of logical consistency — all rather theoretical and high falutin' sort of notions.

(Laughter.)

DR. LAWLER:  I accept the criticisms completely.

DR. GAZZANIGA:I bring you greetings from the West Coast where it's 70 degrees, pleasant, a place we could meet.

(Laughter.)

I want to report on Saturday night's dinner party we had at our house. The conversation was lagging a little bit, so I threw out on the table the question of organ sales and we had present that night two neurologists, a surgeon, a bioengineer, a producer of movies and you can imagine what followed.

I can report that no one — as 12 people weighed in, the vote was pretty close,

6-6, and it cut across politics.  It cut across religious beliefs.  Nothing seemed to predict whether you're for or against organ sales.  But one point came up that Dr. Carson made that I thought maybe would be actually productive and maybe the staff could figure this out that the number, to close the organ gap, so we don't have to have this question of sales, how — what would be the number of organs that could be procured, harvested, whatever the word is you want to use from community hospitals where thousands of people die, but they don't have a trauma unit to save these organs. 

By simply structuring things differently that there was a surgeon on call for this occasion and would FedEx and all the rest of the mechanisms we have today could generate thousands of organs under current ethical standards and brain death criteria and all the rest of it.

That was a live question that no one seemed to have a sense of, but a suggestion as to how this gap could possibly be closed, because we think of only procuring organs at major medical centers with trauma units and all the rest.  But finally, as the evening wore on and we were now into a rather nice cognac, the fundamental question that people left the table with, of course disagreeing about, but that the fundamental aspect — because we also brought up Gil's, this is how I prepare for the meeting — I throw a dinner party and throw out all the questions about Gil's dwarf-tossing as a provocative example of what should be allowed in society and what should not.  And the line that took the evening was that the greatest affront to human dignity is not allowing me to choose.  So that then means if I wanted to give my kidney or if I want to give my whatever and you don't, fine.  I give it, you don't.

How do we get to the discussion that you want to impose your view on this matter on me and I think that maybe that we're going to get to that tomorrow morning, but I won't be here tomorrow morning.  So the flow is on one of the factual points, how many organs are we missing and could solve and so we don't get to this touchy question, which it is touchy and let's just face it.  And two, and then maybe tomorrow and as we think about it, this overall question, how can you override my view or how come I want to override your view.  I think that's a fundamental question of human dignity.

DR. PELLEGRINO:  Dr. Foster.

DR. FOSTER:I just want to respond to your question.  It's not realistic to say get organs in community hospitals with a surgeon on call.  If you're in a transplant center, I mean even if you've got trauma, you've got to fly, you've got to have people who are skilled in doing this.  I mean a general surgeon that's on call who does appendicitis and so forth, can't do that. 

I mean you're talking about monstrous amounts of money if you want to try to make community hospitals a place to recover organs, even though there are a lot of organs that are lost that way.  So I don't think that's a realistic thing and we've heard over and over again that in most of the major centers or in many of them they're now up to recovering 70 percent.  I think that's why Ben is wrong about this too.  Seventy percent of the organs that are available, so you know, you've got to have a plane on there.  You've got to have ambulances.  The costs would be just enormous.  So I don't think that one is a good way to go.

DR. GAZZANIGA:So that point came up, of course, and there was an extensive discussion, so if you took an advanced community hospital like Santa Barbara's, they thought, the surgeons there thought with slight adjustments they could do it.  I stand down.  These are the issues that would have to be looked at.

DR. PELLEGRINO:  Dr. Carson?

DR. CARSON:I thought about that issue as well and you know the fact of the matter is the concept of getting these available organs is an excellent concept.  The question is how do we facilitate it?  And to say that because we don't have a mechanism in place right now to facilitate it, let's not think about it is probably not the correct way to do it.  The better thing to do is to say well, how do we put in place a logical mechanism and perhaps devote some energy to that.

DR. PELLEGRINO:  Professor Dresser.

PROF. DRESSER:  This is a more simple-minded way to think about things, but I guess for me these intrusions on the body are a violation and should only be done for a very good reason.  So one very good reason is a treatment purpose, to ameliorate an illness for the good of the person.

Another good reason may be to help with research, to help another person live through an organ donation.  But it seems to me we should have a very good reason for engaging in this violation.  In terms of selling organs, I guess the further question is we are not talking here at this point about prohibiting live organ donation.  We're talking about whether it should be promoted more than it is through payment.  And so for me, even though I do believe that the payment question is connected to the underlying disquiet about taking the organ, that's true with altruistic donation, I do think we need to focus on this commercial aspect.  Is this something that ought to be in the marketplace?  And for me, I have a lot of questions about whether taking that step is justified to promote more violations of the body. 

I remember a while ago in a discussion on transplantation, a physician saying it seems to me in our society we're developing, we're moving toward a sense that people have an entitlement to an organ, if they need one.  And this particular person didn't agree with that idea.  But it does seem to be underlying some of our sense that well, we have to get more organs.  Of course, it's compassion and it's wanting to help more people, but is there a sense that we have to keep going further and further to get these organs? How far should we go, should we start paying people?

I think that's a very difficult question for me.  I'm very hesitant to endorse that particular step.

DR. PELLEGRINO:  Leon?

DR. KASS:  Actually, it's very hard for any of us to keep from getting into the specific policy questions that are actually the subject of the subsequent sessions, so I would at least like to encourage us to think about this prefatory material where certain larger philosophical questions which define the kind of framework, at least articulate the various human goods that are before us are to be elaborated.  And it does seem to me that I would like to endorse in part the spirit of this paper as modified really by Gil's and Alfonso's suggestions that we don't simply take up this philosophical issue beginning with, and defined by, the organ shortage.

A lot of how this comes out, quite apart from the specific recommendations, our real contribution here will depend upon whether we have cast the intellectual and ethical and human framework in a sufficiently rich way.   That's something that the people more preoccupied with the policy details will not do.  It's something that we have done fairly well in the past and are on the way to doing again.

Gil and Alfonso have talked something about how one should begin really thinking about what is the human body and our stances to it.  But Mike Gazzaniga introduces, for example, not so much on the policy question, but a question of the standing of autonomy, whether it be freedom or other people, if Richard Epstein were here, would talk about the right of contract and things of that sort, other kinds of considerations that belong in this discussion early on.  And Rebecca, too, is pushing us, I think, to an additional conceptual question about in a way the limits of medicine here and our need of how do you know when to set some kind of — let me start a different way. 

Let me take one of the facts that's really crucial.  If we are really on the way to a situation where many of us are going to die of vital organ failure for which there are, in principle, replacements, and we're not talking about just the premature deaths of a 40-year-old with kidney failure, but people in their 70s and 80s whose organs are failing, have we created or are we creating a presumption that those who stand in the way of providing the replacement organs are somehow morally and medically failing our citizenry?  I think some discussion of that in an early part here, I don't mean necessarily a conclusion, but at least to raise this as a kind of question, I think would be a real contribution.

DR. PELLEGRINO:  Thank you.

DR. FOSTER:I don't know why I'm talking so much, I never talk on this thing very much, but an important issue that you just mentioned and the general thing is not about — we're all going to die of organ failure at some point.  There's no way to die without organ failure unless you're shot or something like that.

The physician — the simple rules of physicians that have been there since antiquity are to cure disease and prevent premature death when that is possible.  The adjective is premature death.  Now it might be premature for an 85-year-old who is an Einstein who is healthy, too.  I'm not defining — but it's premature death that we're talking about here.

Secondly, to relieve symptoms when cure is not possible.  And thirdly, the priestly function of the physician, to comfort always, this is the mercy function which is there.  So nobody is arguing about giving a kidney transplant to a 95-year-old person who has got Alzheimer's disease. 

Moreover, as you and I talked about briefly this morning and I certainly agree with, we ought to put this policy thing to later on, but even in the pool of kidney transplantations there is already a large pool that will never be transplantable, even if you had enough, because of other on-going problems.  When you're on renal dialysis, you've got terrible heart disease, that's what you die from then, not from kidney disease and so forth.

So there's a huge pool that we're not going to do anyway, but I just want to emphasize that I don't — because somebody — Floyd asked me about a sentence in here about ultimately you're going to die of kidney failure or something like that if you live long enough.  Well, most kidneys keep working.  It's your heart and other things that die, not for kidneys when you get old.  So premature is a very important issue in all of this.

DR. PELLEGRINO:  Dr. Kass.

DR. KASS:  I guess the question is when technology is very powerful, the definition of "premature" is flexible.

DR. PELLEGRINO:  Dr. Schaub?

PROF. SCHAUB:  Yes, I wanted to say something about Peter's comment about our Lockeian heritage.  Peter points out that in Locke the body is regarded as property and there's a teaching about self-ownership.  But I wonder whether that teaching about body property necessarily leads to a teaching about the body as mechanism.  I mean there's also a teaching in Locke about inalienability and we might find some resources there.  I mean I think it's very clear that in Locke there are some limits on what you can do with your self/body.  So for instance, you can't sell yourself into slavery.  It's self-contradictory to the very notion of rights, to sell yourself into slavery.  So it's not a teaching of pure autonomy and it might be that we could sort of trace out some of the misuse of rights talk and the way in which autonomy has sort of gotten out of hand and Locke might give us a better grounding on this.

Also, I think you can make the argument that Locke argues for a kind of rights infrastructure that will lead us to see the person in a certain way and that would protect the kind of inviolability of the person so you know with the prostitution example, I think you could perhaps make a Lockeian argument that there are even certain limits on how you sell your labor.  Yes, you can sell your labor, but maybe certain ways of selling your labor sort of undermine this rights infrastructure.

DR. PELLEGRINO:  Dr. McHugh.

DR. MCHUGH:  I'm not sure I can add a lot to this wonderful conversation we're having, but perhaps it's useful to pick up on what Mike, another theme in Mike's wonderful anecdote of that California dinner party.

We could make a movie out of that and do very well, but he said he came to a conclusion there that was very Californian and that was the only offense to human dignity would be to — if I quote you right, Mike, correct me, would be to interfere with what my rights to choose what I wanted to do.

Well, this is an issue that confronts psychiatrists and sociologists all the time and was picked up, of course, by that brilliant politician/sociologist Daniel Patrick Moynihan when he spoke to the American Sociological Society and ultimately wrote the paper in the American Scholar entitled "Defining Deviancy Down."

And to some extent this is what we're talking about here and is picked up a little bit by what both Gil and Alfonso said.  That is that we're dealing with behavior, behavior that confronts us with things that strike us at one level as potentially deviant and wanting to find a way around it.

Now the point about California is that they have given up on that functionalist concept of Dirkheim and Talcott Parsons and anything.  And if you even mention the word deviants, they think you're a Flat-Earther.  You come from outer space.

But when you live with patients and live with people who are troubled by what they're choosing and what their choice is being forced on them some times, sometimes from within, but sometimes often from the advocacy groups that you would despair when you hear what they're promoting, you wonder.

And so I don't think that we can begin with the idea from California that the dignity depends upon our right to choose everything.  And there are certain things, as Diane says that we don't permit people to choose because we realize allowing them to choose that, whether it be slavery or suicide or various other kinds of things, we deform the society in which we're in and I believe with what's been said here too, that a traffic in organs would ultimately deform our society in ways that I would disapprove of.

And then finally, a little bit about prostitution.  This is a problem that turns up again and again in the classroom, particularly when I write about "how I deplore it.  I get approached now by lots of people who say to me, how can — I don't even like the use of the word 'prostitution.'  Dr. McHugh, I want you to speak of sex workers,"to which I always reply, dear, you don't understand sex.  You don't understand matrimony and you certainly don't understand prostitution.

DR. PELLEGRINO:  Thank you, Paul.  Dr. Hurlbut.

DR. MCHUGH:  Oh, the last line to that, Leon wants to remind me that there is a last line to that.  With prostitution, you don't pay the prostitute for the sex, you pay her to go away and never come back.

DR. PELLEGRINO:  Thank you.  Dr. Hurlbut.

DR. HURLBUT:  A vivid example of what Paul was just talking about, there are cases, rare, but notable, where people actually want to have a limb amputated for some issues of identity or sexuality and I think we immediately recoil from that kind of voluntary mutilation and don't find an adequate retreat in some notion of positive pluralism based on varied identity.

So I agree with Paul and I'm a Californian, too, by the way.

(Laughter.)

But I want to go back Nick's comment, a good question as to whether, if I understood it right, whether our distinction here is between renewable/nonrenewable or what the staff paper calls replenishable versus nonreplenishable.  And while I think there's something to that notion, otherwise we wouldn't allow the sale of blood and we think nothing of the sale of hair and we sense that with eggs, what we may have a wrong impression that they're renewable, but at least that's what the prevailing sensitivity is on this issue.

But I just want to throw this general idea out that there's something more to the issue than that distinction, that it is not an adequate distinction to take us too far, but it will take us some ways.  And what I would like to suggest is that whatever we do in thinking about this issue, we need to lay out principles that are adequate for a whole range of transplantations or treatments of body parts as parts distinct from the whole, not just for the obvious things that we're dealing with now.  

When we first had this discussion, I brought up the notion of womb transplant and it just fell to the floor, but now it can't any more because it's in the newspapers.  And we need to be aware that we're talking about a whole range of transplantable human parts that aren't even on our radar yet, so to give you an example, in animal species, they've transplanted testicular tissue, taking it out of one living animal's testes and injecting it into another to — and thereby conferred fertility in infertile animals.

We might some day be talking about ovary transplants.  Now we're talking about womb transplants.  These seem to me to be different in character, even though they may be argued to be therapeutic in the sense of overcoming some deficiency.  They are not quite in the same category of seriousness or at least human significance.

I would just like to throw out a notion for thinking about this a little bit that there might, in fact, be circles of significance, concentric circles of significance in human existence that different body parts have different meanings and that we should be very, very careful before we endorse one broad concept for all transplantations.

I guess that's good enough.

DR. PELLEGRINO:  Thank you, Bill.  Further comment, Dr. Gómez-Lobo?

DR. GÓMEZ-LOBO:  Yes, even at the peril of taking things back to California, I'd like to comment briefly on Mike's remarks because I think they're very important.  I think that if we do as Leon encourages us to do to discuss really the philosophical assumptions or philosophical underpinnings here, I would say that that libertarian view is one in different forms.  One of the major positions in American society today, it's the idea that anything that limits my freedom is an imposition based on beliefs that someone else has and I don't have.

And it's very important to think about that whether it's correct, whether indeed it is true and whether it's a sufficient way of approaching not only these issues, but many, many issues.  In fact, I would say that position is one of the positions that regards the body as alien, as different.  Why?  Because I choose to regard it like that and I should be free to sell my organs, for instance.

Now what possible objection is there to that?  Isn't there something very real in saying, "Well, I do as I choose and you do as you choose, but don't impose your views on me."

I think it would be fine and dandy if one lived in total isolation from other people.  That, I think, is the main presupposition, tacit presupposition of the view of that sort for why — and I think Ben was pointing to this — I may be free to buy organs and there may be a poor Salvadorean woman, unemployed somewhere in California, willing to sell her organs and it seems that there would be a free transaction, freedom on both sides. 

And yet, I think that a reasonable analysis of the situation is really that it's totally unclear that there is a social context for which that is happening and there are questionable aspects of the freedom of someone who is in dire need, someone who has children, can't feed them and suddenly can sell a kidney for $1,000.  It's the consideration of all of that context that I think traditionally has led to the notion that human freedom should be subject to limits.  I mean no one can hold that anyone can choose anything. 

There are limits to freedom.  The classical formulation of it was harm to others was the principle, but of course, the question of harm then arises, and what ways when harming someone else.  Once all of that is considered, it seems to me perfectly reasonable, perfectly reasonable that there be limitations of freedom.  And one of the things I think we're doing is trying to get the broad view and see whether again there may be reasonable limitations of freedom in the domain with which we're dealing with transplantation.  Thank you.

DR. PELLEGRINO:  Thank you.  Dr. Hurlbut and Dr. Schneider, in that order.  I just want to point out we're getting close to the end of our time, so rapidly.  Thank you.

DR. HURLBUT:  Do you mean to imply that the moral relates only to facilitating social interactions?  What I'm wondering here is don't we kind of know ourselves in the mirror of other people?  In other words, doesn't the society as a whole actually deliver to us our morality?  It's more than a social function, right?

DR. GÓMEZ-LOBO:  Sure.  Well, this was only a brief recap of the classical argument against extreme libertarians.  Of course, there are myriads of other considerations, it seems to me.

DR. PELLEGRINO:  Peter?

DR. LAWLER:  Let me agree with Alfonso.  Maybe the problem is creeping and creepy libertarianism that the imposition of the spirit of contract and consent into all areas of life and so a lot of people and not only in California, agree with me, in fact, that the dignity limits the choice that aren't absolutely necessary.  And we have to say that that understanding of dignity is autonomy, more or less, does depend upon the understanding of the body as mechanism that is rejected in this report.

And Paul is right to say that our argument against prostitution is eroding.  This idea that prostitutes are really sex workers is taking over, unfortunately.  And so the only objection to prostitution we have left is that it's unsafe for the prostitute.  The contract is unfair, but the moral objection to prostitution is on hard times today.  And of course, a limit to our choice would be slavery, but I don't really see how selling my kidney, assuming it's safe, would be subjecting myself to slavery.

And I think the point of the paper and Gil, Alfonso and Leon is there's more to this than health and safety.  I agree that we really don't have sufficient knowledge to know that selling your kidney is really a safe thing to do over the long term.  I agree that people who sell their kidneys are very likely to be exploited and this kind of freedom is likely to be very bad for the poor.  "Get off welfare, you've still got two kidneys," more or less.  But having said all of that, I think the point of this philosophical discussion has been to show there's more to it than that because what we want to do is reject the very idea of body as a mechanism from which we can alienate ourselves.

I agree with Alfonso, the real point is to reject dualism and embrace Gil's understanding of the body or something like that.  But I have to say, this is a very radical thing to do in the American context and we shouldn't underestimate how radical a thing this is to do in the American context.

DR. PELLEGRINO:  Professor Schneider, then I see Paul.  That will have to be the last one, Paul.

PROF. SCHNEIDER:  My dinner party was two nights ago, safely far from the West Coast.  I was in Texas and the dinner party there involved a person who is probably alive and certainly relatively healthy because he had had a kidney transplant.  And the discussion involved whether or not he should have accepted the transplant from his son.  He had resisted doing that for a long time and finally acquiesced.  And if there was a consensus on the table, it was that the son had done something wonderful and the father had been wise in accepting the son's gift.

And this comes to my mind because I'm having a hard time following this conversation because I don't have the right moral instincts.  I don't have the moral instinct that there is something repellent about the initial giving of something of your body to somebody else.  And as I'm understanding part of this conversation is an attempt to predict how people are going to respond socially to a world in which transplantation comes more often.

And I think that the pretty striking unanimity here would not be reflected in very large parts of American society, not on the libertarian grounds, which I have not a lot of sympathy with, but because I think that people very widely will not respond with the kinds of emotional reactions and perceptions that people here so widely have.

I am extremely uncomfortable with quick predictions about how people react to new things.  It certainly is possible that if you bought and sold kidneys that people would come to regard them as another piece of easily alienable property, hardly different from corn, wheat and coffee cups.  But in fact, I think that's quite unlikely and I think that before we make easy guesses about people's responses, we ought to think much more complicated and I would prefer empirically based ways about what the social context of these transactions would be and therefore how they would be perceived.

I think that people's reactions would very largely be like the reaction at the dinner party.  The person who didn't die was a person who was valued by lots of people and the thing that his son was able to do for him was something that the son was likely to regard as the best thing he ever did in his life.

DR. PELLEGRINO:  Thank you.  Dr. Meilaender?

PROF. MEILAENDER:  I'll make one quick comment about what Carl said, but I had something else I wanted to say.  I didn't think we were making predictions about how people would think.  I thought we were talking about offering whatever guidance we might have about wise ways to think about it.

But I wanted to come back to the — in a sense, we've had two themes arise, just sort of the body and its significance and the autonomy choice theme.  And they're not entirely separate although figuring out how to really put the two together wouldn't be an easy thing, but Hobbes in his De Cive has the thought experiment where he says you know, suppose that men came into being this way, that they sprang out of the ground like mushrooms without any connection to each other.  And Hobbes uses the thought experiment because he's trying to think if people are really that separated, how would you get them back into something like civil society and the answer is only through choice, only through contract, only through will.  That's what you do.

And the problem with the thought experiment and what makes that strong libertarian notion of autonomy mistaken is that human beings don't come into existence like mushrooms.  They come into existence with a bodily connection to others so that the body has a kind of personal significance from the very start.

Now you know whether we can sort that out in ways that are illuminating or not, I don't know, but I actually don't think that these two subjects are entirely separate subjects.  I think they're related and the sense that almost everybody has that there are some limits to choice, there are some things we won't let you do even if you seem freely to choose them is not just a sense that we draw back at the issue of choice, but it's connected with the kind of beings that we think we are and the kind of beings that we think we are has something to do with the body and that's there right from the start because we're not like mushrooms.

I do think these two subjects are connected in ways that we might sort of fruitfully illumine.

DR. PELLEGRINO:  Thank you.  Paul?

DR. MCHUGH:  I just wanted to follow up a little bit on what I was saying so that I could make myself just a little bit more clear. 

Once again, we're talking about behavior, behavior of doctors, behavior of donors, behavior really also of recipients and behaviors are judged by the ends they serve and partly we're struggling about what these ends are.  The patient who receives the donor, the behavior of accepting a donor, is of course, often to flourish as Carl has said and that's the thing that makes it so wonderful to know that we can do this and rescue people who were lost.

I, after all, I said before at the Brigham, when they first did these twin kidney transplants back in the mid-50s and it was a very interesting time because some of these issues came up then, but one of the things that was clear was that the recipient was really receiving something.

The question of the doctor in this thing, what his behavior or her behavior serves, well, it certainly serves an aspect of curing, treating successfully the recipient, but is the doctor benefitting the donor?  It's likely a reminder to us that the Hippocratic Oath begins by saying again and again I'll enter to benefit the patient.  And it's a bit hard when you're sitting with a donor to know how much you're benefitting her or him to take his kidney out.

Now it turns out that it's a lot easier to take kidneys out than it was back in the '50s.  Now they do it with laparscopic, the donor is out of the hospital within a day or two almost.  They probably go home the same day, so the danger is a lot less, but I remember back then when we worried a lot about these donors and what we might be doing for them and we did feel a sort of sense of this, that we might be deviating from our role as physicians and that we needed to alter our sense of behavior and to define deviance down a little bit to make this happen.

The only thing I think we're talking about or at least I'm talking about at this moment is not to make regulations or decide on certain things, but just to lay out the groundwork for understanding where we are.  And these wonderful dinner parties, one in Texas and one in California, are so illuminating because they reflect just what you're saying, that what is the common feeling of people?

And then finally, I want to get back — I got into this prostitution business, Diane brought me into it.

(Laughter.)

And I just want to make this point about how this logic works out for psychiatrists anyway and it does work out in that sequence and I've raised this because Dr. Lawler is making a point that we're losing ground in our concerns about prostitution.   Ultimately, like anything else, it goes back to the beginnings, and what is the behavior that we're talking about and what ends does it serve. 

And the behavior we're talking about is sexual behavior.  And although human sexual behavior has many things to it, it is, psychiatrists say and think, nature's way of turning a stranger into a relative, okay?  That's what it is.  That's how it's done.  We come from relatives by biology and we become relatives through our sexual life, okay?  And that's the reason, of course, why in matrimony, we say in matrimony this is the relative, not only the relative I've chosen, but this is the precious one I've chosen.  This is the person [without whom] for me life wouldn't be life. 

And therefore, the line with the prostitute is you don't pay the prostitute for sex.  You can get sex everywhere.  You pay the prostitute to go away, don't write, don't call, don't do anything.  That's what you're paying for.  And that's why it's debasing in the behavior because it's cutting at what the behavior is intended to do.

DR. PELLEGRINO:  Thank you, Paul.  We will re-assemble at 10:40.  Before we do so, may I complete one prior brief comment, very brief comment. 

For some relief, the fact that I'm an internist and therefore my invasions of the body are somewhat superficial, then so no one needs to worry very much about that.  But the second point is reiteration of a fact that it's very important, as we move into the practical questions to look at the philosophical foundations for them. 

Given Alfonso Gómez-Lobo's very, very modest claims about philosophy, I do think that fundamentally, the ethical issues that we talk about with principles have to be grounded in some philosophical perspective.  And the complexity of the discussion this morning and the diversity of opinion is I think one of the issues that's the foundation of the difficulties in bioethics today.  We have different perceptions of what it is to be human, different philosophical anthropology, gives you a different system of ethics, and certainly it's illustrated here when you look at the body, how you treat it, what it is, it goes back to the fundamental question, the ti esti question that Socrates always asked — that is, the question of "what is it?"

Thank you very much.  We'll reassemble at 10:40.

DR. FOSTER:Mr. Chair, one sentence.  Because everybody has been talking about prostitution, I didn't think we'd be doing that, but I want to tell you in about a sentence about a dinner party by a distinguished physician.  When I was getting ready to go to medical school and they were trying to recruit us and this distinguished physician said medicine is the second oldest profession in the world and like the first, we'd like to do it for love, but we just got to do it for money.

(Laughter.)

(Off the record.)

 


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