Thursday, January 16, 2003
Session 2: Procuring Organs
for Transplantation: Ethical Considerations
CHAIRMAN KASS: Council Members, could we
get started, please?
Council Members will find at their seats a blue sheet with
information on where we're gathering this evening for dinner
and there are three additional handouts here that are pertinent
to tomorrow. Let me just mention them while we're looking
at this. Professor Merrill who has sent in an advance paper,
sent along the notes which are the outline for his talk and
suggested that Members might want to have it in advance. And
then there are the latest issue of the Archives of Pediatrics
and Adolescent Medicine has an essay on the "Psychotropic
Practice Patterns for Youth: The 10-Year Review." And then
an editorial from the same journal on this question of prescribing
psychotropic medicine to children. I'd like to ask Council
Members to just glance over these things in relation to the
discussion we're to have amongst ourselves in the last session
tomorrow morning. This is not for careful reading, but at
least to help us get started in thinking about how we want
to proceed in the area of neuropsychopharmacology with special
attention to children.
In this session, we will be discussing the ethical considerations
in relation to procuring organs for transplantation. The Council
has neither determined, nor has it been asked to study organ
transplantation, yet the topic is going to be of increasing
interest. The Secretary of Health and Human Services has indicated
his own grave concern regarding organ supply and I'm pleased
to see that we have with us Jack Kress, who is the Executive
Director of the Secretary's Advisory Committee on Organ Transplantation.
They have their first report soon, I think, to be issued.
The AMA and Congress have variously considered plans and
legislation to increase the supply. Legislation was introduced
into the last Congress and is likely to be introduced again.
And therefore the Council might be invited into these discussions,
but in any case I thought it would be worthwhile if we would
engage ourselves in the preliminary consideration of some
of these proposals that are floating out there to increase
We are not altogether new to this topic. Already in Gil Meilaender's
survey paper, "Toward a Richer Bioethics," in the very first
meeting, the meeting of embodiment, the relation of parts
and wholes and integrity were questions that were raised.
We had that short story which at least some of us liked in
the donation of the heart, "Whither Thou Goest," to at least
address this question of part and whole. We had some discussions
on commerce and the body, more in connection with patenting,
but that was an issue of concern here.
And it does seem to me that in keeping with the search for
a richer bioethics, the full human and moral significance
of innovations and practices growing out of the relation to
advances in biomedical technology belong to our domain.
A background paper that was prepared was intended to bring
to the Council's attention the range of practical suggestions
that are now under discussion to increase the organ supply,
but to do so in the context of questions that deserve further
attention and in the background paper, at least these were
mentioned and raised for view, the value of saving life, the
desirability of preserving bodily integrity and respect for
mortal remains, and the importance of individual autonomy
of the potential donor, as well as the rights and responsibilities,
needs and wishes of surviving family members.
But I would at least like to add to the questions for consideration
two points. One, the need to appreciate the heterogeneity
when we come to talk about organs and supply. There are different
organs for different diseases with differing success rates
and differing age and ethnic populations, of donors and recipients
who have also not only different medical conditions, but also
differing cultural attitudes that affect this problem.
You cannot, it seems to me, talk about supply neutrally without
paying some attention to why it is that some people do and
other people do not donate. In some cases, expressed fear
of decreased care, if one is known to be a potential donor,
inhibits some people. There are other people who might express
concern for bodily wholeness in death when they go to meet
their maker. It seems to me terribly important that we not
homogenize this subject and treat in the abstract.
And then a more philosophical question, not necessarily for
discussion, but something to keep in mind is the human body
really like a car with completely fungible and replaceable
parts, not just morally, but even medically. Medically, of
course, we have the immune rejection problem which no automobile
has, suggesting that there is some kind of difference between
us and simply a heap of spare parts.
To talk about the person that somehow survives the replacement
of these parts invites the kind of person, machine or person-body
dualism and one of the questions I think that we want to keep
in mind is what kind of a view of ourselves are we tacitly
promoting, not only in organ transplantation to begin with,
but how might that view be affected by the varying proposals
to increase the supply. The culture is not homogeneous on
this one. We don't have a single answer, but it does seem
to me that those larger questions of self-understanding are
at issue here, in addition to the questions of just saving
lives, of respecting the wishes of the deceased.
With that in mind, I think I can summarize the present situation
as follows. The present policy seems to be that organ transplantation
is a great good. The practice is donation with individuals
and also families free to decide to donate, but only to give
and not to sell. Allocation being separated from supply. We
have an allocation system with triage based on need and the
probability of success.
In view of the tremendous, the growing shortage of organs,
the list of people on the list of waiting for donors increases
faster than the increase of the supply with large numbers
of deaths now off the list. I'm thinking now especially of
kidney donation. A number of proposals have been made and
they are summarized in the background paper, between the system
we now have, a system of giving and receiving, of organ donation
and a system that they have in certain European countries
which is called either routine retrieval or in this country
it has the euphemism of presumed consent in which the organs
are taken unless there is objection. A number of proposals
in-between from public recognition and community pressure,
honoring donors, shaming those who don't, to some kind of
system of public compensation, the most widely discussed example
would be either some kind of credit on tax return or donation,
public donation toward funeral expenses, to more vigorous
promotion of outright markets of buying and selling, have
been in the discussion over the last several years, increasingly
And whereas earlier proposals of required requests were trying
to put pressures on physicians to make sure they asked, the
new proposals are designed to provide increased incentives
for people to donate whether those incentives would be honor,
some kind of public compensation or actually cash in terms
of the free market. And it seems to me that it's, I think,
worth our while to have at least this preliminary discussion
as to what we think about these various proposals that are
out there and without any prejudice as to which way this conversation
goes, I think we should get started. I will say that I've
asked at least three people to be prepared to offer some comment;
Dan Foster, to make sure that we didn't misunderstand and
forget the medical perspective; Rebecca Dresser, to give us
some insight from the legal side; and Bill May, who has written
very movingly on the newly dead body and honor embodiment,
to make sure we don't forget that aspect.
So if I might, Dan, if you wouldn't mind starting us off.
If that's unfair, I'll go elsewhere.
DR. FOSTER: No, I'll be happy to make a
comment or two, not that they're very profound or that I know
a whole lot about that. Certainly with Bill May sitting in
the wings, I wouldn't want to say too much, but I think that
in the background we have to think about the fact that one
certainty of life is that we're going to die.
I jotted down Bertrand Russell's famous statement from "A
Free Man's Worship" where he says "one by one, as they march,
our comrades vanish from our sight, seized by the silent orders
of omnipotent death."
It can come early or late, but against the scale of historical
time, it always comes quickly. I was involved with the
in the death of a colleague at another medical school at the
ceremony, who died early from asbestos exposure at his own
university. But the speaker said something that I thought
was very moving to me. He said, "Life is but an instant. It
is the quickest thing. It is over before we turn around. In
this brief instant, there's only time for love."
It's always very short against historical time. Now death
comes from disease or from entropy. You'll remember that the
Second Law of Thermodynamics says that entropy is always increasing
in a closed system. I always liked Heinz Pagel's explanation
of entropy for nonphysicists. He says if you take a salt shaker
and you put pepper on the bottom and salt on the top and you
have a top screwed on that has no holes in it, and you turn
it up and down, then randomness becomes complete, the black
granules and the white granules are completely mixed. Now
one can reverse that if the system is opened. If I pour it
out and put it on a sheet of paper, I may laboriously with
work separate out the salt and the pepper and reconstitute
order, but in a closed system, it's always running down.
We have an open system that keeps us alive. We have oxygen,
water and a few vitamins and fuels and that keeps us alive
for a while, but it doesn't stop entropy. In fact, a classic
example in the transplantation business is that the kidney
which is where we have the most experience with a perfect
match, runs down in about 30 years. Those are Tom Starzl's
numbers. He's talked to me about that. And when you biopsy
the kidneys as the creatinine tends to go up, they're not
being rejected, it's not a late rejection or autoimmune defect,
they're just running out and we have to retransplant them
if you're going to do that. I have a close friend who has
three of his four children have renal failure and they've
all had transplants and the first one is now at 32 years and
his creatinine is starting to go up.
But we are concerned mainly here with the issue of premature
death, in some sense, even though life is very short. And
what medicine tends to try to do is to prevent premature death
and it doesn't necessarily have an interest in preventing
entropic death, that is the simply running down with time.
We talk about that all the time. The mother of a prominent
person in Dallas has a glioblastoma. She's 80 years old and
the people that she went to see operated on her and gave her
a very, in my view, outlandish optimistic prognosis and so
she was planning to take a trip to Europe in 2004. She's going
to be dead in six months. And the question is whether she
should be radiated at 80 years of age with the side effects
and taking away that time. And so in the conversations with
the chair of Neurology and the chair of Neurosurgery, we all
say this is silly. Let's let her live her life and not try
to fight these, this late disease.
So transplantation is to prevent premature death and as Leon
said, there's a great shortage of organs. I certainly agree
with the view that we have to be specific. I mean kidneys
are one thing. Hearts and lungs are another. I mean you live
a long time with kidneys and it's so much better to have a
transplantation than to be on dialysis that it's something
that is just not arguable.
What you may not recognize is that this long list of waiting
for kidneys, and I'm going to focus on them for just a second.
It means you may die because dialysis is not real good. You
certainly don't have a good lifestyle on dialysis, but what
we don't what most people don't recognize is that the
longer you wait when you need a transplantation, the less
it works. In other words, if you transplant the data
now are very strong that if you transplant early with kidneys
you do much better, so the shortage of organs is a serious
Now what do we do? I want to say gently that some of the
solutions really strike me as foolish in the real world. Goya
once said that "the sleep of reason brings forth monsters."
I think that saying we're going to give a medal to somebody
to donate or $300 for a funeral that cost $5,000 to $10,000
or to appeal for altruism, to think that those will solve
the problems are foolish.
In my state we are required to ask at every death, the attending
physician for organs and we do that. I've done it a lot of
times and we do pretty well at Parkland Hospital, particularly
with minorities where it's harder. We at one point, I don't
know whether that's still true, had more donations from African
Americans for transplantation than any other hospital in the
country. We worked hard on it.
But there are many forces, for example, funeral home directors
actively tell families not to do that because it's harder
to embalm when you've taken out these things. I mean there's
an active lobby at death not to allow transplantation because
it's going to make it harder on the funeral director. So the
question that we come to is money and money usually talks.
I mean our whole society is based on that.
I spoke with three transplant surgeons this week in preparation
and they say that I am extraordinarily naive because even
in this country for living donors, the payments are going
on, right under our eyes, despite the federal laws and everything
else. And nobody talks about it.
My own view in thinking about this is that incentives are
never going to work. You may decide you don't want to increase
this, but incentives are never going to work. I think money
talks. And this is big business.
If you get seven organs from a body and it goes to an organ
bank, let's say you get two kidneys, a heart, lungs, maybe
a pancreas, corneas, not to talk about bones, the amount of
money that's charged the hospital is very great. I didn't
have a chance to get the exact amount where I work, but they
oftentimes will charge thousands of dollars, even though they're
nonprofit to the hospital to do it. A transplant surgeon,
I think is paid by Medicare $1800 to do the procedure and
they won't allow any work up until three months before you
have to do it. But privately, the surgeon may make $30,000.
So all the transplant surgeons said you all are naive. Everybody
it's in the papers and in The New England Journal,
too is making money out of this except the people who
are most involved.
And so I don't think these incentive plans that I've read
about are going to do anything at all.
Now I worry, very much about the coercive effect of money
on the poor for living donors. I mean I really do for things
like livers. As you probably read, we've already had a number
of deaths from donors, even of kidneys, 56 or something like
that. I don't know. So it's dangerous.
As an aside, I think that everybody who gives, who is a living
donor, should be supplied, particularly if they're poor, with
catastrophic life insurance and with life insurance
I mean catastrophic health insurance and life insurance. I
think that should be that's a payment.
My own view after thinking about this is that we ought to
concentrate on increasing the organ supply on cadaveric organs
and not living donors. And I think that I would be very willing
to pay substantial amounts to families for the donation of
cadaveric organs which puts no one at risk for the donation
itself, and in good transplant centers, cadaveric organs do
So if I were going to be making a policy, I would say I'm
willing to pay, I'm going to increase the cost for the health
system. It will all be passed back ultimately to us for taxes
or increased insurance rates and so. It's going to cost. You
may decide it's not worth trying to add a license on there,
but I'd pay for it, so I would make absolutely clear to a
family there are still issues there, that if they donated
they could make some money out of it along with everybody
else. That's the only way that I can see that this, that a
system like this, that this would work. I don't know, how
much should it be? I don't know. In talking to the transplant
surgeons I've talked to, I thought $5,000 for you know,
you could put it for one organ less or something, but I'd
pay for cadaveric organs and I'm pretty sure that there would
be a significant increase in organ availability if we did
Where I am now, what's probably going to happen like everything
else, I would be against paying for living donor organs because
of the danger to the person and because of the possibility
of coercion to people who don't have resources or strengths
to do it.
So those are just a few of the thoughts that I had in terms
of how we would go. They probably don't mean very much and
I'll just toss it out there, and as I say, it's one of these
10 minute things that you can toss into the garbage if it
doesn't mean anything, but that's what I would do. I would
concentrate, as I've said twice already, on the cadaveric
source which is very large and wasted to a large extent and
many of these will be the kind of organs that you want, traumatic
deaths from car wrecks and so forth.
And I say in passing that at least middle class families
that I'm aware of and people, those particularly who have
been able to particularly people who have been in religious
faith, really do feel a sense of partial grief relief when
their loved one's organs are used for the maintenance of life.
I don't think that's a fake. I've seen that. Now why it is,
I don't know.
CHAIRMAN KASS: Thank you. In the interest,
actually of having some coherent conversation, let me invite
some responses to Dan Foster's comment before asking the others
to add their comments to be raised here.
DR. KRAUTHAMMER: I just wanted to ask a
question. You talked about selling already is going on, could
you tell us about how that works? I'm just curious.
DR. FOSTER: I have no hard data for this
at all. This is anecdotal from talking to people who are transplanting
organs and what they and these are people who are
these are not the sort of surgeons that I don't respect. I
mean they see a lot of things. And what tends to happen is
that there is a surreptitious, I mean it's mentioned in some
of these papers. There are surreptitious promises of financial
reward in response to advertisements or personal talking about
people who some who work for an employer or something
of that sort and nobody talks about it. I mean there is a
presumption that nobody will talk. Well, sooner or later,
somebody is going to talk anyway. I couldn't find out what
the usual, you know, what all three of these people had experienced
what the price was. And they don't have hard data about that,
but what they think is, what they tell me is that they think
that this goes on they know about it happening because
a few people have told them.
DR. KRAUTHAMMER: This is from living donors?
DR. FOSTER: Yes, living donors, all living
donors. I'm not talking about cadaveric. I don't know of any
payment for cadaveric things. It's the living donor payment
that I'm talking about. It's very soft. I want to make it
clear that this is just a statement, but three people told
me that they thought that this was much more prevalent than
what we had thought was going on.
CHAIRMAN KASS: Janet?
DR. ROWLEY: Well, first, if I can just
follow on this line of conversation before I ask my own question.
I understand from you that there is somebody here representing
transplant surgeons and since this is a question of fact,
would it be possible to see if the person representing the
transplant surgeons might give us factual information, if
CHAIRMAN KASS: I misspoke. I mentioned
the presence of Jack Kress, who is the Executive Director
of the Secretary's Advisory Committee on Organ Transplantation,
if you have some comment on this.
MR. KRESS: It's purely anecdotal.
DR. ROWLEY: I think we need information,
whatever recognizing from your comment that it's not
the not scientifically obtained or things of that sort
MR. KRESS: No, I really don't have any
data at all. I'm sorry for coming up here with all of this
and then telling you I have nothing to offer it seems
like a real waste of time on this issue. It's purely
DR. ROWLEY: Which is?
MR. KRESS: Which is that some people weigh
that particularly, as you know, in the living donation area,
one of the things my committee has spent a good time on recently
is ensuring that there's trying to ensure there's no
coercion of the living donor, that it be freely given, as
much as possible. And in the conversation surrounding that,
there's often the speculation that there is familial coercion,
quite frequently, because the vast majority of living donations
are with family members. So siblings, for example, feel coerced
by the family and on those where there are employment relationships,
there's often the suspicion that money played a role or something
of that nature.
I actually have not heard that part of it. I've actually
heard much more about the familial coercion rather than the
money, I must say, just in response to what you said. But
again, I have no hard data to offer.
DR. HURLBUT: May I add?
CHAIRMAN KASS: Please.
DR. HURLBUT: To both of you, is there a
better outcome with an organ from a live donor?
MR. KRESS: My understanding is that the
data at the moment indicate that it is slightly better.
DR. FOSTER: I think the key word is slightly,
slightly better. I think most you know this is relatively
knew, particularly giving parts of livers and things like
that, you know, so I think that it's slightly. You would expect
it to be because of the ischemia time. I mean by the time
you collect an organ and fly it someplace and so forth, there's
going to be some anoxic damage to that thing and so I wouldn't
have any argument at all that if you could get a living kidney
from a living donor or something that it would be better.
MR. KRESS: And they are also much more
able to check whether or not the matching is more perfect,
etcetera, but just because of the time factor involved in
death as opposed to someone who is living.
DR. FOSTER: I do think one of the things
that has shifted because the advance in immunosuppression
has really become, is really remarkable, that there's less
concern about matches now then there used to be and besides
what we usually test for, there are many other antigens now
and alleles that appear to be involved with both graft-versus-host
reaction and so forth that are not part of the major histocompatibility
complex, the HLA molecules which are the main things that
we usually match for. So that's developing. But there are
also many more, well, I don't want to get too technical, but
I saw a fascinating experiment in our own institution that
changes the rejection of cells or organs. This happened to
be with islet cells that replace insulin production in diabetes.
I mean it's so early, I'm not even going to tell you what
it was, but it's one of the most dramatic experiments I've
ever seen. I might be false, because it's only a few animals.
But I mean there's going to be changes so that it will be
much easier, even if things are not matching, you don't have
to have all this immunosuppression that's so hard to deal
CHAIRMAN KASS: Thank you. Janet, did you
want to ask a question?
DR. ROWLEY: Yes, because in the material
that you sent us, you indicated that in Europe, with the exception
of Britain, that taking organs from cadavers was a relatively
common practice, so I was wondering what the experience is
in countries, advanced countries where this is a more common
practice. Do they have the same long waiting lists that we
do? What's the outcome of using these? What tissues or organs
are actually included in cadaveric transplants?
MR. KRESS: Unfortunately, the waiting list
problem exists overseas as well. So I don't think that necessarily
is the solution. People are discussing it, of course. That
gets into the whole presumed consent and all of that where
Belgium and some other nations have that system. And internationally
Spain is often spoken of because of the Spanish model
in terms of their version of it. They have a higher rate than
we do in the United States, but how translatable all of those
are to the American system is always an open question.
CHAIRMAN KASS: Why don't we thanks
very much. Unless people want to put more questions to Dan
or follow up on his comments, I was going to call on Rebecca.
DR. GÓMEZ-LOBO: I just want to add
to the anecdotes. I know a transplant surgeon very, very well
and this person has told me that it's not uncommon for, particularly
for obviously wealthy foreigners to walk in with a donor and
the presumption, of course, is that this person has been paid
dearly, not only air fare, etcetera to come, but most probably
at home for the donation of the organ. And this is a pattern
that apparently repeats itself.
Rebecca, you want to
PROF. DRESSER: These comments are not particularly
from a legal perspective, but just from teaching and reading
about organ transplantation for quite a few years.
I am I have a lot of reservations about paying people
to provide organs or families to provide organs, but I do
think there is a fairness or a hypocrisy problem with prohibiting
it and Dan mentioned it. It really struck me, I read Julia
Mahoney's 2000 Virginia Law Review article which
is cited in the articles we received, and she does really
an excellent job of making this case that the debate is really
not about commodification of organ transplantation, it's heavily
commodified. It's just the initial step that's not commodified,
the initial transfer from the person who has the organ to
the procurement organization. Everybody else makes a lot of
money on this and you can see that whenever they propose changes.
I understand there are data showing that transplant centers
where this is done a lot have better results, so there have
been efforts to try to concentrate transplantation more into
these centers and then there's always a lot of opposition
to that from other hospitals where they are doing transplantation
and most people say it's economics. I mean these hospitals
make a lot of money from this, as well as the surgeons and
So something that is initially a gift, Mahoney argues, is
transformed into something that's actually sold to the recipient.
Now she says people would say well, the recipient is just
paying for services, but without the organ, the services really
aren't worth much, so the organ is critical to what the recipient
is paying for or the recipient's insurance is paying for.
Now, we might say that all these other people are being paid
for services. You could probably say it would be force the
services model on at least some organ donation and this is
what I think we do in research and in people who provide oocytes,
sperm, other tissues, blood sometimes, where the compensation
is characterized as for the time and trouble people put into
the process as opposed to the thing itself.
Certainly, a living organ donor puts a lot of time and trouble
into that process. I'm not sure how much time and trouble
the cadaver doesn't, but perhaps the family does have
to put some energy in and a services model could be imposed.
I think it would be a stretch. But on the other hand, the
idea that well, everybody else in the system who's getting
paid, it's purely based on services. I think she makes a good
point that the services aren't worth anything without the
Paul Ramsey and others who argue that if you put money, attach
money to the initial transfer, this would deprive people of
the opportunity to be altruistic. You might flip that around
and say well, maybe we should change our whole system, all
these other components, we could be saying well, we're depriving
all these other people of the opportunity to be altruistic.
I mean the doctors could donate their time, the hospitals
could donate the services, so maybe we should just change
the system so none of it's commodified. I think we all know
it wouldn't work.
I remember being struck a few years ago and this may be an
example of hard cases make bad law, but a story of a family,
of a person whose organs were given and they didn't have enough
money to pay for her funeral and so she had to be buried in
the Potter's Field and meanwhile the surgeon was making a
good salary and so forth, everybody else was financially comfortable
and it did strike me that there is some unfairness there.
Now the question then becomes are there persuasive reasons
for saying this initial organ transfer should not be commodified,
is there something different or distinct or dangerous about
coercion or with families? Would they be more likely to say
well, stop treatment and those kinds of questions. And I think
that's worth discussion.
On the other hand, the question is could you regulate the
market in this first step so that you could allow commerce,
rather than prohibit it.
Another thing that I've thought about is the step of donating
all of us donating, signing our donor card or putting it on
our license, it actually seems to me a fairly trivial exercise
of altruism because most of us probably won't die in ways
that produce brain death, so that our cadavers would not be
in the best condition for transplantation. They are working
on other getting organs from so-called nonheart beating
cadaver donors and but really, the chances that somebody
who signs a donor card or who exercises his altruism at this
earlier stage that their organs will actually be taken because
of age and health, they're pretty low. So it seems to me very
it's easy for me. To me, the true altruism is the family
and the cadaver donor situation. That is, they're the ones
who I think bear the emotional burdens and so I wonder if
that affects our analysis of whether altruism or payment is
preferable to locate the altruism, at least for me and the
next of kin as opposed to the individual whose organs are
If we allow financial or some other benefits, say a family
member is put higher on a waiting list, if you agree to be
a donor, then I think the system has to take into account
the very low probability that the organs will actually be
usable, so the nature of the benefit, that goes to others
when you agree in advance to donate is not that significant.
I think another point that's important to remember is that
the results of transplantation are mixed and the slogans always
say it's lifesaving and so forth. It is lifesaving for many,
but not everyone and of course, it depends on the kind of
organs we're talking about.
And many people have complications and compromised quality
of life. Now certainly if you ask most of them would they
rather have gotten the organ, they say yes, but it's not
these organs do wear out and sometimes it sounds as though
you're giving sort of life forever if you donate an organ
and it is a possible life, not necessarily as healthy as an
ordinary person has.
I think it's unclear what effect payment would have on satisfying
a supply. We know that. The point is though that even if it
does, we'll still be having this conversation in 10 years.
Anything that increases the supply will not get rid of the
waiting list because the waiting list is long and also people
don't get on the waiting list now who would be put on the
waiting list if the waiting list weren't so long because of
their other health problems or so forth, they never get put
So I think if we were going to do something on this area,
I think we should try to examine what's the nature of the
social obligation or the obligation to be a good Samaritan,
to provide organs to those in need. This is related to Leon's
point about why do people not give organs? There's a complicated
set of reasons. Do we want to say that everybody who doesn't
give organs is a bad Samaritan? You know, what is the nature
of that obligation?
And on the other side, what is the nature of is it
an entitlement to expect that you will get an organ? If not,
you know, this whole idea of people dying on the waiting list,
what kind of a moral violation is that? How troubled should
we be and so forth?
And then finally, what about the obligation to get organs
to people who are well qualified in terms of health and so
forth, but they don't pass the so-called wallet biopsy? That
is, they don't have insurance that will cover this. They're
not able to get it covered by Medicare or Medicaid, excuse
me, and so what do we owe to them?
If we were to start paying people to give for providing
organs, that money will have to come from somewhere. Is that
so that would raise health care costs. Is that money
well spent or given that we have so many people who lack access
to basic health care, is the best way to spend limited dollars
to channel that money to other forms of care?
So those are my thoughts.
CHAIRMAN KASS: Thank you very much. Why
don't we follow on with Bill?
DR. ROWLEY: Can I just I think one
of the points in your very last statement that you didn't
really take into account is the fact that dialysis is an extraordinarily
costly and costly to the public health system or the insurance
system. And so that you have to balance that enormous cost,
compared with the cost of providing that individual with a
functioning kidney and I don't think that you introduced that
sense of balance in your last comment.
PROF. DRESSER: Right. I was mainly focusing
on if we did decide to pay people for organs, we'd have to
get the money somewhere, so if we had extra money to spend
on health care, is that the best way to spend it.
CHAIRMAN KASS: Janet's point would be that
these people are now on dialysis and therefore, the money
used to pay for the transplant might be in that saving, if
I understood her.
PROF. DRESSER: Right.
CHAIRMAN KASS: Bill May?
DR. MAY: A word first about the history
of the discussion, as I've experienced it across the last
25 years and then some reflections dating back to Leon's reflections
on the wisdom of repugnance, the whole question of feeling
and the relationship of religious rights to feelings and so
forth might be bringing to the attention of the group.
In the early 1970s and again, in the late 1980s, when I and
others wrote about organ transplants, the discussion focused
chiefly on two alternatives, individual giving which we've
talked about here and the other alternative that was chiefly
discussed was routine salvaging, individual giving linked
with the prevailing system of opting in, in common law countries.
The requirement of opting in seemed respectful of the quasi-property
rights vested in the family for the purposes of a decent burial,
but it, of course, did not supply enough organs and so created
The second alternative, routine salvaging, presumes consent,
unless and only unless the individual of the family opts out.
You talk about European countries, I gather even where that
system prevails, the tendency is for doctors to ask anyway.
It isn't quite the explicit, routine salvaging that it seemed
to be. And some worry that this system dangerously overrode
sentiments, rights and symbols.
Culturally, one tended to associate the requirement of "opting
in" with the Anglo-Saxon common law tradition and its greater
emphasis on individualism and volunteerism and the provision
for opting out with the Continental traditions of civil law,
where the individual and the family bore the burden of withdrawing
the body from the commons, as it were.
The debate, in fact, was more complicated than individualism
versus communitarianism, individual rights versus the states'
prerogatives. Paul Ramsey, for example, in the chapter we've
read, argued that a system of explicit giving would help to
shore up consensual community, a shoring up from which community
itself in the long run stands to profit. So that it isn't
simply isolated individualism versus communitarianism.
Today, the continuing shortfall in the supply of organs has
generated pressure, once again, for an alternative to giving,
but this time, not routine or near routine salvaging by government
authority, but buying and selling in the marketplace. And
of course, once one moves in this direction, the wrinkles
multiply. In our reading, this was quite obvious, and as the
staff paper indicates. For example, futures market where individuals
agree before a death to sell their organs, and receive cash
payment or lowered health insurance rates while still living,
would one have to rewrite the contract constantly over time
as the product ages and deteriorates? Kind of interesting
problem. Or insurance rates rising with aging and the cash
value of the body still inconveniently at hand, declining
as a downpayment against premiums.
Now critics worry that the marketplace, left to its own energies
tends to respect no boundaries. Neither the body as a whole,
nor any of its parts, in this setting tends to be tinged with
the sacred. The existentialists used to say that we not only
have a body, if that's all it was, then it might be sold as
property in some senses, important senses, we also are our
bodies, as media, of disclosure of ourselves to others and
And in the setting of the marketplace and spirit, the thing
tends to have whatever worth someone is willing to pay for
it and another to sell it for. And of course, to facilitate
sales more efficiently, could brokers set up a kind of e-bay
auction of pre-used body parts with suitable protection of
the purchaser through regulations, guaranteeing transparency
and truth in advertising.
To avoid some of the vulgarities of the marketplace, Congressmen
have offered bills proposing a tax credit from $10,000 to
$25,000 for the provision of an organ. Once again, the ironies
abound. Let us suppose a rich man and a poor man both provide
kidneys for their daughters. The rich man's kidney is worth
$25,000 as a tax credit and the poor man's kidney in the eyes
of the bill is somewhat worthless.
One moralist complained about the effort of economists. It's
very interesting. It was an economist who talked about the
distinction between buying and selling and the gift relationship
and that was Titmuss in the book with that title. And one
tended to distinguish sharply between the arenas of giving
and receiving and selling and guying. He pointed out that
a Southeast Asian, this critic pointed out, that a Southeast
Asian who is willing to sell a kidney for $2,000 to supply
a daughter with a dowry or to educate a child, that's an extraordinary
noble act on the part of that person. It isn't simply ruthless
selling of something that one has. It's a noble act. But as
I see it, the nobility of a particular act of selling does
not redeem the tawdriness of a social system that would force
a straitened individual to resort to this act of generosity.
A health care system ought not solve the health problem of
the desperately ill through the desperately poor. And this
applies with particular force with respect to living donors.
Now to return to the question that Leon raised earlier, if
I may, is you know you wrestle with the problem of our natural
revulsion of the prospect of cutting up the body for the sake
of extracting organs. It's human sentiment here.
We can be given to the mysticism of the marketplace, but
doesn't it reach its territorial limit with regard to commodifying
the body, this initial first step that Rebecca talked about.
However, such powerful feelings such as revulsion are morally
neither infallible, nor automatically decisive. I think it's
interesting that Leon himself, of course, made this point.
For practical purposes directed to important ends, we dissect
the body in gross anatomy, conduct post-mortems and authorize
autopsies and so forth.
Thomas Aquinas emphasized the importance of a rational control
of our aversions for the sake of good ends, in his discussion
of the virtue of courage. The philosopher Joel Feinberg pled
for the rational control of aversive feelings. He argued in
favor of the routine salvaging of organs, even though the
bereaved might react emotionally to the cutting up of the
corpse for the sake of organ transplants. He observed in his
presidential address before the American Philosophical Association
that our aversion to cutting up a corpse should give way to
a "careful, rational superintendency, and education and discipline
of the feelings."
We cannot construct a social system entirely on the basis
of our raw feelings. We should not sentimentalize the sentiments.
But reason, it seems to me, doesn't provide us with a sole
means for disciplining our feelings. Religious symbols and
the rites by which we appropriate them can help express, but
also contain and discipline our most powerful feelings and
I want to explore this whole issue.
Indeed, religious symbols and rites may strengthen much more
than appeals to reason our capacity to secure organ donations
because religious communities, for better or for worse, not
reason, shape most rites surrounding death.
A word about I'm not an anthropologist, but a word
about the whole question of the emergence of funeral rites.
Some students of funeral practices have pointed out that flight
characterizes the most primitive human response to a corpse.
Flight reflects more than an instinctive hygiene or an individual
aversion to a dead body. Entire villages have been known to
move to another location to avoid any further contact with
This powerful human aversion, however, does not escape discipline.
Funeral services arose, at least partly, as a way in which
the community could contain and appropriate the dread that
it experienced before the newly deceased. Analysts today have
come to respect the psychological necessity of such rites,
the living can pass on to mature life only through death and
through their consent to the death of those who were close
The development of funeral rites, therefore, represents a
secondary response of containment on the part of the community
to force itself to be present to death. It doesn't allow raw
feeling alone to drive it. The community must discipline its
aversion. It must still its feet, as it were, before death
and stay with the deceased. This form of presence, of course,
doesn't wholly eliminate the original aversion. The community
becomes present, after all, with the intent of removal. It
burns or buries the corpse. The community no longer journeys
away from the dead, but removes the dead from its presence.
The original element of aversion and dread persists, even
within the constraining form of funeral practice.
And of course, societies traditionally vested in the family
through the notion of quasi-property rights, the responsibility
for burial. Such property rights were quasi in the sense that
the family could not put up the cadaver for commercial use
or sale, but rights they were in the sense that no other party
could normally interpose claims upon the corpse that would
interfere with the families right and obligation to provide
for a fitting disposition of the remains.
In other words, whatever use and abuse, conflicts and tragedies
a person has suffered in the course of his public or private
life, the society cannot reduce him or her to those events
or to a marketplace utility. Jacques Maritain would call this
Sophoclean insight, Antigone comes to mind, the principle
of the extraterritoriality of the person.
Therefore, are we stuck with a containment of sentiment through
burial practices, normally vested in the family only to render
the corpse untouchable and the rites of burial and cremation
unchangeable. I think not, for funeral rites themselves have
already contained in discipline the original raw impulse to
avoid and to flee. But now where does that leave us?
It seems to me today, we haven't yet adequately explored
organized giving. The power of feeling, as I've tried to articulate
it, argues that bland appeals to reason and to the general
ideals of altruism and philanthropy will not suffice. We may
need to appeal not simply to the superintendency of reason,
but to the religious traditions themselves in their shaping
symbols to develop sufficiently powerful reasons, religious
and moral, securing organ donations.
Indeterminate appeals to the public at large through media
appeals and advertisements on buses and subways or a signature
when you're getting your driver's license renewed, will not
likely generate enough donors. Purely individual appeals lack
organizational momentum, even though it's an organization
that is organized, these individual appeals.
They also address the isolated individual, one on one, exactly
in that condition and circumstance which most resembles death
itself, the individual, solitary and removed from community.
To secure substantial support for organ and tissue donations,
one may have to go beyond a tepid legal permit and general
appeals to individuals. We may need to mobilize institutions,
chiefly religious institutions, since most funerals, for better
or for worse, still occur under religious auspices.
Now a word simply about Christianity, not because I think
one should ignore the whole question of the other traditions
in a kind of society in which we live and not that Christian
tradition could or should be legislatively decisive, laws
based on Christian ethics alone would likely be divisive and
therefore objectionable on Christian grounds as well.
On the other hand, the Christian Church remains a major Western
institution with significance for better or for worse, for
millions, especially in the area of funeral practices. Its
attitude on organ transplants could have considerable impact
on the success or failure of programs for blood donation,
organ and tissue retrieval.
Now I won't bother discussing the negative obstacle within
Christianity itself which was, of course, the whole notion
of the resurrection of the body which led to the replacement
of ancient practice of cremation with burial. And the whole
issue emerged for Augustine as to whether therefore burial
was a precondition of the resurrection and Augustine said
not on your life, it's a miracle enough involved in all this.
It's an office of humanity burial. There was nothing essential
about maintaining the practice of burial as a kind of precondition
of the Christian affirmation of resurrection.
Well, that only deals with the whole question of negative
obstacle on all this, on the question of positive warrants.
Are there positive moral and liturgical reasons for the act
of giving? I think there are. Moral reason, self-expending
love defines the life of the one who is the focus of the faith.
He lays down his life for the brother and the sister, the
neighbor, the enemy and the stranger. This love calls for
concrete service to the bodily needs of others, their hunger,
their thirst, their illness.
There are, of course, two limitations to this service. One,
some chance of success and two, the sacrifice or must ordinarily
not neglect those duties to himself or herself that will sustain
a capacity to serve. That's real reticence about most forms
of live donation.
Second, there is that extraordinarily liturgical warrant
for transplants. In its central sacrament, Christians believe
that Christ shares, under the form of bread and wine, his
body and blood, his self-expending love. Fittingly, believers
may participate in the substantive love by their readiness
to share a portion of their bodies and blood with others,
when their bodies no longer sustains a future capacity to
While Christian ethics and worship, I think, encouraged transplants,
Christians, I suspect, would have to draw back from the sentimental
and inflationary rhetoric of symbolic immortality through
such deeds. My child died in the accident, yet he lives on
by supplying others with a heart and a kidney.
We should rather talk simply about the assistance. I think
it was Paul Ramsey who put it this way, that one mortal being
renders to another who after all one way in his own right
or her own right in time, will have to do his or her own dying.
CHAIRMAN KASS: Anyone dare to speak?
CHAIRMAN KASS: Gil Meilaender will speak.
PROF. MEILAENDER: I did have some notes
to myself whether and some of them follow up on what
Bill had to say, in fact. I have three comments, I guess,
comments, questions. I'm not quite sure what they are.
One, as someone who is I don't know what the right
word is, just tentative or hesitant or skeptical about the
whole undertaking, and I think actually, although I understand
that none of us ever knows until we're in the position almost
more hesitant about the receiving, being a receiver, a recipient,
than a giver. I sometimes wonder in my pessimistic moments
whether acceptance of organ transplantation is really not
the crucial step, in fact. And I think in a way it's a useful
way to think about. In other words, if you once have given
your imprimatur to that are we sure that there are really
sort of determinative reasons for saying but it may only be
done by say a method of giving and receiving donation.
There may be arguments that tilt us in one direction or another,
but I just I think it's worth thinking about and perhaps
talking about, whether the crucial step is learning to think
of the body and its parts in a certain way and after that
it's just refinement under the ineluctable force of claims
about shortages and so forth. I'm not so sure about that.
Certainly, and this actually two things to take up
what Bill said, even if we're going to stop, even if we wanted
to press for some kind of system of giving, altruistic donation,
all I, myself, find it unattractive and unappealing
to think we're beginning your word, Bill mobilize
institutions to encourage this. I'd find myself another congregation,
if mine started to mobilize itself to do this, I think.
One of the other things that Paul Ramsey said was that when
Christians began to wax eloquent about self-giving love and
the way it can give, even the body, that physicians would
have to remain the only Hebrews who reminded us of the body's
integrity, I'm not clear that we can rely on physicians to
fill that role any longer. I'm not sure who will, but a spirit
of self-giving does not in itself necessarily constitute what
Christians call love. I mean Bill would disagree with that,
I'm sure, but it needs more thought. So that's my first point
that it's really the fundamental question that in some sense
needs thinking about.
Second thing, it's true, as Rebecca said that there may be
something paradoxical about denying the possibility of commodification
at the first level and having everybody else get rich off
the process. And actually, I'd be quite happy to think of
a system whereby the transplant surgeons could not get rich,
but I suppose she's right, that that would be hard to do.
But nevertheless, I think there is a certain kind of difference
here. I mean for instance, when they wheeled me into the operating
room, I want my surgeon to think in a rather detached way
about my body and even think of it as sort of a collection
of parts that fit together. It would be very bad if that surgeon
spent his whole life thinking of his wife and his children
and so forth in the same way. There are different moments
in life when we have to think in different ways. And it's
commodifying at the very first step is to some degree inviting
us to treat ourself or those whom we most love in that way.
And so there may be a difference to be thought about still
there. It seems to me at least again, I'd want to think about
And then the third question that came up, about whether there
might even be an entitlement to such thing or you'd have a
civic duty to do such a thing, language that I find very unappealing.
It seems that if ever it is clear that we do not belong to
the whole of our being, to the community that we inhabit,
death is the moment when that's clear. And that office of
humanity that burial requires is kind of the last it's
not just the reverence and the tribute we pay to that person,
but it's the acceptance of the fact that he or she did not
belong entirely, wholly and entirely to us. So that whatever
else we say, it seems to me we ought to recoil from that notion.
So I guess my point would be one, I really do think the procedure
itself raises crucial questions and one has to think about
whether once you've approved it, the rest is just a matter
for interesting arguments, but nothing very decisive. I think
that there is something different about that first step because
it involves how we're learning to think about ourselves or
those closest to us. And I think we maybe have some reasons
to back away from any kind of entitlement language.
CHAIRMAN KASS: If I might, Bill, do you
want to respond, Bill May, to Gil directly?
DR. MAY: Well, the way you put it, I tried
to incorporate the whole question of the individual does not
belong wholly to the state. That was the point made in Antigone.
In one sense, one way of interpreting burial is not simply
the person doesn't belong to the state, it belongs to the
family, I don't think that's quite right. I think why it's
located in the family, in a way, the family is the one who
has most used up this person. And so there's something fitting
about doing this in the setting of the family by way of release
of that person. I think that's one unspoken dimension of funeral
rites. It's not some, simply an occasion which the aurora
borealis of the person extends into the future in mortality
by way of memory and into the future, but that's one way of
seeing the funeral service is it allows for the extension
into the family, the radiance of this life. But it's the occasion
in which the family is forced to acknowledge release, put
in the ground or whatever, it's done and then you walk away.
That's in part, insisting on the power of those rites, the
importance of those rites, it seems to me, would interpret
the event in that way. But that argues also, it seems to me,
for involving the family in the final decision as to whether
the person will be released for use in this further form.
I understand the problem of justice that Rebecca raised with
regard to first step, but I think ironically what you do in
order to make that just is you simply completed the last step
in the commodification and increasing pressures upon those
who consent to sell. And I think that's going to fall disproportionately
on the poor in the setting of our culture. And so yes, there
is an irony of this is the only one who doesn't make money,
but it still clears out it doesn't simply complete a
closed system of handling this entirely through the newfound
not the newfound, but the old wondrous mechanism of
buying and selling. So it's important preserving that first
step, it seems to me, as it bears on the significance of human
feeling towards the newly dead and the rights that we mount
in relationship to that dead person.
CHAIRMAN KASS: Let me join in too, if I
might. I also think that one shouldn't I've heard the
argument and I think there's some merit to it, saying everything
else is commodified, why shouldn't the person whose organ
this is somehow participate, but the transplant surgeons would
get the same amount, roughly the same amount of money, perhaps,
if they put in a mechanical piece, a mechanical organ in its
place. The fact that we have all kinds of we have a
commercial system of medical care doesn't finitely determine
whether we should absorb organic parts of either recently
deceased or of living people into that system.
And I agree with you, Gil, that in a way the original question
about the meaning of our embodiment, the challenge to it that
comes from allowing the transplantation of organs is somehow
primary, but as I tried to argue and puzzling through this
myself, it does seem to me that it is in a way moderated by
the gifting of it, so that one is not simply just transmitting
body part, but as in any kind of gift there is the sentiment
of generosity that accompanies it and if you simply treat
the body part as a body part, inalienable, which to some extent
it is, you have somehow already done some kind of violence,
but I think we can find a theoretical way of overcoming our
initial repugnance of this if we somehow stay within the language
and the practice of giving.
Whether we don't somehow really radically underscore what
might be questionable about this practice once we start the
buying and selling of these parts, is one of the reasons why
I'm a little hesitant to cross this line.
Just two other things to the side, I really do think there
is a major step here and that if we think simply in terms
of increasing supply without paying attention to what it actually
means to put the body parts themselves in commerce, we will
be missing something of the sort that Bill May is talking
Two things. First of all, the system of organ allocation,
having now been federalized and bureaucratized has in a way
moved the relation of donor to potential recipient you
have to think of the universal national community, rather
than the communities in which one actually lives out one's
religious life at least as it is agreed, so part of this kind
of appeal is somehow obviated by the desire for efficiency
and in fact, fairness so that you don't simply have certain
kinds of unfairnesses in the local place.
Second, I would at least want to raise a caveat about this
concern for the poor which I do share, but the economists,
and by the way, I should see that people get, these are my
colleagues at AEI that are referenced in the staff paper,
but they're calling for an outright system of buying and selling,
partly on the grounds that it's patronizing. I mean who are
we to somehow to say to the poor that you can enter into this,
maybe, but only at some kind of fixed rate and whereas we
our concern for them keeps them out of the one system
in which they might be able to turn something to advantage?
I say that with nervousness, but it seems to me it's part
of the it's part of this discussion.
Gil, do you want to respond?
PROF. MEILAENDER: Yes. I appreciate what
you say about the sense in which keeping it as a kind of a
process of giving might retain a certain kind of my
key point from thinking of it simply as alienating some part
of the self. I understand that. Some days that persuades me
and other days it doesn't. But I had two questions for you
on it: Are you attracted to language where people might talk
about organ donation as in a sense almost kind of conferring
a kind of immortality, carrying on the sense, that's one.
And, are you attracted to occasions when people want to somehow
know and stay in touch with the person in whom some loved
one's heart or something lives on? You see, it seems to me
that you ought to be, at least I try to think about it, you
ought to be attracted to both of those, if you want to make
that move with a giving language. And I not personally attracted
to either of them, so I just wonder.
CHAIRMAN KASS: Yes. I better retreat on
the first and confess on the second, too. I do think that
there's something about all acts of generosity, all acts of
generosity that carry with them the giver to the recipient.
"The giver is alive in the deeds as received." It's a wonderful
passage in Aristotle's Ethics, in fact, where he raises the
question why does the benefactor love the recipient more than
the recipient loves the benefactor? You think it would be
the other way around.
There are two answers. A vulgar people say the benefactor
loves the recipient because the recipient is in his debt and
therefore he somehow wants to make sure that some day he'll
get it back. But the more profound answer is the benefactor
loves the recipient more than the recipient loves the benefactor
because the benefactor lives in the recipient, the way in
which the poet lives in the poem. And there is a way in which
it seems to me these acts of generosity, I'm not talking about
immortality, but there is a way in which one's being extends
through acts of love and generosity into the lives of other
people and it seems to me there's no reason why the gift of
one's body part can't partake of that same kind of generous
On the other hand, as I perhaps alone in that discussion
of "Whither Thou Goest" thought that while it's a creepy story,
while it's a creepy story, the heart that now beats in that
other man is not altogether and absolutely the other man's
heart, not absolutely. And that's part of the funny thing
about what it means. I mean a heart is a special case, all
of that, but to the extent to which we really are our bodies
and rather than hitch a ride to them, then these hands, these
gestures are also part of who I am.
So I don't know where that leaves me on the question of policy.
I'm somewhat squeamish, I think, about entering into these
financial arrangements, and I think if we're going to go into
them, I'm with Dan. I think half-hearted measures, if you're
really going to say this is what we have to do in order to
increase the supply and we're willing to ride roughshod over
these other things, then let's do it in a way in which in
fact is going to succeed rather than step by step, first with
the funeral expenses, then but I'm very nervous about
taking that next step and would like very much to try to find
some way get Bill May out on the stump, to make the kind of
very deep and profound appeal that he makes.
PROF. SANDEL: Well, I'm still trying to
recover from Bill's dazzling comments and I haven't fully
absorbed them, but I would like to draw upon what I understand
of them and some of the other comments to offer a policy proposal
that incorporates elements of Dan's suggestions and also of
the moral sensibility that Bill just laid out for us.
There are at least two reasons to oppose markets in organs.
One of them has to do with coercion and coercing the poor.
Dan brought this out. And Bill when he said that we shouldn't
solve the problem of the desperately ill by creating a problem
for the desperately poor. That's one objection to having markets
Another objection which is independent of the coercion objection
has to do with commodification as such with treating bodies
as objections of possession as our own property, reasons that
Leon has developed in the article that he wrote.
The second, the commodification objection is independent
of the first because whereas it's quite apart from rich and
poor, about encouraging us to view our bodies as our own property,
rather than as a gift with a certain telos connected with
the sustenance of life.
Now there is the hypocrisy problem in rejecting markets that
Rebecca raised, but the hypocrisy problem can be solved in
two directions. It can be solved by universalizing the practice
of commodification or it can be solved in the other direction
by decommodifying the practice of organ transplantation altogether.
And I think there are reasons and ways to advance the second
which is what I would propose.
In the discussion paper, there were five proposals that were
laid out and what I would propose would be a combination of
numbers 5 and 3. Number 5 is the routine retrieval which
and Dan and Bill have both given us reasons to take that very
seriously. The routine retrieval I would say not based on
some theory of presumed consent, but to the contrary, as a
way and not only by the way for the sake of increasing
the supply, although it would have that desirable effect,
but also as a way of giving expression to the moral sensibility
that Bill articulated. That's the reason even beyond the reason
of increasing the supply to favor routine retrieval, so that
there's a presumption built into the practice that the body
isn't our property as individuals. Now I would make this routine
retrieval subject to religious exemption, so that those who
had religious convictions that saw the body as somehow necessary
to the afterlife, allow a kind of conscientious objection
provision so that those people wouldn't be subject or they
could opt out.
But beyond that, there would be a presumption and expectation
and then couple that with proposal 3, the public compensation,
not compensation in money, but in kind. And what would count
as compensation in kind for enacting the presumption that
our bodies are now our property, but rather gifts of life
that are in our care for a time, not just funeral expenses,
certainly not a tax credit for the reasons that Bill explained,
and not discounted health insurance either which is subject
to the perplexities and anomalies Bill played out very well
about when should the discount be reduced when the kidney
diminishes in its value? No, the proper compensation in kind
would be universal health insurance and universal health insurance,
not just for the familiar public policy reasons that there
are people in need who aren't cared for, but as a way of giving
expression to the same ethic and Bill elaborated on this,
the same ethic that underlies the routine retrieval part,
namely, that if our bodies are not our own property as individuals,
but a gift of life that is for a time in our care, then it
follows that when our bodies fail us, when we fall into ill
health or disease, that isn't our responsibility as individuals
either, but a shared common responsibility.
So the ethic that underwrites the presumption of routine
retrieval is also an ethic that supports compensation in kind,
not in a discount, not in funeral costs, but in universal
health care. And while we're at it, once we have that we can
solve Rebecca's problem of the transplant surgeons making
a whole lot of money on this because there will be a single
payor who can set fair rates.
CHAIRMAN KASS: Very eloquently done. The
hour is late.
DR. KRAUTHAMMER: Can I make a short comment?
It's a lovely idea, but it means that we will be postponing
the issue of organ shortages for a very long time because
the prospects of that kind of proposal succeeding are very
small right now and I think there might be less radical and
dramatic and universal ways of approaching it.
I think it's a very fine idea. I just think in terms of practical
politics, it is impractical right now and it would postpone
the solution or at least an approach to the transplant problem.
Also, if I could just open for discussion for another time
the I wonder if there are people here who could tell
us a little bit about the history of the routinization of
autopsy because I see autopsy as sort of the model for the
violation of the body. I don't know what the laws are to date
in different States on whether it's routine, whether there's
opting in or opting out, but I'd be interested. I think that
could inform our discussion of this issue to see how the initial
violation of the body, if you will, was routinized and accepted
and how it's regulated today. I think it might give us a few
insights into this issue.
PROF. MEILAENDER: Let me just comment on
that real quickly because autopsies which were fundamental
in understanding modern medicine essentially are not done
any more. And the reason they're not done anymore is because
nobody will pay for them except in criminal situations. For
example, the American Board of Internal Medicine requires
that you can't have a training program unless there are at
least 10 or 15 percent autopsies done on the people who die
and many centers cannot do this any more because the pathologist
does not get paid for it.
So if you look all over the country, autopsies from the standpoint
of science alone, it's a great tragedy that we can't find
the mistakes and so forth that we do. So we struggle to get
autopsies and namely make it now because of legal requirements
for unexplained deaths or quick deaths that occur. It's gone
CHAIRMAN KASS: The hour is late. Let me
make let me see if I correctly get the sense of this
group. This is obviously this is our first crack at
this topic, very, very fine and rich things were said. We
have a lot on our plate in terms of what we've agreed to do
or been asked to do, but unless I hear to the contrary, I
will assume that this is a topic that can remain alive for
us to be revisited in meetings ahead. We can get additional
information as to what the Secretary's committee has done
and we can send out some additional materials and find some
additional information. But if this Council could think its
way towards some kind of policy recommendation, if it was
so inclined, that might be a useful thing, and at the very
least, we can keep this issue from being reduced, simply to
the question of supply which I think has been the brunt of
the remarks all around the table.
We're adjourned until 2 o'clock. It's about an hour and 20
minutes, rather than what we should have had, but that should
(Whereupon, at 12:43 p.m., the meeting was
recessed, to reconvene at 2:00 p.m.)