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Thursday, September 7, 2006

Session 4: Organ Transplantation and Policy Reform

Discussion of Staff Working Paper by Sam Crowe, Ph.D.

CHAIRMAN PELLEGRINO:  Our last session of the day is organ transplantation policies and policy reforms.  This paper, like the others, reflects where we are from the point of view of the research being done and I invite you once again to think about the paper with reference not only to the content, but where do we go from here, given that the report, looking at the state of the question.

My mic isn't working.  I hope they heard me.  Peter is going to start the conversation.

PROF. LAWLER:  Okay, first of all, let me praise the report, partly because it was excellent and partly because it was written largely by a graduate of Berry College and a former faculty member of Berry College who got the huge promotion to come up here.

And what I'm going to try to do is to give the political theory of the information presented in the report.  So this report presents our current policy concerning organ donation and transplantation in terms of three standards we hold in common:  health, freedom and dignity.  These are the standards that guide our political life.

The first two standards, health and freedom, are at the heart of our legal tradition, the unalienable rights of life and liberty that we find in the Declaration of Independence.  The place of the third standard, dignity, is real, but less clear. 

When Leon Kass writes a book called Life, Liberty and the Defense of Dignity, we can't help but notice he played with the text of the Declaration, replacing happiness' pursuit with dignity's defense.

But it is clear that our policies, the policies described in the report, are based on the premise that dignity can limit and sometimes trump what we freely can do in pursuit of health.

So in pursuit of health, our policies facilitate and to some extent encourage organ donation.  We have the technology to transplant organs, but its effectiveness is limited by the number of organs available, and there never are enough available.  So our policies have many donation friendly features and we're increasingly open to more.            

But if health were our only standard, we might well require citizens to donate organs to their fellow citizens.  We might, in fact, conscript organs, compelling, as the report speculates, that all healthy young Americans participate in a kidney lottery to generate the 90,000 or so healthy kidneys that we would need to take care of everyone on the waiting list.  We know we sometimes have to conscript young citizens to defend our health and safety through war.

If we can conscript whole, human beings, why not just kidneys?  But, in fact, we don't conscript kidneys, either living or dead.  Even when the citizen clearly doesn't really need the kidney at all anymore.  So we don't regard organ donation as a duty of citizens.  Freedom for us trumps health.  Respect for the free choices of individuals and families diminishes the number of kidneys available, for example, for transplant.

People may donate their kidneys and other organs, but they don't have to.  And the default position basically is that consent can't be presumed.  People aren't even commanded to decide for or against the donation of their organs at death.  They are free to leave that decision to their families or not to be made at all.

Sometimes a principle seems to be my kidney is my property to be disposed of as I or my family sees fit.  But in fact, our law does not understand my kidney is my property to deal with as I please.  I can and to some extent am encouraged to give one away.  The law in some cases is in the process apparently of removing disincentives to donation, through for example, time off with pay.  Occasionally, I've found out from the report, we might even be honored publicly, say with a medal, for selfless service to others. 

But nobody, of course, would donate a kidney just to get a paid vacation or pick up a medal.  But what we really think is no one acting either publicly or privately can make my kidney donation worth my while or not really a donation at all.  So the premise of our law is that the offense against my dignity that would lead me to think of my allegedly surplus kidney, or even my cadaver kidney, in terms of its net worth in dollars is so great in the defense against dignity, that it trumps health and freedom.

Our law concludes that maximizing the number of lives saved or restored to health is meaningless if it is at the expense of what gives dignified meaning to human life.  So the understanding of freedom that guides our organ donation policy turns out to be the one Gil favors.  The very old-fashioned one.  It identifies freedom with dignified liberality or generosity with the freedom of moral virtue.

Our law commands even against our individual rights of life and liberty that what may be given may not be sold.  Today, there is increasing pressure on us to think of that old-fashioned defense of dignity, of virtue, as a cruel, irrational prejudice.  The pressure is on to transform our law to allow for a regulated market in the sale of live, seemingly surplus kidneys. 

And the two challenges to our accepted understanding of our dignity come from, of course, health and freedom; our need to for health and our right to liberty.  Let me talk about each of those just for a second.

First, health.  The number of people on the waiting list for kidneys is increasing rapidly, much more rapidly than the number of kidneys conceivably available from cadavers or as uncompensated gifts from live donors.  So as Dan said, we're kind of diddling if we just kind of concentrate on picking that number up a little.

The truth is people are needlessly suffering on dialysis and dying prematurely because kidneys aren't available.  For more and more of them, the wait is hopelessly long.  The technology to extend and improve the quality of these people's lives is getting better, but it still depends on the scarce natural material. 

Not to use market forces to increase kidney supply, the argument goes, is, how can I put it, is pro-death.  In this respect, market kidneys are — the market forces are in fact pro-life. 

And the other argument goes something like this.  Our understanding of liberty is changing.  Our country is getting more and more libertarian.  The Supreme Court said in the case Lawrence v. Texas that what our necessary and proper limits to liberty to one generation are, in fact, offenses against liberty to the next. 

So the history of our country is the history of perfecting our understanding of the free individual.

So the argument that we've never allowed a market in kidneys is somewhat unpersuasive to us because of this constitutional view that liberty changes.  Liberty deepens over time.  So if you think about health, this alleged scarcity of kidneys, this alleged crisis, and if you think about evolving and increasingly libertarian view of liberty, clearly the fact that we've never had a kidney market before is seen not as a argument.  If we're not going to have a kidney market, we have to give an argument on behalf of dignity.  An argument so powerful that it trumps both health and liberty to some extent.

Now Leon Kass and the powerful message that he sent us about this report said that the pressure is so great that the only alternative is to find another way of dealing with end-stage renal disease.  And surely someday there will be another way.  Xenotransplantation, regenerative medicine.  I mean, who knows?  But that day, the coming of that day is pretty unpredictable.  So the big question is what do we do now when we're stuck with a growing number of people on dialysis and we seem to be stuck with an understanding of liberty that allows market forces to go places market forces have never gone before.

I'm not endorsing a system that would allow me to count my kidneys as part of my net worth in dollars.  But I'm saying it's going to be harder and harder to resist it and if we're going to resist it, we're really going to have to give a powerful argument.  Thanks.

CHAIRMAN PELLEGRINO:  Thank you, Peter.  Anyone want to get into a discussion? 

Robby?  I'm sorry.  Dr. Bloom, sorry.  Well, one of you has to go first.  Robby, you go.

PROF. GEORGE:  I was pointing at Floyd.  I didn't think you had noticed. It wasn't my hand in the air.

CHAIRMAN PELLEGRINO:  Okay.

DR. BLOOM:  I would just like to bring up a point we brought up when we discussed thisat the last meeting and two meetings ago.  As long as we're in the crisis mode of thinking about the growing gap between the need and supply of organs to be replaced, we're eliminating a large fraction of what we could do as scientists in the 21st century. 

We understand that many of the causes of end stage nephropathy that require the kidneys to be replaced are controllable, medical illnesses for which the person's health liberty has allowed them to avoid their responsibility for health maintenance and physician care. 

As long as we limit our policy recommendations to dealing with just the gap between the need and the supply, we're eliminating those alternatives that Peter loosely referred to. 

Regenerative medicine is one, but preventative medicine is one that we have known about for years and which the country has refused really to take any credence for.   So a large part of this growing gap is, in principle, controllable, but with a great deal of lag time because we have to implement that in a way that is serious.  But to get serious about this, we need to get serious about the other half as well.

CHAIRMAN PELLEGRINO:  Thank you.  Peter.

PROF. LAWLER:  Now there is a lot of wisdom in that, and once again I want to endorse for others preventative medicine. 

(Laughter.)

Except to say this, in our book last time, our briefing book, there was this letter from Ben Hippen who denied that preventive medicine really would do much to solve this problem.  It's true that preventive medicine, an aggressive program for preventive medicine, would save many people from the consequences of diabetes, which includes kidney failure. 

On the other hand, to some extent, perhaps, our long list of people needing kidneys comes from the success of our medical system.  And here I'm going into deep waters because I'm not an M.D., but it seems to me that something like this is happening, too.  More people are experiencing kidney failure precisely because of the success of our heart treatments.  The natural thing for someone with high blood pressure or kidney disease, and Dan correct me if I'm wrong, to do would be to die of a heart attack or a stroke.

But now we have statins.  We have very effective blood pressure medications.  So isn't it the case that precisely because of some of our preventive medicine, more and more people will go all the way to end-stage renal failure.  So what Floyd says is good, but I remind you that Ben denied that this would really make much of a difference at the end of the day.  The list will still get longer. 

The list will get longer partly because of the failure of our preventive medical system.  But it will get longer partly because of the success of our medical system that's producing an aging population.

CHAIRMAN PELLEGRINO:  Thank you.  Comments?  Robby.

PROF. GEORGE:  Now my hand is in the air.    

CHAIRMAN PELLEGRINO:  Okay, now you want to go.

PROF. GEORGE:  Nick, can I put you on the spot again as our resident economist? 

It would certainly be a little easier for me; it's not as if the difficulties can be made to go away for reasons that Peter indicated, but it would be a little easier for me to assess, do my own assessment at least of the ethics of moving to a market system,  if I knew with greater confidence what the social consequences of the move would be.  And I'm just not clear what they would be and I'm not clear what economists can and cannot tell us with confidence, or any other social scientist who is involved in the business of trying to predict consequences of policy change, what we can know with confidence and what we just can't know and therefore would have to speculate about going into the system.

Now I gather that one thing that people agree on is that the number of organs available would increase.  Dan said that today I think and Richard Epstein plainly was asserting that.  Is that one thing we know for sure?  If the market will just make that happen.  It's just what markets do.

DR. EBERSTADT:  If this market is like other markets previously known, that's what we would expect to have happen. 

PROF. GEORGE:  Now is there any reason to think this market is not like other markets we have known?

DR. EBERSTADT:  Well, the qualification there that I can think of off the top of my head, and others may have other qualifications, would have to do with the substitutability between the impulse of generosity in kind of a commoditization of supply.  One would, if you had some — if you had some extraordinarily unusual, but I suppose not theoretically impossible consequence where the commoditization of organ, this organ market, drove out all of the generosity based supply, then possibly you could end up with a lower supply until you got to certain price levels.  But that's kind of searching for kind of contrarian answers.

PROF. GEORGE:  You don't think that there's much of chance that that would actually happen.  You're quite confident that that would not happen, that we'd have the opposite result which is more organs available?

DR. EBERSTADT:  I think that would be the first premise.  I think certainly the working hypothesis would be that the supply would increase.

PROF. GEORGE:  Okay, and having in mind the various — oh Dan, did you want to come in on that point?

DR. FOSTER:Just in passing, one of the things I've thought about, I'm not absolutely sure that this would increase it, I think the arguments are likely.  

But one thing that might actually happen is there are a lot of people to use Gil's term generosity, let's say for a gift to somebody that was not family and so forth, but thought that that was sort of a humane thing to do, that they wanted to pay back the country, or pay back God, or whatever motive they said.

It's conceivable to me that then adding onto that payment might, in fact, be the extra ounce on the decision to go.  So I think it's possible that instead of decreasing the gifts that now go on, it would increase that.  You know, let's say you go to church, Robby, and so forth and somebody, you know, your church wants to feed the poor and so forth.  But they're also wanting you to give more money to the budget and so forth.

You might and, in fact, get two things done.  You give more money and then you always want to feed the poor.  I think that a financial incentive might make the difference of a donor among us.  I don't know that, but I suspect that you'll have two forces because we already know that the number of people who are offering their kidneys to people that they don't know has been increasing.  It's not a huge number, but I think we're doing it.  So I think that might happen, but I don't think anybody can answer the question for sure what's going to happen.

You know, you might build a car that looks like the best thing in the world.  The Edsel, yes.  You built an Edsel and everybody that that was going to take over the car market, and it was just a flop.  You know?

PROF. SCHNEIDER:  Sorry, I wanted to add to that in a couple of ways.  First, I think that one thing that is very likely to be a disincentive to donate now is that it's a very costly thing to do, that you lose four, six, eight weeks of income and possibly more than that.  And that's something that most people can't afford to do. 

So it might well be that instead of thinking that you have a market here, is that what you have is just a reimbursement of costs that were previously preventing people from donating.

The other thing that I think makes it very hard to answer your question is that we're kind of acting as though there were such a thing as a market and the market would work in the usual sort of way.           

We're obviously talking about a very highly regulated market here.  And the nature of the regulation will determine an awful lot of the questions.

PROF. GEORGE:  Thanks, Carl.  That actually leads right to my next question, which is having in mind the various protective mechanisms, regulations for protecting against exploitation that have been proposed by people who are favorable toward the idea of a market.  What can we know with any confidence about the efficacy of those regulations?

In other words, could we go forward in a market with confidence that we would have protections against exploitation that really would work.  And would work in such a way as to not impede the functioning of the market to produce a greater supply of organs, the point Carl was just talking about.         

What do we know and what's really speculative?

DR. EBERSTADT:  What we know is that any sort of market or regulated market solution like the existing market arrangements, and we can call them a market.  They don't just work like ordinary markets.  It's a rationed market.  They always have inadvertent consequences. 

So really, Robby, I think you put your finger on it what we want to think through is what some of the inadvertent consequences of that form of marketization would be. 

I haven't worked those through myself, but I think that's what we would have to be alert to.

PROF. GEORGE:  Is there a good body of literature on this?  Have these questions been debated?  I know, obviously, Professor Epstein has written on the subject.  We read some of his work.  Perhaps the staff could pull together for us or even out of the bibliographical materials we have.  What's that?  Yes.  Well, I think that would be obviously something useful to have. 

CHAIRMAN PELLEGRINO:  Your point, Gil?  Bill Hurlbut is ahead of you, but —

DR. FOSTER:  Could I just comment on this last thing that Carl said?  There's no doubt that this will be a regulated market.  If you go back, you may remember in the National Commission, when one of the issues that they talked about was the doing research with prisoners, and it turns out a remarkable thing.  Everybody thought that prisoners would be taken advantage of if they did risk research.  And these are all in the reports and so forth, but when you visited the prisons, one of the things that was most apparent was that prison is really complete boredom. 

And it turns out that the prisoners were very excited, in general, to want to participate in research.  In the first place, it would probably keep them out of washing clothes and a variety of other things.  But the National Commission discussed this: Wwould this be taking advantage of prisoners to have them participate in medical research?

And so what they ended up doing was saying that well, you couldn't pay a prisoner more to participate in research or relatively as much as you did if Pfizer was going to do a trial in your medical school or whatever.  In other words, the prisoners were basically, that you had to give it at least as much to the prison for that.  I said that wrong.  At least as much because the prisoners would probably have done it for free, you know, just to do it.  But it had to be regulated because it looked like it might be a disadvantage, you know, taking advantage of the prisoners to do that.

So there will be — I think many — I talked this week relative to this thing to one of the members of the Commission.  There was a huge argument about this, you know, and some people thought that just Robby — what people ought to do, they're free to do, whether they're in prison or whatever they want to do, but it will be tightly regulated and that might also be one of the main things that would keep it from — if you put a maximum amount of what you would pay, then it's not likely that it would go as much as if you let the market itself decide it would be.

I think that's one of the things that I worry about is this regulation here, even if you decided to do it and yet none of us would want it to be done without rigid regulation, I think.

CHAIRMAN PELLEGRINO:  Dr. Hurlbut?

DR. HURLBUT:  With regard to Dan's comment earlier, we had a testimony in a meeting before this from a woman who said that had there been a system of commercial inducements, payment for kidneys, she wouldn't have given hers.  And there's the other side of that.  And I talked with her afterwards and I actually found her statement fairly compelling, that she said I wouldn't want — I wouldn't feel the same about it and second, I wouldn't want people to look at me and think that I gave my kidney just for money.  And she said it would besmirch all those who did it without getting paid and therefore would decrease certain portions of the pool also.

And I was thinking about this week because I read somewhere or another, I think the figure was there were last year 14,000 egg donations in the IVF industry and I remember in the early years when women were donating eggs, there was a sense of kind of altruistic calling or generosity to help other women have children.  And now when I think about eggs, people being super-ovulated for their eggs, and I think most of us now think of it as a commercial operation because it's gotten the news from the embryonic stem cell thing and if feels very different to me now when I hear about somebody being super-ovulated to give eggs.

And you can just feel how these things change when the commercial equation enters the thing in a disproportionate way.  So I don't know how you would measure that.

Nick, have you got any ideas on how you would even evaluate such a factor in talking — talking purely pragmatically here.

DR. EBERSTADT:  There is a whole set of techniques in market research that can possibly be applied in surveys and things like that, that's one way.  There are probably other ways I'm not thinking of off the top of my head, but since it's not an experiment one is actually doing it's inescapably speculative in the final analysis.  You don't know if the rubber were ever to hit the road, whether any of your survey estimates would comport with reality.

CHAIRMAN PELLEGRINO:  Dr. Hurlbut?

DR. HURLBUT:  You know, it seems to me — I may have said this last meeting, but you don't want to over-coerce people in any way.  The commercialization, you probably have all seen these television documentaries on these matters of women in India selling their kidneys and some of them are really horrifying to see because you know very well that wasn't a completely uncoerced donation.  And in some cases anyway.  I don't want to generalize, but you get the point.

It wouldn't be in our civilization either.  And the things for which people feel the need to gain money or even gain a break from their work might not be the right motivation for this whole field, this whole approach.

And the other side of the thing is it just strikes me that before one ventures into such a territory, one ought to explore more thoroughly that an increase of the efforts to increase the awareness and altruism, for example, a really good compelling movie out of Hollywood about donation might do a lot.  Of course, that could be coercive too, so you have to be very careful not to hyper-idealize something.

On the other hand, this is a — there's a certain beauty to this when done in the right spirit and I think that we sometimes under-estimate the power of really good and beautiful motives in our civilization and the commercial thing would pollute that really fast.

So for whatever it is worth.

PROF. LAWLER:  I think that Robby's point is well taken.  In fact, we don't know how it would work out, but Dan said in the previous section, on the other hand, we really don't believe that all the proposed reforms to increase donation really would produce that many more kidneys either.  And so in order to resist commercialization we have to be fairly okay with a shortage and a fairly long waiting list, maybe an increasingly long waiting list.

On the other hand, when Ben Hippen presented his idea of the regulated market, it really was something like this.  It sounded almost too benign.  Right now we have the entitlement for dialysis.  It costs the government well over $100,000 a year for each person on dialysis, so Medicare can quite reasonably and do the taxpayers a great favor by paying $75,000 per kidney which seems like a pretty impressive price, so it's not really much of a market.  It's not really a regulated market.  It's a market premised in entitlement.

Now here's what I would fear among many other things.  In an increasingly aging population, we may not be able to afford Medicare forever, but we will have become used to a market in kidneys and in the absence of the Medicare entitlement propping the price up in a global market, what would kidneys be worth then?  I can't help but think the kidney price would plummet.

CHAIRMAN PELLEGRINO:  Dr. Carson?

DR. CARSON:  I am going to ask a very politically incorrect question here.  I haven't really formulated an answer myself, but you know in the automobile industry insurance rates are based upon how people drive.  Now in this organ donation market place, I see into the foreseeable future a disproportion of people who need them versus available organs.

The question is like the automobile industry, I wonder if things should be taken into consideration such as individuals who have led a deliberately destructive lifestyle and have therefore ended up in a situation where they need an organ, should they have the same right to that organ as someone who is in that circumstance through no fault of their own?

PROF. GEORGE:  That is really a politically incorrect question, but thanks for putting it on the table.  We should discuss it.

CHAIRMAN PELLEGRINO:  Gil?

PROF. MEILAENDER:  The Council will obviously discuss whatever it wishes to discuss, but I'd like to try to re-direct the discussion just a little bit.  Ben's point was actually on a different issue, because we've mostly been talking about market in organs.  And I don't think we'll end up turning in that direction.  I hope we don't end up turning in that direction because I think it would be wrong and it would certainly, I'd rather save myself the trouble of writing a long dissenting personal statement.

(Laughter.)

But I just point out that it's only if we don't turn in that direction that all sorts of things in this staff paper on board for this session become relevant to talk about.  And the last section too, in fact.  I mean if you just say get a market in organs, we don't have to talk, worry about allocation, we handle it in a different sort of way.  Similarly here.  Now there are some things discussed in this staff paper that would seem to me for one reason, for different sorts of reasons to be kind of beyond the pale. 

I'm not really prepared to endorse organ conscription, for instance or for very different reasons, I'm not a big fan of public honors for organ donors which was the Mister Rogers approach to organ donation.

But I just want to point out that if we don't endorse a market, there are all sorts of things here that need our attention.  Floyd did mention the prevention issue already as one, but presumed consent, it's not like organ conscription, that's not beyond the pale in my way of thinking.  It's something you could talk about, for instance.

The question about — that we dealt with in previous session about criteria for determining death would be important insofar as that has ramifications on the supply of organs.

The notion of preferred status for those who have already donated.  The notion of paired exchanges which is an exchange of a way, although not precisely a market mechanism or maybe not precisely a market mechanism.  It seems to me some of those don't seem to me to need a lot of discussion.  I don't feel a need for a long discussion about organ conscription as I said, but some of the others seem to me to merit thought. 

I have no idea what the rest of you think about many of them and I just think at least with some of them it might be good for us to pursue them a little bit, though of course, I could be entirely wrong and we could end up just recommending a market in organs and making these issues irrelevant.  But if we don't do that, some of these issues are relevant and it would be good to push on them a little bit.

CHAIRMAN PELLEGRINO:  Thank you.

DR. GÓMEZ-LOBO:Fate has it that Gil said a number of things I wanted to say, but what can you do?

In fact, I started to become worried about the creeping acceptance of markets when we haven't explored other alternatives.  I recall that Professor Veatch when he spoke to us talked about the nuclear option.  I think he referred to conscription really, but not to the Spanish presumed consent.  In fact, something like that is worth exploring because insofar as you're free to opt out of it or with the Swedish system, insofar as you exercise your free choice of staying in and out, some of the worrisome or the main worrisome problem with conscription just evaporates and again, this is all very tentative, but I would feel a lot more comfortable with presumed consent than with initiating a market no matter how deeply regulated.

My main worry about markets is the fact that since we're not placed equally in the marketplace, those who come into it in a disfavorable position in a way, although apparently they're making free choices.  I think they're being really compelled — I've seen this very clearly in the labor market, so whereas it seems to me that the kind of presumed consent in which you could opt out it would be I think fairly simple and easy to explain exactly what you're doing when you opt out, that that would be vastly more acceptable than the market solution.  That would be, of course, for cadaveric donation, but given the amount of people who die every year, it seems to me that there's chances that the supply would or that there may be some empirical evidence that the supply may rise dramatically.

CHAIRMAN PELLEGRINO:  Professor George?

PROF. GEORGE:  Well, the concern that I have, especially after the very helpful responses I've gotten from Nick to my questions really have to do with the unpredictability of consequences of moving to a market system. 

Now, of course, a proponent of the market system might very well respond by saying well, there are some things we know with certainty and that is under the current system we have a lot of people who are suffering and dying and who need to be helped and weighed out against the certainty and go forward.  But I am worried about the unpredictable consequences.

Now I want to put on the table some worries about some consequences that are even more intangible and therefore I won't even subject Nick to questioning about them because I know how unpredictable they are.

Here's how one might think about them.  We know that our understandings of ourselves, of the value and dignity of ourselves as human beings, of valuable institutions that we form to achieve our goals and to realize fundamental forms of human good are affected by social norms, they're shaped by social norms, those understandings and expectations can vary from culture to culture depending upon the norms that are in place in the culture.  Those norms themselves can be shaped, very often will be shaped, sometimes shaped rather quickly, sometimes misshapen, by laws and policies.  What's forbidden, what's permitted, what is encouraged, what is discouraged by law and public policy.

So the worry — the really deep worries I have, have to do with how moving to a market in organs might affect our understanding of ourselves as embodied creatures and our understanding of the relationship of ourselves to our bodies, our understanding of our own bodiliness. 

We know, for example, that people's understanding of the meaning of their sexuality can be altered significantly by the acceptance or rejection of say the commercialization of sex in a culture, so that when prostitution is legalized, at least in some circumstances that will result in change, alterations of attitudes toward sexuality and toward marriage and family and so forth.  And we can debate whether those changes are good or bad, whether they represent a diminution in our sense of human dignity or whether they represent a kind of liberation from outmoded social norms.  People debate those sorts of things.

What I think is less debatable is the question whether changes, in fact, occur; whether changes in social norms which are themselves the fruit of changes in legal norms and policies alter people's understandings of themselves and of their relationship with others and valuable social institutions such as marriage and the family.

So my deepest problem, my deepest worry about the move to a market in organs is the unpredictability of the consequences at that level, that is, the unpredictability of the consequences for our own self-understanding. 

DR. CARSON:  The whole concept of markets for organs for some reason just doesn't seem correct to me.  It doesn't mean it's not correct, but it doesn't seem correct to me.

I wonder if it would be prudent to try to think of ways to get people to think about the value of an organ that they would donate to someone else by thinking about how valuable the organ is to themselves.  And what I mean by that is enacting some type of a policy where you simply say no one has to donate organs, so like is it Spain I think — no Sweden, in Sweden where the government has actually asked you to decide one way or another will you be a donor or will you not be a donor.  But then it stops at that point.

And I think maybe it should be taken one step further than that.  You say you don't have to be a donor, but if you decide you're not going to be a donor, then you'll not be eligible to receive an organ either.  I think if you do that, it starts making people think about how valuable those organs actually could be to them and they also then begin to think about it.

CHAIRMAN PELLEGRINO:  Any questions?  Dr. Hurlbut.

DR. HURLBUT:  Just to add one more layer on what Robby said, in my medical experience and I'd like to hear what Dan thinks on this, I'm continuously aware of how the realm of medical matters is different than many other areas of human existence and one of the things that strikes me, as I reflect on my experience in clinical medicine is what an intrinsically moral realm it is.  Patients come into the hospital and even if they're in there for something that isn't highly significant for their future life, they're suddenly aware of something of large realms of reality, at least they're aware of their own mortality, even if they're not there with a fatal disease.

We wear white coats.  That's quite different than wearing plaid coats or something like that.  There's an intrinsic purity in medicine.  There's — medicine is a realm of part of our national identity or cultural identity. It is a noble realm.  And I think my sense of watching people's response to their own medical experiences including some of the more edgy parts of medicine, especially modern changes in medicine would suggest to me that if you did have a commercial market in organs that you might at least for a certain percentage of people be setting them up for an event that happened at a certain time in the sort of changing curve or landscape of their psychic life, but that they might come to regret it later or be personally humiliated by it.

I don't know quite how to weigh that exactly except that I think this is a real consideration.  People — this is not just like something they did in adolescence or something where they can just sort of blow it off because they were young or something, presumably this would be in middle life, but most of the donors are in middle life and I get the feeling that there would be some problems here, people having regrets.  We all know that there are regrets.  People have regrets about their medical — the process of their medical decisions in life.  Without getting too specific, I think you all know the kind of thing I'm referring to.

So what do you think, Dan?

DR. FOSTER:I have always thought that Sir William Osler's speech in 1902 where he described the profession as a noble profession is the model that it should be.  Sometimes — and I think there are long — there's a long line of true physicians who have been noblel in the way that they deal with people.  These life events are very, very different, so I don't disagree with you at all in the sense that it's sometimes a little bit different from other professions.

CHAIRMAN PELLEGRINO:  Peter?

PROF. LAWLER:  Robby put forward, as a great lawyer that he is, two kinds of arguments against an organ market.  One is the unpredictability of it, practically or prudential argument.  It wouldn't be prudent to try something like that.  But the other is it would involve a change in our self understanding and an undignified change in our self understanding with unpredictable consequences.  And I think we have to work on how to articulate this, so I agree with Gil, it's unlikely we're going to come down on the side of the market.

On the other hand, we have to reach some kind of relatively sophisticated agreement on why we don't come down on the side of the market.  And I also agree with Gil that we need to talk about these alternatives, these innovations proposed in the report.  I think we might reach agreement on presumed consent, because the theory of presumed consent is it's a presumption that organ donation is a good thing, but falling short of conscription which is too un-American and sort of repulsive in certain ways.

On the other hand, most of us go as far as this to say that we should compensate organ donors for their time, not pay them enough to make it worth their while to give the organs to make a profit, but to ensure they don't incur a loss, that they get time off with pay in every respect.  They don't lose anything material with being a donor.

I remember Leon Kass and his comment, he said that, in fact, would be going too far.  I'm more ambivalent about this, but I would like to hear the opinion of others on this.  Because I do think we have to do everything we can coming up short of the market to increase the number of organs available.

CHAIRMAN PELLEGRINO:  Any comments?

Dr. Schneider?

PROF. SCHNEIDER:  I am not sure that I know what to make of this conversation because it's being carried on at such a level of generality that I feel entirely removed from the human beings who are going to be reacting to any policy.

I don't think it's enough to say that if something becomes associated with a market that it becomes degraded because I think that the way that people are going to respond to markets has a lot to do with sociology, anthropology and psychology much more than just knowing that there is going to be some exchange of money. 

And I agree with everybody, we have a very limited basis for predicting how people are going to behave.  And I think that that also means we don't know that they're going to take a market badly.  I'm not arguing in favor of the market, but I did want to express my discomfort with a conversation about how people are going to react in which individual human beings and the way they think can never be mentioned, but I think with one exception of one woman who tried to at least describe the way that she personally was reacting to the market proposal.

CHAIRMAN PELLEGRINO:  Comments?

Dr. George?

PROF. GEORGE:  I don't know, Carl, who that was directed toward, but I certainly would not want to be interpreted as saying that introducing a market degrades whatever subject matter the market is being introduced to distribute or distribute from.  I think there are some places where it does, selling human beings; perhaps selling organs, that's the issue that's on the table now, selling sex. And in others, like selling fishing rods, even selling services, selling insurance, it doesn't.  So we have to perceive retail here, rather than wholesale.  I think it would be a very bad mistake to suppose that the market degrades whatever it touches, [but it] would be an equally bad mistake to suppose that the introduction of commercialization cannot degrade.

CHAIRMAN PELLEGRINO:  Maybe the question should get down to the marketplace, in general, degrades whatever it touches, but rather are there some things which are more susceptible to corruption and I think that — I try to repress myself, but I say here we do have evidence of what commercialization is doing to medicine.  If you've ever been a patient in this system, you will know what I'm talking about and as a physician we feel it daily.

Now I'm not arguing one way or the other, but there is evidence that commercialization has changed the whole face of medicine and particularly changed the relationship between the physician and the patient and the institution and the patient.   So that even Adam Smith, I think those of you who are more familiar with him than I am, did point out that there are some things so vitally important to the public good that they ought not to be regulated by the marketplace.  I'm glad to see you nodding assent.

So I think we need to step back and look at commercialization as it exists and what it would do in this field of transplantation.

To take my own position very bluntly, I honestly and truly believe that not just organ donation, but the whole field of medicine has shown an increasing adulation of the marketplace which I think has been deleterious.  And therefore, I would certainly be opposed to adding to the marketplace the field of transplantation.  Not only that, we're being driven into that by the need for organs and the question is that an appropriate and justifiable reason for violating what I think is a principle we've already compromised severely, namely to commercialize something which I think should not be commercialized.

Is health care a commodity?  Does it satisfy the criteria for a commodity?  

Now some of those criteria would be economic, but there are other reasons where some things are not part of the market and I go back to Adam Smith.  So I think, yes, all the questions you're raising become very important and this particular question of the market raises significant questions that are much broader than transplantation as well.  Sorry for the long footnote.

(Laughter.)

Anybody?  Yes.

DR. EBERSTADT:  A very important footnote indeed.  I concur with that.  And we find ourselves in the United States in a situation now where, like it or no, we have this commoditization, commodification of health care, where our health system accounts for $1 out of every $6 now it's generated and spent in our national economy.  So it's far from a trivial problem for our society as a whole.

I think that the discussions of the last little while suggest to me the sort of comparative advantage that the Council might well have in addressing the whole question of marketization or commoditization of the question of organ transplantation.  Whether we address the phenomenon or not, the phenomenon is there.  My guess or my fear that the waiting list and the lines are going to be growing smaller before we come to the technical fix that Peter and others have talked about that might allow us to relieve this situation and one way, as part of a broader treatment or by itself, one way we might be able to serve the public benefit is by putting forward the strongest arguments for, if you will, commodification or marketization, but then also putting forward the reservations and the problems that come with this, strive to have two different sets of contending perspectives.

Maybe this suggestion should properly have been offered tomorrow morning when we're talking about the research agenda, but the discussions of the last little while bring that to mind.

CHAIRMAN PELLEGRINO:  Thank you.  Other comments?

Dr. Gómez-Lobo?

DR. GÓMEZ-LOBO:Yes.  I think we shouldn't lose sight of the reason why we're discussing markets in the first place.  And it is the shortage problem and the expectations that the market is going to solve that.

Now I'm thinking about Robby's arguments which I respect very much, but it seems to me that in the public marketplace of ideas the fact that say the introduction of markets may change or may affect our perspective of ourselves, I am afraid that's the kind of argument that many people are going to find just tenuous and vaporous, particularly when confronted with the concrete suffering of the people that are waiting for the kidneys.

So it seems to me that the important thing is to explore the alternatives and I'm back to Spain.  Why not take a serious look at a model like that which, it seems to me, has many advantages over going into the market solution.  It does not require exchange of money, it seems.  Perhaps some compensation for expenses for the family involved, although not necessarily if indeed it is the person who decides by not opting out of the system that his or her organs may be taken after death.

Now I can immediately imagine some problems, but I don't see as many problems as I would see if we go down the market route.  Of course, a lot of it will have to do with how the corpses of the dead are treated, how the family deals with it, but on the other hand, if we're talking kidneys, perhaps a modus vivendi can be found that allows for the harvesting or the obtention of these organs upon death of a person and yet allow for the rights and proper burial, etcetera.

So I would rather start here, start at the presumed consent end of the spectrum and then if we find that that is not advisable, move to the possibility of introducing market consent.

DR. FOSTER:I think one point I want to make maybe speculatively is the assumption is that there could be some program that would significantly, I mean Alfonso is mentioning, would increasingly make organs available for transplantation.

One of the problems with that and one of the reasons that I am very skeptical about that doing any good to the problem, I think we have to decide well, we just can't deal with this or we do, because as all of you know, the life expectancy at the turn of the century last time was 40 years and it's just continually increasing, in terms of transplant and so forth, more and more people are dying beyond the age of the transplantation and the people who are dying when they're younger are increasingly dying outside the hospital where recovery of organs is very difficult.  You can do it.  We heard the argument about this before, to try to do this with cardiovascular death.

It may well be if the life expectancy continues to increase and as you postpone the death events, oftentimes, most of the time, they're going to be for cancer or other things that will disqualify one for transplantation.  So I'm enormously skeptical of the hope that one can increase and approach this problem by saying well, all we have to do is to increase the people who are going to donate.  Well, they're not going to donate until they're dead and so if the dead are not increasing, then where are we going to get these?  If it's not from living organs, in some sense, I think it's just hopeless to believe that you're going to do anything about this problem for these reasons, because I mean all the evidence is against that.

Now if all of a sudden you know there's huge epidemics of bird flu that kill lots of people.  Infection is going to keep you from transplanting anyway, even if you have a big epidemic.  Or if you have a terrorist attack — you're not going to do anything with that.

So you know, there's — Alfred Schutz talked about reality.  He used to write about reality and he'd find paramount reality as being wide awake in the everyday world.  And sometimes our conversations are not wide awake in the everyday world of the average person which is out here.  So I'm also sympathetic to the view that may be a vaporous discussion about human dignity.  They don't want to know about — I don't think — I'm not nephrologist, but I still, because I take care of diabetes, I have a lot — I don't think they're interested in anything about human dignity.  I think they're interested in whether they can get a kidney or do something about this.

So I just don't want us to be living in an unreal world.  If you look at the statistics, it seems highly unlikely that the number of people who are going to die with diseases that will allow you to transplant at an age that you'll be able to transplant is, it might happen, but I think it's very unlikely.

CHAIRMAN PELLEGRINO:  Dr. Meilaender?

PROF. MEILAENDER:  I find myself sitting here wondering what our highly paid staff is going to do with the conversation that we've been having since they're supposed to take this and turn it into something or try to turn it into something.

I thought I would just sketch out the kind of thing that it seems to me they might be able to do for us that would pick up on the discussions we've had that would be in continuity with the kind of reports we've offered in the past and so forth.

And it seems to me that — and I will make certain normative judgments along the way here and of course, you might disagree with them, I understand that.  But it seems to me a report that began by just — I was going to say outlining, but I mean something richer than that, outlining what we have taken on other occasions called the human goods that are involved here, this last policy paper talked about health, liberty and dignity.  Leon suggested, I think rightly, the generosity needs to be added.  I'm not sure exactly what it is, but in other words, why do we care about this?  What is the human importance?  Is it stake here and so forth?

Something that started there and that acknowledged the fact that any direction in which one turns is going to failure to kind of accomplish everything we want to accomplish with respect to all these human goods.

And then at that point, now my own inclination, this is where you might get off the train already, but my own inclination would be explain not in some highfallutin philosophical terms necessarily, Dan, but in terms that ordinary people do think, in moral language, explain why bodies aren't the sort of things that we want to turn into commodities for sale and purchase and so forth, why that system which might, even granting the unknowns, which might solve the problem is unacceptable, why we have to learn to think of it as a problem and not a crisis that must be solved that way.

Then we've got all the stuff from Dan's staff paper that makes sense in that contest, why do we have this complicated system?  Well, because we haven't been willing to turn in the direction of the market.  It leaves us with a very cumbersome system in some ways, but one that's trying to do justice to all sorts of competing moral concerns, so we could take that stuff and sort it and maybe connect it with some of the stuff from this policy paper that just gives the historical background or the background of the current state of regulations, some of which are at the state level and federal level and so forth, that kind of thing.

Then it seems to me that we really ought to discuss, without trying to resolve a few of the issues, maybe in just a pro/con sort of way, we need to pay some attention to that brain death issue.  I don't actually think the brain death term is the right way to get at it, that gets us into some trouble, but that one we should pay some attention to.  We should sort out the living donor issue.  We had a long discussion.  I guess that was the previous session about it. 

What is it that has caused reluctance about it, how does one overcome that reluctance?  Can one overcome it without seeming to commit physicians to doing things of the sort that they have not normally done?  We don't have to solve those questions.  I think we have to help people understand why they're deep, important and rich questions.

And then I would hope, maybe, that we would have on some issues that aren't quite so deep, some recommendations to make. Maybe on the allocation side, the geography issue.  I might be the dissenter, but maybe the geography issue on the allocation side.  On the procurement side, we still never got around to talking about something like the paired exchanges, but it's a fairly modest kind of issue, for instance.  I think we ought to, even if it's not going to solve the problem and if it's long range, we ought to say something about the preventive issue that Floyd raised, so that there are some more narrowly focused issues on which you know we might be able to make recommendations.  They wouldn't necessarily have to be unanimous, but majority recommendations.

And something like that, it seems to me, with what we've got in these very well done papers for discussion and our discussion is something like that it seems to me is where the staff might turn its energy.  That's my notion of where we are.  You may not agree.  That's quite possible.  But something like that is where it seems to me the staff might turn its energies to kind of move us forward, to take what we've got and turn it into something that we can really work more on.

CHAIRMAN PELLEGRINO:  Thank you very much.          

PROF. SCHAUB:  Yes, not on Gil's comment but in response to Alfonso.  Since Alfonso tried twice to get us to take up the topic of presumed consent, I'll very briefly try to take you up on your invitation.  I guess it seems to me that presumed consent is presumptuous and in a statistical direction.  And that my worry would be that it really goes against the notion of gifting and that it endangers that generosity, that if you presume virtue, you don't really end up with virtue and so what we want is a system that allows the freedom for that generosity to show itself. 

It also seems to me that questions of national character would come into play on this one.  Both a market solution and donation gifting solution seem to me in accord with the American individualistic character and I just don't see presumed consent as being sort of in that American tradition.  

CHAIRMAN PELLEGRINO:  Alfonso, would you like to respond?

DR. GÓMEZ-LOBO: I appreciate the replies received from Diana and from Dan.  Dan's point that most people are going to die pretty old anyhow is a very serious objection.  I think it's something to think about.  Actually, what I had in mind is something like people dying in accidents, in car accidents, if indeed organs could be retrieved.  Now I was aware then that those objections were going —

DR. FOSTER: What we ought to do, let me interrupt, we ought to have a national law precluding the wearing of helmets on motorcycles, for example. 

DR. GÓMEZ-LOBO: Yes, that's good state policy.  Yes, no I'm aware of that objection.  On the other hand, I think that if we're talking about living donation, generosity is the virtue; for deceased donation, I'm not worried about virtues any longer.  I think the person is no longer there to be virtuous.  So I would think about them in different terms.

PROF. SCHAUB:  But because the presumed consent, I mean it might be written in such a way that it overrules the family's role in it.  I mean, in other words there's a role for family generosity perhaps.

DR. GÓMEZ-LOBO:Yes, that's why there is a mention here that there were two systems.  There's a strong and a weak.  Given my character, I will go for the weak.

PROF. SCHAUB:  Can I ask one quick question of Sam?  Could you say something about the circumstances in which we do allow for a kind of operation of presumed consent?  There's one paragraph here that says that under certain circumstances medical personnel can allow OPOs to remove organs from the deceased without securing consent.

DR. CROWE:  Sure.  Basically just for those that don't remember this section, all 50 states and the District of Columbia, they've enacted what's called the Uniform Anatomical Gift Act, or some version of it whether it be the 68 or the 87.  And within, buried within that Act, most especially the 87 but also a little bit within the 68 are three forms of consent.  First person consent, which is where we would turn to legally in most states first.  Then to the family and then actually the rights of disposition devolve to the state finally.  And in certain situations where there's a specific request for an organ, the state or the actor of the state, whether it be the coroner or a procuring physician, can actually take the organ without explicit consent either from the individual or the family members of the deceased.

That's not done as far as I know very often.

PROF. SCHAUB:  But when would it be done?

DR. CROWE:  When the individual does not make a declaration, when the family members are not around or cannot be found.  Again, in this situation they say that they have to give a certain amount of effort [to find the family].  It's not specified how much.  And then again, if the individual doesn't say this is what I want you to do with my body, if the family isn't there to say this is what we want to do with the body, then who is going to do it? 

I mean, that's the logic I would think of the law.

PROF. SCHNEIDER:  As I recall, there is another situation and that is in a number of states, coroners can have the corneas removed and donated without any particular fuss. 

DR. CROWE:  Would you like me to clarify?  As far as I know, there's primarily two states, Florida and Georgia, good Southern states do this it seems.  In these states, they've had cases where — again, a specific instance.  If the person is deceased and then the deceased goes for an autopsy, then the coroner can procure or take the corneas without permission. 

But again, you have to remember that these kinds of circumstances are not as — they don't happen very often. 

CHAIRMAN PELLEGRINO:  Peter.

PROF. LAWLER:  So deep down, the law does presume consent then finally, because the other default position, if no one speaks, it's a good thing to take the organ.

You don't end up saying well, I can't get anyone to consent, therefore, I'll just let it go.  So the ultimate default public policy position is it's a good thing to acquire organs.  So I'm halfway between Alfonso and Diana on this that the giving of a live organ is — should be understood as an extraordinary act of generosity.  But I still fall back to what I said before, giving up my dead kidney is the weakest act of generosity I will ever perform in my life.  If I buy you a coke, I will have done more.  That would be more generous.

And so from that point of view, I'm more inclined to think that presumed consent, when it comes to cadaver organs is less an offense against the American character than Diana does, but I appreciate her concern.  Let me sneak in here a question I was going to ask Bill that I forgot and now I remembered.  A problem we have in our libertarian society is how can we explain to people if women can sell their eggs, why they can't sell their kidneys, because isn't it true that your eggs are much more a part of your being than your kidneys?  For example, I have two kidneys today, I hope.  Tomorrow, I may have one, I'm the same guy.  A woman giving up eggs is giving up something more essential to her being.  So you might come out against both of them and I think I would too, selling either kidneys or eggs.

But nonetheless, how do we explain to America that it's okay to sell eggs, but not kidneys?

PROF. LAWLER:  Well, I'm glad you asked me that question because I was just going to suggest that — Dan is going to think that this is really what not clear thinking in the real world or whatever — let's be realistic about this.  The whole realm of body parts and transplants is expanding.  And there is work in animals on ovary transplants now and even womb transplants.  They've, I believe, successfully gestated a sheep or a goat in a transplanted womb, if I have that right.

Floyd, do you know if that's true?

So look, it's not obviously a major medical problem as currently defined.  Infertility is a huge problem.  There's a lot of surrogacy.  Will we one day get to the point where womb transplants are another medical discussion?  I think we at least ought to think about that, add that into the mix of concerns.

So in a way, this is a bigger topic than just the compelling power of imperative, very poignant situations where people are at end stage renal disease.

DR. FOSTER:  In addition, Peter, you know, we sell sperm.  We sell sperm and some religious views think that involves the sin of Onan, because you get the sperm by masturbation, you know, so — but we also sell blood and parts of blood.  We already commercialize and commodify many things that if it's a principle that you're talking about, rather than what's going, then we have already crossed that line,  I mean qualitatively speaking if you do that.

I'm not arguing for this, please, I'm only arguing for two things, one, I don't think we can solve this problem and I just think that we also need to be very clear that we have crossed a number of ways.  We sell skin.  We don't sell organs, but we sell essentially everything — we sell hair, you know.  Those are all parts of the body, I presume.

CHAIRMAN PELLEGRINO:  I wonder if we couldn't raise my question once again of urging you to think about Gil's suggestion.  Anyone would like to at least pick up on it or add to it or new directions on that point?

Dr. Schneider?

PROF. SCHNEIDER:  Anything to oblige.  My own assumption is that when we put a lot of effort into something, we want it to be something where we can produce something that we're fairly confident we have something useful to say on and I would also think fairly confident that something is going to come of what we have done.

And I think the chances of producing something like that that meets those two criteria where we are able to feel that we really understand the nature of all of these, it seems to me, enormously complicated problems and that we can find some sort of thing to say that people will listen to in the first place and that people actually respond to given the enormously complicated political situation in which all of this takes place.  Chances that we can do all of that strike me as being infinitesimally small and as I will try to suggest and I'm sure many other people will tomorrow, I think that there are a number of areas very comparable devotion of energy would produce something much more likely to make the world a better place.

So I have benefitted enormously from the conversation.  I've learned a lot.  I've had a great time, but I think that continuing to work on this problem is unlikely to produce anything we could easily agree to and that would meet the other criteria.

CHAIRMAN PELLEGRINO:  Thank you.

PROF. MEILAENDER:  I don't think that's true, Carl.  We have in the past agreed on reports, some major portions of which simply sorted out disagreements in important ways which doesn't seem to me to be an unimportant thing to do.  We have produced a long report, even at last end of sort of a highly philosophical report, the "Beyond Therapy" one that had nary a recommendation in it.  I don't think we wasted our time in doing that and I have some reason to think that at least some people profited from it.

So it seems to me that the great virtue of this topic, though we — I mean certainly we're not going to solve every issue that it brings up is that it combines the opportunity for maybe some focused recommendations on certain policy questions.  It has policy implications.  It combines that with the opportunity, indeed, it almost compels one in thinking it through to think more deeply and richly about important anthropological questions in bioethics.  Those are the richest topics, I think, the ones that force you into those deeper issues while also connecting to real policy issues that people are actually worrying about and arguing about.

This seems to me to be that kind of topic.  It seems to me we've done sufficient work on it that we're in a position to say something useful, something useful perhaps with uncertain recommendations and something useful just in terms of sorting through and enriching understanding about it, and so I think it would be a mistake not to take what we've done and try to turn it into such a report and I think we could do something rather comparable to some of the things we've done in the past.

CHAIRMAN PELLEGRINO:  Thank you.  Further comments along this line?

I'd like your opinions.  Dr. George?

PROF. GEORGE:  Carl, I was wondering what you made of Gil's response.  Would that kind of report that laid out the best arguments on the competing sides reflecting the spectrum of views on the Council which undoubtedly will reflect, come close to reflecting the diversity of views and society more broadly, do you agree that that would be useful or do you not think it would be?

PROF. SCHNEIDER:  I think the question is not so much whether it could be of some use, but whether it is the best use of the resources that we have and I don't know, as I looked back over my life as a scholar in bioethics reading Presidential Commission reports, it's not clear to me that that kind of report is the kind that does the — that makes the best use of the resources of a body like this.

CHAIRMAN PELLEGRINO:  Other comments?

PROF. LAWLER:  I don't want to repeat what Gil said and I hardly ever agree with him 100 percent, but this time I think I do.  This is an issue of pressing relevance for reasons Dan pointed out.  There really probably is no way of adequately addressing the shortage, the alleged crisis, the scarcity short of turning to markets.  So we have this pressing health need. 

Our understanding of freedom is pointing everything in the market direction.  And so I think the default position in the history of our country, as things go as the way things have so often gone within a certain amount of time, a decade or so, we may well have a market in organs and many members of this Council are against this, but in fact, the natural drift, I think, really is towards that.  So it's an issue of pressing relevance which highlights competing human goods and calls, as Diana pointed out for example, forces us to think about what about our nation's devotion to health, what about the principle of consent in forming the national character. 

And when we talk about dignity, are we talking about anything at all? 

Carl made an excellent point, Dan too, that people on dialysis probably don't like to talk about dignity much, when would they work it in?  So I think it's an issue of pressing bioethical relevance and that causes us to reflect deeply about who we are, so I think it's a tremendous issue.

PROF. SCHNEIDER:  We may disagree about the current situation.  I think the idea of a market solution to this is a complete nonstarter in terms of national politics.

As I recall, when Congress actually had a chance to address this, they were unanimous, close to unanimous in rejecting anything like — anything like a real market and I don't see anybody here who is in favor of that.  I know of nobody in my personal circle is interested in that.  I know of a few scholars who I think do not command the real attention of the American body politic.

CHAIRMAN PELLEGRINO:  Further comments, questions?

DR. FOSTER:I guess in that response, since you're pretty — I mean one of the problems I've learned, you're pretty wishy-washy and don't make your opinion known very well, but I think I understand your opinion here.  Are you going to — if you say well, okay, I don't know what the life of this Council is going to be, we don't know anything else about that, but are you going to mention tomorrow or now a subject that you think that the very talented staff that we have, which all of us agree that these papers are wonderfully done and we're proud of them and so forth, that you would see as an alternative that might be unlike other Presidential Council reports that more than a few people would pay attention to — do you want to —

It's one thing to say for us well, this is a bad idea to do that, but it might be helpful for us to hear what the — what an alternative idea or ideas would be to let us consider that.

PROF. SCHNEIDER:  Now or then?

DR. FOSTER:The answer is I certainly do have alternatives, and I'm happy to tell you about them now or tomorrow.

CHAIRMAN PELLEGRINO:  I think you might save it until tomorrow for context of the other subjects.  There's certainly to be a question of priority.

Other questions on this?

DR. FOSTER:Well, Mr. Chairman, I move we adjourn.

PROF. GEORGE:  Before doing that can I just put one clarification on to the record of something I said earlier.  I'd like to clarify, in fact, in light of a question that Dan Foster raised in a private discussion, a point in my remarks this morning about Ginger's paper?  In seeking a justification for living organ donation that does not relax the traditional principles of medical ethics, I'm not promoting — certainly don't mean to be interpreted as promoting a search for clever rationalizations for something many of us would favor, but actually might believe isn't right.

I think we need to try our best to get to the truth of the matter, that is, whether the activities in question can be morally justified and if so, how they can be justified and then to bring our practices and policies in line with it.  I think I was speaking in such a way as to leave Dan and perhaps others to suppose that I might just be looking for a way to rationalize something that I deep down knew couldn't be justified. 

I suspect that the practice in question can be justified.  I just don't know what the justification is and I wanted to invite and did invite other members of the Council and I renew that invitation now to think about ways that living organ donation can be justified.  And by that, I don't mean again rationalized.  I mean shown to be what I believe it to be, but don't quite know how to show to be at least right now morally justified.

CHAIRMAN PELLEGRINO:  Motion was made.  We don't go on motions, Dan, but I think we'll take it as a motion.  Let us be adjourned and gather together tomorrow morning.

(Whereupon, at 5:06 p.m., the Council meeting was adjourned, to reconvene tomorrow, Friday, September 8, 2006.)



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