In their article in this issue of ANZJPH, Douglas and Douglas propose and attempt to justify a public policy change as a means of alleviating the transplant organ shortage in New Zealand. Their proposal is that transplantable organs should be taken for transplantation from the bodies of patients who have died, except when there is significant dissent of the individuals or their families. This proposal is a response to a recent reform of the Human Tissue Act 2008 in NZ,1 which retains, the authors believe, too much of the previous system. Under the 2008 Act, organs may be removed from the deceased for transplant if the individual has indicated this is their wish, even if the family object; lacking such an indication, the family's consent will still be required. Douglas and Douglas believe that though this approach is better than the one it replaces, it doesn’t go as far as it should, and will leave NZ with a continuing low organ donation rate, and thus a particularly large gap between the supply and the need for donated organs. They believe their proposal, in contrast, will significantly increase the availability of transplantable organs.
Douglas and Douglas’ article implies that there is a conflict of moral values in retrieval of transplantable organs, and that too much weight in public policy is given to the requirement for consent or — which they say is the same thing — too little weight given in public policy to saving lives (I think they are wrong about this, but more about this later). Their proposal involves reversing this weighting. They claim that some areas of public policy already exist in which, as with organ retrieval, material is removed from dead bodies, but where the value of consent is given less weight than a counterbalancing value. Douglas and Douglas have in mind post-mortems ordered by the coroner in the course of investigations of suspicious, sudden or unexplained deaths. They believe that, in relation to the removal of material from dead bodies, the coronial post-mortem system has the weighting between consent and understanding how such deaths happened about right. Douglas and Douglas’ proposal, in fact, gives slightly more weight to consent than does the coronial system, since, as they point out, the coroner can override even significant objections to post-mortems, while Douglas and Douglas’ system allows that significant objection to organ donation should be taken to be sufficient to prevent it.
What is perhaps surprising, given Douglas and Douglas’ references to the coronial post-mortem system, is that they do not help themselves to more of what it may offer their argument. For, at least some coronial post-mortems are held with the aim of saving lives. They do this, by, for example, establishing that the cause of death was avoidable. So, it is open to Douglas and Douglas to argue that since the value of saving lives (by reducing avoidable deaths) outweighs the value of consent in coronial post-mortems, the value of saving lives (by increasing transplants) should outweigh the value of consent in organ retrieval.
It is perhaps also surprising that Douglas and Douglas do not follow the logic of the analogy with coronial post-mortems, and conclude that saving lives should outweigh even significant dissent. In the coronial system in NZ, as they point out, the coroner has to consider objections, but can still order a post-mortem, however significant the dissent may be. What the coroner — as I understand it — has to do when there are objections is revisit the question whether the post-mortem is necessary. If the coroner thinks the post-mortem is necessary, then the objections can be overridden (though the family can appeal to the High Court).2 It may be that in some cases a coroner will decide that the information a post-mortem would provide isn’t necessary. It might not be necessary where the cause of death can be established in some other way. Douglas and Douglas could have made the argument that the retrieval of organs is always necessary — that there are always lives waiting to be saved which only organs can save, thus providing a basis for overriding even significant dissent.
In relation to how to deal with dissent, there is another potentially useful aspect of the analogy between organ retrieval and coronial post-mortems, to which Douglas and Douglas could appeal. This relates to the cultural objections to post-mortems, which Douglas and Douglas note. In the coronial post-mortem system, though the Coroner can order the post-mortem to go ahead despite cultural objections, the cultural sensitivities of the objector/s has to be taken into account, and the body treated with appropriate care. The wider point here is that greater understanding of the nature and implications of a cultural objection can lead to an agreed way forward.3 Douglas and Douglas note that cultural objections to organ retrieval could well count as significant dissent. But perhaps the issue is as much about how organ retrieval is approached, explained, and done, as it is about dissent to the retrieval itself.
But, with respect to cultural sensitivities, there may also be a significant disanalogy between post-mortems and organ retrieval. In post-mortems the material removed from a dead person is often returned to the family with the body (though small amounts of material may be used up in the course of carrying out tests) if the family so requests.2 Objections from the family to post-mortems that arise from the preference to be buried whole, may be assuaged by returning all the bodily material possible to the family. But organ retrieval for transplant involves the permanent removal of the organ.
Thus far, I’ve accepted without comment that Douglas and Douglas have correctly characterised the moral topology of the problem of how to increase the number of organs available for transplant in New Zealand. They imply that there is a moral confrontation between consent (expressing the importance of bodily determination) on the one hand and saving lives through increased organ retrieval on the other. They state explicitly that over-valuing one is equivalent to under-valuing the other. But this is surely wrong: for both could be perceived to be of very high value without any form of contradiction. Furthermore, this is not the only account of the moral situation; and may not be the most plausible. It has been argued that individuals have a duty to donate their organs after death. A version of this argument is mentioned by James Lindemann Nelson.4 One of the arguments Lindemann Nelson considers involves an analogy. A child falls face-down into a shallow pond, knocking him/herself out in the process: the child's life is in danger, but an adult on the bank sees the child fall and is in a position to save its life. For the adult, there is nothing but minimal inconvenience (a minute or two of time; slightly damp footwear) to overcome in rescuing the child. Those who deploy this analogy believe most would intuitively feel that this adult has a duty — an obligation — to save the child. If the adult does not save the child, most people would surely feel that he or she is deplorably selfish or negligent. The point of the analogy, Lindemann Nelson notes, is to suggest that life saving in relevantly similar circumstances is not supererogatory, but rather what one ought to do.4
Douglas and Douglas don’t suggest that there is a duty on us to be organ donors after our deaths. But, they do say that they do not believe a person who has died suffers any harm by posthumous organ donation. This suggests, parallel to the case of the adult who can save the drowning child, that there is no significant obstacle to helping. It would be easy enough to couple this claim with the observation that failure to be an organ donor costs lives, in order to found an argument for a duty.
Why should Douglas and Douglas be interested in whether or not there is a duty to donate organs? One pointer is to be found in their analogy with coronial post-mortems. It can reasonably be argued that the public policy around consent in coronial post-mortems does reflect an existing public duty, viz. the duty to aid (or at the very least not to hinder) the public authorities in solving crimes, investigating avoidable deaths, and so on. Many other public policies spring from similar sorts of duty. Taxation, for example, plausibly reflects a duty to pay into public coffers to enable the state to undertake important endeavours on behalf of its citizens, including defence, policing, public health, and education for all.
Public policies that are founded on bases other than the existence of such duties may prove ethically and practically problematic. If this is right, then Douglas and Douglas may prove to be wrong (or at least a bit optimistic!) to claim that absence of significant dissent is sufficient for organ procurement. They may need to mount an additional argument, which is that there is a duty to donate organs to save lives.