By: Michael Land
Sharon Brennan suffered from cystic fibrosis and received a double lung transplant at the age of 32. Though her transplant was successful, she tells the story of many friends who were not as lucky: “While I was on the transplant list, so many young people with [cystic fibrosis] whom I’d got to know through social media died waiting for their chance. Sam Yates died at the age of 28 after waiting three years for the call that never came. Emma Jane Kingston died at 20. Brian Goldspink died at 36. There were many more.” All too often, the stories of these people are never told.
Each day, 18 people die while waiting for organ transplants, while thousands of unused organs are carted off to crematoria and funeral homes. The number of people on the waiting list for transplants is growing exponentially because the number of transplants cannot keep pace with the number of patients who need new organs. As more people are added to the waiting list, the average wait time increases for everyone, perpetuating a vicious cycle in which many people die before ever receiving the organs that they need. Why are organs failing to reach the people who most need them, and how can the system be improved?
The doctrine of “presumed consent” is one option for expanding the pool of available organs. If passed, federal legislation establishing presumed consent would enable hospitals to harvest organs from any deceased patient that had not specifically opted out of organ donation. Though presumed consent laws have only been considered at the state level in the United States, it is a widely accepted doctrine in Europe: as of 2010, 24 countries in the European Union have instated opt-out donation systems. Unfortunately, even within countries with opt-out systems, doctors may often refuse to transplant organs even if they have the legal right. If family members do not wish to donate their relatives’ organs, even in an opt-out system, doctors will usually respect their wishes. Fear of bad press often trumps the desire to perform a transplant. In many opt-out countries, so many people opt out that the rate of donation falls below the average rate of opt-in countries. Presumed consent laws may slightly increase the rate of organ donation, but will not serve as a complete solution unless public opinion about organ transplants changes drastically.
Opponents of mandatory organ donation might counter with the fact that some religious beliefs conflict with organ donation. Respectfully, we should not allow the beliefs of the dead to negatively impact the lives of the living. While it is proper to show respect to the dead, there are many other examples in which we do not allow the moral systems of the deceased to influence those of the present. It is clearly ridiculous to ask an anthropologist to adhere to prehistoric religious rituals when examining a skeleton, but is there a clearly defined point at which it is acceptable to disregard the personal beliefs of the deceased? Who should decide where the line is to be drawn? While it may make some members of society uncomfortable to consider violating a deceased person’s religious beliefs, it is unreasonable to ask doctors to allow someone to die in order to appease the conscience of someone who is no longer a part of society. Human beings should focus on increasing the well-being of the living and should not be concerned with upholding the beliefs of the dead.
Another objection is that doctors may harvest a patient’s organs before death occurs, thus killing one patient in order to use their organs. Such an argument relies upon a misunderstanding of the science behind brain death. Brain death is not a coma; it is the complete and irreversible loss of brain function, which is required to sustain life. In the UK, a diagnosis of brain death must be confirmed by multiple doctors and is subject to scrupulous examination before a patient can be removed from life support. In the United States, similar laws apply; patients are not tested for brain death until all life-saving treatments have been considered and have failed.
While an opt-out program would expand the available supply of organs and should serve as the first step in reducing the number of deaths caused by our ineffective system, it fails to address the underlying issues behind the current shortage of organs. Any legislative attempts to repair the current system are only treating the symptoms of our broken system of property rights. An opt-out system, while better than the current American system, still allows the dead to have too much power over the lives of the living. Only by reevaluating our theory of ownership can we hope to find a fair and logically coherent system for the allocation of organs.
Property rights serve as a system to manage scarce resources. Because physical objects cannot be used simultaneously by everyone, societal norms that regulate their use develop organically and may be codified as law. These rules determine rights of use, possession, and exchange. Society has developed principles that manage the sale of land, physical objects, and even human labor. Why, then, have these rights failed to develop within the medical field?
One answer is legislation. While the purpose of the legal codification of property rights is to reflect societal values, these laws may instead run counter to appropriate definitions of property. (One only needs to examine the history of slavery and property rights to reach this conclusion.) According to the Department of Health and Human Services, the field of organ and tissue donation is “one of the most regulated areas of healthcare today.” While there are ethical dilemmas that must be addressed within this field, the profusion of regulations often actively hinders progress and negatively impacts the lives of those who need transplants. By reorganizing its system of property rights, society can address many of the ethical dilemmas inherent to tissue donation without restricting people’s actions with burdensome regulations.
To explain our current system of property rights with respect to the human body, it is necessary to examine the history of property rights theories. In his 1849 work “What is Property?” Pierre-Joseph Proudhon explored the relationship between de jure and de facto property. Property rights are de facto when they are based upon occupancy and use; they are de jure when the government backs a property claim that is not based on usage or possession. Various examples of de jure property rights include feudal lords’ claims to their lands, imperialist claims to colonies in North America and Africa, and a family member’s claims to the organs of their deceased relatives. Proudhon argued that property backed only by a legal title was illegitimate. This did not apply to personal possessions; rather, it references laws which grant ownership rights to a person who has no legitimate claim to property. This gave rise to his oft-misinterpreted quote, “Property is theft!”
In his “Second Treatise of Government” John Locke stated that government was created to protect property rights, implying that these rights exist apart from governmental decrees. He also stated that “every man has a property in his own person.” These ideas led to the development of the concept of self-ownership. This theory, further developed by thinkers such as Murray Rothbard, states that each person has a right to do with their body what they will, and that no other person can make a claim to the body of another person. Self-ownership theory does not, however, deal with the bodies of deceased persons.
Though left-leaning and right-leaning political philosophers have long debated what constitutes abandoned property, all agree that there is a point at which unused property becomes abandoned and may be legitimately claimed by someone else. If people die without leaving a will, it would be nonsensical to destroy their houses or possessions just because it might be difficult to determine the next legitimate owner. Why, then, do we treat their bodies differently? Based upon an occupancy and use standard of property rights, deceased people have no legitimate claims to their (formerly occupied) bodies, and their organs should be considered abandoned property and appropriated for use in transplants if needed.
One might argue that, according to the occupancy and use standard, the physical property of a deceased person may be taken by the first person to claim it after the owner’s death. However, given certain assumptions, there is no conflict between an occupancy and use standard of property and a last will and testament. In such a system, it would be acceptable for a deceased person to leave their house to their children, provided that the house was actually used. Likewise, patients could ask for their organs to be donated to a particular research institution or even a particular person. However, under an occupancy and use standard, they would not be free to grant their bodies to a relative who would simply bury them without making use of the organs.
Our system of organ donation and transplant allocation is fundamentally broken. Its inefficiency and waste of human life begs for reform. Any attempts to fix the problem through legislation must be taken seriously, though a thorough examination of the underlying problems will lead to a more effective solution.
As a first step, the United States should institute a system of presumed consent. Legal protections should explicitly be given to all doctors and hospitals that would perform transplants without the explicit consent of the deceased patients or their relatives. Most importantly, doctors should be sure to explain the purpose behind mandatory organ donations. Grieving families will not care about Proudhon or Locke, but they are likely to be receptive to the idea that the new system will save the lives of thousands of people. Increased education and advocacy about the plight of those who need transplants is likely to be a far more effective method of inducing societal change than top-down legislation.
Though these measures are sure to be controversial, they will ultimately prove to be worthwhile as the number of organs available for transplant skyrockets and the death toll from the current system decreases. The lives saved by the increased number of available organs will prove that any legal difficulties will be more than worthwhile. Through examination of the basics tenets of property rights theory, it is evident that our shortage of organs can be remedied by stripping the dead of their de jure property rights and transferring to a system in which we place the rights of the living above the rights of the deceased.