Abstract
According to 2021 data, the United States’ opt-in system of posthumous organ donation results in seventeen Americans dying each day waiting for vital organs, while many good undonated organs go to the grave with the corpse. One of the most aggressive, and compelling, proposals to resolve this tragedy is postmortem organ conscription, also called routine salvaging or organ draft. This proposal entails postmortem retrieval of needed organs, regardless of the prior authorization or refusal of the deceased or his family. The argument of most proponents of conscription relies heavily upon a denial of the possibility of posthumous harms. While I also deny the possibility of posthumous harms, I argue this denial fails to acknowledge other serious wrongs that could be done to the deceased person and his corpse. While the person can no longer be harmed, his life, in a roughly biographical sense, can be damaged. Humans highly value life in this sense, often more than biological life. Respect for this sense of life also informs appropriate treatment of particular human corpses, which already have special value beyond mere resource. I will argue that conscription proponents fail to appropriately value lives and human corpses. This failure can lead to multiple wrongs, among them a wrongful exploitation of the vulnerability of a person’s life and corpse and a disrespect of persons. While it is possible that some biographical lives could be made better, or at least less bad, by conscription, the judgments such decisions would require make conscription bad policy.
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05 January 2023
A Correction to this paper has been published: https://doi.org/10.1007/s11017-022-09605-z
Notes
Others could argue against conscription by accepting a different conception of harm—one which leaves room for the possibility of posthumous harms. This paper concedes the conscription proponent’s denial of posthumous harm. But the argument could easily be modified in such a way that posthumous damage to a person’s biographical life constitutes a significant harm to the person which makes conscription sometimes wrong.
Theirs was an argument for what today would be called an opt-out system, not conscription, as it still reluctantly respected the prior objections of the deceased. Nevertheless, they evidence an awareness of a hindrance that they hold in common with later conscription proponents.
The reduction of these human intuitions to something like “sentiment” is also evidenced in [6, p. 126; 7, p. 1170].
John Hacker-Wright makes the argument that “our moral relationships to things are generally not defined in terms of their capacities” as he demonstrates how our typical criteria for moral status fail to capture the wrongness of actions toward creatures that lack the relevant capacity [17, p. 460]. I believe that much of the argument around conscription is implicitly an argument about moral status. While I will not address it in those terms, I will utilize many of Hacker-Wright’s insights, as well as those he references.
James Nelson points out that Delaney and Hershenov’s scenario and argument could be used to justify many uses of a human corpse, including “as sources of protein,” serving as a reductio ad absurdum of mandatory organ conscription [13, p. 15]. Also, those cultures that do practice cannibalism of their own are not doing it as a source of protein, but as a ritual act that recognizes the significance of the deceased in the community.
I am connecting harm with well-being here and elsewhere in this paper. I have already conceded the conscription proponent’s experiential understanding of harm. Well-being will be further discussed later.
Kagan rightly points out that “the metaphysics of the person are much simpler than the metaphysics of lives” [23, p. 320].
This is handled differently by different writers. Rachels, Ruddick, Glannon, and Kagan all appear to separate facts about internal well-being from Life, or biographical life, possibly in an attempt to separate the part of Life that is bound to the limits of one’s biological life (a person’s actual internal physical and psychological experiences) from those parts that are not necessarily experienced and may transcend the limits of biological life. For them, Life is mostly, or only, concerned with external relational facts about a person. For Belliotti, Life includes them both. I have accepted Belliotti’s proposal.
I am inclined to accept a definition of well-being that includes both mental and bodily elements, which is closely connected to the concept of harm that conscription proponents and I seem to share. I am convinced, though, that the concept of Life can be fruitfully used by those who hold different understandings of these concepts, as part of my point will be that Life encompasses facts about internal well-being, and more—and that those additional elements are often more important.
Glannon partly bases his argument on the distinction between persons and lives [20, p. 128]. But I believe the more apparent and important distinction is between internal well-being and external relational quality of life as Kagan understands them [23]. They are both about the person. A harm to one or damage to the other are both directed toward the person. On the other hand, Glannon, with some wisdom, uses “quality of life” where Kagan uses “well-being,” as “quality of life” is often connected to well-being in bioethics. He uses “good life” where Kagan uses “quality of life” [20, p. 130] (cf. [23]). I have incorporated Kagan’s internal-external distinctions in this paper, while abandoning his use of “quality of life” to stand in for the latter, since the phrase is used in so many ways and could be more confusing than helpful here.
I do not say “harm” for these elements, since, as I have already mentioned, I accept the existence and experience requirements for harm. Because my argument is made against conscription proponents who typically also accept something close to this, I do not make efforts to argue that case here. I instead concede that important point.
Conscription would take organs regardless of the wishes, known or unknown, of the deceased. However, the most significant hurdles for proponents are those cases in which the wishes are either unknown or are known to be against organ taking.
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Acknowledgements
I thank Drs. Reis-Dennis and Shelton of the Alden March Bioethics Institute, as well as my anonymous reviewers, for their generous readings, valuable criticisms, and helpful advise. I thank my wife, Jamie, for her endless patience and encouragement.
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Pemberton, D. Biographical lives and organ conscription. Theor Med Bioeth 44, 75–93 (2023). https://doi.org/10.1007/s11017-022-09603-1
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DOI: https://doi.org/10.1007/s11017-022-09603-1