© Springer International Publishing Switzerland 2016
Ralf J. Jox, Galia Assadi and Georg Marckmann (eds.)Organ Transplantation in Times of Donor ShortageInternational Library of Ethics, Law, and the New Medicine5910.1007/978-3-319-16441-0_77. Why Not Confiscate?
(1)
Department of Philosophy, Karlsruhe Institute of Technoloy, Karlsruhe, Germany
Christoph Schmidt-Petri
is lecturer in Practical Philosophy at the Karlsruhe Institute of Technology. He received his doctorate in philosophy at the London School of Economics and Political Science with a thesis on John Stuart Mill’s Utilitarianism. His research areas are moral and political philosophy, and he has published in journals such as The Philosophical Quarterly, Philosophy of Science and the Journal of Value Inquiry.
7.1 Introduction
There are two seemingly radical ways of resolving the problem of the shortage of organs available for transplantation. One is to create a (heavily regulated, to be sure) market for organs, in which people receive a financial or other incentive to increase the supply of organs, the hope being that given the right level of incentive, more organs will become available at a price worth paying, all things considered. Many object to this idea because they fear the commodification of the body,1 the body being one of the last parts of our universe that the logic of markets has not yet managed to take over. The other way is to simply do away with any actual, presumed or hypothetical consent and to confiscate all suitable organs. In this chapter, I will discuss the ethical legitimacy of the latter option, also known as routine salvaging.
The most significant advantage of a policy of confiscation is not that the supply of organs becomes (pecuniarily) cheaper than it would be if there were a market for organs—it might not, as some compensation for the donor might still be deemed appropriate2—but that it becomes plentiful. Considering just Germany, a policy in which all people who have suffered brain death become organ suppliers (provided they are medically suitable) would allow all current demand for organs to be met.3 So, at least at first sight, organ confiscation does solve the problem of organ shortage.
This observation by itself would, it seems, only sound like a good reason to cold-blooded utilitarians for whom (according to the cliché) the ends justify the means, whatever they are. To most people, by contrast, the very idea of confiscating organs will sound utterly absurd. However, or so I will argue, reflecting on two practices currently considered ethically legitimate—at least in many countries—illustrates that it might not be. Additionally, the acceptability of these practices doesn’t seem to depend on specific philosophical theories. They are, first, inheritance taxes, and, secondly, mandatory autopsies. Neither would provide sufficient legitimization for a policy of organ confiscation on its own. However, considered jointly, they seem to justify both a transfer of resources and the use of a dead person’s body for the benefit of the living, to put it loosely.4 Inheritance taxes show that it is considered legitimate for the state to take resources from a dead person in order to provide other people with certain benefits. In other words, they may constitute an involuntary transfer of resources after death. Inheritance taxes, however, do not concern the body of the dead person, but only his or her external resources, and that is clearly an important difference. However, autopsies do concern the body. The medical procedures performed during autopsies resemble that of an organ transplantation in that the body is opened and some (or all) organs are removed. In roughly half of all autopsies, consent by the patient or his/her relatives is not required by law. Thus, mandatory autopsies constitute an involuntary opening of one’s body involving the removal of organs after death.
Thus, neither inheritance taxes nor mandatory autopsies require the consent of the dead, both are typically performed in order to benefit other people, and autopsies also involve opening the body of the deceased. In comparison, these practices are not that different from transferring body parts. So it seems there is a good argument starting with these widely accepted practices—widely accepted even by non-utilitarians, it seems—going to the widely rejected practice of organ confiscation. I briefly illustrate this further in sections two and three. In section four, I go on to discuss objections against this proposal based on concerns about the brain death criterion. In section five, I conclude that given the legitimacy of inheritance taxes and autopsies, routine salvaging is also legitimate; or, to put it more cautiously, if inheritance taxes and mandatory autopsies are (considered) legitimate, then so should routine salvaging.
7.2 Inheritance Taxes
7.2.1 Introduction
Whether inheritance taxes are just or not is a widely discussed issue on which there is neither consensus in theory nor in practice. Thinkers of a broadly egalitarian outlook will tend to believe that the wealth disparities the absence of inheritance taxes would make it easier to achieve are unjust, given that they are highly unlikely to be consistent with equality (of opportunity, access to advantage, (of opportunity for) welfare/resources etc., as the case may be). Traditional right-libertarians such as Nozick tend to adopt a more individualistic perspective and given that compulsory taxation in general is, as Nozick carefully phrases, “on a par with forced labor” (1974, p. 169), inheritance taxes too are illegitimate. It is impossible to discuss this debate even in its rough outline here, so for the purpose of the argument I simply take the legitimacy of inheritance taxes, in one form or another, for granted.
In what sense are inheritance taxes analogous to organ transplantations? Three things seem clear: (i) they both occur after the death of the person (but see also section four below), (ii) they are not undertaken to benefit the deceased but in order to benefit somebody else, (iii), they involve the transfer of resources. The analogy seems quite strong. However, inheritance taxes do not involve the body of the deceased in any way. So we may assume that the legitimacy of inheritance taxes shows that there are legitimate involuntary transfers of resources after death, but not that they may involve the body of the deceased person. I will address this issue in section three after clarifying my analogy to inheritance taxes by discussing some possible objections to it.
7.2.2 Taxing and Confiscating are Two Different Things
The first objection questions whether levying a tax may really be equated with confiscation. A tax, so the objection goes, would only amount to a certain percentage of the bequest, and that doesn’t amount to a confiscation . Besides, at least in many countries (such as Germany), inheritance taxes are only raised after certain tax-free allowances have been taken into account, and hence very few bequests are actually taxed.
This intuitively plausible set of objections is ultimately unconvincing. Taxing at a rate of, let’s say, 20 % just means confiscating 20 %, while 80 % would indeed remain untouched. However, also in the case of organ confiscations, only a rather small ‘percentage’ of the body would be taken. Besides, given that brain death has to precede organ removal,5 and the patient has to be in intensive care around the time of brain death , only about 0.5 % of deaths (again, in Germany) would be affected by routine salvaging.6 Inheritance taxes, by contrast, have to be paid in about 13 % of cases.7 Therefore, it is not true that inheritance taxes affect fewer people or are less onerous.
7.2.3 What Would the Organs be Worth?
To the extent that organ confiscation is supposed to be similar to the taxation of bequests, it would seem natural to put (for instance) one beating heart in the list of objects the inheritance tax is to be calculated on. But how would that work? The only prices we have for organs are from the black market or are uninteresting for other reasons. Would we need a proper market for organs just to calculate the tax burden on organs?
This objection also helps to clarify the view I am discussing. A market in organs is not required for this proposal to work, nor does the analogy from inheritance taxes (or mandatory autopsies, for that matter) provide any justification for a market in organs.8 The confiscation of organs would not be an inheritance tax . It would be analogous to an inheritance tax in that there is something the dead person may not authoritatively decide on after his or her death. It isn’t actually a tax in the sense that an organ needs to be assigned a monetary value.9
7.2.4 But the Body is not a Resource!
The final objection to be discussed in this section is the most serious one. Even taking for granted, as I do in this chapter, that health is a matter of justice and that we are indeed morally required to support other people by providing them with health services, drugs, and maybe even with artificial limbs, if necessary and possible, the proposal under discussion seems to illegitimately treat parts of the human body just like any other object (like a crutch, for instance). But there is a long tradition, often and famously associated with Immanuel Kant’s distinction between the price of objects and the dignity of all humans,10 that asserts that a human being and his or her body requires fundamentally different treatment than objects in general.
It would be preposterous to deny that there is a very important difference between the human body and other objects—even if it is hard to pinpoint what exactly the difference is and what consequences it ought to have. Not just for reasons of space, I cannot offer a detailed view here. The most important reply is, I think, that whatever objections one could raise against organ confiscations on the basis of this difference would, at least prima facie, equally apply to mandatory autopsies (to be discussed in the next section), as during autopsies, the human body gets treated just like during an organ explantation. We cannot consistently claim that in one case, the autopsy , the dead body is treated with respect, or in accordance with its intrinsic dignity or inherent worth (again, to put it loosely), but that in the other case, that of organ explantation, it would not be. Before discussing that reply, however, I would like to mention some less striking ones first.
First, we need to accept that not all material objects are merely material objects. Some material objects may have the same emotional value, make the same contribution to shaping one’s personality or identity, or equally affect one’s view of the world and emotional constitution as one’s original body does. So if these personality-affecting features are what makes the body special, so are some material objects.
A very good example for this are musical instruments.11 It is a common theme in classical as well as modern music that some instruments are not just objects to be treated like sound-producing tools, but are connected to the musician in a more fundamental way. They become important partners of the musicians and often even get given names.12 However, if you were to own a Stradivarius at the moment of your death and nothing else, because nothing else mattered to you during your life other than your music, and that Stradivarius was the instrument you actually needed to play in order to make the music your music—that instrument was part of yourself, as some musicians put it—you nevertheless do not have the right to dispose of it the way you would like to at the time of your death. People realise very well that a Stradivarius is not to be treated like any other object, but its material worth will nevertheless figure in the inheritance tax calculation. If it is possible to treat such quite unique material objects with the appropriate understanding of their peculiarities, but still treat them like material objects nonetheless,—in fact, it is appropriate in this case to say the Stradivarius gets treated like a commodity—it should be possible to respect the dead body as something very special but nonetheless treat it like a material object in some sense—not by putting a price tag on it, but by accepting that removing some of the organs for transplantation will provide benefits to other people.
Related posts:
The Ethics of Organ Donation: Foundations and Challenges
Challenges to the Dead Donor Rule: Configuring a Biopolitical Response
Legal Justice in Organ Allocation. A Legal Perspective on the Failure of the German Organ Allocation System
Is an Absolute Prohibition of Living Kidney Donation by Minors Appropriate? A Discussion of the Arguments in Favor and Against
India’s Kidney Belt and Medical Tourism: A Double-edged Sword
Organ Donation and Transplantation in Germany
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