EDITORIALS 125

Cadaver considering the human being—is finite; ...... senescence starts with the zygote, and J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from corporeal is its inevitable end. After death the human body decays, a It is immoral to require consent for process with which few are familiar and which excites revulsion which is both cadaver organ donation instinctive and learned. The instinctive part of this revulsion I think is easily H E Emson explained, as an inherited reflex ac- quired by ancestral experience that ...... rotten meat is not good to eat. Embedded very deeply in the nature of humanity No one has the right to say what should be done to their body there is another element to this, a belief after death that death is not the end of the soul and that the life of the body can somehow persist or be restored. This was expressed n my opinion any concept of property them have ever viewed and touched a in the practices of the earliest in the human body either during life or human cadaver, or seen a decomposing humans, in the staining of bones of the Iafter death is biologically inaccurate body. deceased with red pigment as a symbol and morally wrong. The body should be Out of all this I have become what I of continuing or resurgent life. Such regarded as on loan to the individual understand is termed a dichotomist, one practices have been elaborated by many from the biomass, to which the cadaver who believes that the body and soul are different cultures, as in preservation and will inevitably return. Development of separate, different entities. I use the term veneration of the bones of ancestors; immunosuppressive drugs has resulted “soul” for want of a better, not knowing burial with goods, food, slaugh- in the cadaver becoming a unique and a word which does not in some way carry tered animals, and slaves, and mummifi- invaluable resource to those who will implications of the soul’s origin, nature, cation and , to retain a simu- benefit from organ donation. Faced with value, and destination. I wish to imply lacrum of continuing life, the last a the biological reality, the moral error of none of these, nor to intrude here my common practice in many contemporary societies including our own. All these any concept of property in the body, and own religious beliefs. For the purposes of seek in some manner to deny the fact of the quantitative failure of voluntary this discussion, the soul to me is a death, or at the very least to delay its organ donation, I believe that the right of non-physical, immaterial entity which acceptance, to spread this as a process control over the cadaver should be vested animates the body and gives it what we know as life. In knowing and experienc- over a period of time, and to come to in the state as representative of those ing a person, we cannot separate body admit it gradually rather than as an who may benefit from organ donation. and soul, because we always know them instant blow at a single temporal point. How one regards the dead human together. From the moment of birth until Such practices often contrast oddly an body, the cadaver, is in part governed by that of death they are inseparable and expressed belief in an in a better one’s familiarity with it. At the present intertwined to form the person, the world, with profound reluctance to leave time, very few people ever see a cadaver human being. At death the soul departs this one. Many religions express belief in http://jme.bmj.com/ which has not in some way been altered from the body—I have watched this some form of “the of the after death, and even fewer touch, occur—and here I express no beliefs body” but so far as I am aware, at the handle, deal in any way with the dead whatsoever as to what happens to it at present time, this is only rarely inter- human body. In developed countries, that point; where it goes, if anywhere, preted as a strict physical reconstitution death itself most frequently occurs away what its future is, if any. What is clear to of its elements as at the moment of from the home, in an institution, under me is, that without the soul, the body is death. There is too much practical the supervision of professional care- not and can never again be a part of the human experience for this, and however on September 27, 2021 by guest. Protected copyright. givers. For most people, ideas concerning person. The cadaver is not, what the body belief in a resurrection is interpreted, an the cadaver, its nature, the proper way to has been. element of symbolism is for most people deal with it, are formed under these con- The body, on the other hand, is more inescapable. ditions. easily defined and described. This, the However acceptance of death is denied As a pathologist specialising in foren- physical entity animated by the soul, is or delayed, the human body is inexorably sic pathology, for 50 years I have been at formed of chemical elements and com- destined to decay as the beginning of a the other end of the spectrum of experi- pounds, organised into tissues and or- recycling process. Its constituent compo- ence. In my daily work I have been privi- gans, combined in a marvellous com- nents are broken down by various means leged to examine the cadaver in all its plexity and with the soul, it is the human into simpler forms, and these in turn are stages after death from the immediate person. In this combined state, the recycled into the bodies of later genera- postmortem moments through all the person is alive; without the soul, the tions of living things. We die and stages of to bare bones. body is dead, with all that implies. From decay—or are burned—to come up again Working in a relatively small community, the moment of conception the compo- as wheat or roses, which in turn may I have sometimes been charged with nent parts of the body are formed from form the bodies of future generations of examining the body of someone I have material drawn from the external physi- people. Were this not so I would not be known in life, which is never an easy cal world, in active interchange and alive to write this, nor you to read it; the task. These experiences have moulded dynamic equilibrium with the biomass, elements which might have formed us my ideas as to what the cadaver is, what the sum total of living organisms on the would all have been locked up in the it represents, and how it should be planet, and with some of its inorganic indestructible physical remains of the treated. My beliefs are by no means matter. We study the human person from first generation of living organisms. unique, but I believe the experience its earliest beginnings, through growth, Decay is the inevitable and necesssary which has formed them is unusual and differentiation, maturity, decline, dis- consequence of finite corporeal mortal because of this, important. Reading the ease, and death. The life of the metazoan life. works of ethicists who pronounce upon animal Homo sapiens, as we know Viewed from this point, the human these matters, I wonder how many of it—and this is only one of the ways of body can only legitimately be regarded

www.jmedethics.com 126 EDITORIALS as on extended loan from the biomass, to that their loved one’s body, maintained and the individual is incapable of recon- the individual of which it forms a part, in a semblence of life by artificial stitution. The person no longer exists, J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from and any view of it as property which can respiration, is in fact dead and will obvi- the soul has departed, and the individual be owned and disposed of must be ously be so when the respirator is turned who was but is no longer has no further examined very seriously, questioned, and off. Added to this, there is acceptance of use for the body which has been part of modified. Our culture accepts as a death as a process, not as an event; a fact him or her during life. The concept of the fundamental principle that while the which those close to the deceased come right of a person to determine before body is animated by the soul, the person to accept gradually and which in its full- death, the disposal of their body after resulting from this union has a right to ness may take years. Some progress death, made sense only when there was the preserved integrity of the body which towards reconciling these facts—for no continuing use for that body; it makes is a necessary part of his or her total human emotions are facts with which neither practical nor moral sense now, being. This is expressed in law, in our we must deal—and resolving this di- when the body for which the dead society, by prohibitions against killing, lemma, can be made when the death of person no longer has any use, is quite lit- wounding, or even such minimal assault an individual is known to be inevitable erally a vital resource, a potential source as threatening to touch the body without but can be postponed for a short time of life for others. Another way of looking the person’s consent. But how we should during which the family can come to at the cadaver, is to liken it to a dress or a view the cadaver after death is a very terms with it. A great deal more could be suit of clothes hanging in a closet, worn different and much more questionable done by the more gradual and diffuse by the person during life, evocative of matter. processes of public education, but while pleasant experiences and happy times, In that part of the ethics of our society the problem can be lessened, it inevitably but now no longer needed by the one which is expressed in law, there is no will remain. who has died and useful only as a concept of the cadaver as property which The cadaver has now become, to those memorial by the bereaved. If it can help may be disposed of for gain. The law, who may receive its organs as replace- to keep the living warm, should not this formed over a period of time before the ment for their own which have failed, be done? Is this not both practically and possibility of transplantation existed, at quite literally a source of continued life morally, its right utilisation? present charges someone with the re- restored to something close to its full- If this argument is correct, then it is sponsibility to dispose of the cadaver in ness, and qualitatively different from even more morally unacceptable for the accordance with society’s customary existence maintained by mechanical relatives of the deceased to deny utilisa- practice and the requirements of public means. In discussing this I shall limit tion of the cadaver as a source of health, and gives this person powers to myself to kidney transplantation, the transplantable organs. Their only claim do so, but the cadaver is not his or her commonest procedure which has be- upon it is as a temporary memorial of a property. Until very recently there was come routine. Again, one wonders if loved one, inevitably destined to decay or no significant value in a human cadaver, some of the ethicists who pronounce on be burned in a very short time. To me, and no legitimate use for it save its this, have ever met with and talked to any such claim cannot morally be sus- quantitatively very minor utilisation in patients who have experienced both tained in the face of what I regard as the as a part of the training of existence maintained by haemodialysis, overwhelming and pre-emptive need of physicians and surgeons. All this and life restored by transplantation. the potential recipient. It is particularly changed, recently, suddenly and dra- There is this real difference. This situa- unacceptable when the deceased has matically,with the invention of immuno- tion requires re-examination of basic during life expressed consent for cadaver http://jme.bmj.com/ suppressive drugs which block the bodily beliefs; to whom does the cadaver “be- organ donation, and still unacceptable if rejection of transplanted organs and tis- long”, and who should morally have he or she has expressed no opinion. The sues, and make organ transplantation rights to determine its disposal? To the need of the potential recipient, the possible as a practical and effective treat- deceased, it is something that has been a benefit which may accrue to him or her, ment of human disease. The change is vital component of the person but now is to me trumps and surpasses all other tremendous, unprecedented, unpara- no longer and is no more needed. To the considerations. The proportionate ben- lleled in our experience. The bereaved family, it is a remaining part of efit is too great to be subordinate to any- on September 27, 2021 by guest. Protected copyright. difference—for example, between the beloved deceased person, emotion- thing else. This can be expressed in a chronic haemodialysis and kidney trans- ally tremendously evocative, hallowed by simple parable. A rich man has a loaf plantation for the treatment of renal individual experience and by centuries which he does not need, which he cannot failure, is the difference between exist- of belief and tradition. To the potential eat, for which he has no use. To a poor ence and life. From the strictly practical recipient of its donated organs, it is the man, starving, the gift of this loaf would viewpoint, from being an object without very new hope of restored life. be the gift of life itself. But the rich man intrinsic value destined only for disposal, I do not think that the concept of says: “I will not give you this loaf; I will the cadaver became at one leap a vital ownership or property in the human drop it on the dunghill to decay, or fling resource, something quite new in human body is an accurate, defensible, or moral it in the fire to burn”. This is to me a spe- experience. This quantum jump in tech- one, and I believe that the body should cific analogy of the denial of organ dona- nological capability brought with it, as be regarded morally as on loan from the tion, of the conscious refusal to grant it. all such advances inevitably do, totally biomass to the individual of whom it is, In many instances the denial is not con- new ethical problems. These in their turn during life, a part. Previously a matter of scious, a positive act, but a negative can and must be tackled, and possibly only academic interest, this is now of omission, a failure to consider and solved, and faced with the unprec- immense practical importance. I have no decide upon the possibility before it edented, it can only be done by funda- problem with the right of the individual becomes real. It is commonplace that mental examination of our basic beliefs, to bodily inviolability during life; integ- there is a great gap between the pro- and their reconciliation with immutable rity of the body is a necessary part of portion of people in a society who favour physical facts. integrity of the person, together with the organ donation, and the much smaller One thing which must be considered individual freedoms that are commonly proportion who do anything about it. at the very beginning, is the problem of stated in charters of rights and the like. I In my opinion the human cadaver, at immediacy. To be effective, an organ for am deeply concerned with the right of the point at which life departs, should transplantation must be removed as the person to govern disposal of their become a resource for those who may soon after death as possible. But it may body after death, when separation of benefit from donation of its organs. Our be very difficult for relatives to accept body and soul is irrevocably complete, society has conspicuously failed to

www.jmedethics.com EDITORIALS 127 achieve this by voluntary means, and the after routine the body is recon- unacceptably to extend control of that increasing length of the queues for stituted so that there is no outward sign, body beyond legitimate limits. To require J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from donated organs testifies eloquently to to ordinary observation such as that at consent from the relatives of a previously this failure. On the other hand, a major- an open coffin or memorial serv- living person is unacceptably to extend ity of the community express their belief ice, that any examination has been their control over matters where the that cadaver organs should be used for performed. Legally, this might be re- good of others should be the predomi- transplantation. Faced with this contra- garded as an extension of the doctrine of nant concern. The concept of consent in diction and the dilemma so caused, it Parens patriae, the assumption by the this situation is morally incorrect. appears to be morally and practically state of parental responsibility when this This having been said, in a society necessary for society to act to overcome is necessary, on behalf of the persons which places predominant value in au- this failure, and this could best be done benefiting from organ donation and tonomy, it may not be possible to enact in by making the human cadaver the transplantation. Morally, I regard the law what is morally correct. Should this charge and responsibility of the state, to rights of the potential recipient, because matter ever attain the status of a legisla- determine its best disposition. Without of the benefits accruing, to be pre- tive proposal, as it has in some countries, going into detail, it might be done by emptive over all others. it might be a practical necessity to establishing an organisation for this In this situation, the idea of consent extend the principle of autonomy to a purpose, under the authority of the state and its corollary, refusal are not morally right to refusal of cadaver organ dona- but at “arm’s length”, very strictly sepa- applicable. One may be able to give or tion, to a living individual—to legitimise, rated from government and politics. The refuse consent to a procedure which in effect, the attitude of the rich man in rights and responsibilities of disposal of affects oneself, but organ donation af- my parable. To me this would be im- the cadaver should be vested in this fects no one physically; no human moral, but it might be necessary to con- organisation. When the cadaver has been person is involved as donor. To grant the done this limited immorality, commonly used, if possible, as a source of trans- right and power of consent to an expressed as the right to opt out, or to plantable organs it may, if the family individual who may be affected emotion- refuse, to the individual. It would be a wishes, be reconsigned to their care, for ally, is to elevate the possible emotional limited sacrifice to the much greater such religious and social observances as affect of one person, as more important good. they desire. Practically, this might be than the physical life of another. The J Med Ethics 2003;29:125–127 welcomed by many, as removing the imbalance of benefit is too great to necessity for an agonising decision by permit of this, and I find it morally the family. Also practically, it is impossi- unacceptable. To require consent for ...... ble for the family, in such circumstances, cadaver organ donation from the one of Author’s affiliations to be able to tell what has been done; whose person in life the body is a part, is H E Emson; [email protected]

Death, us and our bodies would mean that my father would be ...... dismembered. But I had no hesitation in http://jme.bmj.com/ requesting an autopsy. Both I and my mother accepted that his body was dead. Death, us and our bodies: personal He would not be harmed. And important reflections knowledge would be obtained. A. US AND OUR BODIES J Savulescu Let me say what my beliefs about the dead body are and why I hold them. on September 27, 2021 by guest. Protected copyright...... There is a large philosophical literature on the relationship of mind and body to We need to rethink our attitudes to the bodies of the dead in personal identity. I do not intend here to order to increase our willingness to donate organs and tissues propose a philosophically robust or com- prehensive account of personal identity. I y father died aged 87 on January delirious and experiencing the slow outline here merely my personal reasons 20, 1998. It was the day of his motion throes of death. I was told he had for holding the view that I do. 42nd wedding anniversary. He died while I was still in the air. My first M 1. Mind and body are different been admitted to a major teaching thought was that I would never again see I believe we are different from and not hospital with jaundice of unknown him or hear his deep chuckle. I would identical with our body, at least in the never again feel the gentle touch of his origin. He died after a medical procedure morally relevant sense. Our body is a large hands. He would never see my and a delay in diagnosis and manage- complex machine that supports our con- ment of bleeding after the procedure. I daughter grow up as he had wanted to, scious and subconscious life. But it is our believed it was important to understand playing, and laughing on the beach. mental life which constitutes who we why he had died and what the under- I have witnessed many . As are, not the machine that supports it. I lying cause of his jaundice had been. I medical students, we had to attend am my mind. My body allows my mind requested an autopsy. autopsy each morning at 8.30 am as a to express itself and shapes who I am, My father was not only the best father part of pathology in fourth year medi- but mind and body are different. a person could have had, but my closest cine. Before this, we had two years of This is consistent with several prac- friend. The circumstances of his death dissection, probing every crev- tices and beliefs: were especially sad for me. I was on a ice of the formalin fixed human body. I plane while he was allowed to die of learnt an immense amount from these 1. and organ harvesting blood loss in intensive care over a period activities. But I also knew how gruesome Most people in the West accept a brain of hours, becoming progressively more the autopsy is. I knew that an autopsy death definition of death. According to

www.jmedethics.com 128 EDITORIALS this definition, we are dead when our which destroys this body rather than We should show respect for the dead brain dies even though our body lives on. continuing to live in this body for only but how should we show such respect? J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from Organs and tissues can be taken because six months. Even if “I” do not survive, I I felt that I should remember my they continue to live after the brain has do not believe this matters. What matters father by being the kind of person he died. is that my mental states persist, albeit was. I felt I showed respect for him and supported by a different body. This the kind of person he was by giving to 2. Withdrawal of medical treatment suggests, to me at least, that what my children what he gave to me: love. I from brain damaged individuals matters is not material bodily existence, still have some of his ashes in a small There are several legal cases and many but certain kinds of mental states. urn. I will one day take these to a moun- medical examples of life prolonging I would still undergo this cloning tain where he used to climb in Romania medical treatment being withdrawn process in this example if the clone was and disperse them in the air. He asked from people who are permanently not an organic life form programmed by me to do this. It will give me a time to 1 unconscious or conscious but severely DNA and the syncoiding process, but a reflect on his life and what he gave me. 2 brain damaged. These practices are con- non-organic machine, providing the syn- But this act is not as important as trying sistent with the view that what matters coiding process was accurate and the to be a better father. We show respect for is our mental functioning, our mental resulting being was conscious. This the dead by thinking about them and lives, and that treatment which keeps suggests to me that I am not identical helping their memory to shape our lives. our bodies alive (including our brain) with any particular physical substrate or When my father died, I felt guilty at can be stopped because mental life is so support of my mental states. The physi- not being present at, and just prior to, his impoverished. For this reason, I do not cal substrate of our mental states is usu- death. Guilty for not saying goodbye. But believe “we” in the sense that matters ally our brain but it could be something I decided to channel this guilt into to are identical with our brains. The reason else. What matters is this mental life, not trying to help my children rather than why we withdraw these medical treat- its physical basis. suing the hospital and doctors for ments is because life in the significant This may seem to draw to sharp a dis- mismanagement or flagellating myself sense has ceased. Our biography, as tinction between mind and body—after for my (significant) failings. This is what James Rachels once described it, has all, we are embodied beings by our he would have wanted. And this was closed. nature. Yet even on a less dualistic what he lived for. picture, there is an important distinction If we can show respect in these many 3. Beliefs about the possibility of between embodied subjectivity (what “continued existence” in other bodies ways, through many symbolic acts, it is matters) and the subjectless object. best to remember the dead in and In the recent science fiction film, The There is still an important distinction Sixth Day, Roger Spottiswoode, explores through the living, whose lives can be between the embodied mind and the made better by the acts of remembering. the concept of through body. cloning. In this film, true cloning or Organ and tissue donation to others copying of a person is perfected. This 2. Any afterlife cannot depend on symbolises the greatest goodness of a begins with “blanks” or drones stripped how the dead body is treated person—the capacity to make others’s of all characteristics and DNA. DNA from Religions which include a belief in the lives better. the individual to be cloned is introduced soul or spirit which can be distinguished into the drone and creates a physical from the earthly body and which can B. SOURCES OF ORGANS AND http://jme.bmj.com/ replica of that person’s body including exist in a disembodied state are commit- TISSUES their brain. This process differs from the ted to a view that what is essentially us Tissues and organs from humans have cloning of an entire genome (which or most important about us is different enormous potential value for research, occurs with nuclear transfer) because from our body. transplantation, education, and training. scientists have also perfected a “cerebral Any kind of afterlife (if there is one) There are several sources of organs and syncoiding process”—whereby an exact cannot depend on what is done to the tissues: picture is taken of the mind of the indi- dead body. This claim is supported by the 1. the living, where the tissue is taken on September 27, 2021 by guest. Protected copyright. vidual being cloned, which is then trans- widely differing practices concerning the solely for the benefit of others (live planted via the optic nerve of the blank. dead—some religious believers bury the kidney or liver transplantation) This reproduces all of the individual’s body, others burn it, and others eat it. 2. the living, where the tissue is redun- memory and mental states up until that Many people never have the chance to dant to procedures (diagnosis or man- point including personal characteristics, have religious ritual performed after agement) which were performed in the learnt behaviours, and instincts. death—they die at sea or in the moun- interests of the patient (for example, dis- Imagine that I have a tumour deep in tains or are eaten by animals. It cannot carded appendix or colon) my brain. It will grow slowly and kill me be that God would disadvantage those quickly in six months time. Up until that unlucky enough, through no fault of 3. the dead person. point, I will be asymptomatic. But there their own, to be consumed by animals or is no treatment and I will certainly die in who have died in some other tragedy. C. ETHICAL ISSUES six months. I have a choice—I can (Indeed, if there is a God, and He is all When should we use tissue or organs undergo the cloning process described in loving, and our bodies do not belong to from one person to benefit others? The Sixth Day. But there are two caveats. It us but to Him, surely what He would There are two approaches: (1) the must (for technical reasons) be done want to happen to our organs and tissues autonomy centred view; (2) the benefi- 3 now and not later. And it will destroy my is that they save the lives of those whom cence centred view. existing body. But it will create a replica He loves but are suffering from kidney or without the tumour (let’s assume the heart failure?) 1. The autonomy centred view process can be tweaked to make subtle Liberal societies place importance on genetic changes). This body would die 3. We should show respect for the people freely forming and acting on their but it would be replaced by a replica with dead own conception of how their life should identical mental states. Would I survive (and other rituals) serve the go (and end). “Autonomy” comes from the cloning process? function of showing respect for the dead. the Greek, “autos” “nomos” meaning This is a complex question. But I But it is only one way of showing respect self rule or self determination. The would undergo the cloning process for the dead. importance given to the freedom and

www.jmedethics.com EDITORIALS 129 values of individuals is captured in the person’s life when it is of no cost to us, an autonomy centred weak obligation of concept of respect for autonomy. In the what do we have moral obligations to beneficence. Such a position implies we J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from case of living people, this is thought to do? have moral obligation to give organs and imply that (1) body parts can only be This is consistent with the way in tissues after death or medical procedure, used with the consent of the individual. which the doctor/patient relationship provided no one is significantly harmed And in the case of dead people that (2) has come to be viewed. The standard and there is no reason to believe the per- organs can only be taken from dead view is that doctors should act in their son objected or would have objected to people if they consented to their removal patient’s interests. There are, however, such use. If one divides mind and body, prior to death. many statutes that require disclosure of the moderate position supports an opt What should be done if the person did confidential information in the public or out system of organ donation after death not express a desire about the use of her other people’s interest.4 Breaching confi- (see the paper by English and 5 organs after her death? Here we must dentiality is justified in some cases in the Sommerville p 147). Since we are not make a determination of what she would public interest—for example, outbreaks harmed by the removal of organs or have wanted, and what is most consist- of infectious diseases and notifiable tissues, and these are of great benefit to ent with her values. If a doctor used her diseases, or when identifiable individuals others, there is an obligation to donate organs, and this conflicted with the are at grave risk. An example of the latter these or to register an objection, or at deceased patient’s values, then on one is when a doctor knows that an HIV least there is no good reason to fail to view, that patient’s past autonomy is not positive patient is putting a partner at donate these tissues. respected. But likewise, if doctors do not risk without the partner’s knowledge It also supports encouraging people to use her organs, and the deceased patient and the patient refuses to practice safe complete advance directives or organ would have wanted them used, then we sex or inform the partner. The General donor cards, specifying whether they do also fail to respect his past values and Medical Council has provided specific have an objection to organ donation. autonomy by not releasing the infor- guidance for doctors with regard to HIV How can we encourage people given mation. infection and confidentiality. In essence the current system where there are ever Thus, even if we adopt an autonomy these allow the doctor to breach confi- greater legal requirements to obtain con- centred view and give weight to the dentiality. sent for organs and tissues to be used for deceased person’s past values and de- Thus, this position justifies the use of the benefits of others? sires, it is important to make an evalua- organs and tissues when there is mini- There are two things we could do. tion, based on the evidence available, of mal harm to the person. Provided that 1. Commerce in tissues/organs: what whether this person would have wanted her confidentiality is protected, this would matters is how well our lives go, not organs used after death. To fail to take a mean that redundant organs and tissues whether we have two kidneys or one. person’s organs who would have wanted could be used. If one believes, as I When we realise that our bodies are not them used for medical purposes is to fail believe, that the dead cannot be harmed, constitutive of us, are merely the means to respect that person’s autonomy, to fail it would justify the use of organs and tis- for us to effect our lives, objections to the to respect that person’s values, even if sues from the dead. sale of organs wither. Several articles in families do not want those organs or tis- this issue argue in favour of the sale of sues used. The moderate position organs and tissues.6–9 More controversially we could reject The implications of the beneficence cen- 2. Tax breaks for organ/tissue donors. We http://jme.bmj.com/ tred view, even in its most moderate ver- (2), the claim that respecting autonomy reward those who donate to charity by sion, can be extreme. A more moderate requires we satisfy the past desires of the allowing them to claim such donations position combines both the autonomy dead. We could claim that, when we die, in their tax returns. I believe we should centred and beneficence centred views as we cease to exist as autonomous beings have a mandatory system of the moderate position. According to this, and our past desires are of no direct rel- registration—for example, on a driving doctors should use organs and tissues if: evance to self determination after our licence—of willingness to donate organs because there is no self. This is a • there is a significant interest in that and tissues after death. We should offer radical view that would involve disregard tissue or organ tax breaks to those who contribute to the on September 27, 2021 by guest. Protected copyright. of the desires of the dead—I will not • there is no good reason to believe that public good of organ and tissue dona- pursue it here. the person had or would have objected tion. If we reward people for donating 2. The beneficence centred view to its use money to others, we should reward those Beneficence is doing good for other • using the organ is not against the per- who are willing to donate their organs people. A beneficence centred view states son’s interests. and tissues for the benefit of others. that we should use organs and tissues if Where a person has consented to doing so does more good than harm, D. IMPLICATIONS organs and tissues being used for the regardless of people’s desires. This raises Organs and tissues are special. In life, benefit of others, that wish must be the complex philosophical question in they allow us to be people. But we are not respected regardless of family prefer- the case of using organs and tissues from the same as our bodies or body parts. ences for the fate of the body. To fail to dead people of whether the dead can be There is no intrinsic value in organs and respect such wishes is wrong for two harmed. On some views, the dead cannot tissues. We should change the signifi- reasons: cance we attach to body parts. What be harmed. On these views, there would 1. it fails our obligation to respect the matters is people. Body parts are valu- be strong obligations to taking organs autonomy of people and tissues from the dead. able only and in so far as they make peo- Most people accept a weak moral obli- ple’s lives go better. And when mental 2. it fails the most basic duty of rescue, gation of beneficence. According to this life is absent or grossly diminished, we to benefit others. weak version, which can be called a duty cease to exist in any significant sense. If we believe that what matters is our of easy rescue, an individual (living or For that reason, I believed autopsy did mental state, then we should review the dead) has an obligation to give up for use not harm my father, though it mutilated rule that we can only take organs from some tissue or organ only when the his body. This kind of view of personal those who satisfy brain or cardiorespira- harm to that individual is minimal, and identity has other implications. tory criteria for death (see the papers by the benefit to others is great. If we do not Many people should be attracted to Zamperetti et al10 and by Bell11 p 176 and have a moral obligation to save another the moderate position, which constitutes 182). This is called the “dead donor

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their dead. They ate parts of the body Court of New Zealand Registry M126/96. Summary: Changing practices and made objects of art from others. One From the Canterbury District Law Society, J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from towards organs and tissues 6/1/97. Hearing 6 December 1996, picture depicted a person blowing a Judgment 13 December 1996. trumpet made from a tibia from a 3 Savulescu J, Skene L. Who has the right to • Duty of easy rescue—the moral deceased family member. access medical information from a deceased obligation to give organs and tissues This is only one of the many ways we person? Ethical and Legal perspectives. JLaw after death or when redundant. can show respect for those we loved. But Med 2000;8:81–8. 4 Notifiable Diseases [Public Health (Control of • Adopt an opt out system for organ/ surely the best way is through remem- tissue donation Diseases) Act 1984]; Misuse of Drugs Act bering their qualities to benefit others. If 1973; Act 1967; Births and Deaths • Tax breaks for organ/tissue donors we change the way we think about our Registration Act 1953; Road Traffic Act 1988; • Respect the wishes of those who bodies and the bodies of those we love, Human Fertilisation and Embryology Act choose to donate and understand how beneficial body 1990; NHS Venereal Diseases Regulations • Encourage advance statements about 1974; The Children’s Act 1989; Human parts can be to the lives of others, an Organ Transplants Act 1989, and Prevention organ/tissue donation enormous amount of good could be done of Terrorism Act (Temporary Provision) Act • Allow commerce in tissues/organs at no cost. It is time to rethink our beliefs 1989. • Review the dead donor rule about organs and tissues, and the bodies 5 English V, Sommerville A. Presumed consent for transplantation: a dead issue after Alder of the dead. Hey? J Med Ethics 2003;29:147–52. J Med Ethics 2003;0:127–130 6 Erin CA, Harris J. An ethical market in human rule”. Since I believe we die when our organs. J Med Ethics 2003;29:137–8. 7 Radcliffe Richards J. Commentary. An meaningful mental life ceases, organs ...... should be available from that point, ethical market in human organs. J Med Ethics Author’s affiliations 2003;29:139–40. which may significantly predate brain 8 Savulescu J. Is the sale of body parts wrong? death. At the very least, people should be 29 REFERENCES J Med Ethics 2003; :138–9. allowed to complete advance directives 9 De Castro LD. Commodification and 1 Airedale NHS Trust v Bland [1993] 1 All ER exploitation: arguments in favour of that direct that their organs be removed 821; Frenchay NHS v S [1994 2 All ER, 403, compensated organ donation. J Med Ethics when their brain is severely damaged or 411–13. 2003;29:142–6. 2 Re Dinnerstein (1978) 380 NE 2d 134 (App they are permanently unconscious. Zamperetti N Ct Mass)—US; Clarence Herbert 1981—US. 10 , Bellomon R, Ronco C. Annas GJ. Nonfeeding: lawful killing in CA, Defining death in non-heart beating organ CONCLUSIONS in NJ. Hastings Cent Rep donors. J Med Ethics 2003;29:182–5. I remember seeing an exhibition at the 1983;13:19–20; In the Matter of Claire 11 Bell MDD. Non-heart beating organ Conroy (1985) 486 A 2d 1209 (NJ Sup Ct); donation: old procurement strategy—new Taiwan Museum depicting how Tibetan In the Matter of a Ward of Court [1995] 2 ethical problems? J Med Ethics Buddhist monks showed respect for ILRM 401; In the Matter of G, In the High 2003;29:176–81.

Debate THE AUTOMATIC AVAILABILITY ...... OF DONOR ORGANS http://jme.bmj.com/ We need to begin by being clear about just what it is I propose and why. At the Organ procurement: dead interests, moment in the United Kingdom we have an “opting in” system (donor cards) and living needs there has been some pressure for us to move to an “opting out” system which is John Harris sometimes called “presumed consent”. on September 27, 2021 by guest. Protected copyright...... In this latter case organs would be avail- able for transplantation unless the po- Cadaver organs should be automatically available tential donor had registered his or her objections to donation prior to death. Both of these systems give central place he shortage of donor organs and tis- as a whole 40 000 patients await a to the individual’s right to determine sue for transplantation constitutes kidney but only ...10000kidneys”1 what happens to his or her body after Tan acute emergency which demands become available. Nobody knows how death. I challenge this assumption. I radical rethinking of our policies and many people fail to make it onto the suggest that consent is inappropriate as a radical measures. While estimates vary waiting lists and fail to register in the “gatekeeper” for cadaver donations.5 and are difficult to arrive at there is no statistics. “As of 24th November 2002 in All the moral concern of our society doubt that the donor organ shortage the United Kingdom 667 people have has so far been focused on the dead and costs literally hundreds of thousands of donated organs, 2055 people have re- their friends and relatives. But there are lives every year. “In the world as a whole ceived transplants, and 5615 people are two separate sets of individuals who there are an estimated 700 000 patients still awaiting transplants.”2 have moral claims upon us, not just one. on dialysis . . .. In India alone 100 000 Conscious of the terrible and unneces- There is the deceased individual and her new patients present with kidney failure sary tragedy that figures like these friends and relatives on the one hand, each year” (few if any of whom are on represent I have been advocating for and the potential organ or tissue recipi- dialysis and only 3000 of whom will more than 20 years now some radical ent and her friends and relatives on the receive transplants). Almost “three mil- measures to stem this appalling waste of other. Both have claims upon us, the lion Americans suffer from congestive human life. The measure which is the claims of neither have obvious priority. If heart failure . . . deaths related to this subject of Hamer and Rivlin’s paper we weigh the damage to the interests of condition are estimated at 250 000 each (p 196)3 concerns the automatic avail- the deceased, and her friends, and year...27000patients die annually ability of all cadaver organs—a measure, relatives if their wishes are overridden from liver disease . . .. In Western Europe which I first advocated publicly in 1983.4 against the damage done to would be

www.jmedethics.com EDITORIALS 131 recipients and their friends and relatives service, only some, however, are actually the case there could not be laws against if they fail to get the organs they need to called. If someone is called and fails to nor—for example, requiring the J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from keep them alive, where should the appear they may be fined. Most people compulsory wearing of seat belts in cars. balance of our moral concern lie? will never be called but some must be if The only remaining question is when the If we address this question seriously the system of justice is not to break moral considerations for restrictions on we must think what each group stands down. Participation in or facilitation of liberty are sufficiently compelling; and to lose. The cadaver donor stands to lose this public good is mandatory. this is the subject of the disagreement very little, but not nothing, as Hamer and There are many senses in which auto- between us. Utilitarianism gives moral Rivlin rightly say. She is dead and past matic cadaver donation involves features agents reasons to make certain choices, being harmed, except in the relatively relevantly analogous, in particular to to say it denies them freedom is, in the trivial sense in which people possess jury service. But the clearest case is that words of a famous utilitarian, “nonsense interests that persist beyond their death of postmortem examination. The courts upon stilts”. and which can in some sense be can order examinations without any Hamer and Rivlin then elaborate two harmed.6 consent being required and despite the main objections to my proposal that We must remember that while the fact that these involve interference with cadaver organs be automatically avail- organ donor may have a posthumous the dignity of a dead body and the able for transplantation. They suggest preference frustrated, (more of which removal of organs. Of course postmor- that I have ignored or deny the possi- anon) and her friends and relatives may tem examinations are not usually or- bility of the dead having what they call be distressed and upset, the potential dered simply out of curiosity, there are “surviving interests”. Unfortunately organ recipient stands to lose her very public safety and public policy considera- Hamer and Rivlin have relied for their life and her friends and relatives will tions. It is important that the cause of understanding of my position on two have to add to their distress. death be known in case the same cause very recent internet sources. One a live represents a further danger to the interview, the accuracy of which is doubtful, another from “midwaleson- CADAVER ORGANS SHOULD BE community, whether that danger be in line”. For the record I do not deny that AUTOMATICALLY AVAILABLE the form of a disease or contagion, or in there are such things as “surviving One solution to the problem of sensibili- the form of a possible murderer at interests” or, as I termed them more than ties would, I have suggested, be to large.8 But again related but more power- 10 years ago, “persisting interests”. The provide for the automatic or mandatory ful considerations weigh in favour of issue is whether these interests are suffi- availability of donor organs. If this were mandatory cadaver transplants. ciently strong to constitute plausible done, of course only as a result of demo- It therefore seems appropriate to con- objections to sacrificing such interests to cratic acceptance of the idea, neither sider mandatory availability of cadaver save the lives of those who need trans- relatives nor the former “owners” of the organs. The public interest in saving the plants. cadavers need be consulted about their lives of fellow citizens at risk is at least as disposal. This would remove the neces- urgent and as important as the public PERSISTING OR “CRITICAL” sity for asking permission at a sensitive interest which justifies court ordered INTERESTS moment and hence the moral objections postmortem examinations. Moreover it I have never doubted that there is a real to so doing. People would, I believe, soon is, I suggest, less damaging to civil liber- sense in which individuals may have get used to the idea, particularly if there ties and less compromising of individual some interests that survive their death http://jme.bmj.com/ were to be a concerted campaign of edu- autonomy than—for example, compul- and hence there are some senses in cation and argument. sory jury service. (I say nothing of com- which an individual’s interests are still in Indeed it seems clear that the benefits pulsory military service, which is widely play after death.9 While such interests from cadaver transplants are so great, accepted in many countries.) For al- deserve some respect, they are, I have and the harms done in going against the though both jury service and postmor- argued, relatively weak10 when compared wishes of those who object so compara- tem examinations have justifications in with the interests of living persons who tively small, that we should remove alto- terms of protection of the lives and liber- exist to be harmed in person by the on September 27, 2021 by guest. Protected copyright. gether the habit of seeking the consent ties of citizens, so of course does the neglect of their interests. The appropriate of either the deceased or relatives. This automatic availability of cadaver organs. principle should be that their wishes would be another example of a small but when alive as to affairs after death significant class of public goods, partici- THE HAMER AND RIVLIN should be respected, (out of courtesy so pation in which is mandatory. OBJECTIONS to speak)5 subject to reasonable demands This then is the proposal to which Hamer of public interest. MANDATORY AND VOLUNTARY and Rivlin object. They have two main It is tempting to think of those sorts of PARTICIPATION IN PUBLIC grounds of objection. Before coming to interests we have termed “critical” or GOODS these, however, we should just consider a “persisting” as contrasted with so called It is widely recognised that there is preliminary claim, namely that “both “experiential” interests—interests that clearly sometimes an obligation to make objections stem, essentially, from the fact we are aware of and aware of being sacrifices for the community or an that utilitarianism denies freedom to either served or not served by what hap- entitlement of the community to go so moral agents:...because it requires that pens. Ronald Dworkin highlights this far as to deny autonomy and even violate they be used as means to another’s end if particular contrast, defining experiential bodily integrity in the public interest and the consequences are sufficiently interests as things we have an interest in this obligation is recognised in a number good . . ..” I will not be drawn into because we like the experience of doing of ways.7 defending utilitarianism because my them. Critical interests on the other All British citizens between 18 and 70 position is not straightforwardly utilitar- hand are those “interests that it does are liable for jury service: those over 65 ian, but this suggestion is simply false. make . . . life genuinely better to may be excused if they wish. They may All ethical systems require that the free- satisfy”.11 be called, and unless excused by the dom of people be subordinated to moral There is, however, another distinction court, must serve. This may involve days, considerations if the reasons for so doing which has some importance and that is but sometimes months of daily confine- are sufficiently important or, as Hamer whether particular interests are “person ment in a jury box or room, whether they and Rivlin suggest, “if the consequences affecting” in the sense that their satisfac- consent or not. Although all are liable for are sufficiently good”. If this were not tion or frustration would be good or bad

www.jmedethics.com 132 EDITORIALS for the person whose interests they are. dead are not affected “in person” by this. integrity should trump an interest It is widely accepted in contemporary Note that it is not a question of in continued life (as a minor J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from ethics that “the part of morality con- experiential versus critical interests but objection, even assuming we cerned with human wellbeing should be person affecting versus persisting inter- agree with Harris that such a explained entirely in terms of what ests. Person affecting considerations af- comparison of “harms” is would be good or bad for those people fect living persons whether or not they necessary we are at a loss to think 12 experience them in the sense of being whom our acts affect”. So although of a way to go about it, except in what happens to my children, or my aware of them. I am affected in person— a very rough intuitive manner). body after my death, can involve my for example, by malicious gossip; it is critical interests in the sense that it con- person affecting even if I remain una- I am at a loss to understand their tributes both to the success or failure of ware of it. problem here. We always have to com- my life as a whole and to whether it has Since the dead subject has ceased to be pare the moral importance of different achieved the meaning with which I had the subject of person affecting morality, sorts of interests. To take a hackneyed hoped to endow it, such things are not since she has neither autonomy rights example already mentioned, we have to person affecting, they are not good or nor interests to protect and only some decide whether the freedom to choose bad for me, they do not affect my well- rather attenuated persisting or critical not to wear seat belts in cars can be com- being because “I” no longer exist. I am interests if any, her wishes do not have pared with the harm of loss of life or simply not there to be affected one way the primacy that rights and person serious injury and the costs of this to the or the other, my wellbeing cannot be affecting interests can claim in moral health care system of a nation state. affected because I am no longer “a argument. They cannot function, in being”. In short, though in a sense my Dworkin’s famous terminology, as Equally we have to decide whether the 14 interests persist, “I” do not. “trumps”. Equally the wishes of par- harm to a person’s posthumous interests Some, but not all, critical interests will ents or next of kin lack their normal of imposing a tax in the form of so called be person affecting, all experiential central role. Next of kin or “guardians” “death duties” compares with the ben- interests will, but person affecting is are called upon to make decisions for the efits of the good that the revenue raised what counts when we are principally incompetent only on the assumption will do. It may to some extent be rough concerned with human wellbeing, or that these represent safeguards of best and ready, but we try to assess the moral, with personal rights or interests. Posthu- interests or sometimes, (I believe political, and social importance, the 15 mous interests are never person affecting erroneously) as interpretations of the “strength”, of the respective rights and nor are posthumous frustrations of wishes of the incompetent individual. interests in play. We do this partly by autonomous choices. Here again the wishes of next of kin, asking the sorts of questions I have been I believe that although there are such guardians or other relatives as to what asking. What does the individual whose things as persisting interests they are, of happens to their deceased relation can- rights or interests are sacrificed stand to necessity, less significant than person not have the primacy that they have tra- lose compared with what will be gained affecting interests. In Wonderwoman & ditionally been accorded, in that they by the sacrifice of those rights or Superman13 I put the point like this: represent neither the expression of the interests? Even when the rights or inter- rights nor the person affecting interests ests in play are trumps—very strong It is I admit, hard work imagining of the deceased. Again they cannot func- rights indeed, it is still accepted that why one should separate harming tion as “trumps” in moral argument. some weight of countervailing interests http://jme.bmj.com/ We should note that there is a sense in someone’s interests and harming might be enough to warrant their disre- which what happens to my body after that someone. But the point of gard. We do this in medicine every day. death is person affecting; it is just that it doing so is perhaps this: if we We compare the harms of surgery, (scar- is not me who is the affected person. The ring, pain, the risks of anaesthesia etc) damage the environment things that happen to my body after irreparably today, this will harm with the gains from the surgery; or we death are person affecting in the sense compare the harms of chemotherapy the interests of future generations that they affect the persons who will with the expected gains in terms of

but it will not harm individuals as on September 27, 2021 by guest. Protected copyright. benefit from the organs or tissue that remission. We do this even when we yet undifferentiated until they come could be harvested from me and indeed cannot be assisted by the wishes of the into being. It harms their interests the persons who are distressed by the patient (because they are incompetent or now and them only when they tissue being collected retained or used. unconscious). What would we say of a So that when Hamer and Rivlin say: exist. Similarly the interests of medical team that lamely pleaded “we “It is open to Professor Harris to concede actual people persist after their are at a loss to know how to make this deaths. When they are alive you that the dead have surviving interests . . . imposing moral restrictions upon our calculation”? can harm (or benefit of course) In fact Hamer and Rivlin are consider- both the individual and her treatment of them, but to deny that this means that we cannot use them as ably overstating the difficulties here. interests. Once she is dead only There is in fact remarkable objectivity her interests remain to be harmed. donors against their will”, they are quite right, it is not only open to me, I have (by which I mean convergence or con- said precisely this. Hamer and Rivlin sensus in judgments) about the relative This is why the damage to the have spent the main part of their paper severity of harms. Particularly, there is persisting interests of the dead articulating a conception of posthumous almost universal agreement that death is must be set against the damage to interests that I (and many others) have usually the worst harm than can befall a the persisting interests of the also articulated and in establishing a human person who wants to live: fates living, damage which, in the case point that I concede but, which I have “worse than death” are rarely suffered of the living, also affects the argued has scant moral force when set outside Victorian melodrama. Thus it is persons whose interests they are. against the harm that overriding such relatively easy to see that rights or inter- This double damage will for all interests might prevent. ests would have to be extremely power- practical purposes always give the Against this final point Hamer and ful to warrant upholding such rights or edge to the interests of the living. Rivlin say: interests at the cost of the lives of others. I have argued (not simply suggested or While the life of a person then is We do not know whether an intuited) that the interests involved after affected by frustration of interests the interest in posthumous bodily death are simply nowhere near strong

www.jmedethics.com EDITORIALS 133 enough, and I have heard nothing from far from clear that people are entitled to O! that that earth, which kept the world

Hamer or Rivlin to persuade me (or I conscientiously object to practices that in awe, J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from believe any rational person) that there is will save innocent lives” with the miss- Should patch a wall to expel the winter’s much merit in a contrary view, in a view ing proviso “when the costs to them are flaw.17 which would sacrifice lives to the protec- insignificant in comparison with the No dead body remains intact; the tion of a desire not to donate organs. gains to others”. So when Hamer and worms (a certain convocation of politic So since Hamer and Rivlin state: “our Rivlin say all “the person who refuses to worms—if one is lucky!) or the fire and argument against the moral permissibil- donate aims at, it seems to us, is having eventually dust claim it. It is disinte- ity of removing organs against premor- their body remain whole after their grated, dispersed and may end as the tem wishes does not rely only on the death” they are right. My point is that it bung in a beer barrel or the mortar in a surviving interests idea”, let’s see what is surely implausible to think that having wall. The alternatives are not burial else they’ve got. one’s body remain whole after their intact or disintegration. There is simply death is an objective anyone is entitled to no alternative which does not involve pursue at the cost of other people’s lives! NO MORAL SPACE disintegration. It is implausible to the point of wicked- The first of two arguments with which Given the irrationality of the aim, it is ness, not least because the objective is they supplement their main argument difficult to defend a right to pursue such irrational and impossible of achieve- considered above, they call “the non- an aim when it is clear that doing so ment. moral space” argument. Basically the costs lives. As I recently argued in a related argument is: Hamer and Rivlin’s final point is that context: my account denies moral agents freedom. This is nonsense. Giving people powerful By requiring that our concern for The human body cannot for long reasons to do something does not deny those in need of organs leads us remain intact after death. It is them freedom. If, persuaded by this they to remove organs from the dead perishable and will, as has been against their wishes, Harris’s then enact legislation (like that concern- chronicled in art and literature ing seat belts) it is not the argument that theory is too demanding. since time immemorial, inevitably Utilitarianism makes no distinction has denied people freedom to contravene decay, disintegrate and turn to the law but the democratic process. between causing an event and dust, or worse....Shakespeare, They say: allowing it to happen when it was as ever, tells it like it is. In this physically within our power to conversation between Hamlet and Why does the fact that there is this prevent—we are as responsible Horatio the inevitable fate of the unfortunate state of affairs—a for outcomes which we fail to dead is made both vivid and person whose organs are failing— prevent when it is in our power to comic. have any consequences for what do so as we are for events we Hamlet: Prithee Horatio, tell me one we, as uninvolved parties, not straightforwardly cause....He thing. doctors or nurses, have to do? says that those who refuse to allow their organs to be used Horatio: What’s that my Lord? Why does any unfortunate state of http://jme.bmj.com/ “would have to explain why they Ham: Dost thou think Alexander looked affairs have this effect? Why is there ever would wish other people to die o’ this fashion i’ the earth? an obligation to rescue? Why do we have rather than have their organs Hor: E’en so my lord a health care system set up to remedy used” and suggests it is “surely far Ham: To what base uses may we return “unfortunate states of affairs”? I know from clear that people are entitled that rhetorical questions are not argu- Horatio! Why may not imagination trace to conscientiously object to ments. The arguments I have provided the practices that will save innocent elsewhere16; but I am confident that sim- lives”. noble dust of Alexander, till he find it ply asking the questions will show the on September 27, 2021 by guest. Protected copyright. stopping moral poverty of any person, or any phil- Hamer and Rivlin make great play of a bung hole? osophy, that could even ask such a ques- the idea “that those who refuse to allow Hor: ‘Twere to consider too curiously, to tion with a straight face! I have to say their organs to be used “would have to con- that someone who does not see that the explain why they would wish other remediable suffering of others creates sider so. people to die rather than have their obligations is simply not a moral agent. organs used”. This they get from a live Ham: No, faith. Not a jot; but to follow This is the parable of the good Samari- interview reported on the web. I do not him tan. Why did the plight of the man who believe I used the phrase “would have to thither with modesty enough, and like- fell among thieves—“have any conse- explain why they would wish other lihood to quences for what” the Samaritan, as an uninvolved party, not a doctor or nurse, people to die” but if I did, it was an off lead it; as thus: Alexander dies, Alexan- had to do? Remember he was not “good” the cuff rhetorical flourish and does not der represent my views. It certainly does not because he did what he should have convey any argument that I have ever was buried; Alexander returneth into done. The “good” was a reference to the produced in print. I have always argued dust; the lack of expectation among Jews that strongly for the irrelevance of “inten- dust is earth; of earth we make loam, Samaritans would be minimally decent. tion” when ascribing moral responsibil- and why Then they produce an argument at- ity. To me it matters not a jot whether of that loam, whereto he was converted, tributed to David Schmidtz who: people “intend” or “wish for” what they might bring about. What matters morally is imagines that there is a button they not stop a beer-barrel? what people deliberately and knowingly that, if pushed, will cause all do or fail to prevent.16 That said, Hamer Imperious Caesar, dead and turn’d to sentient life to painlessly cease to and Rivlin’s main point is still good, for I clay exist. “You will, of course, stand by the suggestion that it is “surely Might stop a hole to keep the wind away: minimise suffering in the process”

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Schmidtz says, correctly we feel, The implication that everyday trag- 3 Hamer CL, Rivlin MM. A stronger policy of that this case “shows us that edies are not examples of the needs of organ retrieval from cadaveric donors: some J Med Ethics: first published as 10.1136/jme.29.3.130 on 1 June 2003. Downloaded from ethical considerations. J Med Ethics minimising suffering is not the only others, which require from us a decision 2003;29:000–00. thing that matters. Nor is it always to help, is chilling indeed. Surely all 4 Harris J. In vitro fertilisation: the ethical what matters most”. remediable suffering gives us powerful issues. The Philosophical Quarterly 1983;33:217–38; Harris J. The value of life. reasons to help, but those reasons having London: Routledge & Kegan Paul, 1985: ch 6. Well it might show suffering is not the nothing to do with whether the tragedies Since then I have made a number of other only thing that matters. I have never are “one off”! Question: “why must I radical proposals. See Erin CA, Harris J. A help those suffering?” Answer: “because monopsonistic market. In: Robinson I, ed. The claimed that it is. What it does not show is social consequences of life & death under that the suffering of others does not it’s only an emergency and its only a high technology medicine. Manchester: sometimes create obligations. The exam- “one off”. Would such an answer provide Manchester University Press, 1994: 134–57. 5 Most recently I have articulated the details of ple is, however, polluted by the wrongness anyone with a motive for rescue? The motive, the reason, is surely that when this challenge in my Law and regulation of of killing the innocent who might want to retained organs: the ethical issues. Legal live despite their suffering. Change the people are threatened and/or are suffer- Studies 2002;4:527–49. example slightly to something much ing and we can help, we can and should 6 Harris J. Wonderwoman & Superman. prevent suffering unless the costs of so Oxford: Oxford University Press, 1992: ch 5, nearer our case. Imagine that there is a and Dworkin R. Life’s dominion. London: button that, if pushed, will cause all doing are unreasonably high. And as for Harper Collins, 1993: ch 7. sentient life to painlessly cease to suffer the desirability of not setting a prec- 7 Harris J. Ethical issues in geriatric medicine. In: Tallis RC, Brockelhurst JC, Fillett H, eds. forever. The only cost is that one’s own edent ...Iamreminded of the immortal F M Cornford’s famous lampoon of those Textbook of geriatric medicine and body will not remain intact after one’s gerontology [5th ed]. London: Churchill own eventual painless death. Would there who invoke such a principle: Livingstone, 1998. be no obligation to press the button? 8 I have recently discussed the ethics of postmortem examinations and of retained I will end, as did Hamer and Rivlin, The Principle of the Dangerous organs and tissue at some length. In the same with a last chilling example. They ask Precedent is that you should not place I elaborate the, of necessity rather brief, what separates cases where there is an now do an admittedly right action discussion here of posthumous interests and consent from dead people. See reference 5. obligation to rescue from organ trans- for fear you, or your equally timid 9 Dworkin R. Life’s dominion. London: Harper plantation and answer as follows: successors, should not have the Collins, 1993: 210–16, and Harris J. courage to do right in some future Wonderwoman and Superman. Oxford: Oxford University Press, 1992: 100ff. (For It is not always terribly clear, but case....Every public action example.) some plausible suggestions are: which is not customary, either is 10 See reference 6: Harris J: 100–1. (1) because the situations are wrong, or, if it is right, is a 11 See reference 6: Dworkin R: 201ff. 12 Derek Parfit, Following Jan Narveson defines usually emergency or disaster dangerous precedent. It follows the person affecting restriction thus: “This part situations, and (2) because they that nothing should ever be done of morality, the part concerned with human are usually “one offs”—our actions for the first time.18 wellbeing, should be explained entirely in terms of what would be good or bad for those will not set a precedent. (3) They J Med Ethics 2003;29:130–134 people whom our acts affect”. See Harris J. are also situations in which a Reasons and persons. Oxford: Clarendon Press, 1984: 394. decision has to be made (often ...... http://jme.bmj.com/ 13 See reference 6: Harris J: ch 5: 100–1. because all will die if we do not Author’s affiliations 14 Dworkin R. Taking rights seriously. London: allow some to). Everyday John Harris, Institute of Medicine, Law and Duckworth, 1977. tragedies, such as the plight of Bioethics, School of Law, University of 15 Harris J. The welfare of the child. Health Manchester, Manchester M13 9PL, UK; Care Analysis 2000;8:27–34. And Harris J. those in end stage organ failure, [email protected] Consent and end of life decisions. JMed are sadly neither extraordinary Ethics 2003;29:(in press). (For example.) nor likely to end in the foreseeable 16 Harris J. Violence & responsibility. London: REFERENCES Routledge & Kegan Paul, 1980. future. Thus they are not ones in 1 Cooper DKC, Lanza RP. Xeno. Oxford: 17 Hamlet: act 5, scene 1, lines 194–214. The on September 27, 2021 by guest. Protected copyright. which we feel a decision need be Oxford University Press, 2000: 7–17. Arden Shakespeare complete works. Walton made—we cannot morally retrieve 2 Erin CA, Harris J. An ethical market in human on Thames: Thomas Nelson and Sons, 1998. organs. J Med Ethics 2003;29:000–00. 18 Cornford FM. Microcosmographia organs against the donors’ and Figures from UK Transplant: academica [6th ed]. London: Bowes and families’ wishes. www.uktransplant.org.uk Bowes, 1964: 23.

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