ALTRUISM AND OWNERSHIP: JUSTIFYING PAYMENT FOR ORGAN DONATION A thesis submitted to the University of Manchester for the degree of PhD in Bioethics and Medical Jurisprudence In the Faculty of Humanities 2014 Voo Teck Chuan School of Law For Jacqueline, Ellie & Charles 2 TABLE OF CONTENTS Page Abstract 7 Declaration & Copyright Statement 8 Acknowledgements 9 The Author 10 Table of Cases 12 Table of Statutes 13 PART I: INTRODUCTION Chapter 1 PROBLEM, AIMS AND APPROACH 14 1.1 Introduction 14 1.2 Consequences of an Organ Shortage 13 1.3 Altruistic Gifting 17 1.4 Reconciling Altruistic Gifting with Financial Reward 19 1.5 Rewarding Deceased Donor Registration 21 1.6 Criticisms of Motivation-Focused Justification 22 1.7 Thesis Aims and Approach 24 2 PHILOSOPHICAL APPROACH 28 2.1 Introduction 28 2.2 The Gift of Titmuss? 28 2.3 Gift and Commodity: Compatible Forms? 30 2.4 Funeral Expense Reimbursement as a Rewarded Gift Form 35 2.5 Altruism: From Pure to Primary Motive 37 2.6 The Moral Insignificance of Altruism? 43 2.7 Conclusion 46 3 LEGAL APPROACH 48 3.1 Introduction 48 3.2 ‘No Property in a Dead Body’ Principle 51 3.3 Work/Skill/Alteration Principle 52 3.4 Property, Public Interest and Abandonment 54 3.5 Property Interest and Intent 55 3.6 What can be Drawn from the Cases 57 3.7 Organ Donation in England: Statutory Framework 60 3.8 Organ Donation in the US: Statutory Framework 62 3.9 Reward as a Legislative Imperative? 64 3.10 Organs as Descendible Valuables 68 3.11 Issues with Reasoning from Descendibility 71 3.12 Conclusion 74 3 4 SUMMARY OF ARTICLES 75 4.1 Article 1 75 4.2 Article 2 76 4.3 Article 3 78 4.4 Article 4 79 PART II: THE SUBMITTED ARTICLES 5 Article 1: The Social Rationale of the Gift Relationship 80 5.1 Abstract 80 5.2 Introduction 81 5.3 Social Justice and Social Policy 83 5.4 Community as Emotional Integration 86 5.5 Community, Altruism and Value Pluralism 87 5.6 Motivating BMD in TGR 92 6 Article 2: The Moral Insignificance of Altruism to Deceased Organ Donation? A Response 97 6.1 Introduction 97 6.2 Overvaluing Altruism 101 6.3 Solidarity, not Altruism 103 6.4 Wilkinson and Saunders: Similarity and Differences 104 6.5 No Support from Nagelian Altruism 105 6.6 Altruism and Self-Sacrifice: Concept and Valuation 109 6.7 The Irrationality of Devotion to Self-Sacrifice 111 6.8 Creative Altruism 112 6.9 Impartiality as a Constraint on Altruism 112 6.9.1 The Demand of Moral Impartiality 113 6.9.2 First- and Second-Order Impartiality 115 6.10 NHS Blood and Transplant Allocation 116 6.11 Donation: Altruistic and Solidaristic 118 6.12 Lack of Sacrifice? 120 6.13 High Praise and True laudability 123 6.14 Altruism Verification: A Non-Problem 126 6.15 Conclusion 129 7 Article 3: Altruism and Reward: Motivational Compatibility in Deceased Organ Donation 132 7.1 Abstract 132 7.2 Introduction 133 7.3 Why Maintain Altruism? 134 7.4 Ethical Acceptability of Financial Rewards 137 7.5 Motivationally Mixed yet Altruistic 139 7.6 Intervention Ladder 141 7.7 Motivationally Mixed but Not Altruistic 142 7.7.1 Altruistic intent 147 4 7.8 The Perspective of Altruism 151 7.9 Reward and Social Responsibility 156 7.10 Conclusion 158 8 Article 4: Organs as Inheritable Property? 160 8.1 Abstract 160 8.2 Introduction 161 8.3 Body Ownership and Property Ownership 162 8.3.1 Assimilating Body Ownership to Ownership of Property 162 8.3.2 Thinghood and Alienation 164 8.4 Organs as Tradable Property, Organs as Inheritable Property? 166 8.5 Anti-waste 170 8.6 Reasons against Inheritability 172 8.7 Conclusion 176 PART III: CONCLUDING SECTION 9 CONCLUSION 177 9.1 Introduction 177 9.2 Altruism-Payment Incompatibility 180 9.3 Altruism-Reward Compatibility 180 9.4 Moral Insignificance 181 9.5 Devotion to Humanity 182 9.6 Altruism and Other-regarding Motives 186 9.7 Community and Compatibility 189 9.8 Social Responsibility without Altruism? 192 9.9 Gift, Altruism and Body Exceptionalism 193 9.10 Future Research 195 9.11 Conclusion 197 Bibliography 199 Appendix: Published Papers 215 Word Count of main text including footnotes: 63,198 5 ABSTRACT The University of Manchester Doctoral Programme in Bioethics and Medical Jurisprudence Voo Teck Chuan 31st March 2014 ALTRUISM AND OWNERSHIP: JUSTIFYING PAYMENT FOR ORGAN DONATION Organ donation is traditionally based on the notion of making a gift based on altruism. An important aspect of ‘altruistic gifting’ is commitment to a solidaristic approach to meeting transplant needs. In line with this, people are encouraged to donate their organs at death to a common pool for collective provision, or donate a live organ to another freely. Given a chronic organ shortage, proposals have been made to change this system to increase donation. Proposals include introducing some organ market or payment in the form of a reward to incentivise live or deceased donation. However, these proposals have been opposed because of the grip of ‘altruistic gift’ as the only ethically acceptable way to procure and distribute organs. To support the ethical acceptability of other systems, ‘altruistic gift’ has been subject to various criticisms. One criticism is the moral relevance of altruism: people may donate on other motives other than altruism; or, altruism is not the motive that underpins most deceased organ donations. Another criticism is the moral value of altruism: even if deceased organ donations are in general altruistic, altruism does not express communal virtues like generosity that support solidarity. A third criticism is the value of the concept of altruism when understood in the pure sense: ‘pure altruism’ fashions an unnecessary or false dichotomy – gift versus sale – in the way people can ethically relate and help each other. Consistent with or following this criticism, it has been argued that use of a financial reward to incentivise donation can be compatible with preserving donation as altruistic albeit in a ‘non-pure’ sense. ‘Altruism’ and reward can co- exist as motives for donation. This thesis concerns itself centrally with the third criticism. It argues that the concept of altruism delineates a distinctive moral ‘perspective’ of a common humanity that engenders a devotion to others’ interests. Accordingly, as I argue, ‘non-pure’ definitions of altruism are misleading as to how a financial reward can be compatible with altruism. From this, the thesis argues that introduction of a financial reward for organ donation would not preserve donation as altruistic. Based on an understanding of altruism as also a motive for ‘creative’ relationships, the thesis counters criticisms of its relevance and value to deceased organ donation under a gift model. As part of its legal analysis, the thesis considers the antithesis of ‘altruistic gift’: the idea of organs as property which places individual control on their disposition at its moral centre. It has been argued that organs should be owned as property so that individuals can sell them, or transmit them to relatives so that relatives can claim payment from donation. To provoke thought on whether organs should be owned as private property like any other, the thesis proposes an inheritance regime for organs with family as default successor. 6 DECLARATION No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. COPYRIGHT STATEMENT i. The author of this thesis (including any appendices and/or schedules to this thesis) owns any copyright in it (the “Copyright”) and s/he has given The University of Manchester the right to use such Copyright for any administrative, promotional, educational and/or teaching purposes. ii. Copies of this thesis, either in full or in extracts, may be made only in accordance with the regulations of the John Rylands University Library of Manchester. Details of these regulations may be obtained from the Librarian. This page must form part of any such copies made. iii. The ownership of any patents, designs, trade marks and any and all other intellectual property rights except for the Copyright (the “Intellectual Property Rights”) and any Reproductions of copyright works, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property Rights and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property Rights and/or Reproductions. iv. Further information on the conditions under which disclosure, publication and exploitation of this thesis, the Copyright and any Intellectual Property Rights and/or Reproductions described in it may take place is available from the Head of School of Law (or the Vice-President) and the Dean of the Faculty of Life Sciences, for Faculty of Life Sciences’ candidates. ----------------------------------------------------------------------------------- 31st March 2014 Voo Teck Chuan 7 ACKNOWLEDGEMENTS I thank my supervisors, Professor Søren Holm and Professor Margaret Brazier, for all their help in the completion of this thesis. They were encouraging, patient and kind throughout the process, for which I will always be grateful. I was given incredible support during the last lap of writing. Dr. Anne-Maree Farrell, who was involved in my supervision earlier, gave me lasting advice on academic writing. The learning environment at the School was warm, inviting and stimulating. For this, I would like to thank Professor Rebecca Bennett, the course director; Dr.