University of South Carolina Scholar Commons Theses and Dissertations 2018 What Makes Killing for Organs Wrong? A Philosophical Defense of the ‘Dead Donor’ Rule Adam Omelianchuk University of South Carolina Follow this and additional works at: https://scholarcommons.sc.edu/etd Part of the Philosophy Commons Recommended Citation Omelianchuk, A.(2018). What Makes Killing for Organs Wrong? A Philosophical Defense of the ‘Dead Donor’ Rule. (Doctoral dissertation). Retrieved from https://scholarcommons.sc.edu/etd/4610 This Open Access Dissertation is brought to you by Scholar Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of Scholar Commons. For more information, please contact [email protected]. What Makes Killing for Organs Wrong? A Philosophical Defense of the ‘Dead Donor’ Rule by Adam Omelianchuk Bachelor of Science University of Northwestern, 2009 Master of Arts Biola University, 2013 Submitted in Partial Fulfillment of the Requirements For the Degree of Doctor of Philosophy in Philosophy College of Arts and Sciences University of South Carolina 2018 Accepted by: Christopher O. Tollefsen, Major Professor Jennifer A. Frey, Committee Member George Khushf, Committee Member Jeffrey P. Bishop, Committee Member Cheryl L. Addy, Vice Provost and Dean of the Graduate School Copyright © 2018 by Adam Omelianchuk All rights reserved. ii Abstract The purpose of my dissertation is to give a philosophic defense of the so-called “dead donor” rule (DDR) in transplant ethics, something that is sorely lacking in the current literature on the topic. Part of my project is concerned with the rule’s correct formulation: What exactly does it forbid? I answer that it is primarily concerned with prohibiting the killing of the donor for his or her organs, and that it need not be concerned with requiring that the donor be dead before surgery begins (as important as that might be). What is morally important is that surgery not be the proximate cause of death. Historically, this flows out of the concern to be in compliance with homicide law and the longstanding norm that doctors should not kill their patients for any reason. As I see it, homicide law and the norms against physician-arranged death is based on an overarching norm that calls for the respect for human life, even in its waning form, because every human life has a fundamental and ineliminable dignity. Hence, I defend the following argument: (1) transplant protocols that would have us secure the donor’s death would have us kill someone for their organs; (2) killing someone for their organs disrespects the worth of someone; (3) no act that disrespects the worth of someone is permissible; (4) therefore, protocols that would have us secure the donor’s death are impermissible. This deductive approach to the issue indicates my intention to defend a moral absolute: It is wrong for transplant surgeons to kill their donors always and everywhere — even with their consent. iii I defend this argument in each chapter. I begin with an analysis of our nature and our deaths. I contend that the answer to the question “What are we?” is the answer, “a human organism” and that “death” marks the end of the biological life of a human organism, not a psychological entity distinct from a human organism. I then defend the currently accepted neurological criterion as being sufficient for determining death. Next, I clarify what is meant by “transplant protocol” and “kills” and what it is to kill someone “for their organs.” Along the way, I contend for a theory of intention that seeks to balance out our first- and third-personal perspectives with respect to determining what counts as an intentional action. Moving to the second premise, I argue that the fundamental problem with lethal transplant surgery, to which I assume the donor consents, is that it bestows more worth on the organs than the donor who has them. At stake is the very basis of human equality, which is an ineliminable dignity that each of us has in virtue of having a rational nature. To allow mortal harvesting would be to make our worth contingent upon variable quality of life of judgments that can only be based on properties that come in degrees. Thus, rejecting the ban on killing donors comes at the expense of our egalitarian principles, which require equal treatment insofar as protections from being killed are concerned. In short, the ban on killing is a matter of respect. I end by explaining why this respect and our egalitarian principles require this treatment, and why it is at least “virtually” absolute if not categorically absolute (the third premise). The fundamental problem with non-absolutist systems of morality is that they only superficially differ from consequentialism, a moral theory most bioethicists are loath to accept. I give some reasons why consequentialism is inadequate, and explore options iv for grounding the DDR as a moral absolute. Yet my case does not depend on the falsity of consequentialism, since a rule-consequentialist could hold that the DDR is “virtually” absolute because upholding it produces the best outcomes. I explore some of the reasons why this may be so. In any event, we have good reason to think that protocols that would have us secure the donor’s death are impermissible. v Preface Typically, whenever anything is written about transplant ethics, the stark difference between the number of people in need of healthy organs and the number of people who get them is noted.1 Then it is inferred from the tragic disparity between the short supply and high demand of healthy organs that there is an urgent imperative to increase their number. Various strategies are then explored to do this. Some say we should allow organs to be bought and sold (Matas 2008). Others who want to stay within the charitable giving model suggest that consent to donate should be presumed unless one has previously “opted out” (Thaler and Sunstein 2009, chap. 11). A more aggressive strategy is just to conscript organs regardless of the wishes of those who are made to supply them (Harris 2002). Still others, who resist changing our donation and consent- giving practices, advocate for revising the definition of death so as to include those who have irreversibly lost consciousness as potential organ sources (Veatch 2010, 322). Those who hesitate to further revise the definition of death reject the rule that vital organs should not be removed from living patients and that “organ donation euthanasia” should be permitted (Miller, Truog, and Brock 2010; Wilkinson and Savulescu 2012). While it is routinely acknowledged that any one of these proposals would require a radical shift in our understanding of transplant ethics, we are left with the impression that almost 1 At the time of this writing, the Organ Procurement and Transplant Network website of the U.S. Department of Health and Human Services says there is over 120,000 people in need of a life-saving organ; in 2015, there were 15,064 donors who supplied organs for 30, 973 transplants (accessed March, 21, 2016). vi anything is better than the status quo. So great is the imperative to maximize the organ supply that no time-honored belief in medical ethics, whether it be concern for bodily integrity, informed consent, economic fairness, the wrongness of killing, or even the nature of life and death, is safe from critical scrutiny. While there is much to be said for and against all of these proposals, it is the revision to the wrongness of killing that concerns me the most: I do not think there is anything wrong with the status quo’s prohibition against donors being killed for their organs. For the last twenty-five years the so-called “dead donor-rule” (or DDR) has been the object of an increasingly intense scrutiny. While the content of the rule is not always precisely understood, the rough version is that retrieving organs for transplant should not come at the expense of the donor’s life, and so vital organs like the liver, heart, or lungs should not be extracted unless the donor is dead. A chorus of discontent with the rule has been voiced by a small, but growing group of doctors, lawyers, and philosophers who believe it is permissible for transplant protocols to be the cause of death for donors of vital organs. The reasons for this are many and varied, as we shall see, but all who reject the DDR have in common the concern for harvesting the healthiest organs possible, the reasonable assumption being that living donors at the margins of life are a healthier source of organs than freshly dead ones. My twofold aim is to first challenge those who believe that the moment of the donor’s death is not morally important in the context of organ donation, and that the donor’s death can be licitly secured by transplant surgery protocols, and secondly to defend a version of the DDR that specifically forbids killing the donor as a sound moral policy. The reasons for this will unfold, but to prime the pump a bit, I shall begin by illustrating them with a sad but thankfully untrue story. vii An infant boy named Joey, who was dying from causes related to birth asphyxia, could not be saved. Hoping to lessen the tragedy of the situation, Joey’s grief-stricken parents quickly made provisions for Joey to become an organ donor so that they might spare the life of another little one in need. As it happened, there was such a little one in need named Tommy who was at the same hospital at the same time.