On June 25, the Institute for Justice (IJ) announced a life-saving development. It is now legal to compensate people for supplying bone marrow to those with cancer or blood diseases. The impressive victory took close to three years of legal maneuvering, and yet some commentators expressed the immediate hope that organ donations might open up in a similar manner. The prospect is unlikely.
The main obstacle is the government’s constantly tightening control of medical care and its determination to never relinquish power to two opponents: the free market and individual choice.
How determined is the government to keep control? An estimated 2,000 to 3,000 Americans die every year because they are unable to get a marrow transplant. More than 114,000 people are on waiting lists for an organ transplant; in 2011, 6,669 people died while waiting. According to data from the Organ Procurement and Transplantation Network, “a new name is added to the national organ transplant waiting list every 10 minutes.” The federal government prefers such people to die rather than let the medical profession reflect supply and demand.
But market forces are inexorable. Bone marrow and non-vital organs become scarcer as demand soars. Black markets develop, lowering quality and making it difficult to tell if a donor actually consented or received payment.
Organ donation is an emotional and unpleasant issue that evokes images of death and disease. But with an aging population and increasing life spans, it is an issue that more people will be confronting. Several governments and many experts seem to be taking notice. They are addressing the organ-donation crisis, and some of the solutions proposed are alarming.
Organ donation hits the headlines
On July 27, the UK Guardian reported, “NHS [National Health Service] Considers Organ Donation Shakeup. NHS Blood and Transplant publishes survey seeking views on options including presumed consent and elective ventilation.” The article opens,
The NHS is considering its biggest shakeup of the ethical, legal and professional rules governing transplants, floating ideas to prolong the lives of people who have no chance of surviving in order to harvest their organs, and to make people opt out rather than in to the donor register.
The NHS is surveying the public to ascertain whether to harvest the organs of living people whose lives are prolonged specifically for spare parts. And, given how often doctors are wrong both in diagnosing and in predicting how long anyone has to live, the reference to “people who have no chance of surviving” is not reassuring.
Chillingly, one of the reforms being considered is
new financial rewards for intensive care units for every organ they provide. Hospitals currently receive about £2,000 per organ to cover their costs, which the NHSBT compares with the €7,000 (£5,500) paid in Croatia.
In short, medical facilities will have a strong financial incentive to harvest organs.
The Guardian observed that the NHS survey is meant to “test the boundaries of what might be acceptable, as a precursor to significant reforms.” The most controversial option explored is called “elective ventilation.” Specifically, severely ill or injured patients whose “deaths are inevitable, such as those who have suffered a catastrophic head or brain injury or stroke,” would be kept alive on ventilators so that their organs can be better harvested.
The British Medical Association is also debating the issue of elective ventilation. And, in case too many people are frightened off from signing as organ donors, the consent of everyone will be assumed unless it is explicitly withdrawn.
Discussions of organ harvesting often sound academically dry, coating over ideas and policies that have a life-and-death impact on average people. For example, much of the discussion in the UK and elsewhere hinges on the definition of “dead,” which the harvesters wish to expand to include “as good as dead.” In 2008, the pediatric specialist Dr. James Tibballs stirred controversy through a piece in the Journal of Law and Medicine, in which he cautioned organ donors. Many might be unaware of the rights they are signing away, he warned.
LifeSiteNews reported on Tibballs’s claim that “most organ donations take place before the donor is actually dead.” He argued against the vague criterion of “brain death,” saying “that current medical practices usually contravene the law [in Australia], which states that a donor must display irreversible cessation of all functions of their brain or of blood circulation in order to be eligible for the surgery.”
Tibballs claimed that Australian doctors usually delayed only two minutes after a patient’s heart had stopped before beginning the removal of an organ.
Tibballs says two minutes is inadequate time to determine whether the loss of circulation is “irreversible.” The two minutes criterion was established purely for utilitarian reasons, he says – because waiting longer could threaten the viability of donated organs.
And, now, the definition of dead may be considerably expanded in the UK and elsewhere. Medical ethicist and professor at Boston University George Annas commented,
People have accepted and lived with the concept of irreversible cessation of brain function for 40 years. Once you decide you’re going to move the definition to another area, the question is, when do you draw the line?
Annas concluded, “The next step is not declaring death at all, but declaring as good as dead.”
The situation in America
Proposals similar to those of the NHS are being discussed in the United States, albeit in a less official manner. The American Journal of Bioethics (AJOB) is a respected, peer-reviewed academic journal that addresses the intersection of law and medicine. On May 31st, an article by Dr. Paul E. Morrissey argued for harvesting organs from patients who are not yet dead. A surgeon at Rhode Island Hospital, Morrissey is renowned for pioneering kidney transplants.
In the essay “The Case for Kidney Donation Before End-of-Life Care,” he proposed a “new protocol.” Morrissey wrote, “Under this protocol, the donor is alive at the time of kidney recovery, but a determination has been made and confirmed by medical experts that death is imminent.” He suggests that such “donors” who are not yet brain dead could be given anesthesia before surgery to remove organs — which, of course, presumes they can feel pain.
In Boston University Today, Annas offered a rebuttal to Morrissey in which he deplored the “good as dead” criterion. Annas claimed that the new protocol puts a doctor in a position “of using this live person just as a means to somebody else’s end.”
But other respected voices within the medical profession are calmly and seriously debating the harvesting of organs from living people. In 2010, The Journal of Medicine and Philosophy ran an essay entitled “Reevaluating the Dead Donor Rule,” by Professor Mike Collins. In 2011, Oxford issued a book entitled Death, Dying, and Organ Donation: Reconstructing Medical Ethics at the End of Life. The authors argued that a “novel ethical justification is required for procuring vital organs from still-living donors.”
LifeSiteNews (Nov. 3, 2011) reported on comments delivered by three “leading medical experts” who concurred at a conference on removing organs from the living.
The chilling comments were offered by Dr. Neil Lazar, director of the medical-surgical intensive care unit at Toronto General Hospital, Dr. Maxwell J. Smith of the University of Toronto, and David Rodriguez-Arias of Universidad del Pais Vasco in Spain, at a U.S. bioethics conference in October and published in a recent paper in the American Journal of Bioethics.
The justification always comes back to the long waiting lists and the lack of organs. But draconian policies are likely to make people even more fearful of agreeing to organ donations. As Annas commented,
In surveys about why people wouldn’t designate themselves as organ donors, the number-one reason is fear doctors would give up on them too easily. But historically the main requirement [of organ donation procedure] has been to keep the transplant team absolutely separate from the treatment team.
From the UK to North America to Australia, aging populations and a decline in organ donations have led governments and medical experts to propose what would have been unthinkable decades ago — namely, hastening or causing the death of one person in order to reap organs for another. The call for a new protocol is presented with charts and studies; it is offered in dense medical or academic jargon; and it sometimes includes humanitarian phrases. But a scratch or two beneath the surface reveals a totalitarian push of astonishing arrogance.
There is a solution to the organ shortage, but it is the one solution that is dismissed out of hand: Let the free market cure scarcity. Let people decide for themselves.
Unfortunately, governments are moving in the opposite direction. It remains to be seen how far they will go.