There was a sad story last week about a young woman who died unexpectedly at the age of 19. She was on the organ donor register, and her own mother was on the waiting list for a kidney donation, but the mother was refused one of the kidneys. Even the transplant coordinator was ‘crying her eyes out’, but there was apparently no escape. Rules were rules. Cadaveric donations must go impartially and anonymously to the most compatible people at the top of the waiting list, and the authorities decreed that these organs must go to three strangers – whose identity the mother will never even know.
The trouble with technological advance is that it keeps forcing us to make decisions in totally new circumstances. We usually start by trying to stretch existing laws and ethical standards to fit the new situation, and these tend to be unhelpful to the cause of transplantation. The special problems for transplantation arise from the fact that for every recipient there must be a donor. We already have a mass of well established laws and conventions about how to treat human bodies – both living and dead – and since most of them long predate the possibility of using parts of one person’s body to replace those of another, it is not perhaps not surprising that they tend to get in the way. We are having to make things up as we go along; and although laws, government policies and professional guidelines dealing with transplantation are proliferating, the underpinning principles are still in confusion.
The rules about cadaveric transplant at present are a curious collection. You have no legal right to decide what happens to your body when you die. You can only express preferences, but there are some things the law won’t let you do (I remember some years ago a man was not allowed to leave his body as meat for the Battersea Dogs’ Home), and your relatives are under no obligation to do follow your wishes. If it is known that you do not want to be an organ donor, you now (since the Human Tissue Act) have an absolute right to refuse; but you can’t insist on being a donor, even if you are suitable. Your relatives will in practice still be asked for permission and may refuse. They can also give permission, or refuse it, if you have not expressed any wishes. But if you do become a donor, neither you nor your relatives have any right to say anything about who should get the organs – and transplant teams are not allowed to accept any organs given with conditions attached.
Compare this situation with your wishes about the destination of your other possessions. There are some legal limits to what you can do with certain kinds of property – listed buildings or works of art, for instance –, and the government will take a share of your estate if it is big enough. But beyond that, your wishes are absolute. You can leave your property to anyone or anything you like, and neither your relatives nor anyone else can veto your wishes. There is certainly no question of anyone’s insisting that unless you agree to giving your property to whoever is in most need, it will simply be destroyed – which is what happens to cadaveric organs unless you agree to their being distributed in the established way.
But, it will be said, bodies and body parts are not property, so of course they shouldn’t be treated like other things. It’s true that at present bodies are not property in law; but the interesting question is whether they should be. It is easy, in general terms, to understand why they are not: common law developed from Church law, and traditional Christianity literally anticipated the resurrection of the body at the Last Judgment – as the creeds still attest. Anyway, bodies were of no use to anyone else until scientific anatomy developed, so there was no reason to regard them as property. The law was, and to some extent still is, rather vague, and concerned mainly with disposal and forensic matters.
But even though we can see why bodies were not traditionally thought of as property, this is something that needs rethinking in the light of technological development. Some body parts and fluids were always of use to other people (hair, teeth, milk) and transferred like other property; now the scope for using body parts, and even detaching them from living people for use elsewhere, is increasing all the time. Laws are being made to control the new possibilities, and they are giving us more and more control over what happens to our bodies, making them seem more and more like our other possessions. How much sense does it make to keep insisting that they must still not be regarded as property?
Even if it is claimed that we should not go quite that far, we still need to think in some detail – not just impressionistically – about why we treat body parts as so different from other things. It may sound good to give cadaveric transplant organs simply to the person in most need (well, at least until you start investigating the slipperiness of the concept of ‘most need’); but then why not extend the principle to other goods we have to bequeath? How does the required impartiality of cadaveric donation square with the fact that living donations are nearly all directed, and indeed usually expected to be so? And can there be any justification for allowing cadaveric organs to be wasted – and lives lost – rather than accepted on specific conditions? You can’t give a serious answer to questions like these with a catch-all ‘bodies aren’t like other things’. If they aren’t, we need a clear account of what the difference is, and why that difference justifies the rules that differentiate the giving of organs from the giving of other things.
The issues are complex, and I’m not here offering specific answers to any policy questions here (but watch this space). It does seem clear, however, that the curious status of the body is being used as an excuse for all kinds of ill thought out, ad hoc, policies, which have no more coherent moral underpinning than the immediate intuitions of the people making the rules. Technology is all the time increasing the ways in which bodies and body parts really are like other things we own. Perhaps matching this with a recognition of them as property in law might be a useful step in the direction of clear thinking about these issues.
If my body and its parts are my property, I may sell them to whomever I wish and under such terms as I think fair. There is a great deal of disagreement on whether a person ought to be allowed to sell body parts. One stated reason is that it makes the poor especially vulnerable (but, on the other hand, is a way for the poor to gather in needed capital).
“Even if it is claimed that we should not go quite that far, we still need to think in some detail – not just impressionistically – about why we treat body parts as so different from other things.”
Why are body parts different from other things? Perhaps because body parts, unlike other mundane goods, are (and have been) defining/integral parts of our existence. Our body parts mean a lot to us because we grew accustomed to it; we use it in our day-to-day activities; we grow up with it; and moreover they are things with which we do meaningful things. So, I suppose there is a sense of “attachment” both figurative and literal.
I’m inclined to think that losing a house is not even remotely comparable to losing my limbs. Perhaps because I can always work — using my limbs — to earn enough to build/buy a new house to replace the lost one. But when I lose my limbs, the story looks a little different. We have a situation whereby the society in which we live is primarily designed for able-bodied beings, by that I mean people with “complete” set of body parts. As such, body parts are essential for human functioning.
You might want to say that all I’ve been arguing about is the notion of replaceability. And you might want to further argue that that does not mean that body parts should not be treated as properties. Indeed, the issue is in how to make body parts replaceable; with current advancement of technology it’s hard to think that we’re far away from getting there. Well, fair enough. But the point is that we’re not there yet. And even if we get there we have to think about access; whether the technology — the “spare” parts — are easily accessible. I do admit that the issue with access looks rather trivial; for example, the fact that some people cannot afford to buy a house does not deter us from considering houses as properties. So, perhaps by way of parity body parts should be considered as properties. Again, I beg to consider the appeal to attachment; that body parts are things with which we do meaningful activities. But then again, you might argue by asking do we not do meaningful things with what I’ve called “mundane” goods? Do we not build a family — which is presumably something meaningful — in our “shelters”?
Ok, I’m beating myself up quite heavily here. Well, what’s different about body parts? I reckon the issue is still with the notion of attachment. I’m still unsure how to articulate the difference between our attachment to our body parts and our attachment to other goods. Hmmm … LOL I’m sorry for rambling.
Cheers,
Yuventius
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