I am grateful to Stephen Napier for his sympathetic and thoughtful treatment of the arguments presented in my and Gardiner’s article “Not Dead Yet.”Footnote ¹ I am particularly pleased that Napier agrees with the central contention of that article that the dead donor rule (DDR) should be understood to include a “respect condition” that may rule out particular premortem interventions in the treatment of patients in the course of donation after cardiac death (DCD).Footnote ² I am also sympathetic to Napier’s suggestion that whether or not particular premortem interventions violate this condition will depend on whether they are properly understood as treating a patient “as a means” in a way that is morally problematic and, moreover, that our article did not provide a thorough analysis of this condition.

However, contra Napier’s analysis—and despite not being able to offer a full account of what is involved in treating someone as a means in a way that renders such treatment immoral—I still believe that premortem interventions into the care of the patient that are intended to promote successful transplantation (and thus the recovery of a third party) rather than the health of the patient are extremely strong candidates for characterization as actions that violate the respect condition. Moreover, exploring why this is the case notwithstanding Napier’s analysis may make a small but hopefully useful contribution to the project of developing what both Napier and I agree is necessary—a more adequate account of what is involved in treating donors with proper respect in the context of DCD.

Let me begin by noting that our original formulation of our objection to the DCD/non-heart-beating organ donation (NHBD) programs that are emerging around the world was that various of the premortem interventions that are being introduced to reduce warm ischemic time involved treating living patients “as though they were dead.” Indeed, the impetus to write the article derived from my coauthor’s observation that procedures that had been developed for, and applied to, patients who had been declared dead on the basis of a diagnosis of brain death were now being applied to patients before they were dead and that this change both reflected and reinforced a shift in attitude toward these patients that he (then) found profoundly disturbing.Footnote ³ The suggestion that the DDR should be understood to prohibit “using living patients solely as a means to an end” is in fact derived from Arnold and Youngner,Footnote ⁴ and we draw on it to support the claim that practices involved in organ salvage that do not involve the direct killing of the patient might, nonetheless, violate the DDR. To be fair, we do then go on to endorse in passing this way of understanding what is wrong with premortem interventions to reduce warm ischemic time in DCD.Footnote ⁵ However, our main claim remains that we should not treat living patients as though they were dead and that some premortem interventions risk doing precisely that. This formulation has the advantage of highlighting how (we hold that) such interventions violate the DDR rather than simply falling foul of an independent moral injunction to respect patients as ends in themselves.

Nevertheless, it is not unreasonable to focus in, as Napier does, on the more familiar expression of a Kantian concern to avoid treating people solely as means as the ethical intuition underpinning the more expansive interpretation of the DDR that we advocate. Although premortem interventions to facilitate DCD appear, to Gardiner and me, to involve treating living people as though they were dead, the ways we feel it appropriate to treat both living and dead people may change, and it may be difficult to reflect critically on these changes unless we are able to draw on a deeper analysis of the ethics of how we treat one another—of which the Kantian prohibition on treating others solely as a means is a paradigmatic example. Thus, as long as we keep it firmly in mind that we are engaged in an analysis of what is required by what Napier labels the respect component of the DDR, then it may indeed prove fruitful to further investigate whether particular interventions do involve treating potential donors solely as a means.

As Napier’s article emphasizes, it turns out to be extremely difficult to provide an analysis of just what is involved in treating someone solely as a means that neither captures too many of our ordinary human interactions nor excludes modes of relationship that we intuitively feel are profoundly unethical.Footnote ⁶ I have no ambition to solve this problem here but instead will settle for making some observations about Napier’s discussion of whether it is plausible to think that the premortem interventions we focused on in our original article use people as a means in a way that is morally problematic. Napier is right to point out that our article actually draws on two different lines of argument to the conclusion that premortem interventions, such as cannulation and the administering of heparin, treat patients as a means: an argument about practitioner attitudes and an argument based on the structure of practical reason evidenced in these interventions.

What does it say about theatre and transplant teams when they start operating on living patients, or administering drugs to them, with the intention of producing a benefit for the transplant recipient rather than for the patient? Or, to put it more baldly, what does it say about them when they conduct these procedures with no intention to benefit the patient?Footnote ⁷ What does it reveal about—and how does it affect—their attitudes toward these patients? As noted previously, Gardiner’s intuitions that these attitudes were problematic—and indeed difficult for medical practitioners to entertain, given their commitment to the notion that their first duty is to the patient—were the original impetus for our writing on this topic. Given the historical origins of the contested interventions in procedures to facilitate donation after brain death, we argued that these interventions involve treating living patients as though they were dead. However, perhaps it would be more perspicacious simply to insist that those involved in facilitating organ salvage are treating a patient solely as a means.

Napier construes our argument in this fashion and then objects that medical practitioners involved in these interventions are not treating the patient solely as a means because they also retain a concern for the patient’s own ends and well-being, as evidenced by the fact that they do not endorse more radical options to facilitate successful organ salvage. There is some force to this objection. Yet it is, perhaps, weaker than first appears.

First, one would want to be cautious about inferences about individuals’ conscious attitudes on the basis of their omissions, especially in institutional settings. It seems possible, for instance, that a practitioner may have an entirely mercenary and instrumental attitude toward a potential donor in the context of a DCD program, without having considered the possibility of more radical surgical interventions. Indeed, the institutional setting for donation after cardiac death, wherein the medical teams involved in the patient’s care and in preparation for organ salvage and transplant may be intentionally kept distinct, would seem to militate against those in the organ salvage team keeping the ends of the organ donor in mind. Ultimately, of course, the question of practitioner attitudes is an empirical one. Yet it seems that, although we cannot rule out the presence of a concern for the ends of the donor in practitioners’ minds when premortem interventions are conducted, neither can Napier guarantee that these are always present.

Second, and more important, it would be a perverse consequence of an account of what is involved in treating someone solely as a means if one could transform an exploitative relationship of treating someone solely as a means into a nonproblematic relationship simply by adding a further intention or attitude to an existing bundle of attitudes. Any such account risks becoming hostage to sophistry. This suggests that an adequate account of what is involved in treating someone solely as a means must make reference to deeper, more objective, features of the relationship between persons than the psychological state of the agent.Footnote ⁸

These considerations suggest that the second line of analysis that Napier discusses offers better prospects for understanding the nature of treating someone solely as a means. We might assess the ethics of our relationships with others with reference to the form of practical reasoning that motivates our actions—as Kant seems to have intended when he first set out the categorical imperative. As we observed, and Napier appears willing to concede, premortem interventions to facilitate DCD are justified with reference to the benefit to the organ recipient rather than to the donor. If it were not for the existence of the recipient, these interventions would not take place. Napier objects that this succeeds in showing that premortem interventions are being undertaken as a means but not that they involve treating someone solely as a means. Again, his objection appears to rest on the thought that the patients are not treated solely as a means because other aspects of the way in which they are treated in the hospital setting demonstrate that they are still acknowledged as members of the kingdom of ends. Moreover, if the mere fact that a particular relationship with another person would not have existed except for one’s own ends were enough to establish that we were treating someone solely as a means, this would capture too many of our everyday interactions with one another.

Yet there are several features of the treatment of donors in the course of premortem interventions to facilitate DCD that distinguish this treatment from more familiar cases in which we use other people as a means to an end but not solely as a means to an end. In ordinary contexts in which we use other people as means to our ends, there exists the communicative possibility of refusal. We acknowledge them as fellow members of the kingdom of ends through the fact that if they were to refuse to help serve our ends, we would respect this and alter our treatment of them.Footnote ⁹ However, premortem interventions to facilitate DCD are typically performed on a patient who is unconscious and unable to consent to them. Moreover, there is a specific convention that gives form to what it is to respect someone as a member of the kingdom of ends in medical contexts—the doctrine of informed consent. And, as we argued in our original article, existing practices whereby individuals indicate their willingness to donate organs—in the UK and, one suspects, in many other jurisdictions—fall well short of what is required to establish informed consent, especially in terms of the information they provide.Footnote ¹⁰ In the absence of informed consent, then, interventions intended to provide a benefit for a third party do appear very much as though they are treating the (not yet dead) donor solely as a means to this end.

If informed consent—or even informed consent of a surrogate decisionmaker—to premortem interventions to facilitate DCD were obtained, this objection would lapse. Indeed, these interventions would then have the character of surgery (or drug treatment) performed on a living patient with their consent. Obtaining proper informed consent to premortem interventions would also strengthen the argument that these interventions are justified in order to promote the donor’s ends and not just the recipient’s. If the DDR is properly interpreted to prohibit treating living patients solely as a means to an end, premortem interventions to facilitate donation for which consent has been attained would not violate the DDR.

An important result that has emerged from this exchange, however, is that there remains an element of intuitive force to our original objection to premortem interventions to facilitate DCD—that we should not treat the living as though they were dead—that is not captured by the essentially Kantian interpretation of the DDR as prohibiting treating the donor solely as a means to an end, or at least not by an interpretation of this criterion that focuses on informed consent. In fact, our original article treated the possibility of premortem interventions with appropriate consent in the context of a discussion of the implications of abandoning the DDR.Footnote ¹¹ With the benefit of further reflection, I now think that this treatment was inconsistent with our own discussion of how premortem interventions risk treating the donor solely as a means to an end. However, the intuition that was driving our discussion, which still seems to me well founded, was that if informed consent was all that was required to render premortem interventions compatible with the DDR, then this would imply that, with appropriate consent, it would not violate the DDR to completely surgically expose a suitably anaesthetized patient’s organs in preparation for organ salvage once the patient had been declared dead after their heart had stopped beating. Yet surely this is just the sort of nightmarish scenario that the DDR was supposed to rule out, wherein living patients are dissected—albeit ex hypothesi, not actually killed—for the sake of procuring their organs? That is to say, even if the living were willing to consent to be treated as though they were dead, there is sufficient content to the latter characterization to call into question the ethics of doing so.

The DDR attempts to draw a strict line between the way we treat the living and the dead and to reassure the living that their interests will not be sacrificed for the sake of securing organs for transplantation.Footnote ¹² The intuition that we should maintain this distinction is not exhausted by the idea that we should always secure consent for procedures performed on living patients. There may be some procedures that it would be wrong to carry out even with consent. If we treat the living as though they were dead, we undermine a distinction that is essential both to ethical transplantation and to public support for transplantation and donation programs. Given that one of the most important features of living persons is their capacity to set their own ends, it is natural to describe these problematic interventions as treating the patient as a means. However, in doing so we must avoid the temptation to think that obtaining consent from the patient would invalidate this description.

Whether or not the relatively simple premortem medical interventions that are currently used in DCD programs to reduce the period of warm ischemia fall into this category is a further question. We argued that they did; Napier begs to differ. Apart from insisting that soliciting informed consent for these procedures would not settle the matter, I have little further to add here in relation to this particular question. However, I would observe that in answering it we must be mindful of the possibility that our intuitions may have been affected by a pernicious policy creep within medical institutions that itself is driven by the (understandable) desire to secure more and more organs for transplant.Footnote ¹³ The DDR is supposed to serve as a barrier to this process; it would be a disaster if our interpretation of the DDR itself should be affected by it.