Two (Complementary) Approaches
Bioethicists currently working in the United Kingdom
demonstrate—as indeed do the very best of their colleagues
internationally—an eagerness to engage in two extremely different
but complementary approaches to their subject. First, they readily
become involved in discussions of concrete bioethical issues that are
of great concern to the medical profession, legislators, and the wider
U.K. public. Second, perhaps because they recognize the importance of
the “first-order” questions that exercise the public
imagination, they show themselves commendably willing to turn their
critical gaze onto the very methods and frameworks they use to address
those questions. The first approach we can properly call
“bioethical,” whereas we might term the second approach
“metabioethical.”
As an example of the sort of first-order issue on which U.K.
bioethicists have of late had much to say, I will, in what follows,
start by focusing on a cluster of concerns around commercial live-organ
donation. I do so for two reasons. First, recent work on this topic (in
the shape of a slew of articles and at least one important book) has
been of very high quality, showcasing the rigor and incisiveness of
U.K. bioethics and addressing a very real crisis in the numbers of
organs available for transplant. Second, the views typically expressed
on commercial donation in this work throw vividly into relief the
divide between the opinions of academic bioethicists, on the one hand,
and those of the man, woman, medical professional, and legislator in
the street, on the other. It is quite possibly the existence of this
divide that has motivated the sort of metabioethical work I survey
later in this article. That is, if the methods of bioethics frequently
produce what amount to highly counterintuitive results, it is
appropriate that bioethicists should occasionally step back and ask
whether those methods can really be justified—especially if
bioethical work is to make its proper impact on public debate.
A Crisis in Organ Donation: The
Ethicists' Response
It is small wonder that bioethicists in the United Kingdom have
turned their attention to the question of organ donation. According to
figures cited by Charles Erin and John Harris, as of late
November 2002, it was the case that 667 people had donated organs,
2,055 had received transplants, and a staggering 5,615 people were
still awaiting transplants.1
Erin CA,
Harris J. An ethical market in human organs. Journal of Medical
Ethics 2003;29:137.
The numbers of people listed on the
National Health Service's Organ Donor Register are pitifully
small, despite the fact that surveys repeatedly show around 70% of the
U.K. public declaring that they would be willing to donate organs after
their deaths.
2 Chouhan P, Draper H.
Modified mandated choice for organ procurement. Journal of Medical
Ethics 2003;29:157.
Clearly, many more organs need to be
available for transplant if we are to avoid large numbers of people
dying and the expense and inconvenience of procedures such as dialysis.
The crucial question is, clearly, what course of action will both
increase the number of available organs and be ethically acceptable?
The prospects for a system of presumed consent for postmortem donation
have, unfortunately, been all but destroyed by an organ-retention
scandal involving Alder Hey Children's Hospital in Liverpool, in
which organs of dead children were retained for research without the
consent of the parents. Whether those scandals ought to have had this
effect on public opinion is an important and largely neglected
question, though it has been addressed, and answered firmly in the
negative, by at least two U.K. bioethicists.3
English V, Sommerville A. Presumed consent for
transplantation: a dead issue after Alder Hey? Journal of Medical
Ethics 2003;29:147–52.
What is more, public opinion in the United Kingdom is overwhelmingly
opposed, on ethical grounds, to commercial dealing in human organs and
tissues, and the practice is outlawed under the Human Organ Transplants
Act 1989 (HOTA).4
Human Organ Transplants
Act 1989. Available at:
http://users.argonet.co.uk/body/uklaw.html.
A
number of objections are raised to the practice, identifying various
harms that would supposedly accompany it. A number of U.K. bioethicists
have treated these objections with some suspicion, both because of the
way in which they are raised and on the grounds of their content. Janet
Radcliffe-Richards, for instance, takes the former tack. She holds
that, whereas opponents of commercial donation tend to insist that it
will lead to coercion, exploitation, reduced donation, and so on, it
actually seems that they are opposed to the practice not on the basis
of these allegedly likely outcomes but because they think it wrong
“in itself.”
5 Radcliffe-Richards J. Commentary: an ethical market in
human organs. Journal of Medical Ethics
2003;29:139–40.
Her reasons for this belief are
twofold.
First, she notes that when the practice initially came to light in
the United Kingdom, its condemnation followed immediately, without any
weighing of pros and cons or careful analysis of the likely outcomes.
Most significantly, the huge benefits that might attend its acceptance
(namely, a potentially large increase in the numbers of organs
available for transplant) were never even mentioned, let alone
considered, by those who saw fit to condemn it. The implication seems
to be that this would be odd if the opponents of the practice were
genuinely utilizing a risk-benefit model of ethical reasoning, rather
than merely representing themselves as doing so.
Second, Radcliffe-Richards points out that, whenever a
consequentialist objection to a market in human organs is defeated (an
objection that makes mention of a harm to be expected from the
existence of such a market), opponents instantly produce another to
take its place. But this is not what we would expect if the vanquished
objection were the real reason for the opponents'
condemnation. Radcliffe-Richards adds to these two points the
observation that
If you regard organ selling as wrong in itself you may well
embrace all suggestions of dangers and difficulties with relief,
because they seem to strengthen the political case for prohibition.6
See note 5, Radcliffe-Richards
2003:148.
Radcliffe-Richards does not address the possibility that a commercial
market in human organs might actually be “wrong in
itself,” though it can admittedly be hard to see how such a claim
might be supported. And if it actually is the case that those who
believe such a market would be intrinsically wrong only ever deploy
arguments pointing instead to its supposedly harmful outcomes, it is
tempting to think that they too find it hard to formulate adequate
justifications for their real beliefs. It might, on the other hand,
simply be that they feel their actual reasons, although sufficient to
establish the unethical nature of a commercial market, would be
ineffective as a means to ensuring prohibition.
And what of the common objections to live commercial donation? Are
they really so easily defeated as Radcliffe-Richards seems to think?
The strength of those most commonly used is assessed in a chapter of
Stephen Wilkinson's book, Bodies for Sale: Ethics and
Exploitation in the Human Body Trade.7
Wilkinson S. Bodies for Sale: Ethics and Exploitation
in the Human Body Trade. London: Routledge; 2003.
Whether
or not one agrees with Wilkinson's conclusions, his book
manifestly exemplifies all that is good in current U.K. bioethics: it
is written with admirable clarity, precisely and skillfully argued,
and, although relentlessly rational, never loses sight of the sensitive
and frequently emotive nature of its subject matter.
The chief objections to organ sales that Wilkinson considers are that
such sales would cause (excessive) harm to donors, that permitting them
would have the socially adverse effect of reducing the amount of
altruism in the world, that any consent to organ sales on the part of
vendors would be invalid, that organ vendors' donations would
inevitably be coerced, and that many organ vendors would be subject to
exploitation. Here, I report Wilkinson's response to the first two
objections. I also refer briefly to his response to the last objection
(that a commercial market in human organs would be exploitative) a
little later.
Wilkinson is dismissive of the claim that organ sales ought to be
prohibited on the grounds that permitting them would bring harm to
donors. First of all, there is the straightforwardly empirical fact
that kidney removal, for instance, is, if performed in proper
conditions, actually not all that dangerous, carrying a perioperative
mortality rate of about 0.03%.8
See note
7, Wilkinson 2003:107.
Furthermore, if we wish not to expose
potential commercial donors to harm, then the very last thing we ought
to do is to prohibit the practice:
the best way of avoiding harm to organ donors is not to
criminalise and drive sale underground but rather to accept and
regulate it. This style of argument is familiar from other contexts,
notably debates about the legalisation of abortion, drugs, and
prostitution.9
See note 7, Wilkinson
2003:108.
What seems to me the strongest of Wilkinson's responses to the
“harm” objection is this: if performed under proper
conditions (which, as the previous point makes clear, can only be
guaranteed if the practice is legal), commercial live donation would
obviously be no more harmful than noncommercial live donation. The fact
that organs are paid for in no way increases the already very small
risk associated with live donation.
However, Wilkinson acknowledges the possibility that those who deploy
the “harm” objection might do so because they adhere to the
principle that it is wrong to pay people to endanger
themselves. But can this principle be justified? What is certain is
that, if it were justified, it would show that professions
such as firefighting and motor racing (both of which carry greater
risks than live organ donation) are unethical. And this is a result to
which we presumably do not wish to commit ourselves.
The subject of the “harm” objections outlined by
Wilkinson so far is personal harm. He goes on to consider a supposed
social harm arising from permitting organ sales. The claim is that
permitting such sales would reduce the amount of altruism in the world.
Because altruism is a good, the argument runs, we ought not to do
anything that will reduce it.
Wilkinson deals with this objection by casting doubt first on the
notion that altruism is always a good, and second on the claim that
allowing organ sales would lead to a decline in altruism. First, it is
not as if there is already in place a substantial practice of
altruistic donation that would be adversely affected by the existence
of a commercial market. Indeed, if there were, there would be no
need for a commercial market. Second, Wilkinson points out
that the existence of a commercial market could plausibly
increase the number of altruistic acts performed. For example,
HOTA was introduced in the United Kingdom following the discovery that
a British doctor had arranged, for the benefit of his private patients,
the sale of kidneys by Turkish peasants. Now, as Wilkinson points out:
One of the less well-known facts of the case is that one of the
Turkish organ vendors was offering his kidney for sale in order to be
able to purchase lifesaving medication for his daughter, who was
suffering from tuberculosis. Since this man had “no employment
and no other saleable assets”, stopping him from selling his
kidney prevented an act of altruism and deprived his daughter of her
best chance of being saved.10
See note 7,
Wilkinson 2003:112.
It is not clear that the only altruism-related concerns about
commercial donation are those addressed by Wilkinson, however. That is,
supposedly as an example of the sort of “decrease in
altruism” objection leveled at commercial donation, he quotes the
following, from an article by J. Cameron and R. Hoffenberg in
Kidney International:
Organs are priceless and should be donated for altruistic
reasons … provision of an organ should be seen as a donation or
gift … freely given in the spirit of altruism.11
See note 7, Wilkinson
2003:109.
However, this seems to me not to be an instance of the sort of
“altruism maximizing” argument that Wilkinson considers and
rejects. Instead, it is an argument that (a) says something about the
sorts of things human organs are (things that are priceless, and so
things to which it is not appropriate to assign a monetary value), and
(b) says that the only sort of donation that, as it were, fits the sort
of things that organs are is one motivated by altruism. So, the claim
is not that we ought to bring it about that there is more altruism in
the world, or that we ought not to bring it about that there is less.
Rather, the claim is that, if we are to donate organs, we ought only to
donate them from the motive of altruism. Now, whether this argument is
sound is not my concern here: my point is simply that it is not an
argument of the sort that Wilkinson apparently takes it be. (It might
be pointed out, though, that it ignores the possibility that one might
seek monetary gain in order to carry out an act of altruism,
as did the Turkish kidney vendor mentioned earlier.)
Now, Wilkinson of course admits that not all possible arrangements
for the sale of organs from live donors are ethically defensible. Those
that genuinely involve coercion or lack of consent, for instance, are
straightforwardly wrong. But he, and others who broadly agree with him,
think that there is nothing in principle wrong with the idea
of a commercial market in human organs: what is needed is a set of
proper regulations and procedures to ensure that such a market avoids
ethically unacceptable practices.
Regulating Organ Sales and Avoiding
Exploitation
In their paper “An Ethical Market in Human Organs,”12
See note 1, Erin, Harris 2003.
Charles A. Erin and John Harris proposed a number of such regulations.
Essentially, their ethical market would have three features. First, it
would be confined to a self-governing geopolitical area, and only
citizens within that area could buy and sell in the market. As a
result, donors would be contributing, and would know themselves to be
contributing, to a system that would potentially benefit them, their
families, and their friends. Second, there would be only one purchaser
(an agency such as the National Health Service in the United Kingdom),
and that purchaser would ensure fair distribution. The purchaser would,
because of the market's first feature, not exploit low-income
countries, and it would ensure the proper screening of all donated
organs. Third, “reasonable compensation” would be given to
donors. Interestingly, bearing in mind Wilkinson's points about
altruism, Erin and Harris say that “altruism … would be
undiminished by sale. We do not after all regard medicine as any the
less a caring profession because doctors are paid.”
13 See note 1, Erin, Harris
2003:138.
Commenting on Erin and Harris's proposal,14
See note 5, Radcliffe-Richards 2003.
Janet
Radcliffe-Richards notes that it starts from the assumption (which, she
thinks, is correct) that banning organ sales is “presumptively
bad.” It is presumptively bad because it will lead to many deaths
and much suffering. The burden of proof then falls on those who object
to organ sales to show why allowing them would be worse than banning
them.
She then argues that, if a total ban on sales is
presumptively bad, so too must be any restriction of sales.
That is, the burden of proof will again fall on those who want to
introduce restrictions, to show why those restrictions are justified.
And because Erin and Harris patently do introduce restrictions,
Radcliffe-Richards takes it upon herself to raise questions about the
justification for doing so.
First, she asks why Erin and Harris insist that there should be only
one purchaser of organs per market. She acknowledges that the aim of
this restriction is equity of distribution, which is of course
desirable. However, she writes:
in countries where there is no such service, or where it is
generally accepted … [as in the United Kingdom]
… that people who find the public service inadequate to their
needs should be allowed to go outside it, is there any justification
for providing special restrictions on the freedom to make private
arrangements to find a kidney?
Second, Radcliffe-Richards questions why the proposed market should
be restricted to one self-governing geopolitical area. She concedes
that a one-way traffic of organs from the poor to the rich would be
undesirable but maintains that its undesirability is not sufficient to
establish whether on balance (that is, when all the costs and benefits
have been weighed) it ought to be allowed. Additionally, she points out
that lots of existing trade between poor and rich countries is
similarly undesirable, but that it would presumably be still more
undesirable for poorer countries if it were to stop altogether.
Radcliffe-Richards's point mirrors one made by Wilkinson about the
claim that an unrestricted commercial market in organs would inevitably
prove exploitative of the world's poor:
it seems at best ironic and, more likely, patently unfair to
exclude from an organ trading system the very people who most need the
money it could provide…. How will a poor person who is willing
to sell a kidney for $2,000 to buy medical treatment for her daughter
feel when she's told that (to protect her from exploitation)
she isn't allowed to sell—while, at the same time,
a relatively rich neighbor is allowed to sell her kidney for $100,000
to fund home improvements?15
See note 7,
Wilkinson 2003:131.
Radcliffe-Richards's commentary ends by admitting that there may
be answers to the questions she raises and that Erin and Harris's
proposal might include restrictions solely “to give it greater
chance of political success.”16
See
note 5, Radcliffe-Richards 2003:140.
In a reply, Erin and
Harris confirm that this is precisely the reason that their proposal
takes the form it does. That is, they insist that, by meeting the most
common objections, even when those objections are unsound, a proposal
stands a greater chance of being accepted and consequently can start to
deliver the benefits that will result from an increased number of
organs available for transplant. Erin and Harris's proposal is,
therefore, thoroughly pragmatic: it recognizes that greater benefits
can sometimes accrue from pandering to fallacious objections than from
sticking to one's philosophical guns.
In fairness to Radcliffe-Richards, it is understandable that she
should have failed to notice this feature of Erin and Harris's
proposal. After all, their pragmatic intent is not stated in the
original paper: a paper that, furthermore, bears the title “An
Ethical Market in Human Organs” rather than “A
Market in Human Organs that Is Likely to Be Thought Ethical by
Legislators” or something of the sort. What is more, Erin and
Harris state the following constraint on organ sales:
To meet legitimate ethical and regulatory concerns,
any commercial scheme must have built into it safeguards against
wrongful exploitation…. [emphasis added]17
See note 1, Erin, Harris
2003:137.
They then seem to present their proposal as adhering to this
constraint. It is understandable, then, that the reader should take the
proposal to be meeting legitimate (rather than unsound)
ethical concerns and to be safeguarding against genuinely
wrongful exploitation.
Metabioethics in the United Kingdom: Is
Bioethics Just Too Rational?
Despite small disagreements, however, we can see that the U.K.
bioethicists considered here are overwhelmingly of the opinion that an
ethical market in human organs is possible. Even so, as
Radcliffe-Richards notes, “most professional and political
opinion is still against [organ sales].”18
See note 5, Radcliffe-Richards
2003:139.
She might have added, quite correctly, that most
public opinion is against organ sales too. This gives rise to
some important questions. Why do the methods of bioethics tend so
frequently to deliver results that are at variance with public opinion?
Does this mean there is something wrong with those methods? Or does it
mean there is something wrong with the way that medical professionals,
politicians, and the general public typically arrive at ethical
conclusions?
These are the sorts of “metabioethical” questions that
U.K. bioethicists frequently ask themselves. Recently, a good deal of
such metabioethical work has been showcased in a volume entitled
Scratching the Surface of Bioethics.19
Häyry M, Takala T, eds. Scratching the Surface of
Bioethics. Amsterdam: Rodopi; 2003.
The book contains
examinations of the American principlist approach to bioethics,
20 Herissone-Kelly P. The principlist approach
to bioethics. In: Häyry M, Takala T, eds. Scratching the
Surface of Bioethics. Amsterdam: Rodopi; 2003:65–77; Erin
CA. Who needs “the Four Principles”? In: Häyry M,
Takala T, eds. Scratching the Surface of Bioethics. Amsterdam:
Rodopi; 2003:79–89.
of the roles best played by both
philosophy and sociology in bioethics,
21 Levitt M. Better together? sociological and philosophical
perspectives on bioethics. In: Häyry M, Takala T, eds.
Scratching the Surface of Bioethics. Amsterdam: Rodopi;
2003:19–27.
and of the relationship between empirical
and nonempirical approaches to the discipline.
22 Bennet R, Cribb A. The relevance of empirical research to
bioethics: reviewing the debate. In: Häyry M, Takala T, eds.
Scratching the Surface of Bioethics. Amsterdam: Rodopi;
2003:9–18.
Here, I focus on those papers that most
readily address the question of how bioethics results in what seem to
many to be counterintuitive results, and whether, because of this, its
methods can be justified. Specifically, the papers in question address
the issue of the proper role of reason in bioethics, given that critics
frequently hold that the strange conclusions reached by bioethicists
result from an inappropriate reliance on reason as a guide in ethical
matters. This opinion is succinctly stated in the contribution from
Tuija Takala, a Finnish philosopher living and working in the United Kingdom:
The willingness and ability to analyze rationally the core of
ethical issues is regarded as proof of one's inhumane and
insensitive nature—and of one's inability to understand
ethical matters.23
Takala T. The role of
sense and sensibility in bioethics. In: Häyry M, Takala T, eds.
Scratching the Surface of Bioethics. Amsterdam: Rodopi;
2003:29–34.
According to those who level such criticisms at bioethicists, what is
needed in bioethics is a nonrational, emotional approach. However,
Takala contends that this is as untenable as the claim that bioethics
should be purely rational: both reason (sense) and emotion
(sensibility) have their roles to play, and a bioethics that rejects
either will be all the poorer for that rejection.
The main problem with a purely feeling-based approach to bioethical
problems, according to Takala, is that it inevitably ends up giving
weight to some feelings at the expense of others and that this is
unjustifiable by the approach's own lights. To illustrate this
point, let us consider the case of organ sales again. The thought of
people selling organs evokes feelings of disgust in many. Then again,
the thought of thousands of people dying for want of transplant organs
equally evokes disgust in others. Inevitably more weight will be given
to one of these feelings of disgust over the other. But where is the
justification for this? It certainly cannot come from within the
emotion-based approach itself. As Takala says:
Emotions and convictions are not truly considered in models
that include some feelings and reject others, or argue for some
convictions at the expense of others…. Therefore, the only way
to take all emotions and convictions equally seriously is to take none
of them too seriously.24
See note 23,
Takala 2003:31.
This last point is similar to one made in a paper by Harry Lesser in
the same volume. Lesser argues that the chief problem with purely
emotion-based approaches, such as that put forward by Anne Maclean in
her book The Elimination of Morality,25
Maclean A. The Elimination of Morality: Reflections on
Utilitarianism and Bioethics. London: Routledge; 1993.
is
that they tend to look at our actual ethical practices, and at the
responses that are
as a matter of fact elicited by various
bioethical problems. The difficulty with this, of course, is that
“there appears to be no way of saying that ‘this is what we
do’ settles the matter when what we do is nice and not when it is
nasty.”
26 Lesser H. Anne
Maclean's criticism of bioethics. In: Häyry M, Takala T, eds.
Scratching the Surface of Bioethics. Amsterdam: Rodopi;
2003:57–63.
Takala, however, is just as dismissive of purely reason-based
approaches, with which she sees two problems. First, ethics is patently
concerned with issues of human well-being and happiness, and reason
alone cannot account for these. Second, there is, she maintains,
“no one universal reason to be consulted to begin
with.”27
See note 23, Takala
2003:31.
What she means by the first of these claims is fairly
self-evident. But what does she mean by the second? The claim seems to
be that reason can, as experience shows us, frequently operate in
contrary directions. The thought here appears to be that there is
seldom any one “rational thing to do.”
28 See note 23, Takala 2003:32.
Takala's conclusion, as mentioned previously, is that both
reason and emotion ought to be exercised in our approach to bioethical
questions. And when, as will frequently happen, we cannot decide
whose reason and whose feelings ought to guide us, we
will simply have to find workable compromises. Given the nature of
reason and emotion, a true consensus will never be achievable.
Therefore, “the philosophical bioethicist's main task is to
try to formulate minimal regulations that would take everyone's
senses and sensibilities into account,”29
See note 23, Takala 2003:33.
at least as far as
possible. It is just this sort of pragmatic and realistic approach
that, we can assume, underlies Erin and Harris's suggested
regulations for a market in human organs.
The emotion-based approach to the sorts of questions that bioethics
raises is, as one would suspect, hugely suspicious of moral theory. For
this reason, it is often explicitly characterized as
“antitheoretical.” A spirited defense of the importance of
moral theory to bioethics is, however, offered by Eve Garrard and
Stephen Wilkinson in their paper “Does Bioethics Need Moral
Theory?”.30
Garrard E, Wilkinson S.
Does bioethics need moral theory? In: Häyry M, Takala T, eds.
Scratching the Surface of Bioethics. Amsterdam: Rodopi;
2003:35–45.
Those in the antitheory camp frequently make two criticisms of
normative moral theory: first, that theory offers no real guidance
about how we ought to act, and so is practically useless; and second,
that the different varieties of theory (most notably, consequentialist
and deontological theories) tend to offer indistinguishable conclusions
in real-life situations. Garrard and Wilkinson, with considerable
analytical skill, rebut each criticism individually but also point out
that they are mutually incompatible: “the claim that theory is
not action-guiding is not really consistent with the claim that the
different theories guide action in the same direction.”31
See note 30, Garrard, Wilkinson
2003:36.
That done, they move on to consider whether the
antitheorist is right to claim that metaethics—“theories
that concern themselves with the meaning and status of moral
utterances, and with the existence and nature of moral properties and
facts”
32 See note 30, Garrard,
Wilkinson 2003:39.
—is of no relevance to bioethics. This
antitheoretical position, Garrard and Wilkinson think, is also mistaken
because, as they show, several well-known metaethical views have very
real implications for action. Relativism, for instance (the view that
the truth or falsity of a given moral judgment always depends on the
culture of the person who makes it), in addition to being
philosophically questionable,
commits us, as bioethicists, to being deeply conservative, or
at least conservative with respect to the present conventions and
practices of our own society. This is because we can “read
off” the answers to moral questions from public opinion and
because (since, on this view, “might is right”) there
appears not to be a perspective from which to criticize prevailing
views on moral matters.33
See note 30,
Garrard, Wilkinson 2003:40.
This is an especially important point, given that the sort of
antitheoretical stance championed by Anne Maclean—a stance that
regards our actual practices as authoritative in matters of
ethics—tends, as Harry Lesser notes, to slide into just this sort
of cultural relativism.34
See note 26,
Lesser 2003:60.
If Lesser is right, and if we want to avoid
the impact of such relativism on our answers to bioethical questions
and on the very way in which we do bioethics, then we clearly ought to
give antitheory a wide berth.
In conclusion, it seems worth reemphasizing the plausibility of the
claim that any healthy bioethical “scene” must not only
engage in the important first-order bioethical questions of the
day—the questions that exercise medical professionals,
legislators, and the general public. It must also frequently turn its
attention back on itself and critically examine its own methods. This
being the case, and given the evidence available, it would appear that
bioethics in the United Kingdom is, happily, in the best of health.
