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Presumed consent proposed in Colorado

Colorado lawmakers are considering a presumed consent law. Anyone who gets a state-issued ID (any adult, I presume) would be presumed to have consented to be an organ donor unless he did something special on the paperwork. This is sort of like Facebook setting your default settings to something objectionable; you have to dig through and find the place to uncheck the box that says, "Oh, please, let everyone and his uncle grab my personal information whenever one of my friends plays Farmville."

Except in this case, the box you have to find to uncheck says that you've consented to be an organ donor.

I believe (but have not done enough research to be sure) that if this passes it would make Colorado the first venue in the United States to have a presumed consent law.

Now all they need is to put that together with the vulture squad pilot program from Manhattan (New York doesn't have presumed consent), and they'll be all set.

I don't know what chances the bill has to pass. Let's hope slim.

HT: Frank Beckwith

Comments (13)

As I said on Facebook, Larry Niven's famous story "The Jigsaw Man" is looking more and more plausible. Niven wrote several works considering the question of a society of older people who want to live longer and how willing they would be to prey on their fellows to obtain transplant material. As he said elsewhere, the internal logic seems so rigid. Why shouldn't a condemned murderer, say, be "disassembled" and thereby save more lives than he took? And once this is accepted, wouldn't the death penalty then be applied to more and more crimes so as to continually increase the pool of donors?
Now that we have thoroughly lost the sense of human exceptionalism and the idea of imago dei which drives it, I think we will see more initiatives like this. If people are just animated bags of meat, then why shouldn't we?

Do we get to pick the body parts?
Next, cash payments to surviving family members. Just don't use the word bounty.
Why should the black market corner all the action?

GKC,

There was a really bad sci-fi movie last year (at least according to the critics, I didn't see it nor do I plan to see it) about a future in which organs are leased to individuals. The problem is that folks don't want to give up their organs once the lease runs out so then the company has to come after them for the organs -- the movie is about a couple of repo men who chase down and kill the folks who have failed to make their proper payments and so their organs must be repossessed.

Lydia,

I am fascinated by your general squeamishness when it comes to organ donation. To a reformed liberal like me (in other words, go easy on me in case I'm missing something obvious) I don't understand the objection -- not necessarily to this law, which I can understand gives the State too much power, but your objection to organ donation in general. Assuming we keep donation voluntary (like blood donation) what's wrong from a medical ethics perspective with allowing folks to donate their organs? Or am I wrong about your general objection to the practice?

Well, Jeff, that's a big topic, so let me try to answer fairly briefly.

First, I hope that you have noticed that most (all?) of my posts on this topic at W4 involve saying that this or that aspect of organ donation is bad, impossible to keep reliably in check, or something like that. I don't believe I've put up at W4 any main post saying that vital organ donation is intrinsically wrong, though readers may have (rightly) inferred that I think this, and I think I may have said as much in a comments thread.

Since I think there is really strong evidence that organ donation is being carried out in a creepy and bad way even in developed countries with (supposedly) safeguards in place, and only slightly less evidence that it is _always_ going to be difficult reliably to detect whole-brain death (if such a thing exists), hence, there will _always_ be ethical problems with organ donation in practice, I don't think I usually need to argue that it is intrinsically wrong. Hence I usually don't.

What I would like is for readers of my posts on this subject to see the enormous problems that bedevil organ donation and the intractability of those problems. I would like them, too, to become justly concerned about the reckless push for things like presumed consent and for various ways to obtain more organs and to ask themselves if this is worth it, where we are going, and why we apparently cannot trust our government in this area. If I can accomplish that--and I think my total posts on this subject bring a lot of evidence to bear on these theses--it won't really be necessary for me to argue that it's intrinsically wrong. People will decide that the whole process is way too problematic and risky and will tear up their donor cards and lobby against further encroachments like presumed consent--and this really is the "next wave" from the pro-donation crowd--good and hard.

In an old post at the now-defunct Right Reason I argued that vital organ donation is akin to cannibalism and hence is intrinsically wrong, but I have not reposted that.

Here I think that there is a pretty strong parallel to in vitro fertilization. I think that if one looks at all the things that are happening with IVF, all the ghoulish things like pre-selection for desired traits with destruction of the undesired embryos, the use of "extra" embryos for research, third-world surrogacy arrangements, the danger to young women's health from hyper-ovulation for money for egg buyers, and on and on, one may _start_ by saying that these are "abuses" that need to be curbed. But eventually, as one realizes more and more how many of such "abuses" there are and how widespread they are, how deeply woven into the presumptions of IVF, one may begin to ask oneself if there is something more going on here. In the end, I believe one comes back to realizing that in IVF the child is _intrinsically_ commodified, even when loving parents are involved who do not consciously intend to do that and who try to behave fully ethically and to recognize the humanity of all their embryos. But the child is still being made, not begotten, and this really is the source of all of those "abuses."

I think something similar is true of organ donation. Once we start thinking about all of these problems that arise from people sitting around waiting for other people to die so that they can use their vital organs for someone else, I think some people are going to start making a connection and seeing that despite its wide acceptance even among conservatives, vital organ donation involves commodifying the dead human body and treating a death as an opportunity for someone else.

I should say that I really think I've traveled this intellectual path with both IVF and with organ donation. I didn't used to think IVF was intrinsically wrong either.

In an old post at the now-defunct Right Reason I argued that vital organ donation is akin to cannibalism and hence is intrinsically wrong, but I have not reposted that.

You should. I remember that article as really opening my eyes and making me look at organ donation in a new light.

Lydia,

I appreciate the thoughtful response and I'm glad I got you to open up a bit on the subject. I'm not ready to rip up my organ donation card yet (actually change my driver's license, but you get the idea) but you have certainly given me food for thought. One big difference I can think of between IVF and organ donation is that we all have to die but not every infertile couple HAS to give birth (they can adopt for example). What I mean by that is when you say, "...all of these problems that arise from people sitting around waiting for other people to die so that they can use their vital organs for someone else" I think you exaggerate the problems given that death is universal. Now it is true that death in such a way that we can get usable organs is NOT universal and so the pool of potential organs is relatively small, hence the push to expand the pool, and the problems associated with that push. But theoretically, the two problems (IVF and organ donation) are different in kind.

But let's shift the subject for a moment -- what about organ donation from one live person to another (e.g. donating a kidney)? Do you have the same moral qualms?

Jeff, a couple of comments to your first part. First, I wasn't trying to line up IVF and organ donation as if each aspect of one were comparable to each aspect of the other. Rather, I was talking about how in each case I believe that seeing the continual, systemic problems with their use can lead people to wonder if there is something wrong with them at root, and how what is wrong with both at their root has to do with the commodifying of humans. I would say, though, that "everybody has to die" is not analogous to whether or not someone has to have a baby. If one were going to make a parallel to having a child by IVF, it would be having a working organ by way of organ transplant. So "not everybody has to have a baby" is analogous to "not everybody who has organ failure has to get a transplant." I'm sorry to have to say this, but dying of organ failure is one natural way to die, just as being infertile is one of the very sad natural misfortunes that happen to people. If a technology is wrong to use, then people have no entitlement to it.

I would also add that my statement that people are "sitting around waiting for other people to die so that they can use their vital organs" is just a factual statement concerning people on organ transplants lists and, even more problematically, about the procurement people who hover about and come in as quickly as possible to try to get relatives' permission. I don't understand how it is an exaggeration. Of course I didn't mean that everybody is sitting around doing this, since not everybody is waiting for an organ. But if someone is "waiting for a heart," he is waiting for someone else to die. That's just the way it is. That's the nature of the thing. And the employees of the organ companies are waiting for the person to die as well. In the case of the Pittsburgh Protocol, they literally set the whole thing up in advance, take the person off life support, wait for his breathing and heart to stop, and then time it for whatever small number of minutes they've decided on (two to five) before going in for the organs. In the normal brain death case, they wait about for the doctor to declare total brain death and for the relatives to consent, and then they go in for the organs. "Waiting around for someone to die so you can get his organs" is just an accurate statement, at more than one level of the process.

By the way, ponder sometime what people who are worried about an "organ shortage" and trying to find ways to increase the "supply" say: "Thousands and thousands of usable organs are buried each year." Think about that. Burial. The burial of the dead. Christian burial, for example. One of the corporal works of mercy. In the mind of the person fretting about the organ shortage, the body of some beloved relative, reverently buried, is simply a set of _parts_ which are being wasted (and yes, they use the word "waste") by burial. The complete dehumanizing of the human here should be shocking.

On your question about live kidney donation, at present I am not convinced that it is intrinsically wrong. I might change my mind on that. But if it is ethical, it is so only under extremely strict conditions which are not being properly carried out, such as "nothing even approaching sale no way nohow don't play no games with procurement fees." This might mean having to restrict it to relative-to-relative. I think it definitely should mean in policy that we have laws against traveling abroad for kidneys. WJS has posted a lot on this horrible supposedly humorous book _Larry's Kidney_ about buying a kidney in China. And then there is the exploitation of third-worlders by paying them for a kidney. It's very important that the health risks of donating a kidney be fully understood by the donor and that he be giving it sheerly out of love and also that he is not being manipulated in any way.

From a policy perspective, one problem with allowing live-kidney donation is that it makes it more difficult to restrict it and not do dead-donor kidney donation. (The vulture squads who show up to your house in Manhattan are trying to get kidneys from the family member who just dropped dead, because kidneys are a little more tolerant of not being immediately oxygenated than are other vital organs.) And dead-donor, I believe, is simply wrong. But I suspect that we could craft and enforce legislation to that effect. We never will, though.

The only sense in which we're moving towards live donation is the horrible sense of increasing the "supply" by taking organs from the comatose.

Lydia,

Like Todd said earlier, you'd be surprised how your writing can change people's minds (at least mine). For example, this simple statement stopped me short:

"So "not everybody has to have a baby" is analogous to "not everybody who has organ failure has to get a transplant." I'm sorry to have to say this, but dying of organ failure is one natural way to die, just as being infertile is one of the very sad natural misfortunes that happen to people. If a technology is wrong to use, then people have no entitlement to it."

An excellent point which I think I wanted to ignore in my love of technology and the wonders of modern medicine. This also stopped me short:

"By the way, ponder sometime what people who are worried about an "organ shortage" and trying to find ways to increase the "supply" say: "Thousands and thousands of usable organs are buried each year." Think about that. Burial. The burial of the dead. Christian burial, for example. One of the corporal works of mercy. In the mind of the person fretting about the organ shortage, the body of some beloved relative, reverently buried, is simply a set of _parts_ which are being wasted (and yes, they use the word "waste") by burial. The complete dehumanizing of the human here should be shocking."

Maybe it's time to pull out my copy of Mary Shelly's classic...

This is the whole libertarian paternalism "nudge" idea in action.

But if someone is "waiting for a heart," he is waiting for someone else to die. That's just the way it is.

I'm going to channel Judge Richard Posner here: Someone waiting for an inheritance is likewise waiting for someone else to die, which means that there is an economic value to that person's death. Doesn't organ donation merely increase the value of a person's death? Or to put it differently, why is organ donation more objectionable than inheritance?

Jeff, as far as I can tell I have the same view as Lydia on transplants. I don't want to say they are intrinsically bad, but I happen to think the reason they are seen as more or less intrinsically good is because we don't really know or think about what goes on behind the scenes to make it happen.

If you haven't discovered yet the wonderful Christian theological ethicist Gilbert Meilaender, you should read him on this and anything else. I have read all his books except his latest and every article I can find of his, and believe me when I say he never "phones it in." Forget ethics class and get all his books. You'll save a lot of time and money and learn more. Everything he writes is accessible to the layman and has a deeply Christian character and outlook to it, so you'll learn a lot about life even if the topic isn't ethics. He is an author that few evangelicals seem to read, and the only reason I can find is that he is a Lutheran. Agree or not, he should be read by all interested in such topics.

Also, Twice Dead by Margaret Lock is one of the more interesting books I've ever read on the topic.

I don't think one can know the facts of organ transplants and not come to the conclusion that at the least it simply isn't morally unproblematic. One of the worst aspects of it is that it changes the way we look the dying. People are treated differently if they have harvestable organs, and early on they are often treating their organs rather than the patient long before death, even "brain death." Also, I think organ transplants aren't nearly as successful as the curtains around all this lead us to believe. This was all made possible by the advent of immunosuppressant anti-rejection medications in the 70's, and after transplants a person is forever bouncing between rejection, infection, and secondary cancers and such.

Or to put it differently, why is organ donation more objectionable than inheritance?

Perseus, straight answer to a straight question: Because your body isn't property but your property is property. If the heirs are waiting for a death (which they shouldn't be in any event) they are waiting to inherit something that really is just stuff, something that really can be left or donated to them. In fact, the property _could_ have been morally given to them before death, and some people do do that.

The human body is more than that, even after death. In fact, your analogy proves my point: That organ donation involves thinking of the human body as *nothing more than* a thing or physical object that can be left or given to others.

I understand the commodification of the body argument. I was focusing on the perverse incentive angle. Coincidentally, I just received my driver's license renewal with the organ donor option prominently displayed on the form (nudge nudge!).

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