Deny Organs to Non-Donors

There are many mechanisms by which this policy could be implemented.  The one common thread is that those hoping to receive organs would be divided into those registered as donors, and those who are non-donors.  Potential recipients who are non-donors would only receive an organ if all requests by donors for such an organ are filled.  For example, if there is a scarcity of donated kidneys with the B serotype, organ donors requiring a B kidney would all receive kidneys before any non-donors receive them.  The existing metrics for deciding priority among recipients can still be applied within these lists – among both donors and non-donors, individuals could be ranked on who receives an organ first based on who has been on the waiting list longer, or who has more priority based on life expectancy; this policy simply adds the caveat that non-donors only access organs once all donors for their particular organ are satisfied.  What defines a “donor” could vary; it could be that they must have been a donor for a certain number of years, or that they must have been a donor prior to needing a transplant, or even a pledge to become a donor henceforth (and indeed, even if they are terminally ill and for other reasons do not recover, some of their organs may still be usable).  Finally this policy need not preclude private donations or swaps of organs, and instead can simply be applied to the public system.

The controversial part of this plan is how the status of “donor” is determined.  Each standard that could be used has massive, and sometimes monstrous, negative ramifications.  If the requirement is that recipients be donors for a certain number of years beforehand, then people who have been donors for a substantial but still inadequate time are being perversely punished simply for not having been doing their civic duty long enough (see also “past decision they cannot now undo” point below).  If the standard is simply that they must have been a donor for any amount of time, however small, prior to needing the organ, this perversely encourages patients to hide their need for an organ long enough for them to register as donors and then collect their organ; any attempt to solve this would require doctors to report on their patients’ need for organs, eroding patient privacy and turning the doctor-patient relationship adversarial.  The last of the proposed standards, that the recipient only need to sign up to be a donor in the future, causes all the alleged benefits of this to policy evaporate; the average person will not sign up to become a donor, as they know that they can always sign up later in the event that they need an organ.  This plan only gets any benefit whatsoever if healthy people are signing up to be donors as a cautionary measure, rather than a small group of sick and likely elderly people who only sign up when they need organs.  In addition to reducing the pool of donors, such a standard which calls for people to be donors from the time of their need onwards would require a massive breach of body rights to enforce. In order to make it binding (and prevent people from de-registering as donors once they no longer need organs), the state would have to say that they can no longer withdraw their consent to be donors, which amounts to the state laying claim to their organs.

The greatest argument for this policy is also the simplest: it will save thousands, perhaps millions of lives.  A policy of prioritizing transplants for donors would massively increase the proportion of donors from the status quo of (at best) just over 30% {Confirmed Organ Donors}.  Given the number of people who die under circumstances that render many of their organs useless, the rate of donor registration must be as high as possible.  The overwhelming incentive that this policy would create to register may well eliminate the scarcity for certain organs altogether; a bonus benefit of this would mean that for organs where the scarcity was eliminated, this policy would not even need to make good on its threat of denial of organs to non-donors (and even if this happened for every organ and thus reduced the incentive to register as a donor, the number of donors could only fall as far as until there was a scarcity again, thus reviving the incentive to donate until the rate of donation reaches an equilibrium with demand.)

There are alternatives which are far more palatable means of increasing the rate of organ donation, sparing us the moral quandary associated with denying organs to patients and coercing the populace to donate.  An easy example is the opt-out organ donation system, wherein all people are organ donors by default and need to actively remove themselves from the system in order to become non-donors.  This alternative turns every person who is indifferent to organ donation, currently a non-donor, into a donor, while preserving the preferences of those with a strong commitment not to donate.

Reciprocity is a basic moral principle: afford others the good treatment you yourself would like to receive.  In most cases, it is a hypothetical; one must place oneself in the other person’s position even though one will never actually be in their place.  However, how donor and non-donors are treated when they themselves are in need is a situation in which reciprocity becomes a practical reality.  This principle of reciprocity suggests that people who are willing to donate their organs more deserve to receive organs when they need them.  And there is good reason to believe in reciprocity.  Those who would flaunt this principle are basically stating that they expect something of other people that they themselves are unwilling to do; this is a position that is either incoherent, or based on the unjustified premise that oneself is more objectively valuable than other people.  The concept of desert has a foundational role in our society.  For example, innocent people deserve not to be put in prison, even if it would be useful to frame and make an example of an innocent person in order to quell a period of civil unrest.

The principle of moral reciprocity does not require identical acts.  Potential organ recipients who do their part for society in other ways ought to be rewarded.  We do not require that citizens repay firefighters by carrying them out of burning buildings, because we recognize a certain division of the responsibility for making the world better.  A system that purports to evaluate people’s desert for life is an affront to the inherent human dignity that entitles every human being to life. (see “The right to healthcare is absolute” point below.)  Reciprocity means treating others as we would like to be treated even if they don’t do likewise for us.

Organ donation, in all its forms, saves lives.  More to the point, it saves lives with almost no loss to the donor.  One obviously has no material need for one’s organs after death, and thus it does not meaningfully inhibit bodily integrity to incentivize people to give up their organs at this time.  If one is registered as an organ donor, every attempt is still made to save their life {Organ Donation FAQ}.  The state is always more justified in demanding beneficial acts of citizens if the cost to the citizen is minimal.  This is why the state can demand that people wear seatbelts, but cannot conscript citizens for use as research subjects.  Because there is no good reason not to become an organ donor, the state ought to do everything in its power to ensure that people do so. 

Even granting the premise that people ought to donate their organs anyway, the role of the state is not to coerce people to do things they ought to do.  People ought to be polite to strangers, exercise regularly, and make good career choices, but the government rightly leaves people free to do what they want because we recognize that you know what’s good for you better than anyone else.  Moreover, the premise that people simply ought to donate their organs is highly contentious.  Many people do care deeply about what happens to them after they die; even an enthusiastic organ donor would probably prefer that their body be treated respectfully after death rather than thrown to dogs.  This concern for how one’s body is treated after death affects the psychological wellbeing of the living.  This is particularly true for members of some religions which explicitly prohibit the donation of organs.  Any government campaign that acts as if it is one’s duty to donate forces them to choose between their loyalty to their beliefs and the state.

There are many mechanisms by which this policy could be implemented.  The one common thread is that those hoping to receive organs would be divided into those registered as donors, and those who are non-donors.  Potential recipients who are non-donors would only receive an organ if all requests by donors for such an organ are filled.  For example, if there is a scarcity of donated kidneys with the B serotype, organ donors requiring a B kidney would all receive kidneys before any non-donors receive them.  The existing metrics for deciding priority among recipients can still be applied within these lists – among both donors and non-donors, individuals could be ranked on who receives an organ first based on who has been on the waiting list longer, or who has more priority based on life expectancy; this policy simply adds the caveat that non-donors only access organs once all donors for their particular organ are satisfied.  What defines a “donor” could vary; it could be that they must have been a donor for a certain number of years, or that they must have been a donor prior to needing a transplant, or even a pledge to become a donor henceforth (and indeed, even if they are terminally ill and for other reasons do not recover, some of their organs may still be usable).  Finally this policy need not preclude private donations or swaps of organs, and instead can simply be applied to the public system.

The controversial part of this plan is how the status of “donor” is determined.  Each standard that could be used has massive, and sometimes monstrous, negative ramifications.  If the requirement is that recipients be donors for a certain number of years beforehand, then people who have been donors for a substantial but still inadequate time are being perversely punished simply for not having been doing their civic duty long enough (see also “past decision they cannot now undo” point below).  If the standard is simply that they must have been a donor for any amount of time, however small, prior to needing the organ, this perversely encourages patients to hide their need for an organ long enough for them to register as donors and then collect their organ; any attempt to solve this would require doctors to report on their patients’ need for organs, eroding patient privacy and turning the doctor-patient relationship adversarial.  The last of the proposed standards, that the recipient only need to sign up to be a donor in the future, causes all the alleged benefits of this to policy evaporate; the average person will not sign up to become a donor, as they know that they can always sign up later in the event that they need an organ.  This plan only gets any benefit whatsoever if healthy people are signing up to be donors as a cautionary measure, rather than a small group of sick and likely elderly people who only sign up when they need organs.  In addition to reducing the pool of donors, such a standard which calls for people to be donors from the time of their need onwards would require a massive breach of body rights to enforce. In order to make it binding (and prevent people from de-registering as donors once they no longer need organs), the state would have to say that they can no longer withdraw their consent to be donors, which amounts to the state laying claim to their organs.

The greatest argument for this policy is also the simplest: it will save thousands, perhaps millions of lives.  A policy of prioritizing transplants for donors would massively increase the proportion of donors from the status quo of (at best) just over 30% {Confirmed Organ Donors}.  Given the number of people who die under circumstances that render many of their organs useless, the rate of donor registration must be as high as possible.  The overwhelming incentive that this policy would create to register may well eliminate the scarcity for certain organs altogether; a bonus benefit of this would mean that for organs where the scarcity was eliminated, this policy would not even need to make good on its threat of denial of organs to non-donors (and even if this happened for every organ and thus reduced the incentive to register as a donor, the number of donors could only fall as far as until there was a scarcity again, thus reviving the incentive to donate until the rate of donation reaches an equilibrium with demand.)

There are alternatives which are far more palatable means of increasing the rate of organ donation, sparing us the moral quandary associated with denying organs to patients and coercing the populace to donate.  An easy example is the opt-out organ donation system, wherein all people are organ donors by default and need to actively remove themselves from the system in order to become non-donors.  This alternative turns every person who is indifferent to organ donation, currently a non-donor, into a donor, while preserving the preferences of those with a strong commitment not to donate.

Reciprocity is a basic moral principle: afford others the good treatment you yourself would like to receive.  In most cases, it is a hypothetical; one must place oneself in the other person’s position even though one will never actually be in their place.  However, how donor and non-donors are treated when they themselves are in need is a situation in which reciprocity becomes a practical reality.  This principle of reciprocity suggests that people who are willing to donate their organs more deserve to receive organs when they need them.  And there is good reason to believe in reciprocity.  Those who would flaunt this principle are basically stating that they expect something of other people that they themselves are unwilling to do; this is a position that is either incoherent, or based on the unjustified premise that oneself is more objectively valuable than other people.  The concept of desert has a foundational role in our society.  For example, innocent people deserve not to be put in prison, even if it would be useful to frame and make an example of an innocent person in order to quell a period of civil unrest.

The principle of moral reciprocity does not require identical acts.  Potential organ recipients who do their part for society in other ways ought to be rewarded.  We do not require that citizens repay firefighters by carrying them out of burning buildings, because we recognize a certain division of the responsibility for making the world better.  A system that purports to evaluate people’s desert for life is an affront to the inherent human dignity that entitles every human being to life. (see “The right to healthcare is absolute” point below.)  Reciprocity means treating others as we would like to be treated even if they don’t do likewise for us.

Organ donation, in all its forms, saves lives.  More to the point, it saves lives with almost no loss to the donor.  One obviously has no material need for one’s organs after death, and thus it does not meaningfully inhibit bodily integrity to incentivize people to give up their organs at this time.  If one is registered as an organ donor, every attempt is still made to save their life {Organ Donation FAQ}.  The state is always more justified in demanding beneficial acts of citizens if the cost to the citizen is minimal.  This is why the state can demand that people wear seatbelts, but cannot conscript citizens for use as research subjects.  Because there is no good reason not to become an organ donor, the state ought to do everything in its power to ensure that people do so. 

Even granting the premise that people ought to donate their organs anyway, the role of the state is not to coerce people to do things they ought to do.  People ought to be polite to strangers, exercise regularly, and make good career choices, but the government rightly leaves people free to do what they want because we recognize that you know what’s good for you better than anyone else.  Moreover, the premise that people simply ought to donate their organs is highly contentious.  Many people do care deeply about what happens to them after they die; even an enthusiastic organ donor would probably prefer that their body be treated respectfully after death rather than thrown to dogs.  This concern for how one’s body is treated after death affects the psychological wellbeing of the living.  This is particularly true for members of some religions which explicitly prohibit the donation of organs.  Any government campaign that acts as if it is one’s duty to donate forces them to choose between their loyalty to their beliefs and the state.

Healthcare is a primary means by which individuals actualize their right to be protected against an untimely death.  The ability to access healthcare, to not have the government actively intervene against one receiving it, is of fundamental importance for living a long and worthwhile life, and is hence entrenched in the constitutions of many liberal democracies and much of international human rights literature {WHO - Health and Human Rights}.  While some rights, such as the right to mobility, can be taken away as a matter of desert in almost all societies, absolutely fundamental rights, such as the right to a fair trial, are actually inalienable and ought to never be violated.  What this means in practice is that one’s access to healthcare should not be continent.  The government should set no standards on who deserves life-saving treatment and who doesn’t.  To do so would be to assign a dangerous power of life and death over the government.

The government already makes life or death decisions as to who receives organs; at the end of the day, the organ scarcity means someone has to go without them.  The state, in administrating organ donor lists, must decide on some basis who receives organs.  The choice is whether they ought to be allocated primarily based on desert, or arbitrarily.  Moreover, no medical system actually treats access to it as an inviolate right.  Many healthcare systems worldwide are not universal, and even universal systems broadly restrict access on the basis of some criteria, most notably citizenship.

Most formulations of this policy involve assessing donor status on the basis of whether the patient was a registered organ donor prior to needing an organ.  Thus, a sick person could find themselves in the tortuous situation of sincerely regretting their past decision not to donate, but having no means to atone for their past act.  To visit such a situation upon citizens not only meaningfully deprives them of the means to continue living, it subjects them to great psychological distress.  Indeed, they are not only aware that their past passive decision not to register as a donor has doomed them, but they are constantly told by the state that this is well and just.

This is a harm that the proponent of denying organs to non-donors will gladly eat.  The threat of being left high and dry without an organ is exactly the incentive that this policy aims to create.  The most unpalatable aspects of this process can be mitigated, such as making it clear that this is simply a loss of priority and not an active denial of any treatment.

For the state to make organ donation mandatory is rightly seen as beyond the pale of what society would tolerate.  This is because the right to the integrity of one’s body, including what is done with its component parts after death, must be held in the highest respect {UNDHR – Article 3 re security of person}.  One’s body is one’s most foundational possession.  Creating a system that effectively threatens death to anyone who refuses to donate part of their body is only marginally different from making it outright mandatory.  The state’s goal is in effect the same: to compel citizens to give up their organs for a purpose the government has deemed socially worthwhile.  This is a gross violation of body rights.

Even if it were terrible to coerce people into donating their organs, there is a difference between mandating a behavior and creating strong incentives to do it.  For instance, most governments do not mandate that people not smoke, but severe disincentives exist in the form of cigarette taxes and higher life insurance premiums.  Furthermore, this argument is questionably premised on the notion that laying claim to a person’s organs after their death is a major violation (see “people ought to donate their organs anyway” point).

Many major religions, such as some forms of Orthodox Judaism {Haredim Issue}, specifically mandate leaving the body intact after death.  To create a system that aims to strongly pressure people, with the threat of reduced priority for life-saving treatment, to violate their religious beliefs violates religious freedom.  This policy would put individuals and families in the untenable position of having to choose between contravene the edicts of their god and losing the life of themselves or a loved one.  While it could be said that any religion that bans organ donation would presumably ban receiving organs as transplants, this is not actually the case; some followers of Shintoism and Roma faiths prohibit removing organs from the body, but allow transplants to the body.

In reality, the majority of faiths that ban organ donation, and all of the faiths that feel particularly strongly about it, such as certain branches of the Jehovah’s Witness with regard to blood transfusions {Blood – Vital for Life}, also ban accepting foreign organs.  In such cases, practitioners wouldn’t be receiving organs anyway, so the net effect is nil.  Moreover, many religions mandate that followers do everything in their power to save a life, and that this should trump adherence to lesser dictates.  Finally, to adhere to a religious ban on giving but not receiving organs is disingenuous.  It is the ultimate hypocrisy: to rely on others to do someone one would not do oneself.  In such a situation, the state is no longer obliged to guarantee a chance to adhere to one’s religion.