Living Donor Organ Transplantation

Key Legal and Ethical Issues

Austen Garwood-Gowers

• Éditeur: Routledge
• Année: 2019
• ISBN:
  9780429620713
• Édition: 1
• Sujet: Law
• Sous-sujet: Law Theory & Practice

This book was originally published in 1999. When one or more essential organs failed, the consequence used to be death. However, conventional medicine has developed artificial means of extending life, the most successful of which is transplantation. The most common form of organ to be transplanted is a kidney which will, on average, function for about a decade in its recipient. Organ transplantation as a whole is widely practiced in most countries. However, few can procure enough organs to meet demand. Many people who are suitable for a transplant die without getting one. Many kidney patients can access and stay alive on dialysis until a suitable organ becomes available. However, even here, sufficiency of organs would be beneficial because lesser reliance on dialysis would reduce healthcare costs and be better for patient quality of life.

This invaluable book shows that in the light of current practice and attitudes, increasingliving donor transplantation (LDT) levels is feasible. It is one of the few works to systematically analyse the ethical and legal issues involved in LDT use in the light of empirical evidence, including new data derived from a unique programme of interviews and questionnaires with transplant professionals, living donors and recipients. Readers are led to an understanding of when LDT is ethically and legally acceptable and to the strong case for using it much more extensively.

1 Contexts

The Ethical and Legal Basis for Medical Intervention

Medical intervention, including the treatment of organ disease, is influenced by philosophical debates between consequentialism, deontology and rights and also by the so-called four core principles of medical ethics - beneficence, non-maleficence, autonomy and justice.¹ As well as forming an ethical guide to medical professionals, philosophical approaches and principles are at the centre of medical law.

The Ethical Basis for Medical Intervention

Two of the most well known approaches to philosophical thought are consequentialism and deontology. Consequentialism judges the rightness or wrongness of an action by its consequences. A key brand of consequentialism is utilitarianism, which judges consequences in terms of their use value. One of the early proponents of utilitarianism was Jeremy Bentham who stated that the goal of decisions was to maximise happiness and that the rightness of wrongness of action in this sense could be determined by whether, on balance, it produces more pleasure than pain. J.S.MH1 subsequently noted a developing trend amongst utilitarians to weigh quality as well as quantity of pleasures.² Contrastingly, deontological approaches have held that the rightness or wrongness of an action cannot be determined purely by consequences. Instead it is determined by a system of values. From a deontological perspective Kant suggests that people are ends in themselves as well as means to an end but one of the main problems with deontology is that systems of values or morality can be formulated in such a way as to support authoritarian control in opposition to the rights of individuals. A similar problem can arise where utility is the overarching concern - as Gillon puts it,

...if overall maximisation of welfare is the supreme moral objective the individual seems to be in permanent jeopardy before the overriding interests of society.³

Most philosophers accept that rights are intrinsic to being human and must therefore be taken seriously.⁴ Some, such as J.S.Mill, go as far as suggesting that a competent adult’s rights can only be limited in so far as they conflict with other rights,

...the sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection.⁵

One of the things that draws most people into being medical professionals is a desire to play a role in encouraging health. Within most traditions a medical professional is seen as having a position of trust with the positive duty to do his best by those in his/her care, known more formally as the duty of beneficence. Almost a part of this is the ethical principle of nonmaleficence under which the professional must not harm the patient. The precise combination of these principles within the Hippocratic writings is the injunction to the professional to, ‘help, or at least do no harm’.⁶ The doctrine of double effect comes into play in saying that if the weight of evidence points toward a course of action having an overall benefit it can be ethical even if it also causes some harm and jeopardy. In reductionistic medicine obvious examples of this principle being applied are the use of mutilating operations and the use of synthetic drugs with side effects.

The principle of beneficence does not support the use of interventions which are non-therapeutic to the person undergoing them. However, from a utilitarian standpoint these interventions can be justified where in a wider sense they have the prospect of being beneficial. For example, non-therapeutic medical research and living donation would be justified on utilitarian grounds where the prospects are of a wider benefit exceeding harm and jeopardy to the subject. From a rights perspective a person should be entitled to volunteer for non-therapeutic interventions even though they offend the principle of beneficence. However, equally they should only be subject to such interventions after making an informed and voluntary choice, i.e. they have a right of refusal.

Where a medical intervention is a treatment in the best interests of the person undergoing it, it can be justified as both consistent with that person’s utility and with the deontolgical principle that (s)he should be treated as an end in him/herself. The principle of paternalism is that it can be acceptable to impose treatment in these circumstances. However, again, to do so would override the right of self-determination. In medical ethics the right of self-determination is closely interwoven with the principle of autonomy.

The term autonomy is derived from the Greek words ‘autos’ meaning self and ‘nomos’ meaning rule or law. These were initially put together to describe political self-governance in the context of the Greek city state. Political self-governance was merely the logical extension of the principle of individual self-determination into the realm of a collective system of organisation. Logically, within this system, medical practice would be consistent with self determination and forced intervention would be limited to occasions where it was a necessary defence of the rights of a third party (e.g. a paternity test), the rights of a wider section of the public (e.g. in a public health emergency) or where in a medical emergency it has been necessary to intervene before it is practicable to obtain voluntary agreement. However, the term autonomy has also been given other meanings one of which is the personal ability to act in a self-directed manner consistent with ones own interests?⁷ In this sense a person has a degree of autonomy relative to their capabilities. A legitimate role for paternalism arises from the fact that as a common sense exercise of compassion it will sometimes be necessary to make a decision on behalf of a person in their interests if they lack the capabilities necessary to adequately determine their own interests in the matter. This lack may be connected with being a minor who is not yet mature enough to decide or due to such factors as mental disability and illness. An extreme example would be where a person is unconscious or in a coma.

A final principle of medical ethics that is worthy of mention is that of justice. All sorts of concepts are associated with justice such as fair treatment, equal respect, merit and so on. Essentially justice is a principle of how relations between people should rightly be organised. In healthcare there are many contexts in which justice is a central issue. For example, in relation to when a patient is cared for, Stauch, Wheat and Tingle suggest that doctors are under a perfect duty to be just in the way they decide who to treat and under only an imperfect (i.e. non-absolute) duty to provide medical treatment to everyone who requests it.⁸ Justice is also relevant to the overall basis upon which healthcare, including transplantation, is distributed. Stauch et al. suggest that concepts of justice often present three models for healthcare distribution,

First, resources may be distributed according to merit. This would mean that the most deserving persons, for example in terms of moral worth or contribution to society, would receive healthcare as a matter of priority. Secondly, resources may be distributed equally. However, this presupposes that we have a test for deciding whether the persons concerned are equal. Certainly they are entitled to equal respect and consideration, but that in itself may not be enough. This tempts us to adopt the third model, which is that resources be distributed in accordance with need.⁹

The problem with all of these approaches to distribution is that they assume society has a right to interfere with how relationships are constructed beyond protecting people from abuse. When society is doing the distributing then invariably it also obtains the goods to distribute through force - tax or compulsory insurance in the case of healthcare. Whether the approach is Marxist (each paying according to his ability, each getting according to his need) or based on some other conception of utility or deontology it necessarily presupposes that there is an ethical basis upon which to seek values from others by means of force. Contrastingly, Rand’s approach is that the giving and receiving elements of any relationship are consistent with rights when they are based solely on giving value for value, by free, mutual consen...