An anatomy of giving

There'd be no shortage of organs for transplant if the state assumed control

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The language of organ donation presumes that if you give one of your kidneys to save your brother, while you are still alive - or if you give your kidneys for use after you are dead - you are bestowing a gift. And this in turn presumes that the organ, whether you are alive or dead, is yours to give. The language of donation is reinforced by the fact that it is illegal to pay for organs; they must be given freely. It is said that the motive for giving must be altruistic. The concept of altruism, however, applies only where you, being still alive, give your kidney to save your brother (for you are here sacrificing yourself, or a useful part of yourself, for him). By contrast, in the other case, you have nothing to lose, being dead when the organ is taken. In offering your kidney your motive was surely benevolence rather than altruism.

But is your kidney your possession? Do you have a right to dispose of it as you please? In the USA not long ago a case came to court in which a Mr John Moore sued the University of California for making a lot of money from a discovery they made by using his spleen which, with his permission, they had removed. His case was that the spleen was still his after its removal from his body, and therefore he had a right to a share in the profits (Moore v Regents of the University of California 1976). As even the smallest and least apparently valuable body tissue - blood samples, for example, or finger-nail clippings - may now be used, not only to supply genetic information about the person whose tissue it is, but for use in developing genetically related drugs by pharmaceutical companies, the question of ownership may well arise more frequently, and in a wider context than that of organs alone. It would be a good thing to try to settle it. And it may be necessary to draw some distinction between consent to remove an organ, and giving an organ or any other lesser bodily tissue for unspecified, but often profitable, uses.

Last week someone in Sheffield offered his kidneys to a hospital for use after his death provided they were not given to "coloured people". Of course the fact that he talked about "his kidneys" does not necessarily mean that they were still his possession after his death, even if, like Mr Moore, he thought they were while he was still alive. I can claim all sorts of things as mine, without thereby implying that they are possessions. "My piano teacher" can be referred to after my death as "her piano teacher", but neither before nor after my death was she my possession. Nor does the condition attached to the gift in itself invalidate the claim that it was a possession that was being offered. People in their wills sometimes leave their possessions with conditions attached - they may, for example, leave someone a certain jewel on condition it stays in the family.

To what extent and for how long one is obliged to respect the wishes of the dead depend on the circumstances. The Sheffield hospital may have hoped that if they left the kidneys in the freezer for long enough, they could quietly lose the bit of paper with the condition. As long as we continue to think of body parts as the possessions, whether of the living or the dead, we will continue, no doubt, to come upon a few people dotty or malevolent enough to attach conditions to their donation. It was the fact that in the Sheffield case the condition was so politically intolerable that made it into a scandal.

Yet whether the condition is complied with, whether it is quietly disregarded, or whether the donation is refused on the grounds that the condition is immoral, is not really going to change the whole situation with regard to donating organs. A measure could be passed, I suppose, whereby any conditions whatever attached to a promised gift of organs rendered the gift invalid. But such a measure would have little overall effect.

In any case it is important to separate the issue of conditions attached to donations (and the Sheffield case has given rise to many more stories of conditional donations "only for Muslims", etc, which surgeons have dealt with in a variety of ways) from the issue of getting more useable organs. It is this that turns on the concept of ownership.

The fact is that there are far too few offers of organs for the number of people who would benefit from a transplant. Only 30 per cent of the population carry donor cards, and most people whose relatives die in circumstances in which their organs could be used refuse permission. If we seriously wish to improve, or even maintain, the programme of transplantation, we must either find a way of increasing the number of gifts, or explore the BMA's proposal that after death the organs of the corpse belong as property neither to the donor nor to his relatives, but to the National Health Service or to the Department of Health, to use in the public interest.

Either of these approaches involves attempting to understand why people are reluctant donors. Of the 70 per cent of non-card carriers, we can assume that about half are too lazy or indifferent to possess themselves of a card. But of the rest we must suppose that they have genuine objections to the thought of their body being used after their death, and that these objections hold, perhaps even more strongly, when it is not their bodies that are in question but those of their relatives. For if someone is asked about donation after the death of a son or daughter and refuses permission, this must flow not from carelessness, or laziness, but from positive objections. It is plain that general benevolence towards those in need is not enough at present to overcome reluctance. And yet this is surprising. It is not like normal non-benevolence, where one may not want to share with other people the benefits that come from the use of one's property, even if it would benefit them as well. For the corpse of a relative, however dearly loved, is of no use to the mourner; and simply to say "I have the right to dispose of the body as I choose" is only to say in different words that you regard it as your property. (In any case you do not have absolute rights of disposal: public health considerations and public decency may override whatever rights you may claim to have.)

My own belief is that we should accept the BMA's recommendation that the organs of the recently dead should be removed on the assumption that neither the relatives nor the dead person himself has an automatic right that they should not be so used - that is, they have no property rights in the matter. (The BMA speaks of "presumed consent", but that is a misleading expression in that it still takes for granted that consent is necessary, but a watered-down version of consent.) If we do accept this recommendation, then we must make absolutely sure that everyone is entitled - and knows that they are - to opt out of the system, and refuse to allow organs to be taken for transplant or, indeed, research. Nor do I think it necessary that people should he obliged to say why they refuse, but just that they do. Some people might, I suppose, have grounds for refusal based on religious dogma, and it would be totally uncivilised either to disallow such objections or to insist that they should be spelt out in detail. It should be quite enough for someone simply to state that he or she objected on religious grounds.

But religion apart, many of us have a highly ambiguous attitude to the recently dead. Is this person - your newly dead son, perhaps - still the person he was? If you feel that he is, you may understandably feel intensely protective of him. However irrationally, you may feel that no considerations of general benevolence can override your desire to regard him as he was, not as your property, but as a whole human being, not to be raided for his organs or other tissue, but with his own physical integrity. You will be asked for your consent to use the organs of your son at a moment when you do not really understand how you think of him, so recent or imminent is his death.

This is the worst time to decide. It is all the more important, then, to set up a system within which everybody has a chance to decide about organ donation ahead - and everyone must have not one but many chances to answer the question: "Do I object to the benevolent use of my body- parts?" Then they can think about the possible conflict of benevolence with religious or other scruples, and in this way can become accustomed to the idea of donation, long before they have to make a sudden decision on behalf of a relative they loved as he or she was.

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