Dominic Lawson: Dead people do matter – and it is a mark of civilisation to treat their remains with respect

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The Independent Online

Is necrophilia wrong? Or does the general public distaste for sexual congress with a corpse merely reflect our ignorant superstition? This thought is prompted by the debate on the Prime Minister's suggestion that we should move to a system in which doctors can "presume consent" to the removal for transplantation of our organs after our death.

Polly Toynbee has been characteristically clear in her support for such a change in the law. She argues that there would now be a "knock-down, drag-out fight with the forces of reaction and superstition. When you are dead, you are dead. Living people matter but dead people do not."

Yet if it is true that dead people don't matter at all, then what is the argument against a perverted funeral director sexually assaulting the bodies of the recently deceased? He would be gaining apparently harmless pleasure – at the expense only of someone who no longer matters. Besides, the relatives need never know – and if someone were to burst in while this was going on, the funeral director could blurt out: "I presumed consent."

Yesterday in the United States a former dentist called Michael Mastromarino pleaded guilty to plundering hundreds of corpses, for the purpose of selling their body parts for transplants – mostly of bone for implants. The case has achieved notoriety in this country because one of the corpses plundered by Mastromarino was that of Alistair Cooke, the late presenter of Letter from America. Mastromarino faces a minimum sentence of 18 years. Yet if you believe that what happens to dead bodies "doesn't matter" then you might think he shouldn't receive any punishment at all.

In fact, Mastromarino was passing off as "healthy" the skeletons of people who had died of cancers which might well have spread to their bones; but had he been more honest in his descriptions, would that mean that he was merely a public benefactor, ensuring that people received implants at a much lower cost than would otherwise have been the case?

Some might object specifically to the fact that Mr Mastromarino was making money out of selling the body parts – but if people had benefited from receiving those implants, why should any financial gain which accrued to the seller be relevant to the fundamental moral issue at stake?

It is precisely because we – or at least, most of us, reactionary and superstitious as we might be – think there is something "sacred" about the human body that we can't see any virtue in Mr Mastromarino's conduct. This is not, as Polly Toynbee might think, because of organisations such as the Catholic Church. It is much more fundamental than that: I suspect it goes back to the first caveman who decided that he wanted to bury his father's remains intact rather than leave them to be eaten by carrion (or, indeed, the rest of the family). I would prefer to regard his actions as a glimmer of civilisation, rather than as the dawn of the age of superstition.

It is true, I admit, that Gordon Brown and Polly Toynbee are not advocating necrophilia or graveyard robbing. Their argument – and it is one deserving the most careful consideration – is that there is a "shortage" of organ donors, that at least 1,000 people each year are dying as a result of that shortage, and that this shortage would be best addressed by a policy of "presumed consent".

The Prime Minister specifically singled out for praise the people of Spain, who moved to a system of "presumed consent" and thereafter witnessed a significant increase in the availability of organs for transplantation.

This, however, is not the view even of all those who might be presumed to have the greatest interest in such an outcome. Professor John Fabre, of King's College Hospital and a past president of the British Transplantation Society, argues that "the link between presumed consent and organ donation rates is tenuous and entirely unproven.

"Spain has a transplant coordination network of trained doctors and nurses in every hospital likely to have organ donors. It is almost certainly this, rather than presumed consent legislation, that is the main reason for Spain's superior organ donation rates. Spain also has a much higher death rate from car accidents – a major cause of death among organ donors. Irrespective of utility, there are strong moral objections to presumed consent."

Those moral objections were most forcefully put by John Reid in 2004, when as Health Secretary he spoke against an amendment to the Human Tissue Bill by the Liberal Democrat MP Evan Harris, which would have done exactly as Mr Brown is now suggesting. Dr Reid thundered that "the decision over one's own body is for the conscience – the conscience of individual citizens in this country. It is not for this Parliament to impose on them a requisition of their bodies after death by the state."

The then health minister, Rosie Winterton, weighed in behind her boss, arguing that "people should give their consent if they want to give parts of their body for research or for transplant. If people donate, it is actually a gift to society."

Mr Brown seemed to agree, since he voted, along with Dr Reid and Ms Winterton, against Evan Harris's amendment. Since then the Prime Minister has become the father of a boy with cystic fibrosis, a condition for which a lung transplant is sometimes indicated. His own views might have changed as a result of his family's circumstances. Yet that would be a dangerous basis for the promulgation of legislation, however understandable.

It could also be politically toxic. If there has been a decline in the percentage of people prepared to agree in advance to give up parts of their body to the NHS – and the percentages vary dramatically from region to region – it is hardly a good idea to say to the public: very well then, since you are showing less willingness than previously to opt in, we will now just have to take your agreement for granted. Moral arguments apart, a greater effort in persuasion must be the more rational approach.

This whole debate might, in any case, be overlooking the most pressing problem of all. I refer readers to one of the final paragraphs of the report of the organ donation taskforce, published this week: "One major issue outside [our] remit was important. Transplant units may not have adequate resources to perform the increased number of transplants that this report expects, not only in terms of staffing, but, crucially, in terms of the support services upon which transplantation depends. Even the recent modest increase in kidney transplant numbers has stretched these resources... almost to breaking point."

In other words, the heart-breaking queue for transplant surgery is as much a function of the inability of the NHS to deliver as it is of any unwillingness on the part of the public to do its bit for the common good.