Parting Is Such Sweet Sorrow

“Should a person who is dying of an incurable illness be allowed to donate his organs before the disease kills him?”

So asks my friend Ron Bailey over at Reason’s “Hit & Run,” generating a lively discussion in the comments that follow.

Mr. Bailey means to ask not if the person can make arrangements for donation after his death but whether he should be allowed, as it were, to make delivery before the disease kills him. This will effectively require physician assisted suicide, thus raising the usual arguments about physicians becoming a bit too eager to, um, ‘assist’ such a process.

Those are legitimate concerns. Physicians have a disquieting tendency to see their patients and their eventually terminal prognoses with a great deal less passion than those they treat. Disquieting, at least, if I am the patient. We don’t want the unintended consequences of creating perverse incentives for physicians to hurry us along, as the Book of Common Prayer calls it, through “those Gates of Larger Life” any sooner than we are, ourselves, ready to go. Moreover, because the unfortunate progress of many fatal diseases also effectively renders the patient non compos mentis, even when we assume good faith on the part of all the participants there are still often questions whether the patient is legally competent to make such decisions.

These latter are the sorts of questions most of the commenters at Hit & Run discuss, and because several identify as law students, I offer the following poser: assuming the law did under some circumstances permit one to actively donate his vital organs before dying of natural causes, would the gift be considered inter vivos or causa mortis? Discuss.

I’m not particularly interested in that discussion except to note that, ignoring slippery slope arguments, it is one thing to say that creating adequate safeguards will be difficult (and perhaps for some situations even practically impossible), another to say that all such cases are so fraught with problems that the only safe recourse is to prohibit the practice entirely.

What I do find interesting, by contrast, is how these sorts of questions implicitly limn the extent to which one can be said to have a property interest in one’s body and, by extension, its parts.

I take the (here quite heterodox) position that property rights properly understood are a ‘mere’ function of a legal system, itself a ‘mere’ instrument of the state. That is, however others here may construe or believe in some form of “natural rights,” I don’t believe property rights to be in any intelligible sense natural. That being the case, I have no problem asking as a matter of mere policy whether and to what extent and thus with what limitations human bodies can or should be considered legal property.

(Not that it’s likely that anyone would be confused here, there is an entirely different sense of property in both common and philosophical usage; namely, a property as an attribute, quality or some such such that it can be predicated of a subject. E.g. “the rose is red” or “Strawson weighs 160 lbs” or “Strawson’s body weighs 160 lbs.” Whether Strawson and his body therefore collectively weigh 320 lbs I leave to the more metaphysically inclined.)

Even ignoring religious concerns – which is especially difficult to do in this case – it is at least fair to say that one of the reasons we have the laws we do have regarding property in any sense in the bodies of the deceased is that until very recently in human history the only thing we could do with such bodies – medical schools aside – was to find some acceptably respectful way to dispose of them. I don’t mean this glibly. Indeed, I think it is of crucial ethical importance to note how human society almost invariably draws a sharp distinction between persons and property even such that disposing of a person’s mortal remains raises a special set of considerations. Perhaps these considerations are largely or even entirely affective. Still, for example, we don’t eat our dead even when we safely could. (We don’t eat our pets, either, which is another example of how moral regard can extend beyond and thus not necessitate granting the status of personhood. Whatever the mortal remains of human beings are, they are no longer persons.)

However we might want to answer Mr. Bailey’s question, I am not personally committed to the notion that any property rights at all should obtain in corpses. I’d be perfectly willing to entertain – which is not at all the same thing as outright advocating – a policy of all human bodies falling into a sort of public domain, thus facilitating an adequate supply of organs for donation and therefore largely eliminating the motive force behind these sorts of moral problems. That is to say, were the supply of hearts, livers, etc. large enough in the first place, the moral dilemmas currently surrounding this question would largely disappear.

Every solution has unintended consequences, of course. Soylent Green scenarios aside, though, the point I would stress here is that, however politically impossible this solution might at present be, there are no per se ethical reasons precluding its adoption. Not, at least, unless you believe that persons have natural rights in their bodies which extend even after death.

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4 Responses to Parting Is Such Sweet Sorrow

  1. lukas says:

    In our legal system, people certainly have rights in their earthly possessions that extend after death. In general, the law defends the right in one’s body much more zealously than the right in one’s possessions. How can my right in my body expire as I draw my last breath, but my right in my charming floor lamp demands that great deference be given to my instructions as to its fate?

  2. James Hanley says:

    Would the recipient have to pay taxes on the value of the gift?

  3. JasonL says:

    I think Bailey’s construction tries to make two distinct problems a single property rights issue. Whether I have a right to die is the large question. Once answered, the property issue seems to fall out naturally. As a culture, we generally adopt the stance that the last will of the deceased is relevant for dispensation of material goods, and in the absence of a will there’s a public treatment through probate and such. I’d like to see the problem resolved as “yes, you can choose to die” and “your will may contain directives for your organs, but if not the default is they go to the donor pool.”

  4. D.A. Ridgely says:

    Descent and distribution (aka intestate succession) statutes derive from a culture in which gender roles were decidedly unequal, land ownership was the primary form of wealth and the private support of widows and children via inheritance kept them from being public charges. Only the latter is so and remains as an important social goal and even it is not nearly as important as it once was in large measure because there is a much larger “social safety net” in place.

    The alternative to the statutory laws of inheritance, a legally valid will, nonetheless has and has always had limitations. You can’t leave your property to your pet. Okay, so you can leave it to a trust fund that will take care of your pet, but Fido isn’t a legitimate beneficiary in any sort of straightforward sense. The law simply doesn’t permit it. You can’t leave your estate for an illegal purpose, etc., etc.

    The point being that the law of property (just like the law of contracts, etc.) draws a line somewhere and says no, you don’t have the right to do with your property anything on the other side of that line. What’s more, it always has. Moreover, neither you nor your survivors can do just anything you wish with your mortal remains. You cannot, for example (and as I joked for many years I wanted for my own corpse), be left in a large upright freezer with a beer in one hand and a cigarette in the other. There are public policy concerns that override private “property” concerns in such matters. Of course, we can argue whether there should be, but the fact that there are and historically have been such limitations is hardly controversial.

    Thus I raise the question whether one should be able to leave directives for ones organs; that is, whether they should be deemed in any sense private property after you die. And I suggest that we try to avoid as much as possible the dead hand of the past and its often no longer useful traditions in answering that question.

    One of the reasons, for example, that organs are as valuable as they are, perhaps prompting medical personnel to hasten a terminal patient’s demise, is because of the ‘artificial’ scarcity created by the current system. Were we all to be organ donors, like it or not, following death, there would be a vastly larger supply of organs, thus reducing such temptations.

    I repeat that I am fully aware that every solution has its invariable unforeseen consequences which are often worse than the problem being solved. But it is at least worthwhile to consider these alternatives rather than blithely assume that the (natural?) law precludes them.

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