“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.