A quarter of a century ago, in my second year of teaching at the University of Virginia, I began to explore the emerging field of biomedical ethics through a seminar on “Artificial and Transplanted Organs,” which included both faculty and students from law, medicine, and the humanities. My paper for the seminar was entitled “Who Shall Live When Not All Can Live?” This experience drew me into biomedical ethics, because of the complex mix of ethical, legal, and medical issues and the fruitfulness of interdisciplinary and interprofessional dialogue.
Several of the major problems confronting that seminar have persisted, often in altered form. In the area of organ transplantation, two significant issues continue to require society’s attention: (1) how can the organ supply be increased, and (2) how should the available organs be allocated? I want to make a few points about ethical criteria in the allocation of donated organs, as a way to indicate some directions for organ allocation policies in the twenty-first century. I will focus on the second question because I believe that a tremendous and ever-widening gap will persist between the need for transplantable organs and the supply of human cadaveric organs.
Community Ownership of Donated Organs and Public Participation
Since the mid-1980s, the operative conception of the ownership of donated organs has shifted, with major implications for the procedures used to formulate policies for organ allocation. As vice-chair of the federal Task Force on Organ Transplantation in the mid-1980s, I did not immediately realize that debates about allocation policies often reflected different conceptions of the ownership of donated organs. More specifically, organ allocation policies largely presupposed that donated organs belonged to, or were under the dispositional authority of, transplant surgeons, with only limited public accountability. However, the Task Force (1986) held that donated organs belong to the community, and that transplant professionals are only trustees and stewards of those organs for the [End Page 397] community’s welfare. This conception of ownership implies that the public should participate in setting the criteria for organ allocation.
According to Jeffrey Prottas (1994), another member of the Task Force, these shifts represent the “socialization” of organ transplantation. Although professional dominance, through knowledge and power, continues in the United Network for Organ Sharing (UNOS)—the national organ procurement and transplantation network that was established in the late 1980s—that dominance is now more circumscribed and accountable, particularly because UNOS, in developing any allocation policy, has to respond “to public criticisms with public answers.” Not only is organ allocation policy now in the public domain—and thus a matter of public ethics rather than medical ethics—the terms of the debate have changed, as Prottas further notes, so that equity must be considered along with efficiency.
Balancing Several Ethical Principles or Values
The main ethical criteria for organ allocation express principles that are prominent in the major competing theories of justice, particularly libertarian, egalitarian, utilitarian, and communitarian theories. The principles of liberty, equality, utility, and community all play important roles, and organ allocation policies often seek to balance these competing principles, which frequently are specified or circumscribed—for instance, utility is specified as medical utility. Just or equitable policies are found in the process of balancing.
UNOS (1994) attempts to develop an equitable organ allocation system in light of a “set of basic principles” and “specific measurable objectives” that have been derived from these principles. It uses the metaphor of “balance” for its efforts to relate these different principles and objectives. For instance, it holds that balancing requires that “equal consideration” be given to both medical utility and to justice, so that neither can be ranked a priori over the other. However, it may not be possible to “give equal weight to [both] medical utility and justice” (UNOS 1994, p. 123) because trade-offs appear to be unavoidable in many policies and are consistent with the metaphor of balancing.
Medical Utility and Equality
Medical utility—maximizing the welfare of patients suffering from end-stage organ failure—includes, at a minimum, attention to the factors that influence both graft and patient survival, as well...