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The American Journal of Bioethics 3.1 (2003) 13-15



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Harming the Dead and Saving the Living

James Lindemann Nelson
Michigan State University

Elysa R. Koppelman (2003) argues that a good deal of confusion runs through ordinary notions of death—confusions in part fostered by medical power and practice—and that prevailing organ transplantation policies are implicated in these confusions. In particular, she argues that the dead donor rule needs to be dropped and replaced by a rule that tracks more accurately what is actually in question: would a given act of retrieval be disrespectful to the individual from whose body the organ is taken? The answer to this question, she thinks, hinges not so much on the current status as on the history of the dead or permanently insentient person who is the prospective donor.

I quite agree that the definition or timing of death is largely beside the point here—whether prospective donors are dead prior to retrieval or whether it is retrieval that kills them is not very important, assuming that the individual is permanently insentient. I further agree that such individuals can still be harmed, although death itself is no [End Page 13] longer one of the circumstances to which they are vulnerable. For the unambiguously dead, this is straightforward; the living who are permanently incapable of experience have already lost whatever it is of value that death takes from us. Yet someone can be invulnerable to death and yet vulnerable to other forms of harm. As Nagel has powerfully argued, making sense of how death itself can harm us requires using ideas that imply that death might not be our final misfortune (Nagel 1979). Koppelman's mobilization of these notions improves the sophistication of our grasp of what is actually at stake in the practice of organ procurement.

But having shown that death itself might not be an issue and that the dead and the permanently insentient still have a claim to be treated as ends-in-themselves, Koppelman seems to think that we now have an account of the morally relevant considerations complete enough to issue policy recommendations. This seems to me mistaken. Here's my concern: Koppelman presents transplantation policy as if it were a contest between utilitarians and deontologists. Utilitarians, who are all in favor of maximizing supply of available organs, tend to overlook the significance of the Kantian principle that we must always treat persons as ends in themselves and never as means to ends solely; this principle must be strictly observed as a constraint on how we pursue utilitarian goals. Here's where I think the sophistication of her treatment flags. Reflective moral agents of good character, whether or not they're utilitarian, do not actually treat the Kantian maxim as an absolute constraint on their welfare-enhancing actions. Nor should they.

By way of illustration, consider the following scenario: It's a rainy night and you're walking three abreast with your friends Anna and Lee on a narrow sidewalk. Your companions, lost in thought, walk firmly linked arm in arm, Lee halfway into the street. You, less obtunded, notice a car barreling around the corner heading straight for Lee. You shout, they freeze like deer in the headlights, and so you clutch Anna's jacket and pull them both to the pavement, thereby certainly saving Lee from a great deal of pain and suffering and quite possibly from death. You did, of course, treat Anna as a means to this end, tumbling her to the pavement without her consent. Did you violate any morally defensible claim that she has to be treated as an end rather than a means?

Intemperate enthusiasm for the Kantian principle might incline someone to think that your justification lies in the well-founded assumption that Anna would have consented if you had been in a position to ask her; hence, her "presumed consent" gave you good reason to think that you were not using her as a "means, solely." I think this gets the matter quite the wrong way around. Your act...

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