Justice, Reason, and Luck in Rationing Lifesaving Medical Resources

Winners and Losers

When lifesaving medical resources such as organs or medical technologies are scarce, how should they be distributed? Among the patients needing such resources, who should be selected, and how? James F. Childress addresses these questions in his landmark article, “Who Shall Live When Not All Can Live?,” providing a careful analysis of the ethical dimensions of rationing life-saving medical resources and defending a method of randomized patient selection. Childress’s argument is not only a model of practical reasoning in bioethics, it also influenced the design of public policy regarding rationing, now institutionalized by the United Network of Organ Sharing (UNOS), a nonprofit organization under contract with the federal government to oversee the allocation of scarce organs and tissues.

This is not to say that Childress’s argument is uncontroversial or that it is not subject to strong challenges and the need for revision or amendment. In this article I want to identify one challenge to Childress’s argument and show how it opens up an alternative pathway for bioethical public policy that Childress would do well to note and that he might want to avoid. To that end, I will unpack that challenge, indicate the stakes involved, identify its practical implications, and defend a way to deflect it. Before doing that, however, I need to describe Childress’s constructive position.

First published in 1970, Childress’s argument conceives of rationing life-saving medical resources as occurring in two stages. At the first stage, prospective patients are to be screened according to the criterion of medical utility to identify a class of people deemed “medically acceptable” for treatment. The aim would not be to identify precise prospects of success at the individual level but to determine a class of potential recipients who meet medical criteria for a reasonable prospect of successful response to treatment (Childress 1997d, 172–73). Medical criteria, applied in this way, would exclude some persons in order to create a pool of prospective patients, but those criteria would not allow physicians to then select specific patients who seem to have relatively better prospects than others. At the second and final stage, patients who are to receive scarce resources would instead be selected randomly—without regard to race, gender, economic background, nationality, creed, or social value. Childress specifies the process of random selection in terms of queuing (first come, first served) or in terms of using a lottery (175). The central rationale, about which I will say more below, turns on the principle of human dignity and equality of opportunity, as opposed to social value or utilitarian considerations. Randomness, Childress argues, is the best means for rationing resources that honors the equal dignity of all persons.

Childress refined his ideas in subsequent writings and in the postscript written for the 1997 republication of “Who Shall Live When Not All Can Live?” by distinguishing medical utility from social utility (1997d, 184; see 1997a, 220). One reason for the refinement was the need to think not only about how to ration dialysis machines—the question behind his first foray into rationing—but also about the ethics of allocating scarce organs. Henceforth he allows considerations of medical utility to inform decisions after the first stage of screening, noting that considerations of medical benefit are independent of a patient’s social worth and are in accord with his main principle for rationing, namely, respect for equal dignity. On this revised account, utilitarian considerations may intrude on, and modify, the randomness of the second phase of the selection process for reasons that prescind from considerations of the recipient’s social worth. This last stage is constrained by the need to responsibly steward scarce resources, such as organs, that cannot be reused. An eligible patient waiting for an organ might undergo health problems that render him or her medically unacceptable after having been initially included in the pool but before an organ becomes available to him or her. Considerations of medical utility require physicians to consider the urgency of patient need and the procedure’s probability of success. A physician may...