Under presumed consent I am not confident the state would feel a duty to treat a corpse with reverence after death or use it solely to help others live

Tom Bailey in the online magazine Spiked draws attention to the future possibility of “presumed consent” where transplant organs are concerned. It seems that the NHS is floating this idea as a change from the current rules governing transplants. At present, as Bailey points out, consent for organs to be taken for transplantation must have been given either prior to death or by the deceased’s family members after death. Changing to “presumed consent” would be that, unless you actively opt out, you will be “presumed” to have “consented” to having your organs used for medical purposes.

Bailey is opposed to this, arguing that it would mean an end to organ donation – based on motives of generosity or altruism; it would mean a kind of organ “conscription”. He quotes Professor John Fabre of King’s College, London, as saying that this idea “would degrade the ethical framework of our society… into one of the state taking back what it thinks is its, while intruding on one of the most personal and delicate moments of a family’s life”.

Bailey argues that such “presumed consent” would make our bodies properties of the state; “no longer would we be free autonomous individuals, but rather we would become nationalised property that the state reclaims after our death”. Although I slightly demur at the use of the word “autonomous” here, with its implicit sense that we exist outside a relationship with our fellow men, I agree with Bailey. Christians believe that we are bound in kinship to our fellows; that we are part of a brotherhood under the fatherhood of God. This means we have a certain obligation to our fellows as part of our common humanity – but it should not mean being forced by the state to surrender to it our earthly bodies after our death for their own purposes, unless we clearly set out our conscientious objection.

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I write “for their own purposes” rather than Bailey’s “medical purposes” because I also have no reason to believe that “the state” would feel a moral duty to treat a corpse with reverence after death or use it solely to help others live, if it had automatic ownership of it. There are too many cases in the newspapers of disquieting and unethical scientific experiments for me to feel confident of the state’s moral rigour in this area. Looking at all the shifts in the supposed moral perspective of the Human Embryo and Fertilisation Authority makes one think that if so much is now permitted at the start of life, the state’s treatment of the end of life would be no different.

I was reflecting on all this when I read the headlines from LifeSiteNews: “One in five ‘brain dead’ patients still alive, claims lawsuit.” The article suggests that “coercion and abuse are becoming increasingly common in the highly lucrative transplant business”. A lawsuit against a major organ donation group, the New York Organ Donor Network, has been brought by nurse practitioner Patrick MacMahon who says the Network is putting pressure on relatives to accept a patient is dead when they are alive and could recover.

This is a large claim – but given the way markets generally operate, it is believable. MacMahon says that the market for viable organs is sales-driven: “You’re there to get organs. It’s all about sales… Counsellors are required to get a 30 per cent consent rate from families.” The top “counsellors” get a Christmas bonus, he says. His suit cites one alleged case in which a 19-year-old car crash victim was struggling to breathe and showing signs of brain activity, but doctors signed off on the “donation”. A former employee of the New York Organ Donor Network, MacMahon was sacked after raising his concerns with the president of the network. He describes some gruesome scenes that he has witnessed, where patients were, he claims, killed for their organs. (A spokesman for the network told the New York Post that the claims of a quota system were “ridiculous”.)

In his 2008 address to the Pontifical Academy for Life’s conference on organ transplantation, Pope Benedict warned: “Informed consent is the precondition of freedom, so that the transplant has the condition of a gift and cannot be interpreted as an act of coercion or exploitation.” Exploitation occurs because of the demand for organs and because doctors themselves are divided on the meaning of “brain death”. Indeed, an article in 2008 by Dr Robert Trugg of Harvard Medical School in the New England Journal of Medicine, cited by LifeSiteNews, suggests it is a sham, unsupported by the scientific literature: “Although it may be ethical to remove vital organs from [brain dead or cardiac dead] patients, we believe that the reason it is ethical cannot convincingly be that the donors are dead,” he writes. Some doctors even think that the criteria should be changed to “dying” or “severely injured” patients.

I have always worried about the concept of “brain death”, knowing that for organs to be transplanted when they are viable ie fresh or healthy, the patient has to be kept in a kind of suspended animation. For this reason I haven’t (yet) signed a donor card, even though some years ago a person I slightly knew was asking for people to do just this as her own daughter, who had cystic fibrosis, needed a heart-lung transplant. My decision not to do so made me uneasy then and it does now. What is the answer?

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