A Conversation with Peter A. Lawler (Part II)
September 17, 2008
Peter A. Lawler, Ph.D., is Dana Professor and Chair of the Department of Government and International Studies at Berry College, in Georgia, and a member of the Presidentâ€™s Council on Bioethics.
D. Joy Riley, M.D., M.A., is Executive Director of The Tennessee Center for Bioethics & Culture.
Riley: The subject is organ transplantation, and we have looked at the situation in the United States. Now letâ€™s go beyond the borders of the US. There is certainly a market in a number of countries, one of which is India. There, often a donor (for lack of a better word) is offered a certain price, but often ends up with much less, for sacrificing a kidney. There are neighborhoods where most of the people living there have sold a kidney to subsist.
Then there are have been reports out of China about the Falun Gong, who, for some reason, have incited the ire of the Chinese government, and have been incarcerated. There were reports in recent years regarding potentially their use of the Falun Gong members as organ donors for medical tourists. Do you have any comment about that? Do you think these reports are real?
Lawler: Well, I think the reports are real. When the official kidney authority in America, Dr. Francis Delmonico, says they say they can stop the stuff, I donâ€™t believe it. The down-side of globalization is the world is becoming increasingly porous; there is obviously this incentive to develop these slimy, quasi-legal markets. I think the Chinese thing may be an exception. They may have stopped. But thatâ€™s not going to be the most of it in effect. The evidence youâ€™re talking about helps out those who want the regulated market in our country. As with abortion, people say if you try to outlaw it, it will just become more unsafe. In the same way, the attempt to outlaw kidney markets here will just cause kidney tourism, which has all sorts of horrible consequences. There are horrible consequences for the donor who is exploited, for the person who comes from this country and doesnâ€™t get proper medical care, or who comes back here and has trouble continuing required medical care. Wouldnâ€™t it just be better to have it all happening here, where it could be all regulated and the vendor/donor get a better deal?
I just gave you my long-term argument as to why I donâ€™t even believe that. But when I debated this very nice woman who actually had a kidney transplant, Sally Satel, about this, she just said, â€œDonâ€™t think long-term; just worry about now.â€
Riley: Yes, she had an article in the New York Times
about her kidney transplant. She said she had considered going abroad to be a transplant tourist, but had rejected that ultimately. I wrote a response to that article, which was published in the New York Times along with a number of other responses. I quoted from Robert M. Veatchâ€™s Transplantation Ethics, and I would like to move to that work now. He would redefine death to include people in persistent vegetative state and children born with anencephaly. He would include those as deaths so their organs could be transplantable. Do you have any comment on that?
Lawler: In the first place, Iâ€™m very unimpressed with Veatchâ€™s work. He has actually switched his position on kidney markets. He has a very moralistic tone: â€œwell, as long as we allow poor people to continue to exist in America, we may as well give them a chance at life and allow them to sell their kidneys.â€ That is absolutely repulsive on so many levels. This death thing is even worse, because there are many things in life you can put in quotation marks, like for postmodern people, â€œtruthâ€ or â€œmanâ€ or â€œwomanâ€. But you donâ€™t want to put â€œdeathâ€ in quotation marks; you want to be pretty definite about death. You want to be able to say, â€œHeâ€™s dead.â€ The changing of the definition of death for human convenience is finally another argument for markets, because if you think about it, markets would be better than that. At least, you are exploiting people who are alive and know what they are doing. You donâ€™t want to start having looser standards on death.
You know, a lot of people wonâ€™t check â€œkidney donorâ€ on their card because they think, â€œTheyâ€™ll kill me to get my kidneys.â€ Right now, there is little to no evidence for that. But, if he were right â€“ if the definition become arbitrary and changeable â€” there would be potential.
The embryo issue is really tough but the people who say we canâ€™t kill embryos have this point. Any place you draw the line after the beginning is utterly arbitrary. You could go up to a baby, to a year-and-a-half. To find a solid scientific reason, itâ€™s really tough.
We have a council report that is going in the other direction, concerning brain death. Weâ€™ve learned from people on artificial respirators that the body can operate pretty well without the brain. But the definition of death as brain death is required to harvest organs. The best source of organs is where the heart is artificially kept moving so the organs remain as healthy as good organs can remain, but the brain is dead. Now, however, thereâ€™s real doubt that brain death is actually death. The trouble with a standard more severe than brain death is that it would close down the cadaver organ market altogether. There is actually a crisis among Vatican scientists on this, among people who are serious about death. Some are going in the other direction from Veatch, saying that â€œweâ€™re not 100% sure that what you call brain death is death, because it does seem that the human body can function for a while without the brain.â€ So Veatch recommending a standard more lax than brain death seems monstrous.
Riley: I appreciate your view there. I also wanted to ask you about a proposed law â€“ I believe most recently in South Carolina — whereby they would allow prisoners to donate organs. Where are you on that issue? Do you think prisoners can sign over an organ? Is that truly informed consent? Is there no hint of coercion there?
Lawler: Well, you know, it would be okay if they got nothing for it. I really donâ€™t believe that in the American penal system a prisoner would be coerced into giving up their organ. So if a prisoner, in a completely uncompensated way, had this burst of generosity and wanted to help someone out â€“ you can imagine if a prisoner finds out that his sister is dying of kidney failure â€” why canâ€™t that prisoner donate the organ?
But if thereâ€™s compensation â€” like â€œweâ€™ll reduce your sentenceâ€â€”that would be yet another argument for the market, because a market would be better than that. Prisoners are in desperate and horrible situations. It could be that a prisoner, being tortured by other prisoners or having unspeakable things happening to him, sees the only way out is to give up an organ. You surely wouldnâ€™t want that.
Here in Nashville is the executive director of a group called LifeSharers. LifeSharers is a non-profit organization that seeks to increase the number of organs that are available. People sign up with no fee (except for one-dollar for mailing), and the signee has a probationary period of 180 days, I believe. The agreement is basically that they agree that on their death, their organs will be donated, and go to someone on the LifeSharersâ€™ list. This is outside UNOS. I donâ€™t know if you have heard of LifeSharers or not, but they seem to be encroaching on UNOS, a bit. Do you have a reaction to that?
Lawler: My reaction would be, what happens to their standing on UNOSâ€”are they kicked off their list?
Riley: Not to my knowledge. I understand that you can be on simultaneous lists.
Lawler: Yes, Iâ€™m not really against it.
UNOS does some outstanding work, but I have two criticisms. They are very tyrannical; they wonâ€™t let anyone get around them, and they really donâ€™t have an argument for their position. They donâ€™t argue seriously against the market. They base their position too uncritically on the authority of the status quo.
So, obviously, if other people, dissatisfied with their work, wanted to do things short of a paymentâ€”I donâ€™t know why I should be against it. Iâ€™m saying this tentatively, not knowing enough about it.
Riley: I totally understand. I have met with the executive director of LifeSharers, and Iâ€™ve watched them for a couple of years, and I donâ€™t have any objection to what they are doing. It seems to be a reasonable alternative. Their point is that people who are willing to give up their organs should be the first on the list for transplantation, were they to need that. And so, currently I think they are still in the list procurement phase, and there have not been that many transplants as far as I know.
Lawler: I would be very much in favor of a modest national education program about there being no reasonable, no Christian argument, against organ donation, after youâ€™re dead. There are some superstitions about that.
The opinion of the family should finally prevail, but I really do think the donation of organs should be encouraged. In fact, getting on this list is only helpful if you die in the right way, and that isnâ€™t all that likely.
Riley: True. I have one more question for you: what do you think about the possibility of presumed consent? Not so much the term itself, but do you think presumed consent is a viable way to go?
Lawler: I would stop just short of that because it is a free country. Our limited government respects the decisions of families. I would be in favor of an educational policy that encouraged people to consent. I wouldnâ€™t be in favor of simply presuming the family would be okay with it, but I would be in favor of aggressively finding a family member to pursue consent. If presumed consent would make a lot of difference in the organs you would get, I would have to rethink it. But in fact, it wouldnâ€™t. It would not address the crisis in any significant way. And it would be a step weâ€™ve never taken before, in our free country. There are European countries where presumed consent is the law, but they are more statist than we are.
If someone were to show me that we could get 30,000-40,000 more kidneys a year through presumed consent, I would have to start scratching my head about it, truth to tell.
Riley: Thank you for your time. Do you have any final comments?
Lawler: I was glad to be able to talk about this topic. This is something I really didnâ€™t know anything about two years ago. I hope it reassures you that people on the Presidentâ€™s Council of Bioethics, although many of them are ordinary citizens and amateurs, do knock themselves out trying to become informed on these issues.
Riley: I appreciate your service on the Presidentâ€™s Council of Bioethics, and thank you for your time here today.