Thursday, July 3, 2008

When life hangs by a legal thread

July 3, 2008

By Andy Ho

THE first prosecutions in Singapore for trafficking in human organs have occurred. Last week, two Indonesian men pleaded guilty to committing the offence here.

The law requires that live donations be altruistic. Thus only close relatives of or those with strong emotional ties to the sick person may donate an organ.

But this rule can cost lives. In 2002, Selvarani Raja died waiting for a liver transplant though she had a distant cousin in India who was willing to donate but could not prove that no money was involved in the process. At the very same time, TV actor Pierre Png was permitted to donate a lobe of his liver to actress Andrea D'Cruz. The pair got married later.

Both women had developed liver failure after taking a slimming pill. Donor motive apparently determined who lived and who died in these two cases.

Health Minister Khaw Boon Wan said recently: 'If it is motivated by financial transactions, then we think it is definitely wrong, morally and legally...I can understand why some patients become desperate because it is about life and death. But no matter how desperate the situation is, we must never break the law.'

Most desperately ill patients would likely require a more robust reason than not breaking the law in the face of death. Even if it were morally wrong to break this law, that moral wrongness does not appear sufficient to overwhelm the moral good of living rather than dying.

If there were a law against lying but if telling a particular lie would save an innocent life, I think many of us would willingly break the law against lying.

According to a 2002 National University of Singapore study, in addition to altruistic values, it was largely spiritual beliefs that determined one's willingness to donate organs. But since there is no homogeneity of spiritual values, we cannot impose a particular set on all. Some of us see nothing morally wrong in the sale of organs.

Take a willing seller who is fully informed and thus transacts, knowing the risks involved. Since there is no coercion involved, there can't be anything morally wrong in him selling his organs in and of itself.

Of course, if there is a market for organs, some sellers might not be fully informed and they might, in effect, be exploited. But this simply means that consequences flow from a market in organs, not that selling or buying organs is morally wrong per se. Thus not all will agree with Mr Khaw. More compelling reasons are needed to justify the ban.

Perhaps one might agree with the German philosopher Immanuel Kant who argued that our body parts are not property. He said: 'The body is part of the self; in its togetherness with the self it constitutes the person; a man cannot make of his person a thing.'

If our organs are parts of our persons, not property, they should not be sold. That would presumably be because they are needed to sustain life. But it does not follow that a spare kidney should not be sold too. Life-sustaining plasma, for instance, is sold without any opprobrium.

Also, if we agree with Kant that our organs are not fungible property, then even altruistic organ donations should not be permissible. To overcome the Kantian objection, one must assume charity outweighs everything else. Perhaps. But uncharitable attitudes might also accompany a donation with no money involved.

For example, if tested and found to be a compatible match, one might feel compelled to donate an organ to a sibling, in part for fear of being stigmatised by family and clan if one refused. Such a person would still be permitted to donate according to the rules here.

Likewise, the shopkeeper who gives me correct change in the hope of repeat business, though he deserves no praise, is still seen to be doing what is morally right, his motive notwithstanding. In short, motives - altruistic or not - don't really matter to the morality of our actions. Indeed, there seems to be no obvious reason why motives should matter to policy. We can regulate only behaviour, not motive.

Donating an organ may be a virtue but selling it is not necessarily a vice. I could give my things away to the Salvation Army but I could also hold a garage sale and make some money out of it. The market is no antonym to virtue.

What is so cynical about the altruism gambit is this: It is fine that transplant surgeons, hospitals, labs and drugmakers all make lots of money from the whole process that cannot begin unless the organ in question is made available. Yet the person with the organ - the first link in the whole 'value chain' - may not also benefit financially from the transplant.

Surely what is sauce for the goose is sauce for the gander. We have marketised health care. So why the sudden skittishness about a market when it comes to organs?

Some supporters of the ban might argue that no one should be confronted with such a wicked choice as selling part of one's body just to keep body and soul together. That is, if there were markets for organs, the poor would be even worse off than they are now, finding themselves smack in the middle of such a wicked situation.

Yet it would not be the presence of such markets that would make for the wickedness. Instead, it would be the absence of other options for the poor that is wicked. For that, society as a whole should be held accountable.

I am not arguing that a market in organs, especially a poorly regulated one, would have no ill effects whatsoever. I am arguing that there is no good non-paternalist defence for banning what are in fact capitalist acts undertaken between consenting adults.

The prohibition on organ sales is not without cost. Propped up by platitudes about human dignity, the ban condemns patients to die before their time. Needlessly.

But there is hope yet. At least one country - Iran - has decided that a legal market in organs is quite acceptable. In Iran, neither willing seller nor desperate buyer need fear prosecution. There, patients in need of an organ have another shot at life.

[As usual, Dr Andy Ho writes a great piece.

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