Ethical Considerations in Organ Transplants

Dr. David L. Perry

Adapted from lectures given by the author at Seattle University, Santa Clara University, and Dickinson College.

The ability to keep someone alive by replacing one or more of their major organs is an astounding achievement of 20th-century medicine. Unfortunately, the current supply of transplant organs is much lower than the need or demand for them, which means that thousands of people die every year in the U.S. alone for lack of a replacement organ.

Ethical issues arise in connection with both the Procurement of transplant organs as well as their fair Distribution. Under Procurement, there are theoretically a number of ways that we could reduce the current gap between organ supply and demand:

We could reduce the need or demand for transplant organs by addressing many of the causes of organ loss: if we exercised more, ate healthier foods, drank only in moderation, and didn't smoke, we'd be more likely to avoid diseases of the heart, liver, kidneys and lungs. We may also be able soon to use genetic testing and engineering to prevent or delay the onset of genetic diseases that cause organ failure.

We could also increase the supply of organs in various ways. We could foster greater public understanding of the need for organ donation and the safeguards in place to guarantee that patient care always overrides organ harvesting, in order to enhance public trust. Doctors could have conversations with patients and families well before a health crisis occurs, instead of waiting until patients have died and families are overwhelmed with grief.

We could also change our laws to imitate those of Belgium, Brazil and others, where instead of requiring the explicit consent of a donor or family, consent would be presumed unless explicitly stated otherwise. I think that change is unlikely to occur in the U.S., though, in part because it would undermine trust in doctors not to sacrifice patient care in the interest of harvesting organs.

There have been some proposals in this country to use the organs of anencephalic infants, since they are born lacking any capacity for consciousness and typically die within hours or days of birth, and their organs could save the lives of many other infants. Anencephaly is a condition where the cortex never properly develops in the fetus. But since anencephalic infants are not legally dead, taking their organs would at least contradict the "dead-donor rule," which makes the approval of that procedure by the American Medical Association puzzling to me.

We could encourage more living donors of single kidneys, parts of livers, even a lung, though concerns arise there about imposing risks on otherwise healthy donors (even if they receive no financial compensation), and family members may experience undue pressure to donate. Some parents have even conceived babies in order to create a match for older siblings, e.g., who may be dying of bone-marrow disease. And recently, the family of a man who suffered severe brain damage allowed one of his kidneys to be taken from him and given to a relative. This was controversial, but you might ask yourself: if you permanently lost your capacity for consciousness, would you want to donate your organs at that point?

There is also some possibility of perfecting xenotransplants, i.e., organs transplanted from other species into human beings. That has actually been tried: e.g., a few years ago a doctor transplanted a baboon heart into a baby girl who was dying of heart failure. But nobody has yet survived such a procedure for very long, because our bodies react defensively to animal organs as foreign threats, and destroy them fairly quickly even with anti-rejection drugs. Some scientists are now breeding transgenic animals to make it less likely that our bodies will reject their organs. E.g., human genes have been implanted in pigs with the goal of fooling the human body into treating a transplanted pig organ as if it were human. But xenotransplants also raise concerns about bringing animal diseases into the human species, allowing viruses that might not be deadly to them to mutate into forms that are deadly to us. HIV, for example, is thought to have entered the human species in Africa from chimpanzees that had been eaten.

We might be able soon to grow usable organ tissue and even whole organs from stem cells. But in order to create an ideal match for a patient, we would also need either to genetically engineer other people's stem cells to prevent the patient from rejecting the organ, or create embryonic stem cells by cloning the patient's own cells.

Finally, we may also come to perfect synthetic organs that would not only fit inside our bodies but last as long or longer than a natural organ. A kidney dialysis machine is a kind of artificial organ that has been around for over 40 years, but it's too big to implant inside someone's body. Artificial hearts that are small enough to implant have been developed and tested, but none have worked well or long enough to be worth mass-producing.

So with some combination of the above options, we may someday be able to eliminate organ scarcity. But until then, the limited supply of organs relative to demand means that many people will continue to die for lack of an organ transplant.  Deciding who gets a transplant is therefore often a decision about who lives and who dies. How then shall we allocate highly scarce human organs such as livers, hearts and lungs? What criteria or procedures of Distribution are most fair or just?  Consider the following:

Ability to pay (via cash, credit, or insurance coverage): Should hearts and livers be treated like other scarce commodities or luxuries? (A heart or liver transplant is much more expensive than a BMW or Mercedes.) Libertarians might argue in that way, especially given their resistance to being forced to pay for most social services. But this approach tends to reinforce existing economic inequality, and seems harsh and unfair toward the poor, especially when they're encouraged to donate organs. A scarce resource that is necessary for someone to continue living is not a luxury. This criterion also ignores the role of public financing in developing transplant technologies; in other words, taxpayers have a legitimate claim on an organ transplant even if they can't personally afford one.

Preferences of donor or kin: Consider the case of a woman who wanted to donate her heart to her parish priest in gratitude for his kindness toward her over many years. But donors and families occasionally exhibit bigotry, e.g., racists may refuse to donate their organs unless promised that they will go only to people of their race. Transplant centers hate to go along with such demands, and many would not. On the other hand, if a bigoted demand were refused, the organs would go to waste.

Favor the citizens of one's region and nation: This seems fair in light of taxpayer support for medical progress and the distribution system. But what if foreigners--or resident aliens--are more needy? (Note that the Clinton administration virtually abandoned the previous system of regional preferences within the U.S.)

Need: Obviously the degree of need has to be factored into organ allocation decisions. But what if two or more transplant  candidates are equally needy? How shall we decide which one of them gets an organ? By lottery? By seniority or place in line ("first come, first served")? Unfortunately where seniority is the rule, some physicians are tempted to list their patients too early, in other words, to exaggerate the severity of their condition.

There are further questions about patients who've already had a transplant but whose new organ is failing: Should they get another transplant, given their dire need, or should others have a chance at a first transplant?

In addition, there are opportunity costs to society in funding transplants for all who need them: unless taxes and insurance premiums are substantially raised, funding for other important medical treatments would have to be cut. Public spending might also have to be cut in non-medical areas such as education, police, military, or infrastructure. For example, kidney dialysis and transplants, both very expensive, are funded by Medicare even though many basic treatments are not provided for the poor.

Benefits to recipients: This criterion is often phrased in terms of "medical utility," where priority among the needy is given to those with the best prognosis. In effect this involves calculating who will make the most efficient use of a highly scarce
resource. Typically one would consider overall health, age, ability to comply with the regimen of anti-rejection drugs, and support system (family, friends). One also tends to rule out patients with malignant cancers, continuing substance abuse, or a history of non-compliance with medical directives. Often debilitating mental conditions like psychosis, dementia or Downs also disqualify someone. But are all of these qualifications fair? E.g., should a young person always take priority over an older one? Should a mentally retarded person automatically be assumed to be incapable of sticking to their anti-rejection medication?

Even more controversially, should benefits to non-recipients count, too? E.g., should we give priority to a parent over a single person, or favor a corporate or community leader over an antisocial recluse? Should we give preference to talented young scientists, athletes, artists, musicians and novelists, on the grounds of their potential contributions to society?

Should we consider merit or desert? E.g., reward contributions to society's needs, knowledge, or technical progress, or penalize knowingly destructive behavior toward others or oneself?

As you can imagine, these factors are usually very difficult to assess objectively. Personal biases regarding "social worth" can easily infect assessments by committees, such as one at Seattle's Swedish Hospital in the early 1960s that decided who could obtain kidney dialysis. Also, consider that utilitarian and merit criteria obscure the value of individuals' lives to themselves.

But let's consider one train of thought more carefully. Should one's past choices count in deciding whether one deserves an equal shot at a life-saving and very scarce resource? If there are two individuals with equal needs and prognoses, but only one liver available, should it matter that one candidate's liver was destroyed through no fault of theirs, while the other candidate was an alcoholic for ten years? Note that this is distinct from an estimate of medical utility, or how much the individual could benefit from the organ or efficiently use it. Alcoholics even today have to show a period of abstinence and enough discipline to stay on a post-transplant immuno-suppressive drug regimen before they're placed on a waiting list.

Some ethicists believe that it's unfair to penalize alcoholics, but others disagree. Here's how the debate played out some years ago in the Journal of the American Medical Association (Moss & Siegler vs. Cohen et al.):

Point: Alcoholism is a disease, so it's unfair to hold alcoholics responsible for the destruction of their livers.

Counterpoint: Yes, but it's fair to expect them to seek treatment to stop drinking; Alcohol-Related End-Stage Liver Disease typically results from 10-20 years of hard drinking.

Point: Many other patients' health problems can be traced at least in part to their own risky behaviors, but they are not for that reason alone ranked lower than others needing the same treatments; hence it would be unfair to penalize alcoholics for their past behavior.

Counterpoint: There's a dire scarcity of livers, unlike most medical treatments. When people who aren't responsible for the destruction of their livers will die without a transplant, it's fair to rank alcoholics lower on the priority list, though perhaps not to exclude them completely.

I tend to think that this argument would have similar implications regarding heart transplants for smokers, since smokers know that their habit can harm their hearts and lungs. Is it really plausible for someone whose organ is failing to say, "I realize that I smoked or drank heavily for many years, knowing that doing so would very likely destroy my heart or lungs or liver; nevertheless I have the same right as anybody else to a new organ"? Has that person in effect forfeited his or her otherwise equal claim on an organ transplant? As you'll see in "Tough Choices on Heart Transplants," that's essentially the position I've taken regarding violent felons....

Go to Dr. Perry's CV.