More challenging are cases where the potential donor is cognitively impaired to the point where he cannot understand what is being asked of him. In the scenario of Morty and Lou, Lou may cry out against doctors, but conjecturing on whether he would consent to a brief medical procedure in order to continue to enjoy the occasional company of his brother is a purely speculative endeavor. No consensus exists on how to handle such situations. Doctors can sometimes turn to the patient’s closest relative for guidance, but in Lou’s case, that relative has an obvious conflict of interest.
One Kentucky court in 1969 went so far as to order Jerry Strunk, a cognitively impaired twenty-seven-year-old, to donate a kidney to his brother. More often, a complex cost-benefit analysis comes into play—one that weighs the hardship to the potential donor, the stakes for the potential recipient, and the emotional benefit that the recipient’s survival affords the donor. In this case, Morty’s life hangs in the balance while the costs to Lou are low, so the doctors might be able to justify obtaining a court order for the procedure. Yet one ought not lose sight of Lou’s vulnerability as a person unable to fend for himself. As the potential medical risks of an intervention rise, the arguments for invading a person’s bodily integrity prove increasingly more challenging to justify.
18
Organs for Celebrities
Roy was a star Major League Baseball player. After his retirement, he develops a severe alcohol problem that leads to acute liver failure. Without a liver transplant, he will die. He is currently a patient at Legends Hospital.
It is a long-standing policy at Legends, and at most (but not all) hospitals across the country, that patients must demonstrate six months of sobriety before receiving a liver transplant. This policy—which is not a law, merely a widely followed guideline—prevents active alcoholics from receiving livers, which they are likely to damage with additional drinking. Roy, unfortunately, arrived at the hospital drunk and in partial liver failure three days earlier; he cannot wait six months.
Dr. Diver, the senior transplant surgeon, tells her team to list Roy as a candidate for a liver transplant. “He’s an alcoholic, and he’ll likely lose the liver,” says Dr. Diver. “But there’s always some possibility that he’ll turn himself around. And if he does, do you realize what a successful transplant for a famous patient like Roy will do for organ donation? Consider how many more people will agree to be organ donors! In the long run, we’ll save thousands of lives!”
Is it ethical to make Roy a liver candidate for the reasons advanced by Dr. Diver?
Reflection: Favoritism
A long-standing perception exists—whether accurate or not—that celebrities receive favoritism in the allocation of scarce organs. During his second term in office, Governor Robert Casey of Pennsylvania received a heart-and-liver transplant after waiting for a donor less than twenty-four hours in 1993. Television actor Jim Nabors and singer David Crosby obtained livers in under a month, while the median waiting time is 208 days. Yet few organ recipients have generated as much controversy as baseball slugger Mickey Mantle, who received a liver one day after announcing he needed a transplant in 1995, and died two months later of liver cancer. Whether or not Mantle benefited from favoritism—and there is no compelling evidence at this point that he did—the possibility that he had “jumped the line” generated much public criticism, as well as soul-searching among transplant providers and ethicists. Mantle’s own transplant team was concerned that the appearance of favoritism would do damage to the organ allocation system.
Concern for the perception of favoritism is an ongoing issue in the allocation of organs that extends beyond celebrities. For example, an organization called Renewal, founded in 2006, has worked to further altruistic kidney donation within the Jewish community. The donors are generally ultra-Orthodox Jews seeking to do a good deed, or mitzvah. Only half of the recipients are religious, yet all but one have been Jewish—reflecting an unspoken principle underlying Renewal’s recruitment system. In the Forward, writer Paul Berger estimated that while Hasidic and Haredi Jews account for 0.2 percent of the US population, they made up 17 percent of all altruistic kidney donations in 2014.
Advocates for allowing such religiously targeted donations note that they not only save lives in one particular group, but they also free up organs that can be used by others on the waiting list. If Renewal arranges for a Jewish patient to receive a kidney, that is one less person ahead of a non-Jew waiting for a kidney. Alternatively, without Renewal, these donors would likely not donate any organs at all. Critics object that should people come to perceive the organ donation system as favoring certain ethnic groups, people of other backgrounds may prove reluctant to donate organs in the future—and the overall pool of donor kidneys might actually decline.
In the case of baseball star Roy, Dr. Diver wants to alter the criteria for eligibility. The United Network for Organ Sharing (UNOS) uses criteria known as the Model for End-Stage Liver Disease (MELD) score in determining who receives cadaveric livers—generally allocating them to the sickest patients. Yet transplant teams also evaluate patients for eligibility based upon social and psychological criteria. The goal of these screenings is to weed out potential recipients who will be unable to take care of transplanted organs—either because they lack social support or are unlikely to comply with the complex regimen of follow-up care that successful transplantation requires.
Although active alcohol use has historically been an exclusionary criterion, because it may predict long-term transplant failure, a few medical centers have recently pioneered transplants in patients with acute-onset alcoholic hepatitis. Giving transplants to otherwise-qualified alcoholics who pledge to stop drinking is highly controversial; long-term data does not yet exist on the outcomes of these cases. Advocates argue that alcoholism must be treated as a disease like any other—and such patients should be afforded the benefit of the doubt. Critics note that, in the context of a widespread organ shortage, each organ given to an alcohol abuser means a nonabuser waiting for an organ will die, while there is a strong chance the organ recipient will prove noncompliant and die too.
A utilitarian argument—favoring the greatest good for the greatest number of people—does not necessarily favor Dr. Diver’s approach. It is possible that a successful transplant for a celebrity athlete like Roy would generate more donor organs, but another, more troublesome possibility also exists: the public would perceive favoritism in an allocation process that advantages the wealthy and famous, which would lead to fewer donations.
19
Ads for Organs
Tex is a wealthy oil tycoon in need of a liver transplant. Since the waiting list for livers is long, he decides to take matters into his own hands. He places billboards all over his state that read tex needs a liver. please help! He advertises on both radio and television, asking anyone with a loved one who is in a fatal accident to earmark the victim’s liver to go specifically to Tex. In the ads, Tex touts himself as a model citizen, a veteran, a churchgoer, and a patron of the arts.
Soon after the billboards go up, the wife of an unconscious patient on life support announces that she will donate her husband’s organs only if the liver goes to Tex. In Tex’s state, hospitals generally will not authorize transplants unless the patient has given written instructions in advance or the patient’s nearest relative consents.
Should Tex be able to “jump the line” and solicit a liver in this way?
Reflection: The Free Market of Medicine
Advertising is both ubiquitous and highly efficacious. In 2014, the nonprofit organization Re-Born to be Alive hired Belgian advertising firm Duval-Guillaume to promote organ donation. The result was a series of ads that depicted individuals engaged in foolish, life-threatening behavior (e.g., using a blowtorch alongside an oxygen tank) with the tagline “8 of his organs can be donated. Luckily for us his brain is not one of them.” The campaign was noncontroversial and highly successful. More contentious are efforts by private individuals, lik
e Tex, to advertise for organs on their own.
In the United States, the allocation of most organs is managed by the United Network for Organ Sharing, a nonprofit organization that follows rules enacted by the US Department of Health and Human Services. The so-called Final Rule of March 2000, which governs the allocation of organs, allows donors to earmark their body parts in advance of their deaths. And under limited circumstances, this approach makes sense: If the close relative of a patient on the waiting list dies suddenly, a strong moral case can be made for allowing the family to transfer the organ to their own kin—as doing so likely would fulfill the wishes of the deceased, may tip those on the fence into donation, and does not in any substantial way undermine the fairness of the existing system. Presumably, the rich and powerful are no more likely to benefit from such intrafamilial allocations than the indigent.
In the years following the enactment of the Final Rule, well-off individuals like Tex have taken to advertising for organs. In 2004, cancer patient Todd Krampitz of Houston advertised for a new liver on billboards, ultimately receiving a liver from an anonymous family that earmarked the organ specifically for him. (Krampitz, thirty-two years old, died of his disease eight months afterward.) A year later, thirty-one-year-old Red Cross publicist Shari Kurzrok, diagnosed with acute liver failure, advertised for a donor in the New York Times. (She ultimately received a liver from the waiting list, married, became a mother, and has enjoyed a successful career in advertising.) Ethicists and transplant physicians remain deeply divided on the ethics of these maneuvers.
Critics like New York University’s Arthur Caplan argue that allowing patients like Krampitz and Kurzrok to jump the line undermines the fairness of the system. Under federal law, organs are supposed to be allocated to those patients most in need, regardless of wealth or influence—and allowing the rich and powerful to run ad campaigns circumvents that principle. The risk also exists that others will perceive the system as unjust and will refuse to donate. As a result, UNOS and the American Society of Transplant Surgeons have both issued statements opposed to such advertising campaigns, including open solicitation on the internet and social media.
Yet even without advertising, donors from the community often step forward to give organs to celebrities. Supporters of advertising are aware of the potential image problems created by such donations, but believe that the practice will increase the overall availability of organs. For example, there is no reason to believe that the family who donated to Todd Krampitz would have given an organ otherwise; any patients who secure outside organs through advertising, the thinking goes, also free up organs for others on the waiting list.
In 2005, Alex Crionas learned the hard way precisely how divided the medical community remains on the subject of advertising for organs. He had lined up a kidney donor, Patrick Garrity, only to be refused a transplant by his local hospital’s transplant-coordinating nonprofit because he had advertised for a donor online. (Ironically, he had not met Garrity through his online ads.) Fortunately for Crionas, he was able to transfer his care to another hospital, which performed the transplant successfully with no ethical objections.
20
Transplantation on Death Row
Janet is an inmate on death row. She was accused of killing her stepmother with an ax—a charge she adamantly denies—and was convicted three months ago. Her case is now on appeal. Typically in the state where she was tried, ten to fifteen years elapse between conviction and execution, and 50 percent of defendants initially sentenced to death end up having their sentences either overturned or commuted.
While in prison, Janet develops partial heart failure due to a viral infection. She will require a heart transplant to survive. On a positive note, because she is a prisoner, she would likely receive excellent and consistent medical care to ensure the survival of a transplanted heart. At the same time, since hearts are scarce, if Janet were to receive a heart, someone else on the waiting list would likely die while waiting.
Should Janet be eligible for a heart transplant?
Reflection: Prisoners’ Rights
The US Supreme Court ruled in Estelle v. Gamble (1976) that prisoners cannot be discriminated against in the delivery of medical care. Denying healthcare to inmates, who are at the mercy of the state, amounts to “cruel and unusual punishment.” As a result, convicts facing stiff terms of incarceration have received costly government-financed organ transplants—including a California robber who garnered a $1 million heart transplant during the fourth year of a fourteen-year sentence and a Minnesota murderer who benefited from a $900,000 bone marrow transplant. Yet organs are scarce resources—and in the case of an inmate facing execution, some might view transplantation as effectively squandering a lifesaving organ.
The media often focuses on death row inmates who wish to donate organs prior to, or at the time of, their executions. In 2011, Governor Haley Barbour of Mississippi freed Jamie and Gladys Grant, two sisters facing life in prison for robbery, so that one could donate a lifesaving kidney to the other—a decision criticized by some ethicists as conditioning release on organ donation. Christian Longo, an Oregon inmate facing lethal injection for killing his wife and three young children, founded an organization called Gifts of Anatomical Value From Everyone, which seeks to allow death row inmates to donate their organs. Indiana killer Gregory Scott Johnson unsuccessfully sought a stay of execution in 2005 in order to donate a liver to his ill sister. Critics of allowing death row inmates to donate organs fear that prisoners will act in the hope of obtaining clemency or that the state will coerce such donations, as is rumored to occur in several foreign nations.
If condemned prisoners rarely offer to donate organs, still rarer is the death row inmate who seeks listing to receive an organ. The most prominent case is probably that of Horacio Alberto Reyes-Camarena, a convicted killer from Oregon who sought a kidney transplant in 2003.
A consensus exists among all stakeholders in the organ allocation system that perceived social worth will generally not be considered in the distribution of organs. Factors like one’s economic status, occupation, and contribution to society should play no role in determining who receives a lifesaving heart or liver. Notably, this was not always the case with critical interventions. In 1962, Seattle’s King County Medical Society established a so-called “God committee” that did use social worth as a determinant in allocating scarce dialysis treatments. A profile of the committee’s deliberations in Life led to public outrage—and ultimately, to federal funding for all dialysis care.
In contrast, while social worth is not considered an acceptable factor in allocating organs, some degree of controversy remains regarding whether “moral responsibility” for one’s illness should play any role in the recipient selection process. This debate has largely focused on alcoholics and drug users seeking liver transplants—with the current approach excluding moral responsibility as a factor in allocation. An alcoholic may be denied a liver because of his current drinking habits or his likelihood of relapse, but not because he caused his liver to fail. Suicidal patients who remain at high risk of repeat attempts raise similar concerns.
In the case of death row inmates, one might argue that denying prisoners like Janet organs has nothing to do with their crimes, only with impending punishments that will reduce the life expectancy of the organs. Yet in many jurisdictions, the average death row inmate spends more time awaiting execution than the average transplanted organ survives—even with excellent medical care. Reyes-Camarena is himself an example of this irony. The life expectancy of a cadaveric kidney, for instance, is roughly thirteen years. Sentenced to death in 1997 and denied an organ transplant in 2003, Reyes-Camarena remains on Oregon’s death row more than fifteen years later.
21
A Chimp Heart
Baby Shirley is a five-month-old girl with a severe congenital heart defect. Without a transplant in weeks, she is likely to die. The odds of a heart becoming available during that period are low—maybe 20 percent
at best.
Her cardiologist, Dr. Welby, approaches Baby Shirley’s parents, George and Gertrude, with a novel idea. “We could try implanting a baby chimpanzee heart,” he says. “It’s never been done before, but I think it’s worth a shot—better than waiting for a twenty percent chance of an organ becoming available while watching your daughter die. It would also be a great step forward for science if we succeeded.” A live chimpanzee would have to be euthanized for this transplant to occur.
Is transplanting a chimpanzee heart into Baby Shirley ethical under these circumstances?
Reflection: Xenotransplantation
The history of xenotransplantation—the transplanting of organs across species—is largely a history of disappointed hopes. In 1963–1964, at a time before dialysis or human organs were widely available, surgeon Keith Reemtsma transplanted chimpanzee kidneys into thirteen human patients; the longest-surviving recipient lived nine months. In 1964, three years before Christiaan Barnard performed the first human-to-human heart transplant, James Hardy transplanted a chimpanzee heart into a dying patient, Boyd Rush; Rush died within two hours. Thomas Starzl attempted chimpanzee-to-human liver transplants on children in 1966, 1969, and 1974. None succeeded. (On Starzl’s fourth try at xenotransplantation, in 1992, the human recipient of a baboon liver survived seventy days.) Likely the best-known and most controversial case of xenotransplantation occurred in 1984, at California’s Loma Linda University Medical Center, when Leonard L. Bailey transplanted a baboon heart into an infant suffering from hypoplastic left heart syndrome. “Baby Fae” rejected the organ twenty-one days later. Her case generated considerable negative publicity for animal-to-human transplants.
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