Activity 3.2: The case of organ removal without permission (case 2.17) considered from a Kantian perspective
The trauma experienced by families who became aware that the organs of their dead children had been removed without their knowledge, let alone permission, raises a number of ethical issues. The following discussion ignores that a number of doctors acted deviously and deceitfully in falsifying records to keep their actions concealed from public gaze. Instead, the focus is upon the development of ethically-based rules of practice to govern the use of human organs. In this context, it is difficult, if not impossible, to construct a Kantian-based justification of the doctors’ actions.
Employing the concept of universalisability, categorical imperatives such as, ‘doctors should always allow their professional interests to override patients’ (or relatives’) interests’, or
‘doctors should always deceive patients’ are clearly flawed at both an ethical and practical level.
With respect to the former, such commands run counter to one of the formulations of the categorical imperative, i.e. the need to treat fellow human, beings as ends not means. In terms of the practical implications of such an imperative, if patients, or their relatives, knew that doctors could never be trusted the relationship between doctor and patient would become fraught and would be likely to seriously undermine medical treatments and research. This would clearly be against the interests of both patients and doctors.
At first sight only a consequentialist argument seems to offer an ethically-based way of resolving this case. For example, ‘doctors can exercise their discretion with regard to organ removal, when it can be shown that it is in the public interest for them to do so’. However, this leaves much to interpretation, with future, but unspecified, research needs an escape clause for a repeat of the behaviour reflected in this case.
Some would argue that a principled approach is still possible in this example by way of prima facie obligations that are discussed in chapter 3. For example, the initial principle could be,
‘Doctors must consult with and respect the wishes of patients, or their relatives, before the removal of organs can be undertaken’. However a caveat, or higher ranked principle, might be stipulated such as, ‘Where it is not possible to obtain patient permission prior to death and the authority of close family relatives is not possible to obtain within the time constraints pertaining to a specific case, doctors have a prima facie obligation to act in the interests of a living patient who is in critical need of an organ transplant’.
Such an exemption clause does but give, carte blanche authority to doctors, to remove organs merely because they might or might not prove useful at some time in the future to aid their personal research agendas. The initial principle that authority must be obtained from, either the patient or his or her immediate family, can only be overridden in special and very limited circumstances. For consequentialists this might sound like a cop-out. They might argue that a principle is either a principle, or it is not. There can be no fudging of the issues. Those who defend the use of prima facie obligations would respond that it is important for ethics to be principle-based, but that a rigid and inflexible interpretation of universalisability, with no exceptions admissible, can bring a generally sound principle into disrepute. The few exceptions when the initial principle is shown to be problematic could undermine its claim to be a general and acceptable rule of high ethical practice.
Bowie’s second formulation of the categorical imperative is ‘respect for humanity in persons’,
i.e. in this case the wishes of the patient, or her or his relatives, must be respected, even if they stipulate a refusal to allow organ removal to save another life or aid research. Such an approach places the interests and wishes, of the individual above those of the broader societal perspective.
At the present time the default position with regard to organ removal is that those who specifically wish to make there organs available for use after their death should carry an organ donor card on their person. Without this card it must be assumed that the individual concerned does not wish to donate their organs to medical research. However, some argue that the relatively low level of take-up of organ donor cards is more to do with lethargy on the part of the public, than outright opposition to organ removal itself. As result some have argued that the default position should be that, upon death, organ removal should be permissible, unless the deceased is carrying a card prohibiting organ removal. The justification for such an approach can be based upon either:
• pragmatics (and possibly humanist beliefs), i.e. medical research is in desperate need of good quality organs and unless individuals expressly prohibit their removal, the default permission should permit removal because healthy organs are of no use to the deceased and should be available to extend the life of other human beings, or,
• a principled approach, with the principle respecting the rights of the individual to refuse organ removal, but that if no disclaimer is carried, then the rights and claims of individuals
(and their relatives) over organs and other body parts, ceases upon death.
Clearly such an approach raises a profound question regarding the sanctity of the individual.
The right of doctors to remove organs from a deceased person, unless a card prohibiting such an act is carried by the deceased person, infers that organs are only the temporary property of the individual. Upon death ownership of the organs, maybe the whole body, reverts to ‘society’ (in the form of doctors), for decisions to be made as to how best to use the body’s healthy organs.
There is a risk that the notion of ‘the selfish gene’ (i.e. the human body is only a carcass, or mechanism, for perpetuating and helping genes to develop and evolve), will have taken root in society in a very profound way. Paradoxically the intervention of doctors in the evolutionary process via the transfer of organs from one human to another is a source of ‘contamination’ of the evolutionary process about which no one has any idea of the longer term implications. The whole area of genetics and the human-genome project are replete with issues of profound social and human consequence.

Activity 3.3: AIDS drugs and South Africa considered from a Rawlsian perspective The Rawlsian mechanisms of imagining oneself in the original position, that is, behind a veil of ignorance, waiting to discover the ‘cards’ you will be dealt with which you will have to handle the travails of life, is an interesting one to employ when considering this case.
A significant proportion of pure medical research, as well as generic research, is in the hands of private pharmaceutical companies, either in the form of their own laboratories, or their funding of the medical research projects of universities and charitable organisations. As the case narrative explains, if these companies are to maintain their pursuit of ‘leading-edge’ research, with the need to fund the failures that such research inevitably includes, then they must be allowed to achieve profit levels that are commensurate with the risk of this type of research.
That, or governments or super-governmental bodies, such as the UN must become more involved in the funding of ‘blue-skies’ research and/or the subsidising of the price of drugs. If governments do fund ‘pure’ research then, with the transfer of the risk of failure away from the pharmaceutical companies, the profit element of such contracts should be reflected in the prices of drugs.
The most significant part of the world affected by AIDS is currently the southern African continent, with indications that AIDS might be becoming a significant problem in both China
(estimated to have 1 million AIDS sufferers in 2002 and a projected figure of 10 million by
2010), and India2. With the populations (and particularly the birth-rates) of the countries most affected by AIDS representing significant proportions of the world’s population, the chances of any of us (from a Rawlsian position) being borne into a family that lives in one of these parts of the world are far greater than being borne in, for example, Sweden or the UK. Thus, whilst
AIDS is without doubt a serious issue for all countries, in some of the countries of southern
Africa in particular, it is nothing short of a fight to avoid the extinction of the nation. If the disease takes hold in India and China, the repercussions will be staggering.
The 14th International AIDS Conference was held in Barcelona in July 2002. At the conference it was disclosed that in 2002 almost 40 per cent of the adult population of Botswana was infected with AIDS, and the average life expectancy had fallen below 40 years. Twenty-eight per cent of Botswanian females aged between 15 and 19 had AIDS. The projected life expectancy of a Botswanian citizen in 2010, had AIDS not existed, was forecast to be 74.4 years. The forecast life expectancy in 2010, given the existence of AIDS, is 26.7 years. By 2010 it is forecast that in eleven African countries the average lifespan will have fallen to just a little over 30 years of age3.
The chances of a Rawlsian position dealing an individual the card that says he or she will be born Botswanian might be small, but it is a possibility? It is worth reflecting upon the clamour for action and resources if the 40 per cent of a nation’s population being affected by AIDS applied to a country in western Europe or America. You might also like to reflect upon the fact that with over 2.2 billion of the world’s population living in either China or India, there is a high likelihood that in Rawls’ original position they will find themselves born in a country with limited resources to fight the AIDS pandemic.
Interestingly, as the information provided in case 2.3 reveals, Indian companies (sometimes illegally) are producing and selling one of the AIDS drugs for about 8 per cent of the price sold by the patent owner.
To complicate matters, whilst the President of Botswana has called for an all-out war on AIDS, the President of South Africa (President Mbeki), in 2002, still refused to acknowledge that
AIDS was a significant problem for his country and (in 2002 at least), few if any resources were directed towards the fight against AIDS in South Africa. Thus,

• If you were to be born in a country in southern Africa, would you rather it were Botswana or South Africa?

• With these prospects in mind, are you still of the view that the issue over the price of AIDS drugs to the countries of southern Africa, China and India (and all countries for that matter), is simply a matter of market forces?

• Does the Rawlsian position dictate that, even if only from an enlightened self-interest / risk averse perspective, there is a case for morality and notions of justice being influential factors in shaping the debates between governments and pharmaceutical companies over the availability and price of AIDS drugs?