09/05/2012 12:23 pm ET Updated Nov 05, 2012

Do Current Organ Transplant Policies Restrict Potential Donors?

A friend of mine, a transplant surgeon, was emotionally recounting a recent experience. A young woman with organ failure desperately needed a transplant, but none was available, and she was sinking rapidly. She, her family, and the medical team expected that she would be dead before the morning, and she had already said her goodbyes. The team was in despair, knowing that they could have saved her if only the means had been available. Then, suddenly, news came that a donor had been found. Everyone rushed into action, and by the next day joy was unconfined.

That story had a happy ending, but its purpose was to emphasize the thousands of similar stories that end in tragedy. Innumerable people experience firsthand the misery of failing organs, and their doctors suffer the intense distress of knowing they have the skills to save them but not the organs themselves.

The trouble is that organs are not -- at least yet -- like other medical supplies and equipment, to be manufactured at will. All organs come from other people, and most of those other people demand rights over their own bodies, not only while they are alive but even when they are dead.

Many of us wish that the state could requisition the organs of the dead and use them to save the living, instead of allowing them to be wasted by burial or burning. As yet, however, public opinion is nowhere near allowing any such thing. Rightly or wrongly, we make much more fuss about the rights of the dead than the benefit of the living. When there are public scandals about transplantation, these are never about the lives lost that could so easily have been saved, but about organs said to have been improperly procured.

So what can the transplant community do? It is desperate to get more life-saving organs, but it knows that the whole project depends on public support. It must not seem too rapacious in its organ hunt, in case potential donors see their own rights as under threat, and donations fall even further. Instead, it tries to work by appeals to generosity and altruism. People must be assured that their organs cannot be used without consent, even though many patients will die in consequence.

But is this really all that can be done? Even if we accept that consent for donation is essential, it does not follow that procurement policies must remain as they are. There is a range of obstacles to organ procurement that has nothing to do with unwillingness to donate. Many restrictions in law and entrenched medical practice, some old and some new, actually prevent people from making their organs available in certain ways, or curtail their options in ways that may prevent their choosing to do so.

For instance, we know that many people are willing to offer kidneys in return for payment. They did it openly until it was almost universally prohibited, and of course the effect of prohibition -- to the extent that it succeeds -- is to reduce the supply of organs. Would-be vendors will not simply become unpaid donors. We also know that some people would like to impose conditions on the use of organs, because some tried to do it until that, too, was firmly disallowed. We may reasonably speculate, therefore, that many more people might be willing to donate their organs after death if they were allowed some say in who was to get them. We know that even if someone who dies has expressed positive willingness to donate, medics will not override the reluctance of the relatives, even when the law allows them to do so. Many potential donations are lost that way. And for a long time there was a general resistance -- now lessening -- to accepting so-called Samaritan donors: strangers who simply offer a kidney to anyone who needs one. All such policies work against the individual wishes of potential donors as well as the interests of patients. And once you start looking at procurement policies from this point of view, you find many such impediments.

Of course, the people who endorse such restrictions believe that they are morally essential, even if lives are lost as a result. However, philosophers and moral psychologists have long known that although our intuitive moral judgments are immediate and strong, they are often incompatible with other judgments we make with equal strength of feeling in other contexts. Furthermore, we usually do not usually seek out these contradictions and try to think them through; instead, we automatically launch into swift and ingenious attempts to keep all our intuitions intact. But if this kind of irrationality is actually causing the deaths of people who could be saved, as well as curtailing the preferences of the people who would otherwise make the necessary organs available, anyone who cares about those deaths is under a serious moral obligation to check with care the intuitions that underpin them.

I believe it can be shown that many such restrictions are unjustified, although here that claim can stand only as an assertion and a challenge. In the meantime, however, there is another matter to consider. These restrictions are not a response to public demand. They are rooted in attempts to slot organ donation into a framework of medical law and practice that it does not fit, and the conservatism of a medical profession reluctant to question its habits of mind.

The fundamental problem is that transplant technology has radically changed the status of organs. In making organs transferable between people, it has made them in many ways like other possessions, and it is pretty clear that this is how most people intuitively think of them. Their organs are theirs, which is why they not only demanded that their consent should be required, but also presumed that they were entitled to give them away, sell them, and bequeath them to specific other people -- until they were prevented from doing so.

Not enough people give organs within the current framework, but it does not follow that most people would resist a radical change to that framework. The question of what policies we should have about the control of organs is not a matter for the medical profession alone but one for the public at large, and it seems likely that most people, if consulted, would welcome the assurance that their organs should count as their property.

That would require many changes in medical law and practice. But it would also open new opportunities, and if, as seems likely, change would also result in more organs becoming available, it should be welcomed by clinicians who must now watch helplessly as their patients suffer and die.