HEC Forum (2009) 21(2): 135149

DOI 10.1007/s10730-009-9093-x Springer 2009

The Ethics of Organ Salvaging on Deceased Persons

Valrie Gateau

This paper analyzes the various modes of organ retrieval performed on

deceased persons, both as they were initially conceived and as they are
currently formulated. It first shows on which principles the modes of consent
that were initially implemented by countries resorting to transplant rested,
and it offers an analysis of the limits of these modes for the supply of organs.
Secondly, it provides a critical review of the new solutions that have been
suggested to compensate for the chronic shortage of organs with which
transplant teams are faced. Finally, it advocates a definite form of an ethics
of organ salvaging, whose aim would not be to compensate for the shortage
of organs (can it really be compensated for?), but would rather try to found
current (and future) organ retrieval and transplant practices on fair
information with regard to health and social issues raised by each solution.
This information would then allow individuals to be genuinely involved in
transplant-related social and personal choices.

The Limits of Current Modes of Consent

When it became possible to transplant organs retrieved from brain-dead
patients, transplanting countries started being concerned about defining the
circumstances in which organs for transplant could be removed from patients
in this condition. Two main modes of consent for organ salvaging were
implemented. On the one hand, countries such as the United States, the
United Kingdom, Canada, Italy, Germany, the Netherlands, Switzerland, and
Slovenia, adopted the opting in system, in which a persons organs can be
harvested only if she has explicitly consented to donation during her
lifetime, or (when the deceased person has not expressed any preference) if
her relatives allow for the retrieval at the time of death. On the other hand,
countries such as France, Austria, Belgium, Spain, Croatia, Czech Republic,
Hungary, Luxemburg, Poland, and Portugal, adopted the opting out
_____________________________________________________________________________________
Valrie Gateau, Post-Doctoral Fellow, CERSES (Centre de recherche Sens Ethique Socit), CNRS -
Universit Paris Descartes 5 UMR 8137, 45 Rue des Saints Pres, 75270 Paris cedex 06, France; email:
valerie.gateau@parisdescartes.fr and vgateau@yahoo.fr.
136 HEC Forum (2009) 21(2): 135149

system, in which any person in a brain-dead condition is considered to have

consented to organ retrieval if she did not oppose it while living; in this case,
the family is not approached to allow or to refuse retrieval, but to testify
regarding whether the deceased person opposed it. These modes of consent
rest on different principles. Informed consent rests on the autonomy
principle. Although information on organ donation and transplant puts the
emphasis on the needs of patients and encourages donation, it is the free and
autonomous choice of the individual with respect to the fate of her organs
after her death that is given priority. Those who are willing to donate their
organs must let it be known, for instance by carrying a donor card. Presumed
consent rests on the beneficence principle, and gives priority to the needs of
patients by emphasizing the solidarity we owe them. Since transplant aims at
the good of patients, it is presumed that any person wills such good and
hence consents to organ retrieval. Those who do not consent are authorized
to act autonomously by opposing retrieval by various means.
Of course, it would be too simplistic to consider the differences between
informed consent and presumed consent only to depend on the principle on
which each rests. If autonomy and beneficence principles matter, it is
because they are those to which we refer when debating about the ethics and
policies of organ procurement. But practice differs significantly from the
mere consideration of ethical principles and legal situations. For example, in
both presumed and informed consent countries, the consent of the donors
family or next-of-kin is almost always required before the harvesting of
organs. Whatever the mode of consent chosen, medical indications for
transplant have increased due to the progress in transplant technique, and
transplanting countries in general have been faced since the 1990s with what
has been called an organ shortage, i.e., a growing imbalance between the
number of people in need of a transplant and the number of organs actually
available for transplant. Since then, the two modes of consent have been
heavily criticized and new solutions have been suggested to put an end to
this shortage.
Within such a context, informed consent is an easy target for criticism,
and some authors have pleaded in favor of the transition to presumed
consent in countries that had not yet put it into practice (English &
Sommerville, 2003, p. 151; Emson, 2003, p. 127). There are two main types
of objections raised against informed consent. The first focuses on the very
principle on which it is founded, i.e., autonomy. For some authors, it is
absolutely inappropriate to set up a system based on respecting the autonomy
of a dead person (Salvescu, 2003, pp. 128-129). The argument reasons in the
following manner: 1) since the person is dead, retrieval can cause her no
harm; 2) since the person is dead, she is no longer autonomous; 3) since the
HEC Forum (2009) 21(2): 135149 137

deceased person cannot be injured by retrieval and since she no longer

possesses the capacity independently to make up her mind, retrieval should
be grounded not in autonomy, but in the needs of patients, that is, through
the beneficence principle (Salvescu, 2003, p. 130). However, some authors
argue that while retrieval cannot harm the donor, it may harm his family, and
argue that presumed consent relieves the relatives from the burden of making
a decision (English & Sommerville, 2003, p. 150). Others go even further,
suggesting that organ retrieval should be performed by the state without any
asking for any sort of consent beforehand (Harris, 2003, p. 131). These
objections to informed consent and the proposals that militate for presumed
consent have sparked an important debate regarding injuries to dead bodies
and the likely harms, but they have not yet led to a change in legislation in
favor of presumed consent (Hamer & Rivlin, 2003, pp. 197-200).
The second kind of objection focuses on the practical inefficiency of
informed consent. For this mode of consent indeed presupposes that
potential donors manifest themselves, a condition that is far from obvious.
For instance, in the United States, it appears that 50% of the population
wishes to donate organs, but that only 30% of those who would volunteer for
retrieval have a donor card (Veatch, 2000, p. 150). In Europe, there is a
consensus about the fact that countries resorting to informed consent have on
average a lesser rate of organ retrieval than countries resorting to presumed
consent (Deutsche Stiftung Organtransplantation, 2006, p. 192), even if
some authors argue that this consequence is not due to a direct effect of the
law on individual choices, but to the social organization of the transplant
system of countries with presumed consent (Healy, 2005-2006, p. 1042).
Accordingly, it seems that countries implementing informed consent fail to
supply enough organs to patients through post-mortem donation, and it also
appears that they are more prone to rely on donation between living persons
than countries that have adopted presumed consent (Deutsche Stiftung
Organtransplant, 2006, pp. 121-123).
Since informed consent is grounded in the autonomy principle, and since
it is difficult to ascertain the will of a deceased person, if she did not
expressed it before her death, recourse to donation between living persons
has seemed to be a sensible alternative; for in that case, the consent of the
donor is both necessary and express and it is, at least at first glance, difficult
to doubt that her will is free. However, this procedure also raises ethical
issues, for it is the donor who incurs the risks associated to retrieval, whereas
the recipient of the transplant benefits. Moreover, many commentators
maintain that the autonomy of the donor is illusory when it comes to
donating to a relative, and that the donor is not really free to refuse when it is
138 HEC Forum (2009) 21(2): 135149

possible that her choice has as one of its consequences a relatives death
(Siegler, 2004, p. 16; Fournier, 2004, p. 67).
So, one may claim that recourse to informed consent enables people truly
to exercise their autonomy, but it provides a smaller number of organs from
post-mortem donations and increases the strain on healthy living donors,
who may be faced with a difficult choice that bears on the lives of two
people.
Presumed consent seems to be more appropriate with respect to the
patients needs. Yet, it has been heavily criticized for ethical reasons. Its
opponents claim that it is a hypocritical practice and, therefore, that it is
unethical. As to the first point, it is held to be a hypocritical practice because
of the way in which it is generally formulated. Countries that have adopted
this system resort to a discourse emphasizing donation; they encourage their
citizens to call for the donation of their organs. But, as some
commentators have remarked, presumed consent does not define the means
by which one can donate ones organs (Veatch, 2000, pp. 167-174; Godbout
& Caille, 1992, p. 130). It defines the means on which the state can or cannot
rely to retrieve the organs of a deceased person to treat another person.
Therefore, presumed consent is no consent at all: it assumes consent without
asking for it and contents itself with allowing those who oppose retrieval to
express their refusal. Now, without consent, organ retrieval cannot be
considered as resulting from donation, but rather as resulting from a societal
appropriation of organs performed by the state through routine salvaging.
However, countries resorting to presumed consent have kept on using a
muddled kind of rationale, which amounts to an uneasy compromise
between facts (consent is presumed) and reference to donation (Veatch,
2000, p. 169).
Besides the issues raised above, it also has to be acknowledged that it is
difficult to put presumed consent in practice. Actually, since the beginning
of the 1990s, lawyers and social scientists have shown that the adoption of
presumed consent is an exception from a legal perspective and that it is
generally considered suspicious. To adopt this mode of consent for so
singular a practice and, moreover, a practice that deals with the body of a
deceased person, absolutely contradicts the principles of common law.
Accordingly, to consider everybody as implicitly consenting to the retrieval
of ones organs is held to be, to a large extent, hypocritical: in France, only
40% of the population has addressed the topic with ones relatives (Agence
de Biomdecine, 2006). Worse, to rest content with merely consulting the
record of refusals might cause the system to loose all of its credibility, since
it amounts to including in the group of those who supposedly consent to
the retrieval of their organs all those who have not taken officially sides
HEC Forum (2009) 21(2): 135149 139

during their lifetime (Pharo, 1997, p. 11). Actually, it is indeed the case that
studies show that even in countries where consent is presumed, transplant
teams ask families for their opinion and respect their refusal (Deutsche
Stiftung Organtransplantation, 2006, pp. 82-85). This leads one to suspect
that, faced with a system perceived as hypocritical and ethically dubious,
transplant teams end up organizing to ascertain the deceaseds will or of that
of her relatives, just as it would be the case in the opting in system.
This circumstance is undoubtedly the reason why all transplanting
countries are still faced, whatever the mode of consent they have chosen,
with an important shortage of organs for which no satisfactory solution has
been yet found. At the present time, three main solutions have been
suggested, both by transplant teams and social scientists: the first aims at
increasing altruism; the second proposes to encourage donation by way of
financial incentives; the last suggests that the state be authorized freely to
use the organs of the deceased person with or without her consent (opting
out system or routine salvaging).

Current Proposals
The first solution amounts to increasing altruism. It consists of a set of
various proposals that have in common the will to increase the availability of
organs without giving up the donation system altogether. The first kind of
proposal, made both by Glannon and Etzionni, advocates the endorsement of
a communitarian approach. It relies on the claim that any form of
constraint that would lead to the increase of the number of available organs
is at odds with ones rights freely to use ones body, even after ones death.
What matters is to increase the number of donations by setting up moral
incentives. This would thus amount to convincing people that they have a
moral obligation to donate their organs for the sake of society, for it is
society that has enabled them fully to live their lives (Glannon, 2003, p.
155). Some of these moral incentives can go with psychological techniques
of persuasion, such as the signing of a donor card in front of third parties
(Etzioni, 2003, pp. 1-18). For others, the solution rests in a required
response, also known as mandated choice (Veatch 2000 pp. 175-181;
Chouhan & Draper 2003). In that case, one is not required to donate, but to
express a preference by ticking a box on an official document (driving
licence, tax-return, etc.) to clarify ones choice. Anyone could thus choose
either to donate or not ones organs, or to remain undecided. A centralized
record would allow competent authorities to know the choice of the deceased
person, so as to act in accordance with her will. The last means of increasing
altruism amounts to increasing the set of potential donors. This is Bartzs
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stance, who pleads in favor of inmates being permitted the opportunity to

save a life by giving their organs during their lifetime and to obtain
remission of their sentences in return (Bartz, 2003). Other authors plead in
favor of retrieval performed on donors whose heart has stopped beating or
even on children during their lifetime (Etzioni, 2003; Jansen, 2004, p. 141;
Ladd, 2004, p. 147). These proposals partake in the same search to find other
means than change in the mode of consent to increase the number of
available organs. However, they are all crippled by a serious practical
drawback each of these proposals might well fail to increase the number of
organs. It is not at all certain that these ways of encouraging altruism would
be more efficient than those currently in operation. Similarly, the
requirement of expressing ones preference might have as one of its effects
an increase in the number of those who oppose retrieval or those who remain
undecided. Finally, retrieval performed on inmates or children concerns such
a small and vulnerable audience, which implies the enactment of substantial
protective policies for potential donors (select committees, special
authorizations, etc.), that one may question the efficiency of such a policy.
The second solution is to rely on markets in organs. In such a case, it is
not by changing the mode of consent (which would still be explicit) that one
intends to increase organ availability, but by changing the mode of
appropriation of organs. Organs would not remain priceless things, but
would be included in the sphere of marketable goods. A market regulated by
public authorities would be set up, within which organs would be bought
from sellers by the state and allocated to patients according to medical
criteria. In other words, organs would be bought and then allocated
according to need, not wealth. The assumption on which this proposal rests
is that the body of a person is not identical with her organs, and that
humanity is to be found within the person, not her organs (Gill & Sade,
2002). Arguments in favor of markets in organs aim at showing that the
selling of an organ is not incompatible with the principles of autonomy,
freedom, dignity, and justice, on which organ donation depends. They can be
summarized as follows: first, the fact of selling an organ is in no way more
alienating for the person from whom the organ is harvested than donating the
organ. By selling a kidney, the seller does nothing that can be compared to
such alienating acts as suicide or slavery; one does not give up ones
freedom by selling an organ. Second, if the financial incentive can be seen as
a constraint, it is because confusion exists between a constraining offer and
an attractive offer. In a well-designed system, the incentive must be
attractive and provide people with good reasons for being willing to accept
the offer, without feeling constrained that they must accept the offer (Veatch,
2000, p. 156). Moreover, the argument based on discrimination is to a large
HEC Forum (2009) 21(2): 135149 141

extent hypocritical, since the poor routinely do what the rich refuse to do
(Veatch, 2003). Social usefulness is a source of dignity that is not to be
neglected (particularly in times of organ shortage), and it is indeed unfair to
hold that the financial incentives are to be despised as a source of indignity
(Foppa, 1992). Organizing the market through public authorities would
permit it to function in terms of justice and equity, which would be able to
limit the traffic. It is unfair to let recipients die if financial payment would be
an efficient and effective means to compensate for the shortage of
transplantable organs.
The shortcoming of this solution does not lie in its results: organ
trafficking as it now exists provides good grounds to assume that a market in
organs may well increase the number of available organs. The problem
raised is a matter of principle; retrieval and transplant have always been
founded on the refusal to market the human body in the name of the respect
owed to the dignity of the human person, a respect that has commonly
involved the inviolability of ones body and the impossibility of selling it.
I am not, as a matter of principle, opposed to a market-based solution.
Actually, I am not convinced that the introduction of money in an action that
is similar to organ donation is enough to change its moral value. In fact,
some commentators even claim that the paradigms of donation and altruism
might well have had detrimental consequences on the health system
(Beaufils, Ginon & de Rochegonde, 2007, p. 104). Yet, this solution raises
real practical challenges, for it seems difficult to set up an incentive that
would be attractive enough to increase the number of available organs and
fair enough to avoid being perceived as a constraint. Furthermore, this
solution, although it has been a live issue among professional ethicists, has
not so far been endorsed by political leaders or doctors involved in transplant
(Herissone-Kelly, 2004; a few doctors are now beginning to support this
solution, such as Benjamin Hippen, see Hippen, 2006, pp. 47-61); even the
attempts to reward for donations that might seem legitimate, such as a tax
deduction or the covering of funeral expenses, are regarded with much
suspicion and generally opposed strongly (now, it is quite puzzling to think
that one can deduce from ones income the donations made to a charity, but
not the donation of ones organs). All things considered, given such
reluctance, it very unlikely that this solution will be adopted, at least in
western countries.
The third solution is the one that is commonly supported both by people
involved in transplant and politicians; it amounts to the appropriation of
organs by the state without consent, or with only a very restricted possibility
of refusing retrieval. It rests on the idea that the good of living people must
be given priority over the good of the dead, and that what matters most are
142 HEC Forum (2009) 21(2): 135149

the lives that it is possible to save (Harris, 2003, pp. 130-134). According to
Harris, it is true that autonomy is a principle that must prevail in all the
decisions we make, even those concerning the fate of our bodies after our
death. It is also true that some interests outlive death, so to speak, and that
the respect of our will with respect to what our body is to become is one of
those interests. However, Harris argues that this is the case only when this
choice does not render impossible the survival of living people. Harriss
main point is that retrieval may go against the interests of a dead person as
such interests were expressed during her lifetime, but that the harm thus
incurred is nothing compared to the risk of loosing innocent lives in the
event of the refusal of retrieval (Harris, 2003, p. 133). According to Harris,
organ retrieval must be considered a legal obligation, just as military service
or jury participation are, for the interests of society must be given priority
over private interests. Harris even goes further: he claims that somebody
who does not understand this obligation to rescue or who refuses to submit
to it is not a moral agent and that it will be incumbent upon her to explain
why she deliberately chooses not to save innocent lives (Harris, 2003, p.
133). Some authors concur with Harriss point of view (Dagognet, 2002, p.
141; Spital & Taylor 2005, pp. 300-303). From an ethical standpoint, this
solution raises an issue of justice: how to be just when the whole problem
lies in procuring and allocating resources that are scarce? For the advocates
of routine salvaging, the solution consists in giving up autonomy (that is,
the deceased persons autonomy) in favor of beneficence (the health of the
living). There are ethical arguments in support of this view, even though it is
unlikely that it will gain unanimous backing. Once again, the drawback of
such a solution appears to be its practical implementation. For it, indeed,
seems impossible to put into practice as long as people remain prone to
giving consent significant value. For instance, when citizens are polled, it
has been observed that they call for the setting up of informed consent, as it
has recently been the case in the United Kingdom and Switzerland
(Campbell, McLean, Gutridge et al., 2008, p. 104; Mdecine des
transplantations, 2001, p. 26). In countries where consent is presumed, the
population is often not in favor of such a policy. For example, a study
carried out in 1997 demonstrated that in France 80% of those who answered
think that their consent must be explicit for their organs to be retrieved and
are opposed to presumed consent (Carvais & Hermitte, 2000, pp. 848-855).
It is difficult to see how it is possible to shift to routine salvaging without
consent in such a context, even the more so when it is acknowledged that
salvaging is performed by people, not by machines. Can one really think that
doctors would routinely retrieve organs without being concerned with the
opinion of the person from whom the organ is removed and his relatives?
HEC Forum (2009) 21(2): 135149 143

The attitude of transplant teams in countries where consent is presumed

renders this hypothesis very implausible. Accordingly, it is not obvious that
this solution would increase the number of organs available for transplant,
and it is even possible that it would increase hostility towards organ retrieval
in potential donors and transplant doctors alike.
Finally, the ethical issue raised by each of these solutions is that they all
propose to increase the strains exerted on potential donors. The first solution,
which aims at increasing altruism and seems to be founded on the notion of
solidarity, might lead to a very strong moral constraint. The solution that
aims at paying for organs and that promotes greater freedom might lead to
strains on populations that are already financially at a disadvantage. The
solution that aims at more equality and that proposes to salvage everybody
without consent might lead to an increase in the hostility vis--vis
retrievals and induce transplant teams not to report some cases of brain death
so as to avoid being forced to retrieve organs. Advocates justify the solutions
in terms of the greater good or the greater good for the greater number
each solution would allegedly create. In brief, they represent the lesser evil.
However, as Fleck reminds us, anything that aims at granting less
importance to the autonomy or the consent of a person for the sake of a
greater good must be considered as a matter of principle with the
greatest caution (Fleck, 2004, p. 165). It, therefore, seems to me that it is
important to question this greater good aimed at by the solutions I have
just reviewed: the increase in the number of organs available for transplants.

The Ethics of Salvaging from Deceased Persons

No one can doubt that the increase in the number of available organs is a
greater good and that it enables us to save lives. It is normal that the
information given to the public mentions this reality. On the other hand,
what seems to me problematic is that this aim is the only argument to which
public information refers. This circumstance gives the impression that
helping patients who are waiting for a transplant is an absolute and
indisputable priority to the extent that it saves lives and harms no one.
However, it can be shown that the increase in the number of available organs
does not rest uniquely on the help provided to patients, that it is not always
obvious that retrieval harms no one, and that the priority given to
transplants and retrievals is a relative priority as are most of our choices in
health-related matters with respect to other priorities.
To begin with, pleas in favor of the appropriation of organs by the state
illustrate that the practice of transplantation has a cost, and that the choice of
the mode of salvaging bears on this cost. For instance, authors who support
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routine salvaging justify their choice not only by claiming that it serves the
good of the patients, but also because this solution makes organs available at
an affordable cost (Harris, 2003, p. 132; Spital & Taylor, 2005). If these
authors resort to a financial argument in addition to the ethical argument of
the greater good, it is because they are well aware that transplantation is a
technique that is encouraged both for ethical and financial reasons. It is less
costly to transplant patients than to abstain from transplanting them, and a
European Union report has shown that transplanting 10,000 patients
suffering from renal insufficiency leads to a yearly cost saving, compared to
the expense of dialysis, of 200 millions Euros (European Group for
Coordination of National Research Programmes on Organ Donation and
Transplantation, 2006, p. 9). I do not think that it is problematic that debates
on organ shortage involve financial arguments. Yet, what raises ethical
concerns is the fact that the financial aspect of our choices in transplant-
related matters is neither addressed in public debates, nor is it included in the
public information on which those debates rely. The discourse on salvaging
and transplant is structured by references to notions such as altruism and
donation, and except when it comes to prohibiting the sale of organs
financial issues are never broached. Yet, transplant is not the only medical
practice about which financial arguments should to be taken into account,
and it is now quite usual that information relating to health policies includes
financial details and explanations about the choices that are made to save
resources. Why not addressing these issues in the case of transplant too?
Quite oddly, another crucial point does not appear in the information
given to the public: it concerns brain death and the characteristics of this
condition (in particular, maintenance of respiration and heartbeat). Although
information leaflets (in France) state that this kind of death is rare, they
neither clearly indicate its physical properties, nor the reasons why such a
state is held to be death. It is just as if the conviction that the salvaging of
organs is right would make it unnecessary, almost dangerous, to debate
about the legitimate concerns raised by this particular kind of death. Plenty
of these concerns have been voiced within the medical community, among
professional ethicists, and in the public opinion. Some doctors and
professional ethicists object to the definition of brain death by calling to
attention that the definition of death should have no relation to organ
salvaging (Machado, 2003, p. 201; Jonas, 1974, pp. 132-140). Others
consider this definition to be a kind of deception set up to enable the
retrieval of organs, even though neither medical staff nor relatives really
believe this state to be death (Singer, 1994, p. 50; Truog, 2007, p. 274).
These authors suggest that it would be appropriate to stop operating by
reference to the dead donor rule and to accept the harvesting of people
HEC Forum (2009) 21(2): 135149 145

who, without actually being dead (and it is, indeed, the case that some life is
maintained to preserve fresh organs), can be said to be in an irreversible
state that will shortly lead to death. In the public, one can observe the
coexistence of two conceptions of death that influence the acceptance of
organ salvaging (Herpin and Paterson, 2000, pp. 346-351). On the one hand,
there is a centralist conception of death, according to which death occurs
when one organ (either the heart or the brain) stops functioning; it is then
possible to retrieve organs. On the other hand, there exists an integralist
conception of death, according to which death amounts to the stopping of the
vital functions of the organism considered as a whole. In that case, it is
difficult to conceive how one is to retrieve organs at all. That the general
public be not introduced to these various debates is quite problematic, since
they show that: 1) the refusal of organ salvaging is not necessarily selfish
behavior but depends on the conception of death one entertains; and 2) the
reluctance vis--vis brain death is not due to an audience opposed to
scientific progress, but that it is indeed shared by medical teams.
Accordingly, before suggesting a more constraining solution to
compensate for the shortage of organs, it is important to modify the
information the public receives and to introduce the public to the
unacknowledged stakes associated with transplant (financial aspects,
definition of death). On the one hand, it is part and parcel of the requirement
of truthfulness involved in the respect of autonomy. On the other hand, it
would allow anyone to get a more accurate understanding of the situation
and would make it possible to subscribe, or not, to health-related decisions
that bear on our commitments to others and on the relation we have with our
body. By trying to increase governmental constraints without being clear
regarding the stand we are taking about what we want to do, we might be led
to consider that the problem that of the causes of our reluctance to accept
organ salvaging is solved when actually it is not, and thereby to harm to
the whole field of transplant. The very fact that we are not willing to include
such data in the information given to the public is quite telling about the fear
of causing public confusion. But the confusion already exists: there are
plenty of accounts given either by relatives or transplant patients that refer to
those who had been harvested as between life and death. Perhaps is it time
to admit the fact that the salvaging of organs on brain dead persons is a
difficult way of operating, both for doctors and relatives, because dividing
up a (dead?) body that is considered in all other situations as an inviolable
entity, appears to involve some sort of transgression. To acknowledge this
circumstance seems ethically more appropriate, to the extent that it leads to
an honest acknowledgment of the reality of what doctors and relatives faced
with transplant go through, rather than denying it (Kirklin, 2003, p. 195). To
146 HEC Forum (2009) 21(2): 135149

be sure, retrieval is transgressive; it is difficult to perform and it causes harm

to relatives. To acknowledge this reality is to acknowledge the complexity of
choice and to recognize the commitment of those who accept organ
harvesting, without blaming those for whom it is unthinkable. It is possible
(although not necessary) that such a discourse would lead to a decrease in
the number of retrievals. But if we expect from doctors who perform
retrievals and from people who accept the retrieval of their organs that they
do more than their duty which is indeed the case, since the facts of
harvesting and of being harvested are not legal obligations and that they
act altruistically for the good of others, then it is seems to me that it is
essential that we acknowledge the difficulty and value of their choice
(Kirklin, 2003, p. 195).
It is even more surprising that we refuse to take this risk, when we readily
acknowledge in other situations that the increase in the number of organs is a
priority that is relative and that can be questioned. For instance, in 1998,
when a donor chose to donate all of her organs provided they were to be
given only to white recipients, it seemed ethically perfectly legitimate for the
transplant team to refuse to retrieve organ from this patient and,
consequently, to loose these organs (Hamer & Rivlin, 2003, p. 200). In
that case, the non-discrimination principle prevailed over the efficiency
principle. Moreover, France (just as some other transplanting countries) has
made the choice of prohibiting therapeutic cloning, although, in the long run,
it might well help solve the problems associated with organ shortage and
regenerative medicine. It is, therefore, the case that French law is more
protective of potential human persons than of real persons in brain dead
condition. However, it is quite clear that embryos (at the stage at which
studies are planned) have no brain, do not feel pain, and cannot live as soon
as they have left the uterus. Accordingly, legislators might have presumed
their consent for the sake of the greatest number! What this means is quite
obvious: transplant is indeed a priority, but this priority is relative. Even if
human embryos might help, in the long run, to solve the problem of organ
shortage, their protection prevails over our duty to help patients waiting for
transplant. In this case, we accept the risk of having some people die, who
might have been saved by research on therapeutic cloning.
If one admits that organ salvaging is indeed a difficult practice, supported
by strong but relative ethical and financial arguments, it seems to me that
what matters is not to increase the constraints on potential donors (all of us),
but to open the debate and call for everyone to take side explicitly, with the
help of clear and detailed information on the current situation and the
various solutions considered. It is urgent that it be acknowledged that
transplant is an ethical and meaningful choice to be made by society, to the
HEC Forum (2009) 21(2): 135149 147

extent that the cost it has for individuals corresponds to a decision made in
all conscience. Some already hold that this is the appropriate solution for
France, where currently consent is presumed: Didier Sicard (former head of
the French National Consulative Ethics Committee), Beaufils, Ginon and de
Rochegonde (respectively a doctor, a jurist, and a psychoanalyst) consider
that it is time to trust the public and turn to an explicit mode of consent
(Beaufils, Ginon & de Rochegonde, 2007, p. 107; Quelles rvisions de la loi
de biothique, p. 27). I share their opinion. Moreover, it is very likely that
we would be pleasantly surprised: nothing tells us that the public will resist
transplant if its difficulty is acknowledged and if the public is given the
possibility of understanding the complexity of the situation.

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