Saturday, September 13, 2014

LD Sep/Oct 2014 - Presumed Consent for Organ Procurement - Introduction

Resolved: A just society ought to presume consent for organ procurement from the deceased.


It was a very tough winter in my part of the country, followed by an equally dismal spring and summer.  The weather was generally wet and cool made all the more trying with a very unusual, period of work demands which required long hours, and little sleep.  It is well past time to emerge into a new debate season and begin pushing the mind with more interesting exercises. It is the one endeavor under the specter of another looming, harsh winter, which invokes dreams about a trip to the national tournament next June.

We know every year the NFL tries to ease us back into debate with topics which at first examination seem elementary enough for novices. and, every year, despite such attempts to gently lead inexperienced 'first-timers' into the debate maelstrom, our local district will debate the November/December topic for the first time on October 18.  This is fine, I guess, except many of my novices have yet to choose a category and some have yet to understand the difference between LD, PF, 2P, and student congress or for that matter extemporaneous speaking.  Oh well, this topic seems easy enough...right?

A Just Society

As I have discussed in many, many posts on this site, Lincoln-Douglas (LD) is value debate and in the traditional meaning of that statement, the debater will be asked to defend one of the great values which make life worth living.  How convenient that "justice" jumps out immediately.  Those who have any experience in LD will know justice, like all great values, is a very broad concept and means many things to many people. We usually define justice as "giving each his due" which many interpret within an egalitarian framework; essentially, a just society is an equal society, however we choose to measure equality.  On the other hand, and I believe more correctly, one can interpret "give each his due" in the context of rewards and punishment and so we begin to think of just societies as ones which weigh-out reward or punishment, in proportion to that which is due. So we still see a kind of social balancing act which strives to right wrongs, provides recompense to those who deserve it and enables the potential for equality whether or not it is achieved. Again, we can debate how to measure exactly what "is due" to select portions of society. At its most basic, a just society is a society which exhibits justice in every aspect of social well-being. For this reason, the just society ought to do certain things in order to ensure justice is upheld.  This resolution asks to examine one of these "ought to do's".

The Philosophical Concept of Ought

Ought is one of the words that everyone knows what it means.  It expresses a sense of obligation and for some reason we may have a sense the obligation to take an action is somehow more compelling when one says "ought", as opposed to "should".  I guess that is why some attach a moral component to the word and claim ought suggests a moral obligation. Perhaps it is not surprising then, that tiny little word can trigger a philosophical debate.

Wedgewood 2011:
"Many philosophical discussions of the meaning of ‘ought’ seem to assume that it is an obvious analytic truth that whenever one “ought” to do something, one has a “duty” or “obligation” to do it. This assumption seems eminently questionable to me. I ought to buy a new pair of shoes, but I surely do not have any duty or obligation to buy a new pair of shoes. Duties and obligations are in some sense “owed” to someone or something that is the object or beneficiary of the duty or obligation, while it is far from clear that anything like that need be true of everything that one “ought” to do."

For sure, a good debate will balance at the point of controversy; the stasis point. The stasis is the point of contention about which the two sides will take their stand, and so this tiny word then becomes the center about which Affirmative and Negative can make their respective cases. Given the concept that ought represents the declaration of a proposition, philosophers divide over whether ought may convey beliefs (common to the society we can presume) or simple commands (expressed by a civil authority). In other words, under one interpretation, we 'ought' do something because we believe is right or upholds a basic truth. Under the other interpretation we "ought" do something because it is a demand or a sort of "legal" requirement.

Wedgewood 2011:
"...most philosophers assume that it is at least part of understanding a term that one has the ability to use declarative sentences involving that term to express certain mental states. However, philosophers differ over what sort of mental state is normally expressed by the use of declarative sentences involving ‘ought’: cognitivists think that these mental states are just straightforward beliefs, of basically the same kind as the beliefs that are normally expressed by most other declarative sentences; non-cognitivists think that they are mental states of some crucially different kind, such as emotions, or desires or intentions of the sort that are typically expressed by commands or prescriptions."

In my opinion, we are fortunate to declare our affirmative proposition within the context granted by the introductory clause, "a just society".  This helps us to frame the point of view as a command which intends to uphold the principles of a just society as long as those principles are universal to all societies.

Presumed Consent

To presume is to believe something true before knowing it is true.  Presumption is not quite the same as assumption though they are similar.  We may assume something to be true, before knowing but in assumption is the acknowledgement of uncertainty. To presume, on the other hand is like saying, something is true until I am told otherwise or until an exception arises. Consent is permission to take an action so in combination, 'presumed consent' expresses the belief permission to take an action is granted unless otherwise informed. There is no need to seek permission. One may presume permission is already given.

Consent for Organ Procurement

Pretty much without exception, a Google search for presumed consent will bring up many, many discussions about presumed consent with respect to organ donation which is the action to be justified.  In a nutshell, there are potentially millions of individuals that may benefit by receiving donated organs or tissues. But the number of declared, willful donors does not come close to meeting the need.  Now of course, since this resolution specifies "organ procurement from the deceased" we can avoid discussing living donors, people selling their organs for profit or people forcefully taking organs from the living for trafficking purposes.

Abadie 2005:
"In the U.S., Great Britain, and in many other countries, the gap between the demand and the supply of human organs for transplantation is on the rise, despite the efforts of governments and health agencies to promote donor registration. In some countries of continental Europe, however, cadaveric organ procurement is based on the principle of presumed consent. Under presumed consent legislation, a deceased individual is classified as a potential donor in absence of explicit opposition to donation before death."

The Deceased

As a noun, the deceased refers to a person who is no longer living. Thus we can understand this debate to focus on the justness of presuming consent to procure organs from those who have recently died. There is no need to assume they have given consent to donate their organs. We presume they have given permission and so their organs will be harvested unless somehow, an overriding directive prevents the action.  Let's make an important observation.  Presumed consent means we may assume permission to take organs from the deceased would be granted if permission was sought, but it does not mean permission must first be asked. We don't seek approval, we act believing we have approval.  A somewhat interesting discussion (or debate) may explore the definition of death, What exactly is the point of death and how does a just society prevent premature organ procurement, especially in those places where medical technology is not state-of-the-art?  Perhaps the discussion is not worth a contention, but it is interesting none the less.

The Criteria of a Just Society

So while we take a broad swipe at justice as the preeminent value in this debate, we must narrowly focus on the issues of presumed consent which contribute to upholding a just society.  The criteria which a make a society just may be many and I have broadly suggested that topics which promote equality or proportional distribution of recompense are in keeping with the values a just society supports. We can drive focus all the way down to issues which directly impact individuals, such as autonomy and dignity.

Gill 2004:
"I believe that a policy of presumed consent would be a moral improvement over the current American system of organ procurement. In what follows, I will try to make the case for presumed consent by addressing what I take to be the most important objection to it. The objection is that if we implement presumed consent we will end up removing organs from the bodies of people who did not want their organs removed, and that this situation is morally unacceptable because it violates the principle of respect for autonomy that underlies our concept of informed consent."

Autonomy is freedom to self-govern; the freedom to make choices which determine how one may conduct her life (or death?) as long as it does not infringe the rights of others.  People give up a measure of freedoms in society - it is after all - the classical conception of the "social contract". For that reason, preserving those rights we retain is very crucial and at the core of the arguments for guarding one's autonomy. Certainly, before people give up yet another measure of autonomy, there should be a compelling social good which is defended and there must be a very good reason to believe the means by which that good is achieved is not outweighed by harms. Additionally, the means should at least have a high probability of achieving the desired end.

Fabre et al, 2010:
"The appeal of presumed consent legislation is based on the belief that if consent is a problem, presuming it will solve the problem. The misconception underlying this belief is that presumed consent equates with organ donation. In fact, presumed consent equates simply with the presumed consent of the potential donor—the actual decision to donate rests with the potential donor’s family. The family bases its decision on many factors, such as trust in the medical profession, understanding of the organ donation process, the professionalism of the approach for donation, and, most importantly, the expressed wishes of the potential donor (for example, through donor register, donor card, or conversations).

We can explore the issues of autonomy and other criteria for preserving the values of a just society in other posts on this site.  And we may explore the semantics of presumed consent and determine if the desired ends may be achieved in other ways.

Springer (undated):
"How can we shrink the gap between the number of organs needed and the number of organs donated? Many ethical and moral considerations get raised through the exploration of these questions, considerations that must be addressed in order to arrive at a compelling answer. Autonomy, presumed consent, presumed refusal, and mandated choice are but a few of the options to enact a shrinkage to the gap of supply and demand. Autonomy is what must be preserved in any legislation concerning organ donation, but how it is defined and viewed will alter the variations of presumed consent, refused consent, and mandatory choice."

Remember as you start to research this one, and in particular I direct this remark to novices. There is no requirement to limit the discussion to the United States.  We are talking about just societies as a universal construct.  The values we debate must appeal to the broad consensus.  This is easily done by focusing on the values which are important to constituents of the society - namely individual humans.

Click here for the Affirmative position


The Meaning of 'Ought',  Oxford Studies in Metaethics, ed. Russ Shafer-Landau, vol. 1 (2006), 127-160
2011 Ralph Wedgwood

The Impact of Presumed Consent Legislation on Cadaveric Organ Donation: A Cross Country Study
Alberto Abadie – Harvard University and NBER, Sebastien Gay – University of Chicago, December 2005

Presumed Consent, Autonomy, and Organ Donation, Journal of Medicine and Philosophy
2004, Vol. 29, No. 1, pp. 37–59
Michael B. Gill, University of Arizona, Tucson, AZ, USA

Organ Donation: Autonomy, Presumed Consent, and Mandated Choice
Daniel Springer, Oakland University

Presumed consent is unnecessary, BMJ 30 October 2010, Volume 341
John Fabre, Paul Murphy, Rafael Matesanz, 5 Sep 2010

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