Sunday, September 14, 2014

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

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

For part one of this series, click here.

Negative Advantage?

Alright. I didn't want to say it when setting up the Affirmative position, but I strongly feel this debate has a potential Negative advantage so Aff is going to need dig in and really develop well reasoned arguments for supporting presumed consent.  Since you will also be writing an Affirmative case, read this and use it your advantage on the Affirmative side to make your case stronger. One of the big problems is the Affirmative side is disadvantaged by the resolution specificity.  Of all the potential means to increase the supply of donor organs, why specify presumed consent? Why specify any particular policy? At this stage of my research, the only justification in found in the empirical evidence offered by the few countries which have implemented presumed consent policies.

A Problem of Technology

Everyone will die of their last disease, be it natural aging, or organ failure brought on by any number of causes. It is a fact (ignoring unnatural death such as murder, war or disaster).  In the past we accepted it.  Today, technology has changed the world and for the first time, we possess the ability to extend our lives through technological means and because we now have such abilities we expect it.  I say this, not to suggest the advancements in medicine are a bad thing for society but merely to frame this debate into a possible point of view that we may not have a "right" or privilege to such advancements.  If we are fortunate enough to benefit from it, great, if not, well that's okay too because that's the way it has always been. No one thought the shortage of organs was a problem in the past as our ancestors suffered from many of the same afflictions which degrade our lives today. So, some would argue that now that we have the technology and capability to extend lives we ought to use it and we certainly could if more people were willing to donate their organs.

Having said all this, I thought my approach to the Negative position will be to walk you through a fairly straight-forward rebuttal of the affirmative position.  Novice debaters, remember one important thing. It is not enough to get up and claim your opponent is wrong and sit down.  You need to take a position and argue in a positive way as well as refute your opponent, so you will need to take the positive arguments (those that advocate a "better" solution that the Affirmative) and stand upon them while taking the negative aspects of this article (those which refute Affirmative claims) and apply them in your rebuttals.

Framing the Solvency

While we may be consider arguing the shortage of organs is not a real harm but a consequence of life taking its natural course we can acknowledge that modern medicine has the potential to alleviate the suffering of hundreds of thousands of people each year.  However, it is important to notice this resolution may be insufficient to make a significant impact on overall suffering even if Negative fully embraced the Affirmative position.  Why? It is a fact the pool of available donors is steady or declining each year.  One extensive, nation-wide study in the late 1990's identified under 19,000 potential donors over a four year period with a little over half of them consenting to donation. Even if all of them consented, what would be the impact of doubling the available donors?

Sheehy et al 2003:
"The demand for transplantable organs continues to increase, while the organizations involved in the procurement of organs struggle with a stagnant or possibly diminishing pool of potential organ donors. As of July 7, 2003, a total of 82,117 patients were waiting for a solid-organ transplant. The shortage of organs raises questions about the size of the national donor pool. Have organ-procurement organizations reached the limit of the number of organs that can be recovered?"

A similar study in Germany in 2007, found similar results. At the time of publication there were 12,000 people on the waiting list for donors and a fairly consistent transplant rate of 4000 per year with many of these organs coming from outside of Germany.

Breyer 2007:
"On the basis of the aforementioned studies, the potential donor pool can be estimated at 45 pmp per year, which would result in a total number of 3,690 potential organ donors per year in Germany. In contrast, in 2003 only 1,928 brain-dead patients were reported to the coordinating agency (DSO, Deutsche Stiftung Organtransplantation, German foundation for organ transplantation), which amounts to a reporting rate of 52 percent. Moreover, the number of actual post-mortem organ donors in the same year was only 1,140 patients."

The take away from these studies is the potential numbers of donors can be significantly increased, even doubled in some areas.  But, the shortage is not solved. So while Affirmative can possibly argue that we can improve the situation with 100% consent, we will still be woefully short of the number required. If the judge was to vote Affirmative, we would still need to find other means to match the ever increasing shortfall bearing in mind that some future potential donors may also become potential recipients depending on random circumstances.

"Fewer Mistakes"

This argument put forth by advocates of presumed consent holds that since approximately 70 of potential donors do want to donate but for various reasons fail to register that intent, fewer mistakes would be made if consent were presumed requiring the 30 percent who do not wish to donate to opt-out.  Based on these 70/30 statistics we can easily make the claim that numerically the number of mistakes is smaller by requiring the opt-out, hence we have a qualitative basis for favoring presumed consent.

"This specific formulation is known as the quantitative fewer mistakes argument. Fewer people do not wish to donate their organs than those who do and the ones who do wish to donate are less likely to explicitly state or “opt-in” to the current system, usually due to the presumption that the failure to do so would unlikely be significant to the individual. It is  more likely that those who do not wish to donate their organs would be more copious due to “moral, prudential, or religious reasons” (p. 384) to explicitly state or “opt-out” of the presumed consent system. If this were the argument in its entirety, it would seem the proponents of presumed consent would have a better argument, since the vast majority of people wish to be donors, but are not registered and the system would save a great deal more lives."

However, on the Negative side of this argument we must consider the harms which result from the mistakes that do occur.

"The result though is that the “fewer mistakes” argument rests upon an implicit assumption that opponents of presumed consent do not accept: that mistaken removals and mistaken non-removals  are morally equivalent. Opponents claim, that is not the case. They argue that mistaken removals are morally worse than mistaken non-removals. Therefore, they argue, while it  may be true that there would be fewer mistaken removals under the presumed consent system, those mistaken removals would wield far more moral weight as compared to the mistaken non-removals. Incidentally, while it may be true there would be far fewer cases, the cases would be  vastly more severe. This then distinguishes the second portion of the “fewer mistakes” argument, the qualitative portion."

Negative Advocacy

The fact that presumed consent allows for refusal suggests there exists an inherent right to violate the principles upon which advocates of presumed consent base their positions.  For example, if presumed consent preserves autonomy or solidarity then why acknowledge it is okay to take a stand against autonomy or solidarity by opting-out?  How valuable are those ideals if we are willing to allow some to willingly give them up?

To begin, we can argue there is no need to adopt any new policies. All the tools we need to improve donor rates already exist within the present system.  If we assume the statistic that 70% of potential donors wish to donate the problem rests in the fact that perhaps they are not afforded sufficient opportunity to "opt-in" or express their desires. Additionally, perhaps education about organ donation needs to be more pervasive.

Nevertheless, following is a compendium of advocacy options for Negative:

Vanderbilt 2009:
Priority based on willingness to donate gives preference to those on the national organ transplant waiting list who have volunteered to donate their own organs. While at odds with the altruism-based organ procurement system currently in place in the United States, this donor-priority system does not implicate the same moral and ethical dilemmas as do other systems.
Paired organ exchanges allow willing donors whose loved ones need transplants but who are not matches for those loved ones to connect with each other in order to arrange a swap.
A national donor registry would store information on all potential donors in order to facilitate identification of donors whose donor cards cannot be located and to capture transplantable organs that might otherwise slip through the cracks. Such a registry could also be used to facilitate paired organ exchanges.
Tax breaks offer direct financial incentives to organ donors to increase organ supply but might run afoul of the UAGA and NOTA prohibitions on the exchange of organs for valuable consideration.
Futures markets allow organ donors to enter into contracts to sell their cadaveric organs, either for immediate financial benefit or for the benefit of a designated beneficiary. Depending on how they are implemented, futures markets implicate concerns about coerced consent and exploitation of underprivileged donors.
Discounted driver’s license fees offer a donor a waiver of some portion of his driver’s license application or renewal fees in return for checking the “organ donor” box on his driver’s license. The nominal amount of the incentive reduces, but does not eliminate, the concern about coercion.
Reimbursement of donors’ medical and burial expenses at the very least provides donors’ families with some form of posthumous compensation for their donations. Such reimbursement would create a limited incentive, probably with equally limited benefits for the organ supply.
Regulated open markets would allow the sale of organs with extensive government regulatory oversight in order to minimize the dangers of exploitation and coercion. By providing donor-sellers something closer to fair value for their organs, this option provides the best option for addressing the organ shortage. If done in the right way, taking precautions against abuse, it can also be a system consistent with many people’s moral and ethical values, including most significantly the right to control one’s own body.

The Values

Finally, since I am sure many will ask, I offer some words about negative values and their associated criteria.  Of course Negative can always choose justice, even if the Affirmative also chooses justice. The major premise for Negative can focus on the arguments against fewer mistakes. If Affirmative does not mention fewer mistakes, the argument is still valid that under presumed consent there exists the possibility whereby individuals who for some reason have failed to express their option to not donate will have their organs removed against their living desires.  This is considered a violation of the respect and dignity of the deceased and something no just society would tolerate. If this is your tact then upholding self-determination or respect for the deceased are sufficient criteria.

If you do choose to run a value of autonomy be prepared to narrow the focus to the rights of individuals to determine how they should be treated after they have died.  Linked to this is the idea of property rights. Individual have the right to distribute or dispose of their property as they see fit and it can be claimed one's body, living or dead, is one's property. One does not want the body to become the possession of the state since the potential for all kinds of abuse are possible.  In China, it is claimed the organs of deceased prisoners are routinely removed and bodies are often handed over for medical research without the consent of the deceased.

The whole idea of human dignity, as vague as it is, can be a powerful value for the Neg side. Respecting the wishes of the dead or dying is important to large parts of society. There are many reasons why a person may not wish to have their organs harvested and there are also many reasons their intentions may not have been expressed, but to presume they would make a contrary choice is a violation of human dignity.


The new england journal of medicine, 2003
Estimating the Number of Potential Organ Donors in the United States
Ellen Sheehy, M.P.P.M., M.A.R., Suzanne L. Conrad, M.S., Lori E. Brigham, M.B.A., Richard Luskin, M.P.A., Phyllis Weber, R.N., Mark Eakin, Ph.D., Lawrence Schkade, Ph.D., and Lawrence Hunsicker, M.D.

Analyse & Kritik 29/2007 (
c Lucius & Lucius, Stuttgart) p. 188–205
Friedrich Breyer/Hartmut Kliemt
The Shortage of Human Organs: Causes, Consequences and Remedies

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

Journal of Philosophy and Ethics in Health Care and Medicine, No.3, pp.64-85, July 2008
Ethical Issues of Presumed Consent in the Use of Patient Materials for Medical Research and the Organ Donation for Transplantation
Mitsuyasu KUROSU, Tokyo Medical University, Department of Bioethics

You Get What You Pay For?: Rethinking U.S. Organ Procurement Policy in Light of Foreign Models

No comments:

Post a Comment

Feel free to leave comments relevant to the topics and activity of competitive high school debate. However, this is not a sounding board for your personal ideologies, abusive or racist commentary or excessive inappropriate language. Everyday Debate blog reserves the right to delete any comments it deems inappropriate.