Saturday, September 13, 2014

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

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

For part one of this series, click here

Getting Started (A Preface for Novices)

At the outset, I am making an assumption most debaters reading this post have already had some debate experience.  There is after all, a novice topic and perhaps most novices will be debating it. I don't know.  If you are a novice and expected to debate this topic, I apologize because it is my desire to jump right into the analysis with minimal build-up.  Nevertheless, dear novice, this site should be a wonderful resource for you and so you do not need bounce all around the Internet looking for help. At the top of this page you will find a menu of sorts (Home, Public Forum, Lincoln-Douglas, Policy Debate, General, etc...). Click the Lincoln-Douglas or General items to open a page with links to every worthwhile post on this site.  You will find detailed and informative information on how to write your first case, concepts, terminology and so much more.  Here are a few links to get you started:

Your first case
Values in Lincoln-Douglas
Philosophy in Lincoln-Douglas
Cross-X for Lincoln-Douglas

Links to general debate topics - including advice for novices

A Just Society

This resolution requires the affirmative to advocate presumed consent for organ procurement because it is something just societies ought to do.  For the most part, I think we can agree societies thrive, or flounder under the power of governments and political bodies. Happily, in most cases the government is granted its authority by the consent of the governed.  Sometimes, totalitarian regimes seize power against the will of the people but it does not necessarily mean the societies under the government cannot function in a just way on an individual level. So while we can make a distinction between just societies and unjust governments, we must recognize the impact of government upon the ability of society to uphold social justice. In particular consider the positive impact of government in ensuring fairness, equality and justice within the governed societies.

Nagel 2005:
The issue of justice and sovereignty was memorably formulated by Hobbes. He argued that although we can discover true principles of justice by moral reasoning alone, actual justice cannot be achieved except within a sovereign state. Justice as a property of the relations among human beings (and also injustice, for the most part) requires government as an enabling condition...
Rawls argued that the liberal requirements of justice include a strong component of equality among citizens, but that this is a specifically political demand, which applies to the basic structure of a unified nation-state. It does not apply to the personal (nonpolitical) choices of individuals living in such a society, nor does it apply to the relations between one society and another, or between the members of different societies. Egalitarian justice is a requirement on the internal political, economic, and social structure of nation-states and cannot be extrapolated to different contexts, which require different standards.

The Affirmative debater does seem to have problem in this debate, in my opinion.  Building the link between the societal problem of lack of transplant-ready organs with the various theories of social justice which is a requirement of the wording in this resolution can be difficult. While many individuals may benefit from a ready supply of harvested organs, is social injustice inherent in the fact there is a shortage of these organs?  While we can perhaps make a case, that only the rich have access to the limited supply of organs we would need to establish the least economically advantaged are unfairly denied access to organs merely as a consequence of their socio-economic status. That would be a very good argument to suggest there is injustice in the status quo.  However, to win the debate, it is now necessary to prove that presumed consent will right the wrongs of economic discrimination.

In Lincoln-Douglas, and virtually every other form of debate, there is an assumption of an inherent problem in the status quo, that only voting for the Affirmative can solve.  The Aff debater could charge into the round assuming the Neg side and the judge will agree there is a problem, but what if Neg challenges that?  While tragedies exist in society it does not necessarily mean that, in and of itself, is unjust. So, while I could presumably spend much time discussing the various theories of social justice, I feel it is important to focus on inherent harms.

Büchler 2012:
"Why is organ donation either so unequivocally beneficial or so unequivocally desirable, particularly when the empirical evidence provided by existing rates of donation clearly does not bear this out? And what makes us think that bodily invasion is such an easy sacrifice to make that a communitarian-based obligation to facilitate saving the lives of others is justified? It would seem that it is society’s need for organs that is making it acceptable to lower the threshold required with regard to the reliability of the evidence of willingness on the part of the donor. Presumed consent can be seen as a reflection of the perception that the interest of the collective as potential recipients should prevail over that of the individual dead body. The ‘injury’ to the corpse resulting from organ removal must serve a therapeutic objective, however. If one assumes that the dead themselves are beyond harm, then, from a consequentialist point of view, it is certainly desirable – if not indeed compulsory – to use corpses to prolong the lives of others; at the same time there is no apparent conflict with a deontological perspective or more precisely with the Kantian doctrine requiring that the individual must not be used solely as means to further the ends of others."

Harms Due to Shortages

The distribution of donated organs to recipients is often regulated by a group committed to ensure a semblance of fair and equitable distribution.  For example the United Network for Organ Sharing (UNOS) maintains the information for the waiting pool. For the most part, distribution is only made on the basis of medical need, probability of success, time on the waiting list, etc.  There should not be any consideration for nationality, religious affiliation, economic status, etc of the intended recipient. Yet when it comes down to the final decision, other factors can be over-riding, such as how quickly the recipient can be ready, distance from the donor, age of the recipient, and so on.

Center for Bioethics 2004:
Some who believe in equal access distribution would also like to have an organ distribution process free of medical or social worthiness biases. Medical “worthiness” biases could exclude patients from reaching the top of the transplant waiting list if lifestyle choices like smoking and alcohol use damaged their organs. Social “worthiness” biases would factor in a patient’s place in society or potential societal contribution before giving them an organ. This would affect, among others, prisoners being punished for offenses against society.

Nevertheless, certain biases do exist and in fact, some compelling arguments can be made as why on group should be favor over another.

Center for Bioethics 2004:
On the other hand, some ethicists argue that individual worth is important to consider during organ distribution. They argue that distribution is biased against worthy individuals when individual worthiness factors are not included. One example of this argument comes from a 1990s article in the Canadian Medical Association Journal by E. Kluge. Kluge argues that equal access distribution of organs is not fair and just if it includes people whose lifestyle choices, namely tobacco and alcohol use, ruined their organs. Kluge’s argument states that people who engage in poor lifestyle choices are behaving irresponsibly and could have prevented their illness and are, in essence, increasing the need for organs and depriving people who, “have no control over their need,” of necessary treatment

One must realize the work of UNOS and those groups which procure organs for distribution are not necessarily rooted in law.  Rather, they are broadly regulated by medical boards following principles of bioethics, however those ethics may be defined and as long as shortages exist, the potential for ethical  violations will continue.

Center for Bioethics 2004:
Dr. Jeffrey Kahn, in his on-line articles for CNN’s Ethics Matters series argues that the imperfections in organ distribution come from the scarcity of donor organs. Kahn says that if Americans wish to support organ transplantation as a medical procedure, then they must be sensitive to the fact that politics and biases will probably factor into any ranking system until there are enough organs to go around"

While the potential for harms exist on the distribution side of organ transplantation, one must also look at the supply side where severe shortages induce a corresponding effort to meet the demand not only through well-intentioned opt-in permissions (for example a donor card or explicit consent on a driver's license) but also through an underground market of trafficking which may involve people willingly selling their organs for profit or others exploiting the poor. At the extreme are those who may take organs from others against their will. While organ sales are banned in the United States, such prohibitions do not exist everywhere outside of the US and there is increasing pressure within the US to turn organs into a commodity.

Finally, we must not only consider the cost in human life, since people in need of organs are in danger of dying when perhaps they could be saved, we must also consider the high-cost of trying to keep those who need transplants alive until a suitable donor can be found. The maintenance costs harm society though higher insurance rates, high cost of medical procedures, and untold misery and strain on family budgets, often resulting in bankruptcies, loss of jobs, etc.

Presumed Consent as a Solvency Mechanism

While there may be no solution which can completely meet the need in the most humane and ethical terms, we can look to presumed consent as a way of reducing the shortage and ist associated harms. Many countries around the world, already have passed presumed consent laws and the rate of donations has increased significantly. The various implementations in the international community demonstrate a variety of mechanisms to ensure individuals are informed of their right to opt-out and in some cases, immediate relatives are given opt-out rights on behalf of their deceased family member. while the Affirmative debater need not advocate a particular policy, the Affirmative argues presumed consent as a viable alternative to the status quo.

Glaser 2012:
Presumed consent, when the state strictly follows it, is the best practice method of legally obtaining organs. In countries with presumed consent laws, there is a higher procurement rate for organs than in countries without these laws. Many argue that if the demand for organs were met legally, then people would have less incentive to illegally obtain organs and the black market would eventually diminish. On a more basic level, if there were more organs available for transplant, then more people’s lives would be saved."

In response to common ethical objections to presumed consent, Seldon Zink, et al, writing for the American Medical Association Journal of Ethics, informs us that presumed consent increases individual autonomy because it allows people to make decisions before their death and not defer to family members.

Zink et al 2005:
"They maintain that asking a family for a loved one's organs at a time of intense grief is cruel and unnecessary and that, by presuming consent, the family's anxiety over this decision is alleviated. Supporters of presumed consent also employ a utilitarian argument as support for implementing such a policy. Meredith Watson claims that presumed consent provides the greatest good for the greatest number of people by harming no one and benefiting many. She adds that the burden of communicating and registering preference should fall on those who object to donating, not those who support it, because the goal of transplantation is one that is socially desirable"

Autonomy and Dignity

The arguments for autonomy and dignity will be pervasive and strong since they are found throughout the literature on the subject. At stake is the right of individuals to decide their course of action as opposed to the greater needs of society.  Obviously one may look at the case strictly in utilitarian terms and decide (in a very famous Spock-like way) the needs of the many outweigh the needs of the few. But while utilitarianism, is perhaps viable, Affirmative must answer the issues of autonomy.  Here, one must consider, how can the right to decide one's steps transcend death?  Does an autonomy make sense after an individual ceases to exist?

Büchler 2012:
Contemporary biomedical ethics relies on a contractual model that focuses on the legal rights of the parties involved in medical interactions. Autonomy, however, may not be perceived and valued in all cultural settings as the intellectual and moral foundation of healthcare. For many, focusing on autonomy and the rights of the individual may overlook the social and moral implications of personal interconnectedness.

The argument can be made that autonomy is rightfully outweighed by concepts of human dignity.

Büchler 2012:
In the Kantian understanding of dignity - often found in legal texts on organ donation and transplantation - a human being should always be treated as an end and not as a means. The prohibition of property rights in body parts or paid organ donation is justified by the argument that allowing such practices would compromise human dignity. In this sense dignity trumps the principle of autonomy, constraining the individual’s freedom to pursue his or her autonomously chosen goals. Finally, inasfar as it is understood as a high-ranking status afforded equally to all human beings, dignity – as a universal concept – also ensures respect for all people. These are all valid reasons supporting the importance of dignity in organ donation and transplant laws in a culturally and religiously diverse society.

But as a value in this debate, Negative objections to presumed consent on the basis it violates principles of human dignity must be able to reconcile its vagueness and multifaceted incarnations rooted in metaphysical concepts of right and wrong. Remember, the key to defending values is found in universal principles, not cultural ones.

Good luck with this resolution.


The Problem of Global Justice
Philosophy & Public Affairs 33, No. 2, (April 2005), pp. 113–47
Thomas Nagel

Andrea Büchler, 2012, Regulating the Sacred
Organ Donation and Transplantation: Autonomy and Integrity of the Person or Social Responsibility of the Body?; Straus Working Paper 01/12

A Successful Utopia: The Doctrine of Human Dignity
Antoon De Baets, University of Groningen

Journal of Medicine and Philosophy, 35: 180–196, 2010, doi:10.1093/jmp/jhq010
Advance Access publication on February 24, 2010;
Bioethics and “Human Dignity”
Matthew C. Jordan, Quincy University, Quincy, Illinois, USA

Ethics of Organ Transplantation
Center for Bioethics, February 2004

Presumed versus Expressed Consent in the US and Internationally
American Medical Association Journal of Ethics, Virtual Mentor. September 2005, Volume 7, Number 9.
Sheldon Zink, PhD, Rachel Zeehandelaar and Stacey Wertlieb, MBe

Formula to Stop the Illegal Organ Trade: Presumed Consent Laws and Mandatory Reporting Requirements for Doctors
by Sheri R. Glaser 2012

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