thesis draft version 3 pmb mark up 10-12-2013-libre

Opt-out Organ Donation: Virtue Ethics, Utilitarianism and the problem of consent.

Brian Boyce

Australian Catholic University

2013

A Thesis submitted in fulfilment of the requirements of an Honours degree (Philosophy)

School of Philosophy and Theology

Faculty of Philosophy

Australian Catholic University

21st October 2013

Opt-out Organ Donation: Virtue Ethics, Utilitarianism and the problem of consent. 1

Author Declaration

I hereby declare that this submission is my own work and that, to the best of my knowledge and belief, it contains no material previously published or written by another person nor material to a substantial extent has been accepted for the award of any other degree at Australian Catholic University or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made by others is fully acknowledged.

Brian Boyce


Abstract

Starting from a position that organ donation is an unproblematic good this thesis examines the frameworks of virtue ethics and utilitarianism in order to find an accommodation between maximisation of the good and the intrinsic goods of character. Consent is identified as the major problematic area for both virtue ethics and utilitarianism and it is closely examined so as to move virtue ethics towards recipient centered frameworks and away from the gift orientated frameworks that favor the donor. Virtue ethics is engaged with finding a way beyond the managerial efficiency of utilitarian frameworks in contemporary bioethics and forging a mixed conception of the good within organ donation. The problems and advantages of utilitarianism are examined along with the areas of demandingness, moral obligation, justice and personal integrity. Consent is examined closely and arguments in support of not considering consent as either presumed or needed for opt-out organ donation are put forward. At a high level this thesis seeks to construct a situational application of virtue ethics and utilitarianism in the context of organ donation, which suggests that the picture or landscape of the good may hold the same characteristics for both the virtue ethicist and the utilitarian in practice.


Index

1. Introduction .................................................................. 1

Landscape and evidence ........................................... 3

Arguing from theory ................................................. 6

Consent as a basis for opt-out ................................... 7

2. Virtue Ethics Chapter ................................................ 10

Modern Virtue Ethics.............................................. 10

Eudaimonia ............................................................. 13

Phronesis ................................................................. 16

Arete........................................................................ 17

Opt-out Organ donation and Virtue Ethics ............. 19

3. Utilitarianism Chapter ............................................... 23

4. Consent Chapter ......................................................... 35

Consent as Action or as a Mental State .................. 36

Consent as ceteris paribus ....................................... 37

Violations of consent .............................................. 38

The fallacy of harm of the dead .............................. 39

The role of the relatives .......................................... 42

Arguments from Presumed consent ........................ 43

Arguments against the need for consent ................. 44

5. Conclusions ................................................................. 47

Bibliography ................................................................... 53


1. Introduction

Australias organ donation and transplantation system does not meet the nations present demand for organs and is unlikely to meet its future needs. This is especially so given that the demand for transplanted organs is anticipated to continue to grow with the aging of Australias population and the increased incidence of lifestyle diseases such as obesity and Type 2 diabetes. 1

Australia, as is the case globally, potentially faces a shortage of organ donors, a shortage of

supply for most organs and waiting lists that reflect those shortages. Stating the general

problem of organ donation in this manner highlights the pragmatic managerial approach that

hospitals and governments take towards organ donation. It reflects the dominant philosophical

theory within contemporary bioethics, utilitarianism which, for the most part, would be

concerned with securing the maximal potential donors. In administrative parlance,

utilitarianism is all about 'outcomes'. Considerations of the nature of the act of donation as an

altruistic act reflect the traditional philosophical view of organ donation as 'a gift' to the person

awaiting donation. Such a view is consistent with virtue ethics. As the starting premise for this

thesis I contend that organ donation is an unproblematic good. Unproblematic in that

legitimately acquired donations of organs provide for the community in need of organ

transplantation and alleviate demand on community resources for the management of the

condition of patients waiting for a transplantation. Further, an opt-out system of organ donation

can be argued to be consistent with both modern virtue ethics and utilitarianism. The major

hurdle to the acceptance of opt-out systems is the idea of voluntary choice as encapsulated in

the issue of consent. If consent can be satisfied in the light of both of these theories, then

general acceptance of opt-out organ donation is itself unproblematic.

1 Thomas, Matthew; Klapdor, Michael, 'The Future of Organ Donation in Australia: Moving beyond the 'gift of

life'', in Department of Parliamentary Services (ed.), Research Publications (3/10/2008 edn., 1; Government Publication: Parliamentary library: Parliament of Australia Library), 2008b: 1.


The starting assumptions and motivations for this thesis are as follows: first, that the idea and

actuality of the good should be recognised as both rational and intuitive. Rational in that it

corresponds to the construction of ethical systems and intuitive as a response to learnt

behaviour and interactions with other people. Regardless of the construction of ethical systems,

the good exhibits as a quality that we can relate to at our deepest level as humans. Secondly,

that we actively create ethical systems of thought to give structure and form to our ethical

inclinations and to guide the perplexed to a realisation of the good in their own lives and that of

their communities in regard to specific issues and general goals. Thirdly, that the idea of the

virtues as character encapsulates what it is to be good qua human. Compared to this, the idea of

utilitarianism is an idea of methods of maximal attainment of specific goods. Such methods

hold a sway over the modern imagination specifically in the field of medical and/or bioethics.

Virtue theory and utilitarianism advocate approaches that proceed from different premises to

different conclusions: for virtue ethics, the good precedes the right, which is to say that ethical

states and conditions precede the enactment of the right actions; for utilitarianism, the right

precedes the good in which case the enactment of the right action is that which creates the

conditions or state of the good. A basic question that this thesis seeks to address in the context

of organ donation is: 'What is the picture of the good and does it differ due to the theoretical

nature of the approach?'

Considering the idea of the good, as an unchanging form or an achievable state, albeit in an

absolute sense, may seem idealised. This is not my intention. Instead, the idea that will be

presented is that organ donation is an unproblematic good. No defining notion of the good shall

be presented in this thesis. To talk of a definition of the good is to talk of the theoretical

structures which inform ones idea of the good. In talking about the internal goods of character

and the resultant relations that arise from the development of the virtues, one can see the form

of virtue ethics expressed. Likewise, when talking of the relational goods of the maximisation

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of happiness, pleasure or the good from a utilitarian perspective, one can view the resultant

expressions within the world. To navigate these expressive issues, in that they express ideas of

the good, is to navigate particular theoretical renderings of the good, to navigate a picture of

the good. It is in a sense a question of landscape. Depending on the terrain, the situation of the

subject and the environment presents a notion of the good which can be ascertained by

positioning. The idea of bringing the tools of theory to bear in situations is to achieve this good

both contained within the landscape and in relation to the landscape itself. The good in this

sense presents itself as both intrinsic, in the particular self, and extrinsically in relation to

external selves and things in the world. A good that is both intrinsically and extrinsically

concerned is not merely one of character development, but also of one's actions within the

world. The relational aspects of self, the causes and effects of action have as much to do with

the expression of the good as with the intrinsic development of self within each individual

subject.

Landscape and Evidence

The ethical landscape of organ donation traditionally has emphasised the idea of the gift, the

altruistic act, the intrinsic value of giving to anonymous recipients without the expectation or

desire for a reward. It relies on the notion of the voluntary action, an absence of coercion,

imposition or duress to achieve the extrinsic good of organ transplant. British sociologist

Richard Titmuss's late 1960's comparative study of blood transfusion and donor systems is

argued to have been highly influential in promoting altruism as a form of community

development and ascertaining a more reliable supply than market-based approaches.2 Based on

comparisons between US and UK blood donors, Titmuss argued that market-based approaches

provided both an inconsistent and unreliable supply of blood as they relied on paid donors,

2 Thomas and Klapdor 'The Future of Organ Donation in Australia, 25-27

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drawing predominantly from the poor whose health and financial needs may compromise the

veracity of their donor information. Further, his argument relied on positing market forces as

self-interested, ultimately profit maximising, whereas altruism promoted mutual bonds

between citizens and a form of social contract. Empirical evidence for the success of an

altruistic based strategy is minimal. When asked their intentions people may express the

inclination to give:

98 per cent of Australians agree that organ and tissue donation has the potential to save and improve lives 77 per cent of Australians are generally willing to become organ and tissue donors 40 per cent of Australians do not know the donation wishes of their loved ones but 93 per cent of Australians say they would uphold the donation wishes of their loved ones if they were aware of their wishes 78 per cent of Australians recognise it is important to discuss their donation wishes with the people close to them

17 per cent of Australians have had memorable discussions with their loved ones about their donation wishes3

However, intention is not demonstrated in the expressed actions of people in Australia where

there are currently 15.6 donations per million of population (dpmp)4 even after extensive

campaigns and the formation of the Australian Blood, Tissue and Organ Donation Authority.

Countries utilising an opt-out donation scheme that do not rely on altruism and have a default

position of donation achieve greater donation levels as in the case of Spain with 34.3(dpmp)5.

3 Victorian Department of Health, Submission to the legislative Councils Legal and Social Issues References

Committee Inquiry into Organ Donation in Victoria., Accessed 23/6/2013, 4. 4http://www.parliament.vic.gov.au/images/stories/documents/council/SCLSI/Organ_Donation/Submissions/26_VIC_Department_of_Health.pdf, 2011:4 4

Australia and New Zealand Organ Donation Registry, (ANZOD). "2012 Organ Donation." Australia and New Zealand Organ Donation, accessed 7/10/2013, http://www.anzdata.org.au/anzod/v1/indexanzod.html. 5 Thomas and Klapdor 'The Future of Organ Donation in Australia, 18


Empirical presentations of the efficacy of differing systems tend to suggest a relationship

between the adoption of opt-out organ donation schemes and increased donations. The

empirical presentation essentially shows the distinction between acts and omissions. Policies

such as opt-out have built into them the utilitarian principle and rely on people's tendency to

internalise these norms. Such arguments claim that where a maximising tool, such as an opt-

out organ donation system, was used, maximal results were achieved and, where a virtue

based tool, such as an opt-in organ donation system, was used, minimal results were achieved.

This is an argument from within utilitarianism. While extensive statistics available within the

field of organ donation generally picture utility as efficacious, it is not my intention to argue

from statistics.

While the numbers who positively enact 'the gift' are low, other problems exist for altruistic

forms of organ donation. Pure altruism does not require reward or recognition, but some

accounts of altruism may posit altruism as self-serving. Ideal accounts of altruistic behaviour

may ascribe the idea of 'the gift' as irrelevant, as 'the gift' accrues to the donor recipient.

Altruism in its purest sense does not seek rewards, even with reference to character, or

conceive of them as an issue to address when attending to the question of need of the recipient.

Perception of an altruistic act differs from an intentional altruistic act. Not all donations that

are presented under the auspices of the idea of 'the gift' may be altruistic: there may be self-

serving motivations; the donation may not be a heroic act or even a moral act; it may be a

calculation of ends; or, even a form of psychological scaffolding against existential despair.

There is also the imbalance in relations between the giver and the receiver of 'the gift'. The

giver may expect the position and idea of the act to be recognised as virtue in itself and the

receiver to be a grateful supplicant of such largesse. Alternatively, donors may have considered

the issue, weighed the arguments for and against and made a decision that reflected what they

considered reasonable, sensible and necessary. Speculation as to the nature of the act does not

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reveal intention, but reveals that there can be numerous reasons for the actual state. Speculation

as to the motivations and intentionality of givers may provide a range of possible situational

and psychological impetuses for action, but, as a philosophical argument, speculation is a weak

argumentative form. That 'the gift' exhibits a range of problems is indicative of its not merely

being a form of virtue; it suggests a need to change the relations of the parties involved in the

action so as to achieve the actual goods that can be achieved through organ donation, being the

organ transplantation and the resultant quality of life of the person awaiting transplantation.

Arguing from theory

Reasons for not using expressions of theories - in the case of utilitarianism, the statistics and in

the case of virtue theory, descriptions of motivations - reveal meta-ethical problems about how

to address the issues at hand, but provide little room for advance in the area. I would suggest

there is room to advance: people generally can choose to move towards ethical states or ideal

expressions, comprehending the issues involved within an area with a greater degree of

sophistication and making more informed choices. A case for statistical evaluation is strong. It

addresses the actual needs, demand and supply of organs in question. Statistics describe the

existing landscape, allow predictions to be made about possible management choices and

provide tools for making evaluative choices. For example, utilitarian philosophers have made

advances in creating the QALY method of evaluating and comparing medical treatments

creating a ranking system to evaluate the relative values of specific medical treatments so as to

equitably distribute scarce resources. Statistical evaluations of 'the picture' of organ donation

allow for overviews of 'whole of system' approaches for administrators and decision makers.

Expressed in this manner, utilitarianism appears managerial, distant and abstracted from

individual moral decisions and developed virtues that constitute the basis for specific moral

agency. Virtue ethics addresses what it is to be an ethical being. Decisions as to what is

important are made from the individual level on the basis of the dispositional attitudes and


values of the individual as to what constitutes a good life. Virtue ethics makes claims regarding

ethical agency, claims about what is ultimately important and that the ethical agent acts

voluntarily to enact goods, both personally and with society. The encapsulation of what

constitutes a good life and ethical personhood are intrinsic values and are 'mapped onto the

picture' of organ donation from the perspective of virtue ethics. Voluntary decisions and

agency are important aspects of what it means to be a person in respect to virtue ethics. Actions

of the virtuous agent express the foundational basis of the virtues as motivations.

Consent as basis for decision on opt-out

While examining altruism as an expression of virtue and statistical methodology as an

expression of utilitarianism raise problems, what remains common as a central problem to both

ideas is consent. In virtue ethics autonomy and integrity are valued and the ability to consent to

decisions is an extension of this value. Utilitarian ethics places more emphasis on the collective

values of actions in maximising the good and less on the autonomy of individuals as a basis for

decision making. Issues of consent are the focal point of organ donation schemes and the

question of how to construct the schemes revolves around how to frame the question of

consent. Below is a list of definitions of consent schemes:

1. Currently in Australia we have a presumed non-consent (opt-in) scheme where organ

donation occurs only when the patient has expressed consent through signing a consent

form or an organ register. This system became a hard opt-in scheme, where only the

individual can opt-in and the family has no legal right to block donation if the

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individual has done so, as part of the Rudd governments creation of the Australian

Organ and Tissue Donation and Transplantation Authority6.

2. Presumed consent (opt-out) is when organ donation occurs unless the deceased, or

their family, have registered an objection.

3. Soft opt-out is where either the individual or the family can make the decision to opt-

out.

4. Hard opt-out is where only the individual can opt-out and the family has no legal right

to block donation if the individual has not done so.

5. Mandated Choice requires everyone to register their choice through regular

mechanisms such as taxation forms or drivers licenses.

6. Normative Consent occurs when patients are treated as if they have consented, even

when they have not done so, if they are under a duty to consent.

7. Explicit consent occurs where the patients have expressed consent through signing a

consent form or an organ register.

8. Tacit consent or presumed consent occurs where it is implied that the patient will

donate.

Arguments about the nature of consent revolve around a persons autonomy and bodily rights.

Consent, whether it is implicitly or explicitly given, describes the action as either a mental state

or an action respectively. Violations of consent routinely occur in organ donation where

relatives override the ante mortem decisions of the deceased. Post mortem harm and ante

6 Commonwealth of Australia, 'Australian Organ and Tissue Donation and Transplantation Authority Act 2008',

in Health and Ageing (ed.), (Parliament House Canberra: Commonwealth of Australia), 2008, 40.


mortem decisions need to be distinguished to decide if any actual harm has occurred to the

deceased, that is to their ante mortem decisions. An argument can be made that harming the

dead is a fallacy. Arguments can be made also from the idea of presumed consent. I shall

argue that it is cogent position that consent is not necessary for organ donation. The expressed

wishes of the dead through ante mortem directives, wills and organ registers are enough to

establish valid consent. In the absence of such directives the default position of organ donation

can be viewed as neither a presumption nor a violation, but a valid action which expresses the

mutual ties of society.


2. Virtue Ethics Chapter

Modern Virtue Ethics

As this thesis is based on the idea that organ donation is an unproblematic good, there is a need

to establish an ethical framework around this good that functions practically and clearly to

achieve wide acceptance and enactment of organ donation as a virtuous act. Modern virtue

ethics after Anscombe7 provides a positive account of virtue that is disconnected from the

classical Aristotelian account of virtue interpreted by Aquinas as stemming from divine law. If

virtuous actions in society are viewed as psychologically positive acts, then there has to be a

framework for comprehending the instinct to do virtuous actions and providing the means to

rationally comprehend the actions. The idea that a just man engages in positive behaviours and

actions through inclination rather than through legislation is central to the modern virtue thesis.

"The concept of legislation requires superior power in the legislator"8. The just man relies not

on the notion of imposition to arrive at a rational outcome but, more in the Kantian sense,

becomes a self-legislator acknowledging the rational sense for specific actions.

A rational person would acknowledge that organ donation makes a positive contribution to

society. While a rational virtuous person may consider that organ donation is permitted but not

required, further considerations as to the benefits to others in a virtuous action extend the

notion of virtue within the self by enacting virtue within the world. The non-reflective virtuous

agent may very well not consider the self before engaging in active virtue, but even the

reflective virtuous agent who considers organ donation may come to enact organ donation

voluntarily for its extension of community benefits. Voluntary acts of community benefit are

preferable to the psychological state that arises from the imposition by law. Those brought

7 Anscombe, G. E. M. (1958), 'Modern Moral Philosophy', Philosophy, 33 (124), 1-19.

8 Anscombe, 'Modern Moral Philosophy', 2.


freely to rational conclusions by simply realising the wisdom of specific actions may be more

inclined to realise the good of specific situations, such as organ donation, than those who have

the will of the many imposed on them by the force of law. Those who freely arrive at actions of

the voluntarily virtuous express deep commitment to the practical outcomes of the group

without having duties imposed on them by way of law. This group recognises the rationale

from which the laws were designed. Ideas of acting for the common weal are virtues in

themselves in that they encourage, demonstrate and reinforce community virtues and mutual

interests within society towards a moral state.

Arguments for the existence of an ethical state that look "for proof that an unjust man is a bad

man would require a positive account of justice as a 'virtue'"9. Such arguments suggest

relations of ideas and actions between individuals and within communities about the idea of the

good, the moral, which give rise to the ideas ought, should or needs. The maintenance of

these relations relies on a law concept of ethics to maintain the agreement and compliance.

Ideas of obligation are bound up in the root of law that refers to Christian/Judaic/Stoic concepts

and, in a contemporary society have lost their root, if conceived of outside this context.

Anscombe discusses movements from 'is' to 'ought' in Hume and offers the contrasting view of

a movement from 'is' to 'owes'. The movement is from a stronger legalistic obligation to a

weaker contractual obligation of relations and, if taken further from 'is' to 'needs', leads to the

concept of what is needed for the flourishing of the individual or the group within society.

Anscombes move here also weakens the notion of what constitutes a moral state as the

demands of situations are responsive to particular needs rather than demanded by categorical

9 Anscombe, 'Modern Moral Philosophy', 4-5.


injunction. Ethical states responding to a 'needs' basis are more situational than objective.

Situational in relating to particulars whereas objective relates to general circumstances.

If the notion of an ethical state is to be conceived objectively, standing outside of reference

to the specific mores of a society in which it is formulated, then a universal and timeless

state is suggested. Objective sets of virtues suggest a reference to duty or law. However,

they can be considered both as excellences of human nature and as having an objective

foundation. Considering virtues as situational looks towards the idea of the excellence of

human nature to be applied situationally without reference to objective norms of virtue.

Modern virtue ethics eschews the notion of looking for norms of virtue as if "a complete set

of teeth is the norm"10. The impositional problem is a problem for utilitarians, Kantians and

other rule-creating modes of ethics whereby the creation of rules is the creation by

legislation of action and, thus, the impositional problem is the legislation problem.

Hursthouse identifies the attempt by virtue ethicists not to impose 'oughts' or rules as the

'anti-codifiability'11 thesis which is a direct critique of the attempts towards normative

theory models by utilitarians and deontologists. Such rules she puts forwards have two

features:

(a) the rule(s) would amount to a decision procedure for determining what the right action was in any particular case;

(b) the rule(s) would be stated in such terms that any non-virtuous person could understand and apply (them) correctly.12

10 Anscombe, 'Modern Moral Philosophy', 14.

11 Hursthouse, Rosalind (2012), 'Virtue Ethics', in Edward N. Zalta (ed.), Stanford Encyclopedia of Philosophy

(Summer 2012 edn.; California, USA: Stanford University), 11. 12

Hursthouse, 'Virtue Ethics', 11.


Hursthouse argues13 that (b) has been abandoned and that (a) has a lesser emphasis placed

upon it by utilitarians and deontologists. Further the general problems of universalising and

wide comprehension of rule based reasons leads to questions about the reasonableness of rules

in general.

However, virtue ethics is open to the charge of being vague in that it resists the ability to

impose rules, universalise or codify leaving the question of its encapsulation or definition open.

An even stronger critique regards virtue ethics emphasis on being rather than doing to be

lacking in active engagement with the world and more concerned with the self alone. A

virtuous person need not act to maintain virtue; he or she merely has to be virtuous without

action to improve states of affairs in the world. In the case of organ donation as with many

human activities, ideas of action are central to the meaning of the endeavour. Virtues in organ

donation can only be realised in the binary choice of doing or not doing, either registration for

donation or its counterpart lack of action. In a stronger sense it could be argued that the

existing virtues in organ donation, beneficence and justice, by the presence of an act of organ

donation, or its absence, signify the presence or absence of the virtue. While there is no

corresponding vice for this situation, and nor do I intend to argue for such a case, there can be

seen to be ethically positive outcomes from the act of donation. How an act affects others and

the self are questions of doing in society. While virtue ethics does not seek to impose sets of

rules, the proponents of virtue ethics must respond to situational demands. Virtue ethicists'

reluctance to impose rules and thus clear cut routes to virtuous actions on a case by case basis

is not the result of virtue ethicists unwillingness to provide guidance, but arises from virtue

ethicists search for principles as to what will satisfy the well-being of virtuous persons in

13 Hursthouse, 'Virtue Ethics', 11-12.

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particular situations. The principle that the well-being of the person is the ground of what

creates a flourishing of a life is the modern encapsulation of Aristotle's notion of eudaimonia.

Eudaimonia

Under Aristotelian virtue ethics, eudaimonia is considered to be a positive way of being, that

suggests ideas of 'happiness', 'flourishing' and 'well-being' which supply the needs of the

individual. But, in a deeper sense, virtue and eudomonia are intertwined: real happiness is

being attached to virtues, in the possession of which life is worth living. The good life for the

virtue ethicist is one of moral merit, responsive to the world and the demands of the world. The

demands of the person in need of organ donation are real demands requiring an active virtuous

response by the individual. These demands provide the opportunity for the eudaimon to enact

virtuous behaviour and to realise moral status in the world as well as having the consequence

of the recipient to have their basic needs met in order to live a longer life. "According to

eudaimonism, the good life is the eudaimon life, and the virtues are what enable a human being

to be because the virtues just are the character traits that benefit the possessor in that way"14.

While actions of organ donation may benefit the donor in the performance of virtues they also

constitute a very real physical sense of well-being within the world in the well-being of the

recipient. The physical well-being of the recipient is a result of the enactment of the eudaimon

of their intrinsic virtue acted within their life to be brought to fruition after death.

Virtue ethicists such as Justin Oakley15 argue for the intrinsic value of the virtues. Possession

of the virtues are valuable for their own sake, to be viewed as intrinsically worth possessing

and not instrumentally desirable. These virtues give rise to the character traits such as

14 Hursthouse, 'Virtue Ethics', 10.

15 Oakley, J.G., Cocking, D., Virtue Ethics and Professional Roles, (Cambridge UK: Cambridge University Press

2001), 20.

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benevolence, courage, honesty and other dispositions of character that constitute a virtuous

person. In terms of virtue ethics, definitions of the right are described by reference to what a

virtuous person would do in specific circumstances. While slightly vague and circular, the

argument for the intrinsic values of the virtues leads to another claim that the good precedes

the right; evaluation of the moral worth of actions leads to reflections on the nature of the

good. The attitude of virtues as paramount and yet not necessarily as enacted or achievement

orientated is clearly expressed by Bernard Williams:

"It is no good if moral value is merely a consolation prize you get if you are

not in worldly terms happy or talented or good-humoured or loved. It has to

be what ultimately matters.16

Suggesting that virtues are dormant or hollow without expression in action runs counter to

ideas of the primacy of the virtues.

Virtue ethics can be seen to be dispositional and not capricious: virtuous agents act on specific

standing inclinations, such as honesty, generosity, courage, loyalty and charity. These concepts

and the acts that characterise them are psychological conceptions and have to do with

emotions, emotional reactions, choices, values, desires, perceptions, attitudes, interests,

expectations and sensibilities. Hursthouse makes the point that there is a distinction between

the fully virtuous, those who act out of inclination alone, and those who arrive at virtue through

strength of an act of will. "The fully virtuous do what they should without a struggle against

contrary desires; the continent have to control a desire or temptation to do otherwise"17. It is,

however, admirable of a person to shape their behaviour and thought towards that of a virtuous

state, towards that which the virtuous would choose without a second thought. Arrival at a state

16 Williams, Bernard, Ethics and the Limits of Philosophy, (Cambridge: Cambridge University Press 1985), 217.

17 Hursthouse, 'Virtue Ethics', 5.

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of virtue may not necessarily be an innate sensibility but a learned sensibility, which creates

specific psychological inclinations and concepts rather than a state of being or intrinsic

predisposition. Acts such as organ donation demonstrate in a practical manner the values and

choices of the individual towards the needs of the community generally. Psychological states

that are indicative of the ideas of virtue find expression in acts. A 'landscape' of value can be

understood in terms of patterns of individual behaviours within a specific society that lead to

mutual flourishing. It is the expression of the virtues, the practical wisdom, or phronesis in the

Aristotelian sense, that creates the conditions for eudaimonia, not merely the holding of the

idea of virtue in being.

Phronesis

Practical expression of the virtues requires practical thought, the Aristotelian sense of

phronesis, practical moral wisdom. It is a form of rational thinking that combines practical

knowledge with the capability to rationally consider actions which give rise to expressions of

moral wisdom. To have virtues as a psychological state is one thing, but to give expression to

them in action is to actually hold the belief. The practical wisdom involves an action to achieve

a virtuous state, and, if conceived in the terms of organ donation, the practical wisdom is

encapsulated in terms of the act of registration as an organ donor. It is not enough for the

virtuous to hold a belief without making an action: a belief without an action is merely holding

of a psychological state and does not combine rational thinking with practical knowledge to

achieve a virtuous result. Organ donation enacts phronesis, or practical wisdom, which links

the idea of the virtue to being and acting within the world and within your specific and wider

community.

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Phronesis has the greater sense of a well-developed skill, honed and practiced through time to a

form of mastery. Virtuous decision-making demonstrates skill at having been presented with a

situation and being able to make a skilful decision that will add to the well-being of the

decision-maker. Being able to secure real benefits from situations involves knowledge of what

is beneficial and what is harmful. Knowledge of an individuals' specific circumstances may be

lacking and, even in the most skilful people, knowledge is not infallible. Practice and

experience, pronesis, give rise to prudence, phronimos, and lead to further theoretical wisdom,

sophia, but claims towards the fully wise must be tempered with remembrance of the path of

our learning as learning the right thing and the right reason through error and correction is

ongoing. Practice not only illuminates patterns of choices but illuminates strategies,

motivations, intuitions and interests. With the skilful knowledge that experience provides the

individual, along with revealing the reasons for individual choices to the individual, the idea of

phronesis, practical moral wisdom, becomes an easier task to achieve.

Discussed like this, choices reveal self-knowledge as to preferences and experience reveals

objective factors about the world and society and what constitutes good decision-making. Not

that practical moral wisdom can be considered objective, but the knowledge of brute facts

about the natural world informs judgements about the elements of a good decision. While

individuals may not adopt a fully mechanistic view of the world and seek to comprehend a

complete set of natural laws or an objective list of virtues, they may through experience,

practice, failure and learning gain a form of practical wisdom that shapes or reveals their

preferences and the methods to best satisfy these preferences. Phronesis as part of virtue ethics

suggests that the virtues are developed or revealed through practical application and interaction

within the world leading to better or wiser decisions. Phronesis involves knowledge of the ends

of virtuous choices as well as knowledge of the means of attaining them. The ends, being the

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good and virtuous life of the eudaimon, make virtue ethics a teleological philosophy rather than

a philosophy interested in mere instrumentalism.

Arete

Arete, in the classical sense, is associated with virtue as a mode of living, a consistent

struggling and striving for excellence, goodness and virtue in a courageous manner. "As a

repeated/repeatable style of living, arete was a performative, bodily phenomenon, depending

on visibility - on making manifest qualities associated with virtuosity. As such, it was produced

through observation, imitation and learning."18 In making the case for the virtues as

performative acts rather than just states of being, calling on the idea of arete points to the

manifest nature of virtue in action. It can equally be argued that the performative repetition of

acts associated with virtue creates the state of virtue within the individual. Arete, when

established within the individual, is not concerned with the ontological priority of goodness

before ethical action or if goodness is a by-product of ethical action. Rather in the performative

nature of actions, virtue is a constituent of all acts that aim to be exemplars in their specific

field. Arete is part of a mode of living that encapsulates certain attitudes towards life, others

and the self that aim for the acts to be virtuous in themselves so as to achieve a state of

excellence as an act.

Arete applied to organ donation can be conceived from the vantage points of the donor, the

medical staff and the recipient. As the donor one could ask, what constitutes a virtue in terms

of organ donation; how do I achieve an enacted virtue through this question? As a member of

the medical staff the questions are many: are the procedures optimally designed to facilitate

18 Debra Hawhee, Agonism and Aret. Philosophy and Rhetoric 35:3 (Fall 2002), 187.

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organ donation? Are the counselling processes for the dying and the family of the dying

designed to provide a supportive bridge towards donation as a positive act as well as providing

for their emotional needs? The organ recipient is the object of arete in organ donation and the

fulfilment of the need for organ donation. The successful survival of the organ recipient is, in

that respect, the evaluative sign of excellence and virtue of the process of organ donation. In

contrast to questions of virtue as being, the manifest outcomes can be described and evaluated.

The statistical measure of the actions in this field can demonstrate both the visibility and the

performance of the inherent virtues of the actors in organ donation. The outcomes and the

measurement of the outcomes gives expression to the aspect of arete, goodness and virtue

achieved through courageous and constant striving.

Opt-Out Organ Donation and Virtue Ethics

Opt-out organ donation as a structural design presents a specific challenge for virtue ethics.

How can a scheme designed to minimise the nature of choice by the individual be claimed to

be a form of the virtues? Choice is limited by minimising or maximising the form of consent in

organ donation schemes which I shall examine in Chapter 4, so for this section I shall limit the

consideration to that of the appearance of the virtues regardless of the scheme in place. It is in

the nature of the virtues that people come to be participants in schemes that provide virtuous

ends. The people recognise the performance of practical wisdom and engage in a constant

striving for excellence in a courageous manner. The case of organ donation is such that the

performance of acts that can be considered to hold virtue are limited to that of the positive act

of donation. Arguments regarding 'virtue as being' essentially allow for the individual not to act

and retain the being of virtue. Such an argument can be viewed as a negative claim, what the

virtues are not. By making claims as to the idea of goodness, what the virtues are, there are

implicit boundaries. Virtue ethics is expressed as a claim to what the virtuous stand against,

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rather than what the virtuous stand for. However, there are positive claims of virtue ethicists

which can be enacted. The virtuous can be envisaged as positive agents in the world, rather

than activists fighting against the insurmountable lack of virtue. It is important for the success

of organ donation the positive notion of action is emphasised rather than the failure of group

inclinations towards mutually beneficial and virtuous action. Bluntly, organ donation is a

positive virtue as an act without reserve. The voluntary nature of the virtues would suggest that

the 'picture' of organ donation would be one of donation regardless of the nature of the scheme.

For those of virtuous character who practise the virtues, the nature of the scheme has little or

no impact on their decision or considerations on this question.

However, the numbers of effective organ donors in Australia in 2012 was 15.6% people per

million19. Opt-out organ donation schemes would, by their form, raise the raw numbers of

organ donors, but would change the nature of the act of donation from the purely voluntary to

that of the partially voluntary. Voluntary action, according to Aristotle20 is achieved in

conformity with ones will, not by choice or desire but through thought. Further, the continent

man drags himself away from the pleasant by force, while the incontinent moves towards

pleasure: such actions exhibit voluntariness. For both, the force is an internal one and not an

external coercion, yet one acts towards voluntariness and the other towards the involuntary.

Aristotle takes the inclination to avoid pain and to seek pleasure to be involuntary.21 As

voluntary action is the opposite of involuntary, then desire or pleasure is not the measure of

voluntary action. What one does involuntarily is done in error and what is done voluntarily is

done with knowledge22. The difficult question for the virtue ethicist is how to construct an

19 Australia and New Zealand Organ Donation Registry, "2012 Organ Donation."

20 Aristotle, The Eudemian Ethics: A new translation, translated by Anthony Kenny, (New York: Oxford

University Press, 2011), 26-31. 21

Aristotle, The Eudemian Ethics, 30 22

Aristotle, The Eudemian Ethics, 30-31


argument that allows for opt-out organ donation which can be accommodated from within that

philosophical stance. If we were to consider the picture whereby all the population was purely

virtuous in action, then the imagined outcome would be the lack of necessity for such schemes:

the organ donation rate would meet the demand for organs out of the voluntary and virtuous

nature of the citizens. Such a situation would be a triumph of practical wisdom (phronesis) and

of excellence (arete) and would accord with the population being eudaimons.

The notion that those who arrived by force of their will or merely by the structure of the

scheme at this state has not achieved the virtues in a deep sense, but merely in a sense of

deliberative action rather than inclined disposition. A strong sense of virtue ethics would

suggest that the truly virtuous were so by inclination rather than deliberative effort. A threshold

view of virtue, however, would suggest that deliberative effort gives rise to virtue within the

agent. The suggestion that practical wisdom can construct the circumstances of virtue and that

arete is a constant struggling for the state of virtue to be achieved, could suggest that

conceptual tools that achieved the state of virtue desired were not in themselves hindrances to

virtue. Similarly, too, considering the idea that the struggle for virtue was a good in itself and

not merely an act of will, then the possibility for an opt-out organ scheme designed to aid the

individual and the group towards a state of virtue could be regarded as a good in itself. Agents

acting out of lesser virtue may be acting towards a state of purity of intention that has not even

consideration of virtue as its object. This argument, while tempting for those who have

achieved such states must be rejected if donor levels are to be increased. While preferences on

surveys23 show that people indicate their support and intention to donate, the levels of support

are not translated into actual registrations. If the presumption is that the virtuous indicate their

willingness to donate and actually donate, and some are virtuous and yet do nothing, there is

23 Victorian Department of Health, 4


still a presumption that a greater number of the population do not consider the action or their

relation to others.

Questions about where opt-out organ donation schemes sit in relation to virtue ethics are an

important part of justifying a scheme. Can a scheme that limits the choice of potential donors

to that of the negative choice of opting out be a just or virtuous scheme? Is it necessary to

adhere to maxims of virtue ethics such as "goodness is prior to rightness"24 or notions that the

virtues are objective goods, or even that the rightness of an action is determined by what the

virtuous person would do in such a circumstance? Furthering the idea of 'a picture of organ

donation' I would suggest that the virtuous person would voluntarily donate, that the question

of opting out is not really a question for the benevolent or those people with the character of

being mutually interested in the welfare of the other as the self. A picture of perfect virtue

would be a picture of optimum donation. However, the further question of whether it is

necessary for all to be good for the action to be right presents a quandary. If laws are directives

towards behaviour and, in a state of virtue, laws are unnecessary except as guides to behaviour,

the virtuous engage in a state of mutuality. However, it is reasonable for laws to exist to guide

people in regards to concerns, so that they can achieve a state of shared mutual interests. If the

laws are designed to maximise in a utilitarian manner the optimal number or organ donations

this design does not necessarily preclude the laws from passing a test of ethical virtue. The

'picture of organ donation' presents the same view, whether viewed from the stance of the

virtue ethicist or from that of the utilitarian. There may be no ideal observer stance by which to

view organ donation schemes, but there may be schemes that present greater optimal value

when regarded from multiple stances.

24 Oakley and Cocking, D., Virtue Ethics and Professional Roles, 19


3. Utilitarianism Chapter

In contrast to virtue ethics' emphasis on the good preceding the right, utilitarianism places the

emphasis on the right preceding the good. The right action is that which produces the

maximum amount of pleasure, satisfaction or good depending on the particular version of

utilitarianism being considered. Utilitarianism, as a form of consequentialism, is concerned

with the consequences of actions, the end results, and not necessarily the grounding conditions

from which the action is formed. Classical utilitarianism is a position that maximises the

consequences of the action and performs a sum ranking whereby an action is good if and only

if it provides a greater total of a particular subjective form of well-being. More contemporary

versions of utilitarianism such as preference utilitarianism define the satisfaction of preferences

as the good, whereby the idea of pleasure is only one of these interests. In this thesis I shall be

referring to a form of classical utilitarianism. If we directly consider organ donation, the

greatest utility is that which results in the greatest number of patients awaiting transplantation

being satisfied. The right action would be the form of action that created the conditions

whereby the greatest number of donations was achieved. It is an irresistible logic whereby "one

could abandon all the metaphysical or theological factors - commands of god, natural rights,

virtues - which made ethical questions scientifically undecidable. Bluntly we could

calculate."25 The managerial efficacy of utilitarianism seems suited to organ donation and to

other ethical questions in modern medical practice with limited resources and increasing

demands. However there is a pluralism of forms of utilitarianism: not all follow the simple

description of numerical maximisation of specific goods such as organ transplants. As well as

considering the different forms of utilitarianism, I consider whether attribution of a moral

reasoning necessarily follows from a calculation of right actions. By moral reasoning here I

mean a form of practical reasoning directed at what to do in specific circumstances and, if a

25 Charles Taylor, The Diversity of Goods in Utilitarianism and Beyond. Edited by Sen, A. and Williams,B.,

(Cambridge Uk: Cambridge University Press, 1982)


conclusion is found, the moral agent creates a purpose or intention. Differing forms of

utilitarianism will create differing practical reasons and conclusions. Thus, examinations of

differing models are essential towards formulating a model that accommodates the idea of

virtue ethics and utilitarianism and is the goal of this chapter.

Distinctions between forms of utilitarianism are offered so as to arrive at some form that can be

associated with organ donation. A basic distinction between types of utilitarianism is the

difference between act and rule utilitarianism. Act utilitarianism examines the choices that are

available when one intends to act and chooses based on the best consequences. Rule

utilitarianism looks to rules, a set of behaviours and actions which, when observed and enacted,

lead to the best consequences. It would seem that voluntary systems of organ donation are

incompatible with rule utilitarianism and more compatible with libertarianism which privileges

personal choice, individual liberty and the voluntary nature of association as the criteria from

which to make decisions. Act utilitarianism choices available are examined for their best

consequences. Systems of organ donation, like opt-out organ donation, that seek to create rules

and systems by which the process of organ donation is decided, are compatible with the

general definition of rule utilitarianism. After an examination of historical positions of

utilitarianism and the associated problems, I shall seek to refine these definitions and propose a

specific form of utilitarianism under which conflicts with virtue ethics are minimised.

In the work of Jeremy Bentham, classical utilitarianism is concerned with the maximisation of

pleasure and the minimisation of pain. Classical utilitarianism is not only concerned with the

maximisation of the greatest happiness but also to the greatest number of recipients. "By

utility is meant that property in any object, whereby it tends to produce benefit, advantage,


pleasure, good, or happiness, (all this in the present case comes to the same thing), or (what

comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness

to the party whose interest is considered."26. Bentham's views widen the moral community to

include animals and collapse the evaluative distinction between animal pleasures, or

sensations, and intellectual pleasures. Other definitions of pleasure beyond the sensory exist:

"[John Stuart] Mill noted that people, if given the choice, would choose the life of a dissatisfied

Socrates over the life of a happy fool. Socrates received a good deal of intellectual satisfaction

from his philosophical interests. Such satisfactions are not available to the fool, who may be

happy, but whose happiness is derived from trivial pursuits and activities."27 Maximal or

idealised satisfaction as being the life of the intellect is represented as qualitatively different to

the pure pleasure seeking of the hedonic utilitarian. Mill also placed value on internal states as

a form of self-regulation, with remorse and guilt regulating action. As beings with social

feelings, remorse and guilt act as guides for our behavior. Ideas of a conscience and a sense of

justice form and frame our sense of self and others which in turn enables us to enlarge our

ability to make wise decisions that include the needs and welfare of others into our decisions

and actions. Such inclinations underscore Mill's concern with rights as being underwritten by

utility, aimed at influencing social and political laws to extend the ability of the self and others

to achieve self-development.

Sidgwick conceives of utilitarianism as "the ethical theory that the external or objectively right

conduct under any circumstances, is such conduct as tends to produce the greatest possible

number of all whose interests are affected"28. Sidgwick distinguishes between the

26 Mill, J.S., Utilitarianism in Ethics, ed. Steven M. Cahn and Peter Markie, (New York: Oxford University

Press 2011) 27

Driver, Julia (2006), Ethics : the fundamentals (Malden, Massachusetts: Blackwell ) 49. 28

Sidgwick, Henry (2000), 'Utilitarianism', Utilitas, 12 (3), 254.


psychological act of seeking pleasure and an objective outcome by examination of what

constitutes objectively right actions. Utilitarianism, for Sidgwick, is not a theory of moral

sentiments derived from experiences of pleasure and pain; happiness is a wider concept which

includes the intellectual pleasures. Sidgwick asks "can we decide scientifically the old

controversy between intellectual and sensual pleasures?"29 The further question about whether

objective evaluations can be attributed to psychological states such as the experience of

pleasure and pain illuminates this controversy: if pain and pleasure states hold for only

individual psychological states then can any intellectual universal principle be attributed to

such states? Sidgwick suggests that a rational agent would make a wider notion of universal

happiness their goal, wider presumably than individual happiness. However without a universal

principle to govern a wide sense of what creates happiness, the call lacks generalisable

intellectual clarity.

Critics of hedonistic accounts such as G.M. Moore deny the good is linked to pleasure,

claiming rather that the good is an ideal form, undefinable; and that pleasure is a non-natural

form. The defining of the pleasure as the good was a mistake, it confused a natural form with

an ideal form, a mistake he categorised as a naturalistic fallacy. For Moore "how good is

defined, is the most fundamental question in all ethics...its definition is therefore, the most

essential point in the definition of ethics; and moreover a mistake with regard to it entails a far

larger number of erroneous ethical judgments than any other"30. Moore takes the good to be a

simple kind, similar to a colour being a metaphysically simple kind. Propositions as to what the

good is are synthetic statements, invoking a Kantian schema suggesting the synthetic a priori.

29 Sidgwick, 'Utilitarianism', 256.

30 Moore, G.E., Principia Ethicia (selections) in Ethics, ed. Steven M. Cahn and Peter Markie, (New York:

Oxford University Press 2011), 461


However, the simple notion of good to Moore is indefinable: "Good then, if we mean by it that

quality which we assert to belong to a thing, when we say that the thing is good, is incapable of

any definition, in the most important sense of the word"31. While Moore clearly distinguishes

pleasure and happiness, he leaves the definition of happiness as an open question, while

claiming it is something we all understand and the foundation of the idea of the ethical.

Regardless of the definition of the good, or for any of the formulations of utilitarianism, the

principle of utility provides the method to evaluate specific actions and to weigh their merit

either individually or collectively. By attributing specific values to actions which accord to

specific situational formulations of right actions and weighing the outcomes, the good is a

reflection of the definition of what constitutes the right. The attribution of the right specific

methodology, in a given situation, to weigh such values does not idealise the good in the sense

of Moore; it is not an absolute form or a form resistant to definition, but a formulation that is

situational and implies, on the basis of possible actions, pragmatic courses of action to achieve

greatest utility.

Moore's idealism-based critique is presented in a different form in Bernard Williams argument

of intrinsic value. Williams argues that the idea that something is of value because of its

consequences is not something that people generally hold. Rather, there are things that have

non-consequential value and that "anything that has that sort of value, has intrinsic value"32.

Contrasted to this, utilitarianism suggests that states of affairs, such as optimum organ donation

levels, have intrinsic value and actions towards this state of affairs are right. Williams argues

that the right action is a maximising principle in utilitarianism that reserves intrinsic value for

the experience of happiness and states of affairs rather than the intrinsic value of the being or

31 Moore, Principia Ethicia (selections) 463

32 Smart, J.C.C. and Williams, B., Utilitarianism: For and Against, (Cambridge, Cambridge University Press,

1973), 83


thing in itself. Williams' argument for intrinsic value in any state of affairs is that the goodness

of the state of affairs precedes the action and not that the action is cause of the effect of a good

state of affairs. Williams' denial of consequentialism is not an invocation of moral absolutes in

that "this is not at all to say that the alternative to consequentialism is that one has to accept

that there are some actions which one should always do, whatever the consequences."33

Equally moral absolutes refers to acts that are wrong, always and everywhere, and not to be

done. As consequentialism raises questions of moral responsibility, Williams suggests that the

responsibility of the individual is for those things or states of affairs that they allow or fail to

disallow.

In consequentialism the argument of negative responsibility occurs where moral blame can be

attributed to those who do not act to create the state of affairs, as well as moral praise given to

those who do act to create the state of affairs. If negative responsibility extends to the cases in

which, by omission, we are held accountable, then consequentialism is very demanding. Indeed

it may be so demanding as to imply that we are required to act when, on the face of it, no such

demand exists to do so. The question of demand is also a question of psychological and moral

integrity. "Because we can be blamed for our inactions, our failures to act in a certain way, this

responsibility is called 'negative' responsibility."34 Williams points to negative responsibility

and its morally demanding nature in making demands on the individual to the point of making

personal integrity as a value unintelligible. Consequentialism alienates the individual from

moral sentiments in that the ultimate value of moral identity is in states of affairs outside the

individual and not concerned with the intrinsic moral state of the individual. In that it asks of

individuals to step aside from their aims and projects for the sake of a utilitarian maximisation

33 Smart and Williams, Utilitarianism: For and Against, 83

34 Driver, Julia, Ethics : the fundamentals, 72.


of ends, consequentialism can alienate the individual from a sense of their convictions, purpose

and integrity. Williams critique of utilitarianism points to the areas that remain problems for

utilitarian theory, those of moral obligation, demandingness, justice and personal integrity.

Utilitarianism seeks to make a moral obligation to give, to place a person under the

requirement to enact the good, rather than considering that giving as an act is good but not

required.

Peter Singer argues that those living in affluent Western societies have an

obligation to give to famine relief to improve the lives of those living in

countries where poverty and starvation are endemic...giving is not

supererogatory but, instead, is morally required. To many, this seems too

demanding - giving is nice, but failure to give does not entail a moral failure.35

Supererogatory acts are considered as 'beyond the call of duty' and in the case of organ

donation conventional morality would suggest that it was a positive act to give but not

necessary one. Conventional accounts of organ donation talk of the act of giving as 'a gift' and

place emphasis on the special nature of the act which accords to accounts of the supererogatory

act. By placing a moral obligation on the act of giving, the idea of the gift is removed, in that it

becomes an obligation rather than a supererogatory act. The value of the act is in the

consequence of the donation. The demandingness of the utilitarian not only makes an

obligation of the good, but re-evaluates the moral character of the act of giving as an

obligation. To extend the action of giving to that of a moral obligation places too much of a

demand on people, as well as establishing new grounds by which people can be considered to

have morally failed without having acted, regardless of knowledge or direct culpability.

35 Driver, Ethics : the fundamentals, 49.


The demanding nature of giving is viewed pejoratively by conventional moralists who, while

considering giving to be good, may see no moral obligation to give. Demandingness can be

compared to coercion and compulsion when contrary to reason. Or, put a different way,

conventional moralists may see an 'ought' but not imply a 'must', whereas a utilitarian may see

an 'ought' and imply a 'can'. Distinguishing a technical moral demand, based on causation and

effect of actions, from a folk psychological demand, where intentions are based on beliefs and

desires, is an important act to determine the basis for weighing demands. Such a distinction

allows for purely psychological intentions, desires, beliefs, emotional states to be discounted

when regarding moral action that leads to demonstrative effects in the world. The distinction

also allows one to evaluate what constitutes an actual demand and what is a demand that is

emotively based. From a utilitarian perspective a person may very well ask who would define

morally responsible action such as posthumous organ donation as demanding. Further, a person

may argue that practical actions that cause few actual demands on the living potential donor

and have demonstrative actual effects on the lives of recipients are not demanding enough and

certainly not supererogatory. Is living a morally fruitful life a demand on the moral, or is it

only a demand when it is considered supererogatory? If a person sought to minimise the

suffering of those awaiting transplantation by putting his/herself on a donor list, is this really

creating an obligation on the person that is a significant impost? The movement from the

realisation of the needs of others to engaging in a voluntary act recognises the other in society

and, while the choice of action may be considered to be a moral obligation, the willing choice

to embrace such actions diminishes the strength of the claim that the requirement be considered

as an imposition or a demand. While demands such as Singer's to give money to relieve

poverty may place financial hardship upon the individual, signing an organ donation form only

places a minimal demand, in part psychological having to confront one's own mortality and in


part a demand on one's time. The further demand of the actual donation occurs after death. I

will argue further in the chapter on consent that the demand upon the dead is not a real

demand: as the dead have no use or need for the organs posthumously.

Utilitarians may also counter that the claim of demandingness is a claim that creates

psychologically positive states within the giver, rather than creating moral failure and

psychological alienation from not giving. The person who enacts moral ideas is engaged in a

performative moral action as opposed to considering an action that is good but unnecessary.

While the obligation normalises the act from that of a gift to that of an obligation, considering

giving as supererogatory shifts the boundaries of what is considered 'beyond the call of duty'.

The move to consider such actions as voluntary or to shift the boundaries of conventional

morality to include giving as a normative act rather than a supererogatory act can be considered

to create psychologically positive conditions rather than render the inert alienated. In that it

alienates the individual from their sense of self and asks them to address extrinsic states of

affairs in the world and not the workings of their personal integrity, utilitarianism acts as an

attack on individuals' integrity in a real sense. The search for an external state of affairs that

leads to the lack of moral integrity in others can be seen as a reallocation of justice from the

individual to the idealised state of affairs of the utilitarian.

An idea of justice may place limitations on the range of possibility of actions for utilitarians

seeking maximal utility. Justice may include the intrinsic value of individuals and moral

motivations that conflict with the demands of utility. Similarly the demands of justice may be

weighted towards a concept of no harm or no malfeasance, i.e. in the case of John Rawl's

concept of justice where conditions are arranged so that they are to the greatest benefit of the


least advantaged members of society.36 Consider the examples of the lifeboat metaphor or the

contemporary trolley car thought experiment. In the first, the lifeboat has a number of

occupants (x) and only a limited amount of rations (x-1). The ethicist's question is how to make

a decision on who should receive rations and live and who should not receive rations and die.

"Justice is primarily concerned with the following of certain rules of fairness and honest

dealing and with respecting prohibitions on interference with others rather than attachment to

any end".37 The idea of justice as a form of fair dealing seems to prohibit considering the

maximal outcome for all within the lifeboat by negating the rights of one. Presumably, a purely

means based utilitarian analysis would suggest that the person least likely to aid the survival of

the overall number in the lifeboat should be sacrificed for the greater good. Conventional

morality is justified in finding this state of affairs morally abhorrent: there are demands of

justice that are not to be considered calculable but intrinsic to individuals as a natural right.

Consider as well the phenomenon of the bystander effect, where a person in danger or harm is

not helped by a number of people standing by. The presence of others may inhibit people from

action and the likelihood of initiating action may decrease with the number of people.

Depending on whether people notice what is happening, interpret it as a danger, assess their

own degree of responsibility, are able to decide on a form of assistance and can implement

assistance is an analytic method of the decision making process that may not necessarily lead

to assistance. The demands of justice for those in harms way - whether considered from

utility, protection from malfeasance, or towards the least advantaged - is for a positive response

to be made by those standing by. Conventional morality may suggest that people are taught

behaviourally to respond to those in danger, so that it become reflexive and not a question of

36 Rawls, J. A Theory of Justice, (Harvard: Harvard University Press, 1999), 5-6

37 Phillipa Foot Utilitarianism and the Virtues in Consequentialism and its critics, edited by Samuel Scheffler,

(Oxford: Oxford University Press, 1988), 236


analysis or the demands of justice, but a form of intrinsic internalised response to need of

others.

Examples of moral dilemmas, such as the ones advanced, are often difficult in that they present

clear dangers, difficult choices and problematic moral solutions. The situation of organ

donation, like many everyday decisions, does not rely on such immediate moral dilemmas that

require a drastic moral decision. The requirements of justice are not as clear: no obvious action

is required by any of the parties. The need of the person awaiting an organ donation is required

by Rawls test of the greatest benefit to the least advantaged to be satisfied by a commitment to

donate. Such formulations of justice may seek to create rules to design a society that

functioned so as to protect those in danger and provide the greatest benefit to the least

advantaged. The demands of justice may not necessarily be formulated in an absolute sense, so

as to compel a person to donate but the demands present a justification of donation as fulfilling

just ends. While the demands of justice may present issues in cases that threaten the interests of

individual's rights or life and are clear in the moral obligation, decisions about everyday

accounts of what constitutes utility are not as easily demarcated by an idea of justice,

regardless of the specific form of justice. Accounts of situational needs such as organ donation

seem more readily to suggest the requirements of moral obligations rather than accounts of

justice. Moral obligations have practical conclusions, to do something that one ought to do and

can do. But moral obligations raise problems, as it is unclear what it means to say that a person

could have acted in a certain way. In a similar manner to the demandingness question, moral

obligation does not present clear bounds on what one must do, and in the case of organ

donation, fails to convert what is a good postulated outcome into an 'ought', a morally

obligated action. Bernard Williams notes that "Blame, reproach, guilt and remorse are


characteristic outcomes of not honouring moral obligations"38, and, while a utilitarian impulse

may induce these emotions in people who ascribe to utilitarianism, it may also fail to lead non-

utilitarians into voluntary action.

In order to overcome the problems of demandingness, integrity, justice and negative

responsibility, ideas of consent need to be integrated into a utilitarian scheme. A person

entering into a utilitarian goal without coercion necessitates that person consenting to the end

state of affairs. This would go some way to satisfying the issues that are raised by

utilitarianism. Creating a theory that will accommodate a maximisation of ends while allowing

the individual to enter into the state of affairs voluntarily would allay most of the concerns

raised by the critics of utilitarianism. A theory that was minimally demanding, in terms of the

onus that it placed on the individual to act, or to change behaviours or life goals would address

the problems of demandingness, justice and integrity. Negative responsibility could be

addressed with a theory that did not transfer the lack of action to a fault on the individual but

incorporated the possibility of non-action to end in a positive result under such a schema. It

may not be the case that a hybrid of virtue ethics and utilitarianism could resolve the issue of

whether the good precedes the right or the right precedes the good, but it may go some way to

suggesting that a voluntary engagement in a mutual project will result in a similar picture of

ends. Consent, though it may be shaped, created and manipulated by external forces, is

essential to the creation of a theory that honours the individual as well as creates a mutual state

of affairs between individuals.

38 Williams, Morality: an introduction to ethics (Cambridge: Cambridge University Press

1976), 48


Consent Chapter

Central to the question of organ donation is the idea of consent by the potential donor prior to

death or by relatives for the removal of organs. The first can be considered a minimum

condition for organ donation, where the rights of the individual over his/her body are

considered to be upheld. Ceteris paribus, nothing can be done to the body of a person, not even

the dead body without the person's prior consent. The second reflects what happens more

generally in cases of donation; the relatives of the deceased are consulted as to what occur with

the organs of the deceased. Thus the issue of consent within organ donation opens up the areas

of personal autonomy and issues of power over ones own body, the rights of others to make

post mortem decisions about ones body and the very question of whether consent is a proper

or necessary requirement for the organ donation process.

I put forward an argument that seeks to question and diminish the role of consent in organ

donation and is distinct from the following positions. The requirement for consent is often

placed as a 'hurdle requirement' for any organ donation scheme to be introduced; the

practicalities of the defaults created by such requirements make the schemes sub-optimal. In

practice, consent-based schemes are routinely overturned by recognition of relatives' wishes

and interests and, in particular circumstances, by the needs of the state. Also, the emphasis of

interests is weighted in favour of the donor rather than in favour of the needs of recipient. I

shall argue that the needs of the recipient are of greater and of more salient interest. Finally, the

dead have no 'real' interests in the dispersal of their organs; these are the concerns of the living.


Consent as Action or as a Mental State

Consent takes different forms: it can be conceived of formally as actual consent, or as a mental

state. Actual consent occurs where an action, such as the signing of a donor register, indicates

the giving or denial of consent. It is important to reinforce the conception of the idea of consent

as an action. A person may give consent through an indication such as a nod which is a

performative and constitutes legally a similar role to tacit consent. The legal importance for

consent to be an action that can be referred to after the event is clearly so that people can refer

to the actual decision of the donor.

Mental state conceptions of consent are a form of tacit consent, where the consent is either

imputed or presumed on behalf of the dead by relatives or medical authorities. Relatives may

indicate that the deceased was a generous person and that organ donation fitted in with the

'spirit' of the person. "She would have preferred to donate, if she had given any thought to the

matter"39. Such consent is imputed consent and perhaps less compelling than presumed

consent.

Presumed consent acts in the manner of the presumption rule. If there are no evident grounds

that a situation is true, proceed as if it were true unless there is sufficient evidence to

demonstrate that the situation is false. Presumed consent is a form of tacit consent where, in the

light of no actual consent being made by the deceased, the decision to donate is presumed by

systematic default in the case of Opt-out systems. Tacit consent also happens in different

forms, for example, where a patient arrives unconscious at an emergency room and the

authority to operate is tacitly assumed by the emergency staff, as to act otherwise would be to

39Den Hartogh, Govert, 'Can Consent be Presumed?', Journal of Applied Philosophy, 28 (3), (2011a): 297-298.


risk the life of the patient. Tacit consent is routinely used in medical situations where the

situation or systematic default decides the nature of consent.

The point is often made that presumed consent is not actual consent and that actual consent is

needed to make decisions on questions of body rights and the extension of ante mortem

property rights by the living person over the post mortem body. I intend to claim that

presumptions are not needed to justify an opt-out system. Tacit consent can be argued to be a

form of actual consent, in certain circumstances, and a more radical claim can be made where

consent is not needed as the dead have no rights over their bodies. However, first the natures of

autonomy and body rights need to be examined.

Consent as ceteris paribus

Consent as an idea can be conceived as an extension of rights to personal autonomy and

control over one's post mortem body. Ceteris paribus, the right over ones post mortem body,

as a negative right, protects against such infringements specifically when ante mortem

directives have been stated. Such rights are negative rights: they disallow actions, such as

organ harvesting from the dead occurring to the body of the deceased without the express

consent of the dead through a living will, the signing of a donor register premortem or signing

an advance care order. These negative rights should not be mistaken for a basic human right to

bodily integrity. While I am co-existent with my body I have the right to determine what

happens to it and it does not end in death.40 Negative rights are protective, a limitation of

access. Legitimate access is granted through consent. Such consent is considered the minimum

40 Den Hartogh, Govert, 'The role of the relatives in opt-in systems of post mortal organ procurement', Medicine,

Health Care and Philosophy, 15 (2), (2012), 197.


requirement in opt-in organ donation schemes and sets the default position at no organ

donation. Arguments made against negative rights are generally arguments for the positive

rights of the living. The interests of people who are living and in need of organs are paramount

in a hierarchy of care or need. The dead have no interests. This being the case, a negative right

is in distinct conflict with the positive rights of the living. Where the living cannot claim such

rights, this prohibition to access to post mortem

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