Justice and liability in organ allocation

Social Research, Spring, 2007 by Jeff McMahan

THE DISTRIBUTION OF ORGANS FOR TRANSPLANTATION

SUPPOSE THAT THERE ARE TWO PEOPLE, BOTH OF WHOM WILL DIE VERY soon without an organ transplant. One organ becomes available. It is a perfect match for both people, one of whom can therefore be saved. It is visually certain that no other organ will become available in time to save both. How ought the choice between the two people to be made? There are indefinitely many distributive principles that might be followed. The organ could, for example, be sold to the highest bidder. Or it could be given to the person whose need was manifest first: first come, first served. Many people believe that both possible recipients should have an equal chance of being selected. They may think that the decision should therefore be made randomly--for example, by flipping a coin. Both of these last two proposals seek to avoid being discriminatory. They appeal to considerations that are essentially arbitrary and irrelevant. By refusing to distinguish between the two potential recipients on substantive grounds, they seek to treat both people as equals--though it is worth noting that because these criteria do not require any exercise of judgment, they also enable those in charge of the distribution of organs to avoid any sense of responsibility for the outcomes of the selection procedure.

One common view, which in fact guides our practice in certain cases, is that priority should be given to the patient whose medical need is greater. Medical need might then be measured in terms of a patient's probable survival time in the absence of a transplant. Part of the rationale for allocating organs to those who will otherwise die sooner is that other organs may later become available for those who can survive longer. Giving priority to those whose medical need is greater is thus a means of maximizing the number of people who can be saved.

Some people think that just as it is important to save the greatest number of lives, so it is also important to achieve the greatest possible benefit per person by giving a certain priority to those individuals who will otherwise suffer a greater loss in dying. Those who hold this view think that decisions about allocation should be sensitive to the number of years a transplant recipient could reasonably be expected to live following the transplant. Suppose there are two patients who will both die tomorrow without a transplant and one organ becomes available. If one of them would die within a month even with the transplant while a transplant would enable the other to survive another 50 years, surely the organ ought to go to the latter.

Yet many people think that to allocate organs on the basis of a comparison of the benefits that the possible recipients are likely to receive is discriminatory and thus incompatible with treating patients as equals. Others, however, claim that what attention to equality really requires is not a random distribution that gives each patient an equal chance. Instead, what is needed is a distribution that would achieve the greatest equality among the potential beneficiaries in terms of some important respect in which people ought to be equal. One plausible respect in which people ought ideally to be equal is the number of years of life they get to experience. It seems unfair if, through no fault or choice of their own, one person gets to live 90 years while another gets to live only 20. So if, for example, an organ could be used either to enable a 20-year-old to live another 20 years or to enable a 40-year-old to live another 30 years, this ideal of equality would favor allocating the organ to the 20-year-old, even though he or she would derive a lesser benefit, measured in terms of the value we would seek to equalize.

Still others go further in claiming that length of life is a crude measure of both benefit and equality. We should, they argue, be concerned not just with quantity of life but also with quality of life. On their view, if an organ could be used either to enable a 50-year-old to live another 20 years, though with a greatly reduced quality of life, or to enable a 45-year-old to live another 15 years with a high quality of life, there would be a strong case for giving it to the latter, if other considerations were equal. Giving the organ to the 45-year-old would arguably provide the greater benefit and reduce rather than increase the inequality between the two lives. Most people, however, find this sort of calculation disturbingly presumptuous and utilitarian.

Thus far I have merely offered some samples of the distributive principles to which we might appeal in allocating organs in cases in which the number of people who need an organ to survive exceeds the number of organs available for transplantation. The options are many and the debate about them is lively. In this essay I will not attempt to defend a complete account of the morality of organ allocation in conditions of scarcity. But I will defend one criterion, or the relevance of one consideration, that I have so far not mentioned. If I am right that this consideration is significant and ought to have a role in decisions about allocation, then at least some of the views mentioned above are unacceptable. At least in those cases in which the consideration I will discuss arises, we ought not to distribute organs by the use of a randomizing selection procedure, and many of the other criteria, such as medical need, likely degree of benefit, and so on, ought to be subordinated to the criterion I will defend.