He who chooses his plan for himself, employs all his faculties… It is possible that he might be guided in some good path, and kept out of harm’s way, without any of these things. But what will be his comparative worth as a human being? It really is of importance, not only what men do, but also what manner of men they are that do it.
According to Mill, those who deliberately choose their own “plan of life” are comparatively more valuable that those who simply conform to public opinion. His reasoning is that deliberating engages one’s human faculties, which is valuable. Thus, a Millsian analysis would indicate that encouraging deliberate choice is good for increasing overall utility. A system of presumed consent would necessarily reduce the level of deliberation in the Organ donation process. The entire justification for an opt-out approach is that there are fewer people who will choose to opt out than people who currently choose to opt-in. This means that presumed consent minimizes the number of people engaging in active deliberation, which reduces Utility under Mills.
Notwithstanding that this is a valid and interesting objection, it is certainly minor. As a whole, Utilitarianism would still likely deem that Presumed Consent is an ethically permissible system since it maximizes the utility of organ donation recipients.
An obvious criticism to this evaluation of presumed consent is its failure to account for one’s ethical responsibility to respect the autonomy of the deceased. Common moral intuition would suggest that this failure makes the analysis incomplete. After all, the value of “respecting the dead” is widely held. To fill in this gap, I will proceed by evaluating presumed consent under three alternative frameworks: deontology, virtue ethics, and bioethics.
Virtue Ethics is a type of normative ethics that focuses on the moral character of agents. Virtue Ethics defines moral actions as those that are consistent with what a virtuous person would do. Classical Virtue Ethics views virtuous actions as those that bring us closer to Eudaimonia, the state of flourishing. Eudaimonia is a fairly nuanced concept. Eudaimonia does not denote merely pleasure, but a true state of thriving, which distinguishes its goals from the hedonistic pleasure that Utilitarianism seeks to maximize. More stringent definitions of virtue have also been supplied. Aristotle defined virtue as the midpoint between the two opposing vices of excess and deficiency. In more contemporary terms, a virtue is defined by Rachels as a trait, manifested habitually, that is “good for a person to have.”
Virtue Ethics can evaluate which system of organ donation is preferable by analyzing which system is more virtuous from the perspective of the donor.
The two characteristics that would most frequently compel an individual to donate their organs are the traits of beneficence and justice, which are both virtues. According to Aristotle, justice stands between egoism and pure altruism, and therefore is considered virtuous since it fulfills the “Golden Mean” rule. An important part of Virtue Ethics is the notion of promoting telos (ultimate good), for one’s community. Beneficence is consistent with promoting community good since at its core, beneficence is concerned with helping one’s broader community. Thus, organ donation seems to be moral under virtue ethics since the two traits that would compel donation––justice and beneficence––are both considered virtuous traits.
Integral to virtue ethics is that moral agents possess phronesis, which is moral or practical reason. If a person does not possess phronesis, they are considered to be incompletely virtuous. Modern interpretations of Phronesis occasionally vary, but it is widely accepted that phronesis involves the process of actively thinking through and applying one’s practical wisdom and knowledge of moral virtues. Possessing phronesis is also an active process, produced through careful deliberation in decision-making. Accordingly, in order for the donor to be truly virtuous, there must be some active deliberation with regard to the act of donation.
Two premises have been established thus far–– organ donation is virtuous, and virtuous actions must be intentional in order for the agent to have possessed phronesis. Consequently, an organ donation scheme is ethically preferable under virtue ethics if it encourages a greater number of intentional donations. Since an explicit consent system requires that individuals actively deliberate regarding organ donation, reflected by actively opting-in, donors under this system are virtuous and possess phronesis.
An opt-out system of presumed consent mitigates the virtue of organ donation by making the action non-deliberate. Since organ donation becomes the mode of default, actors do not need to deliberate about its positives and negatives. In fact, only those who choose to opt-out have engaged in a deliberative process. Based on the importance of phronesis to the achievement of virtue, it would seem then that a presumed consent system is comparatively less virtuous since it lacks the intentionality required for an action to be considered a virtue. Thus, virtue ethics would reject presumed consent.
While Virtue Ethics is certainly a valuable ethical theory, it does not sufficiently account for interpersonal ethical obligations (since it only considers the virtue of the individual). Deontology offers another valuable means-based moral framework that places a strong emphasis on the relationship between rational agents.
Deontology, which primarily derives from the work of Immanuel Kant, is a normative means-based framework that regards the ethicality of an action as rooted in the principle of the action itself, rather than the consequences of the action. Under Deontology, morality is set by maxims, which are defined with the Categorical Imperative. Kant’s Categorical Imperative has two formulations. The first mandates that moral actions are universalizable, meaning that if everyone were to undertake that action, it would not result in a logical contradiction. The second formulation requires that one may not treat another person as a means to an end. The notion of autonomy is fundamental to this second articulation, as it regards all rational agents as intrinsically variable. Accordingly, the importance of autonomy for all rational agents foregrounds deontological ethics. This second formulation of the Categorical Imperative will be the focus on the analysis of presumed consent under deontological ethics. Finally, Deontology makes a distinction between perfect and imperfect duties. Perfect duties are defined as duties that mandate absolute requirements to refrain from or to fulfill an action. Imperfect duties are more provisional, and describe maxims that one should “sometimes” do. For instance, not lying is a perfect duty, but assisting others is an imperfect duty. This distinction forms the basis for the act-omission distinction, which will be explored in greater depth below.
Under Deontology, the medical professional(s) tasked with carrying out the organ transplantation are the relevant moral actors. Expectedly, doctors are obligated not to remove organs when the individual does not desire to donate. This constitutes a perfect duty since doing so would violate the categorical imperative by treating the deceased as a means to an end. However, when consent is given, organ removal is consistent with the categorical imperative. By retrieving ante-mortem consent, the deceased is recognized as a means in themselves.
Arguably, in order for an action not to violate the categorical imperative, there must be active consent. Active consent is necessary since otherwise, there would be no specific recognition of the intrinsic worth of the moral object by the moral agent. Instead, the moral agent would be regarding the object as instrumentally valuable, which would violate the categorical imperative. Thus, Kant would likely disprove of a system of presumed consent since the implication of consent is insufficient to satisfy the categorical imperative.
Moreover, the Kantian notion of duty could be applied to organ donation to indicate that doctors should strive to uphold the autonomous wishes of the deceased (to donate or not to donate). Cases in which this does not occur can be referred to as “mistakes.” Essentially, each system of organ donation could lead to a certain mistake. Under explicit consent, mistaken non-removals could occur when someone who wishes to donate organs doesn’t opt-in, and their organs are not donated. Under presumed consent, someone who objects to donation may fail to opt out, in which case a mistaken removal would occur.
Those who support an opt-out system contend that it is only important to quantitatively compare the relative number of mistaken removals under an opt-out system to the number of mistaken non-removals under an opt-in system. They argue that this analysis would support an opt-out system since statistically there is a huge discrepancy between the number of individuals who wish to donate and the number who give explicit consent, which means that mistaken non-removals are fairly common under an explicit consent system. However, this analysis falters under a Deontological framework.
Under Deontology, mistaken removals and mistaken non-removals are not morally equivalent. The application of the act-omission distinction makes it clear that mistaken removals are more morally reprehensible than mistaken non-removals. Thus, deontology would discourage a system of presumed consent. The act-omission distinction essentially argues that actively bringing about a harmful action is worse than letting a harmful action occur by omission. Essentially, this doctrine is rooted in the idea of perfect and imperfect duties. Imperfect duties are less stringent, and therefore an omission of an imperfect duty is preferable than violating a perfect duty.
