Good grief! A Maryland state legislator has filed a bill that would allow surrogate decision makers to “donate” kidneys and liver lobes. From HB 449:
THIS SUBSECTION APPLIES ONLY TO A PATIENT WHO HAS BEEN CERTIFIED UNDER § 5–606(B) OF THIS SUBTITLE TO BE IN A PERSISTENT 8 VEGETATIVE STATE.
(3) A PERSON AUTHORIZED TO MAKE HEALTH CARE DECISIONS FOR ANOTHER UNDER THIS SECTION MAY AUTHORIZE THE DONATION OF A NONVITAL ORGAN IF THE DONATION IS BASED ON:
(I) THE WISHES OF THE PATIENT AS PREVIOUSLY EXPRESSED BY THE PATIENT; OR
(II) A DETERMINATION BY THE SURROGATE THAT THE DONATION IS CONSISTENT WITH THE PATIENT’S RELEVANT RELIGIOUS AND MORAL BELIEFS AND PERSONAL VALUES.
Unconscious patients would hardly seem to be in a state of health to permit such surgeries. But surely when people can’t make their own decisions, surrogates–as fiduciaries–must work solely for the medical benefit of the incompetent person.
I know people will say, “What if it is the patient’s child” or some such. But we can’t do it! We can’t treat incompetent patients as objects for the benefit of others. This proposal is merely the latest attempt to permit unconscious patients to be used as so many organ farms. And if the surgery kills the patient, why then other organs might be available. I repeat: Good grief.
February 23rd, 2012 | 2:11 pm
We actually have three decisions here.
One: when we assign guardianship (that is, decision making power) over someone to a third party, do we expect that third party to make decisions solely on behalf of the person they are supposed to be acting on behalf of? Or will we allow “backdoor exploitation” (which we are already doing in cases where courts and other third parties are responsible for making custody decisions about minor children, where the desires or “rights” of grown-ups are allowed to override the well-being of the children involved).
Two: related to above – do we value integrity? Do we even know what the word integrity means? Do we care?
Because whether we have integrity – whether we actually practice the values we claim to value, and whether we actually honor our commitments – controls the question of whether or not expectations can be formed reliably. Because breaches in integrity – however harmless they seem – in the real world result in unpredictable variation, predictions that go wildly awry….uruk hai sneaking bombs into your gutters.
Third: do ethics matter?
This is the vital question of our age: will we vote for a better world, or for dystopia? Because ethics is the key to that decision….
February 23rd, 2012 | 4:48 pm
Wow, what a great way to discourage people from signing organ donation cards! Hit your head, and they’ll steal all your organs while you’re out!
Oh, and if the patient wakes up and wants his kidney or liver back, is there a return policy? Can the patient claim a pound of flesh from the doctors and the “guardian”?
Barbara Reply:
February 26th, 2012 at 12:02 pm
This is a good way to discourage people from signing the donor form.
February 23rd, 2012 | 5:34 pm
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February 23rd, 2012 | 6:34 pm
Wesley, you said, “We can’t treat incompetent patients as objects for the benefit of others.”
That horse left the barn a long time ago, I’m afraid. The most notorious relevant court case is Strunk v. Strunk in Kentucky, a precedent-setter from over 40 years ago. In response to a suit that a mother filed concerning her two young adult sons, one of whom was incompetent and in an institution and the other of whom needed a kidney, the judges ruled that subjecting the incompetent son to removal of a kidney for the benefit of the other (normal) son could proceed. And it did.
The mother died at an advanced age several years ago, and the online obituary notes that one of her sons predeceased her. That was the one who was incompetent and made to give up a kidney.
Other such cases seem to date from the 1970s. Most involve minor children, often mentally retarded, from whom a parent is seeking (typically) a kidney to benefit a minor sibling (who is of normal intelligence, by sheer freak chance, I’m sure). Little v. Little from Virginia is such an example.
Every year a few minor children get to “donate” a kidney, bone marrow, or part of a liver to a sibling after parents pursue the issue with a hospital and the courts.
Numerous recent legal papers discuss the issue of organ “donation” from incompetents. It just isn’t a new issue. This Maryland bill simply ratchets it another notch. I decry it, but the trend is all too clear. Welcome to another example of the new bioethics…
Lydia Reply:
February 23rd, 2012 at 6:58 pm
@K-Man, I didn’t know that. Thanks for the info. Really horrible. As you say, this does ratchet it up a notch by expressly making such organ farming lawful statutorily across the board rather than leaving it to the courts to hash out on a case-by-case basis. But still, it’s sobering to know about these earlier cases.
February 23rd, 2012 | 10:32 pm
I’ve just been reading up on Strunk v. STrunk and Little v. Little.
The sort of sickening thing is that the court in Little spends paragraph after paragraph demolishing the mother’s own argument for taking a kidney from Anne, the retarded girl, and then nonetheless allows it by constructing a different argument of the court’s own based directly on Strunk. Truly, judges have little conscience. Anne’s mother/guardian didn’t quite do the legal job they wanted her to do in laying out her argument, so they helpfully did it for her. Sheesh.
The pretext in both cases was that it was in the best interests of the incompetent person to give a kidney to a sibling because the incompetent person would feel sad if the sibling died and was capable of understanding the concept of helping the sibling and would feel so happy about doing so.
How nice.
I will say this, though: The court in Little cites some other cases in which such transplants were refused by courts partly on the grounds of no statutory authority for allowing them, plus some state statutes that don’t permit a guardian to give away the property of the incompetent as a donation. (Darn’ tootin’.)
So a law like the Maryland statute certainly removes a lot of uncertainty from such cases and gives a new and emphatic green light.
February 23rd, 2012 | 10:35 pm
Oh, plus, the Maryland statute doesn’t seem to be confined to cases of donating to family members. Moreover, since the patients in the Maryland statute are supposedly PVS, the whole allegation is that they aren’t experiencing anything; hence, by that reasoning, they couldn’t experience the alleged emotional benefits of donating and saving a family member’s life. All the arguments in Strunk and Little were connected to the allegation of a relationship between the incompetent person and the donee and the supposed benefit to the incompetent person of being a donor. Forced and implausible, to be sure, but the Maryland statute removes all such limitations.
February 24th, 2012 | 9:01 am
Hmm…I totally see how this is a very slippery slope and definately prone to disasterous abuse, but at the same time I kind of understand it too. I would gladly donate a nonvital organ if I had the chance to help someone. If I was unable to articulate that desire why shouldn’t my trusted husband, as my legal and medical proxy be able to articulate my well-known wishes if the situation presented itself? But I do think it’s such a slippery slope, just because *i* trust my husband or family to proceed with my stated wishes if I am incapacitated doesn’t make that true for the majority of people holding medical proxy for others.
Wesley J. Smith Reply:
February 24th, 2012 at 10:06 am
You wanting something is different than someone making that decision for you. Think about the delicate medical conditions of these people. It is one thing for a health adult to donate a kidney–and sometimes very difficult. But someone in a weakened state like that probably wouldn’t be allowed to donate if they wanted to.
Jespren Reply:
February 25th, 2012 at 9:45 am
@Wesley J. Smith, well I don’t understand how someone else making the decision would change the general requirements. If you’re not healthy enough how could someone else being medical proxy override that? that’s the reason I haven’t donated to date, my current medical conditions would preclude it. But comatose people do undergo surgeries and not all of them are in delicate health. again, I think this in the law is dangerous because of the possible, even likely abuse, but I don’t see anything inherently immoral about a medical proxy making a serious medical choice on behalf of a loved one.
Wesley J. Smith Reply:
February 25th, 2012 at 10:37 am
It isn’t for the medical benefit of the ward!
February 24th, 2012 | 9:46 am
Wesley:
Your point about fiduciary duty is very good. I am wondering about your views on this question:
If the proposed statute were enacted would it supercede existing statutory and case law involving fiduciary duties? Section II does not mention the “best interest” of the ward, and one might argue that what is not mentioned in thereby excluded.
On the other hand, a court might conclude that the particular section should be construed in a way that is consistent with the much larger body of law on fiduciary duties that is addressed more specifically to fiduciary duty to protect the best interests of his ward.
Wesley J. Smith Reply:
February 24th, 2012 at 10:04 am
I dont know MD law, but generally a newly enacted statue supesedes an previously enacted statute where the terms conflict. There can be no “best interests,” or it should be “best medical interests” of the ward because this aims to open up the wards to being organ farms.
February 24th, 2012 | 3:20 pm
The Maryland legislature, (House Health and Government Operations Committee) held a hearing on HB 449 February 21st. The Maryland Disability Law Center, National Catholic Bioethics Center and the National Catholic Partnership on Disability all filed testimony against the bill. NDY also filed testimony. (I am not sure who gave testimony in person.)
Excerpts from the players mentioned above can be found here:
http://notdeadyetnewscommentary.blogspot.com/2012/02/maryland-using-pvs-diagnosis-to-justify.html
February 24th, 2012 | 5:45 pm
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February 24th, 2012 | 6:37 pm
You don’t give a source, Wesley…Is this common knowledge? I don’t get the Sun during the week so I don’t know if it has been reported yet.
Wesley J. Smith Reply:
February 24th, 2012 at 7:06 pm
The source is the legislation itself. I don’t know of any reports on it–other than mine. Why I make the big bucks. : )
February 24th, 2012 | 6:39 pm
This is precisely why as a woman who has been disabled for the past 26 years and is now in her fifties I have made it clear to my adult children that I do not want to ever be considered an organ donor and have also signed a loving will from American Life League which says in so many words “spare no expense, keep me alive!” or in other words “I’m Not Dead Yet, and I want to live! I was told by friends at NDY that for that same reason it is best to never sign a Do Not Resucitate order for a hospital, either. Doing that you are without legal recourse. You could get hit by a car walking onto the hospital premises and they would have no liability under the law if they just stood around and let you die there. A copy of my loving will went to my physician and each of my 6 adult children while the original is being kept in a safe place at home in case of need. Be proactive and protect yourself – we live in perilous times indeed!
February 25th, 2012 | 1:20 am
but at the same time I kind of understand it too. I would gladly donate a nonvital organ if I had the chance to help someone.
There is in fact a rather clear line here: informed consent.
There is no way to let a guardian choose this without corrupting the notion of guardianship.
The problem here is that we have begun to think of other peoples’ harvestable organs as some kind of entitlement.
Jespren Reply:
February 25th, 2012 at 9:58 am
@Blake, might just be an example of how different people view ‘guardianship’. As I see it if I am a legal guardian over my husband because of some gross injury or mental deterioration (or he I), my job is to act on his behalf. I would make the decisions I know he would make, as he would make them. He’s not a child to be ruled by ‘best interest’, he’s an adult who has made his wishes known and I should carry out *his wishes*, regardless of whether *I* find them in his ‘best interest’.
Perhaps a court appointed proxy has no choice, being unknown to the person, to follow anything but what is ‘standard’ best interest, but a choosen proxy is quite different. There is no reason to think informed consent is not valid here, our wishes on general, life sustaining, and life ending care are well know. Our consent has already been both informed and given (or not given as the case my be), I fail to see how who relays that choice to medical personell is relevent. But, again, I did note that I recognize that is not the case for everyone. Not everyone has someone who they trust implicitly to follow their will and wish and speak for them in a situation where they can’t.
February 26th, 2012 | 11:34 pm
@Blake, might just be an example of how different people view ‘guardianship’. As I see it if I am a legal guardian over my husband because of some gross injury or mental deterioration (or he I), my job is to act on his behalf. I would make the decisions I know he would make, as he would make them.
[Blake: Too angry.]
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