Ethical aspects

III. Ethical aspects

The new paths which have been opened up by transplantation medicine raise not only medical and legal, but especially ethical questions. Looking at the situation from an ethical point of view, this involves issues such as the definition and time of death, the rights of those who have died, the fair allocation of organs, the extent to which organs are donated voluntarily and the implementation of xenotransplantation. Generally, the ethical questions fall into the categories of post-mortal organ removal, the allocation of organs, living donor donation and those concerning xenotransplantation(see module Xenotransplantation).

Ethical questions arising in connection with post-mortally donated organs

The main issue to be addressed in cases of post-mortal donation is concerned with the point in time at which it becomes ethically justifiable to remove organs from human bodies.

Reliable determination of death

Where organs are to be donated post-mortally, the central debate revolves around the question as to when exactly the donor may be considered to be dead. More specifically, the concept of death needs to be addressed from a philosophical rather than medical point of view. In addition to an irreversible cardiac arrest ('cardiac death')(see module Cardiac death) a certain sign of death is to be seen in the irreversible and complete functional failure of the entire brain ('brain death')(see module Criterion of Brain death). This criterion applies in Germany and in most other countries. The term brain death may be applied where the brain has ceased to 'operate', so that its ability to function has permanently disappeared, even though it may be possible to maintain the cardiac and circulatory functions in the rest of the body by means of intensive medical care. The Guidelines of the Federal Medical Association (Bundesärztekammer)(see module Guidelines of the German Medical Association (Bundesärztekammer) for organ allocation) contain exact descriptions of the procedures and processes involved in the diagnosis of brain death. The debate on the definition of brain death reached a climax in connection with several drafts of the Transplantation Law and with its being passed in June 1997, but still today it remains the subject of heated discussion. The argument put forward in favour of using brain death as a sure sign of death maintains that when the brain functions have failed permanently the physical-mental unity which makes up the human being is irretrievably destroyed. As soon as brain death has occurred, the human being is no longer able to think, recognize, decide, plan, feel or perceive. He or she can no longer experience consciousness, nor self-awareness, so that other persons can, at the most, have a relationship to him/her, but it is no longer possible to establish a relationship with him/her.
Those who oppose the use of brain death as a general criterion for death consider brain death as merely a stage encountered on the path leading to death, a phase which must still be associated with the life which is in the process of being extinguished. As many patients for whom brain death has been diagnosed still display physiological reactions – from bodily warmth and skin hue through spontaneous embraces up to erections and ejaculations on the part of male patients and even the continuation of a pregnancy for a certain time in a brain dead mother – they maintain that those affected cannot be regarded as actually being dead in a fully comprehensive sense of the word.

Consent to post-mortal organ extraction

The question arises as to whether a physician is authorised to remove tissue or organs from a dead body for the purpose of healing another person without either the approval of the next of kin or evidence of approval having been given by the dead person during their lifetime. If the person who has died gave such approval either in writing or verbally, the doctors are required to investigate the medical feasibility of carrying out the organ donation and, if possible, to implement it. Opinion remains divided as to how to deal with cases in which the dead person has left neither a statement of consent nor of objection. This gives rise to a condition of uncertainty between public interest in obtaining a sufficient number of organs for transplantation and the interests of the dead person and their next of kin in respect of maintaining the dead body's integrity. Proponents of the dissent solution(see module Dissent solution) recommend a compromise: There should be no obligation to remove organs, but the potential donor should carry the burden of decision.

Questions of fair allocation of organs when the supply is limited

A further ethical problem in current transplantation medicine can be seen in the equitable distribution of post-mortally donated organs. It is necessary to establish a fair means of allocating organs when the number of donors fails to meet the demand. The question becomes acute in cases where two or more patients meet the medical criteria for one and the same donor organ. The allocation of organs is then based on the fundamental ethical principles of equal treatment and the achievement of the greatest possible (medical) benefit. However, these two principles can easily collide. Thus a relatively young and otherwise healthy person may be expected to receive the greatest benefit from a transplantation, but this could be at the expense of somebody else for whom the organ in question represents the last chance for survival. It is not possible, from an ethical point of view, to lay down hard and fast rules for applying these two principles – their relationship to each other must be tested again and again in an ongoing and transparent process of social discussion.
In Germany, the organs subject to allocation (heart, lungs, liver, kidney, pancreas and intestines) are distributed by the allocation Eurotransplant, according to the Guidelines of the German Medical Association (Bundesärztekammer)(see module Guidelines of the German Medical Association (Bundesärztekammer) for organ allocation). In view of the difficulties inherent in allocating organs, suggestions have been put forward to limit the distribution of donor organs to people who themselves have agreed to allow their organs to be used in the event of their death. Critics of this model point out that its practical implementation could lead to undesired discrimination. There is a broad degree of agreement that social criteria such as a person's standing in society should not play a role in the distribution of organs.

Ethical questions concerning organ donation by living donors

The progress being made in transplantation medicine, together with the present shortage of organs, adds fuel the discussion concerning the legitimacy of donation by living donors. Where an organ donor is still living, the ethical issues revolve around the donor and the recipient, as well as the physician in his or her role as mediator between them.
Free-will decision on the part of a living donor
The donation of an organ by a living donor presupposes his or her informed consent. According to the stipulations of the German Transplantation Act it is permissible only between first and second degree relatives or between people who have a “close personal relationship”. The aim of this ruling is to prevent the possibility of trade in organs, to ensure that the donation is, indeed, voluntary, and also to protect donors against making over-hasty decisions which they may regret later if complications arise. In view of the fact that in such cases a healthy person undergoes an operation which does not directly benefit himself or herself and which involves a health risk which could even result in the donor's death, most countries require that the number of such donations be limited to what is absolutely necessary in order to supply the demand for transplants. In Germany, this requirement is implemented by means of the “principle of subsidiarity of post-mortal donation against donation by living persons”. This means that a donation from a living donor is only permissible when no suitable organ from a dead person is available at the time of organ extraction. A surgeon may only remove organs from living donors when these criteria of urgency and lack of alternatives are fulfilled. Further, physiological tests must be performed to confirm that the operation will not endanger the potential donor more than is normally to be expected. Finally, psychological tests must be carried out in order to establish whether the donor's decision is truly made of his or her own free will and that he or she is adequately informed. As far as the responsible medical practitioners are concerned, the ethical discussion focuses on the extent to which an operation which does not benefit the person being operated on can be reconciled with the classical principle of medical ethics known as 'nihil nocere' – 'do no harm'.

Extension of the group of potential donors

It is a matter of debate as to whether those people who donate organs or parts of organs while they are still living should receive a remuneration in order to increase the number of people willing to donate. There is a body of opinion which regards such 'acknowledgement payments' as being appropriate in view of the considerable risks and disadvantages which the donor takes upon himself or herself. As they are prepared to make a positive contribution towards reducing the shortage of organs for donation, this deserves recompense. Further, it may be a psychological aid for the recipient if they know that the donor at least receives some sort of financial compensation. Feelings of guilt are common, and could in this way be somewhat relieved. However, many experts from the fields of medicine, law and ethics reject any form of organ sale out of hand. In their view, donation of organs against payment of money is not compatible with human dignity and the constitutionally defined code of ethics, and therefore unacceptable There is grave concern that such a practice would lead to the exploitation of poorer members of society, because such people would be more likely to agree to organ removal while they are still living.
In addition to the idea of providing financial incentives to encourage more people to become living donors there are several other possibilities which have been put forward with the aim of increasing the donor pool. For instance, discussion of cross-over donation has increased in recent years. This could prove to be a life-saving solution for patients who cannot benefit from a donation from close relatives on account of blood group and HLA incompatibility. Another way of increasing the number of donors would be to introduce a so-called pooling system of anonymous living donors. These donors provide organs for persons whom they have not themselves designated and who remain unknown to them.

According to the model presently under discussion the organs donated in this way are to be 'pooled' so as to ensure that mutual anonymity is maintained and the possibility of trading in organs is excluded. The pooled organs are then to be allocated according to criteria similar to those which are applied to post-mortal donation.

Ethical questions relating to xenotransplantation

The central ethical concern here is the question as to whether man has the moral right to kill animals for the purpose of using their organs. There are various schools of thought which have led to differing ethical assessments of xenotransplantation(see module Ethical assessment of xenotransplantation):
Advocates of anthropocentrism (see module Anthropocentrism) see the human race as being the decisive factor influencing ethical considerations; non-human nature, which includes the animal kingdom, is only of value insofar as there is a relationship between it and man and it serves his needs. In contrast, the proponents of biocentrism(see module Biocentrism) clearly oppose the establishment of a value gradient which places humans above animals.

The majority of professionally concerned people in Germany adopt an integrative stance which acknowledges both lines of argument. In practice, this means that animals are accorded certain rights, but they are not necessarily to be regarded as being coequal partners on the same footing as humans. Consequently, supporters of this view are in favour of xenotransplantation where it may enable the preservation, saving, promotion and protection of human life.

Another aspect of xenotransplantation which provokes discussion concerns the assessment of its risks and benefits. Its advocates stress its value, for instance in helping a seriously ill patient. The critics point out that the risks involved in using transplants of animal origin remain obscure. In the main, these risks concern the rejection reactions, which so far remain beyond satisfactory medical control, and the possibility of transferring infectious pathogens to the transplant recipient and other persons. There are also differences of opinion in respect of the ways in which xenotransplantation may effect changes in the recipient's identity.

  Previous: II. Legal aspects Next: IV. Modules